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Glenn R. Kantor

gkantor@kantorlaw.net

January 19, 2016

Office of Regulations and Interpretations

Employee Benefits Security Administration

Room M-5655

U.S. Dept. of Labor

200 Constitution Avenue NW

Washington D.C. 20210

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

RIN No.: 1210-AB39

Regulation: 29 C.F.R. §2560.503-1

Dear Assistant Secretary Borzi:

I write to offer comments on the proposed regulations for amending the claims procedure regulations 

applicable to disability benefit plans. I am interested in the content of these regulations because I am an attorney 

whose practice is focused on the representation of claimants in ERISA-governed disability benefit disputes. I 

am well poised to comment because I have focused my practice for over twenty-five years on the representation 

of individuals who have been denied employer provided health, life, and disability benefits.

My firm of fourteen attorneys represents hundreds of individuals a year whose benefits have been 

improperly denied. Over the course of my career, I have personally represented or supervised the representation 

of over 2,500 claimants. In the vast majority of the initial meetings with clients, I am asked, “how can they deny 

my claim?” or “why would they deny my claim?” In every instance, the answer is the same, “because they can.”

I have explained to an untold number of clients that it is always in the interest of the profit motivated insurers or 

self-funded plans to deny all possible claims. This response may seem very cynical, and it doesn’t ignore the 

fact that Billions of Dollars of claims are paid without dispute. However, if insurers and for profit claims 

administrators are going to seek the benefits of being “claim fiduciaries,” they should be eager to ensure that 

every claimant receives a “full and fair review.” Unfortunately, that will not be the case. The entities 

responsible for administering ERISA disability claims will contest any alteration of the regulations which might 

dilute their ability to deny claims on technical grounds.

Rather than provide a detailed legal analysis of the proposed regulations1

, I would like to take the 

opportunity to speak on behalf of my clients, past, present and future. For obvious reasons, my legal knowledge 

will be part of my comments, but I would like to focus on the expectations of my clients as to what would 

constitute an unrestricted full & fair review.

In Pilot Life v. Dedeaux, the Supreme Court, in its “infinite wisdom,” determined that state laws 

providing protection to insurance consumers were pre-empted by the remedial scheme provided by the ERISA 

 1 I wholeheartedly join in the detailed analysis drafted by some of my colleagues, which I attach hereto as part of 

my submission.
Office of Regulations and Interpretations

Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 2

Statute. That ruling gave the insurance industry license to run rampant over the rights of ERISA governed 

claimants, without the fear of having to either compensate claimants for extra-contractual damages, or have the 

threat looming over their actions of a punitive damage award for truly outrageous conduct.

However, the ERISA remedial scheme as enacted by Congress, did provide some limited protections for 

claimants. It promised the right to a “federal action” in the event of an allegedly wrongfully denied claim.

Lawyer and layperson alike know what constitutes a “federal action.” It means a trial with a jury of ones’ peers, 

witnesses to testify on the claimants’ behalf, the opportunity to testify on ones’ OWN behalf, so the trier of facts 

could judge the credibility of the claimant and his physicians, and also question the rationale for the denial of 

the claim by the profit motivated insurer. A federal action provides the Plaintiff the right of discovery to 

ascertain how the insurer made the decision to deny the claim.

Again, in a civil federal action, unlike a criminal action where the burden of proof to convict is beyond a 

reasonable doubt, in an ERISA action, the claimant obviously need only prove his or her case by a 

preponderance of the evidence. Oh wait, preponderance of the evidence is only the fallback provision! After the 

Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 

80 (1989),the concept that a claimant would prevail if their evidence outweighed the evidence put forth by the 

insurer, went totally by the wayside. In Firestone, the Supreme Court provided a detailed roadmap for insurers 

and other plan administrators to afford themselves a method of assuring themselves victory in all “federal 

actions” that didn’t involve the most outrageous of denials. All the insurers or claims administrators needed to 

do to achieve the right to guarantee victory in almost all cases was to bestow upon themselves “discretion” to 

interpret plan language or determine eligibility for benefits. Under the arbitrary and capricious standard of 

review which accompanied the self-grant of discretion, insurers didn’t have to establish their claim denials were 

correct, but rather not totally unreasonable.2

Not surprisingly, after the decision in Firestone, the ERISA litigation landscape underwent wholesale 

change. The first thing that happened was that every disability carrier and claims administrator inserted 

discretionary language in their insurance policies and/or the “plans” the administrators drafted on behalf of 

employers. Did employers really make a decision to vest discretion with insurance carriers? Of course not. 1) 

they had no idea the language was in the policies they were purchasing; 2) they were not given the option of 

purchasing policies which did not contain discretionary language; and 3) many disability carriers refused to 

even sell policies unless they contained discretionary language.3 Discretion is plans and insurance policies 

underwriting plans are included by those who benefit monetarily via their inclusion.

In 2016, over 25 years after the issuance of the decision in Firestone, state legislators, urged by 

consumers, are seeking to ban discretionary clauses in group disability policies utilizing the ERISA savings 

 2 Some Courts held that for an insurer to prevail under this standard, they need only have something more than a scintilla 

of evidence supporting their decision. Full and fair review INDEED!

3 To suggest that profit motivated disability carriers didn’t understand the benefit to them of the protections afforded by 

ERISA, one need merely review the memo prepared by a senior claims officer at UNUM. (See attached as Exhibit 1). In 

fact, UNUM took such advantage of ERISA that the New York Attorney General, along with the Insurance 

Commissioners of all 50 States took action to require UNUM to offer to reopen over 200,000 denied disability claims. 

(“UNUM Regulatory Settlement Agreement.)
Office of Regulations and Interpretations

Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 3

clause. Of course, the insurance industry is battling at every turn to maintain the right to include these one-sided 

provisions in their policies. When they fail, and the states ban the clauses, the insurance industry refuses to 

concede their validity, fighting their applicability in the courts.4 Of course, even if the states manage to ban 

discretionary clauses within insured plans, they are powerless to regulate self-funded plans, which in turn assert 

that they allow “unbiased” third party administrators to make claim determinations, so not conflict exists. When 

a plan such as AT&T or Verizon pays $25,000,000 – $50,000,000 a year to a TPA, even the mere suggestion 

that the TPA has no interest in pleasing the Plan Sponsor by keeping claim payments as low as possible is just 

plain ludicrous.

The foregoing are just some of the ways in which the ERISA statute, enacted to provide claimants with 

necessary protections, has been reconfigured to provide the insurance industry with both a sword and shield to 

use against claimants.

Even the prior claims regulations enacted by the Department of Labor to afford protections to claimants 

have been converted by the Courts to instead provide protections to employers and insurance companies.

The ERISA statute contains no requirement that the claimant, having received an adverse benefit 

decision, take any steps prior to initiating litigation. Given that the denial of disability income benefits often 

means the ability to pay rent or procure basic necessities such as groceries, the ability to obtain a speedy 

resolution in court is essential for claimants. As the Department is well aware, the pre-2002 claims regulations 

required claims administrators to afford claimants the ability to seek reconsideration of an adverse benefit 

decision. This claim regulation, as enacted, appeared to be a voluntary right which could only benefit a 

claimant, by assuring that the claimant had the opportunity to correct any factual errors or supplement 

evidentiary support for his disability. However, the Federal Court’s, again in their “infinite wisdom,” likened the 

right to a request for reconsideration of an adverse benefit decision to an “administrative review” and mandated 

that absent incontrovertible evidence of futility, that the claimant “exhaust their so called administrative 

remedies” prior to initiating litigation. Originally given a mere 60 days to complete their mandated appeal5

, 

claimants who did not timely submit their appeal found that their failure did not merely deprive them of their 

right to appeal, but COMPLETELY FORECLOSED THEIR ACCESS TO A FEDERAL ACTION. A 

regulation enacted to provide a benefit to claimants was instead used by the insurance industry to avoid judicial 

oversight of their actions. Again, so much for the concept that insurance companies or TPA’s acting as claims 

administrators can be unbiased fiduciaries seeking to provide a full and fair review.

Current evidence that providing a full and fair review is not something plan sponsors or administrators 

seek to achieve is evidenced by the sequence of events in the case of Legras v. Aetna Life & Federal Express 

Corporation Long Term Disability Plan, 786 F.3d 1233, (9th Cir. 2015). In Legras, the claimant’s LTD claim 

was denied. The date he received notification of the denial of his claim was not contested. However, the 180th

day following his notification was on a Saturday. The attorney who had been retained to appeal the denial 

 4 For example, see Fontaine v. MetLife, 800 F.3d 883 (7th Cir. 2015); Gonda v. The Permanente Medical Group, Inc. 

10 F.Supp.3d 1091, (N.Dist. Cal. 2014); Cerone v. Reliance Standard Life Ins. Co., 9 F.Supp.3d 1145 (S. Dist. Cal. 2014) 

5 Subsequently changed to 180 days in the 2002 amended regulations.
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Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 4

believed that because the 180th day fell on a Saturday, that he could timely submit the appeal if he did so on the 

Monday following the 180th day.

Acting on behalf of Fed-X, not only did Aetna refuse to consider the appeal, but when litigation ensued, 

it asked the Court to dismiss the litigation on the ground that the claimant had not timely exhausted his 

“administrative remedies,” and therefore was deprived of his right to have his case decided by the court on the 

merits. The 90+ year old District Court Judge, Manuel Real, who is reversed by the 9th Circuit more often than 

any other District Judge within the Circuit, granted the motion.

My firm was asked to appeal the dismissal to the 9th Circuit. In a published decision, the 9th Circuit 

determined that in compliance with the intent and purpose of ERISA, the appeal would be considered timely, 

and ordered the matter was remanded to Aetna for a merits determination.

However, a clear ruling by the 9th Circuit to give the claimant the right to a full and fair review did not 

satisfy Aetna and/or Federal Express. Inexplicably, Defendants have filed a petition for certiorari with the U.S. 

Supreme Court.6 Rather than acknowledge the incontrovertible, that a two day difference in receiving the appeal 

would have no impact on its ability to reconsider the denial, defendants are taking all possible steps to prevent 

Mr. Legras from having his claim considered by the Court on its merits. Once again, this is a perfect example of 

a claims administrator attempting to take what was once a voluntary procedure intended to benefit the claimant, 

into a shield preventing the claimant from having his claim considered on its merits. Full and fair review 

indeed?

The fact that the Department is in the process of enacting new claim handling regulations is sufficient 

evidence that it is cognizant of the failure of insurers to accept their responsibilities as claim fiduciaries.

However, while the proposed regulations are clearly a step in the right direction, there are areas which need to 

be addressed to assure that claimants receive the full and fair review to which they are entitled. In short, 

enhanced claim regulations are the only viable method of ensuring that the courts and the insurers are mindful 

of the fact that the “E” in ERISA stands for “Employee,” and not Employer or Insurer.

The following are the author’s suggestions on strengthening the amended regulations in order to provide 

claimants with consistent full and fair reviews:

STATUTE OF LIMITATIONS ISSUES

The DOL has invited comment in the statute of limitations issues that have developed since the Supreme 

Court’s decision in Heimeshoff v. Hartford Life & Accid. Ins Co., 134 U.S. 604 (2013). The decision has created 

more ambiguity than existed prior to the issuance of the decision. It is unclear when the statute begins to run, 

and when the statute is tolled. In addition, it created the inherently inequitable possibility that a statute of 

limitation might run before the claimant has completed the exhaustion requirements, thus barring litigation 

forever.

 6 See attached Exhibit 2.
Office of Regulations and Interpretations

Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 5

In addition, many plans have “contractual limitations provisions” which provide for statutes of limitation 

as short as 60 days. In my own practice, I have had clients seek representation for the first time AFTER their 

contractual time to bring suit has already run.

These inequitable situations can be rectified by the inclusion in the amended regulations providing:

Contractual Limitations may not be any shorter than the comparable breach of contract 

action under the State Law in which the action is brought;

Contractual or Statutory Limitations are tolled from the date of an adverse benefit 

decision, until the date the claims administrator has advised the claimant in writing that their prelitigation remedies are exhausted, and that they are able to bring suit under ERISA Section 

502(a);

When a claims administrator advises a claimant of their right to bring suit, they must 

provide the exact date that the statute of limitation will run.

DISCRETION BESTOWED UPON A FINANCIALLY CONFLICTED CLAIMS ADMINISTRATOR

The concept that a claimant has a right to a federal action, but the District Court will give deference to 

an entity that has a financial interest in denying claims has never been justifiable, and will never be justifiable.

Discretion may not be inappropriate if vested upon a TRULY independent unbiased entity, but as long as the 

entity is a profit motivated entity, discretion is inequitable is cannot exist alongside the concept of a full and fair 

review.

The fix for this problem could not be simpler:

Discretion to interpret plan terms or determine eligibility for benefits may not be bestowed 

upon an entity that exists to generate income for its owners.

ENSURING THE CLAIMANT HAS THE OPPORTUNITY TO RESPOND TO ALL EVIDENCE 

CONSIDERED BY THE CLAIMS ADMINISTRATOR

Under the current claims regulations, and mixed court rulings, the claims administrator can introduce 

newly obtained evidence and rely upon such evidence in the final appeal denial. Given the right to a full and fair 

review, it is inherently inequitable to deny the claimant to have the ability to comment on all relevant evidence.

Again, the fix for this problem could not be simpler:

The claimant shall have the right to respond to or rebut any evidence introduced by the 

claims administrator during the pre-litigation review procedures. If the claimant is denied such a 

right, and litigation ensues, the claimant shall have the right to augment the claim record during 

litigation.
Office of Regulations and Interpretations

Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 6

INTRODUCTION OF SSDI FINDINGS SUBSEQUENT TO THE CLOSE OF THE CLAIM RECORD, 

BUT PRIOR TO TRIAL

In almost twenty-five years of practice, I have never seen a group LTD policy or plan which did not 

offset SSDI benefits received by the claimant. Given the consistent dollar for dollar offset taken by the insurer 

or plan, if a claim is being paid, the insurer or plan has every incentive to insure the claimant is receiving SSDI 

benefits. The plans mandate the claimant apply for the benefits, and will take an assumed offset if the claimant 

doesn’t apply.

As such, the decision of the SSA, as an independent unbiased governmental body, should be relevant to 

a District Court’s decision as to the claimant’s eligibility to receive LTD benefits. While the 

insurer/administrator will argue the standards are different, in reality the SSA has a much much higher standard 

for awarding benefits. If the plan provides for an offset for SSDI, the District Court should be required to 

consider the findings of the SSA, notwithstanding the decision having been entered after the close of the 

claim record.

UTILIZATION OF UNQUALIFIED OR BIASED EXPERTS TO DENY A CLAIM

As a practitioner who sees innumerable claim files, I have occasion to see reports generated on behalf of 

insurers on a very frequent basis by the same physician records reviewers. In my experience, these reviewers 

are often retired, and receive if not all, a significant majority of their income from providing reviews to 

insurance companies. They are aware if they support a claimant, they will be taken off the list of approved 

reviewers.

