1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0176p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

J OSEPH M OYER , Plaintiff-Appellant ,

v.

M ETROPOLITAN L IFE I NSURANCE C OMPANY , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 13-1396

Appeal from the United St ates District Court for the Eastern District of Michigan at Flint. No. 4:12-cv-10766—Gershwin A. Drain, District Judge. Decided and Filed: August 7, 2014 Before: COOK and STRANCH, Circui t Judges; CARR, District Judge. *

_________________ COUNSEL

ON BRIEF: David B. Grant, GRANT BUSCH & KI RSCHNER, Southfie ld, Michigan, for Appellant. David M. Davis, HARDY, LEWIS & PAGE, P.C., Birmingham, Michigan, for Appellee. STRANCH, J., delivered the opinion of the court, in which CARR, D.J., joined. COOK, J. (pp. 8–10), delivered a separate dissenting opinion.

* The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation. 

### >No. 13-1396 Moyer v Metro. Life Ins. Page 2

_________________ OPINION

_________________ STRANCH, Circuit Judge. Joseph Moyer, an ERISA plan participant, appeals the district court’s dismissal for untimeliness of his acti on against the plan’s claim administrator, Metropolitan Life Insurance Company (MetLife ), seeking recovery of unpaid ERISA plan benefits. Because MetLife failed to include notice of the time limits for judicial review in its adverse benefit determination letter, we REVERSE.
I. Background
As an employee of Solvay America, Inc ., Moyer participated in Solvay’s ERISAgoverned Long Term Disability Plan

. When Moyer applied for di sability benefits in 2005, MetLife initially approved his cl aim, but reversed its decision in 2007 after determining that Moyer retained the physical capacity to perform wo rk other than his former job. Moyer filed an administrative appeal, and MetLife affirmed the revocation of benefits on June 20, 2008. Moyer’s adverse benefit determination letter incl uded notice of the right to judicial review but failed to include notice that a three-year contractual time limit applied to judicial review. The Summary Plan Description (SPD) failed to provide notice of either Moyer’s right to judicial review or the applicable time lim it for initiating judicial review.
On February 20, 2012, Moyer sued MetLife, s eeking recovery of unpaid plan benefits under 29 U.S.C. § 1132(a)(1)(B). MetLife moved to dismiss, arguing that the plan’s three-year limitations period barred Moyer’s claim. The district court agreed, noting that the plan documents—which were not sent to plan partic ipants unless requested—s tated in the Claims Procedure section of the plan that there was a three-year limitations period for filing suit. It concluded that MetLife provided Moyer with constr uctive notice of the contractual time limit for judicial review. Moyer now appeal s, requesting equitable tolling.No. 13-1396 Moyer v Metro. Life Ins. Page 3

II. Analysis

We review de novo the district court’s hold ing that the plan’s contractual limitations period barred Moyer’s claim under § 1132(a)(1)(B). See Fallin v. Commonwealth Indus., Inc. , 695 F.3d 512, 515 (6th Cir. 2012).
Courts uphold contractual limitations periods embodied in ERISA plans as long as the period qualifies as “reasonable.” Med. Mut. of Ohio v. k. Amalia Enters. Inc. , 548 F.3d 383, 390 (6th Cir. 2008). Here, the administrative reco rd contains a plan document of approximately 50 pages that includes a section on Claims Procedure providing that “[n]o lawsuit may be started more than 3 years after the time proof [of a claim] must be given.” R. 12-4, Long Term Disability Plan, Page ID 1065. Past decisions of this court have upheld as reasonable similar three-year limitations periods. See Rice v. Jefferson Pilot Fin. Ins. Co. , 578 F.3d 450, 454 (6th Cir. 2009); Med. Mut. of Ohio , 548 F.3d at 390–91; Morrison v. Marsh & McLennan Cos. , 439 F.3d 295, 301–02 (6th Cir. 2006). This time limit fo r seeking judicial re view was not provided to Moyer in the correspondence revo king his benefits or in the SPD.

A. Adverse Benefit Determination Letter
Being unaware of the contractual time limit, Moyer filed his complaint late. He asks us to toll the filing deadline, alleging that MetL ife breached its obligations under ERISA by failing to include in his benefit revocation letter the tim e limit for seeking judicial review. We agree with Moyer that on the date his revocation letter was sent, it was required to include the time limit for judicial review. We turn to the ERIS A “Claims procedure” statute, 29 U.S.C. § 1133, to explain why.
The dissent argues that we may not examine the requirements for claim-denial letters because Moyer’s arguments failed to specifically reference that statute a nd that regulation. We do not see our review as so narro wly circumscribed. Moyer argues in his brief, as he did before the district court, that MetL ife’s correspondence with him—incl uding specifically the adverse benefit determination letter—was required to include the time limits for judicial review. The issue, therefore, was properly raised and we may consider the relevant arguments, including application of the approp riate ERISA provisions.No. 13-1396 Moyer v Metro. Life Ins. Page 4

