IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 3, 2009
No. 09-20159 Charles R. Fulbruge III
Clerk
DEBRA SWANSON,
Plaintiff - Appellant
v.
HEARST CORPORATION LONG TERM DISABILITY PLAN,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:
Appellant Debra Swanson challenges the district court’s grant of summary
judgment to Appellee Hearst Corp. Long Term Disability Plan (“the Plan”), on
the grounds that Swanson failed to exhaust administrative remedies prior to
bringing suit. We AFFIRM.
Through her employment with the Houston Chronicle, Appellant Swanson
obtained coverage under a long-term disability benefits policy underwritten and
administered by Hartford Life Insurance Co. (“Hartford”). The policy falls
within the Plan, which is governed by the Employee Retirement Income Security
Act (ERISA), 29 U.S.C. §§ 1001–1461. Swanson received benefits under the
policy beginning in January 2002, but on April 4, 2003, Hartford notified her
No. 09-20159
that benefits would terminate because she was cleared to return to work on a
full-time basis. The terms of the Plan allowed Swanson 180 days to appeal this
determination, after which Hartford would have forty-five days—or ninety days
in certain circumstances—to rule on the appeal.
On August 25, 2003, 144 days later, Swanson’s counsel submitted a letter
to Hartford. It indicated that counsel represented Swanson “in her efforts to
reinstate her unlawfully terminated disability and health insurance benefits.”
It further indicated:
Please accept this letter as notice of Debra Swanson’s intention to
appeal your decision terminating her benefits under the above
referenced policy. Once we have had adequate time to review and
supplement the record, we will notify you in writing to proceed with
Debra Swanson’s administrative appeal under the terms of the
Plan.
The letter requested various documents from the Plan, and asked Hartford to
provide counsel with notice of further deadlines.
Hartford did not consider this to be an appeal. Hartford personnel
recorded receipt of the letter in Swanson’s file, and added the following entry to
the file: “Intent to appeal letter rec’d not an appeal – will send out acknow.
letter.” Hartford forwarded the file, including this entry, to Swanson’s counsel.
When the 180-day deadline passed, and Hartford concluded no appeal had been
received, Hartford closed Swanson’s file.
Three and a half years later, on February 23, 2007, the same counsel for
Swanson submitted to Hartford what she now describes as “her brief with
accompanying evidence, including medical records and a vocational expert’s
report.” The cover letter stated that “[t]his firm represents Deborah [sic] C.
Swanson in her ongoing appeal of the Hartford Life Insurance Company’s
unlawful decision . . . to close Ms. Swanson’s claim for continued long-term
disability (“LTD”) benefits.” Hartford did not treat this as an appeal or rule on
2
No. 09-20159
its merits. Rather, on April 21, 2007, Hartford wrote Swanson, rejecting the new
submission as an appeal filed after the 180-day deadline.
Swanson then filed suit in the district court, which granted the Plan’s
motion for summary judgment. Swanson v. Hearst Corp. Long Term Disability
Plan, No. H-08-213, 2009 WL 361469 (S.D. Tex. Feb. 11, 2009). The district
court held that Swanson’s August 25, 2003 letter merely expressed an intention
to appeal in the future, but did not constitute an appeal, and that Swanson’s
failure to file an actual appeal before the 180-day deadline amounted to a failure
to exhaust administrative remedies prior to bringing suit. Id. at *4–5. In the
alternative, the court held that if the August 25, 2003 letter was an appeal, then
the statute of limitations for Swanson’s 2007 suit began running at the latest
when Hartford failed to rule on the appeal within ninety days, and that
Swanson’s suit was time-barred when she filed it more than four years later. Id.
at *5 n.13. The court also rejected Swanson’s argument that the Plan should be
estopped from asserting failure to exhaust administrative remedies. Id. at *6 &
n.15.
This Court reviews summary judgments de novo in ERISA cases, applying
the same standards as the district court. Peace v. Am. Gen. Life Ins. Co., 462
F.3d 437, 439 (5th Cir. 2006). Summary judgment is proper if there is no
genuine issue of material fact and the movant is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c). “We resolve doubts in favor of the
nonmoving party and make all reasonable inferences in favor of that party.”
Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir. 2006). No genuine issue
of material fact exists if the evidence is such that no reasonable juror could find
for the nonmovant. Wheeler v. BL Dev. Corp., 415 F.3d 399, 402 (5th Cir. 2005).
As Swanson concedes, exhaustion of administrative remedies is a
prerequisite to an ERISA action in federal court. See Bourgeois v. Pension Plan
3
No. 09-20159
for the Employees of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir. 2000).1
There is likewise no dispute that in order to exhaust remedies, Swanson needed
to appeal the termination of benefits within 180 days of April 4, 2003.
Swanson challenges the district court’s exhaustion ruling based on the
assertion that she indeed filed her appeal within 180 days. She argues that she
“preserved her right to appeal by sending a letter on August 25, 2003 to Hartford
as notice of her appeal well within the 180 day time limit,” and that “Hartford
was required to issue its decision in writing 45 days after it received the written
request.” We agree with the district court that this argument fails. Swanson’s
August 25 letter was not an appeal; it merely expressed an “intention to appeal.”
Cf. Holmes v. Proctor & Gamble Disability Benefit Plan, No. 06-30956, 228 F.
App’x 377, 379 (5th Cir. 2007) (unpublished) (holding, in the context of
materially similar ERISA appeal procedures, that the plaintiff “did not
substantially comply with the Plan’s appeal procedures [because he] stated only
his intent to appeal the Plan’s decision at some time in the future.”).2 Swanson’s
letter included no factual or substantive arguments, and no evidence. There was
accordingly nothing for Hartford to consider on appeal, and no basis to require
Hartford to “issue its decision in writing 45 days after it received the written
request,” as Swanson proposes. The appropriate materials making Swanson’s
case—her actual appeal—did not arrive until more than three years later.
Swanson also fails to persuade us of any error in the district court’s
conclusion that Hartford was not estopped from invoking failure to exhaust
administrative remedies as an affirmative defense. In Bourgeois, we held that
1
We have recognized a futility exception to the exhaustion requirement, see Bourgeois,
215 F.3d at 479, which Swanson invokes in passing. But there is no indication in the record
that Hartford would not have properly considered Swanson’s arguments and evidence if she
had submitted them within the 180-day period. As discussed below, she did not.
2
Although Holmes is not precedential, we consider its analysis of the point in question
to be persuasive.
4
No. 09-20159
an ERISA plan was estopped from enforcing the exhaustion requirement, where
“various officials of the company led Bourgeois on a wild goose chase, effectively
extinguishing his time to apply for benefits.” 215 F.3d at 481. Citing that case,
Swanson argues that Hartford should be estopped from asserting the exhaustion
defense because “no decision was ever issued, in writing or otherwise,” in
response to her August 25, 2003 letter or the February 23, 2007 filing, and
because Hartford did not formally state its position that her initial letter was
inadequate until after the deadline had passed. We ascribe no fault to Hartford
for failing to rule on the merits of the appeal, because we have affirmed the
district court’s conclusion that there was no valid appeal on which to rule. As
to the amount of notice Swanson received, she does not dispute that Hartford
notified her of the Plan’s 180-day appeal deadline at the outset, or that Hartford
forwarded her file to counsel within that time period, including notations
indicating that Hartford did not consider the August 25, 2003 letter to be an
appeal. Swanson cites no provision of the Plan or any other source of law that
would obligate Hartford to send further notices or reminders before concluding
that Swanson failed to timely appeal. Her circumstances are certainly unlike
those in Bourgeois, where the ERISA plan affirmatively misled the applicant.
See 215 F.3d at 481.
Because we have rejected Swanson’s challenge to the district court’s ruling
that Hartford was entitled to an affirmative defense of failure to exhaust
administrative remedies, it is not necessary for us to consider the district court’s
alternative ground for summary judgment based on the statute of limitations.
The ruling of the district court is AFFIRMED.
5