I also often see reports either generated by physicians who are not qualified to offer opinions on the 

condition at issue, or who have taken positions that the condition disabling the insured is NEVER DISABLING.

For example, I have often seen insurers retain a pediatric neurologist to opine on whether an adult is 

disabled by multiple sclerosis. As childhood multiple sclerosis is unknown, a pediatric neurologist will likely 

not have treated an individual with multiple sclerosis since residency. Such a peer reviewer will clearly not be 

qualified to deal with the complicated and intricate nature of a multiple sclerosis diagnosis, and the wide variety 

of symptoms which might disable an individual.

Lyme disease and Fibromyalgia are, from the perspective of insurers/administrators, suspect conditions.

To avoid paying claims based on these conditions, insurers will often retain “experts” who have decided before 

looking at a single medical record that the disease in question is NEVER disabling.

In order to rectify these problems, if an insurer/administrator relies upon a physician peer reviewer to 

deny a claim, the claim record must contain compelling evidence that the reviewer has no financial bias to 

render a finding of no disability, and that the reviewer is unbiased regarding the condition, and has the requisite 

qualifications and in fact treats individuals with the requisite condition.
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Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 7

PROHIBITION ON INSURERS/PLANS PLACING IMPEDIMENTS ON CLAIMANTS HAVING 

THEIR APPEALS SUBMITTED BY REPRESENTATIVES

The current regulations permit adverse claims decisions to be appealed by the claimant, or their 

authorized representatives. In my experience, numerous carriers insist that the claimant fill out a specific form 

generated by the carrier in order for their appeal to be submitted by a designated representative. In the interim, 

prior to receiving their designated form, insurers will sometimes communicate directly with the claimant, and 

attempt to dissuade them from retaining counsel to assist them with their appeal. To prevent this from occurring 

in the future, the regulations should provide:

A letter by an attorney licensed to practice in their own state shall be sufficient to 

constitute authorization to represent a claimant during the appeal of an adverse benefit decision.

Once such letter is received, the insurer/administrator shall discontinue any direct 

communication with the claimant, but shall communicate only with counsel.

PRODUCTION OF CLAIMS GUIDELINES DURING THE APPEAL PROCESS

Pursuant to the current regulations, insurers/administrators are required to maintain claims handling 

guidelines, and to produce upon request copies of all guidelines used in the administration of the subject claim.

However, in my vast experience, insurers/administrators responding to request for such claims guidelines, 

typically take the position that the guidelines were not specifically utilized in the handling of the subject claim.

In essence, if the claims handler was aware of a guideline, but didn’t specifically review it in making an adverse 

claims decision, the guideline is not produced. Again, this issue can be fixed via a simple regulation alteration 

providing:

In the event a request is made for all relevant claims guidelines, the insurer/administrator 

shall produce all guidelines which were used, or which WERE AVAILABLE FOR USE DURING 

THE CONSIDERATION OF THE SUBJECT CLAIM. In addition, any claims guidelines used for 

the administration of ERISA LTD claims are not subject to production under any type of 

confidentiality or protective order. 

EFFECTIVE DATE OF PROPOSED REGULATIONS

When the 2002 amended claims regulations were promulgated, insurers, and courts, took the position 

that if a claim had been initiated prior to the effective date of the new regulations, the insurer/administrator was 

not bound to comply with the amended regulations. This led to both confusion, and the inequity of a claimant 

who had been receiving benefits for a number of years having fewer protections than claimants with recent 

claims. Again, this problem is simply rectified. 

Upon becoming effective, the 2016 amended regulations should be deemed by the terms of 

the regulations to be applicable to any claim not finalized, including the finalization of any prelitigation exhaustion requirements.
Office of Regulations and Interpretations

Employee Benefits Security Administration

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

January 19, 2016

Page 8

Thank you for your consideration of the foregoing. While I understand that the Department has asked 

for written comments, I would suggest that bringing together counsel experienced in the area, along with 

industry representatives to discuss a cost benefit analysis of the amended regulations, would benefit all involved 

parties.

Very truly yours,

KANTOR & KANTOR, LLP

Glenn Kantor

Enclosures 
In the Supreme Court of the United States In the Supreme Court of the United States

AETNA LIFE INSURANCE COMPANY and

FEDERAL EXPRESS CORPORATION

LONG TERM DISABILITY PLAN,

Petitioners,

v.

ANDRE LEGRAS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Karen Vaughan McManus

 Counsel of Record

FEDERAL EXPRESS CORPORATION

Legal Department – Litigation

Building B, Third Floor

3620 Hacks Cross Road

Memphis, Tennessee 38125

(901) 434-8600

(901) 434-9279 facsimile

kvmcmanus@fedex.com

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

EXHIBIT B 
i

QUESTION PRESENTED

Whether a court may create federal common law to

rewrite contractual language in an ERISA plan, where

the plan’s language complies with ERISA and its

implementing regulations?
ii

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identifies

all of the parties appearing here and before the United

States Court of Appeals for the Ninth Circuit.

The Petitioners here and appellees below are Aetna

Life Insurance Company and the Federal Express

Corporation Long Term Disability Plan.

The Respondent here and appellant below is Andre

LeGras.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Petitioners state as follows:

The parent company and sole shareholder of

Petitioner Aetna Life Insurance Company is Aetna,

Inc., a publicly-held corporation.

Petitioner Federal Express Corporation Long-Term

Disability Plan is an employee welfare benefit plan

governed by the Employee Retirement Income Security

Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001,

et seq. The Plan Administrator for the Federal Express

Corporation Long-Term Disability Plan is Federal

Express Corporation. The parent company of Federal

Express Corporation is FedEx Corporation, a publiclyheld corporation.
iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES AND REGULATIONS INVOLVED . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 5

I. ERISA ............................... 5

II. Factual Background . . . . . . . . . . . . . . . . . . . . 8

III. Proceedings in the District Court ......... 9

IV. Proceedings in the Court of Appeals . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . 11

I. The Court should grant review to resolve an

exceptionally important question of ERISA

plan interpretation. . . . . . . . . . . . . . . . . . . . 12

A. Courts must enforce the terms of an

ERISA plan. . . . . . . . . . . . . . . . . . . . . . . . 12

B. Courts must defer to an administrator’s

lawful and reasonable interpretation of

an ERISA plan term. . . . . . . . . . . . . . . . . 15

C. Courts cannot use federal common law to

rewrite ERISA plan terms. . . . . . . . . . . . 17
iv

II. The Ninth Circuit’s creation of federal

common law to modify an ERISA plan is

inconsistent with the approach of every other

circuit to address the issue. . . . . . . . . . . . . . 21

A. The Eleventh Circuit . . . . . . . . . . . . . . . . 21

B. The Third Circuit . . . . . . . . . . . . . . . . . . 22

C. The Fourth Circuit . . . . . . . . . . . . . . . . . 22

D. The Fifth Circuit . . . . . . . . . . . . . . . . . . . 23

E. The Seventh Circuit . . . . . . . . . . . . . . . . 25

III. The question presented is exceptionally

important to plan sponsors, administrators,

and participants across the nation. . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(May 28, 2015) . . . . . . . . . . . . . . . App. 1

Appendix B Order Granting Defendants AETNA

Life Insurance Company and Federal

Express Corporation Long Term

Disability Plan’s Motion for Judgment

on the Pleadings in the United States

District Court for the Central District

of California

(July 31, 2012) . . . . . . . . . . . . . . App. 24
v

Appendix C Order Denying Petition for Rehearing

in the United States Court of Appeals

for the Ninth Circuit

(July 7, 2015) . . . . . . . . . . . . . . . App. 31
vi

TABLE OF AUTHORITIES

CASES

Aetna Health, Inc. v. Davila, 

542 U.S. 200, 124 S. Ct. 2488, 159 L. Ed. 2d 312

(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Amato v. Bernard, 

618 F.2d 559 (9th Cir. 1980) ................ 7

Bill Gray Enters., Inc. Employee Health & Welfare

Plan v. Gourley, 

248 F.3d 206 (3d Cir. 2001) . . . . . . . . . . . . . . . . 22

Black & Decker Disability Plan v. Nord, 

538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d

1034 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CIGNA Corp. v. Amara, 

131 S. Ct. 1866, 179 L. Ed. 2d 843 

(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 13, 14

Coleman v. Nationwide Life Ins. Co., 

969 F.2d 54 (4th Cir. 1992) . . . . . . . . . . . . . . . . 23

Cronkright v. Frommert, 

559 U.S. 506, 130 S. Ct. 1640, 176 L. Ed. 2d 469

(2010) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 20, 31

Curtiss-Wright Corp. v. Schoonejongen, 

514 U.S. 73, 115 S. Ct. 1223, 131 L. Ed. 2d 94

(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 30

Early v. United States Life Ins. Co., 

2007 U.S. App. LEXIS 6870 (3d Cir., Mar. 22,

2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
vii

Edwards v. Briggs & Stratton Ret. Plan, 

639 F.3d 355 (7th Cir. 2011) . . . . . . . . . . . . 25, 26

Englehoff v. Englehoff, 532 U.S. 141, 121 S. Ct.

1322, 149 L. Ed. 2d 264 (2001) . . . . . . . . . . . . . 29

Firestone Tire & Rubber Co. v. Bruch, 

489 U.S. 101, 109 S. Ct. 948, 103 L. Ed. 2d 80

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

Fort Halifax Packing Co. v. Coyne, 

482 U.S. 1, 107 S. Ct. 2211, 96 L. Ed. 2d 1 

(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 29

Grabois v. Jones, 

89 F.3d 97 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . 26

Heimeshoff v. Hartford Life & Accident Ins. Co., 

134 S. Ct. 604, 187 L. Ed. 2d 529 (2013) . . . . 6, 14

High v. E-Systems, Inc., 

459 F.3d 573 (5th Cir. 2006) . . . . . . . . . . . . 24, 25

Ingersoll-Rand Co. v. McClendon, 

498 U.S. 133, 111 S. Ct. 478, 112 L. Ed. 2d 474

(1990) .................................. 6

J. Aron & Co. v. S/S Olga Jacob, 

527 F.2d 416 (5th Cir. 1976) . . . . . . . . . . . . . . . 24

Jones v. Georgia Pacific Corp., 

90 F.3d 114 (5th Cir. 1996) . . . . . . . . . . . . . 23, 24

Kennedy v. Plan Adm’r for DuPont Sav. & Inv.

Plan, 

555 U.S. 285, 129 S. Ct. 865, 172 L. Ed. 2d 662

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 27, 28
viii

LeGras v. Aetna Life Insurance Co., et al., 

786 F.3d 1233 (9th Cir. 2015) . . . . . . . . . . . . 1, 10

Lockheed Corp. v. Spink, 

517 U.S. 882, 116 S. Ct. 1783, 135 L. Ed. 2d 153

(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Massachusetts Mut. Life Ins. Co. v. Russell, 

473 U.S. 134, 150 S. Ct. 3085, 87 L. Ed. 2d 9

(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 18, 22

Mertens v. Hewitt Assocs., 

508 U.S. 248, 113 S. Ct. 2063, 124 L. Ed. 2d 161

(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Metropolitan Life Ins. Co. v. Massachusetts, 

471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728

(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Metropolitan Life Ins. Co. v. Price, 

501 F.3d 271 (3d Cir. 2007) ................. 7

Muse v. Int’l Bus. Machs. Corp., 

103 F.3d 490 (6th Cir. 1996) . . . . . . . . . . . . . . . 26

Nachwalter v. Christie, 

805 F.2d 956 (11th Cir. 1986) . . . . . . . . . . . . . . 27

Nichols v. Eaton, 

91 U.S. 716, 23 L. Ed. 2d 254 (1875) . . . . . . . . . 16

Powell v. AT&T Communications, Inc., 

938 F.2d 823 (7th Cir. 1991) ................ 7

Rush Prudential HMO, Inc. v. Moran, 

536 U.S. 355, 122 S. Ct. 2151, 153 L. Ed. 2d 375

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 29
ix

Thomason v. Aetna Life Ins. Co., 

9 F.3d 645 (7th Cir. 1993) . . . . . . . . . . . . . . . . . 27

U.S. Airways, Inc. v. McCutchen, 

133 S. Ct. 1537, 185 L. Ed. 2d 654 

(2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 19

United McGill Corp. v. Stinnett, 

154 F.3d 168 (4th Cir. 1998) . . . . . . . . . . . . 22, 23

Vaught v. Scottsdale Health Corp. Health Plan, 

546 F.3d 620 (9th Cir. 2008) ................ 7

Zurich Am. Ins. Co. v. O’Hara, 

604 F.3d 1232 (11th Cir. 2010) . . . . . . . 21, 22, 26

STATUTES AND REGULATIONS

28 U.S.C. § 1254(1) .......................... 1

29 C.F.R. § 2560.503-1 ....................... 3

29 C.F.R. § 2560.503-1(b) . . . . . . . . . . . . . . . . . . . . 30

29 C.F.R. § 2560.503-1(b)(1) . . . . . . . . . . . . . . . . . . 15

29 C.F.R. § 2560.503-1(f)(3) ................... 7

29 C.F.R. § 2560.503-1(h)(3)(i) . . . . . . . . . . . . . . 8, 15

29 C.F.R. § 2560.503-1(h)(4) . . . . . . . . . . . . . . . . . . 15

29 U.S.C. § 1001, et seq. ...................... 2

29 U.S.C. § 1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C. § 1001(b) .......................... 5

29 U.S.C. § 1102(a)(1) ........................ 6

29 U.S.C. § 1104(a)(1) ........................ 1
x

29 U.S.C. § 1104(a)(1)(D) . . . . . . . . . . . . 6, 12, 17, 30

29 U.S.C. § 1132(1) . . . . . . . . . . . . . . . . . . . . . . . . . 30

29 U.S.C. § 1132(a)(1)(B) . . . . . . . . . . . . 7, 12, 13, 14

29 U.S.C. § 1132(a)(3) . . . . . . . . . . . . . . . . . . . . . . . 19

29 U.S.C. § 1133 ............................ 2

29 U.S.C. § 1135 ............................ 3

ALM GL ch. 6, § 12J . . . . . . . . . . . . . . . . . . . . . . . . 28

BURNS IND. CODE ANN. § 1-1-9-1(a) . . . . . . . . . . . . 28

4 M.R.S. § 1051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

WEST VA. CODE § 2-2-1(a)(11) . . . . . . . . . . . . . . . . . 28

WEST VA. CODE § 2-2-1(a)(14) . . . . . . . . . . . . . . . . . 28

RULES

Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 6(a) . . . . . . . . . . . . . . . . . . . . . . . . . 10
1

Aetna Life Insurance Company and the Federal

Express Corporation Long Term Disability Plan

respectfully petition the Court for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

786 F.3d 1233. The district court’s opinion is not

published, but available at 2012 U.S. Dist. LEXIS

116827.

