* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-61142

CAROLYN HARRIS, AND OTHER UNKNOWN PARTIES IN INTEREST

Plaintiff-Appellant

v.

TRUSTMARK NATIONAL BANK; TRUSTMARK NATIONAL BANK

PENSION PLAN; TRUSTMARK NATIONAL BANK PROFIT SHARING

PLAN; TRUSTMARK NATIONAL BANK 401(K) PLAN; TRUSTMARK

BANK AND/OR TRUSTMARK CORPORATION AND/OR AGENT(S);

TRUSTMARK CORPORATION

Defendants-Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

4:01-CV-83

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellants, Carolyn Harris, et al., appeal the district court’s

grant of summary judgment in favor of defendants-appellants, Trustmark

National Bank, Trustmark National Bank Pension Plan, Trustmark National

Bank Profit Sharing Plan, Trustmark National Bank 401(k) Plan, Trustmark

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2008

Charles R. Fulbruge III

Clerk
No. 06-61142

1

Initially, plaintiffs also included former employees oftwo other banks, State Guaranty

Bank and Brookhaven Bank & Trust, who are currently employed by Trustmark. However,

on November 17, 2005, plaintiffs amended their complaint to omit claims of those employees.

Thus, the plaintiffs in this case only include former Rankin and Canton employees, and we will

not discuss the former employees of State Guaranty Bank and Brookhaven Bank & Trust. The

sixteen named plaintiffs in this case include twelve former Canton employees: Carolyn Harris,

Jimmy James, Evelyn M. Akins, the Estate of Robert Grant, Dorothy Furr, Henry Douglas

Rasberry, Betty Stewart, Debra S. Washington, Linder Fleming, Gloria Nichols, Betty

Robinson, Mary Joe Vance-Scott. They also include four former Rankin employees: Carolyn

Burnett, Dena A. Childress, Cynthia E. Ingram, and James F. Wright. Plaintiffs also indicate

in their briefthat other putative class members (former employees of Canton and Rankin)who

remain unnamed are plaintiffs as well.

2

Bank and/or Trustmark Corporation and/or agent(s), and Trustmark

Corporation (collectively, Trustmark). Plaintiffs are former employees of

Canton Exchange Bank (Canton) and Rankin County Bank (Rankin) who

became Trustmark employees when Trustmark acquired their former employers

in 1983 and 1987, respectively.1 They sued Trustmark asserting claims of fraud,

misrepresentation, and breach of contract in relation to their retirement plans.

The district court granted summary judgment in favor of Trustmark, and

dismissed the plaintiffs’ claims in their entirety. For the following reasons, we

affirm the judgment of the district court.

FACTS AND PROCEEDINGS BELOW

When Trustmark acquired Rankin and Canton in the 1980s, it retained

the Rankin and Canton employee benefit plans for the former employees of the

two banks. Thus, Trustmark did not include the former Rankin and Canton

employees in both its profit sharing plan and its 401(k) plan (the Trustmark

Plans) until the plans were merged in the late 1990s. Rankin employees were

excluded from the profit sharing plan from 1987 until 1998, while Canton

employees were excluded from both of the Trustmark Plans from 1983 through

1999.

The plaintiffs filed this case in the Circuit Court of Washington County,

Mississippi on March 9, 2001 alleging that Trustmark committed fraud,
No. 06-61142

3

misrepresentation, and breach of contract with regard to the plaintiffs’

retirement plans. Plaintiffs allege that Trustmark did not follow through on its

promises that it would provide plaintiffs with certain retirement benefits

comparable to those of existing Trustmark employees. They claim that before

1998, they should have been provided with the full benefits available from the

Trustmark Plans. Plaintiffs base a large portion of their arguments on this

appeal on a letter dated February 6, 1986 from Rankin to the Senior Vice

President andPersonnel Director of Trustmark regarding the employee benefits

of the Rankin employees acquired by Trustmark (the Rankin Merger

Agreement). In pertinent part, the Rankin Merger Agreement states:

“Trustmark shall guarantee to the employees of Rankin County

Bank benefits under the same or a similar plan not less than those

enjoyed by such employees under the Rankin County Bank plan.

Trustmark agrees to make contributions to the Rankin County

Bank plan on a comparable basis to contributions made under the

Trustmark plan if they have not established a similar plan.” 

On April 11, 2001, Trustmark removed this action to the federal district

court based on Employee Retirement Income Security Act (ERISA) preemption.

