### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1346

D ONALD F ESSENDEN

, Plaintiff

‐ Appellant

,

v.

R ELIANCE S TANDARD L IFE I NS

. CO

. and O RACLE USA, I NC

., G ROUP L ONG

T ERM D ISABILITY P LAN

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:15

‐ cv

‐ 00370

— Philip P. Simon

, Judge

.

____________________

A RGUED O CTOBER 30, 2018

— D ECIDED J UNE 25, 2019

____________________

Before W OOD

, Chief Judge

, and S YKES and B ARRETT

, Circuit

Judges

.

B ARRETT

, Circuit Judge

. Donald Fessenden applied for

long

‐ term disability bene fi ts through his former employer’s

bene fi ts plan. After the plan administrator, Reliance Standard

Life Insurance Company, denied the claim, Fessenden sub

‐2 No. 18

‐ 1346

mi tt ed a request for review with additional evidence support

‐ ing it. When Reliance failed to issue a decision within the

timeline mandated by the regulations governing the Em

‐ ployee Retirement Income Security Act of 1974 (ERISA), he

sought review of Reliance’s decision in federal court. Eight

days later, after Fessenden had already fi led suit, Reliance fi

‐ nally issued a decision, again denying Fessenden’s claim.

We must decide whether Reliance’s tardiness a ff ects the

standard of review in the district court. If the decision had

been timely, the court would have applied an arbitrary and

capricious standard because the plan gave Reliance the dis

‐

cretion to administer it. When a plan administrator commits

a procedural violation, however, it loses the bene fi t of defer

‐

ence and a de novo standard applies. We have recognized an

exception, though, and Reliance seeks to take advantage of it:

if the administrator “substantially complies” with the pre

‐

scribed procedures—in other words, if the violation is rela

‐ tively minor—then the court will still defer to the administra

‐

tor’s decision. Reliance argues that it “substantially com

‐ plied” with the deadline because it was only a li tt le bit late.

We reject Reliance’s argument because we hold that the

“substantial compliance” exception does not apply to blown

deadlines. An administrator may be able to “substantially

comply” with other procedural requirements, but a deadline

is a bright line. Because Reliance violated a hard

‐ and

‐ fast ob

‐ ligation, its late decision to deny Fessenden bene fi ts is not en

‐

titled to deference.

I.

Fessenden worked as a Software Engineer Manager for

Oracle USA until January 2008, when he stopped workingNo. 18

‐ 1346 3

due to fatigue and severe, chronic migraine headaches. He ap

‐ plied for short

‐ term disability bene fi ts through Oracle’s em

‐ ployee welfare bene fi ts plan, a fully funded group insurance

policy issued by Reliance. The request was approved, and

Fessenden received bene fi ts through May 11, 2008. Oracle ter

‐

minated Fessenden shortly thereafter.

In March 2014, Fessenden submi tt ed a claim to Reliance

for long

‐ term disability bene fi ts dating back to his last day of

work in 2008. His submission included medical records from

2006 to 2014, as well as statements from multiple doctors, all

supporting his diagnosis of Chronic Fatigue Syndrome. Reli

‐

ance denied his claim in an eleven

‐ page le tt er stating the rea

‐

sons for its decision and emphasizing the di ffi culties involved

in reviewing a six

‐ year

‐ old claim. The le tt er told Fessenden

how to request review of the decision and explained the time

‐

line that would apply to Reliance’s resolution of an appeal:

Reliance would notify Fessenden in writing of its fi nal deci

‐

sion within 45 days of the date that it received a request for

review, unless special circumstances existed. In that event,

Reliance would notify him of the fi nal decision no later than

90 days from the date that it received the request. See 29 C.F.R.

§ 2560.503

‐ 1(i)(1)(i) & (i)(3)(i) (2002).