JURISDICTION

The court of appeals issued its opinion and

judgment on May 28, 2015. 786 F.3d 1233. The court

of appeals denied Petitioners’ petition for rehearing on

July 7, 2015. App. 31-32.

The court has jurisdiction to issue a writ of

certiorari in this case under 28 U.S.C. § 1254(1) and

Rule 13.3.

STATUTES AND REGULATIONS INVOLVED

29 U.S.C. § 1104(a)(1) Fiduciary duties [ERISA

§ 404(a)(1)]:

(a) Prudent man standard of care:

(1) Subject to sections 403(c) and (d),

4042, and 4044 [29 U.S.C. §§ 1103(c), (d),

1342, 1344], a fiduciary shall discharge his

duties with respect to a plan solely in the

interest of the participants and beneficiaries

and – 

(A) for the exclusive purpose of:
2

(i) providing benefits to

participants and their

beneficiaries; and

(ii) defraying reasonable

expenses of administering the

plan;

(B) with the care, skill, prudence,

and diligence under the circumstances

then prevailing that a prudent man

acting in a like capacity and familiar

with such matters would use in the

conduct of an enterprise of a like

character and with like aims;

(C) by diversifying the investments

of the plan so as to minimize the risk

of large losses, unless under the

circumstances it is clearly prudent not

to do so; and

(D) in accordance with the

documents and instruments governing

the plan insofar as such documents

and instruments are consistent with

the provisions of this title and title

IV....

29 U.S.C. § 1133 Claims procedure [ERISA § 503]:

In accordance with regulations of the

Secretary, every employee benefit plan shall –

(1) provide adequate notice in writing to

any participant or beneficiary whose claim

for benefits under the plan has been denied,
3

setting forth the specific reasons for such

denial, written in a manner calculated to be

understood by the participant, and

(2) afford a reasonable opportunity to any

participant whose claim for benefits has been

denied a full and fair review by the

appropriate named fiduciary of the decision

denying the claim.

29 U.S.C. § 1135 Regulations [ERISA § 505]:

Subject to title III and section 109 [29 U.S.C.

§ 1029], the Secretary may prescribe such

regulations as he finds necessary or appropriate

to carry out the provisions of this title. Among

other things, such regulations may define

accounting, technical and trade terms used in

such provisions; may prescribe forms; and may

provide for the keeping of books and records, and

for the inspection of such books and records

(subject to section 504(a) and (b) [29 U.S.C.

§ 1134(a) and (b)]).

29 C.F.R. § 2560.503-1 Claims procedure

(a) Scope and purpose. In accordance with

the authority sections 503 and 505 of the

Employee Retirement Income Security Act of

1974 (ERISA or the Act), 29 U.S.C. § 1133, 1135,

this section sets forth minimum requirements

for employee benefit plan procedures pertaining

to claims for benefits by participants and

beneficiaries (hereinafter referred to as

claimants). Except as otherwise specifically

provided in this section, these requirements

apply to every employee benefit plan described
4

in section 4(a) and not exempted under section

4(b) of the Act.

(b) Obligation to establish and maintain

reasonable claims procedures. Every

employee benefit plan shall establish and

maintain reasonable procedures governing the

filing of benefit claims, notifications of benefit

determinations, and appeal of adverse benefit

determinations (hereinafter collectively referred

to as claims procedures). The claims procedures

for a plan will be deemed reasonable only if –

(1) The claims procedures comply with the

requirements of paragraphs (c), (d), (e), (f),

(g), (h), (i), and (j) of this section, as

appropriate, except to the extent that the

claims procedures are deemed to comply with

some or all of such provisions pursuant to

paragraph (b)(6) of this section. ...

(h) Appeal of adverse employment

determinations.

(1) In general. Every employee benefit

plan shall establish and maintain a

procedure by which a claimant shall have a

reasonable opportunity to appeal an adverse

benefit determination to an appropriate

named fiduciary of the plan, and under which

there will be a full and fair review of the

claim and the adverse benefit determination.

...
5

(3) Group health plans. The claims

procedures of a group health plan will not be

deemed to provide a claimant with a

reasonable opportunity for a full and fair

review of a claim and adverse benefit

determination unless, in addition to

complying with the requirements of

paragraphs (h)(2)(ii) through (iv) of this

section, the claims procedures –

(i) Provide claimants at least 180 days

following receipt of an adverse benefit

determination within which to appeal

the determination;

...

(4) Plans providing disability benefits.

The claims procedures of a plan providing

disability benefits will not, with respect to

claims for such benefits, be deemed to

provide a claimant with a reasonable

opportunity for a full and fair review of a

claim and adverse benefit determination

unless the claims procedures comply with the

requirements of paragraphs (h)(2)(ii) through

(iv) and (h)(3)(i) through (v) of this section.

STATEMENT OF THE CASE

I. ERISA

Congress enacted ERISA to provide a uniform

regulatory regime over employee benefit plans. See 29

U.S.C. § 1001(b). One of the principle goals of ERISA

is to enable employers “to establish a uniform

administrative scheme, which provides a set of
6

standard procedures to guide processing of claims and

disbursement of benefits.” Fort Halifax Packing Co. v.

Coyne, 482 U.S. 1, 9, 107 S. Ct. 2211, 96 L. Ed. 2d 1

(1987). ERISA was intended to “ensure that plans and

plan sponsors would be subject to a uniform body of

benefits law; the goal was to minimize the

administrative and financial burden of complying with

conflicting directives among States or between States

and the Federal Government.” Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 142, 111 S. Ct. 478, 112 L.

Ed. 2d 474 (1990). “Otherwise the inefficiencies

created could work to the detriment of plan

beneficiaries.” Id.

ERISA requires that all employee benefit plans be

“established and maintained pursuant to a written

instrument,” 29 U.S.C. § 1102(a)(1). Benefit plans set

forth their terms in written plan documents, which

constitute “contracts.” CIGNA Corp. v. Amara, 131 S.

Ct. 1866, 1879, 179 L. Ed. 2d 843 (2011). ERISA’s

principal function is to “protect contractually defined

benefits,” Massachusetts Mut. Life Ins. Co. v. Russell,

473 U.S. 134, 148, 150 S. Ct. 3085, 87 L. Ed. 2d 9

(1985), and its statutory scheme “is built around

reliance on the face of written plan documents.” 

Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73,

83, 115 S. Ct. 1223, 131 L. Ed. 2d 94 (1995). 

Once an employee benefits plan is established, the

administrator’s duty is to see that the plan is

maintained pursuant to the documents and

instruments insofar as they comply with ERISA. See

Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S.

Ct. 604, 612, 187 L. Ed. 2d 529 (2013); 29 U.S.C.

§ 1104(a)(1)(D). “ERISA’s focus [is] on what a plan
7

provides.” U.S. Airways, Inc. v. McCutchen, 133 S. Ct.

1537, 1548, 185 L. Ed. 2d 654 (2013).

Under ERISA, “[a] civil action may be brought...by

a participant...to recover benefits due to him under the

terms of his plan, to enforce his rights under the terms

of the plan, or to clarify his rights to future benefits

under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).

The statute does not state whether exhaustion of

administrative remedies is a precondition of filing that

action. See id. However, because ERISA directs

employee benefit plans to provide adequate written

notice of the reasons for denials of claims by plan

participants and to create procedures for the review of

such denials of claims, federal courts have interpreted

ERISA as requiring exhaustion of administrative

remedies as a prerequisite to bring suit under the

statute. See Vaught v. Scottsdale Health Corp. Health

Plan, 546 F.3d 620, 626 (9th Cir. 2008); Metropolitan

Life Ins. Co. v. Price, 501 F.3d 271, 279 (3d Cir. 2007);

Powell v. AT&T Communications, Inc., 938 F.2d 823,

826 (7th Cir. 1991). “[A]s a matter of sound policy,”

federal courts require a claimant to first avail himself

of a plan’s internal review procedures before bringing

suit in federal court. Amato v. Bernard, 618 F.2d 559

(9th Cir. 1980).

The United States Department of Labor enacted

regulations applicable to benefit claims made under

ERISA plans after January 1, 2002, which include

deadlines requiring plan administrators to conclude

appeals in a timely manner. The regulations require a

plan administrator to decide an initial claim within 45

days of receipt, with two 30-day extensions allowed. 

See 29 C.F.R. § 2560.503-1(f)(3). If the claim is denied,
8

the claimant has 180 days from receipt of the denial to

appeal. See id. § 2560.503-1(h)(3)(i).

II. Factual Background

Respondent Andre LeGras is a former employee of

Federal Express Corporation (“FedEx”) and a

participant in the Petitioner Federal Express

Corporation Long Term Disability Plan (“the Plan”). 

App. 27. LeGras was injured, and he became eligible

for long-term disability benefits for an Occupational

Disability, as defined by the Plan. Id. He received

benefits for an Occupational Disability under the Plan

for 24 months. Id. There is no dispute that LeGras

received all of the Occupational Disability benefits to

which he was entitled under the Plan.

In November 2010, Respondent Aetna Life

Insurance Company (“Aetna”), the third-party claims

paying administrator for the Plan, notified LeGras that

he must establish that he suffered a qualifying Total

Disability, as defined by the Plan, in order to continue

receiving benefits beyond May 24, 2011. App. 4, 27. 

On April 15, 2011, Aetna sent LeGras a letter stating

that he did not meet the definition of Total Disability

under the Plan, and thus would not receive disability

benefits beyond May 24, 2011. Id. Aetna’s letter to

LeGras stated: “If you disagree with the above

determination, in whole or in part, you may file a

request to appeal this decision within 180 days of

receipt of this notice.” Id.

On April 18, 2011, LeGras received the letter,

notifying him of both Aetna’s benefits decision and the

deadline for submitting an appeal. App. 4, 27. The

180th day from that date was Saturday, October 15,
9

2011. App. 4, 27-28. LeGras, however, did not send a

request to appeal Aetna’s benefits decision within the

180-day period after he received this notice, but waited

until Monday, October 17, 2011 to submit his appeal.

App. 4, 28. LeGras has never explained why he failed

to submit his appeal within the 180 calendar-day

period after he received notice of the denial of his

claim. App. 16.

Aetna denied LeGras’s request for an appeal as

untimely because he failed to send it on or before

October 15, 2011 – 180 days after his receipt of the

denial letter. App. 4, 28. In rejecting LeGras’s appeal,

Aetna referred to specific language in the Plan

requiring that a written appeal “be sent to the

Administrator within 180 days of the...date the

claimant receives the written denial of such claim.”

App. 27.

III. Proceedings in the District Court

On July 31, 2012, the United States District Court

entered an order granting the Motion for Judgment on

the Pleadings filed by Defendants Aetna Life Insurance

Company and Federal Express Corporation Long Term

Disability Plan. App. 25-30. The District Court held

that Plaintiff LeGras failed to timely exhaust his

internal administrative remedies under the Plan by not

submitting an internal appeal within the time frame

set forth in the Plan. App. 29-30. LeGras filed his

Notice of Appeal to the United States Court of Appeal

for the Ninth Circuit on August 21, 2012.

IV. Proceedings in the Court of Appeals

After the parties filed their respective briefs, oral

argument was held on March 7, 2014 before a three-
10

judge panel of the Court of Appeals. On May 28, 2015,

the United States Court of Appeals for the Ninth

Circuit reversed the decision of the District Court in a

published opinion. LeGras v. Aetna Life Ins. Co., et al.,

786 F.3d 1233 (9th Cir. 2015).

The panel majority of the Ninth Circuit held that it

was error for Aetna and the district court to conclude

that LeGras’s administrative appeal was untimely. It

concluded that, although the 180-day appeal period

specified in Aetna’s denial letter ended on Saturday,

October 15, 2011, “ERISA federal common law required

that Aetna accept LeGras’ appeal as timely as he

mailed it on the first weekday following the weekend.” 

App. 14. 

Although it recognized that the Plan complied with

ERISA’s implementing regulations requiring that it

give claimants like LeGras 180 days to file an

administrative appeal, the panel majority of the Ninth

Circuit found the deadline ambiguous because ERISA

and its implementing regulations did not specify a

method of computing the deadline. App. 6. As the

panel majority saw it, it needed to “protect the interest

of [plan] participants” like LeGras, who “face[d] the

possibility of losing long-term disability benefits

because of a two-day difference...” App. 6, 8. 

To excuse LeGras’ untimely request for appeal, the

panel majority adopted the federal courts’ method for

calculating court filing deadlines that is found in Rule

6(a) of the Federal Rules of Civil Procedure. App. 8-10.

In so doing, the panel majority created a new federal

common law: “[W]here the deadline for an internal

administrative appeal under an ERISA-governed

insurance contract falls on a Saturday, Sunday, or legal
11

holiday, the period continues to run until the next day

that is not a Saturday, Sunday, or legal holiday.” App.

10.

One of the panel judges dissented from this

decision, stating: “To excuse LeGras’s untimeliness,

the majority turns a simple case of contract

interpretation into an opportunity to (without

precedent) expand federal common law surrounding

[ERISA] to rewrite private contracts.” App. 14.

According to the dissent, the majority panel of the

Ninth Circuit should have followed other federal circuit

courts who had decided they were bound to apply clear

and unambiguous terms in a private ERISA contract. 

App. 22. Because the 180-day deadline in the Plan

complied with ERISA regulations, the dissenting judge

believed it was unnecessary and inappropriate for the

majority to use federal common law to intrude upon the

ability of parties to enforce the terms of their private

contract. App. 17, 22-23.

REASONS FOR GRANTING THE PETITION

This case meets every criterion for certiorari review. 

The Ninth Circuit’s decision conflicts with other

circuits, and its approach conflicts with this Court’s

decisions. The subject matter is of significant

importance to millions of ERISA plans, plan

administrators, and plan participants across the

nation. Just as important, the Ninth Circuit’s

approach renders it impossible for plan participants

and administrators to rely on the provisions and

deadlines in their benefit plans. After all, any given

judge could choose to rewrite them or erase them from

the contract. That is precisely the opposite of what

Congress wanted when it enacted a statute designed to
12

facilitate uniform and efficient administration of

employee benefit plans. The petition should be

granted.

I. The Court should grant review to resolve

an exceptionally important question of

ERISA plan interpretation.

This case warrants review because it involves an

important federal question and the Ninth Circuit’s

resolution of that question conflicts with relevant

decisions of this Court.

A. Courts must enforce the terms of an

ERISA plan.

This is a claim for “benefits due...under the terms

of the plan.” See 29 U.S.C. § 1132(a)(1)(B). Under

ERISA, any question of entitlement of benefits begins

with the plan. ERISA’s entire scheme is built on

“reliance on the face of written plan documents.” U.S.

