1 IN THE UNITED STATES COURT OF APPEALS

2 FOR THE FIFTH CIRCUIT

3 _______________

4 No. 92-1147

5 _______________

6 CRYSTAL CAMMACK MEDINA,

7 Plaintiff-Appellant,

8 VERSUS

9 ANTHEM LIFE INSURANCE COMPANY,

10 f/k/a American General Group Insurance Co.,

11 Defendant-Appellee.

12 _________________________

13 Appeal from the United States District Court

14 for the Northern District of Texas

15 _________________________

16 (January 28, 1993)

17 Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

18 JERRY E. SMITH, Circuit Judge:

19 Crystal Cammack Medina sought to amend her complaint to add

20 claims for recovery of extracontractual and punitive damages from

21 her insurance carrier, Anthem Life Insurance Company ("Anthem"),

22 under section 502(a)(1)(B) of the Employee Retirement Income

23 Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). She

24 also sought recovery from Anthem of certain payments she had made

25 to one of her doctors. The district court refused to find that

26 section 502(a)(1)(B) allows extracontractual and punitive relief

27 and also refused to grant Medina recovery of other payments because
2

28 she failed to exhaust administrative remedies. We affirm.

29 I.

30 Medina works for Credit Finance Corporation, which is insured

31 by Anthem, which presently insures Medina. In January 1988, Medina

32 began a course of dental treatments during which her doctor

33 submitted a request to Anthem for predetermination of a dental

34 procedure. Anthem's claim committee reviewed the request,

35 concluded that sufficient evidence did not exist to prove the

36 medical necessity of the procedure, and refused to pay any benefit.

37 Medina's doctor submitted the request again in 1990; Anthem's claim

38 committee further reviewed the request and once again reached the

39 same conclusion.

40 In April 1990, Medina sought a second opinion from another

41 doctor, who recommended a different procedure. Anthem's claim

42 committee still determined that it would not cover the procedure.

43 In June, Medina's attorney wrote to Anthem seeking to convince

44 Anthem to approve the new procedure. Anthem sent Medina's records

45 to the Medical Review Institute of America for an independent

46 evaluation. When the institute recommended going forward with the

47 procedure, Anthem approved the procedure on August 16, 1990.

48 The next day, Medina brought suit against Anthem in state

49 court, seeking $10,035 as the cost of treatment, $50,000 for pain

50 and suffering and mental anguish, and $500,000 in punitive damages.

51 Anthem removed the case to federal court.

52 Medina then filed an amended complaint that acknowledged that
3

53 ERISA preempts her state law remedies. She requested that the

54 court clarify her rights to future benefits, enjoin Anthem's "acts

55 and practices," and award her costs and attorneys' fees.

56 On October 16, 1991, Medina sought leave to file a second

57 amended complaint to add a claim for extracontractual and punitive

58 damages based upon Anthem's handling of her claims. The magistrate

59 judge refused to allow Medina to amend her complaint, finding that

60 ERISA precludes the award of extracontractual and punitive relief.

61 On November 18, 1991, Anthem moved to dismiss the complaint

62 for failure to exhaust administrative remedies. Anthem argued that

63 it had paid all claims that Medina had submitted in accordance with

64 its policy. All that remained was a disputed $1,363.20 that Medina

65 averred to have paid her doctor for the latest procedure she had

66 undergone. Anthem asserted that Medina never submitted proper

67 documentation to Anthem's claims department, so Anthem had no

68 obligation to reimburse Medina. The magistrate judge agreed and

69 dismissed Medina's complaint for failure to exhaust administrative

70 remedies. 

71 II.

72 We turn first to Medina's contention that the magistrate judge

73 erred in refusing to allow Medina to amend her complaint to add a

74 claim for extracontractual and punitive damages. Medina urges us

75 to develop a body of federal common law to supplement the express

76 provisions of ERISA, which include no mechanism for awarding

77 extracontractual or punitive damages. Joining the Seventh and
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78 Eleventh Circuits, we decline this invitation.

79 ERISA section 502(a) is the civil enforcement provision of the

80 statute. It provides that

81 [a] civil action may be brought ))

82 (1) by a participant or beneficiary ))

83 . . .

84 (B) to recover benefits due to him under the terms

85 of his plan, to enforce his rights under the

86 terms of the plan, or to clarify his rights to

87 future benefits to under the terms of the plan

88 . . . .

89 The plain language of this statute does not mention recovery of

90 extracontractual or punitive damages. Nothing in the statute

91 instructs us to fashion a federal common law remedy to grant

92 plaintiffs the right to recover punitive or extracontractual

93 damages. Nevertheless, Medina asks us to do just that.

