Kevin McCay v. Drummond Company, Inc. ( 2013 )


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  •            Case: 12-12149   Date Filed: 02/20/2013   Page: 1 of 12
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-12149
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:08-cv-01978-VEH
    KEVIN MCCAY,
    Plaintiff - Appellant,
    versus
    DRUMMOND COMPANY, INC.,
    Defendant - Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (February 20, 2013)
    Before MARCUS, MARTIN and FAY, Circuit Judges.
    PER CURIAM:
    Case: 12-12149     Date Filed: 02/20/2013   Page: 2 of 12
    Plaintiff-Appellant Kevin McCay appeals from the district court’s order
    granting summary judgment in favor of his former employer, Drummond
    Company, Inc. In his complaint, which Drummond had removed to federal court
    pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
    U.S.C. § 1132(a)(1)(B), McCay challenged Drummond’s denial of his application
    for a disability retirement pension, alleging that he subsequently received a
    favorable award of Social Security benefits, and that Drummond was under a
    continuing duty to consider this new evidence of disability. The first time this case
    was before the district court, the court, in its discretion, granted McCay’s Motion
    to Remand to the Plan Administrator, so that McCay could present to the Pension
    Committee additional evidence in support of his disability claim. After
    Drummond’s Pension Committee upheld its previous denial on remand, the district
    court granted McCay’s Motion to Reinstate Claim and reopened the case. This
    time, the district court granted Drummond’s Motion for Summary Judgment for
    two independent reasons -- because McCay had failed to exhaust administrative
    remedies, and because Drummond’s denial of McCay’s benefits was reasonable.
    On appeal, McCay argues that: (1) the District Court erred in concluding that
    McCay’s claim for disability pension benefits was barred based upon his failure to
    exhaust his administrative remedies; and (2) the District Court erred in upholding
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    the Pension Committee’s decision that McCay was not disabled under the Pension
    Plan. After thorough review, we affirm.
    “The decision of a district court to apply or not apply the exhaustion of
    administrative remedies requirement for ERISA claims is a highly discretionary
    decision which we review only for a clear abuse of discretion.”           Perrino v.
    BellSouth, 
    209 F.3d 1309
    , 1315 (11th Cir. 2000). Where, as here, an ERISA plan
    endows the plan administrator with discretion to determine eligibility for plan
    benefits, we review the administrator’s decision under a deferential standard.
    Firestone Tire & Rubber Co. v. Bruch, 
    489 U.S. 101
    , 111 (1989).
    The ERISA statute mandates that employee benefit plans subject to its
    coverage “shall . . . afford a reasonable opportunity to any participant whose claim
    for benefits has been denied for a full and fair review by the appropriate named
    fiduciary of the decision denying the claim.” 29 U.S.C. § 1133(2). We generally
    require exhaustion of administrative remedies as a precondition to filing an ERISA
    action. See 
    Perrino, 209 F.3d at 1315
    (quoting Counts v. Amer. Gen. Life &
    Accident Ins. Co., 
    111 F.3d 105
    , 108 (11th Cir. 1997)); Mason v. Continental
    Group, Inc., 
    763 F.2d 1219
    , 1225-27 (11th Cir. 1985) (“[T]he district court did not
    err in holding that plaintiffs must exhaust their remedies under the pension plan
    agreement before they may bring their ERISA claims in federal court.”).
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    However, we recognize an exception to the exhaustion requirement where
    “resort to the administrative route is futile or the remedy inadequate.” Curry v.
    Contract Fabricators, Inc. Profit Sharing Plan, 
    891 F.2d 842
    , 846 (11th Cir. 1990)
    (quotation omitted), abrogated on other grounds by Murphy v. Reliance Standard
    Life Ins. Co., 
    247 F.3d 1313
    , 1314 (11th Cir. 2001). We have found another
    exception to exhaustion when the plaintiff’s failure to exhaust administrative
    remedies resulted from certain language in the plan’s summary description that the
    plaintiff “reasonably interpreted as meaning that she could go straight to court with
    her claim.” Watts v. BellSouth Telecomm., Inc., 
    316 F.3d 1203
    , 1204 (11th Cir.