ERISA § 1133 governs adverse benefit determinati on letters. It explic itly authorizes the Secretary of Labor to establish regulations explaining the meaning of the statute and requires that the statute be applied “[i]n accordance with regu lations of the Secretary.” 29 U.S.C. § 1133; see Kent v. United of Omaha Life Ins. Co. , 96 F.3d 803, 806 (6th Cir. 1996). The regulations require that benefit denial letters provide : “[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 . . . following an adverse benefit de termination on review.” 29 C.F.R. § 2560.503-1 (emphasis added). The claimant’s right to bring a civil action is expressly included as a part of those procedures for which applicab le time limits must be provided.

Cases of and in our sister circ uits support this conclusion. See Ortega Candelaria v. Orthobiologics LLC , 661 F.3d 675, 680 (1st Cir. 2011) (“[The employer 

### ] was required by [29 C.F.R. § 2560.503–1(g)(1)(iv)] to provide [the em ployee] with notice of his right to bring suit under ERISA, and the time frame for doing so , when it denied his request for benefits.” (emphasis added)); McGowan v. New Orleans Empl ’rs Int’l Longshoremen’s Ass’n , 538 F.App’x 495, 498 (5th Cir. 2013) (finding th at a benefit termination letter substantially complied with 29 C.F.R. § 2560.503–1(g)(1)(iv) because, in addition to encl osing the benefit booklet and specifying the pages containing the review pro cedures and time limits, the letter “mentioned McGowan’s right to file suit under § 502(a) of ERISA, as well as the one-year time limit”); White v. Sun Life Assurance Co. of Canada , 488 F.3d 240, 247 n.2 (4th Cir. 2007) (emphasizing that the right to bring a civil action is an integral part of a full and fair be nefit review and that the adverse benefit determination letter must include the relevant information related to that right) (abrogated on other grounds by Heimeshoff v. Hartford Life & Acc. Ins. Co ., 134 S. Ct. 604, 612 (2013)); see also Novick v. Metropolitan Life Ins. Co. , 764 F.Supp.2d 653, 660–64 (S.D.N.Y. 2011) (concluding that 29 CFR § 2560.503–1(g) requires that the adverse benefit determination letter include the time lim its for judicial review); Solien v. Raytheon Long Term Disability Plan #590 , No. CV07-456 TUC DCB, 2008 WL 2323915, at *8 (D. Ariz. June 2, 2008) (holding that “[j]udicial review is an appeal procedure for an adverse benefit determination and is therefore a part of the claim procedures covered by these regulations, especially when the time limit for filing a judicial action is estab lished contractually by the Plan”).No. 13-1396 Moyer v Metro. Life Ins. Page 5

Our recent opinion in Engleson v. Unum Life Insu rance Company of America supports this conclusion as well. 723 F.3d 611 (6th Cir. 2013). In Engleson , the plaintiff claimed that the insurance company “was required to disclose his right to seek re view in federal court and the contractual time limitation attached to th at right in its claim denial letters.” Id . at 617. Engleson held that such notice was not required for that plaintiff but added that the regulations were different now, and “[h]ad these events transpir ed a year later, [the plaintiff] would have a colorable ERISA violation.” Id . at 618. The version of the regulations that Engleson held would have given rise to a colorable ERISA violation claim is the version in force in this case. Engleson also noted that the F ourth Circuit’s opinion in White , 488 F.3d at 247 n.2, suggests this same conclusion—that “the scope of § 1133 and the notice derived therefrom includes both internal and judicial mechanisms for review.” Engleson , 723 F.3d at 618–19. Engleson did not follow White , however, because “Unum was under no regulatory obligation” at that time. Id

. MetLife was subject to the regu latory obligation recognized in Engleson and White when it revoked Moyer’s benefits; its fa ilure to include the judicial review time limits in the adverse benefit determination letter rende rs the letter not in substantial compliance with §1133. As part of our substantial compliance analysis, we consider whether the adverse benefit determination letter fails to fulfill the purposes of §1133 “that th e claimant be notified of the reasons for the denial of the claim and have a fair opportunity for review.” Kent , 96 F.3d at 807.
Relying on language from Wenner v. Sun Life Assurance Co. of Canada , 482 F.3d 878, 882 (6th Cir. 2007), the dissent contends that the purpose of §1133 is limited to assuring review by the plan fiduciary. But that statement in Wenner was bound to its facts—that the adverse benefit determination letter failed to provide the plaintiff inform ation on his right to have the benefit decision reviewed by the named fiduciary. Id . It does not discount the statutory and regulatory language that appl ies to judicial review. Wenner, moreover, also properly stated the general purpose of §1133 by noting, “[a]s this court has repeatedly said, the purpose of § 1133 is to ‘notify[ ] Plaintiff of [the plan administrator’s] reasons for denying his claims and affording him a fair opportunity for review.’” Id . (quoting Moore v. LaFayette Life Ins. Co ., 458 F.3d 416, 436 (6th Cir. 2006)). Substantial compliance en tails provision of all that is necessary toNo. 13-1396 Moyer v Metro. Life Ins. Page 6

