Whether an administrative services agreement (ASA) constitutes a 'governing instrument' under ERISA that must be disclosed to plan beneficiaries upon request

No question identified. : EXTENSION REQUESTED TO THE HONORABLE ELENA KAGAN, Associate Justice of the Supreme Court of the United States, in her capacity as the Circuit Justice for the Ninth Circuit: Pursuant to 28 U.S.C. § 2101(¢) and Rules of the Supreme Court 13.3, 13.5, 22, and 30, Applicant Mark Zavislak respectfully requests a 60-day extension of time, up to and including March 30, 2026, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. The jurisdiction of this Court is invoked according to 28 U.S.C. § 1254(1). The time to file a petition for writ of certiorari will otherwise expire on January 29, 2026. This application is filed at least ten days before that date. Procedural Background The Ninth Circuit issued its memorandum disposition affirming the district court’s judgment and denying Zavislak’s appeal on September 24, 2025. See App.1 (Memorandum Disposition). Applicant filed a timely petition for rehearing and rehearing en banc, which the Ninth Circuit denied on October 31, 2025. See App.8 (Order Denying Rehearing). Pursuant to Supreme Court Rule 13.3, the current deadline for a petition for writ of certiorari in this case is January 29, 2026. Despite denying rehearing, the Ninth Circuit panel voted to stay the mandate pending the filing of the petition. See App.10 (Order Staying Mandate). The panel’s grant of the motion indicates the Ninth Circuit’s understanding that a petition for writ of certiorari in this case “would present a substantial question and that there is good cause for 1 the stay.” Fed. R. App. P. 41(d)(1); accord 9th Cir. R. 41-1 (stating “a motion for stay of mandate ... pending petition to the Supreme Court for certiorari, will not be granted as a matter of course”). Importance of This Case At issue in this case is a question that goes to the very heart of the Employee Retirement Income Security Act of 1974 (“ERISA”): whether an employee benefit plan fiduciary may hide from beneficiaries any contract that defines the plan’s administration. Upon written request by a plan participant or beneficiary, plan administrators must disclose “any ... contract, or other instruments under which the plan is established or operated.” 29 U.S.C. § 1024(b)(4). For decades, circuit courts have understood this plain text to encompass administrative services agreements (“ASAs”)—the master contracts between plan sponsors and third-party claims administrators that determine how health benefits are adjudicated, paid, or denied. The decision below, however, reinforces the Ninth Circuit’s break from that consensus, creating a dangerous loophole in ERISA’s transparency regime and a clear split among the Circuits. In affirming the district court, the Ninth Circuit held that an ASA is merely a contract for services rather than a governing instrument, thereby permitting fiduciaries to withhold it from beneficiaries. This holding essentially creates a secret law of the plan: it allows third-party administrators (‘TPAs”) to operate under undisclosed rules regarding reimbursement rates and claims approval, denial, and other processing, while plan participants and beneficiaries are left in the dark, unable to verify whether their claims are being adjudicated in accordance with the plan’s actual governing documents. This decision cements an acknowledged and intractable circuit split. The Seventh, Tenth, and Eleventh Circuits have explicitly held that contracts defining a TPA’s authority or governing the relationship between the plan and its service providers are subject to mandatory disclosure. See, e.g., Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781, 796 (7th Cir. 2009) (holding that claims administration agreements must be disclosed because they govern plan operations); M.S. v. Premera Blue Cross, 118 F. 4th 1248, 1267 (10th Cir. 2024) (holding that claims administration agreements must be disclosed since they both establish