On April 24, 2015, Fessenden submi tt ed his request for re

‐

view, complete with additional medical records and physi

‐

cians’ statements. But he sent it to an address di ff erent from

the one included in the instructions, and Reliance did not con

‐

fi rm receipt of it until May 8. On June 17, Reliance noti fi ed

Fessenden that it needed an additional 45 days to make its

determination, and on August 27, it entered its fi nal decision

denying Fessenden’s claim for long

‐ term disability bene fi ts.

The parties disagree on when exactly Reliance’s 90 days were4 No. 18

‐ 1346

up, but they all agree that Reliance made its fi nal decision af

‐

ter the window had closed. 1

Before the fi nal decision issued, but after the deadline had

passed, Fessenden sued Reliance and Oracle under ERISA

, see

29 U.S.C. § 1132; 29 C.F.R. § 2560.503

‐ 1(l) (2002), maintaining

that he quali fi ed for disability bene fi ts under the plan. Nor

‐ mally, the lack of a fi nal decision would mean that

Fessenden’s suit was premature, because an insured must ex

‐

haust the plan’s review process before taking the dispute to

federal court. See Edwards v. Briggs & Stra tt on Retirement Plan

,

639 F.3d 355, 360 (7th Cir. 2011). But when a plan administra

‐

tor fails to follow required procedures, such as deadlines for

issuing decisions, “a claimant shall be deemed to have ex

‐

hausted the administrative remedies available under the

plan,” 29 C.F.R. § 2560.503

‐ 1(l) (2002), and can seek judicial

review even if the plan’s internal process has not run its

course, see Edwards

, 639 F.3d at 360.

The absence of a final decision affects more than the tim

‐ ing of a suit—it also affects the standard of review. When a

benefit plan gives the administrator discretionary authority to

determine a claimant’s eligibility for benefits, we typically re

‐

view the denial of benefits under an arbitrary and capricious

standard. See id. That standard reflects deference to the ad

‐

ministrator’s exercise of discretion. See id. ; see also Conkright v.

Frommert

, 559 U.S. 506, 517–18 (2010). But when an adminis

‐

trator fails to render a final decision, there is no valid exercise

1 The disagreement is primarily about the operation of the regulations’

tolling provisions. For our purposes, though, the only thing that matters

is that the decision was untimely. Because we hold that the “substantial

compliance” standard is inapplicable to ERISA’s regulatory deadlines, it

doesn’t matter how late it was.No. 18

‐ 1346 5

of discretion to which the court can defer, and it decides de

novo whether the insured is entitled to benefits. See Trs. of

Cent. States, Se. & Sw. Areas Health and Welfare Fund v. State

Farm Mut. Auto. Ins. Co.

, 17 F.3d 1081, 1083 (7th Cir. 1994)

(“Deferential review is appropriate only when the trust in

‐

strument allows the trustee to interpret the instrument and

when the trustee has in fact interpreted the instrument .” (emphasis

added)); see also Gritzer v. CBS, Inc

., 275 F.3d 291, 296 (3d Cir.

2002) (“ Where a trustee fails to act or to exercise his or her

discretion, de novo review is appropriate because the trustee

has forfeited the privilege to apply his or her discretion; it is

the trustee’s analysis, not his or her right to use discretion or

a mere arbitrary denial, to which a court should defer.”).

Here, however, Reliance did issue a fi nal decision—it was

just late in coming. Fessenden fi led his suit on August 19, and

Reliance denied his request for review on August 27. At that

point, Fessenden sought to clarify the standard that the dis

‐

trict court would apply in reviewing his claim. He urged the

district court to ignore Reliance’s August 27 decision and re

‐

view his claim and supporting evidence de novo. According

to Fessenden, Reliance forfeited the bene fi t of deference when

it blew the deadline.

Reliance, on the other hand, suggested that a late decision

is di ff erent from a case in which an administrator altogether

fails to render a decision. See, e.g.

, Gilbertson v. Allied Signal

, Inc.