Airways, Inc. v. McCutchen, 133 S. Ct. at 1548

(2013)(citation and internal quotation marks omitted).

Plan administrators must act in accordance with those

“governing” instruments. See 29 U.S.C.

§ 1104(a)(1)(D). It is those documents, not the statute

itself, that primarily regulate how a plan participant

may qualify for benefits.

In fact, ERISA “contains almost no federal

regulation of terms of benefit plans.” Metropolitan Life 

Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S. Ct.

2380, 85 L. Ed. 2d 728 (1985). Instead, Congress drew

ERISA’s provisions so as to preserve, not rescind,

employers’ freedom to define what benefits they will

provide and on what terms. See McCutchen, 133 S. Ct.

at 1548 (“The plan, in short, is the center of ERISA.”);
13

CIGNA Corp. v. Amara, 131 S. Ct. at 1876-77 (Section

502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] “speaks of

‘enforc[ing]’ the ‘terms of the plan,’ not of changing

them.”)(emphasis in original); Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 833, 123 S. Ct.

1965, 155 L. Ed. 2d 1034 (2003)(“Employers have large

leeway to design [ERISA] disability and other welfare

plans as they see fit.”); Lockheed Corp. v. Spink, 517

U.S. 882, 887, 116 S. Ct. 1783, 135 L. Ed. 2d 153

(1996)(“Nothing in ERISA requires employers to

establish employee benefit plans. Nor does ERISA

mandate what kinds of benefits employers must

provide if they choose to have such a plan.”) Employers

thus have a wide range of options and may decide

whether to offer particular types of benefits (e.g.

disability insurance, life insurance, or vision coverage)

depending on the needs of their employees. That

flexibility reflects a conscious decision on Congress’s

part. It encourages employers to make the voluntary

decision to establish a benefit plan subject to ERISA. 

See Cronkright v. Frommert, 559 U.S. 506, 130 S. Ct.

1640, 1648-49, 176 L. Ed. 2d 469 (2010)(“Enforcement

represents a careful encouragement of the creation of

such plans.”)(citations and internal quotation marks

omitted). Flexibility in plan design extends not only to

what benefits are due, but also to how the plan will

administer those benefits.

In enacting ERISA, Congress chose to regulate

employee benefit plans, but at the same time it sought

to avoid discouraging employers from offering benefits

in the first place. Congress thus set out in ERISA to

“induc[e] employers to offer benefits by assuring a

predictable set of liabilities.” Rush Prudential HMO,

Inc. v. Moran, 536 U.S. 355, 379, 122 S. Ct. 2151, 153
14

L. Ed. 2d 375 (2002). To accomplish that goal, ERISA

relies on a “straightforward rule” of “hewing to” the

contractual “plan documents” in which plans set forth

their terms. Kennedy v. Plan Adm’r for DuPont Sav. &

Inv. Plan, 555 U.S. 285, 300, 129 S. Ct. 865, 172 L. Ed.

2d 662 (2009). 

This Court has repeatedly recognized the particular

importance of enforcing plan terms as written in

Section 502(a)(1)(b) claims, like LeGras’s claim here. 

See Heimeshoff v. Hartford Life & Accident Ins. Co.,

134 S. Ct. 604, 612 (2013); Amara, 131 S. Ct. at 1877;

Cronkright, 130 S. Ct. at 1660-61; Kennedy, 555 U.S.

at 300. “ERISA § 502(a)(1)(b) authorizes a plan

participant to bring suit “to recover benefits due to him

under the terms of the plan, to enforce his rights under

the terms of the plan, or to clarify his rights to future

benefits under the terms of the plan.” Heimeshoff, 134

S. Ct. at 612 (quoting 29 U.S.C. § 1132(a)(1)(B))

(emphasis in the original). “A claim therefore stands or

falls by the terms of the plan.” Kennedy, 555 U.S. at

300 (internal quotations omitted).

Nevertheless, the court below rejected that

fundamental principle when it nullified the Plan

provision requiring participants to submit a request to

appeal an adverse benefit decision within 180 days of

their receipt of the notice of the decision, then replaced

it with what the Court believed was a more equitable

provision. App. 6-10. The effect of the Ninth Circuit’s

decision is to impose a new term or condition on all

ERISA plans by reading an implicit limitation on the

plan’s rights: A plan will only be enforced when, in the

court’s view, the plan terms are fair and not just

compliant with ERISA. But, ERISA plans are
15

voluntary, so encouraging an employer to voluntarily

provide benefits requires both predictable regulation

and reliable construction of the plan. This is precisely

why the approach taken by the Ninth Circuit in this

case is so harmful. Every person’s notion of equity is

uncertain and variable. Although perhaps

momentarily gratifying to the sensibilities of a judge,

imposing an involuntary and unpredictable obligation

on an ERISA plan endangers the statutory ERISA

scheme.

B. Courts must defer to an administrator’s

lawful and reasonable interpretation of

an ERISA plan term.

Neither LeGras nor the courts below dispute that

the Plan’s 180-day deadline for internal appeals

complied with the Department of Labor’s regulations

implementing ERISA. These regulations require that

ERISA-governed disability plans “[p]rovide claimants

at least 180 days following receipt of a notification of an

adverse benefit determination within which to appeal

the determination.” 29 C.F.R. § 2560.503-1(b)(1),

(h)(3)(i), (h)(4). That is exactly what the Plan here

provided. It required that a written appeal “be sent to

the Administrator within 180 days of the...date the

claimant receives the written denial of such claim.”

App. 28. Aetna interpreted the “180 days” in its Plan

to mean that plan participants like LeGras had 180

calendar days in which to submit requests for an

appeal. App. 15, 27.

Aetna’s interpretation of “180 days” in the plan

provision was not unlawful because it does not conflict

with the substantive or procedural provision of ERISA.

The Plan vests Aetna, as the claims-processing
16

administrator, with discretion to interpret the

provisions of the Plan and to make eligibility

determinations for benefits. Therefore, the Ninth

Circuit was required to sustain Aetna’s interpretation

of “180 days.” 

Analogizing from trust law, in Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948,

103 L. Ed. 2d 80 (1989), the Supreme Court concluded

that if an ERISA plan charges an administrator to

exercise discretion in interpreting the plan’s provision,

the federal courts must not disturb the administrator’s

interpretation “if reasonable.” Firestone Tire, 489 U.S.

at 111. According to the Court, this conclusion

inescapably followed because “ERISA abounds with the

language and terminology of trust law.” Id. at 110. If,

as here, a fiduciary or administrator is “in existence,

and capable of acting, a court of equity will not

interfere to control [it] in the exercise of discretion

vested in [it] by the instrument under which [it] act[s].”

Id. at 111 (quoting Nichols v. Eaton, 91 U.S. 716, 724-

25, 23 L. Ed. 2d 254 (1875)). Based on these principles

of trust law, the Court concluded that in reviewing the

actions of an administrator who has been granted

discretion to interpret the terms of an ERISA plan, the

federal courts must defer to the fiduciary’s

interpretation provided it is not an abuse of discretion.

See id. at 115. Therefore, the court reviews the

administrator’s interpretation for an abuse of

discretion, and is precluded from disturbing that

interpretation if it is reasonable, even if the court

comes to a different conclusion independently. See id.

Aetna’s interpretation of “180 days” is reasonable.

It is not contrary to the clear language of the Plan or
17

the ERISA regulation, nor does it render the Plan

language meaningless or inconsistent. As discussed,

the plan-documents rule that has been established by

ERISA and this Court requires that this language be

enforced as written. ERISA requires Aetna, as an

administrator, to act “in accordance with the

documents and instruments governing the plan insofar

as such documents and instruments are consistent with

the provisions of ERISA.” 29 U.S.C. § 1104(a)(1)(D).

Aetna did this by acting in accordance with the plain

meaning of the “180 days” that was expressed in the

Plan. By declining to enforce this Plan term as written,

the Ninth Circuit violated the clear language of the

Plan and failed to give Aetna’s reasonable

interpretation the deference it was due.

C. Courts cannot use federal common law

to rewrite ERISA plan terms.

Besides ignoring the ERISA regulations and the

opinions of this Court and other circuits, the problem

with the Ninth Circuit’s decision is that it created

federal common law to get around the plain and

unambiguous terms of the Plan. In doing so, the Ninth

Circuit ignored the limit on courts’ power to craft

federal common law to impose an equitable doctrine on

ERISA-governed plans. The court below claimed that

its creation of federal common law in this instance was

necessary to effectuate ERISA’s goals of “protecting the

interest of [plan] participants” and to provide

“adequate safeguards...[that are] desirable in the

interests of employees.” App. 6 (citing 29 U.S.C.

§ 1001). In other words, the Ninth Circuit used federal

common law to rewrite a plan term to achieve a result

it believed was fair to plan participants.
18

The Ninth Circuit ignored the plain meaning of the

Plan’s internal appeal deadline of “180 days” and

rewrote it, under the guise of federal common law, to

impose a new term or condition of the Plan that the

court believed was more favorable to plan participants.

That approach conflicts with this Court’s ERISA

precedent in two key ways:

First, courts may not, under any circumstance,

create federal common law to change or modify plan

terms that are regulated by, and compliant with,

ERISA. While this Court has instructed the lower

federal courts to develop federal common law under

ERISA as a gap-filling measure, see Firestone Tire, 489

U.S. at 110, “the authority of courts to develop a

‘federal common law’ under ERISA...is not the

authority to revise the text of the statute.” Mertens v.

Hewitt Assocs., 508 U.S. 248, 258, 113 S. Ct. 2063, 124

L. Ed. 2d 161 (1993). The Ninth Circuit turned that

principle on its head when in concluded that it could

create federal common law to impose its chosen timecomputation method on ERISA regulations and ERISA

plans. App. 10. Congress empowered courts to enforce

the written terms of ERISA plans, not terms chosen at

random by a judge. Applying federal law as the Ninth

Circuit did here contradicts ERISA’s “repeatedly

emphasized purpose...to protect contractually defined

benefits.” Russell, 473 U.S. at 148.

Second, the decision below is wholly inconsistent

with this Court’s instruction that courts may not create

federal common law for the purpose of reaching an

equitable result. In a rare occurrence, the Supreme

Court recently issued a unanimous decision on whether

courts can apply equitable doctrines to trump the plain
19

language of an ERISA-governed plan. See U.S.

Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 185 L. Ed.

2d 654 (2013). The majority opinion, authored by

Justice Kagan, demonstrates that precedential case

law and the legislative history provides a strong

rationale for its decision that equitable doctrines

cannot override the plain language of an ERISA

contract. 

Like the Ninth Circuit did in the decision below, the

Third Circuit Court of Appels in McCutchen noted that

Congress’s intention in creating ERISA was to give

plan beneficiaries greater rights than the plan’s

fiduciaries when enforcing the terms of a benefit plan. 

See McCutchen, 663 F.3d 671, 674 (3d Cir. 2012).

Under this rationale, the Third Circuit found that

equitable doctrines may be applied under section

502(a)(3) of ERISA [29 U.S.C. § 1132(a)(3)]. See id. In

reviewing this decision, all of the Supreme Court

justices agreed that an ERISA plan’s terms, not

equitable principles, govern an administrator’s actions. 

See McCutchen, 133 S. Ct. at 1548. It held that using

equitable defenses to override the plain language of the

ERISA plan would go directly against the statutory

scheme employed by Congress when it enacted ERISA. 

See id. 

The decision in McCutchen is in line with this

Court’s conservative interpretation of ERISA. In

Mertens, for example, the Court recognized that ERISA

is an extremely comprehensive and ridiculed statute,

which was the product of over a decade of congressional

study into the United States’ private employee benefits

system. Mertens, 508 U.S. at 251. Therefore, the

Court was reluctant to tamper with the legislative
20

scheme of ERISA by allowing remedial actions that

were not specifically mentioned in ERISA. In

Cronkright, the Court held that an administrator’s

interpretation of language in an ERISA plan was

deferential, reasoning that following the plan

administrator’s interpretation promotes ERISA’s policy

interests of efficiency, predictability, and uniformity. 

See Cronkright, 449 U.S. at 507.

On the basis of general equity authority under

ERISA, the Ninth Circuit essentially ordered the Plan

to change, as to LeGras, the deadlines and structures

set by the Plan’s procedures. LeGras never actually

asserted – nor has any court found – that the Plan’s

procedures violate the governing statute and

regulations that might preempt or trump the Plan’s

provisions. The Ninth Circuit’s invocation of equity

pushed too far into rewriting the Plan’s terms. It

invoked equity to address the situation because the

Plan’s procedures, including its deadlines, do not

violate the governing statute or regulatory mandates in

a manner that requires creation of federal common law.

The ERISA regulations expressly addressed the Plan

term at issue in this case. Because ERISA explicitly

addresses the time limitation for appeals, courts may

not apply federal common law to this dispute. Review

by the Court is warranted because the Ninth Circuit

overstepped its bounds by crafting federal common law

to rewrite a plan provision that is regulated by ERISA.
21

II. The Ninth Circuit’s creation of federal

common law to modify an ERISA plan is

inconsistent with the approach of every

other circuit to address the issue.

The Ninth Circuit stands alone in using federal

common law to apply an equitable doctrine to an

unambiguous provision in an ERISA plan. Its

application of the equitable “weekend/holiday rule” in

this case conflicts with the decisions of other circuits to

consider the issue of whether to apply an equitable

principle to an ERISA plan. Until the decision below

in this case, all of the circuit courts to have confronted

the issue presented here have answered it in the

negative. They held that the plain meaning of ERISA

plan terms should be enforced as written and equitable

doctrines should not be applied unless the term is

ambiguous and the administrator’s interpretation of it

is unreasonable. Because the Ninth Circuit’s judicial

rewrite of an ERISA regulation and an unambiguous

ERISA plan term contradicts the decisions of five other

circuit courts of appeal, this Court should grant review

to end the confusion about the proper application of

federal common law.

A. The Eleventh Circuit 

In Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232,

1237 n. 3 (11th Cir. 2010), cert. denied, 131 S. Ct. 943

(2011), the plan participant argued, as LaGras did in

this case, that the court should apply an equitable

principle to override the plan’s deadline. See O’Hara,

604 F.3d at 1237. The Eleventh Circuit rejected this

argument and found that refusing to enforce the

provisions as written would “frustrate, rather than

effectuate, ERISA’s ‘repeatedly emphasized purpose to
22

protect contractually defined benefits.’” Id. (quoting

Russell, 473 U.S. at 148). The court of appeals

explained that enforcing plan provisions as written is

critical to plan solvency and thus benefits all plan

participants. See id. at 1238.

B. The Third Circuit 

The Third Circuit held that parties cannot invoke

the reasonable expectations doctrine to create an

ambiguity where the language in the ERISA plan itself

is unambiguous. See Early v. United States Life Ins.

