McGowan v. New Orleans Employers International Longshoremen's Ass'n, AFL-CIO

Case: 13-30051 Document: 00512338134 Page: 1 Date Filed: 08/12/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 12, 2013

No. 13-30051 Lyle W. Cayce

Summary Calendar Clerk

TROY McGOWAN,

Plaintiff–Appellant

v.

NEW ORLEANS EMPLOYERS INTERNATIONAL LONGSHOREMEN’S

ASSOCIATION, AFL-CIO PENSION FUND,

Defendant–Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-cv-00990

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Troy McGowan filed suit against his pension plan following the

termination of his disability pension benefits. The district court granted

summary judgment in favor of the plan because McGowan failed to timely

exhaust his administrative remedies, as required by the plan. McGowan

*

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

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appealed on multiple grounds. For the reasons that follow, we affirm the

district court’s grant of summary judgment.

I. Factual and Procedural Background

Plaintiff–Appellant Troy McGowan (“McGowan”) worked as a

longshoreman covered by a plan of benefits (“the Plan”) administered by

Defendant–Appellee New Orleans Employers International Longshoremen’s

Association, AFL-CIO Pension Fund (“the Fund”). McGowan was injured while

winding up the landing gear on a container and subsequently qualified for

disability benefits under the Plan effective December 2003.

The parties do not dispute that the Plan is an employee pension benefit

plan as defined by the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1002(2)(A)(i). The Plan contains the following terms and

conditions that are relevant to McGowan’s claims:

• “Disability means a physical or mental condition that

permanently prevents an Employee from working in

Employment in the Industry.”

• “A Disability Pension . . . will terminate upon the happening

of any of the following . . . (ii) ceasing to be Disabled or

engaging in gainful employment other than for purposes of

rehabilitation on a nominal wage basis[.] . . . If Disability

Pension benefits are terminated, the Board will provide

written notice by first class mail or personal delivery to the

affected Qualified Pensioner, . . . setting forth the reasons for

termination and an explanation of the right to file a written

claim for review . . . .”

• “Within 180 days after receipt of an adverse benefit

determination . . . the claimant or his representative may

appeal the determination by making a written request for

review to the board[.]”

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• “If a timely written request for review is not made, the

initial decision on the claim will be final.”

• “[A]n initial decision on a claim under the Plan that is not

timely appealed[] will be conclusive, final and binding on all

persons.”

• “In no event may legal action be brought by or on behalf of

any individual to receive benefits under the Plan unless the

individual . . . has first fully complied with and timely

exhausted the Claims and Claims Review Procedures under

the Plan.”

On April 18, 2011, McGowan spoke with Thomas Daniel (“Daniel”), the

Plan’s Administrative Manager. During the course of this discussion, it was

suggested that McGowan may have returned to gainful employment and that

disability benefits would be terminated if that was the case. Two days later

McGowan received a letter notifying him that his benefits would be terminated

effective April 30, 2011, on the basis that McGowan had returned to work and

was thus no longer disabled. In addition to explaining the decision, the letter

included the following language regarding McGowan’s ability to contest the

determination: “Your post-appeal rights are set forth on pages 36-39 of the

enclosed Summary Plan Description booklet. Please note your right to pursue

legal action under Section 502(a) of ERISA. The limitation period is one (1)

year from today.” A booklet explaining the terms of the Plan accompanied the

letter. Pages 36–39 of the booklet contained language explaining that

McGowan had 180 days to file a written request for review.

McGowan concedes that he did not file a written appeal within 180 days

of the April 20, 2011 letter. He does claim, however, that he called Daniel “to

discuss the notice and [to] notif[y] him of his intent to appeal.” The Fund

received two letters thereafter. The first letter was sent on September 12, 2011

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by an attorney who claimed to be assisting McGowan in his attempt to return

to work as a longshoreman. Approximately ten months after receiving the

termination of benefits letter, on February 9, 2012, the Fund received a second

letter from a different attorney. The second letter requested a reevaluation of

McGowan’s eligibility for disability benefits.

On April 18, 2012, McGowan filed suit against the Fund, challenging the

termination of his disability benefits. While McGowan’s suit was pending, the

Fund held a hearing to evaluate the timeliness of McGowan’s appeal, as well

as the underlying issue of disability, in response to the February 9, 2012 letter.

On September 12, 2012, the Fund issued a final determination that denied

McGowan’s claims. Specifically, the Fund found that (1) “No written appeal

was filed by Mr. McGowan or his counsel within the 180-day period established

by the Plan[;]” (2) “The ‘appeal’ lodged by Mr. McGowan’s second counsel . . .

was clearly untimely[;]” and (3) “Even if the February 9, 2012 letter constituted

a timely appeal, the facts developed clearly confirm . . . that [McGowan] was

able to work as a longshoreman and that he had been working as a

longshoreman since 2009.” The district court granted summary judgment in

the Fund’s favor on October 15, 2012, holding that McGowan had failed to

timely exhaust his administrative remedies. McGowan appealed.

II. Jurisdiction and Standard of Review

This Court has jurisdiction pursuant to 28 U.S.C. § 1291, because

McGowan appeals the district court’s final judgment. On appeal, this Court

reviews a district court’s grant of summary judgment de novo, applying the

same standards as the district court. Greater Hous. Small Taxicab Co. Owners

Ass’n v. City of Hous., 660 F.3d 235, 238 (5th Cir. 2011). Summary judgment

is warranted when the movant shows that there is no genuine dispute over any

material fact and that the movant is entitled to judgment as a matter of law.

