                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-1549



JERRY ISAACS,

                                             Plaintiff - Appellant,

           versus


METROPOLITAN LIFE INSURANCE COMPANY,

                                              Defendant - Appellee,

           and


ROBERT BOSCH SHORT TERM DISABILITY PLAN,

                                                          Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cv-00288-DCN)


Argued:   May 15, 2008                      Decided:   June 13, 2008


Before NIEMEYER and DUNCAN, Circuit Judges, and Claude M. HILTON,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Senior Judge Hilton joined.
Robert Edward Hoskins, FOSTER LAW FIRM, LLP, Greenville, South
Carolina, for Appellant. James Derrick Quattlebaum, HAYNSWORTH,
SINKLER & BOYD, PA, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

     Jerry     Isaacs   (“Isaacs”)    brought    this     action   seeking   a

declaration of his entitlement to long-term disability (“LTD”)

benefits under an employee welfare benefit plan governed by the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§ 1132.    The district court granted summary judgment in favor of

defendant-appellee Metropolitan Life Insurance Company (“MetLife”),

holding that Isaacs had not exhausted his administrative remedies

because he failed to file an LTD claim within ninety days after his

“date of loss,” as required by the plan.            We affirm, albeit for

slightly different reasons than those given by the district court.



                                     I.

     Isaacs appeals the district court’s grant of summary judgment

in favor of MetLife.     Accordingly, we review the facts in the light

most favorable to Isaacs.       Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

     Isaacs was employed by the Robert Bosch Corporation (“Bosch”)

and participated in the Robert Bosch LTD Plan (the “LTD Plan”).

MetLife is the claims administrator for the LTD Plan. MetLife also

serves    as   the   administrator   for   a   separate    Bosch   short-term

disability (“STD”) plan, and for Bosch employees’ requests for

leave under the Family and Medical Leave Act (“FMLA”).




                                      3
     The LTD Plan detailed two methods through which a claimant

could initiate a claim for LTD benefits.                   One option allowed a

claimant    to    submit   a   notice   of   claim       and    supporting   written

evidence directly to MetLife.           Under the second option, a claimant

could give notice to MetLife by calling a toll-free telephone

number, after which MetLife would send a claim form to be returned

by the claimant with supporting written evidence to MetLife.

     Isaacs stopped reporting for work at Bosch on February 10,

2005, for reasons that are beyond the scope of this appeal.                        On

February    18,    2005,   Isaacs    initiated       a    telephonic     claim    for

benefits.     MetLife processed the call as a concurrent FMLA/STD

claim and sent forms to Isaacs, which he completed.1                          Isaacs

visited Dr. Arlene Olaisen, who evaluated Isaacs and completed an

Attending Physician Statement on his behalf.                   Dr. Olaisen informed

MetLife that she had not advised Isaacs to stop working, and that

in her opinion Isaacs could safely perform his job duties while on

his current medication.         Citing Dr. Olaisen’s statements, MetLife

denied Isaacs’s STD claim by letter dated June 1, 2005.                          In a

separate letter, MetLife denied Isaacs’s FMLA claim, citing his

“fail[ure] to provide the required medical certification of a

serious health condition.”          J.A. 142.



     1
      Isaacs points out that forms sent to him by MetLife referred
generically to a “disability claim” or “disability benefits” and
did not differentiate among FMLA, STD, and LTD benefits. See J.A.
147, 151.