Co., 2007 U.S. App. LEXIS 6870, *7 (3d Cir., Mar. 22,

2007). It reasoned that “straightforward language in

an ERISA plan document ‘should be given its natural

meaning.’” Id. 2007 U.S. App. LEXIS 6870 at *9

(quoting Bill Gray Enters., Inc. Employee Health &

Welfare Plan v. Gourley, 248 F.3d 206, 220 n. 13 (3d

Cir. 2001)). To apply the reasonable expectations

doctrine under ERISA as a matter of federal common

law, the ERISA contract must be ambiguous, as

“general ERISA principles simply do not permit us to

re-write the terms of the insurance contract.” Id.

(internal quotation marks and citation omitted).

C. The Fourth Circuit 

In United McGill Corp. v. Stinnett, 154 F.3d 168

(4th Cir. 1998), the Fourth Circuit refused to

incorporate general common law principles of

reimbursement and subrogation to override

unambiguous language in an ERISA plan. It reasoned

that

In reviewing ERISA-related disputes, resort to

federal common law generally is inappropriate

when its application would conflict with the
23

statutory provisions of ERISA, discourage

employers from implementing plans governed by

ERISA, or threaten to override the explicit terms

of an established ERISA benefit plan. And,

courts should remain circumspect to utilize

federal common law to address issues that bear

at most a tangential relationship to the purposes

of ERISA.

Stinnett, 154 F.3d at 171-72. In reaching this decision,

the Fourth Circuit followed its decision in Coleman v.

Nationwide Life Ins. Co., 969 F.2d 54 (4th Cir. 1992),

where it refused to use estoppel principles to modify a

written employee benefit plan because “it would

conflict with ERISA’s emphatic preference for written

agreements.” Coleman, 969 F.2d at 58.

D. The Fifth Circuit 

In Jones v. Georgia Pacific Corp., 90 F.3d 114 (5th

Cir. 1996), the policy provided that, for 31 days

following his 65th birthday, the plan participant had the

right to purchase an individual life insurance policy. 

See Jones, 90 F.3d at 114. If he died during that

period, he would receive death benefits as if he had

bought the new policy. See id. The plan participant

did not purchase the individual policy within the 31-

day period and died on the 32nd day following his 65th

birthday. See id. 

The district court agreed with the family of the plan

participant that, because the 31st and final day of the

acquisition period was a Sunday, the period should be

extended for one day. See Jones, 90 F.3d at 116. Just

like the Ninth Circuit held in the instant case, the

district court in Jones concluded that the provision in
24

the insurance policy was ambiguous because it did not

state what would happen if the 31st day fell on a

Sunday. Therefore, the court decided to apply the legal

maxim dies dominicus non est juridicus (“Sunday is not

a day in law”) as federal common law to write into the

ERISA-governed policy a provision that would extend

the period for one day if the 31st day fell on a Sunday.

See id.

The Fifth Circuit disagreed. It concluded that the

Plan’s failure to address what would happen if a

deadline fell on Sunday did not make the deadlines in

the Plans ambiguous because “what they do not say

cannot render what they do say ambiguous.” Jones, 90

F.3d at 116. Noting that the time-calculation method in

Federal Rule of Civil Procedure did not apply to

contracts, the Fifth Circuit found no rule under federal

common law that provided an extra day when the last

day of a deadline falls on Sunday. See id. at 117 (citing

J. Aron & Co. v. S/S Olga Jacob, 527 F.2d 416, 417 (5th

Cir. 1976). Therefore, the circuit court held that the

express terms of the policy dictated that the option to

extend benefits under the policy ended on Sunday. See

id. at 117.

Ten years later, the Fifth Circuit again refused to

apply an equitable rule to an ERISA contract. In High

v. E-Systems, Inc., 459 F.3d 573 (5th Cir. 2006), it

concluded that eligibility for benefits under an ERISA

plan is first governed by the plain meaning of the

contract. See High, 459 F.3d at 578-79. Therefore, only

when the plan terms remain ambiguous after applying

ordinary principles of contract interpretation may

courts apply the rule of contra preferentem to construe

terms in favor of the insured. See id. The Fifth Circuit
25

held that it could not apply this rule in High’s case

because, even though the language was ambiguous, the

plan gave the administrator discretion to interpret the

plan. See id. Therefore, the court was bound to accept

the administrator’s interpretation of the language as

long as it was reasonable. See id.

E. The Seventh Circuit 

In Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d

355 (7th Cir. 2011), the Seventh Circuit addressed

whether an ERISA plan should have excused the fact

that the plan participant’s administrative appeal from

a denial of her claim for disability benefits was eleven

days late. See Edwards, 639 F.3d at 358. Just like the

Plan in this case, the plan in Edwards had fixed a 180-

day deadline for filing administrative appeals. See id.

at 362. The Seventh Circuit found that, because the

plan’s deadline was clear and consistent with the

regulations governing ERISA claims, the administrator

was required to implement and follow the plain

language of the plan. Therefore, the appellate court

refused to apply federal common law to excuse the plan

participant’s late appeal as “substantially compliant”

with the plan deadline:

[I]t seems consistent neither with the policies

underlying the requirement of exhaustion of

administrative remedies in ERISA cases nor

with judicial economy to import into the

exhaustion requirement the substantial

compliance doctrine. To so hold would render it

effectively impossible for plan administrators to

fix and enforce administrative deadlines while

involving courts incessantly in detailed, case-by-
26

case determinations as to whether a given

claimant’s benefits should be excused or not.

***

In this case...the plan adopted a reasonable

deadline for the filing of administrative appeals

from denials of benefits, and it likewise was

reasonable for the plan to enforce that deadline

in Edwards’ case, given that...Edwards has

never offered any explanation for her delay in

filing her appeal.

Edwards, 639 F.3d at 362-63, 365. In reaching this

conclusion, the Fifth Circuit reasoned that “ERISA

plans have an interest in ‘finality of decisions’

regarding claims for benefits that militates against

reopening a plan’s administrative claim process willynilly.” Id. at 362.

Prior to the Ninth Circuit’s decision below, every

circuit to consider the question enforced unambiguous

benefit-plan provisions, observing that ERISA’s

primary purpose was to “protect the integrity of

[ERISA] plans and expectations of their participants

and beneficiaries.” O’Hara, 604 F.3d at 1237 n. 3. The

Ninth Circuit has also departed from its sister circuits

who recognize that federal common law may only be

applied to ERISA claims when the statutory text offers

no guidance. See Grabois v. Jones, 89 F.3d 97, 101 (2d

Cir. 1996)(“[I]f the question is one of federal law, it

must be resolved either by the ERISA statute itself or,

in the absence of a statutory provision, by federal

common law.”); Muse v. Int’l Bus. Machs. Corp., 103

F.3d 490, 495 (6th Cir. 1996)(stating “federal common

law is developed under ERISA only in those instances
27

in which ERISA is silent or ambiguous”); Thomason v.

Aetna Life Ins. Co., 9 F.3d 645, 647 (7th Cir.

1993)(“Courts may develop...federal common law only

where ERISA itself ‘does not expressly address the

issue before the court.’” (quoting Nachwalter v.

Christie, 805 F.2d 956, 959 (11th Cir. 1986))). 

Thus, after the Ninth Circuit’s decision, the same

case, with the same internal deadline in an ERISA

plan, will come out differently in almost every other

federal circuit than it would in the Ninth Circuit. This

is a real and intolerable conflict on the same matter of

law and fact. The decision of the Ninth Circuit

threatens to ignore the text and guidance offered by

ERISA and its implementing regulations. It also

threatens to undermine the exhaustion requirement

under ERISA, and the related principle of deference to

plan administrators. Therefore, this Court should

grant certiorari to resolve the disagreement between

the circuits and to restore the proper, intended balance

between federal courts and ERISA plan administrators.

III. The question presented is exceptionally

important to plan sponsors, administrators,

and participants across the nation.

The Court should grant review because the ERISA

interpretation presented in this case creates intolerable

regulatory uncertainty and the Ninth Circuit’s

common-law “weekend/holiday” rule is fundamentally

at odds with ERISA’s statutory objectives.

First, ERISA seeks to facilitate efficient

administration of employee benefit plans. See

Kennedy, 129 S. Ct. at 875-76. By focusing on benefit

determinations solely on the plan documents, ERISA
28

promotes simplicity, ease of administration, and quick

payment of claims. See id. Everyone benefits from this

scheme – employees, employers, and plan

administrators. See id. But the Ninth Circuit’s

decision undermines this goal by allowing parties to

litigate over the meaning and calculation of plan

deadlines that differ from state to state. Under the

Ninth Circuit’s rationale, plan administrators must

keep track of the legal holidays in every federal and

state jurisdiction where it has plan participants, thus

making the administration of the plan more complex

and expensive for plan sponsors and administrators.

For example:

• Does the claimant live in a state that celebrates

Patriots’ Day, which may be celebrated on

different days in different states (Compare 4

M.R.S. § 1051 (Maine statute designating the

third Monday in April as Patriots’ Day) with

ALM GL ch. 6, § 12J (Massachusetts statute

designating April 19th as Patriots’ Day))?

• Does the deadline fall on Susan B. Anthony Day

(which is celebrated in West Virginia on Election

Day, but only in even-numbered years)(See

WEST VA. CODE § 2-2-1(a)(14))?

• Does the deadline fall on Lincoln’s Birthday,

which is celebrated on different days in some

states (Compare, e.g., WEST VA. CODE § 2-2-

1(a)(11) with BURNS IND. CODE ANN. § 1-1-9-

1(a)), and not celebrated at all in others (i.e.,

Tennessee)?
29

These regulatory variations generate administrative

inefficiencies that inevitably increase the cost of

sponsoring and administering employee benefit plans.

Second, ERISA was designed to establish a uniform

set of substantive and procedural standards governing

employee benefit plans. See Rush, 536 U.S. at 379.

That goal of procedural uniformity is incompatible with

the Ninth Circuit’s decision. The divergence between

the Ninth Circuit and other federal circuit courts to

consider the issue is directly at odds with ERISA’s

objective of “provid[ing] a uniform regulatory regime

over employee benefit plans.” Aetna Health, Inc. v.

Davila, 542 U.S. 200, 208, 124 S. Ct. 2488, 159 L. Ed.

2d 312 (2004). As long as that disagreement persists,

a plan that has participants in the Ninth Circuit will be

subject to different deadlines than a plan in any other

circuit, and a plan with participants across the country

will be subject to numerous different deadlines. 

Congress did not envision a system where employees in

San Francisco and Phoenix have different ERISA

rights and responsibilities from those in Boston,

Chicago, and Dallas. As discussed, one of the principle

goals of ERISA was to establish a uniform

administrative scheme that provides a set of standards

to guide the processing of claims and disbursement of

benefits. See Fort Halifax, 482 U.S. at 9. “Uniformity

is impossible, however, if plans are subject to different

legal obligations in different states.” Englehoff v.

Englehoff, 532 U.S. 141, 121 S. Ct. 1322, 1328, 149 L.

Ed. 2d 264 (2001). The Court should grant review to

establish national uniformity on this critical issue of

ERISA law.
30

Third, ERISA seeks to ensure that participants may

“on examining the plan documents, determine exactly

what [their] rights and obligations are under the plan.”

Schoonejongen, 514 U.S. at 83. Participants need an

authoritative place to go to determine their benefits.

But, if the master plan can be retroactively changed to

rewrite its deadlines, as the Ninth Circuit did in this

case, participants cannot rely on the deadlines in that

document. Instead, they will be forced to ascertain

which dates are considered “legal holidays” in their

particular state before they can determine when they

must submit claims and appeals for benefits. This is

exactly the type of intolerable scenario that Congress

wanted to avoid.

Finally, review is warranted because the Ninth

Circuit’s decision impedes government regulation of

ERISA plans. Congress charged various government

agencies with regulatory powers under ERISA, and

that framework is built around the face of written plan

documents. For example, the Department of Labor can

impose civil penalties on plan fiduciaries who breach

their duty, codified in 29 U.S.C. § 1104(a)(1)(D), to act

“in accordance with the documents and instruments

governing the plan,” under 29 U.S.C. § 1132(1). The

Department also promulgates and enforces related

regulations, such as 29 C.F.R. § 2560.503-1(b), which

requires employers to ensure that “benefit claims

determinations are made in accordance with governing

plan documents.” Allowing courts to retroactively

reform unambiguous plan documents could seriously

undermine the Department of Labor’s enforcement

regime.
31

There can be no question that the question

presented is sufficiently important to warrant review.

ERISA governs the interactions between the majority

of employees and their employers across the country –

millions of people and thousands of plans. The need for

review, and correction, is particularly urgent here

because the Ninth Circuit’s approach threatens the

viability of ERISA plans that provide so many

Americans with benefits.

CONCLUSION

This case presents precisely the sort of ERISAdistorting errors this Court has previously granted

certiorari to correct. In Cronkright, for example, this

Court overturned the lower court’s decision to limit the

deference owed an ERISA plan administrator,

recognizing that the “uniformity problems that arise

from creating ad hoc exceptions” affect the enforcement

of ERISA plans. Cronkright, 130 S. Ct. at 1651. That

perfectly describes the Ninth’s Circuit’s decision to

interject an ad hoc exception to the enforcement of

unambiguous plan terms.

This case is an excellent vehicle to resolve the

question presented. The factual record is welldeveloped and undisputed in all relevant parts. With

the decision below, the Ninth Circuit has irrevocably

split with other circuit courts to have weighed in on the

issue. For the reasons discussed, the Ninth Circuit’s

decision will begin to cause administrative

complications and increase the costs and complexity of

litigation – just what ERISA was designed to prevent.

Given the circuit conflict and the importance of the

issue presented, review is not just appropriate, it is

essential.
32

The petition for writ of certiorari should be granted.

Respectfully submitted,

Karen Vaughan McManus

 Counsel of Record

FEDERAL EXPRESS CORPORATION

Legal Department – Litigation

Building B, Third Floor

3620 Hacks Cross Road

Memphis, Tennessee 38125

(901) 434-8600

(901) 434-9279 facsimile

kvmcmanus@fedex.com

Counsel for Petitioners
APPENDIX
i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(May 28, 2015) . . . . . . . . . . . . . . . App. 1

Appendix B Order Granting Defendants AETNA

Life Insurance Company and Federal

Express Corporation Long Term

Disability Plan’s Motion for Judgment

on the Pleadings in the United States

District Court for the Central District

of California

(July 31, 2012) . . . . . . . . . . . . . . App. 24

Appendix C Order Denying Petition for Rehearing

in the United States Court of Appeals

for the Ninth Circuit

(July 7, 2015) . . . . . . . . . . . . . . . App. 31
App. 1

 

APPENDIX A

 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 12-56541

D.C. No. 2:12-cv-02128-R-JCG

[Filed May 28, 2015] ____________________________________

ANDRE LEGRAS, )

Plaintiff-Appellant, )

)

v. )

)

AETNA LIFE INSURANCE COMPANY; )

FEDERAL EXPRESS CORPORATION )

LONG TERM DISABILITY PLAN, )

Defendants-Appellees. )

___________________________________ )

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

March 7, 2014—Pasadena, California

Filed May 28, 2015

Before: Harry Pregerson, Richard A. Paez,

and N. Randy Smith, Circuit Judges.
App. 2

Opinion by Judge Paez;

Dissent by Judge N.R. Smith

SUMMARY*

ERISA

The panel reversed the district court’s dismissal of

an action challenging the denial of an application for

continued long-term disability benefits under the

Employee Retirement Income Security Act. 

