Karla SCHIKORE, Plaintiff-Appellee-Cross-Appellant, v. BANKAMERICA SUPPLEMENTAL RETIREMENT PLAN, Defendant-Appellant-Cross-Appellee

TASHIMA, Circuit Judge,

dissenting:

I disagree with the majority that the Plan Administrator abused its discretion in denying Schikore’s claim.

First, the majority implies that a heightened standard of review may be appropriate because of a potential conflict of interest between the employer responsible for funding Schikore’s benefits and the Plan Administrator responsible for determining Schikore’s eligibility for benefits. Maj. op. at 960 n. 2. It is true that an “apparent” conflict of interest exists when a plan administrator is responsible for both funding and paying claims.1 McDaniel v. Chevron Corp., 203 F.3d 1099, 1108 (9th Cir.2000). However, unless the plan participant comes forward with “‘material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self interest caused a breach of the administrator’s fiduciary obligations,’ ” the district court should apply the traditional abuse of discretion standard. Id. (quoting Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322-23 (9th Cir.1995)); Bendixen v. Standard Ins. Co., 185 F.3d 939, 943 (9th Cir.1999). Schikore has not pointed to any evidence in the record to support her claim of a conflict of interest, let alone material and probative evidence; her generalized assertions are insufficient to support her claim.2 See Atwood, 45 F.3d at 1323 (explaining that, “the simple fact that employees of [the participant’s employer] made the decision to deny benefits is not enough to establish a breach of fiduciary duty”). The Plan Administrator’s decision to deny accelerated payment of the benefits therefore should be reviewed under the more deferential abuse of discretion standard.

Under the traditional abuse of discretion standard, the “plan administrator’s decision to deny benefits must be upheld ... if it is based upon a reasonable interpretation of the plan’s terms and if it was made in good faith. The question we must ask is not ‘whose interpretation of the plan documents is most persuasive, but whether the interpretation is unreasonable.’ ” McDaniel, 203 F.3d at 1113 (citation omitted) (quoting Canseco v. Constr. Laborers Pension Trust, 93 F.3d 600, 606 (9th Cir.1996)) (second alteration in original). “Indeed, an administrator’s decision is not arbitrary unless it is not grounded on any reasonable basis. Accordingly, a court may overturn a decision only where it is so patently arbitrary and unreasonable as to lack foundation in factual basis and/or authority in governing case or statute law.”3 *967Hensley v. Northwest Permanente P.C. Ret. Plan & Trust, 258 F.3d 986, 1001 (9th Cir.2001) (citations and internal quotation marks omitted).

It is true that, “[u]nder ERISA, Congress has authorized the courts ‘to formulate a nationally uniform federal common law to supplement the explicit provisions and general policies set out in [the Act].’ ” Sec. Life Ins. Co. of Am. v. Meyling, 146 F.3d 1184, 1191 (9th Cir.1998) (quoting Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 411 (9th Cir.1995)) (second alteration in original). Nonetheless, “the plain language of an ERISA plan should be given its literal and natural meaning.” Health Cost Controls v. Isbell, 139 F.3d 1070, 1072 (6th Cir.1997). Thus, although federal common law “fills the gaps of ERISA to assist in the interpretation of ERISA plans, ... federal courts may not apply common law theories to alter the express terms of written benefit plans.” Id (citation omitted); see also Richardson v. Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir.1997) (agreeing with the Sixth Circuit’s statement that “ ‘[w]hen disputes arise, courts should first look to [the] explicit language of the agreement to determine, if possible, the clear intent of the parties’ ”) (quoting Armistead v. Vemitron Corp., 944 F.2d 1287, 1293 (6th Cir.1991)).

The Plan states that the election form “shall become effective on the one year anniversary of the date the election is received by the Service Center.” Plan ¶ 5.4(b) (emphasis added). The Plan also provides that “[i]f the Participant does not have a benefit payment election in effect when Employment ends, the Participant’s benefits under the Supplemental Plan shall be paid in five annual installments commencing in the calendar year after the Participant attains age 65.” Plan ¶ 5.3(b). The Plan thus explicitly states that the election form must be received, not mailed, in order to be effective. The Plan Administrator interpreted these terms as requiring actual receipt, not merely evidence of mailing. Again, we “may overturn a decision only where it is so patently arbitrary and unreasonable as to lack foundation in factual basis and/or authority in governing case or statute law.” Hensley, 258 F.3d at 1001 (internal quotation marks omitted). The Plan Administrator’s interpretation is certainly not patently arbitrary and unreasonable and, consequently, must be upheld. See McDaniel, 203 F.3d at 1113 (stating that a plan administrator’s decision to deny benefits must be upheld if it is a reasonable interpretation of the plan’s terms and was made in good faith).

