IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20159

DEBRA SWANSON,

Plaintiff - Appellant

v.

HEARST CORPORATION LONG TERM DISABILITY PLAN,

Defendant - Appellee.

Appeal from the United States District Court 

for the Southern District of Texas 

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

PER CURIAM:

Appellant Debra Swanson challenges the district court’s grant of summary

judgment to Appellee Hearst Corp. Long Term Disability Plan (“the Plan”), on

the grounds that Swanson failed to exhaust administrative remedies prior to

bringing suit. We AFFIRM.

Through her employment with the Houston Chronicle, Appellant Swanson

obtained coverage under a long-term disability benefits policy underwritten and

administered by Hartford Life Insurance Co. (“Hartford”). The policy falls

within the Plan, which is governed by the Employee Retirement Income Security

Act (ERISA), 29 U.S.C. §§ 1001–1461. Swanson received benefits under the

policy beginning in January 2002, but on April 4, 2003, Hartford notified her

United States Court of Appeals

Fifth Circuit

F I L E D

November 3, 2009

Charles R. Fulbruge III

Clerk
No. 09-20159

2

that benefits would terminate because she was cleared to return to work on a

full-time basis. The terms of the Plan allowed Swanson 180 days to appeal this

determination, after which Hartford would have forty-five days—or ninety days

in certain circumstances—to rule on the appeal.

On August 25, 2003, 144 days later, Swanson’s counsel submitted a letter

to Hartford. It indicated that counsel represented Swanson “in her efforts to

reinstate her unlawfully terminated disability and health insurance benefits.”

It further indicated:

Please accept this letter as notice of Debra Swanson’s intention to

appeal your decision terminating her benefits under the above

referenced policy. Once we have had adequate time to review and

supplement the record, we will notify you in writing to proceed with

Debra Swanson’s administrative appeal under the terms of the

Plan.

The letter requested various documents from the Plan, and asked Hartford to

provide counsel with notice of further deadlines.

Hartford did not consider this to be an appeal. Hartford personnel

recorded receipt of the letter in Swanson’s file, and added the following entry to

the file: “Intent to appeal letter rec’d not an appeal – will send out acknow.

letter.” Hartford forwarded the file, including this entry, to Swanson’s counsel.

When the 180-day deadline passed, and Hartford concluded no appeal had been

received, Hartford closed Swanson’s file.

Three and a half years later, on February 23, 2007, the same counsel for

Swanson submitted to Hartford what she now describes as “her brief with

accompanying evidence, including medical records and a vocational expert’s

report.” The cover letter stated that “[t]his firm represents Deborah [sic] C.

Swanson in her ongoing appeal of the Hartford Life Insurance Company’s

unlawful decision . . . to close Ms. Swanson’s claim for continued long-term

disability (“LTD”) benefits.” Hartford did not treat this as an appeal or rule on
No. 09-20159

3

its merits. Rather, on April 21, 2007, Hartford wrote Swanson, rejecting the new

submission as an appeal filed after the 180-day deadline.

Swanson then filed suit in the district court, which granted the Plan’s

motion for summary judgment. Swanson v. Hearst Corp. Long Term Disability

Plan, No. H-08-213, 2009 WL 361469 (S.D. Tex. Feb. 11, 2009). The district

court held that Swanson’s August 25, 2003 letter merely expressed an intention

to appeal in the future, but did not constitute an appeal, and that Swanson’s

failure to file an actual appeal before the 180-day deadline amounted to a failure

to exhaust administrative remedies prior to bringing suit. Id. at *4–5. In the

alternative, the court held that if the August 25, 2003 letter was an appeal, then

the statute of limitations for Swanson’s 2007 suit began running at the latest

when Hartford failed to rule on the appeal within ninety days, and that

Swanson’s suit was time-barred when she filed it more than four years later. Id.

at *5 n.13. The court also rejected Swanson’s argument that the Plan should be

estopped from asserting failure to exhaust administrative remedies. Id. at *6 &

n.15.

