FILED
NOT FOR PUBLICATION AUG 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK LEGASSIE, No. 11-56108
Plaintiff - Appellant, D.C. No. 2:10-cv-01850-ABC-
JEM
v.
RAYTHEON COMPANY EMPLOYEE MEMORANDUM*
BENEFITS ADMINISTRATION
COMMITTEE, Administrator of the
Raytheon Company Pension Plan for
Salaried Employees,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted February 11, 2013**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The appellant raised issues, in briefing and oral argument, that
demanded an especially searching examination of the record. The delay in
rendering this decision was occasioned by the nature of the record and the
necessity of a searching review of it in light of the serious questions raised.
Before: KOZINSKI, Chief Judge, KLEINFELD and SILVERMAN, Circuit
Judges.
Mark Legassie appeals from the district court’s entry of judgment against
him on his claims that Raytheon violated various ERISA notice and disclosure
provisions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Legassie’s argument that 29 U.S.C. § 1059(a)(1) should be read as referring
to termination or a break in participation or credited service is waived because he
did not raise it below. In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)
(“The rule in this circuit is that appellate courts will not consider arguments that
are not ‘properly raise[d]’ in the trial courts.”).
The district court’s factual finding that the Raytheon Company Employee
Benefits Committee provided Legassie with a summary plan description in 2009
was not clearly erroneous. Furthermore, while 29 U.S.C. § 1024(b)(1) requires the
plan administrator to distribute a summary plan description every ten years, or
every five years if there is an amendment to the plan, Legassie did not offer any
evidence in the district court to support his argument that Raytheon was required to
provide him with a summary plan description prior to the one provided in 2009.
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Thus, the district court did not err in finding that Legassie had not shown that
Raytheon violated this provision.
Even assuming that Raytheon violated 29 U.S.C. § 1024(b)(1) by failing to
provide the required summary plan descriptions, there is no allegation, let alone
evidence of, “any intentional misleading or trickery, or of any active concealment,”
so the district court correctly concluded that Legassie’s requested equitable relief is
not appropriate. See Peralta v. Hispanic Business, Inc., 419 F.3d 1064, 1076 (9th
Cir. 2005).
The district court did not clearly err in finding that Raytheon provided
electronic plan funding notices, as provided for by 29 C.F.R. § 2520.104b-1.
Furthermore, the district court did not abuse its discretion in refusing to consider
Legassie’s argument that the electronic distribution was not reasonably calculated
to ensure actual receipt of the notices because Legassie did not raise this argument
until his response to Raytheon’s Rule 60(b) motion. See United Nat’l Ins. Co. v.
Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009).
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In any event, the record shows that Raytheon emailed its employees,
including Legassie, instructions on how to access the funding notices required by
29 U.S.C. § 1021(f)(1). Legassie’s declaration and attached exhibits reveal that he
was looking for the funding notice on the wrong section of the benefits website.
Finally, the district court’s finding that Legassie received the pension benefit
statements required under 29 U.S.C. § 1025(a)(1)(B)(i) in the years 2006, 2008,
and 2009 is not clearly erroneous. Legassie’s argument that these statements were
not in compliance with the requirements of the statute because of their inaccuracies
is waived because he did not raise it in his complaint, at trial or in his opening brief
on appeal. Delgado-Hernandez v. Holder, 697 F.3d 1125, 1126 n.1 (9th Cir. 2012)
(per curiam) (“Issues not raised in an appellant’s opening brief are typically
deemed waived.”) (quoting Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir.
2004)).
AFFIRMED.
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