satisfy the purpose of §1133—notice of the reasons fo r denial and a fair opportunity for the type of review that is appr opriate under the particul ar facts of the case.
Our sister circuits apply th is general statement of the purpose of §1133 when analyzing substantial compliance and, where app licable to the facts of the case , specifically no te that part of the purpose of §1133 is to ensure effective judicial review. Brown v. J.B. Hunt Transp. Servs.,
Inc ., 586 F.3d 1079, 1086 (8th Cir. 2009) (“One of the purposes of § 1133 is to provide claimants with sufficient information to prepare adequately for any further administrative review or for an appeal to the federal courts.”); Gagliano v. Reliance Standard Life Ins. Co. , 547 F.3d 230, 235 (4th Cir. 2008) (“The purpose of the ERIS A mandated appeal pro cess is an important one. That process enables a claimant who is deni ed benefits to have an impartial administrative review, but also make an administrative record for a court review if that later occurs.”); Brogan v. Holland , 105 F.3d 158, 165 (9th Cir. 1997) (“To substa ntially comply with the regulation, the Trustees must have supplied the beneficiary with a statem ent of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator’s position to permit effective review.” (internal quotation marks omitted)).
The exclusion of the judicial review time limits from the adverse benefit determination letter was inconsistent with ensuring a fair oppor tunity for review and re ndered the letter not in substantial compliance. Moreover, “[a] notice th at fails to substantially comply with these [§ 1133] requirements does not trigger a tim e bar contained within the plan.” Burke v. Kodak Ret. Income Plan , 336 F.3d 103, 107 (2d Cir. 2003).
Where an insurance company’s failure to co mply with the procedural requirements of §1133 represents a “significant error on a question of law,” a related claim should be remanded to the appropriate body for review. VanderKlok v. Provident Life & Acc. Ins. Co., Inc. , 956 F.2d 610, 616–17 (6th Cir. 1992); see also McCartha v. Nat’l City Corp. , 419 F.3d 437, 444 (6th Cir. 2005) (“If the denial notice is not in substantia l compliance with § 1133, reversal and remand to the district court or to the plan administrator is ordinarily appropriate.”). Moyer was denied his right to judicial review as a result of MetLife’s failure to comply with §1133. The appropriate remedy is to remand to the district court so that Moyer may now receive judicial review.No. 13-1396 Moyer v Metro. Life Ins. Page 7

B. Summary Plan Description
Moyer also claims that Me tLife breached 29 U.S.C. §1022 by failing to include notice of the right to judicial review and the applicable time limit in the SPD. We need not address this issue because we have already established that MetLife’s inadequate adverse benefit determination letter requires that the dist rict court hear Moye r’s benefit appeal.

III. Conclusion
We accordingly REVERSE and REMAND to th e district court to consider Moyer’s judicial appeal of his ad verse benefit determination.No. 13-1396 Moyer v Metro. Life Ins. Page 8

_________________ DISSENT

_________________ COOK, Circuit Judge, dissenting. In reversing the dist rict court, the majority decides an unargued and unpreserved issue. Contrary to th e majority’s characteri zation of his argument, Moyer nowhere contends that the claim-denial letter violated 29 U.S.C. § 1133. Indeed, Moyer’s brief neither mentions the legal requirements for claim-denial letter s nor cites § 1133 or its implementing regulation, 29 C.F.R. § 2560.503-1. In both the district court and on appeal, Moyer rested his argument on 29 U.S.C. § 1022—the statute that governs summary plan descriptions—referring to the clai m-denial letter only in passing. MetLife thus had no reason to respond to arguments under § 1133, a nd the district court never c onsidered § 1133. The majority nevertheless interprets that statute to require cl aim-denial letters to in clude a warning setting forth the time limit for bringing a civil action under ERISA.
Ample authority counsels against the majority ’s approach. “[W]e rely on the parties to frame the issues for decision and as sign to courts the role of neutral arbiter of matters the parties present.” Greenlaw v. United States , 554 U.S. 237, 243 (2008); accord Carducci v. Regan , 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) (“The pr emise of our adversarial system is that appellate courts do not sit as self-d irected boards of legal inquiry and research . . . .”). And in the argument-forfeiture context, our precedent holds th at “[a]rguments not squarely presented to the district court are not reviewed on appeal.” Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP , --- F.3d ---, 2014 WL 2959066, at *4 (6th Cir. 2014); cf. United States v. Layne , 706 F.3d 741, 756 (6th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived . . . .”). This rule “eases appellate review by having the district court firs t consider the issue [and] ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Rice v. Jefferson Pilot Fin. Ins. Co. , 578 F.3d 450, 454 (6th Cir. 2009). These consider ations apply with even greater force to arguments never raised by the parties.
Moreover, whether 29 C.F.R. § 2560.503-1 requires a claim-de nial letter to state the limitations period for civil actions presents a more difficult issue than the majorityNo. 13-1396 Moyer v Metro. Life Ins. Page 9

