FILED
NOT FOR PUBLICATION MAY 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA NOREN, No. 09-35242
Plaintiff - Appellant, D.C. No. 2:08-cv-00034-RAJ
v.
MEMORANDUM*
JEFFERSON PILOT FINANCIAL
INSURANCE COMPANY, formerly a
Nebraska Corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted April 7, 2010**
Seattle, Washington
Before: GOODWIN, HAWKINS and N.R. SMITH, 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).
The district court correctly applied the prudential exhaustion doctrine in
granting Jefferson Pilot’s motion for summary judgment. The facts of this case are
familiar to the parties and we need not recite them here.
ERISA does not explicitly require a participant to exhaust available internal
review before bringing a claim in federal court. See 29 U.S.C. § 1132; Vaught v.
Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 625–26 (9th Cir. 2008).
However, we “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, 546 F.3d at 626 (quoting Amato v.
Bernard, 618 F.2d 559, 568 (9th Cir. 1980)). It is undisputed that 1) the plans in
this case required two levels of internal administrative review and 2) Noren failed
to file a second appeal. Thus, absent an applicable exception, Jefferson Pilot’s
motion for summary judgment was properly granted under the prudential
exhaustion doctrine.
There are three exceptions to the prudential exhaustion doctrine: 1) futility;
2) inadequate remedy; and 3) unreasonable procedures. See Vaught, 546 F.3d at
626–27. None of these exceptions help Noren’s case.
Noren argues that, once her first appeal was rejected, 1) she did not know
what further information she could submit to influence Jefferson and 2) a second
2
appeal would thus have been futile. The claimant’s bare assertion that she does not
think her appeal will be successful does not demonstrate futility. See Diaz v.
United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1485 (9th
Cir. 1995) (rejecting a nearly identical argument).
Likewise, bare assertions are insufficient to establish the applicability of the
inadequate remedy exception. Rather, this exception applies when the procedure is
demonstrably inadequate or tainted by personal bias. See Amato, 618 F.2d at 569.
Noren’s only specific argument relating to inadequate procedure is that, because
the letter denying her appeal did not specifically state a second appeal was
required, the procedures for appeal were too vague and therefore inadequate. This
argument is without merit. The appeal procedure was fully contained in the plan
information, and no ERISA regulation requires that the appeals process also be
outlined in denial letters. See Diaz, 50 F.3d at 1484–85 (rejecting an argument that
a denial letter in English, which the claimant could not understand, was inadequate
when the claimant had a full copy of the applicable plan in Spanish).
We have also recognized that, under 29 C.F.R. § 2560.503-1(l), if a plan
fails to provide reasonable claims procedures, the claimant will be deemed to have
exhausted her required administrative appeals. Under this theory, Noren alleges
Jefferson violated ERISA requirements in a number of areas and, therefore, did not
3
provide or follow reasonable procedures. We need not determine if these
violations amount to unreasonable procedures. Noren may have raised some of
these violations before the district court, but she did not argue that the alleged
violations excused her from exhausting her administrative remedies under 29
C.F.R. § 2560.503-1(l). As it is presented for the first time on appeal, this
argument is waived. See Singleton v. Wulff, 428 U.S. 106, 120 (1976).
Accordingly, we AFFIRM the district court.
4
FILED
MAY 10 2010
Noren v. Jefferson Pilot Financial Insurance Company, No. 09-35242
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HAWKINS, Circuit Judge, dissenting:
The majority holds that although Noren raised possible ERISA violations
below, she did not raise the arguments explicitly as an excuse for exhausting her
administrative remedies. Noren’s response to Jefferson Pilot’s motion for summary
judgment described Jefferson’s alleged violations of ERISA procedures, see 29 C.F.R.
§ 2560.503-1(g)(1)(v)(A), (h)(2)(iii)-(iv), (i)(5), (j)(5)(i), (l), (m)(8), and then stated
as follows:
Jefferson Pilot’s procedural failures have prevented claimant from
understanding what the failures were in Plaintiff’s claim. Without
knowing the shortcomings of the material submitted on appeal, it was
useless to submit anything further, if indeed there was even anything
further to submit.
Noren has therefore preserved her claim that Jefferson Pilot’s ERISA violations
prevented her administrative exhaustion. See In re E.R. Fegert, Inc., 887 F.2d 955,
957 (9th Cir. 1989). Since the entirety of the district court’s analysis of whether
Noren was excused from exhaustion was to note that she was not “excused from doing
so,” I would remand for the district court to develop the record as to this claim and its
application to the ERISA regulations in the first instance.