    2003). Where a valid exception applies, the district court has wide discretion to
    excuse the exhaustion requirement. 
    Perrino, 209 F.3d at 1315
    .
    We have expressed a disinclination toward expansion of the exceptions to
    exhaustion. In Perrino, for example, we rejected a proposed “new exception to our
    exhaustion requirement; namely, that an employer’s noncompliance with ERISA’s
    technical requirements (for example, creating a summary plan description, or
    delineating a formal claims procedure) should excuse a plaintiff’s duty to exhaust
    administrative remedies.”     
    Id. at 1316. In
    declining to further expand the
    exceptions to ERISA exhaustion, we said:
    This approach conforms with the logic of our exhaustion doctrine in which
    we apply the exhaustion requirement strictly and recognize narrow
    exceptions only based on exceptional circumstances. Our exceptions to this
    doctrine where resort to an administrative scheme is unavailable or would be
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    “futile,” or where the remedy would be “inadequate” simply recognize that
    there are situations where an ERISA claim cannot be redressed effectively
    through an administrative scheme. In these circumstances, requiring a
    plaintiff to exhaust an administrative scheme would be an empty exercise in
    legal formalism. That said, it makes little sense to excuse plaintiffs from the
    exhaustion requirement where an employer is technically noncompliant with
    ERISA’s procedural requirements but, as the district court determined in this
    case, the plaintiffs still had a fair and reasonable opportunity to pursue a
    claim through an administrative scheme prior to filing suit in federal court.
    Therefore, if a reasonable administrative scheme is available to a plaintiff
    and offers the potential for an adequate legal remedy, then a plaintiff must
    first exhaust the administrative scheme before filing a federal suit.
    
    Id. at 1318 (citations
    omitted).
    To begin with, McCay, who appealed Drummond’s benefits decision
    nineteen months after it was issued, concedes his failure to exhaust his
    administrative remedies in this case by admitting his failure to appeal Drummond’s
    initial denial of pension benefits within the set 180-day time frame. Instead,
    McCay suggests that he should be excused from the exhaustion requirement
    altogether. We conclude that the district court did not abuse its discretion in
    determining that none of the existing exceptions apply to McCay’s case.
    First, McCay argues that deficiencies contained in Drummond’s notice of
    denial of benefits excused McCay’s failure to appeal within the designated 180-day
    time period. Specifically, he says that the denial notice failed to include “what
    evidence was needed to obtain a favorable decision.” Yet as the record shows, the
    notice communicated to McCay that he needed to show that he was totally
    disabled, and that his treating physicians said that he was not. It further explained
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    that he could submit “written comments, documents, records, and other
    information relating to [his] claim.”            Moreover, even if this notice weren’t
    sufficient, the type of “noncompliance with ERISA’s technical requirements” that
    McCay alleges is of the type that Perrino concluded was insufficient to excuse
    ERISA’s administrative exhaustion requirement. 
    Id. at 1317 (“[T]he
    exhaustion
    requirement for ERISA claims should not be excused for technical violations of
    ERISA regulations that do not deny plaintiffs meaningful access to an
    administrative remedy procedure through which they may receive an adequate
    remedy.”). 1 Thus, we cannot say that the district court abused its discretion in
    refusing to find that any deficiencies in the notice excused McCay from appealing
    in timely fashion.
    We are also unpersuaded by McCay’s claim that depression interfered with
    his ability to timely appeal Drummond’s denial of his disability pension
    application. For starters, McCay does not cite to any Eleventh Circuit case in
    which ERISA exhaustion requirements were excused based on a theory of mental
    incapacity. The only binding case law he cites to is Branch v. Bernd Company,
    1
    As for McCay’s claim that Perrino has been superseded by new administrative regulations,
    there is no Eleventh Circuit case law to this effect. Furthermore, the “new” administrative
    regulations allow a claimant to avoid exhaustion if “the plan has failed to provide a reasonable
    claims procedure that would yield a decision on the merits of the claim.” 29 C.F.R. § 2560.503-
    1(l). But, we cannot say that the notice failed to provide a “reasonable claims procedure” in this
    case since, as the record shows, McCay eventually was able to follow the appeals procedures,
    albeit thirteen months after the deadline to appeal had run. See Tindell v. Tree of Life, 672 F.
