IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30341

JAMES L. MOSS, 

 Plaintiff - Appellant

v.

UNUM GROUP; PAUL REVERE LIFE INSURANCE COMPANY; NEW 

YORK LIFE INSURANCE COMPANY, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:13-CV-3152

Before STEWART, Chief Judge, and REAVLEY and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant James L. Moss alleges that Defendants-Appellees 

(collectively “Unum”) unlawfully denied his claim for total disability benefits 

under two insurance policies governed by the Employment Retirement Income 

Security Act of 1974 (“ERISA”). The district court dismissed Moss’s claims with 

prejudice for failure to exhaust administrative remedies. We affirm.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 3, 2016

Lyle W. Cayce

Clerk

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I.

Unum issued two disability insurance policies to Moss, a urologist. Moss 

suffers from osteoarthritis. He alleges that his condition prevents him from 

performing urological surgery.

Moss filed a claim with Unum for total disability benefits under the 

policies. Unum denied the claim on June 5, 2009. Unum’s denial letter notified 

Moss that, if he wanted to appeal Unum’s denial of his claim, he was required 

to submit a written appeal within 180 days.

On June 30, 2009, Moss’s attorney called an Unum representative and 

verbally informed him that he disagreed with Unum’s decision. Then, on July 

16, 2009, Moss’s attorney mailed copies of Moss’s paychecks to Unum.

However, Moss did not file a formal written appeal.

On December 10, 2009, Unum sent Moss another letter reiterating its 

denial of his claim for benefits. The December 10, 2009 denial letter again 

informed Moss that he had 180 days to file a written administrative appeal.

Moss never filed an administrative appeal. Instead, Moss filed a lawsuit 

against Unum, in which he argued that attempting to exhaust his 

administrative remedies would be futile. The district court rejected Moss’s 

futility argument and dismissed the case without prejudice.

On April 16, 2013, after the district court dismissed his first suit, Moss 

asked Unum to allow him to file an administrative appeal. Unum responded 

that it was unable to review the claim because Moss submitted his appeal 

request far beyond the 180-day deadline.

Moss filed a second suit against Unum on October 21, 2013. The district 

court ruled that Moss had failed to exhaust his administrative remedies by 

failing to file a timely administrative appeal. Because Moss failed to 

demonstrate that he would be able to timely exhaust his administrative 

remedies in the future, the district court dismissed the case with prejudice.

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Moss now appeals the district court’s order dismissing his second suit 

against Unum.

II.

This appeal presents only legal questions, so our standard of review is 

de novo.1

III.

Moss’s disability insurance policies are governed by ERISA. ERISA 

authorizes a civil action by a participant “to recover benefits due to him under 

the terms of his plan.”2 However, “claimants seeking benefits from an ERISA 

plan must first exhaust available administrative remedies under the plan 

before bringing suit to recover benefits.”3 This includes, inter alia, filing a 

timely administrative appeal.4

Moss did not file a timely administrative appeal. Thus, the district court 

properly dismissed the case.

IV.

Moss nonetheless argues that we should excuse his failure to appeal. As 

we explain below, none of Moss’s arguments have merit.

 

1 Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir. 1994).

2 29 U.S.C. § 1132(a)(1)(B).

3 Bourgeois v. Pension Plan for Emps. of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th 

Cir. 2000) (citing Denton v. First Int’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985)).

“This court has recognized an exception to the affirmative defense of failure to exhaust 

administrative remedies when such attempts would be futile.” Id. (citing Hall v. Nat’l 

Gypsum Co., 105 F.3d 225, 232 (5th Cir. 1997)). Moss argued in his first case against Unum 

that exhaustion would be futile, but the district court rejected that argument. Moss does not 

pursue his futility argument in the instant case, nor could he.

4 See Lacy v. Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir. 2005).

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A.

Moss first relies on the following statement from Unum’s December 10, 

2009 denial letter: “Unless there are special circumstances, the administrative 

appeal process must be completed before you begin any legal action regarding 

your claim.” Moss claims that Unum’s alleged bad faith in denying his claim 

for disability benefits constitutes a “special circumstance” that excuses him 

from his obligation to file an administrative appeal.

Because Unum’s denial letter does not define the term “special 

circumstances,” Moss analogizes to the principle that courts should construe

ambiguous provisions in insurance contracts in the insured’s favor and against 

the drafter.5 According to Moss, “[c]onstruing this ambiguous term in favor of 

Dr. Moss requires findings [sic] that a ‘special circumstance’ did exist when 

Defendants-Appellees acted in bad faith, and, therefore, Dr. Moss had 

exhausted his administrative remedies.”

