NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLINT FISHER, No. 20-35310

Plaintiff-Appellant, D.C. No. 3:18-cv-01639-JR District of Oregon v. Portland

MARIA SECCHITANO; LEE EGLAND; MEMORANDUM*

BRIAN DODGE; DONOVAN DUNCAN;

PETER HART; GAIL MCCORMICK;

JOHN SKOW; ADAM SMITH; MATT

HAINLEY; PATRICK MURPHY; ALICE

NG; MIKE O'CONNOR; ROBERT

RELLER; ROBERT ESTRADA,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Hon. Michael W. Mosman, District Judge, Presiding

Argued and Submitted December 8, 2020 Seattle, Washington

Before: BERZON, MILLER, and BRESS, Circuit Judges.

Clint Fisher appeals the district court’s judgment granting Defendants’

(“Trustees”) motion to dismiss his Second Amended Complaint for failure to state

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. a claim and also granting the Trustees’ related motion for judicial notice. We

granted Fisher’s motion to supplement the record on appeal to address standing

issues first raised before this Court, construing Fisher’s motion as a motion to

amend the Second Amended Complaint to correct “[d]efective allegations of

jurisdiction.” 28 U.S.C. § 1653. We now affirm the judgment of the district court.

Fisher lacks Article III standing to maintain this suit. While the appeal was

pending, the Supreme Court held in Thole v. U.S. Bank N.A., 140 S. Ct. 1615

(2020), that retired participants in a single-employer defined-benefit plan lacked

Article III standing to bring a breach of fiduciary duty claim because any breach of

fiduciary duty by the plan trustees would not have any impact on their future

benefit payments. Id. at 1619. The circumstances here are somewhat different from

those in Thole, as Fisher has not yet retired, he is still eligible to accrue additional

future benefits, and the pension plan in question is a multiemployer plan with

multiple employers responsible for paying into a trust fund from which vested

benefits will be paid, not a single-employer plan backed by one employer’s assets.

But we need not decide whether Fisher, like Thole, has failed to plead an injury in

fact. Assuming he has adequately alleged an injury for Article III standing

purposes, he has not shown that any injury he has suffered is “likely” to be

“redressed by a favorable decision,” Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992), and so lacks Article III standing for that reason.

2 Fisher’s asserted injury—a reduction in his future benefits—will not be

redressed by a favorable decision by this Court. The distinctive fiduciary duty

claim he has pleaded forecloses such redress. Fisher’s entire complaint rests on the

allegation that the Trustees have a duty to abide by a “unique” rule in the Plan

documents that prohibits the Plan from incurring unfunded vested benefits

(“UVB”). Upon notice that UVB has been incurred, the second part of the same

rule provides that the Trustees “shall . . . meet and take such action as may be

required to modify Plan benefits . . . to eliminate and avoid incurring . . . [UVB].”

In his Second Amended Complaint, Fisher describes the asserted fiduciary duty to

act in accordance with Plan documents as a strict requirement: “This requirement

means . . . the trustees of the . . . Plan are prohibited from managing and

administering the plan, and disposing of assets, in ways that permit the plan to

incur any UVB.”

In his Prayer for Relief, Fisher seeks restoration to the Plan of all losses

resulting from breaches of fiduciary duties, including payments of $73 million to

the Plan to eliminate UVB and a return of lost investment income, as well as an

injunction against incurring UVB in the future. In his Reply Brief, Fisher asserts

that “if the Plan Funding is increased because of this lawsuit, Mr. Fisher’s monthly

retirement benefits will be restored.” The benefits he seeks to have restored are

future benefits that he alleges were cut in 2011 and 2018 to address funding

3 deficiencies in the Plan. But if Fisher’s Prayer for Relief were granted and the $73

million in UVB paid to the Plan, the Trustees could not restore participants’ future

retirement benefits to a higher periodic amount without incurring additional UVB.

In other words, under Fisher’s theory of liability, the $73 million is needed to

ensure that present funding covers all benefits that participants have already

accrued. But Fisher’s theory of standing requires the Trustees to restore potential

future benefits that were cut before they had accrued. If the amount of benefits

promised by the Plan is increased, present funding will no longer be sufficient to

cover accrued benefits—i.e., the Plan will incur UVB—thus violating the same

Plan provision upon which Fisher relies. Fisher’s own theory of liability thus

prevents the relief he seeks.

To the extent Fisher seeks additional relief, such as “lost or foregone

investment income,” he has pleaded no facts that would support an inference that

the Trustees would exercise their discretion to restore lost benefits if that allegedly

lost income were returned to the Plan. “There is no redressability, and thus no

standing, where . . . any prospective benefits depend on an independent actor who

retains broad and legitimate discretion the courts cannot presume either to control

or to predict.” Glanton ex rel. ALCOA Prescription Drug Plan v. AdvancePCS

Inc., 465 F.3d 1123, 1125 (9th Cir. 2006) (cleaned up).

AFFIRMED.

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