The panel held that the district court erred in

dismissing the action for failure to exhaust

administrative remedies. The plaintiff’s internal appeal

from the denial of his benefits application was denied

as untimely under a 180-day appeal period. The panel

held that the plaintiffs’ notice of internal appeal was

timely because it was filed on the Monday after the

Saturday on which the 180-day period ended. The

panel adopted this method of counting time as part of

ERISA’s federal common law. 

Dissenting, Judge N.R. Smith wrote that as a

matter of contract interpretation, the plaintiff’s

administrative appeal was untimely.

COUNSEL

Peter S. Sessions (argued) and Glenn R. Kantor,

Kantor & Kantor LLP, Northridge, California, for

Plaintiff-Appellant. 

*

 This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader. 
App. 3

David P. Knox (argued), Federal Express Corporation,

Memphis, Tennessee, for Defendants-Appellees. 

OPINION

PAEZ, Circuit Judge: 

Andre LeGras appeals the district court’s judgment

in favor of Defendants Federal Express Corporation

Long Term Disability Plan and AETNA Life Insurance

Company (collectively, “AETNA”). In a letter denying

LeGras’s application for continued long-term disability

benefits, AETNA informed LeGras that he could file an

internal appeal of the decision within 180 days. The

180-day period ended on a Saturday. Although LeGras

mailed his appeal the following Monday, AETNA

denied it as untimely. The district court dismissed

LeGras’s action for failure to exhaust administrative

remedies. We reverse. We hold that because the last

day of the appeal period fell on a Saturday, neither that

day nor Sunday count in the computation of the 180

days. As LeGras mailed his notice of appeal on

Monday, it was timely. This method of counting time is

widely recognized and furthers the goals and purposes

of the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1001 et seq. We therefore adopt

it as part of ERISA’s federal common law. 

I.

In October 2008, LeGras seriously injured himself

while working as a ramp transport driver for Federal

Express Corporation (“FedEx”), a job he had held for

twenty-three years. LeGras suffered a serious back

injury that caused severe and sustained pain.

Subsequent surgeries did not correct the problem. As

an employee of FedEx, LeGras was a participant and
App. 4

beneficiary of FedEx’s Long Term Disability Plan

(“LTD Plan” or “Plan”). In May 2009, he began

receiving disability benefits under the Plan.

Subsequently, AETNA, the Plan’s Claims Paying

Administrator, informed LeGras that his benefits

would terminate on May 24, 2011, unless he could

establish that his disability qualified as a “total

disability” under the LTD Plan. 

After LeGras attempted to make the required

showing, AETNA sent LeGras a letter explaining that

the evidence he submitted did not establish that he

suffered from a total disability. Of concern to AETNA

was LeGras’s alleged failure to prove that he could not

“sit or use [his] upper extremities for sedentary work.”

LeGras received the letter at 1:23 p.m. on April 18,

2011. The letter stated, “[i]f you disagree with the

above determination, in whole or in part, you may file

a request to appeal this decision within 180 days of

receipt of this notice.” 

The parties agree that the 180-day appeal period

expired on October 15, 2011, a Saturday. LeGras

mailed his appeal the following Monday. On January

17, 2012, AETNA denied LeGras’s appeal as untimely.

LeGras filed an action in the district court pursuant to

29 U.S.C. § 1132, the civil enforcement provision of

ERISA. After answering the complaint, AETNA filed a

motion for judgment on the pleadings under Federal

Rule of Civil Procedure 12(c). AETNA argued that

LeGras failed to exhaust his administrative remedies

because he mailed his appeal after the 180-day period

specified in the April 18, 2011 denial letter lapsed. The
App. 5

district court granted the motion and entered judgment

in favor of AETNA.1

LeGras timely appealed.2

II.

We review de novo an order granting a motion for

judgment on the pleadings under Rule 12(c). Fleming

v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). We accept

the factual allegations in the complaint as true, and

view them in a light most favorable to the plaintiff.

Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1301

& n.2 (9th Cir. 1992). 

The federal statute governing claims procedures

under ERISA requires that “in accordance with

regulations of the Secretary [of Labor], every employee

benefit plan shall . . . afford a reasonable opportunity

to any participant whose claim for benefits has been

denied for a full and fair review by the appropriate

named fiduciary of the decision denying the claim.” 29

U.S.C. § 1133(2). The regulation implementing 29

U.S.C. § 1133 states that a “reasonable opportunity for

a full and fair review” is “at least 180 days following

1

 ERISA itself does not require a participant or beneficiary to

exhaust his administrative remedies before bringing an action

under ERISA’s civil enforcement provision. Vaught v. Scottsdale

Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008).

Nonetheless, we have imposed a prudential exhaustion

requirement. Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980);

Vaught, 546 F.3d at 626 n.2 (clarifying that the exhaustion

requirement in cases under ERISA’s civil enforcement provision

are prudential, not jurisdictional).

2

 We have jurisdiction pursuant to 28 U.S.C. § 1291.
App. 6

receipt of a notification of an adverse benefit

determination within which to appeal . . . .” 29 C.F.R.

§ 2560.503-1(h)(3), (h)(3)(i), (h)(4). Neither the

governing statute, nor the implementing regulation,

“specify a method of computing time.”3 Cf. Fed. R. Civ.

P. 6(a). This leaves a number of unresolved

ambiguities. For instance, did the 180 days begin on

April 18, 2011, the day LeGras received the notice, or

on the following day? Does the final day end at 1:23

p.m., 5:00 p.m., or midnight? And, as is relevant here,

if the final day lands on a weekend or holiday, is the

participant permitted to file his appeal on the next

business day? The widespread understanding that a

deadline falling on a Saturday, Sunday, or holiday

extends to the next business day answers this question.

Congress, in enacting ERISA, has “empowered the

courts to develop, in light of reason and experience, a

body of federal common law governing employee benefit

plans.” Menhorn v. Firestone Tire & Rubber Co., 738

F.2d 1496, 1499. (9th Cir. 1984). This federal common

law “supplement[s] the explicit provisions and general

policies set out in ERISA . . . governed by the federal

policies at issue.” Id. at 1500. One of ERISA’s declared

policies is to “protect the interest of [plan] participants”

and to provide “adequate safeguards . . . [that are]

desirable in the interests of employees.” 29 U.S.C.

§ 1001. Indeed, we have repeatedly stated that ERISA

is remedial legislation that should be construed

liberally to “protect[] participants in employee benefits

plans.” McElwaine v. US West, Inc., 176 F.3d 1167,

3

 Similarly, the parties do not suggest that the LTD Plan contains

an explanation of how the appeal period is to be computed. We

therefore assume that it does not contain such a provision.
App. 7

1172 (9th Cir. 1999); Batchelor v. Oak Hill Med. Grp.,

870 F.2d 1446, 1449 (9th Cir. 1989); Smith v. CMTAIAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984).

We have developed ERISA federal common law

furthering these interests several times before. See,

e.g., Security Life Ins. Co. of America v. Meyling, 146

F.3d 1184, 1191 (9th Cir. 1998) (recognizing under

ERISA federal common law that a recission remedy

exists when an insured makes material false

representations about his health); Schikore v.

BankAmerica Supplemental Ret. Plan, 269 F.3d 956

(9th Cir. 2001) (invoking federal common law to

incorporate the mailbox rule into ERISA). For example,

we adopted the doctrine of reasonable expectations as

a principle to apply when interpreting ERISA-governed

insurance contracts. Saltarelli v. Bob Baker Grp. Med.

Trust, 35 F.3d 382 (9th Cir. 1994). In so holding, we

reasoned that “protecting the reasonable expectations

of insureds appropriately serves the federal policies

underlying ERISA.” Id. at 386. Further, express

incorporation of the principle elsewhere demonstrated

“its widespread acceptance and vitality.” Id. at 387.4

There is nothing novel about the principle we adopt

here that when a deadline falls on a weekend, it

extends to the following business day. The Supreme

Court recognized this general understanding in 1890.

4

 The dissent argues that we have extended the holding of

Saltarelli to “read an insured’s ‘reasonable expectations’ into any

term of an ERISA plan without limits.” Dissent at 19. Contrary to

the dissent’s argument, we do nothing more than cite Saltarelli as

an example of incorporating a widely accepted principle—the

reasonable expectations doctrine—as part of ERISA’s federal

common law.
App. 8

Street v. United States, 133 U.S. 299, 306 (1890) (“. . .

a power that may be exercised up to and including a

given day of the month may generally, when that day

happens to be Sunday, be exercised on the succeeding

day”). Further, the Fifth Circuit has stated that this

“rubric has universal acceptance.” Armstrong v. Tisch,

835 F.2d 1139, 1140 (5th Cir. 1988). LeGras faces the

possibility of losing his long-term disability benefits

because of a two-day difference in the computation of

the time period to pursue an administrative appeal.

Although the stricter time-computation method may be

convenient for AETNA’s purposes, it would be contrary

to the purposes of ERISA to adopt a method that is

decidedly protective of plan administrators, not plan

participants. 

Further, that a deadline extends to the next

business day when it falls on a Saturday, Sunday, or

holiday is widespread. For example, Federal Rule of

Civil Procedure 6 (“Rule 6”) states that this principle

applies to “any local rule or court order, or in any

statute that does not specify a method of computing

time.”5

 Fed. R. Civ. P. 6(a).6 We have consistently

5

 The relevant part of Rule 6(a)(1)(C) provides as follows: 

When the period is stated in days or a longer unit of time:

. . . include the last day of the period, but if the last day is

a Saturday, Sunday, or legal holiday, the period continues

to run until the end of the next day that is not a Saturday,

Sunday, or legal holiday.

6

 In addition to his federal common law argument, LeGras argued

that Rule 6(a) should apply directly. However, because LeGras

presented two alternative arguments that could warrant reversal,

we need not address that argument. Further, even though LeGras
App. 9

applied Rule 6 when interpreting time periods in

various statutory contexts. See, e.g., Minasyan v.

Mukasey, 553 F.3d 1224, 1227–28 (9th Cir. 2009)

(addressing the beginning of the one-year period of

limitations for filing an asylum application); Payan v.

Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119,

1125–26 (9th Cir. 2007) (addressing the timeliness of a

Title VII action after receipt of a right-to-sue letter

from the Equal Employment Opportunity Commission);

Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.

2001) (addressing the “appropriate ending” of the oneyear grace period under the Anti-terrorism and

Effective Death Penalty Act of 1996); Cooper v. City of

Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (per curiam)

(holding that because the last day of Oregon’s two-year

statute of limitations in a personal injury suit under 42

U.S.C. § 1983 ended on the Saturday preceding

Columbus Day, the plaintiff could file on the following

Tuesday); Hart v. United States, 817 F.2d 78, 80 (9th

Cir. 1987) (holding that where the last day of the sixmonth limitations period under the Federal Tort

Claims Act ended on a Saturday, the plaintiff could file

on the following Monday). Additionally, many

did not make a federal common law argument in district court, he

is permitted to make that argument on appeal because he properly

preserved his claim. See Lebron v. Nat’l R.R. Passenger Corp., 513

U.S. 374, 379 (1995) (“Our traditional rule is that once a federal

claim is properly presented, a party can make any argument in

support of that claim; parties are not limited to the precise

arguments they made below.”) (internal quotation marks and

brackets omitted).
App. 10

regulations explicitly incorporate this method for

computing time.7

Incorporating this time-computation method into

ERISA’s federal common law protects the interests of

insureds, thereby effectuating the policy goals of

ERISA. Further, the concept is generally accepted and

vital. See Saltarelli, 35 F.3d at 387. Therefore, we hold

that, where the deadline for an internal administrative

appeal under an ERISA-governed insurance contract

falls on a Saturday, Sunday, or legal holiday, the period

continues to run until the next day that is not a

Saturday, Sunday, or legal holiday. 

AETNA attempts to skirt the issue by minimizing

the role that ERISA plays in our analysis of this case.

It argues that LeGras’s “appeal was pursuant to the . . .

Plan—not ERISA or any ERISA regulation.” In other

words, AETNA contends that we should not apply the

above time-computation method because the 180-day

period for appeal is set by contract, rather than by

statute or regulation. What AETNA overlooks is that

the 180-day appeal period is part of ERISA’s

mandatory claims processing standards. As noted

7 See, e.g., 15 C.F.R. §§ 280.206(e) (expressly computing time such

that, if the last day is a Saturday, Sunday, or legal holiday, the

period runs until the end of the next day that is not a Saturday,

Sunday, or legal holiday), 719.8(e) (same), 766.5(e) (same), 785.6(e)

(same); 17 C.F.R. § 171.4(a) (same); 22 C.F.R. § 103.8(c) (same); 30

C.F.R. § 700.15(b) (same); 38 C.F.R. § 42.27(a) (same); 29 C.F.R.

§ 2200.2(b) (applying the Federal Rules of Civil Procedure, which

includes Rule 6(a), where no specific provision exists); 40 C.F.R.

§ 304.12 (applying the time-computation manner as described in

Rule 6(a)); 45 C.F.R. § 1630.13(a) (same); 49 C.F.R. § 240.7

(applying the time-computation provisions of Rule 6).
App. 11

above, under ERISA’s implementing regulations, the

minimum amount of time that must be afforded to a

claimant to file an administrative appeal is 180 days.

29 C.F.R. § 2560.503-1(h)(3), (h)(3)(i), (h)(4). Although

the 180-day appeal period is imposed by the Plan, the

Plan is ultimately governed by ERISA. Any ambiguity

in calculating the 180 days should be resolved to

further the purposes and goals of ERISA. 

As support for its position that the LTD Plan is a

private contractual arrangement and therefore should

not be subject to the time-computation method we

adopt, AETNA relies heavily upon a Fifth Circuit case,

Jones v. Georgia Pacific Corp., 90 F.3d 114 (5th Cir.

1996). In Jones, a decedent’s heirs brought suit when

the decedent’s former employer and life insurance

company refused to pay life insurance benefits. Id. at

115. The ERISA-covered group plan expired on the

decedent’s sixty-fifth birthday, id., but included an

option provision that allowed him to convert the

employer-provided policy to a non-ERISA individual

policy within “the thirty-one day period immediately

following the date of [] cessation [of coverage],” id. n.1.