We doubt that a denial letter is analogous to an insurance contract that 

must be construed in Moss’s favor. But even if that were so, Moss’s 

interpretation of “special circumstances” is meritless. As the district court 

correctly reasoned, if a claimant could avoid the exhaustion requirement 

simply by alleging in his complaint that the plan administrator denied his 

claim in bad faith, then no claimant would ever be required to exhaust 

administrative remedies before filing suit. Interpreting “special 

circumstances” as Moss proposes would render the administrative appeal 

requirement completely toothless. An exception to the appeal requirement that 

is potentially available to every claimant is hardly a “special” circumstance.

 

5 See Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 562 (5th Cir. 2013).

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Because Moss’s interpretation of “special circumstances” is implausible, 

we hold that Moss was indeed required to file a written administrative appeal 

within 180 days.

B.

Moss next argues that even though he did not file a formal written 

appeal, he “effectively exhausted” his administrative remedies by taking

informal actions that fulfilled “the underlying purpose of the exhaustion 

requirement.” According to Moss, it is sufficient that he telephonically 

informed Unum that he disagreed with its decision and mailed Unum copies of 

his paychecks. Thus, claims Moss, “in substance, Dr. Moss did appeal [Unum]’s 

denial of benefits.”

This argument is also meritless. “[A]llowing informal attempts to 

substitute for the formal claims procedure would frustrate the primary 

purposes of the exhaustion requirement.”6 Unum clearly informed Moss that, 

if he “want[ed] to appeal [its] claim decision,” he was required to submit “a 

written appeal.” He nonetheless failed to file one. He has therefore failed to 

exhaust his administrative remedies.7

 

6 Bourgeois, 215 F.3d at 480 n.14. 7 Moss cites two district court cases, Stormont-Vail Regional Medical Center v. Kansas 

Building Trades Open-End Health & Welfare Fund Uninsured Benefit Plan, CIV. A. No. 88-

4146, 1990 WL 11377, at *3 (D. Kan. Jan. 8, 1990) and Keel v. Group Hospitalization Medical 

Services, Inc., 695 F. Supp. 223, 227-28 (E.D. Va. 1988), for the proposition that a claimant 

need not file a formal appeal if he takes informal actions that “are the functional equivalent 

of the appeals process.” We do not read Stormont-Vail or Keel to stand for such a broad 

proposition. In any event, we are bound by our published opinion in Bourgeois, which states 

that “allowing informal attempts to substitute for the formal claims procedure would 

frustrate the primary purposes of the exhaustion requirement.” 215 F.3d at 480 n.14.

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C.

Moss’s final argument is based on Louisiana Civil Code art. 3462, which 

provides that “[p]rescription is interrupted when the owner commences action 

against the possessor, or when the obligee commences action against the 

obligor, in a court of competent jurisdiction and venue.” Moss argues that, by 

filing his first suit against Unum on December 3, 2009, he tolled the 180-day 

deadline for filing an administrative appeal. He asserts that “[t]he 180-day 

‘statute of limitations’ began to run again on March 14, 2013, when the District 

Court dismissed Dr. Moss’s lawsuit without prejudice.” Because Moss 

requested an administrative appeal 33 days after the district court dismissed 

his first suit, he claims that he timely filed an appeal and thereby exhausted 

his administrative remedies.

Moss’s tolling argument is meritless. ERISA requires the claimant to 

exhaust his administrative remedies within the time period specified in the 

plan, which in this case was 180 days after denial. Moss offers no persuasive 

reason why the Louisiana Civil Code would govern this purely federal ERISA 

suit.8 In any event, at least one other court in this Circuit has rejected an 

identical tolling argument, and we find that court’s reasoning persuasive.9

 

8 Moss cites Swanson v. Hearst Corp. Long Term Disability Plan, 586 F.3d 1016 (5th 

Cir. 2009) for the proposition that an ERISA plan’s internal appeal deadlines are to be 

followed “just as any statute of limitations,” but that language does not appear anywhere in 

Swanson. Swanson does not stand for the proposition that state statutes of limitation apply 

in federal ERISA cases.

9 See Poch v. Unum Grp., Civil Action No. 12-1878, 2013 WL 4404183, at *2 (W.D. La. 

Aug. 15, 2013) (“This Court therefore finds that its decision to dismiss the first case without 

prejudice did not extend Poch’s deadline to appeal his denial of benefits.”).

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V.

Because Moss did not timely file an administrative appeal, the district 

court correctly dismissed his ERISA claim for failure to exhaust administrative 

remedies.

AFFIRMED.

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