, 328 F.3d 625, 632 (10th Cir. 2003); Gri tz er

, 275 F.3d at 295–

96. Reliance complied with its obligation to resolve

Fessenden’s appeal; it was just a li tt le bit late in doing so. And

because it was only a li tt le bit late, Reliance insisted that the

district court should excuse its untimeliness under the doc

‐

trine of “substantial compliance.” Under that doctrine, “a6 No. 18

‐ 1346

plan administrator who has violated a technical rule under

ERISA

... may be excused for the violation if the administra

‐

tor has been substantially compliant with the requirements of

ERISA.” Edwards

, 639 F.3d at 361–62. In such cases, “a plan

administrator, notwithstanding [its] error, is given the bene fi t

of deferential review of the administrator’s determination

about a claim under the arbitrary and capricious standard

..., rather than more stringent de novo review.” Id. at 362.

Fessenden argued that the timing regulation precluded

application of the substantial compliance exception; that Reli

‐

ance had not substantially complied with the deadline in any

event; and that even if Reliance had substantially complied,

its decision to deny him bene fi ts was arbitrary and capricious.

The district court sided with Reliance on all three issues and

entered summary judgment in its favor.

II.

Fessenden suggests that we abandon the substantial com

‐ pliance exception altogether. The exception is judge

‐ made.

See Burns v. Orthotek, Inc. Employees’ Pension Plan & Tr., 657

F.3d 571, 575 (7th Cir. 2011) (“The concept of substantial com

‐ pliance is part of the body of federal common law that the

courts have developed for issues on which ERISA does not

speak directly.” (quoting Davis v. Combes, 294 F.3d 931, 940

(7th Cir. 2002)). As a common

‐ law doctrine, it cannot override

regulations that ERISA has authorized the Department of La

‐

bor to adopt. And although both the statute and regulations

were once silent about the effect of minor procedural viola

‐

tions on the standard of review, Fessenden claims that this

changed in 2002, when an amendment adding a provision to

specifically address “failure to establish and follow reasona

‐

ble claims procedures” became effective:No. 18

‐ 1346 7

In the case of the failure of a plan to establish or follow

claims procedures consistent with the requirements of

this section, a claimant shall be deemed to have ex

‐

hausted the administrative remedies available under

the plan and shall be entitled to pursue any available

remedies under section 502(a) of the Act on the basis

that the plan has failed to provide a reasonable claims

procedure that would yield a decision on the merits of

the claim.

29 C.F.R. § 2560.503

‐ 1(l) (2002). 2 While this provision does not

explicitly discuss the relative severity of violations—or corre

‐ sponding standards of review—Fessenden points to the reg

‐

ulations’ preamble, which provides that “[t]he Department’s

intentions in including [subsection (l)] in the proposal were to

clarify that the procedural minimums of the regulation are es

‐

sential to procedural fairness and that a decision made in the

absence of the mandated procedural protections should not

be entitled to any judicial deference.” ERISA Rules and Regu

‐

lations for Administration and Enforcement; Claims Proce

‐

dures, 65 Fed. Reg. 70246, 70255 (Nov. 21, 2000). According to

Fessenden, this is authoritative evidence that subsection (l)

mandates the loss of judicial deference to plan administrators

for any procedural violation. In other words, Fessenden says,

the 2002 version of the regulation makes clear that the sub

‐

stantial compliance exception no longer applies.

2 The regulation was amended in 2000, but the amendments apply

only to claims filed on or after January 1, 2002. See 65 Fed. Reg. 70265,

70271 (Nov. 21, 2000).8 No. 18

‐ 1346

Fessenden invokes Halo v. Yale Health Plan to support his

interpretation. See 819 F.3d 42 (2d Cir. 2016). In Halo

, the Sec

‐

ond Circuit vacated a district court opinion that had applied

deferential arbitrary and capricious review to claim denials

that failed to strictly comply—but nevertheless substantially

complied—with ERISA regulations governing both the sub

‐

stance and timing of such decisions. Id. at 45–47. The court

emphasized that the 2002 ERISA regulations radically over

‐

hauled the earlier version, and it focused particularly on the

addition of subsection ( l). Id. at 49–57. Because that provision

“admittedly says nothing about standards of review,” id. at

53, the court determined that it was “at least ambiguous with

respect to the standard of review” that should be applied to

decisions that fail to comply with proper claims procedures,

id. at 54. It also considered the Department’s interpretation of

subsection (l), as reflected in the preamble, which states that

“a decision made in the absence of the mandated procedural

protections should not be entitled to any judicial deference .” Id. at

53 (citation omitted).