    Supp. 2d 1300, 1312 (M.D. Fla. 2009).
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    955 F.2d 1574
    , 1582 (11th Cir. 1992), in which we allowed equitable tolling of the
    sixty-day election period for continued health coverage under a different federal
    statute, the Consolidated Omnibus Budget Reconciliation Act, because the
    beneficiary died during the election period. There is no discussion of mental
    incapacity or the standard of proof necessary to establish such a claim.
    But, if we were to accept McCay’s argument -- that equitable tolling applies
    here -- McCay would bear the heavy burden, under the equitable tolling doctrine,
    of showing that “extraordinary circumstances exist[ed]” to prevent him from
    appealing on time. Arce v. Garcia, 
    434 F.3d 1254
    , 1261 (11th Cir. 2006). As the
    district court found, McCay failed to do so. Among other things, the district court
    noted an irreconcilable tension between the pre-litigation position advocated by
    McCay’s attorney -- informing Drummond by letter dated March 10, 2008, letter
    that “Mr. McCay delayed filing an appeal of the disability pension because he was
    waiting on the Social Security decision” -- and his post-litigation position that the
    delay was based on his depression.       The court also observed an unexplained
    discrepancy in the time frame within which McCay asserts that he was unable to
    pursue Drummond’s appeals process due to depression, which is the same general
    time frame within which McCay apparently hired an attorney and successfully
    appealed his unfavorable Social Security benefits determination.           See, e.g.,
    Barnhart v. United States, 
    884 F.2d 295
    , 299 (7th Cir. 1989) (rejecting equitable
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    tolling argument in holding plaintiff was sufficiently aware to pursue a lawsuit
    against a different party related to his injury and, therefore, his participation in
    other proceedings put to rest any argument that he was legally incapable of
    proceeding with his lawsuit). In short, the district court did not abuse its discretion
    in rejecting McCay’s argument that he was mentally incapable of pursuing his
    appeal.
    Next, McCay urges us to excuse the exhaustion requirement based on
    futility. We have said that the futility exception does not apply simply because the
    same parties who made the initial benefits determination were also the decision
    makers in the administrative appeal process. Lanfear v. Home Depot, Inc., 
    536 F.3d 1217
    , 1224 (11th Cir. 2008).          Rather, “the futility exception protects
    participants who are denied meaningful access to administrative procedures, not
    those whose claims would be heard by an interested party.” 
    Id. For instance, in
    Curry, we found that the futility exception applied where the plan administrators
    had denied a participant meaningful access to administrative proceedings by
    repeatedly ignoring requests for documents supporting the denial of 
    benefits. 891 F.2d at 846
    . Conversely, in Springer v. Wal-Mart Assoc. Group Health Plan, 
    908 F.2d 897
    (11th Cir. 1990), we reversed the district court’s application of the futility
    exception where the plan participant invoked the exception on the basis that the
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    initial internal decision maker and the decision maker on appeal shared “an interest
    in holding costs down.” 
    Id. at 901 (quotation
    omitted).
    In arguing futility to us, McCay merely makes vague claims that the appeal
    would have been futile because “Drummond was determined to cling to its position
    that McCay’s appeal was too late and Dr. Romeo’s opinion was enough reasonable
    cause to support a denial of benefits.” McCay has provided no evidence that
    Drummond’s Pension Committee exercised any control to deny McCay a
    meaningful review of his claim denial. Therefore, the district court did not abuse
    its discretion in failing to find futility.
    Finally, we find no merit to McCay’s argument that he has an unlimited
    right to submit additional evidence of disability. He relies on Kappos v. Hyatt, 
    132 S. Ct. 1690
    (2012), which allowed for the submission of new evidence to the
    district court under Section 145 of the Patent Act of 1952. However, Kappos does
    not apply here. Most notably, the Supreme Court expressly limited its holding to
    the confines of a limited circumstance: “we are concerned only with § 145
    proceedings in which new evidence has been presented to the District Court. . . .”