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Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the evidence

is such that a reasonable jury could find for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is not enough to simply claim

a fact is disputed; such an assertion must be supported by argumentation and

citations to the record. Fed. R. Civ. P. 56(c)(1)(A)–(B).

III. Analysis

A. Sufficiency of the Termination Notice

McGowan argues that the 180-day period did not begin to run when he

received the termination letter because the termination letter did not

substantially comply with the requirements of 29 U.S.C. § 1133 and 29 C.F.R.

§ 2560.503-1, which govern the content of ERISA notices. The Fund was

required to provide McGowan with “[a] description of the plan’s review

procedures and the time limits applicable to such procedures, including a

statement of the claimant’s right to bring a civil action under section 502(a) of

[ERISA] following an adverse benefit determination on review.” 29 C.F.R.

§ 2560.503-1(g)(1)(iv). Strict compliance with ERISA is not necessary, however.

Fifth Circuit precedent makes clear that substantial compliance will suffice to

trigger the running of the administrative appeal period. Lacy v. Fulbright &

Jaworski, 405 F.3d 254, 257 (5th Cir. 2005).

The termination letter that McGowan received included a copy of the

Plan and stated that McGowan’s “post-appeal rights are set forth on pages 36-

39 of the enclosed Summary Plan Description booklet.” Pages 36–39 of the

booklet describe the Plan’s claim procedures, inform beneficiaries of their right

to seek review of the adverse determination, and specifically state a 180-day

limit for submitting a written request for review. The termination letter

further notified McGowan of his right to file suit under ERISA. The content of

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the termination letter thus substantially complied with § 2560.503-1(g)(1)(iv).

While the letter itself did not explicitly state that McGowan had 180 days to

file a written appeal, it incorporated that information by specifically

identifying the pages on which the 180-day rule was located. Moreover, a copy

of the benefit booklet was included with the letter. Because the termination

letter also mentioned McGowan’s right to file suit under § 502(a) of ERISA, as

well as the one-year time limit, the district court correctly found that the

termination letter substantially complied with § 2560.503-1(g)(1)(iv).

Therefore, the 180-day period began to run when McGowan received the

termination letter.

B. Timely Exhaustion of Administrative Remedies

Because the termination letter substantially complied with the relevant

regulation, McGowan had 180 days from receipt of the letter to file a written

request for review. As the Plan clearly states, a determination “that is not

timely appealed[] will be conclusive, final and binding on all persons.” In order

to challenge the Fund’s determination in court, McGowan must show that he

timely exhausted the administrative remedies available.

McGowan concedes that he did not file a written request for review

within the 180-day period provided by the Plan. He claims instead that he

orally notified Daniel of his intent to appeal the termination in a phone call

that took place a few days after he received the letter. As the Plan makes

abundantly clear, however, oral notification does not suffice. Beneficiaries

seeking review of a determination must make “a written request for review to

the Board” within 180 days of receiving the adverse benefit determination.

Since McGowan failed to do so, his termination of benefits became final and

binding.

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In an attempt to salvage his claim, McGowan contends that the hearing

held in 2012, prior to the district court’s summary judgment determination,

remedied his failure to timely exhaust administrative remedies because the

merits of his claim were considered. McGowan, however, provides no

argumentation or authority in support of this proposition. Furthermore, the

Fund’s decision to evaluate the timeliness of McGowan’s appeal at a hearing

where McGowan’s employment history was also discussed does not remedy

McGowan’s failure to exhaust. The hearing was held in response to McGowan’s

February 9, 2012 letter, a written request for review that was submitted ten

months after McGowan received the termination letter; and the primary

purpose of the hearing was to evaluate the timeliness of McGowan’s appeal. As

the Fund stated in its final determination: “No written appeal was filed by Mr.

McGowan or his counsel within the 180-day period established by the plan.”

McGowan thus did not appeal the termination of benefits within the time

allotted; the subsequent hearing did not remedy McGowan’s default.

Therefore, we affirm the district court’s grant of summary judgment for failure

to timely exhaust administrative remedies.

C. Daniel’s Authority as Administrator

McGowan’s last argument alleges that an ambiguity exists as to whether

Daniel, the Plan’s Administrative Manager, was acting within the scope of his

authority when he determined that McGowan’s disability benefits should be

terminated. McGowan raises this argument in order to void the termination

of his disability benefits. We do not reach this issue, however, because

McGowan is foreclosed from challenging the termination because he did not

timely exhaust his administrative remedies, as explained above. See Coop.

Benefit Adm’rs, Inc. v. Ogden, 367 F.3d 323, 336 (5th Cir. 2004) (denying a claim

for benefits when the pensioner failed to timely exhaust available

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administrative remedies); Bourgeois v. Pension Plan for the Emps. of Santa Fe

Int’l Corps., 215 F.3d 475, 479 (5th Cir. 2000) (“This court requires that

claimants seeking benefits from an ERISA plan must first exhaust available

administrative remedies under the plan before bringing suit to recover

benefits.”). McGowan could have challenged Daniel’s authority as part of the

administrative review procedure. Having failed to timely pursue

administrative review, McGowan is barred from raising this claim.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment for the Fund.

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