If the employee died within thirty-one days, then he

would be covered under the group policy as if he had

purchased the new policy. Id. at 114. The decedent died

on the thirty-second day after his sixty-fifth birthday

without having applied for the individual life insurance

policy. Id. at 115. When the insurance company

declined to pay the death benefit, his heirs brought suit

and argued that, because the thirty-first day was a

Sunday, the option period should have continued to

Monday, the next business day. Id. The district court

applied Rule 6(a)’s next-business-day provision, and

granted summary judgment to the heirs. Id. at 117.
App. 12

Reversing, the Fifth Circuit held that the provision did

not apply because the option to convert the group plan

to an individual plan was a private contractual

agreement. Id. at 117–18. 

Jones is distinguishable and does not support

AETNA’s argument. First, unlike this case, Jones did

not interpret a contractual provision that was required

by ERISA. In fact, the court emphasized that

defendants, as offerors of a private option contract, had

“full control of . . . the length of time during which the

power of acceptance shall last.” Id. at 117. By contrast,

AETNA set the appeal period at 180 days to achieve

the minimum possible compliance with a statutory and

regulatory mandate. In doing so, AETNA did not

“full[y] control” the length of time by which an appeal

could be filed. See id. Second, the Jones court’s

reasoning hinged on its determination that there was

no ambiguity in the contractual provision. Id. at 116. In

particular, the court explained that “[t]he qualifying

phrase ‘immediately following’ can have no other

meaning than the 31 days in their normal and natural

sequence, without concern as to the days of the week

. . . .”8 Id. In contrast, AETNA’s April 18, 2011 denial

letter contains no such qualifying clause or explanation

of how LeGras should calculate the 180-day appeal

period. 

8

 The operative text in Jones provided that “[t]he acquirement

period is the thirty-one day period immediately following the date

of such cessation,” and that “[i]f a Participant . . . dies within the

thirty-one day period immediately following the date he ceased to

be a covered individual, the amount of insurance which he would

have been entitled to . . . will be paid . . . .” Jones, 90 F.3d at 115

n.1.
App. 13

Finally, AETNA warns that applying the timecomputation method advocated by LeGras to the

calculation of deadlines under ERISA’s claims

procedures would create confusion and great

administrative burden. Specifically, AETNA contends

that it would “put claims processors for ERISAgoverned plans in the unenviable position of keeping up

with all state holidays for all [fifty] states . . . .”

AETNA’s argument is unpersuasive. The plan

administrator is responsible for identifying, and

clarifying, applicable due dates in compliance with

ERISA.9

 Although we recognize the burden placed on

administrators to “keep[] up” with state holidays, this

burden must be counter-balanced with the clarity and

consistency attained by applying the time-computation

method that we hold applies to calculating the 180-day

period within which LeGras had to mail his notice of

appeal. 

III.

Although the 180-day appeal period specified in the

April 18, 2011 denial letter ended on Saturday, October

9

 ERISA’s regulations require that plan administrators establish

claims procedures that set forth the “applicable time limits” for

challenging denied claims. 29 C.F.R. § 2520.102-3(s). The

administrator must do so in a “sufficiently comprehensive” manner

that is “calculated to be understood by the average plan

participant.” Id. § 2520.102-2(a). For instance, the regulations

instruct administrators to use “clarifying examples and

illustrations” where necessary. Id. Here, there is no indication that

AETNA took any steps to clarify the time limit for appeal.

Similarly, AETNA did not specify a date certain before which

LeGras had to mail his request for appeal. Nor did it provide an

illustration or example of how LeGras should calculate the 180-day

period.
App. 14

15, 2011, ERISA federal common law required that

AETNA accept LeGras’s appeal as timely as he mailed

it on the first weekday following the weekend. It was

error for AETNA and the district court to conclude that

LeGras’s administrative appeal was untimely. We

reverse and remand to the district court with directions

to remand to AETNA, the Plan’s Claims Paying

Administrator, for consideration of LeGras’s appeal.

REVERSED AND REMANDED. 

N.R. SMITH, Circuit Judge, dissenting: 

Mr. LeGras had 180 days to appeal an adverse

decision from AETNA Life Insurance Company

(“AETNA”), denying him long-term disability benefits

under a Long Term Disability Plan (“Plan”) provided by

his employer, Federal Express (“FedEx”). He lost his

opportunity to appeal as a result of his own conduct; he

sent his appeal to AETNA two days after the appeal

period expired. Even LeGras agrees that he sent his

appeal two days late. To excuse LeGras’s untimeliness,

the majority turns a simple case of contract

interpretation into an opportunity to (without

precedent) expand federal common law surrounding

the Employee Retirement Income Security Act

(“ERISA”) to rewrite private contracts. I cannot go

along with them in “bailing LeGras out.” 

“An ERISA plan is a contract that we interpret in

an ordinary and popular sense as would a person of

average intelligence and experience. We look first to

the explicit language of the agreement to determine, if

possible, the clear intent of the parties . . . .” Harlick v.

Blue Shield of Cal., 686 F.3d 699, 708 (9th Cir. 2012)
App. 15

(internal quotation marks, citations, and alterations

omitted). In general, “[c]ontract terms are to be given

their ordinary meaning, and when the terms of a

contract are clear, the intent of the parties must be

ascertained from the contract itself.” Klamath Water

Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210

(9th Cir. 1999). “That the parties dispute a contract’s

meaning does not render the contract ambiguous; a

contract is ambiguous if reasonable people could find

its terms susceptible to more than one interpretation.”

Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009)

(internal quotation marks omitted). 

The terms of this contract are not ambiguous. By

the Plan’s terms, LeGras had 180 days to file his

appeal with AETNA by mail. All parties agree that

LeGras received notice from AETNA that his long-term

disability claim had been denied on April 18, 2011. It is

also undisputed that October 15, 2011, is 180 days from

the date of the notice. Where is the ambiguity? A

person of average intelligence and experience would

understand 180 days to mean precisely what LeGras

understood it to mean here.1

 LeGras knew that the

180-day period ended on October 15, 2011; our only

question: whether he should be allowed to extend that

time by two days solely because the deadline for the

180-day appeal period happened to be on a Saturday.

1

 The majority’s attempt to distinguish Jones v. Georgia Pacific

Corp., 90 F.3d 114 (5th Cir. 1996), by holding that the terms of the

plan at issue in Jones were not ambiguous, is not persuasive. Slip

Op. at 11–12. In the only respect in which Jones is relevant to this

case, this Plan is no more ambiguous than the plan in Jones;

neither plan specifies what happens if the last day falls on a

Saturday.
App. 16

In other words, LeGras messed up; he failed to

abide by his contract and now seeks an excuse to set

aside his failure. LeGras has never offered any reason

to explain why he failed to timely appeal. He could

have mailed that appeal on any one of 180 days after

April 18, 2011, including October 15, 2011. He offers no

explanation why he did not. Post offices around the

nation (even in Pocatello, Idaho) are open on

Saturdays. LeGras offers no evidence to the contrary

and no explanation why he did not send his appeal on

that Saturday. All LeGras had to do (in order to

preserve his rights) was mail the appeal within a sixmonth window. Instead, he flatly argues that he does

not need to comply with his contract. Because the

terms of the Plan are clear, the district court did not

err when it dismissed LeGras’s action with prejudice

for failure to exhaust his administrative remedies. Our

analysis should end here, with the contract. 

To get around the plain terms of the contract, the

majority is forced to create federal common law, in

light of the ERISA regulations applicable to the Plan.2

These regulations provide that an employee benefit

plan “shall establish and maintain a procedure by

which a claimant shall have a reasonable opportunity

2

 In doing so, the majority appears to go beyond the relief

requested by LeGras. LeGras’s briefing was focused on

incorporating Fed. R. Civ. P. 6 into all time limits in insurance

plans regulated by ERISA; LeGras would use the federal common

law to accomplish that incorporation only if we determined Rule 6

did not directly apply, and then only to get him a couple of extra

days to file. Although the basis for the majority’s holding is not

clear, it appears to have recognized that LeGras’s Rule 6-based

approach is not tenable and has instead opted to impose a rule of

reasonableness on all terms in all ERISA insurance plans.
App. 17

to appeal an adverse benefit determination.” 29 C.F.R.

§ 2560.503-1(h)(1). In order to have a reasonable

opportunity, an employee benefit plan must “[p]rovide

claimants at least 180 days following receipt of a

notification of an adverse benefit determination within

which to appeal the determination.” § 2560.503-

1(h)(3)(i). 

No one argues that the Plan did not comply with the

ERISA regulations. Applying these regulations, the

majority’s logic “hits a dead end.” The 180-day time

limit in this case arises from the contract between

LeGras, FedEx, and AETNA, and complies with the

ERISA regulations. The Plan gave LeGras 180 days

following receipt of the letter denying long term

disability benefits to file his appeal, as the regulations

outline. For that reason, LeGras never even asserted

that the Plan, which incorporates the regulation’s

language, was in violation of ERISA or its

implementing regulations. LeGras’s only contentions in

the district court and on appeal (prior to oral

argument) were that Fed. R. Civ. P. 6 should be applied

in some manner to the terms of the Plan and that

AETNA breached the contract by denying his claim. In

the absence of a claim that the Plan is non-conforming

to the regulations, we do not have occasion to

determine whether the 180-day time limit provided in

the Plan and interpreted by AETNA is reasonable

within the meaning of § 2560.503-1(h)(1). See United

States v. Pallares-Galan, 359 F.3d 1088, 1094–95 (9th

Cir. 2004) (noting that claims raised for the first time

on appeal are deemed waived). Accordingly, the

majority does not hold that the Plan violates ERISA;

instead it undertakes to rewrite the terms of the

contract. 
App. 18

The majority declines to accept LeGras’s primary

contention at oral argument and on appeal: that Rule

6 should be directly applied to compute the 180-day

appeal period provided in the Plan. Instead, the

majority suggests we must rewrite the unambiguous

terms of the Plan, a private contract between the

parties, in light of the federal common law and the

purpose of ERISA.3

 I have no doubt that the majority is

correct that we should construe ERISA liberally “in

favor of protecting participants in employee benefit

plans.” Batchelor v. Oak Hill Med. Grp., 870 F.2d 1446,

1449 (9th Cir. 1989). However, as already noted, we

must begin with the contract. The terms of the contract

are paramount, because “applying federal common law

doctrines to alter ERISA plans is inappropriate where

the terms of an ERISA plan are clear and

unambiguous.” Zurich Am. Ins. Co. v. O’Hara, 604 F.3d

1232, 1237 n.4 (11th Cir. 2010). The majority’s holding

ignores this limit on the reach of our power to craft

federal common law for ERISA-regulated plans and

drastically expands doctrines, meant to protect lay

persons from deceptive plan drafting, to impose a

“reasonableness” rule on every provision of an ERISA

insurance plan. In doing so, the majority improperly

conflates the requirement that an insured be given a

reasonable opportunity to appeal an adverse decision

with doctrines requiring an insurance contract to be

interpreted in light of an insured’s reasonable

expectations. 

3

 Indeed, the majority’s discussion of Rule 6, so central to LeGras’s

argument, is merely used to provide evidence that its preferred

approach is “widespread” in other contexts. Slip Op. at 8–9.
App. 19

Although the majority is correct that we have used

the federal common law in cases interpreting ERISA

plans, we have never used it in these circumstances.

This is not a case, for example, where we are called

upon to determine whether common law remedies are

available regarding ERISA plans. See Security Life Ins.

Co. of Am. v. Meyling, 146 F.3d 1184, 1191 (9th Cir.

1998). Further, in Meyling, we importantly noted that

the plan terms limited whether the common law

remedy was available in that particular case. Id. at

1192; see Greany v. W. Farm Bureau Life Ins. Co., 973

F.2d 812, 822 (9th Cir. 1992) (“Because the plan was

unambiguous, the Greanys cannot avail themselves of

the federal common law claim of equitable estoppel.”). 

The limiting power of unambiguous plan terms to

the use of the federal common law also frames any

discussion of the case that is the linchpin of the

majority’s holding: Saltarelli v. Bob Baker Group

Medical Trust, 35 F.3d 382 (9th Cir. 1994). In that

case, we endorsed the “reasonable expectations”

doctrine for ERISA insurance plans, id. at 387, but we

never suggested (as the majority now does) that the

doctrine was available to revise unambiguous plan

terms where those terms did not implicate questions of

coverage. The majority interprets Saltarelli to mean

that it can read an insured’s “reasonable expectations”

into any term of an ERISA plan without limits.

However, the doctrine was never intended for this

purpose. Instead, the “reasonable expectations”

doctrine is meant to protect insureds “regarding the

coverage afforded by insurance carriers even though a

careful examination of the policy provisions indicates

that such expectations are contrary to the expressed

intention of the insurer.” Id. at 386 (internal quotation
App. 20

marks omitted) (emphasis added). Therefore, in

Saltarelli, we concluded that an exclusionary clause for

preexisting conditions was unenforceable given that it

was not plain and conspicuous. Id. at 386–87. We have

never applied the “reasonable expectations” doctrine

outside the context of determining the reach of

insurance coverage. See, e.g., Snow v. Standard Ins.

Co., 87 F.3d 327, 331 n.1 (9th Cir. 1996) (declining to

apply doctrine of reasonable expectations to plan

administrator’s discretion), overruled on other grounds

by Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089

(9th Cir. 1999) (en banc). 

The cases that the majority cites (to support its

holding that an insured’s reasonable expectation that

the time period to mail an appeal would not end on a

Saturday) are not persuasive. In Street v. United

States, 133 U.S. 299 (1890), the Supreme Court held

that an executive action taken one day outside of the

Congressionally mandated time frame for the officer to

act was legal in part because the last day was a

Sunday. Id. at 305–06. Far from recognizing any

“general understanding” regarding the performance of

a legal act on a weekend, Slip Op. at 7–8, the Supreme

Court grounded its holding in the purpose of the

statute and the special nature of Sunday as a holiday

or a dies non. Id. at 305–07. In Armstrong v. Tisch, the

Fifth Circuit decided to incorporate Rule 6 into a

regulation, because the deadline could fall on a date “on

which the act cannot be legally done.” 835 F.2d 1139,

1140 (5th Cir. 1988) (internal quotation marks

omitted). The only act, that LeGras was legally

required to do in order to preserve his appeal rights,

was to mail a letter to AETNA. LeGras does not argue

he could not legally mail a letter on a Saturday. 
App. 21

Similarly, the majority’s reliance on Schikore v.

