NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GERALD C. ARENDT; DAVID D. No. 14-35457
BROWN,
D.C. No. 2:11-cv-05135-LRS
Plaintiffs-Appellants,
v. MEMORANDUM*
WASHINGTON-IDAHO-MONTANA
CARPENTERS-EMPLOYERS
RETIREMENT TRUST FUND; ZENITH
ADMINISTRATORS, INC.,
Defendants-Appellees,
UNITED STATES OF AMERICA,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted October 6, 2016
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER, FISHER and N.R. SMITH, Circuit Judges.
Gerald Arendt and David Brown appeal the district court’s dismissal of their
suit alleging violations of the Takings Clause and the Fifth Amendment’s
guarantee of equal protection. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The defendants’ decision to cut the Rule of 80 early retirement benefit did
not involve government action, so the district court properly dismissed the
plaintiffs’ constitutional claims. See Blum v. Yaretsky, 457 U.S. 991, 1002-03
(1982). A private entity does not become a government actor simply because it is
subject to extensive regulation. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 52 (1999). Although the Pension Protection Act of 2006 (“PPA”) required the
defendants to implement a rehabilitation plan, nothing in the PPA compelled them
to cut the Rule of 80 benefit; they retained discretion to decide how to implement
the plan – subject to collective bargaining. See id.; Blum, 457 U.S. at 1006-07; 29
U.S.C. § 1085(e)(3). Accordingly, no government action was present in “the
specific conduct of which the plaintiff complains.” Blum, 457 U.S. at 1004; cf.
George v. Edholm, 752 F.3d 1206, 1215-17 (9th Cir. 2014).
Because there was no government action, we do not reach the merits of the
plaintiffs’ constitutional claims.
AFFIRMED.
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