    
    Id. at 1699. The
    Supreme Court also noted that the review standard for Section
    145 is entirely different from an action under Section 146 of the same Act.
    Further, there is no “broad brush” language in the opinion that would support
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    McCay’s conclusory assertion that the right to submit additional evidence in an
    ERISA disability determination, nor that the right goes on for forever.
    McCay also cites to Shannon v. Jack Eckerd Corp., 
    113 F.3d 208
    (11th Cir.
    1997), to support his assertion that a Plan Administrator has a continuing duty to
    consider any new evidence of disability that a plaintiff might be able to gather.
    McCay claims there is a continuing duty, regardless of whether the final
    determination has been reached on his claim, regardless of whether the plaintiff
    made an effort to exhaust the administrative remedies available to him, and
    regardless of whether the plaintiff is even employed or still a participant in the
    Plan. We have long said, however, that a “district court should limit its review to
    consideration of the material available to [a decision- maker] at the time it made its
    decision.” Jett v. Blue Cross & Blue Shield of Ala., 
    890 F.2d 1137
    (11th Cir.
    1989); see also Levinson v. Reliance Standard Life Ins. Co., 
    245 F.3d 1321
    , 1328
    (11th Cir. 2001) (when a plan grants its administrator discretionary authority to
    interpret it the parties may not generally introduce new evidence of disability in the
    district court, so that the case must be decided on the administrative record).
    Furthermore, Shannon is distinguishable. There, the decision to remand the
    case to the Plan Administrator for consideration of additional evidence was made
    only after we concluded that the Plan Administrator’s initial determination was
    arbitrary and capricious. Thus, in Levinson, we explained:
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    [T]he facts in Shannon are distinguishable from the facts in the instant case.
    In Shannon, the plan administrator relied only upon a conclusory
    recommendation of denial from its medical consultant and the denials of
    other insurance companies in deciding that a pancreas transplant was
    investigational. The district court ruled that the decision was arbitrary and
    capricious and ordered a remand so the plan administrator could consider
    additional evidence that the beneficiary wanted to present. See 
    id. In Levinson’s case,
    Reliance -- not the beneficiary -- wanted a remand to
    consider evidence that would tend to show Levinson was not disabled.
    We find persuasive the Eighth Circuit’s reasoning in Davidson v. Prudential
    Ins. Co. of America, 
    953 F.2d 1093
    (8th Cir. 1992). In that case, Davidson
    contended that the district court erred in refusing to remand the case to the
    plan administrator to consider a vocational report and a psychiatrist’s report
    prepared after litigation had commenced. See 
    id. at 1095. The
    district court
    refused to remand, because “if Davidson believed the evidence he now
    offers was necessary for Prudential to make a proper benefits determination,
    Davidson should have obtained this evidence and submitted it to Prudential.”
    
    Id. We find that
    this reasoning should apply with equal force to the
    insurance company as to the beneficiary. Reliance had more than adequate
    opportunities to establish an administrative record containing evidence
    contradicting Levinson’s evidence pointing to disability on two occasions:
    when it first considered Levinson’s claim and upon Levinson’s
    administrative appeal. Reliance did not do this. It was not until after
    litigation commenced that Reliance obtained evidence contradicting
    Levinson’s evidence that he was disabled under the policy. Therefore, the
    district court’s refusal to remand the issue of Levinson’s eligibility for
    benefits to Reliance should be upheld.
    
    Levinson, 245 F.3d at 1328
    .
    Here, the evidence McCay seeks to submit was obtained not only post-
    litigation but post-remand.    The district court found no indication that the
    information obtained post-remand could not have been obtained and submitted
    earlier, and McCay has not shown us otherwise. We, therefore, again conclude
    that the district court did not abuse its discretion in rejecting McCay’s argument
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    that he had “the right to submit new evidence in support of a failed disability
    application . . . [in]to infinity.” As a result, the district court did not abuse its
    discretion in concluding that the exhaustion doctrine barred review of McCay’s
    disability determination, and we need not address his argument on the merits.
    AFFIRMED.
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