On April 20, 2001, plaintiffs filed a motion to remand the case, which the district

court denied on March 7, 2002. On October 1, 2003, plaintiffs filed an Amended

Complaint in which they asserted that they were bringing a class action suit

involving approximately 600 class members. The proposed or “putative” class

consisted of former employees of various banks acquired by Trustmark since

1983. On April 22, 2004, the district court entered an order granting the

plaintiffs’ Motion to Substitute Class Representative, which made Carolyn

Harris the plaintiffs’ putative class representative. On July 1, 2004, the district

court entered a Memorandum Opinion and Order finding that plaintiffs did not

exhaust their administrative remedies as required by ERISA and staying the

case pending exhaustion of administrative remedies. At this time the district
No. 06-61142

2 The sixteen named plaintiffs listed in footnote 1, supra, exhausted their

administrative remedies (along with five others who are not a party to this action: four former

employees of State Guaranty Bank and one former employee of Brookhaven Bank & Trust).

4

court also denied the plaintiffs’ request to designate them as representatives of

a class for exhaustion purposes.

On August 24, 2004, twenty-one Trustmark employees, including the four

former Rankin employees and twelve former Canton employees, submitted their

claims for benefits to James R.E. Brown, Assistant Vice President and Benefits

Manager for Trustmark (the Plan Administrator).

2 Plaintiffs alleged that

Trustmark committed fraud and made misrepresentations in relation to the

Trustmark Plans. Their initial complaint to the Plan Administrator indicated

that this was “not a merger/acquisition case nor [was] this a case involving a

simple miscalculation of [the plaintiffs’] plan.” Plaintiffs asserted that

Trustmark misrepresented the value of their retirement plans for years, and

alleged that Trustmark violated ERISA by excluding them from the Trustmark

Plans. They sought compensation for lost profit sharing benefits that they would

have received had they participated in the Trustmark Plans. 

The Plan Administrator issued a Notice of Denial of the plaintiffs’ claims

on January 14, 2005. He attached the Rankin Merger Agreement to his decision.

He explained that Canton and Rankin executives insisted, as a condition of

Trustmark’s acquisitions of the banks, that their employees keep their existing

retirement plans rather than being placed in the Trustmark Plans. Thus, he

explained thatthe former Canton and Rankin employees were not entitled to the

requested profit sharing benefits. The Plan Administrator emphasized that

there was no evidence of the alleged misrepresentations that formed the basis

of the plaintiffs’ claims. Furthermore, he found that the plaintiffs’ alleged

injuries had no causal connection to reasonable reliance on the alleged

misrepresentations. The plaintiffs appealed the Plan Administrator’s decision
No. 06-61142

5

on March 11, 2005. The Plan Administrator affirmed his previous denial of

benefits on June 17, 2005. Thus, the plaintiffs had exhausted their

administrative remedies, and the district court lifted the stay on the district

court proceedings on August 5, 2005.

On November 14, 2005, plaintiffs filed a Motion to Certify Class Action

requesting that the district court certify a class of plaintiffs consisting of those

who became Trustmark employees by virtue of Trustmark’s acquisition of

Rankin and Canton. In the alternative, the plaintiffs requested that the court

divide the plaintiffs into two classes consisting of only former Rankin and only

former Canton employees. The district court never addressed the plaintiffs’

request to certify a class, even in its order granting summary judgment in favor

of Trustmark; plaintiffs make no complaint in that respect on this appeal.

Trustmark filed a Motion for Summary Judgment in the district court on

February 10, 2006, and the plaintiffs filed a Cross-Motion for Summary

Judgment on June 2, 2006. On September 29, 2006, the district court entered

an order granting summary judgment in favor of Trustmark “as to the claims of

all plaintiffs,” and dismissed the case. It dismissed with prejudice the claims of

the sixteen named plaintiffs who exhausted their administrative remedies (those

named in the fourth and fifth sentences of note 1 supra), while dismissing

without prejudice the claims of any other plaintiffs who did not present their

claims before the Plan Administrator. On October 23, 2006, plaintiffs timely

filed a notice of appeal of the district court’s judgment.

DISCUSSION

We limit our discussion to the issues raised on appeal: whether the district

court erred by refusing to remand the case to the Plan Administrator to

determine whether Trustmark complied with the Rankin Merger Agreement;

whether the district court erred in determining that plaintiffs do not have

substantive rights under ERISA or applicable Treasury regulations, and in
No. 06-61142

6

failing to remand the case to the Plan Administrator to determine whether

Trustmark violated these rights; whether the district court applied the proper

standard of review; and whether the district court erred in dismissing without

prejudice the claims of plaintiffs who did not presenttheir claims before the Plan

Administrator. For the reasons stated below, we affirm the judgment of the

district court.

