Matthew Q. Rippentrop v. E.h. Oftedal & Sons, Incorporated Employee Stock Ownership Plan

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Larry A. Burns, United States District Court Judge for**
the Southern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW Q. RIPPENTROP,
Plaintiff - Appellant,
v.
E.H. OFTEDAL & SONS,
INCORPORATED EMPLOYEE STOCK
OWNERSHIP PLAN; E.H. OFTEDAL &
SONS, INCORPORATED,
Defendants - Appellees.
No. 08-35800
D.C. No. 1:07-cv-00076-RFC
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted October 16, 2009
Seattle, Washington
Before: RAWLINSON and CALLAHAN, Circuit Judges, and BURNS, District**
Judge.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Appellant Matthew Q. Rippentrop (Rippentrop) challenges the district
court’s summary judgment in favor of Appellees E.H. Oftedal & Sons, Inc.
Employee Stock Ownership Plan (Plan) and E.H. Oftedal & Sons, Inc. (Oftedal).
The district court rejected Rippentrop’s challenge to Oftedal’s denial of his
benefits claim pursuant to the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001, et seq.
Because the Plan conferred discretionary authority upon Oftedal to
determine eligibility for benefits, Oftedal’s decision to deny benefits is reviewed
for an abuse of discretion. See Nolan v. Heald Coll., 551 F.3d 1148, 1153 (9th Cir.
2009). Contrary to Rippentrop’s assertion, Oftedal’s structural conflict of interest
does not compel application of a de novo review standard. See Abatie v. Alta
Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (en banc) (“Abuse of
discretion review applies to a discretion-granting plan even if the administrator has
a conflict of interest”) (emphasis added) (footnote reference omitted). Rather,
Oftedal’s conflict of interest is weighed as a factor in the abuse of discretion
analysis. See id. at 966-69. In this case, the district court properly “temper[ed] the
abuse of discretion standard with skepticism commensurate with the conflict.”
Nolan, 551 F.3d at 1153 (citation and internal quotation marks omitted).

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The governing regulations provide that “a plan shall determine hours of
service from records of hours worked and hours for which payment is made or due.
. .” 29 C.F.R. § 2530.200b-3(a) (emphasis added). Alternatively, a plan may use
“an equivalency” method to determine hours of service. Id. Equivalency methods
may be used even if records of hours are maintained, provided that the plan sets
forth the equivalency method to be used. See C.F.R. § 2530.200b-3(c)(1).
Accordingly, the district court did not err when it concluded that applying the 45-
Hour equivalency method to calculate Rippentrop’s hours of service was
reasonably within Oftedal’s discretion.
AFFIRMED.

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