Hensley

Opinion by Judge GREENBERG; Concurrence by Judge RAWLINSON.

This matter comes on before this court on the appeal by Northwest Permanente P.C. (“NWP”) and the related defendants from the district court’s order for summary judgment reflecting its decision that NWP, as administrator for two pension plans, abused its discretion in interpreting the term “employee” in determining that the plaintiffs, a group of nurse practitioners and physician assistants employed by the Kaiser Foundation Health Plan (the “Kaiser Health Plan”), an affiliate of NWP, were not eligible for pension benefits under the NWP plans. The plaintiffs cross-appeal from the district court’s decision to apply an arbitrary and capricious standard of review to the administrators’ determinations rather than reviewing them de novo. Finally, NWP appeals from the district court’s order awarding attorney’s fees to the plaintiffs predicated upon its conclusion that the plan administrators had abused their discretion in interpreting the NWP pension plans. We affirm the district court’s decision to apply an abuse of discretion standard, but reverse its decision that NWP abused that discretion in interpreting the pension plans.…

concurring:

I agree with the majority, for the reasons set forth in the majority opinion, that the district court had jurisdiction over this case. I also agree that the district court properly applied the arbitrary and capricious standard in reviewing the Plan Administrators’ decisions. Finally, I agree that the award of attorney’s fees by the district court should be reversed, and costs of appeal taxed in favor of defendants.

I write separately because I find it unnecessary to reach the pivotal issue addressed in the majority opinion: Whether the Plan Administrators had discretion to independently define “employee” for purposes of benefit eligibility. The majority opinion, relying on Allen v. Western Conference of Teamsters Pension Trust Fund, 788 F.2d 648 (9th Cir.1986); Administrative Committee of the Sea Ray Employees’ Stock Ownership & Profit Sharing Plan v. Robinson, 164 F.3d 981 (6th Cir.1999), cert. denied, 528 U.S. 1114 , 120 S.Ct. 931 , 145 L.Ed.2d 810 (2000); and Trombetta v. Cragin Fed. Bank for Sav. Employee Stock Ownership Plan, 102 F.3d 1435 , reached the conclusion that the Plan Administrators had discretion to define “employee” irrespective of the common-law…