A. The Rankin Merger Agreement.

Plaintiffs argue that the district court should have remanded this case to

the Plan Administrator to allow him to determine whether Trustmark complied

with the Rankin Merger Agreement. The Rankin Merger Agreement states that

Trustmark will “guarantee to the employees of Rankin County Bank benefits

under the same or a similar plan not less than those enjoyed by such employees

under the Rankin County Bank plan,” and that “Trustmark agrees to make

contributions to the Rankin County Bank plan on a comparable basis to

contributions made under the Trustmark plan if they have not established a

similar plan.” Plaintiffs argue that Trustmark did not comply with the

requirements of this agreement. 

Trustmark suggests that a district court’s decision regarding whether to

remand a case for administrative proceedings is reviewed for abuse of discretion,

even when the remand decision is made in conjunction with a grant or denial of

summary judgment. See Bordelon v. Barnhart, 161 Fed. Appx. 348, 353 (5th Cir.

2005) (reviewing for abuse of discretion a district court’s decision to remand a

case to the Social Security Commission). However, this court reviews a district

court’s grant of summary judgment de novo. Plyant v. Hartford Life and

Accident Ins. Co., 497 F.3d 536, 538 (5th Cir. 2007). We cannot find and the

parties do not cite a published opinion indicating how this court reviews a

district court’s decision not to remand a case for administrative proceedings.

However, we need not decide this issue at this time because the record does not
No. 06-61142

7

reflect that plaintiffs requested the district court to remand for further

administrative proceedings. 

A review of the record reveals that plaintiffs did not ask the district court

to remand their case for further administrative proceedings to determine

whether Trustmark complied with the Rankin Merger Agreement. None of the

documents filed by plaintiffs in the district court mention even the possibility of

remanding the case. Also, although the district court suggests that it may have

remanded the issue if the plaintiffs had not been provided with a copy of the

Rankin Merger Agreement in time to raise it before the Plan Administrator, the

district court opinion does not indicate that plaintiffs requested remand.

Because plaintiffs did not request that the district court remand the case, they

cannot now raise this argument on appeal absent “exceptional circumstances.”

Castillo v. Barnhart, 325 F.3d 550, 553 (5th Cir. 2003) (quoting Kinash v.

Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997)) (indicating thatin “exceptional

circumstances . . . the court ‘may, in the interests of justice, review an issue that

was not raised in the district court’”). As the plaintiffs do not establish any

“exceptional circumstances” that prevented them from arguing in the district

court that their case should be remanded on the Rankin Merger Agreement

issue, they cannot now successfully argue that their case should be remanded to

the Plan Administrator.

Furthermore, plaintiffs cannot return to administrative proceedings

because they did not raise their Rankin Merger Agreement argument before the

Plan Administrator. An ERISA plaintiff must exhaust his remedies before

pursuing a claim in federal court. Denton v. First Nat’l Bank of Waco, Texas, 765

F.2d 1295, 1303 (5th Cir. 1985) (“Congress, in enacting ERISA, clearly wanted

potential plaintiffs to first exhaust their administrative remedies before

resorting to the federal courts.”). One of the “primary purposes” of the

exhaustion requirement is to “assure that any judicial review of fiduciary action
No. 06-61142

8

(or inaction) is made under the arbitrary and capricious standard, not de novo.”

Id. at 1300. A plaintiff has not exhausted his administrative remedies on an

issue if he fails to raise it before the plan administrator. Thus, a federal court

should not address the issue because it does not have the opportunity to review

the plan administrator’s resolution of the issue under an arbitrary and

capricious standard. See Pub. Citizen, Inc. v. United States Envtl. Prot. Agency,

343 F.3d 449, 461 (5th Cir. 2003) (holding that in the context of agency law,

“[a]bsent exceptional circumstances, a party cannot judicially challenge agency

action on grounds not presented to the agency atthe appropriate time during the

administrative proceeding”); but see Jordan v. Fed. Express Corp., 914 F. Supp.

1180, 1189 (W.D. Pa. 1996) (holding that“ERISA requires only claim exhaustion

and not ‘issue’ or ‘theory’ exhaustion of administrative remedies”), aff’d in part,

rev’d in part on other grounds, 116 F.3d 1005 (3d. Cir. 1997).