While the court found the preamble instructive, the pre

‐

amble did not resolve the question “whether a plan need only

substantially comply with or must strictly adhere to the regu

‐

lation to obtain the more deferential arbitrary and capricious

standard of review.” Id. at 56. On this question, the court con

‐

sidered the Department of Labor’s choices during the drafting

of subsection (l) to be conclusive. Id

. After the Department

proposed adding subsection (l), “commentators representing

employers and plans argued that this provision would im

‐

pose unnecessarily harsh consequences on plans that substan

‐ tially fulfill the requirements of the regulations, but fall short

in minor respects.” Id. at 57 (citation omitted). Those commen

‐

tators suggested replacing subsection (l) with a more flexibleNo. 18

‐ 1346 9

standard, but the Department rejected those suggestions and

left the language as it was. Id. Thus, the court held, “[w]hat

‐

ever the merits of applying the substantial compliance doc

‐

trine under the 1977 claims

‐ procedure regulation, we con

‐

clude that the doctrine is flatly inconsistent with the [2002]

regulation.” Id. at 56; see also Rasenack ex rel. Tribolet v. AIG Life

Ins. Co.

, 585 F.3d 1311, 1316 (10th Cir. 2009) (“The 2002 amend

‐

ments have, however, called into question the continuing va

‐ lidity of the substantial compliance test we have used to avoid

creating a rule that would automatically permit de novo re

‐

view for every violation of the deadlines.”).

Halo is inconsistent with our case law because we have ap

‐ plied the substantial compliance doctrine even since the 2002

regulations became e ff ective. See, e.g.

, Edwards

, 639 F.3d at

361–62; Ponse tt i v. GE Pension Plan

, 614 F.3d 684, 693 (7th Cir.

2010); Schneider v. Sentry Group Long Term Disability Plan

, 422

F.3d 621, 626–29 (7th Cir. 2005); Kough v. Teamsters’ Local 301

Pension Plan

, 437 F. App’x 483, 486 (7th Cir. 2011). 3 But we

3 A more recent revision to the regulations expressly overrides the

substantial compliance doctrine in favor of a new standard. See 29 C.F.R.

§ 2560.503

‐ 1(l)(2)(i) (2018) (“In the case of a claim for disability benefits, if

the plan fails to strictly adhere to all the requirements of this section with

respect to a claim, the claimant is deemed to have exhausted the adminis

‐

trative remedies available under the plan

... .”); id. § 2560.503

‐ 1(l)(2)(ii)

(“[T]he administrative remedies available under a plan with respect to

claims for disability benefits will not be deemed exhausted based on de

minimis violations that do not cause, and are not likely to cause, prejudice

or harm to the claimant so long as the plan demonstrates that the violation

was for good cause or due to matters beyond the control of the plan and

that the violation occurred in the context of an ongoing, good faith ex

‐ change of information between the plan and the claimant.”). Thus, the de

‐

bate about the continued vitality of the substantial compliance doctrine is

moot for cases governed by the new regulations.10 No. 18

‐ 1346

need not decide whether we have been wrong to do so be

‐

cause we can decide the case on a narrower ground: even if

the substantial compliance doctrine remains valid, it does not

apply to the violation of regulatory deadlines.

