Submitted: September 26, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Life Insurance Company, a plan administrator under the
Employee Retirement Income Security Act (ERISA), terminated
Lisa E. Jones's disability benefits. Jones sued with two
claims: first, under 29 U.S.C. § 1132(a)(1)(B), for
"benefits due to [her] under the terms of [her]
plan," and second, under 29 U.S.C. § 1132(a)(3),
for "appropriate equitable relief" for a breach of
fiduciary duty. See 29 U.S.C. §§
(incorporating § 1104(a)).
Jones's earlier appeal, this court rejected her (a)(1)(B)
claim, ruling that Aetna did not abuse its discretion in
determining she was not disabled. See Jones v. Aetna Life
Ins. Co., 856 F.3d 541, 547-49 (8th Cir. 2017). This
court, however, revived her (a)(3) claim, ruling that
"seeking relief under (a)(1)(B) does not preclude
seeking relief under (a)(3)." See id. at
546-47, reversing 2015 WL 5486883, at *2 (E.D. Mo.
Sept. 16, 2015) ("Plaintiff's ability to seek this
relief in her § 1132(a)(1)(B) claim forecloses her from
also pursuing it in this § 1132(a)(3)(B) claim.").
On remand, the district court concluded that Aetna did not
breach its fiduciary duty. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
listed exhaustion as an affirmative defense in its Answer and
raised it with the district court on remand. Exhaustion is a
threshold legal issue this court reviews de novo. See
Kinkead v. Southwestern Bell Corp. Sickness & Accident
Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir.
of contractual remedies is required in the context of a
denial of benefits action under ERISA when there is available
to a claimant a contractual review procedure that is in
compliance with 29 U.S.C. § 1133 and 29 C.F.R. §
2560.503-1(f) and (g). This exhaustion requirement applies so
long as the [claimant] has notice of the procedure."
Wert v. Liberty Life Assurance Co. of Boston, Inc.,
447 F.3d 1060, 1063 (8th Cir. 2006).
parties do not dispute these facts: the review process in the
Plan's Summary Plan Description complies with 29 U.S.C.
§ 1133 and the regulations; Aetna notified Jones of the
process; and Jones did not raise her breach-of-fiduciary-duty
claim during the process. At issue is a legal question: Is
administrative exhaustion required for an ERISA
requires an administrative review process for "any
participant whose claim for benefits has been denied."
29 U.S.C. § 1133(2). Exhaustion
minimizes frivolous lawsuits, promotes consistent treatment
of claims, and enhances the ability of trustees to interpret
plan provisions. See Kinkead, 111 F.3d at 68. To
fulfill these ERISA purposes, claimants may not avoid the
administrative review process by dressing up a
denial-of-benefits challenge as a breach-of-fiduciary-duty
other circuits split on whether ERISA requires exhaustion
when plaintiffs enforce statutory rights-like breach of
fiduciary duty-that are not contract rights under the plan.
See Hitchcock v. Cumberland Univ. 403(B) DC Plan,
851 F.3d 552, 563-64 (6th Cir. 2017) (listing cases). This
court need not decide this issue here. The "statutory
claims exception to the exhaustion requirement does not apply
to 'plan-based claims 'artfully dressed in statutory
clothing,' such as where a plaintiff seeks to avoid the
exhaustion requirement by recharacterizing a claim for
benefits as a claim for breach of fiduciary duty.'"
Id. at 565, quoting Stephens v. Pension Benefit
Guar. Corp., 755 F.3d 959, 966 n.7 (D.C. Cir. 2014),
quoting Drinkwater v. Metro. Life Ins. Co., 846 F.2d
821, 826 (1st Cir. 1988).
alleges two fiduciary breaches, both rooted in Aetna's
internal policies and procedures. Cf. Kennedy v. Plan
Adm'r for DuPont Sav. & Inv. Plan, 555 U.S. 285,
304 (2009) (requiring administrator to act in accordance with
documents governing the plan, including the savings and
investment plan and the summary plan description). First,
Aetna failed to provide a copy of its clinical opinion to
Jones's medical providers or to her. Second, according to
her, it improperly applied its standard of disability. By
ignoring her providers' opinions and by discounting her
subjective pain, she concludes that Aetna erroneously
determined she was not disabled. This approach merely
re-litigates Aetna's determination that she was not
disabled. Jones does not, for instance, provide authority
that Aetna failed to act with the "care, skill,
prudence, and diligence [of] a prudent man," which would
establish an independent statutory claim against Aetna.
See 29 U.S.C. § 1104(a)(1)(B);
Jones, 856 F.3d at 547 (a claimant may raise an
(a)(3) claim independent of an (a)(1)(B) claim); cf. Shea
v. Esensten, 107 F.3d 625, 628 (8th Cir. 1997) (finding
fiduciary breached its duty by failing to disclose "a
financial incentive scheme put in place to influence a
treating doctor's referral practices"). Jones failed
to administratively exhaust her breach-of-fiduciary-duty