Furthermore, after a plaintiff has exhausted his remedies, this court

generally should not remand a case to a plan administrator absent “special

circumstances.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 n.13 (5th

Cir. 1999) (en banc). Each party should make its record with the Plan

Administrator before the case comes to federal court; allowing parties a second

opportunity to develop the record dilutes their incentive to develop the record at

the first opportunity. Id.; see also Bourgeois v. Pension Plan for Employees of

Santa Fe Int’l Corps., 215 F.3d 475, 479 n.4 (5th Cir. 2000) (indicating that one

ofthe purposes ofthe exhaustion requirement under ERISA is “providing a clear

record of administrative action if litigation ensues”). Furthermore, allowing a

case to “oscillate” between courts and administrative proceedings prolongs the

case. Vega, 188 F.3d at 302 n.13. For these reasons, absent special or unusual

circumstances, a district court need not remand an issue to a plan administrator

if the plaintiff did not take the opportunity to raise the issue in administrative

proceedings. See id. As an ERISA “claimant only has an opportunity to make
No. 06-61142

9

his record before he files suitin federal court,” plaintiffs were required to present

their argument that Trustmark violated the Rankin Merger Agreement to the

Plan Administrator during the administrative proceedings. Id.

Plaintiffs did not raise the Rankin Merger Agreement argument before the

Plan Administrator and have not established any special circumstances that

would warrant the district court remanding the issue. Id. A review of the

plaintiffs’ original complaint and their Appeal of Notice of Denial before thePlan

Administrator reveals that plaintiffs did not make any arguments regarding the

Rankin Merger Agreement to the Plan Administrator. In their appeal to the

Plan Administrator, they argued that “Trustmark agreed to make and/or keep

the retirement benefits of Plaintiff and the plaintiff class equal to those of its

other employees,” and noted that “Trustmark totally ignored the issues relating

to the promise of equality of the respective plans.” They also noted Trustmark’s

alleged intention to keep the retirement plans “equal” in a few other instances.

However, the plaintiffs never mentioned the Rankin Merger Agreement. They

even explicitly denied that the case involved a breach of any merger agreement

by stating that“[t]he question presented is not whether Trustmark breached any

of the merger agreements, but rather the question is whether Trustmark

complied with its fiduciary duty owed to claimants and whether Trustmark has

complied with applicable [Internal Revenue Service] and ERISA rules.” Thus,

despite their vague references to Trustmark’s alleged promise to keep the

retirement plans of its employees equal, plaintiffs did not raise the Rankin

Merger Agreement issue before the Plan Administrator. 

Furthermore, plaintiffs cite no special circumstances that prevented them

from making this argument to the Plan Administrator. They had ample

opportunity to complain about this issue because the Plan Administrator

attached a copy of the Rankin Merger Agreement to his Notice of Denial on

January 14, 2005, and plaintiffs had the opportunity to file an appeal of this
No. 06-61142

10

decision with the Plan Administrator, which they did on March 11, 2005.

Therefore, they should not be able to argue at this point that their case should

be remanded.

Because plaintiffs did not requestthatthe district court remand their case,

did not argue to the Plan Administrator that Trustmark violated the Rankin

Merger Agreement, and did not cite any special circumstances for why the case

should be remanded now, under either the de novo or abuse of discretion

standard of review, the district court did not err in failing to remand the case to

the Plan Administrator on the Rankin Merger Agreement issue.

B. ERISA and Treasury Regulation Claims

The plaintiffs’ second argument on appeal appears to be that the district

court erred in holding that the Trustmark profit sharing plan did not violate

ERISA or applicableTreasury regulations and thatit should have remanded this

issue for administrative proceedings instead of granting summary judgment for

Trustmark. This court reviews a district court’s grant of summary judgment de

novo. Plyant, 497 F.3d at 538.

Plaintiffs first argue that this case should be remanded to administrative

proceedings to determine whether the exclusion of the plaintiffs from the profit

sharing plan constituted discrimination by Trustmark in favor of highly

compensated employees. As with the previous issue, the plaintiffs did not ask

the district court to remand this issue to administrative proceedings, and do not

cite “exceptional circumstances” that would warrant remanding the issue. See

Castillo, 325 F.3d at 553. Therefore, plaintiffs cannot now successfully seek

remand on appeal.

It appears that plaintiffs also dispute the district court’s holdings that the

Trustmark Plans did not violate ERISA or Treasury regulations and that
No. 06-61142

3 Although plaintiffs assert that Trustmark has violated ERISA and Treasury

regulations, they do not specify or cite the statutes or regulations that have allegedly been

violated.

11

plaintiffs do not have substantive rights under these rules.3 First, plaintiffs

suggest that under certain Treasury regulations, all employees must be provided

with the opportunity to participate in the Trustmark Plans. Plaintiffs also

contend that the Trustmark Plans discriminate against highly compensated

employees, which violates Treasury regulations that relate to tax-exempt

entities. They suggest that because the plans indicate that they should meet the

requirements of ERISA, plaintiffs should be permitted to pursue a private cause

of action against Trustmark based on their allegations.