The 2002 regulations strike a delicate balance between the

administrator’s need for more time and the claimant’s need

for a timely decision. After all, the administrator’s interests

are not the only ones at stake; delaying payment of a claim

imposes fi nancial pressure on the claimant. That pressure is

particularly acute for a disability claimant, who applies for

disability bene fi ts because she is unable to work and therefore

unable to generate income. Given the seriousness of that bur

‐

den, the new regulations single out disability claims for

quicker review than other kinds of claims. 29 C.F.R.

§ 2560.503

‐ 1(i)(3)(i) (2002).

When a claimant seeks review of an administrator’s denial

of bene fi ts, the administrator must review the claim “not later

than” a speci fi ed period of time—45 days for disability claims

and 60 days for others. Id. § 2560.503

‐ 1(i)(1)(i); s ee also id.

§ 2560.503

‐ 1(i)(3)(i). The administrator can extend that time,

but only when “special circumstances” apply. Id. § 2560.503

‐

1(i)(1)(i) & (i)(3). During the extension period, a tolling mech

‐

anism protects the administrator from delay on the part of the

claimant. Id. § 2560.503

‐ 1(i)(4) (“In the event that a period of

time is extended

... the period for making the bene fi t deter

‐

mination on review shall be tolled from the date on which the

noti fi cation of the extension is sent to the claimant until the

date on which the claimant responds to the request for addi

‐

tional information.”). But when that time is up, it’s up: the

regulation provides that “ in no event shall such extension ex

‐

ceed [the allo tt ed] period.” Id. § 2560.503

‐ 1(i)(1)(i) (emphasisNo. 18

‐ 1346 11

added). That period is 45 days for disability claims and 60

days for others. Id. § 2560.503

‐ 1(i)(3)(i) (“[C]laims involving

disability bene fi ts

... shall be governed by paragraph (i)(1) of

this section, except that a period of 45 days shall apply instead

of 60 days for purposes of that paragraph.”).

A court that excused even more administrative delay

would upset the careful balance that the regulations strike be

‐

tween the competing interests of administrators and claim

‐

ants. 4 It would also run afoul of § 2560.503

‐ 1(i)(1)(i), which

says that “ in no event” can a deadline be extended further.

That language excludes nothing— no event

, however reasona

‐

ble or harmless—from its scope. Substantial compliance with

a deadline requiring strict compliance is a contradiction in

terms. Cf. Burns

, 657 F.3d at 575 (holding that the doctrine of

substantial compliance “cannot cure” the violation of an “ex

‐ plicit statutory requirement” in ERISA’s text). The very point

of a deadline is to impose a hard stop. Cf. United States v. Mar

‐

cello

, 212 F.3d 1005, 1010 (7th Cir. 2000) (“Foreclosing litigants

from bringing their claim because they missed the fi ling dead

‐

line by one day may seem harsh, but courts have to draw lines

somewhere

... .”). Because the administrator lacks discretion

to take longer than the regulations allow, its tardy decision is

not entitled deference.

The regulations are not the only reason that Reliance’s ar

‐

gument fails—applying the substantial compliance doctrine

4 The old version of the regulations did not attempt this same balanc

‐ ing act. Instead, that version gave administrators the same amount of time

to review disability claims as it did all other claims, and it did not toll the

time for a decision on review while the administrator waited for addi

‐

tional information from the claimant. Compare 29 C.F.R. § 2560.503

‐ 1(h)(1)(i) (1977), with id. § 2560.503

‐ 1(i)(1)(i), (i)(3)(i), & (i)(4) (2002).12 No. 18

‐ 1346

to blown deadlines is incompatible with the doctrine itself.

We have said that an administrator substantially complies

with ERISA’s requirements if, despite the regulatory viola

‐

tion, it provides su ffi cient process and information to permit

“e ff ective review” of its denial of bene fi ts. See Schneider

, 422

F.3d at 627–28 (explaining that the substantial compliance

doctrine is subservient to ERISA’s broad goal of ensuring that

the process and explanation accompanying a denial of bene

‐

fi ts “is adequate to ensure meaningful review of that denial.”

