                         Revised March 5, 1999

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                         ____________________

                             No. 98-10304

                           Summary Calendar
                         ____________________

TANIS S HAGER,

                  Plaintiff-Appellant,

v.

NATIONSBANK NA, A National Banking Association and as Trustee of
the Nationsbank Pension Plan; NATIONSBANK OF TEXAS, NA;
NATIONSBANK CORPORATION PENSION PLAN; NATIONSBANK CORPORATION, as
Administrator of the Nationsbank Corporation Pension Plan;
NATIONSBANK OF NORTH CAROLINA, as Trustee of Nationsbank
Corporation Pension Plan,

                  Defendants-Appellees.



_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________
                         February 24, 1999
Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:

     Tanis Hager brought suit for benefits to which she contends

she was entitled under the terms of her early retirement plan.

The district court dismissed her claims for failing to exhaust

administrative remedies, relying on Hager’s alleged failure to

present additional information in support of her claim to the
same committee that denied the appeal of her claim.   Hager

appeals, arguing that she had no additional information to submit

and that she had exhausted her intra-plan administrative remedies

by filing a claim and then appealing the denial of that claim.

We agree, and therefore reverse the district court’s dismissal of

Hager’s claims and remand for further proceedings.

                I.   FACTUAL AND PROCEDURAL HISTORY

     NationsBank, N.A. (NationsBank) offered Tanis Hager, an

employee of twenty-two years, the option of taking an early

retirement.   Hager alleges that she took early retirement in

reliance on a January 30, 1996 memorandum (the January

Memorandum), in which NationsBank stated that, if she retired

early, she would receive a retirement benefit of $1122.59 per

month payable beginning the first month after her retirement date

of March 31, 1996.   After Hager retired, NationsBank sent her a

Summary of Plan Benefits memorandum (the Summary Memorandum)

indicating that the benefits payable to Hager with an immediate

payment date would be only $621.90 per month.

     Hager filed this action on July 17, 1997, asserting claims

based on the Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. §§ 1001-1461, and pendent state law claims

against the appellees (collectively referred to as NationsBank).

Under ERISA, Hager claimed that she was entitled to recover

denied benefits, that she was entitled to a clarification of her

benefits, and that NationsBank breached its fiduciary duty to

                                 2
her.    Her state law claims included claims based on breach of

contract, breach of good faith and fair dealing, breach of

fiduciary duty, promissory estoppel, and misrepresentation.          On

October 20, 1997, NationsBank filed a motion to dismiss, arguing

that Hager’s state law claims were preempted by ERISA and that

her ERISA claims should be dismissed because she failed to

exhaust her intra-plan administrative remedies.       On February 9,

1998, the district court dismissed each of Hager’s claims against

NationsBank.    Hager timely appealed, arguing that the district

court erred in dismissing her ERISA claims.       Hager does not

appeal the district court’s dismissal of her state law claims.

                           II.   DISCUSSION

       NationsBank argued to the district court that Hager’s ERISA

claims should be dismissed under either Rule 12(b)(1), for lack

of subject matter jurisdiction, or alternatively under Rule

12(b)(6), for failure to state a claim.       NationsBank premised its

motion to dismiss on its contention, supported by an affidavit

attached to its motion, that Hager failed to exhaust her

administrative remedies before filing suit.       The district court

explicitly relied on NationsBank’s affidavit, as well as on

documents attached to Hager’s complaint, in its opinion

dismissing Hager’s claims for failing to exhaust, thus converting

the 12(b)(6) motion into a 12(c) motion.       See FED. R. CIV. P.

12(c); Gutierrez v. City of San Antonio, 139 F.3d 441, 444 n.1

(5th Cir. 1998).    We therefore view the district court’s order

                                   3
dismissing Hager’s claims as either an order dismissing for lack

of subject matter jurisdiction or as a grant of summary judgment

to NationsBank.1   See Gutierrez, 139 F.3d at 444 n.1; Washington

v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990).

     We review dismissals for lack of subject matter jurisdiction

and grants of summary judgment de novo.   See John G. & Marie

Stella Kenedy Mem’l Found. v. Mauro, 21 F.3d 667, 670 (5th Cir.

1994) (stating that review of dismissal under Rule 12(b)(1) is de

novo); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994)

(stating that review of grant of summary judgment is de novo).

We can affirm the district court’s dismissal of Hager’s claims if

dismissal was appropriate on either ground.   See United States v.

Real Property Located at 14301 Gateway Boulevard West, 123 F.3d

312, 313 (5th Cir. 1997) (stating that “we will not reverse a

judgment of the district court if it can be affirmed on any

ground, regardless of whether the district court articulated the

ground”); see also Trauma Serv. Group v. United States, 104 F.3d

1321, 1324 (Fed. Cir. 1997) (stating that where district court


     1
       Where a district court grants a motion styled as a motion
to dismiss, but bases its ruling on facts outside the complaint,
the non-moving party is entitled to the procedural safeguards of
Rule 56. See Washington v. Allstate Ins. Co., 901 F.2d 1281,
1284 (5th Cir. 1990). Here, the district court complied with
these safeguards. Hager received notice that the court could
view NationsBank’s motion as one for summary judgment on October
20, 1997, when NationsBank filed its motion with attached
affidavit, and the district court did not rule on the motion for
over two months. See id.; Isquith v. Middle South Utils., Inc.,
847 F.2d 186, 195-96 (5th Cir. 1988).

                                 4
based its decision on both lack of subject matter jurisdiction

and failure to state a claim, it “need only find sufficient

justification for one of these grounds”).