BankAmerica Supplemental Retirement Plan, 269 F.3d

956 (9th Cir. 2001), for the proposition that we must

invoke the federal common law to rewrite the terms of

the Plan, is misplaced. Slip Op. at 7. In Schikore, this

court held that the mailbox rule applied to litigation

involving an ERISA plan. Id. at 964–65. However, the

question before the Schikore court was fundamentally

different than the question before us now. That

difference illuminates why deploying the federal

common law is inappropriate in this case. The question

in Schikore was “not the interpretation of a plan term

. . . but, rather, whether an evidentiary rule of federal

common law is applicable in the absence of a provision

in a plan rejecting that rule.” Id. at 962 n.3. The court

in Schikore clearly stated that the mailbox rule “does

not operate as a rule of construction.” Id. at 961. The

court was not tasked with construing the meaning of

plan terms at all but with resolving “a critical

evidentiary question: specifically, who bears the

ultimate burden of establishing receipt when receipt is

disputed and the evidence is inconclusive.” Id. at 963.

Our power to create federal common law with regard to

ERISA plans was well suited to the task in Schikore.

Faced with an evidentiary dispute, the court crafted a

presumption to assist in the resolution of the case.

However, our job in this case is decidedly different: we

need only determine the meaning of 180 days within

the context of the Plan. There is no dispute that

LeGras failed to comply with this Plan provision. 

Further, LeGras is distinguishable from the

plaintiff in Schikore. We must determine, not whether

LeGras complied, but whether we should come to his

rescue after he unambiguously missed the 180-day
App. 22

deadline. The Fifth Circuit has already answered this

question in Jones v. Georgia Pacific Corp., 90 F.3d 114

(5th Cir. 1996). There, the Fifth Circuit refused to

apply Rule 6 to a private contract when the terms of

that contract were unambiguous. Jones, 90 F.3d at 117.

The majority’s attempts, to distinguish the present case

from Jones, compromise its own reasoning. The

majority holds that Jones is not applicable because it

“did not interpret a contractual provision that was

required by ERISA . . . defendants, as offerors of a

private option contract, had full control of the length of

time during which the power of acceptance shall last.”

Slip Op. at 11 (internal quotation marks and

alterations omitted). However, the Jones plan

beneficiary lost his plan benefits, because he died one

day outside of the time to make an election necessary

to preserve his rights. Jones, 90 F.3d at 115. Therefore,

the prudential considerations (the majority now asserts

for LeGras) would be far more appropriate to trigger

crafting federal common law for the beneficiary in

Jones. He could not control the date of his death. On

the contrary, LeGras had six months to mail a letter

and failed to do so. The Fifth Circuit did not rescue

Jones with federal common law; our case presents far

less reason to rescue LeGras. The Plan is (similar to

the contract in Jones) a private contract for which we

are bound to apply its unambiguous terms. The Fifth

Circuit got it right; it refused to, “in effect, write into

the policy a provision that would extend the period . . .

if [the deadline falls on a weekend].” Id. at 116. 

We should do the same here. The Plan terms are

clear and comply in every respect with ERISA

regulations. LeGras had 180 days to notify AETNA

that he wanted to appeal its decision. One can only
App. 23

conclude that LeGras failed to abide by the clear and

unambiguous terms of his contract. The analysis in this

case should end there. But the majority (intent on

“bailing LeGras out”) unnecessarily intrudes upon the

ability of the parties to enforce the terms of their

negotiated private contract. 

Therefore, I must respectfully dissent. 
App. 24

 

APPENDIX B

 

UNITED STATE DISTRICT COURT

FOR THE CENTRAL DISTRICT OF

CALIFORNIA

CASE NO. CV 12-02128 R (JCGx)

[Filed July 31, 2012] _________________________________

ANDRE LEGRAS, )

)

Plaintiff, )

)

v. )

)

AETNA LIFE INSURANCE )

COMPANY; FEDERAL EXPRESS )

CORPORATION LONG TERM )

DISABILITY PLAN; AND DOES 1 ) 

THROUGH 10, INCLUSIVE, )

)

Defendants. )

________________________________ )

ORDER GRANTING DEFENDANTS AETNA

LIFE INSURANCE COMPANY AND FEDERAL

EXPRESS CORPORATION LONG TERM

DISABILITY PLAN’S MOTION FOR

JUDGMENT ON THE PLEADINGS

Date: July 16, 2012

Time: 10:00 a.m.
App. 25

Before the Honorable Manuel L. Real

Courtroom No. 8

Complaint Filed: March 13, 2012

Trial Date: None Set

Christopher J. Yost, Esq. (Bar No. 150785) 

FEDERAL EXPRESS CORPORATION 

2601 Main Street, Suite 340 

Irvine, California 92614 

Telephone: (949) 862-4558 

Facsimile: (949) 862-4791 

E-mail: cjyost@fedex.com 

David P. Knox 

FEDERAL EXPRESS CORPORATION 

3620 Hacks Cross Road, Bldg B – 3d Floor 

Memphis, Tennessee 38125 

Telephone: (901) 434-6286 

Facsimile: (901) 434-9279 

E-mail: david.knox@fedex.com 

Admitted pro hac vice 

Attorneys for Defendants 

FEDERAL EXPRESS CORPORATION 

LONG TERM DISABILITY PLAN and 

AETNA LIFE INSURANCE COMPANY

This matter came to be heard before the Honorable

Manuel L. Real, United States District Judge in the

Central District of California, on July 16, 2012.

Counsel for all parties appeared and were heard. For

the reasons set forth below, the Court grants

Defendants’ Motion for Judgment on the Pleadings and

dismisses Plaintiff’s Complaint with prejudice. 
App. 26

PROCEDURAL POSTURE 

Plaintiff filed his Complaint against Defendants

Aetna Life Insurance Company (“Aetna”) and Federal

Express Corporation Long Term Disability Plan (“LTD

Plan”) on March 13, 2012. Plaintiff claimed that

Defendants wrongfully denied his appeal of a claim for

long-term disability benefits under the LTD Plan.

Plaintiff alleged the denial of his appeal violated

§ 1132(a)(1)(B) of the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., as

amended. Defendant LTD Plan filed its Answer on

April 11, 2012, and Defendant Aetna filed its Answer

on April 13, 2012. On June 15, 2012, both Defendants

filed the present Motion for Judgment on the

Pleadings. 

APPLICABLE STANDARD 

“After the pleadings are closed—but early enough

not to delay trial—a party may move for judgment on

the pleadings.” FED. R. CIV. P. 12(c). “[T]he same

standard of review applicable to a Rule 12(b) motion

applies to its Rule 12(c) analog,” because the motions

are “functionally identical.” Dworkin v. Hustler

Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A

Rule 12(c) motion may thus be predicated on either:

(1) the lack of a cognizable legal theory; or

(2) insufficient facts to support a cognizable legal claim.

See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1990). When considering a motion to dismiss

under Rule 12(c), the court “must accept all factual

allegations in the complaint as true and construe them

in the light most favorable to the non-moving party.”

Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

“A judgment on the pleadings is proper if, taking all of
App. 27

[plaintiff]’s allegations in its pleadings as true,

[defendant] is entitled to judgment as a matter of law.”

Compton Unified School Dist. v. Addison, 598 F.3d

1181, 1185 (9th Cir. 2010). 

FACTUAL ALLEGATIONS 

The following allegations are taken from Plaintiff’s

Complaint, and are taken as true for purposes of

Defendants’ Motion. Plaintiff is a former employee of

Federal Express Corporation and was a participant in

the LTD Plan. Plaintiff suffered an injury on or about

October 3, 2008. Plaintiff became eligible for long-term

disability benefits under the LTD Plan on May 24,

2009, and he received long-term disability benefits for

24 months. 

On November 24, 2010, Defendant Aetna informed

Plaintiff that he must establish that he suffered a

qualifying “Total Disability” in order for benefits to

continue beyond May 24, 2011. On April 15, 2011,

Aetna sent Plaintiff a letter stating it had reviewed his

claim for continuing benefits and determined that no

benefits were payable beyond May 24, 2011. Aetna’s

letter clearly stated “If you disagree with the above

determination, in whole or in part, you may file a

request to appeal this decision within 180 days of

receipt of this notice.” The LTD Plan also clearly states

that a claimant must send the appeal to the LTD Plan

administrator within 180 days. 

Plaintiff received Aetna’s letter, notifying him of the

denial of his claim for continuing benefits and of the

deadline for appealing the decision, on April 18, 2011.

Therefore, the deadline for Plaintiff to submit his
App. 28

appeal was Saturday, October 15, 2011.1 Plaintiff did

not send his appeal to Aetna until Monday, October 17,

2011. Plaintiff thus did not send his appeal letter until

182 days after he received his denial letter. 

On January 17, 2012, Aetna sent Plaintiff another

letter, stating that his claim was denied because he had

not submitted his appeal within the 180 day time

period required by the LTD Plan. Aetna referred to the

LTD Plan language which requires that a written

appeal be sent to the Administrator within 180 days of

the date the claimant receives the written denial of

such claim. 

ANALYSIS 

ERISA itself does not explicitly require a

participant to exhaust all available internal remedies

prior to bringing a federal lawsuit. See 29 U.S.C.

§ 1132. The Ninth Circuit, however, “long ago

concluded that ‘federal courts have authority to enforce

the exhaustion requirement in suits under ERISA, and

that as a matter of sound public policy they should

usually do so.’” Vaught v. Scottsdale Healthcare Corp.

Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (quoting

Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980)).

The Ninth Circuit has explained: 

[T]he exhaustion doctrine is consistent with

ERISA’s background, structure and legislative

history and serves several important policy

considerations, including the reduction of

1

 At the hearing on Defendants’ Motion, Plaintiff’s counsel

conceded that the deadline for submitting the appeal was October

15, 2011.
App. 29

frivolous litigation, the promotion of consistent

treatment of claims, the provision of a

nonadversarial method of claims settlement, the

minimization of costs of claim settlement and a

proper reliance on administrative expertise.

[Amato, 618 F.2d] at 566-68. Consequently the

federal courts have the authority to enforce the

exhaustion requirement in suits under ERISA,

and [] as a matter of sound policy they should

usually do so.” Id. at 568. 

Diaz v. United Agric. Employee Welfare Benefit Plan &

Trust, 50 F.3d 1478, 1483 (9th Cir. 1995). Failure to

submit a required claim or internal appeal within the

time frame set forth in an employee welfare benefit

plan is one example of failing to exhaust administrative

remedies. See, e.g., Werner v. Liberty Life Assur. Co.,

336 Fed. Appx. 676 (9th Cir. 2009) (affirming district

court’s dismissal of complaint for plaintiff’s failure to

timely exhaust internal administrative remedies). 

In this matter, Plaintiff failed to timely exhaust his

internal administrative remedies. The LTD Plan

provides that any appeal must be sent to the Plan

Administrator within 180 days of the receipt of the

notice of denial. This time frame is reasonable. See 29

CFR § 2560.503-1(h). Plaintiff received written notice

that his claim for benefits was denied on April 18,

2011. Accordingly, in order to be timely, his appeal had

to be sent within 180 days of April 18, 2011 – or no

later than October 15, 2011. Plaintiff did not send his

appeal until October 17, 2011. He thus missed the

deadline by two days. Consequently, he failed to

properly exhaust his administrative remedies and his

claim is barred. 
App. 30

When “the court determines that the allegation of

other facts consistent with the challenged pleading

could not possibly cure the deficiency,” the court may

dismiss a claim with prejudice. Schreiber Distrib. Co.

v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th

Cir. 1986). In this matter, Plaintiff has clearly alleged

the specific dates and times upon which he received his

written notice of denial and upon which he sent his

appeal. Plaintiff cannot allege any facts that will alter

these dates without flatly contradicting what he has

already alleged to be fact. Any attempt to amend the

Complaint and state a viable claim would be futile.

Dismissal with prejudice is therefore appropriate. 

CONCLUSION 

It is therefore ORDERED that Defendants’ Motion

for Judgment on the Pleadings is GRANTED and this

matter is dismissed with prejudice. Judgment is

entered in favor of Defendants. 

DATED: July 31, 2012

/s/ 

HONORABLE MANUEL L. REAL 

UNITED STATES DISTRICT JUDGE 
App. 31

 

APPENDIX C

 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 12-56541

D.C. No. 2:12-cv-02128-R-JCG

Central District of California,

Los Angeles

[Filed July 7, 2015] _______________________________________

ANDRE LEGRAS, )

)

Plaintiff - Appellant, )

)

v. )

)

AETNA LIFE INSURANCE COMPANY )

and FEDERAL EXPRESS )

CORPORATION LONG TERM )

DISABILITY PLAN, )

)

Defendants - Appellees. )

______________________________________ )

ORDER

Before: PREGERSON, PAEZ, and N.R. SMITH, Circuit

Judges. 

A majority of the panel has voted to deny Appellees’

Petition for Rehearing En Banc. Judge Smith voted to

grant the petition. 
App. 32

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P.

35. 

The petition for rehearing en banc is DENIED. 
PRIVILEGED 

Provident Jnternal Memorandum 

To: IDe Management Group 

Glenn Felton 

From: 

Date: 

Re: 

Jeff McCall 

October 2, 1995 

ERISA 

A task force has recently been established to promote the identification of policies covered by 

ERISA and to initiate active measures to get new and existing policies covered by ERISA. The 

advantages of ERISA coverage in litigious situations are enormous: state law is preempted by 

federal law. there are no jury trials, there are no compensatory or punitive damages, relief is 

usually limited to the amount of benefit in question, and claims administrators'may receive a 

deferential standard of review. The economic impact on Provident from having policies 

covered by ERISA could be significant. As an example, Glenn Felton identified 12 claim 

situations where we settled for S7.8 million in the aggregate. If these 12 cases had been 

covered by ERISA, our liability would have been between zero and SO.5 million. 

In order to take advantage of ERISA protection, we need t9' be diligent and thorough in 

determining whether a policy is covered. Accordingly, I have attached a rough draft of 

questions that should be asked in our claim investigation process. I recommend that it be 

used for !ll claims. The key for determining the applicability of ERISA is whether or not the 

employer "sponsors" or "endorses" the plan. If the employer .Q!.Y! the premium, the policy 

would usually. but not always, be considered to be governed by ERISA. Salary ailotment or 

payroll deduction arrangements, by themselves, do not necessarily mean that a policy is 

subject to ERISA. While our objective is to pay all valid claims and deny invalid claims, there 

are gray areas. and ERISA applicability may influence our course of action. 

Another requirement needed in order to take advantage of the prd/ection offered by ERISA, is 

to establish a formal appeal process for ERISA situations. When we deny a claim, we must 

include language in our letter that informs the claimant of the right to appeal our decision within 

60 days. I have attached a copy of sample language. The appeal must be in writing and 

should be reviewed by a panel specifically established to review ERISA appeals. I recommend 

that the panel be composed of Chris Kinback, Bob Parks, Becky Absher, Tom Timpanaro and 

me. 

We will be modifying the salary allotment agreements used at the point of sale to include 

endorsement language. 

I am interested in any comments or feedback you may have on this issue. 

JM:ajr :l I 

EXHIBIT A