(citation omi tt ed)). For example, we might overlook an ad

‐

ministrator’s failure to strictly comply with the regulations

governing the content of le tt ers giving notice of bene fi t deter

‐

minations so long as “the bene fi ciary [was] supplied with a

statement of reasons that, under the circumstances of the case,

permi tt ed a su ffi ciently clear understanding of the adminis

‐

trator’s position to permit e ff ective review.” Id. at 628 (citation

omi tt ed). This standard cannot be applied to an untimely de

‐

cision because there is nothing to review at the time that ad

‐

ministrative remedies are deemed exhausted. There is no ex

‐ planation for a claimant to read and understand. And if the

claimant fi les suit before the decision arrives, there is neither

an exercise of discretion to which a court could defer nor an

‐ ything for the court to use to measure the degree of the ad

‐

ministrator’s compliance. See Univ. Hosp. of Cleveland v. Emer

‐

son Elec. Co.

, 202 F.3d 839, 846 n.3 (6th Cir. 2000) (“[T]here is

undeniable logic in the view that a plan administrator should

forfeit deferential review by failing to exercise its discretion in

a timely manner.”).

Fessenden’s case highlights the point. After Reliance’s ini

‐

tial decision denying him bene fi ts, Fessenden had the oppor

‐ tunity to submit additional evidence to Reliance to support

his claim on review. See 29 C.F.R. § 2560.503

‐ 1(h)(2)(ii) (2002).No. 18

‐ 1346 13

He did so, providing extensive documentation and medical

evaluations. After Reliance failed to issue a decision on this

new record, Fessenden fi led suit in federal court. Thus, when

litigation began, the district court was presented with a claim

for bene fi ts based on evidence that, for all Fessenden and the

court knew, Reliance had not yet considered, and had cer

‐ tainly not accounted for in any decision on Fessenden’s claim.

Both Fessenden and the court necessarily lacked a “su ffi‐

ciently clear understanding of the administrator’s position to

permit e ff ective review.” See Schneider

, 422 F.3d at 628 (cita

‐

tion omi tt ed). The court could not have measured how com

‐ pliant Reliance had been because Reliance had not yet com

‐ plied at all. And in the absence of a decision to which it could

defer, the district court had no choice but to review the claim

de novo.

Reliance’s position that an administrator can change the

standard of review with a late

‐ breaking decision would there

‐

fore be a novel application of the substantial compliance doc

‐

trine. And permi tt ing that novelty would undercut the bene

‐

fi ts of exhaustion for claimants. A claimant is entitled to sue

as soon as a claim is deemed exhausted because the adminis

‐

trator has failed to make a timely decision. But Reliance’s po

‐

sition would leave such a claimant in an uncertain position.

Should she wait a li tt le bit longer just in case the administrator

makes a decision? Or should she go ahead, a tt empting to

frame her case in a way that is responsive to a decision that

hasn’t yet—but may still—come? Moreover, an administrator

who has more time may get an unfair advantage: it could

sandbag a claimant who sues at the point of exhaustion by

issuing a decision tailored to combat her complaint. See Jebian

v. Hewle tt‐ Packard Co. Emp. Bene fi ts Org. Income Prot. Plan

, 349

F.3d 1098, 1104 (9th Cir. 2003) (“[A] contrary rule would allow14 No. 18

‐ 1346

claimants, who are entitled to sue once a claim had been

‘deemed denied,’ to be ‘sandbagged’ by a rationale the plan

administrator adduces only after the suit has commenced.”);

see also Fed. Power Comm. v. Texaco, Inc.

, 417 U.S. 380, 394–97

(1974) (acknowledging that the Commission had “great dis

‐

cretion” but explaining that failure to exercise that discretion

at the appropriate time cannot be remedied with “post hoc

rationalizations” (citation omi tt ed)). In short, giving adminis

‐

trators a post

‐ exhaustion grace period creates problems.