This Court reviews summary judgments de novo in ERISA cases, applying

the same standards as the district court. Peace v. Am. Gen. Life Ins. Co., 462

F.3d 437, 439 (5th Cir. 2006). Summary judgment is proper if there is no

genuine issue of material fact and the movant is entitled to a judgment as a

matter of law. Fed. R. Civ. P. 56(c). “We resolve doubts in favor of the

nonmoving party and make all reasonable inferences in favor of that party.”

Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir. 2006). No genuine issue

of material fact exists if the evidence is such that no reasonable juror could find

for the nonmovant. Wheeler v. BL Dev. Corp., 415 F.3d 399, 402 (5th Cir. 2005).

As Swanson concedes, exhaustion of administrative remedies is a

prerequisite to an ERISA action in federal court. See Bourgeois v. Pension Plan
No. 09-20159

 We have recognized a futility exception to the exhaustion requirement, see Bourgeois,

1

215 F.3d at 479, which Swanson invokes in passing. But there is no indication in the record

that Hartford would not have properly considered Swanson’s arguments and evidence if she

had submitted them within the 180-day period. As discussed below, she did not.

 Although Holmes is not precedential, we consider its analysis of the point in question 2

to be persuasive.

4

for the Employees of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir. 2000).1

There is likewise no dispute that in order to exhaust remedies, Swanson needed

to appeal the termination of benefits within 180 days of April 4, 2003.

Swanson challenges the district court’s exhaustion ruling based on the

assertion that she indeed filed her appeal within 180 days. She argues that she

“preserved her right to appeal by sending a letter on August 25, 2003 to Hartford

as notice of her appeal well within the 180 day time limit,” and that “Hartford

was required to issue its decision in writing 45 days after it received the written

request.” We agree with the district court that this argument fails. Swanson’s

August 25 letter was not an appeal; it merely expressed an “intention to appeal.”

Cf. Holmes v. Proctor & Gamble Disability Benefit Plan, No. 06-30956, 228 F.

App’x 377, 379 (5th Cir. 2007) (unpublished) (holding, in the context of

materially similar ERISA appeal procedures, that the plaintiff “did not

substantially comply with the Plan’s appeal procedures [because he] stated only

his intent to appeal the Plan’s decision at some time in the future.”). Swanson’s 2

letter included no factual or substantive arguments, and no evidence. There was

accordingly nothing for Hartford to consider on appeal, and no basis to require

Hartford to “issue its decision in writing 45 days after it received the written

request,” as Swanson proposes. The appropriate materials making Swanson’s

case—her actual appeal—did not arrive until more than three years later.

Swanson also fails to persuade us of any error in the district court’s

conclusion that Hartford was not estopped from invoking failure to exhaust

administrative remedies as an affirmative defense. In Bourgeois, we held that
No. 09-20159

5

an ERISA plan was estopped from enforcing the exhaustion requirement, where

“various officials of the company led Bourgeois on a wild goose chase, effectively

extinguishing his time to apply for benefits.” 215 F.3d at 481. Citing that case,

Swanson argues that Hartford should be estopped from asserting the exhaustion

defense because “no decision was ever issued, in writing or otherwise,” in

response to her August 25, 2003 letter or the February 23, 2007 filing, and

because Hartford did not formally state its position that her initial letter was

inadequate until after the deadline had passed. We ascribe no fault to Hartford

for failing to rule on the merits of the appeal, because we have affirmed the

district court’s conclusion that there was no valid appeal on which to rule. As

to the amount of notice Swanson received, she does not dispute that Hartford

notified her of the Plan’s 180-day appeal deadline at the outset, or that Hartford

forwarded her file to counsel within that time period, including notations

indicating that Hartford did not consider the August 25, 2003 letter to be an

appeal. Swanson cites no provision of the Plan or any other source of law that

would obligate Hartford to send further notices or reminders before concluding

that Swanson failed to timely appeal. Her circumstances are certainly unlike

those in Bourgeois, where the ERISA plan affirmatively misled the applicant.

See 215 F.3d at 481. 

Because we have rejected Swanson’s challenge to the district court’s ruling

that Hartford was entitled to an affirmative defense of failure to exhaust

administrative remedies, it is not necessary for us to consider the district court’s

alternative ground for summary judgment based on the statute of limitations.

The ruling of the district court is AFFIRMED.