FILED
                           NOT FOR PUBLICATION                              DEC 14 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MATTHEW Q. RIPPENTROP,                           No. 08-35800

             Plaintiff - Appellant,              D.C. No. 1:07-cv-00076-RFC

  v.
                                                 MEMORANDUM *
E.H. OFTEDAL & SONS,
INCORPORATED EMPLOYEE STOCK
OWNERSHIP PLAN; E.H. OFTEDAL &
SONS, INCORPORATED,

             Defendants - Appellees.



                   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.




        *
             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.
      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., 

, 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., 

, 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 

In this case, the district court properly “temper[ed] the

abuse of discretion standard with skepticism commensurate with the conflict.”

(citation and internal quotation marks omitted).




                                           2
      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. 

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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