                                                                            FILED
                           NOT FOR PUBLICATION                               APR 05 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

ISALINDA PEREZ–JONES,                            No. 14-55455

              Plaintiff–Appellant,               D.C. No. 2:11-cv-09518-JAK-
                                                 AJW
 v.

LIBERTY LIFE ASSURANCE                           MEMORANDUM*
COMPANY OF BOSTON and GOLDEN
WEST FINANCIAL CORPORATION
EMPLOYEE BENEFIT PLAN,

              Defendants–Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                            Submitted February 8, 2016**
                               Pasadena, California

Before: FARRIS, CLIFTON, and BEA, Circuit Judges.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                          1
      Isalinda Perez–Jones brought this suit, under the Employee Retirement

Income Security Act of 1974 (“ERISA”), challenging Liberty Life Assurance

Company of Boston’s (“Liberty Life”) discontinuation of her long-term-disability

benefits. See 29 U.S.C. § 1132(a)(1). After a bench trial, the district court entered

judgment for Liberty Life and the long-term-disability plan, finding that

Perez–Jones knowingly and voluntarily waived her right to receive long-term-

disability benefits by signing a severance agreement and accepting a severance

package provided by her then-employer, which sponsored the long-term-disability

plan. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The district court erred in finding that the waiver provision in the

severance agreement covers Perez–Jones’s claim. The severance agreement waives

only claims Perez–Jones had “up until the day [she] sign[ed]” the severance

agreement, not future claims. Although Perez–Jones had previously received long-

term-disability benefits, she had returned to work and was no longer receiving such

benefits when she signed the severance agreement. She thus had no claim to further

long-term-disability benefits and no ERISA claim to waive. Cf. Wetzel v. Lou

Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643, 649 (9th

Cir. 2000) (en banc) (“[U]nder federal law, an ERISA cause of action accrues

either at the time benefits are actually denied, or when the insured has reason to


                                           2
know that the claim has been denied.” (citation omitted)); Smart v. Gillette Co.

Long-Term Disability Plan, 70 F.3d 173, 181 (1st Cir. 1995) (“That agreement

could not have waived her right to participate in the Plan during the severance

period because she had no such right . . . . [O]ne can scarcely release claims that

one does not possess.”).

      2. We nonetheless affirm the district court’s decision because Perez–Jones is

not a “participant” in the long-term-disability plan entitled to bring an ERISA

claim. See 29 U.S.C. § 1132(a)(1), (e). “Participants” include only “employees in,

or reasonably expected to be in, currently covered employment, or former

employees who have . . . a reasonable expectation of returning to covered

employment or who have a colorable claim to vested benefits.” Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 117–18 (1989) (citations and internal

quotation marks omitted). There is no dispute that Perez–Jones no longer worked

for the long-term-disability plan’s sponsor at the time she sought long-term-

disability benefits because she had already signed a severance agreement and

terminated her employment. Her coverage under the long-term-disability plan

terminated with her employment; she was not a “Covered Person” under the terms

of the plan entitled to claim benefits. See, e.g., Leeson v. Transamerica Disability




                                          3
Income Plan, 671 F.3d 969, 971–79 (9th Cir. 2012); Miller v. Rite Aid Corp., 504

F.3d 1102, 1107–08 (9th Cir. 2007).

      That Perez–Jones previously received long-term-disability benefits does not

make her a “participant” in the long-term-disability plan. Perez–Jones points to

provisions of the plan specifying that “insurance will be continued for an

Employee absent due to Disability during . . . the period during which premium is

being waived,” and premiums are waived “during any period for which benefits are

payable.” However, at the time Perez–Jones filed her long-term-disability claim,

she was neither absent from employment due to disability nor receiving long-term-

disability benefits; she had to return to work from disability status to receive a

severance package, her doctor had cleared her to return to work, and she did return

to work. Nor does the long-term-disability plan’s provision for “successive periods

of disability” give Perez–Jones a claim to vested benefits: That provision extends

only to “Covered Persons,” and she was no longer a “Covered Person” after she

terminated her employment.

      Perez–Jones also is not a “participant” in the long-term-disability plan by

virtue of her misunderstanding of the plan’s terms, even if Liberty Life or her then-

employer misinformed her as to the effect of the severance agreement on her

ability to claim long-term-disability benefits. An ERISA plan is governed by its


                                           4
written terms, and the long-term-disability plan does not cover those who have

terminated their employment with the plan’s sponsor. See Gabriel v. Alaska Elec.

Pension Fund, 773 F.3d 945, 951–61 (9th Cir. 2014); see also Kennedy v. Plan

Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 300 (2009).

      AFFIRMED.




                                         5
                                                                            FILED
No. 14-55455, Perez-Jones v. Liberty Life Assurance Co. et al.               APR 05 2016

                                                                         MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, concurring in the judgment:                        U.S. COURT OF APPEALS



      I agree that the judgment of the district court should be affirmed, for the

reasons stated by the district court, and concur in the judgment.