94 Medina points to legislative history that indicates a

95 willingness on the part of Congress to allow federal courts to mold

96 a federal common law of ERISA. The Conference Report describing

97 ERISA section 502(a) states that a plan beneficiary may bring a

98 civil action 

99 to recover benefits under the plan which do not involve

100 application of the title I provisions . . . [and suits]

101 may be brought not only in U.S. district courts but also

102 in State courts of competent jurisdiction. All such

103 actions in Federal or State courts are to be regarded as

104 arising under the laws of the United States in similar

105 fashion to those brought under section 301 of the Labor106 Management Relations Act of 1947. 

107 H.R. Conf. Rep. No. 1280, 93d Cong., 2d Sess. 327, reprinted in

108 1974 U.S.C.C.A.N. 4639, 5107. As late as 1989, the House Budget

109 Committee "reaffirmed the authority of the federal courts to shape
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110 legal remedies to fit the facts and circumstances of the cases

111 before them, even though those remedies may not be specifically

112 mentioned in ERISA itself." Report of the Comm. on the Budget,

113 House of Rep., 101st Cong., 1st Sess. 55-56 (1989). 

114 Unfortunately for Medina, Congress has had almost two decades

115 to enact its putative intent into law and has not done so. Had

116 Congress intended to develop ERISA remedies additional to the ones

117 it specifically crafted, it has had ample opportunity to enact such

118 legislation. Since Congress has not translated its intent into

119 law, we are loathe to take this initiative on our own.

120 In Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52 (1987), the

121 Court considered whether Congress meant for the civil enforcement

122 provisions of section 502(a) to be the exclusive remedy for

123 beneficiaries. While the Court directed its opinion to the

124 question of whether ERISA preempts a state law claim for improper

125 processing of disability benefits, and decided that ERISA did

126 preempt, it also noted that the text of the statute argues

127 "strongly for the conclusion that ERISA's civil enforcement

128 remedies were intended to be exclusive." Id. at 54. The Court

129 concluded that the "`carefully integrated civil enforcement

130 provisions found in § 502(a) of the statute as finally

131 enacted . . . provide strong evidence that Congress did not intend

132 to authorize other remedies that it simply forgot to incorporate

133 expressly.'" Id. (quoting Massachusetts Mut. Life Ins. Co. v.

134 Russell, 473 U.S. 134, 146 (1983)). 

135 In Russell, 473 U.S. at 144, the Court also addressed section
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136 502(a)(1)(B). Although the issue at bar in that case was whether

137 a fiduciary to a plan may be held liable for extracontractual or

138 punitive damages under ERISA section 409(a), the Court turned to

139 section 502(a)(1)(B) for insight by analogy. Id. It noted that

140 since that section "says nothing about the recovery of

141 extracontractual damages . . . there really is nothing at all in

142 the statutory text to support the conclusion" that the statute

143 intended to give "rise to a private right of action for

144 compensatory or punitive relief." Id. The Court held that

145 Congress did not intend for section 409(a) to include any relief

146 outside of that expressly authorized by the statute. Id.

147 Medina points out that the Court more recently has addressed

148 this issue in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111

149 S. Ct. 478, 486 (1990). In a case once more holding that ERISA

150 preempts state law claims for damages for wrongful discharge, the

151 Court mentioned in dicta that "there is no basis in § 502(a)'s

152 language for limiting ERISA actions to those which seek `pension

153 benefits.' It is clear that the relief requested here

154 [compensatory and punitive damages] is well within the power of

155 federal courts to provide." Id.

156 Both the Seventh and Eleventh Circuits have considered

157 Ingersoll-Rand and nevertheless have refused to fashion an

158 extracontractual or punitive remedy under section 502(a). In McRae

159 v. Seafarers' Welfare Plan, 920 F.2d 819, 821 n.7 (11th Cir. 1991),

160 Judge Wisdom, sitting by designation, explained the Ingersoll-Rand

161 dicta as follows:
 

1 See also Reinking v. Philadelphia Life Ins. Co., 910 F.2d 1210, 1219

(4th Cir. 1990) (denying claim for extracontractual damages for emotional

distress).

7

162 We do not interpret these statements to mean that the

163 remedies which the plaintiff in Ingersoll-Rand was

164 seeking )) future lost wages, mental anguish and punitive

165 damages )) are necessarily available under ERISA

166 § 502(a). The Supreme Court was stating that federal law

167 provides relief for ERISA actions other than those that

168 seek to recover pension benefits, such as the plaintiff's

169 cause of action for wrongful termination. The Supreme

170 Court is not holding that the specific remedies this

171 plaintiff had sought under state law are necessarily the

172 remedies that will be afforded him should he be granted

173 relief under ERISA § 502.

