Donna WEISS, an individual and as administrator of the Estate of Robert J. Weiss, Plaintiff-Appellant, v. NORTHERN CALIFORNIA RETAIL CLERKS UNIONS AND FOOD EMPLOYERS JOINT PENSION PLAN, Defendant-Appellee, and Linda Ashcraft; et al., Defendants, 222 F. App'x 555

MEMORANDUM Donna Weiss appeals the district court’s grant of

summary judgment in favor of the Northern California Retail Clerks Unions and Food Employers Joint Pension Plan in her action under

Section 502 of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(e). We affirm. Weiss does not dispute the Plan’s contention that its Administrator has discretionary authority to construe plan terms when making eligibility determinations. We review decisions made pursuant to this authority for an abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Weiss first argues that there is a material conflict between the Plan Document and the

Summary Plan Document (SPD) and that, under our precedents, she is entitled to benefits under the SPD’s more favorable language. See Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 (9th Cir.1995), overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir.2006) (en banc). A material conflict is present only if the SPD can only mean one thing and the Plan Document can only mean the opposite thing. See, e.g., Bergt v.

Retirement Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1144 (9th Cir.2002) (“The critical issue in this case is how to interpret an ERISA plan when the plan master document unambiguously qualifies an employee as a member of the retirement plan, but the SPD unambiguously excludes him.”) (emphasis added). We find no such conflict here.

Both parties agree that the Plan Document unambiguously denies benefits — the participant and surviving spouse must have been “lawfully married throughout the year preceding the date of death.” The language in the SPD requires the participant and surviving spouse to have been “legally married for at least one year prior to the date of [the participant’s] death” for benefits to be awarded. As the district court found, the SPD is susceptible to two reasonable

interpretations: the first requiring marriage for one year anytime prior to the participant’s death, and the second requiring marriage for one year preceding the date of the death. This created an ambiguity, not an irreconcilable conflict. It then fell to the Administrator to interpret the provision, which it reasonably did. Weiss next argues that any ambiguity in the SPD should be resolved in favor of the beneficiary, but this proposition fails to recognize the discretion afforded to the Plan Administrator “to construe disputed or doubtful terms” in the plan. Firestone, 489 U.S. at 111, 109 S.Ct. 948. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.