acknowledges, buttressing my view th at it errs in interpreting that regulation without the benefit of briefing. True, had Moyer argu ed that MetLife’s claim-denial letter violated § 1133, dicta in Engleson suggests that he would “have a colorable ERISA violation.” See Engleson v. Unum Life Ins. Co. of Am. , 723 F.3d 611, 618 (6th Cir. 2013). Yet, courts elsewhere split on whether the regulation requires a claim-denial lett er to inform a plan participant of both their right to bring a civil action and the action’s limitations period. Compare Ortega Candelaria v. Orthobiologics LLC , 661 F.3d 675, 680 (1st Cir. 2011) (holding that a claim-denial letter must include the limitations period for civil actions) and Novick v. Metr o. Life Ins. Co. , 764 F. Supp. 2d 653, 660

 64 (S.D.N.Y. 2011) (same), with Heimeshoff v. Hartford Life & Accidental Ins. Co. , No. 3:10cv1813 (JBA), 2012 WL 171325, at *6

 7 (D. Conn. Jan. 20, 2012) (holding that a claim-denial letter complied with the regula tion despite omitting the civil action limitations period) and Koblentz v. UPS Flexible Emp. Benefits Plan , No. 12-CV-0107-LAB, 2013 WL 4525432, at *4 & n.5 (S.D. Cal. Aug. 23, 2013) (same).

The Fifth Circuit’s decision in McGowan v. New Orleans Employers International Longshoremen’s Ass’n , 538 F. App’x 495 (5th Cir. 2013), did not hold that a claim-denial letter must always include the time limit to bring an ERISA ac tion. Rather, it held that the letter at issue there—which included the appropriate limitations period—“ substantially complied” with § 1133 even though it failed to include the time limit for submitting an appeal to the plan administrator. Id. at 498. Likewise, the Four th Circuit noted merely that “[t]he civil action is treated as an integral part of [a full and fair review]” before quoting the regulation. White v. Sun Life Assurance Co. of Canada , 488 F.3d 240, 247 n.2 (4th Cir. 2007). And that decision offered no opinion about the requirements of § 1133.
In its validating an unpreserved claim, the majo rity gives short shrift to the “substantial compliance” test that “[t]his circuit applies . . . to determine whether § 1133’s notice requirements have been met.” Wenner v. Sun Life Assurance Co. of Canada , 482 F.3d 878, 882 (6th Cir. 2007). Under our test, “[i]f the communications between the administrator and participant as a whole fulfill the twin purposes of § 1133, the administra tor’s decision will be upheld even where the particular communica tion does not meet those requirements.” Id. (internal quotation marks omitted). The “twi n purposes” of § 1133 are “(1) to notify theNo. 13-1396 Moyer v Metro. Life Ins. Page 10

claimant of the specific reasons for a claim denial , and (2) to provide the claimant an opportunity to have that decision reviewed by the fiduciary .” Id. ; see also 29 U.S.C. § 1133.
Had Moyer presented an argument under § 1133, MetLife could have plausibly responded that its correspondence to Moyer, taken as a whole, fulfilled the purposes of § 1133 and substantially complied with its notice requirements despite omitting the limitations period.
See McGowan , 538 F. App’x at 498 (holding that pens ion fund substantia lly complied with ERISA despite failure to include time limit to submit request for review). But the majority deprives MetLife of this opportunity by taki ng up this issue and ruling in Moyer’s favor sua sponte , short-circuiting the adversarial process. All this precedes the majority’s issuance of a precedential decision on an issue unbriefed by either party.
I would decide the only issue briefed by Moye r and considered by the district court: whether MetLife’s failure to disclose the limitations period in the summary plan description violated § 1022 and 29 C.F.R. § 2520.102-2(b), there by entitling Moyer to e quitable tolling. On that issue, I would affirm the dist rict court’s well-reasoned opinion.
I respectfully dissent.