The majority attempts to distinguish Hensley by stating that the instant case is not concerned with the interpretation of a Plan term.4 Maj. op. at 962 n. 3. It is precisely the interpretation of a plan term that is at issue, however. The question is whether Sehikore had an election form in effect when her employment ended. The Plan Administrator determined that the Service Center had not received Schikore’s election form one year prior to her termination date, as required by the Plan, and that she accordingly did not have a form in effect. It was not unreasonable for the Plan Administrator to interpret receipt of *968the form as requiring the Service Center to have the form on file.5 On the contrary, “plan administrators should be given the full benefit of the discretion afforded to them by their respective plans in interpreting plan terms, be they defined or undefined, with the reasonableness of those interpretations being evaluated against the relevant factual and legal backgrounds.” Hensley, 258 F.3d at 1001.

The majority relies on Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038 (11th Cir.1998), in which the court held that common law presumptions against suicide and in favor of accidental death applied in an ERISA suit. Id. at 1040. The holding in Horton did not, however, contradict any express terms in the plans, nor did it encroach on the companies’ discretion in interpreting the plans. The policies at issue provided benefits if the insured’s death was accidental and occurred while the insured was on company business. The insurance companies denied benefits, based on “speculation” that the insured’s death was a suicide, not an accident. Id. at 1042. The Eleventh Circuit held that, “when the evidence is inconclusive as to whether the deceased died by accidental or intentional means, use of the legal presumptions against suicide and in favor of accidental death are appropriate.” Id. at 1040. The presumption against suicide therefore was employed as a means of weighing the evidence, but its application did not conflict with the express terms of the policies nor with the companies’ rightful exercise of their discretion in interpreting the meaning of the policies.

By contrast, the majority’s reasoning in the instant case both negates the Plan’s requirement that the election form be “received” in order to be effective and imposes on the Plan Administrator the majority’s own contrary interpretation of the receipt requirement. It is not merely, as the majority asserts, “a tool for determining, in the face of inconclusive evidence, whether or not receipt has actually been accomplished.” Maj. op. at 961. The Plan requires that the election form be received by the Service Center. The Service Center had no record of having received the form. The Plan Administrator determined that this meant that the form was not received and so was not in effect. This interpretation of the receipt requirement is neither arbitrary nor unreasonable and should be upheld.6 I therefore respectfully dissent.

. This assumes that the Plan Administrator is responsible for both funding and paying claims, an assumption that is open to question. In Winters v. Costco Wholesale Corp., 49 F.3d 550 (9th Cir.1995), the case on which the district court relied in deciding to apply a less deferential standard of review, the plan at issue was the employer's "self-insured ERISA health benefits plan.” Id. at 552 (emphasis added).

. The majority's generalized allegations, see maj. op. at 960 n. 2, are similarly insufficient to support application of the less deferential standard of review. See Atwood, 45 F.3d at 1323.

.The Hensley court was applying the arbitrary and capricious standard of review, which the court described as "interchangeabl[e]” with the abuse of discretion standard. Hensley v. Northwest Permanente P.C. Ret. Plan & Trust, 258 F.3d 986, 994 n. 4 (9th Cir.2001). "Any difference between the two standards ... is in name only.” Id.

. In Hensley, the plan administrators interpreted the term “employee” as a “W-2” employee for Internal Revenue Service purposes, even though the term was not defined as such in the plan. The district court decided that the administrators had abused their discretion by applying the W-2 definition, rather than the common law definition of "employee.” On appeal, we reversed that aspect of the district court's decision, holding that the administrators were not required to apply the federal common law definition of the term. 258 F.3d at 1001.

. The majority concludes that because the Plan relied “only on the fact that the form is not presently contained in its record,” to find non-receipt,, the evidence was somehow insufficient and inconsistent with ERISA. Maj. op. at 963 (emphasis added). But what else can a custodian of a record rely on, except on . the record's absence, to prove non-receipt? Contrary to the majority's reasoning, it is a well-established and long-accepted evidentia-ry rule that the absence of a communication is proof that it was never received. See Fed.R.Evid. 803(7) (providing that "evidence that a matter is not included in [regularly kept] records” is admissible "to prove the nonoccu-rence or nonexistence of the matter”); United States v. De Georgia, 420 F.2d 889, 892-93 (9th Cir.1969) (same).

. Imposing the use of a common law presumption in the circumstances of this case goes beyond reviewing the Plan Administrator’s decision for an abuse of discretion. It is unprecedented in that we are taking on a supervisory role not given to us by ERISA. Imposing such a requirement is no different than prohibiting an ERISA plan from relying on hearsay in making decisions or imposing other rules of evidence. I respectfully suggest that review for abuse of discretion does not *969include such supervisory authority to impose rules of decision to govern ERISA decision-making.