The district court indicated that it was “highly likely” that the Fifth

Circuit would find that Trustmark did not violate ERISA by distinguishing

between Trustmark employees and former employees of Canton and Rankin in

establishing their ERISA plan. It also held that plaintiffs did not have a private

cause of action based upon allegations that Trustmark’s plan discriminated in

favor of highly compensated employees. 

Plaintiffs’ argument that they have substantive rights under ERISA is

without merit. Under Seventh Circuit precedent, participation requirements in

an ERISA plan only affect the plan’s income tax treatment under the Internal

Revenue Code (IRC). Reklau v. Merchants Nat. Corp., 808 F.2d 628, 631 (7th

Cir. 1986) (holding that IRC § 401 did not create any substantive rights that

could be enforced by an individual as a participant or beneficiary of a tax

qualified pension plan). Furthermore, this court has cited Reklau for the

proposition that ERISA does not create a private cause of action for violations

of Treasury regulations. Tulley v. Ethyl Corp., 861 F.2d 120, 125 (5th Cir. 1988)

(indicating that the Fifth Circuit “do[es] not incorporate the Treasury

regulations into ERISA to create substantive rights”); see also Abraham v. Exxon

Corp., 85 F.3d 1126, 1131 (5th Cir. 1996) (indicating that “the Treasury
No. 06-61142

12

regulations do not create substantive rights under ERISA that would permitthe

relief [the plaintiff] requests”). Thus, the Treasury regulations do not create

substantive rights as plaintiffs suggest.

In Abraham, this court addressed an argument similar to that raised by

the plaintiffs. In that case, the plaintiffs were “leased” or “special agreement”

employees of Exxon who worked at Exxon facilities but were employed by

unaffiliated firms that leased services to Exxon. Abraham, 85 F.3d at 1128.

Plaintiffs were excluded from Exxon’s ERISA plan, and sued Exxon seeking,

inter alia, a determination that they were entitled to benefits from the plan. Id.

Plaintiffs contended that the exclusion of the leased employees from the plan

was discriminatory and violated the minimum participation and coverage

requirements of ERISA and certain Treasury regulations. Id. at 1130. This

court indicated that the Treasury regulations “purport to do no more than

determine whether a plan is a qualified tax plan.” Id. at 1131. Thus, it held that

“[f]ailure to meet the requirements of those regulations results in the loss of a

beneficial tax status; it does not permit a court to rewrite the plan to include

additional employees.” Id. It also held that the Treasury regulations do not

create substantive rights under ERISA that would allow the court to award the

plaintiffs their requested relief. Id.

Like the plaintiffs in Abraham,the plaintiffs in this case suggestthatthey

have substantive rights to force Trustmark to compensate them for their

exclusion from the Trustmark Plans based on Treasury regulations and ERISA

provisions. However, Abraham clearly indicates that the Treasury regulations

do not create substantive rights, and that failure of the Trustmark Plans to

conform to Treasury regulations would simply result in the loss of a beneficial

tax status, not mandatory inclusion of plaintiffs in the Trustmark Plans. Id.

Plaintiffs argue that Crouch v. Mo-Kan Iron Workers Welfare Fund, 740

F.2d 805 (10th Cir. 1984) supports their position that they should have a private
No. 06-61142

13

cause of action for damages due to their exclusion from the Trustmark Plans and

Trustmark’s discrimination in favor of highly compensated employees. At issue

in Crouch was an ERISA plan stating:

“The Plan adopted by the Trustees shall be such as will qualify for

approval by the U.S. Treasury Department, Internal Revenue

Service and Department of Labor, and as will continue as a qualified

plan. The Trustees are authorized to make whatever applications

are necessary with the said Internal Revenue Service and

Department of Labor to receive and maintain approval of the plan.”

Id. at 808.

The Tenth Circuit held that because the employer’s plan stated that it should be

construed to meet ERISA requirements, an employee could force her employer

to include her as a participant in the plan. Id. at 808-09. If she could not

maintain a private cause of action under ERISA to do this, the plan would not

meet the qualification requirements of ERISA. Id. at 809. 

