                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANDRE LEGRAS,                           No. 12-56541
                Plaintiff-Appellant,
                                          D.C. No.
                v.                     2:12-cv-02128-
                                           R-JCG
AETNA LIFE INSURANCE COMPANY;
FEDERAL EXPRESS CORPORATION
LONG TERM DISABILITY PLAN,                OPINION
            Defendants-Appellees.


     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.

              Opinion by Judge Paez;
            Dissent by Judge N.R. Smith
2              LEGRAS V. AETNA LIFE INS. CO.

                           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.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             LEGRAS V. AETNA LIFE INS. CO.                   3

                         COUNSEL

Peter S. Sessions (argued) and Glenn R. Kantor, Kantor &
Kantor LLP, Northridge, California, for Plaintiff-Appellant.

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.
4             LEGRAS V. AETNA LIFE INS. CO.

                               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 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
                 LEGRAS V. AETNA LIFE INS. CO.                            5

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 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


 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.
6              LEGRAS V. AETNA LIFE INS. CO.

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 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


    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.
               LEGRAS V. AETNA LIFE INS. CO.                          7

construed liberally to “protect[] participants in employee
benefits plans.” McElwaine v. US West, Inc., 176 F.3d 1167,
1172 (9th Cir. 1999); Batchelor v. Oak Hill Med. Grp.,
870 F.2d 1446, 1449 (9th Cir. 1989); Smith v. CMTA-IAM
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


 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.
8                   LEGRAS V. AETNA LIFE INS. CO.

following business day. The Supreme Court recognized this
general understanding in 1890. 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

    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 did not make a federal common
law argument in district court, he is permitted to make that argument on
                 LEGRAS V. AETNA LIFE INS. CO.                              9

consistently 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 one-
year 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 six-month limitations period under the Federal Tort
Claims Act ended on a Saturday, the plaintiff could file on the
following Monday).          Additionally, many regulations
explicitly incorporate this method for computing time.7


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).
 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
10            LEGRAS V. AETNA LIFE INS. CO.

    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 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


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).
             LEGRAS V. AETNA LIFE INS. CO.                  11

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. 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]
12              LEGRAS V. AETNA LIFE INS. CO.

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.

    Finally, AETNA warns that applying the time-
computation 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
ERISA-governed 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

 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.
 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
                LEGRAS V. AETNA LIFE INS. CO.                         13

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 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.




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.
14            LEGRAS V. AETNA LIFE INS. CO.

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) (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).
                LEGRAS V. AETNA LIFE INS. CO.                          15

    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.

     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 six-month 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


 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.
16              LEGRAS V. AETNA LIFE INS. CO.

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 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


  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.
               LEGRAS V. AETNA LIFE INS. CO.                         17

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.

    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


  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.
18           LEGRAS V. AETNA LIFE INS. CO.

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.

    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
             LEGRAS V. AETNA LIFE INS. CO.                  19

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 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
20            LEGRAS V. AETNA LIFE INS. CO.

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.

    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
              LEGRAS V. AETNA LIFE INS. CO.                   21

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 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.
22            LEGRAS V. AETNA LIFE INS. CO.

    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 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.