We acknowledge that some of our sister circuits have been

willing to apply the substantial compliance exception to

blown deadlines. See Gilbertson

, 328 F.3d at 634–35 (applying

the substantial compliance doctrine to an administrator’s un

‐ timely decision under the pre

‐ 2002 regulation); Jebian

, 349

F.3d at 1108 (“Absent unusual circumstances, an administra

‐

tor engaged in a genuine, productive, ongoing dialogue that

substantially complies with a plan’s and the regulations’ time

‐

lines should remain entitled to whatever discretion the plan

documentation gives it.”); see also Becknell v. Severance Pay Plan

of Johnson & Johnson

, 644 F. App’x 205, 213 (3d Cir. 2016) (con

‐ ducting deferential review because “[the plan administra

‐

tor’s] late decision does not rise to the level of a severe proce

‐

dural violation”). These circuits have seen no difference be

‐

tween forgiving tardiness and forgiving violations of other

procedural requirements.

We disagree. 5 As an initial matter, it is worth noting that

many of the circuits currently applying the exception to

5 This opinion has been circulated among all judges of this court in

regular service. See 7th Cir. R. 40(e). No judge favored a rehearing en banc

on the question whether failure by a plan administrator to strictly complyNo. 18

‐ 1346 15

missed deadlines have relied on precedent that predates the

2002 version of the regulations. The earlier version offered a

much less nuanced approach to balancing the competing

interests at stake, which subjected the goals of ERISA to

different kinds of gamesmanship and perverse incentives. See

Gilbertson

, 328 F.3d 634–35; see id. at 629 n.3, 631 n.4. For

example, because the old regulations did not include tolling

provisions to stop the clock while the administrator was

waiting on information from the claimant, “claimants might

[have been] encouraged to delay a final decision by

suggesting that they intend[ed] to produce additional

information, only to pull the plug and demand de novo review

in federal court on the [last] day.” Id. at 635. The substantial

compliance doctrine allowed courts the flexibility to police

such gamesmanship and avoid results that would be

“antithetical to the aims of ERISA.” Id. But the amendments

reflected in the 2002 regulations address the incentives

concern head

‐ on by including more detailed and balanced

provisions on timing and tolling. Thus, the oft

‐ invoked

rationale for applying the exception to missed deadlines no

longer exists.

Yet whatever its merits under prior versions of the regula

‐

tions, we hold that excusing late decisions is both foreclosed

by the 2002 regulations and incompatible with the doctrine. It

is also in signi fi cant tension with our own precedent. In Ed

‐

wards v. Briggs & Stra tt on Retirement Plan

, a claimant who

missed a deadline argued that the substantial compliance ex

‐ ception should excuse her untimeliness. 639 F.3d at 361–62.

We rejected her argument. At the outset, we observed that we

with ERISA’s regulatory deadlines results in de novo review of a benefits

denial.16 No. 18

‐ 1346

had never applied the doctrine to excuse the mistakes of

claimants, as opposed to administrators. Id. at 362. But we also

emphasized:

[I]t seems consistent neither with the policies underly

‐ ing the requirement of exhaustion of administrative

remedies in ERISA cases nor with judicial economy to

import into the exhaustion requirement the substantial

compliance doctrine. To so hold would render it e ff ec

‐ tively impossible for plan administrators to fi x and en

‐

force administrative deadlines while involving courts

in detailed, case

‐ by

‐ case determinations as to whether

a given claimant’s failure to bring a timely appeal from

a denial of bene fi ts should be excused or not.

Id. ; see also id. (“[T]he Plan has fi xed a clear deadline of 180

days for fi ling administrative appeals from denials of bene fi ts,

and the Plan has the right to enforce that deadline.”). That rea

‐ soning applies equally to deadlines that bind plan adminis

‐

trators. What’s good for the goose is good for the gander.

* * *

Because the doctrine of substantial compliance does not

apply to ERISA’s regulatory deadlines, Fessenden’s claim

should have been reviewed de novo. We therefore VACATE

the district court’s summary judgment determination and

REMAND for proceedings consistent with this opinion.