However, in Abraham,the Fifth Circuit declined to apply Crouch. 85 F.3d

at 1131. This court held that absent an “explicit provision declaring that [a plan]

was to be construed to meet the requirements of an ERISA plan . . . a court is not

entitled to look to Treasury regulations to determine employee eligibility for

participation in an ERISA plan.” Id. See also Bronk v. Mountain States

Telephone and Telegraph, Inc., 140 F.3d 1335, 1338-39 (10th Cir. 1998) (citing

Abraham, and limiting Crouch to its facts, when a plan explicitly states that it

must comply with ERISA, the Internal Revenue Code, and Treasury

regulations). Under Abraham, when the plan in question does not explicitly

state that it should comply with ERISA like the plan in Crouch did, the plan

does not create substantive rights. 85 F.3d at 1131. 

Crouch does not apply to this case as plaintiffs cite no language from the

TrustmarkPlans indicating thatthe plans must comply with ERISA. Unlike the

language from the plan at issue in Crouch, the provisions that plaintiffs quote

from the Trustmark profit sharing plan and a resolution by theTrustmark board
No. 06-61142

4 Neither party addresses this fact, but plaintiffs do not deny its validity.

14

of directors do not qualify as “explicit provision[s] declaring that [the plans are]

to be construed to meet the requirements of an ERISA plan.” Abraham, 85 F.3d

at 1131. The Trustmark profit sharing plan that became effective January 1,

1984 indicates that “in order to comply with the Employee Retirement Income

Security Act of 1974, and to effect certain changes in the Plan, the Sponsor

amended, restated and continued the Plan effective January 1, 1976.”

Furthermore, a Resolution by the Board of Directors of Trustmark National

Bank, from December 13, 1988 stated in its introduction:

“WHEREAS, such [of Trustmark’s retirement plans and trusts

for the benefit of its employees] are intended to be qualified plans

and trusts under the Internal Revenue Code; and 

WHEREAS, Trustmark now finds it advisable to amend said

plans and trusts in order to comply with changes in the law caused

by the Tax Reform Act of 1986 and other changes to the Internal

Revenue Code and regulations.”

Unlike the plan at issue in Crouch, neither of these provisions explicitly declare

that the Trustmark Plans must continue as qualified ERISA plans. They state

that the plans are intended to qualify as ERISA plans, but do not indicate that

the plans must always satisfy ERISA. Thus, the Trustmark Plans do not fall

into the limited category of retirements plans that create substantive rights

under Crouch. 

Moreover, as the Plan Administrator discussed in his denial of the

plaintiffs’ claims on January 14, 2005, it was determined as part of the merger

agreements that Canton and Rankin employees would keep the plans that they

held with their former employers, and would not take part in the Trustmark

Plans.4 Thus, the plaintiffs also do not qualify for relief as they were excluded

from the Trustmark plans under previous agreements negotiated at arm’s

length, and cannot now insist that they should have been included in certain
No. 06-61142

15

Trustmark Plans despite the fact that their former employers specifically

negotiated to exclude them from the plans. 

For the reasons stated above, we hold that the district court did not err in

granting summary judgment for Trustmark because plaintiffs are not entitled

to any relief under ERISA or Treasury regulations, and they do not have

substantive rights to enforce the Trustmark Plans. 

C. Standard of Review

The plaintiffs also appear to argue that the district court applied an

improper standard of review when analyzing the Plan Administrator’s decision.

First, they argue that the district court should have applied a de novo standard

of review instead of abuse of discretion to determine whether plaintiffs failed to

raise their argument regarding the Rankin Merger Agreement before the Plan

Administrator. They also contend that whether the Plan Administrator was

required to include the former Rankin and Canton employees in the Trustmark

profit sharing plan is a question of law, which should be reviewed de novo

instead of under an arbitrary and capricious standard. The district court’s

choice of which standard of review should apply when it reviews the conclusions

of a Plan Administrator is a legal issue. This court reviews legal issues de novo.

Carbajal-Gonzalez v. I.N.S., 78 F.3d 194, 197 (5th Cir. 1996). 

The district court concluded that in their administrative proceedings,

plaintiffs did not allege thatTrustmark breached the Rankin Merger Agreement.

As Trustmark notes, the district court did not apply an abuse of discretion

standard in so determining because it did not rely on any conclusions ofthe Plan

Administrator in reaching that decision. Thus, it applied a de novo standard of

review as it based this decision on a review of the plaintiffs’ administrative

complaint and their administrative appeal. 

The district court does not appear to have applied an abuse of discretion

standard when determining whether Trustmark was required to include the
No. 06-61142

16

former Rankin and Canton employees working for Trustmark in its profit

sharing plan. 