174 The court then went on to rely upon the reasoning in Russell to

175 hold that section 502(a)(3) precludes extracontractual remedies.

176 Id. at 822. It refused to "create a federal common law of remedies

177 for the benefit of the plaintiff on the sole authority of the House

178 Committee Report." Id. at 823.

179 Similarly, in Harsch v. Eisenberg, 956 F.2d 651, 660 (7th

180 Cir.), cert. denied, 113 S. Ct. 61 (1992), the court dealt with the

181 Ingersoll-Rand dicta by declaring,

182 We are not rash enough to believe that the Court intended

183 to overrule settled law in most of the circuits, as well

184 as narrowly limit )) if not overrule )) its own decision

185 in Russell in such an off-hand manner . . . . We will

186 continue to doubt the availability of extracontractual

187 damages under ERISA until a more plausible signal reaches

188 us from above.

189 The court held that neither extracontractual nor punitive damages

were available under section 502(a)(1)(B). Id. at 660-61.1 190

191 We join the other circuits that have held that section

192 502(a)(1)(B) does not allow the recovery of extracontractual or

193 punitive damages. Like the court in Harsch, we are reluctant to
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194 believe that the Supreme Court intended us to create a body of

195 federal common law based upon an off-hand statement in Ingersoll196 Rand. The more direct language in Pilot Life, 481 U.S. at 54, and

197 Russell, 473 U.S. at 144, shows that the Court felt that the

198 statutory enforcement scheme Congress crafted for ERISA in section

199 502(a) did not include a private remedy for extracontractual and

200 punitive damages. Without explicit instructions from Congress, we

201 are bound to the plain language of the statute that limits suits to

202 the terms of the plan at issue, rather than arbitrarily extending

203 its scope to include suits for extracontractual and punitive

204 damages. The magistrate judge correctly refused to allow Medina to

205 amend her complaint to include a claim for extracontractual and

206 punitive damages under section 502(a)(1)(B).

207 III.

208 We turn next to the issue of whether the magistrate judge

209 properly dismissed Medina's claim for failure to exhaust

210 administrative remedies. We first note that Medina's brief admits

211 that Anthem has paid all benefits due her in full. The only

212 possible claim that might remain is the disputed bill for

213 $1,363.20.

214 On July 11, 1991, Medina answered interrogatories put to her

215 by Anthem. In answer to Interrogatory No. 11, Medina claimed that

216 Anthem owed her $1,363.20 for a medical bill that Medina had paid

217 and for which Anthem had not reimbursed her.

218 In its motion to dismiss for failure to exhaust administrative
 

2 See Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir. 1990) (ERISA

claimant who failed to file claim with insurance company failed to exhaust

administrative remedies, so no cause of action existed); Meza v. General

Battery Corp., 908 F.2d 1262, 1279 (5th Cir. 1990) (plaintiff may not make

initial claim for benefits in a lawsuit); Denton v. First Nat'l Bank, 765 F.2d

1295, 1303 (5th Cir. 1985) (Congress intended ERISA claimants to exhaust

administrative remedies before resorting to federal courts). 

9

219 remedies, Anthem responds that it refused to reimburse Medina

220 because she never filed any documentation with Anthem's claims

221 department showing that she had paid the bill. Anthem asserts that

222 it cannot process a claim unless it has received that claim and

223 that it maintains a reasonable claim submission policy that Medina

224 has ignored. Anthem assures us that if Medina takes the initial

225 step of submitting a claim, it will calculate her benefits

226 accordingly.

227 As the magistrate judge noted, we have fully endorsed the

228 prerequisite of exhaustion of administrative remedies in the ERISA

context.2 229 One of the policies underlying the exhaustion

230 requirement was Congress's desire that ERISA trustees, not federal

231 courts, be responsible for their actions so that not every ERISA

232 action becomes a federal case. Denton, 765 F.2d at 1300.

233 We find that Medina has not exhausted her administrative

234 remedies regarding the unpaid $1,363.20 bill. Medina has never

235 filed a claim for the disputed sum. She obviously knows how

236 Anthem's claims procedure operates, as she previously has filed

237 claims for which Anthem reimbursed her. Medina may not make her

238 first claim for the unpaid $1,363.20 in this lawsuit but must

239 follow proper procedures in filing a claim with Anthem. Since she

240 has not exhausted her administrative remedies, the magistrate judge
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241 correctly dismissed her complaint.

242 IV.

243 In summary, we refuse to fashion federal common law that would

244 allow recovery of extracontractual and punitive damages under ERISA

245 section 502(a)(1)(B). We also find that Medina failed to exhaust

246 her administrative remedies by failing to file a claim with Anthem

247 for the disputed $1,363.20. Consequently, we AFFIRM the judgment

248 of dismissal.