     The district court’s dismissal of Hager’s ERISA claims for

failing to exhaust administrative remedies would not have been

proper under either Rule 12(b)(1) or Rule 56.     It is true that a

plaintiff generally must exhaust all administrative remedies

afforded by her plan before filing an ERISA claim in federal

court.   See Hall v. National Gypsum Co., 105 F.3d 225, 231 (5th

Cir. 1997); Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th

Cir. 1993).     However, our review of the record leads us to

conclude that the district court erred in determining that Hager

failed to exhaust her intra-plan administrative remedies before

filing suit.2

     Hager received the Summary Memorandum from NationsBank,

outlining her benefits under her early retirement plan, in August

1996.    Hager promptly made a demand for review of the benefits

determination, claiming that the amount of benefits stated in the

Summary Memorandum understated the amount NationsBank originally

informed her she would receive in the January Memorandum.       In

support of her claim, Hager sent NationsBank a copy of the

January Memorandum, as well as a letter stating that she had

relied on the January Memorandum in deciding to accept early

     2
       Neither party introduced a copy of NationsBank’s ERISA
Plan or a Summary Plan Description of NationsBank’s Plan.

                                   5
retirement.

     On August 26, 1996, NationsBank sent Hager a letter denying

her claim (the Claim Denial Letter).   The Claim Denial Letter

stated that the benefits figures in the January Memorandum were

“in error,” that the figures were only an “estimate,” and that

the benefits amounts in the Summary Memorandum were accurate.     In

addition, the Claim Denial Letter outlined the process by which

Hager could appeal the denial of her claim.   Specifically, the

Claim Denial Letter stated:

     We are unable to resolve this issue to your
     satisfaction. The standard administrative process has
     been exhausted.

     If you wish to take further action on this matter, your
     next step is to file a formal claim with the Benefits
     Appeals Committee and appeal under ERISA regulations.

     On September 25, 1996, Hager sent a letter to NationsBank

requesting a review of the denial of her claim, and, on October

23, 1996, Hager sent a formal letter of appeal to NationsBank,

arguing again that the amount of benefits reflected in the

Summary Memorandum was incorrect in light of the January

Memorandum.   Hager offered the same two documents in support of

her appeal; she included with her appeal copies of both the

January Memorandum and the letter she had written stating that

she had relied on the higher benefits amount in deciding to

retire early.

     The Benefits Appeals Committee denied Hager’s appeal on

January 23, 1997.   In the letter Hager’s attorney received

                                 6
denying the appeal (the Appeal Denial Letter), the Benefits

Appeals Committee stated that the level of benefits outlined in

the January Memorandum “exceed the benefits actually due under

the terms of the Plan” and that her claim for “additional

benefits” was therefore denied.   At the end of the Appeal Denial

Letter, the Benefits Appeals Committee included the following

paragraph:

     If Ms. Hager has any additional information to support
     her claim, she may file an appeal to the Committee for
     further review. Attached is an appeals form. Any
     appeal must be submitted within 90 days of the receipt
     of this letter and should provide documentation to
     support her position. If you need any additional
     information from us to assist you in preparation of any
     appeal, please let us know.

The district court relied on this paragraph in the Appeal Denial

Letter in determining that Hager had failed to exhaust her

administrative remedies, stating that because Hager did not file

an additional appeal with the Benefits Appeals Committee, she had

not exhausted her administrative remedies.

     We disagree with the district court’s characterization of

the “appeal” offered by NationsBank in the Appeal Denial Letter.

The purpose of this review was only to consider any additional

evidence or documentation Hager had in support of her claim.

Hager had no additional evidence or documentation in connection

with her benefits claim.   Her claim rests solely on the January

Memorandum and the accompanying letter indicating her reliance on

the January Memorandum, which she presented initially in support


                                  7
of her claim, again in support of the appeal of her claim, and

lastly in support of her ERISA claim in federal court.    The

“appeal” offered in the Appeal Denial Letter would not have

provided the Benefits Appeals Committee an opportunity to

reconsider its conclusion that the January Memorandum was not a

binding determination of her early retirement benefits.    Hager

therefore exhausted her administrative remedies before filing

suit by filing a claim and then appealing the denial of that

claim to the Benefits Appeals Committee.   Cf. Smith v. Retirement

Fund Trust of Plumbing, Heating & Piping Indus. of S. Cal., 857

F.2d 587, 591-92 (9th Cir. 1988) (stating that plaintiff had

exhausted administrative remedies and was not required to request

reconsideration of denial of claim, where plaintiff had presented

most, but not all, evidence presented to district court in

administrative appeals); Long v. Houston Lighting & Power Co.,

902 F. Supp. 130, 132 (S.D. Tex. 1995) (finding that plaintiff

had exhausted administrative remedies by filing claim and later

sending letter to plan administrators indicating plaintiff’s

dissatisfaction with denial of claim).   The district court

therefore erred in dismissing Hager’s claims for failing to

exhaust administrative remedies.3

     3
       Even had Hager failed to exhaust her administrative
remedies, dismissal under Rule 12(b)(1) for lack of subject
matter jurisdiction would have been improper. Exhaustion of
administrative remedies is not a prerequisite to a federal
court’s jurisdiction. See Chailland v. Brown & Root, Inc., 45
F.3d 947, 950 n.6 (5th Cir. 1995); Painter v. Golden Rule Ins.

                                8
                        III.   CONCLUSION

     For the foregoing reasons, we REVERSE the judgment of the

district court and REMAND for further proceedings consistent with

this opinion.




Co., 121 F.3d 436, 441 (8th Cir. 1997), cert. denied, 118 S. Ct.
1516 (1998).

                                9