The district court did indicate that it was “limited to a determination of

whether the [Plan] Administrator abused his discretion” because theTrustmark

Plans indicate that deference should be given to the Plan Administrator. It also

stated in relation to plaintiffs’ Rankin Merger Agreement argument that “the

crucial point in this case is that the decisions made by the Plan Administrator

regarding benefits were consistent with one arguable interpretation of a rather

complex plan.” It concluded that the Plan Administrator was entitled to

“considerable deference” and that plaintiffs failed to demonstrate that he abused

his discretion by concluding that they were not entitled to relief.

However, after making these findings, the district court moved on to the

other issues raised by the plaintiffs, including whether ERISA bars the exclusion

of Rankin and Canton employees from the Trustmark profit sharing plan. In

discussing this issue, the district court did not refer to any standard of review.

Unlike in its discussion of the previous issues, it also did not mention the Plan

Administrator’s decision or reasoning. It simply analyzed the case law. Thus,

the district court did not review whether ERISA barred exclusion of plaintiffs

from theTrustmark profitsharing plan for abuse of discretion, and seems to have

applied de novo review to that question.

For the foregoing reasons, we hold that the district court did not apply

improper standards of review in determining whether plaintiffs argued to the

district court that Trustmark breached the Rankin Merger Agreement, and

whether ERISA bars them from being excluded from the Trustmark profit

sharing plan.

D. Plaintiffs Who Did Not Exhaust Their Administrative

Remedies

Plaintiffs claim that the district court erred in dismissing without

prejudice the claims of plaintiffs who did not exhaust their administrative
No. 06-61142

17

remedies. First, they suggest that exhaustion of administrative remedies by a

class representative constitutes exhaustion for all proposed class members. In

the alternative, they suggest that it would be futile for the plaintiffs who did not

exhaust their remedies to attempt to exhaust them as Trustmark has already

determined that the former employees of Rankin and Canton were properly

excluded from its profit sharing plan. They also contend that the proposed class

of plaintiffs has exhausted its administrative remedies because some former

Canton employees submitted a questionnaire to Trustmark asking why they

could not participate in the profit sharing plan. Finally, they suggest that the

proposed class was denied meaningful access to administrative procedures

becauseTrustmark denied their requestto participate in the profit sharing plan,

but did not provide any instructions as to how to appeal this denial. This court

reviews for abuse of discretion a district court’s decision regarding whether

plaintiffs have exhausted their administrative remedies under ERISA and can

proceed with a lawsuit. Hall v. Nat’l Gypsum Co., 105 F.3d 225, 231 (5th Cir.

1997).

Plaintiffs argue that exhaustion of remedies by a class representative

constitutes exhaustion by all ofthe proposed class members. However, the cases

that plaintiffs cite do not support their argument as they do not indicate that a

class representative in an ERISA case can exhaust the remedies of all class

members. See Gates v. Cook, 376 F.3d 323, 329-30 (5th Cir. 2004) (holding that

under the Prison Litigation Reform Act, the exhaustion of administrative

remedies requirement is satisfied for the class if the class representative

exhausts his remedies); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th

Cir. 1968) (holding that “once an aggrieved person raises a particular issue with

the [Equal Employment Opportunity Commission] which he has standing to

raise, he may bring an action for himself and the class of persons similarly

situated” under the Civil Rights Act of 1964). These cases involve civil rights
No. 06-61142

18

actions, so they do not indicate that exhaustion of remedies by class

representatives constitutes exhaustion for all class members in an ERISA action

such as this one. We could not find and plaintiffs do not cite any Fifth Circuit

case holding thatthis policy applies in ERISA cases. However, the Third Circuit

has suggested that the opposite is true, that each purported class member in an

ERISA case must exhaust his or her own administrative remedies. Harrow v.

Prudential Ins. Co., 279 F.3d 244, 247 n.5 (3d. Cir. 2002) (“We see no merit to

plaintiff’s argument that exhaustion of administrative remedies should be

waived when plaintiff seeks class-wide declaratory relief.”). 

However, we need not decide this issue at this time as representative

exhaustion of administrative remedies was not available to plaintiffs because the

district court did not certify a class. The district court granted the plaintiffs’

motion to substitute Carolyn Harris as class representative on April 22, 2004,

which suggests that it acknowledged plaintiffs as a class. However, the district

court denied plaintiffs’ requestto designate class representatives for exhaustion

purposes in a July 2004 order, and did not address plaintiffs’ later requests for

class certification after they exhausted their administrative remedies. It never

defined or specified the parameters of a class. Furthermore, plaintiffs do not

claim that a class was certified, do not appeal the district court’s failure to

certify, and refer to the class as “putative.” Thus, plaintiffs’ argument that

exhaustion of remedies by the class representative constituted exhaustion for the

purposes of all class members must fail because the court did not acknowledge

or certify a class. 

