Estate of Bruce Barton v. Adt Security Services Pension

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF BRUCE H. BARTON,* No. 13-56379 Plaintiff-Appellant, D.C. No. v. 2:12-cv-06971-

BRO-CW

ADT SECURITY SERVICES PENSION

PLAN, a pension plan; TYCO

INTERNATIONAL MANAGEMENT ORDER

COMPANY, as plan sponsor; TYCO

INTERNATIONAL MANAGEMENT

COMPANY, LLC, Administrative Committee, Defendants-Appellees.

Filed September 20, 2016

Before: Alex Kozinski, Sandra S. Ikuta, and John B. Owens, Circuit Judges.

Order; Dissent by Judge N.R. Smith

* The Estate of Bruce H. Barton is substituted as Plaintiff-Appellant pursuant to Fed. R. App. P. 43(a). SUMMARY**

Employee Retirement Income Security Act

The panel denied a petition for panel rehearing and, on behalf of the court, denied a petition for rehearing en banc in an ERISA case.

Dissenting from the denial of rehearing en banc, Judge N.R. Smith, joined by Judges O’Scannlain, Tallman, Gould, Bybee, Callahan, Bea and Ikuta, wrote that the panel’s opinion ignored Supreme Court and Ninth Circuit precedent in placing on the ERISA plan administrator the burden…

ORDER

Judges Kozinski and Owens have voted to deny the petition for panel rehearing and rehearing en banc. Judge Ikuta has voted to grant the petition for panel rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active *1015 judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

dissenting from the denial of rehearing en banc:

A party may petition for rehearing en banc when “the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed ,.. and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions.” Fed. R. App. P. 35(b)(1)(A).

In this case, the majority ignores United States Supreme Court precedent and our own Employee Retirement Income Security Act (“ERISA”) precedent and thus fails to maintain the uniformity of the courts’ decisions. Therefore, I must dissent from our court’s refusal to rehear this case en banc.

The United States Supreme Court mandated the standard for reviewing the decisions of ERISA plan administrators in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 115-16 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989). It stated that courts should apply an abuse of discretion standard where, as here, the plan administrator had discretionary authority to determine the claimant’s eligibility for benefits. See id. at 115 , 109 S.Ct. 948 (citing Restatement (Second) of Trusts § 187 cmt. d (1959)). In Metropolitan Life…