Furthermore, plaintiffs argue that forcing all plaintiffs to exhaust their

remedies would be futile. The Fifth Circuit has indicated that under certain

circumstances, plaintiffs in an ERISA case are not required to exhaust their

remedies if doing so would be futile. Coop. Benefit Adm'rs, Inc. v. Ogden, 367

F.3d 323, 336 n.61 (5th Cir. 2004). However, this court has held that “[a] failure
No. 06-61142

5 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 91 S. Ct. 1999

(1972).

6 Trustmark also argues that plaintiffs’futility argument must fail because they did not

raise the futility exception in response to Trustmark’s motion for summary judgment. Because

plaintiffs’ futility argument fails for other reasons, we will not address this argument at this

time.

19

to show hostility or bias on the part of the administrative review committee is

fatal to a claim of futility.” McGowin v. Manpower Int’l, Inc., 363 F.3d 556, 559

(5th Cir. 2004). Plaintiffs do not allege that the Plan Administrator or his staff

are hostile or biased toward them, so their futility argument must fail.

Plaintiffs argue that under McCarthy v. Madigan, 112 S. Ct. 1081, 1088

(1992), an administrative remedy may be futile if the administrative body has

already determined the issue before it. McCarthy involves a Bivens action of a

federal prisoner, and does not apply to ERISA.5 Moreover, many Fifth Circuit

cases since McCarthyhave discussed the administrative exhaustion requirement

under ERISA, and none have found that McCarthy analysis applies. See, e.g.,

Bourgeois, 215 F.3d at 479. Thus, McCarthy does not appear to apply to

exhaustion of administrative remedies in ERISA actions, and this court will not

apply the test set forth in that case to determine whether exhaustion is futile in

this case.6

Plaintiffs also argue that they exhausted their administrative remedies

when some former Canton employees submitted a written questionnaire to

Trustmark asking why they could not participate in Trustmark’s profit sharing

plan and requesting that Trustmark allow them to participate. This court has

noted in ERISA proceedings that “allowing informal attempts to substitute for

the formal claims procedure would frustrate the primary purposes of the

exhaustion requirement.” Id. at 480 n.14. Thus, by submitting a questionnaire

to Trustmark, plaintiffs did not exhaust their remedies. To exhaust their
No. 06-61142

20

remedies, they needed to follow the formal claims procedure as the Rankin and

Canton employees did when they filed their claims with the Plan Administrator.

Finally, plaintiffs argue that they were denied meaningful access to the

administrative procedure becauseTrustmark denied their request to participate

in the profit sharing plan after they submitted their written questionnaire and

did not provide them with instructions as to how to appeal the denial. This court

has indicated that a company need not voluntarily provide information on how

to appeal this sort of denial, and that it is a plaintiff’s responsibility to seek it.

Meza v. Gen. Battery Corp., 908 F.2d 1262, 1279 (5th Cir. 1990) (holding that in

passing ERISA, Congress did not intend to excuse claimants from exhausting

their administrative remedies when they are not informed of the proper

administrative procedures); see also McGowin, 363 F.3d at 559 (holding that

because a plaintiff in an ERISA case did not request benefit plan documents and

was not prevented from obtaining them, she could not assert a successful

argument that she was denied meaningful access to the administrative process

in defense of her failure to exhaust administrative remedies); Bourgeois, 215

F.3d 475, 480 (5th Cir. 2000) (holding that Meza imposes a duty to seek the

information regarding exhaustion of administrative remedies in an ERISA plan

even if it has not been made readily available to the plaintiff). As plaintiffs do

not argue that they attempted to discover how they could appeal Trustmark’s

decision regarding their questionnaire, they cannot now assert that they were

denied access to administrative proceedings.

Even more, as we determine that the district court did not err in granting

summary judgment for Trustmark, it would not be beneficial to potential

plaintiffs who did not exhaust their administrative remedies to have their claims

dismissed with prejudice as plaintiffs argue should be the case. If we held that

exhaustion was not necessary for these plaintiffs, a judgment against them

would be rendered on the merits. They could only obtain relief if certiorari in
No. 06-61142

21

this case was sought and granted by the Supreme Court and our decision on the

merits herein was reversed. Furthermore, it does not prejudice the plaintiffs

who did exhaust their administrative remedies that they cannot exhaust the

remedies of other potential plaintiffs. 

For the reasons stated above, we hold that the district court did not abuse

its discretion in dismissing without prejudice the claims of plaintiffs who did not

exhaust their administrative remedies.

CONCLUSION

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.