                                         4
     On June 6, 2005, Isaacs contacted MetLife to ask “what was

needed in order for the claim to be accepted.”    J.A. 65.   MetLife

advised Isaacs “that in order for the decision to be re-evaluated

his physician would need to submit medical documentation to support

his disability claim.”     Id.   The same day, in a face-to-face

meeting,   Janice Woods (“Woods”), a Medical Supervisor with Bosch,

provided Isaacs with forms that she indicated would be sufficient

to initiate a claim for LTD benefits.2    Isaacs took the forms to

his doctor in July 2005, who completed them and later faxed a copy

to MetLife.   Isaacs also returned a copy of the completed forms to

Woods and Bosch’s head of personnel for the Plan, and was told by

them “that these forms were all that was needed and that [he] would

be contacted if anything further was required.”    J.A. 209.3

     In October 2005, Isaacs retained counsel.      On November 3,

2005, Isaacs’s attorney wrote a letter to MetLife captioned,


     2
      There is a factual dispute surrounding these forms. Woods
asserts that she gave Isaacs a set of three Long Term Disability
Claim Forms: an LTD Claim Form Employee Statement, an LTD Claim
Form Employer Statement; and a “Long Term Disability Claim Form
Attending Physician Statement.” J.A. 231-43. By contrast, Isaacs
alleges that the forms he received from Woods were limited to a
generic four-page “Attending Physician Statement” that nowhere
indicated that it pertained solely to LTD claims. J.A. 208-13. We
accept Isaacs’s view for purposes of resolving this appeal.
     3
      Contrary to Isaacs’s argument that these forms were intended
to initiate an LTD claim, the forms faxed to MetLife by Isaacs’s
doctor--ostensibly the same forms returned to Bosch--included a
cover page and authorization form with the claim numbers for
Isaacs’s STD and FMLA claims and several pages specifically
referencing the FMLA claim. None of the faxed forms referenced an
LTD claim. J.A. 120-37.

                                 5
“Short-Term Disability Claim,” and referencing Isaacs’s STD claim

number.   J.A. 109-11.   In direct contradiction to the caption, the

first sentence of the letter reads, “Please be advised that I have

been retained to represent [Isaacs] in connection with the appeal

of your denial of his claim for long term disability benefits.”

J.A. 109 (emphasis added).    After a detailed request for review of

Isaacs’ claim and a request for a copy of the administrative

record, the letter’s penultimate paragraph reads,

          The third purpose of this letter is with regard to
     my client’s LTD claim.     My client has been out long
     enough to where it is time to get her [sic] LTD claim in
     the works. If you could please forward any LTD claim
     forms or other documentation that needs to be completed
     in order to prefect [sic] the filing of that claim I
     would be most appreciative. If the LTD claim rolls over
     automatically after payment in full of the STD benefits
     then please just advise and I will proceed with the STD
     claim since, essentially, it will be considered to be the
     same claim.

J.A. 110.   MetLife did not respond to this letter.   On January 9,

2006, counsel wrote another letter to MetLife, again referencing

Isaacs’s “Short-Term Disability Claim” and listing his STD claim

number, explaining, “Please be advised that I am appealing the

denial of both Mr. Isaac’s claim for short term disability and long

term disability benefits. I wanted to clarify the foregoing in the

event it was not clear [from the November 2005 letter].”   J.A. 107.

Counsel filed the complaint in this matter less than three weeks

later, on January 29, 2006.




                                  6
     Isaacs’s amended complaint named MetLife and the Robert Bosch

Short Term Disability Plan as defendants and sought declarations of

Isaacs’s entitlement to LTD and STD benefits under 29 U.S.C.

§ 1132(a)(1)(B).     Isaacs later dismissed the Robert Bosch Short

Term Disability Plan as a defendant and dropped his STD claim from

this case.   Instead, Isaacs initiated a claim for STD benefits in

state court.    While Isaacs’s federal claim was pending, Isaacs

litigated the STD claim to settlement in state court.

     Reviewing the LTD claim against MetLife, the district court

held that Isaacs failed to file an LTD claim within ninety days

after his “date of loss,” as required by the plan, and that, as a

result, he had not exhausted his administrative remedies.       The

court also rejected Isaacs’s alternative argument that his failure

to meet the exhaustion requirement was excused by the doctrine of

futility.    Accordingly, the court granted MetLife’s motion for

summary judgment.    Isaacs appeals.



                                 II.

     We review de novo the district court’s grant of summary

judgment.    See Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232

(4th Cir. 1997).    We will affirm the district court’s decision “if

the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a


                                  7
matter of law.”      Fed. R. Civ. P. 56(c).        Again, we view the record

and all reasonable inferences drawn therefrom in the light most

favorable to Isaacs.        See Williams v. Giant Food Inc., 370 F.3d

423, 428 (4th Cir. 2004).

                                       A.

      This appeal essentially distills to two somewhat interrelated

arguments, which we discuss in turn. First, Isaacs asserts that he

initiated an LTD claim through his February 18, 2005 phone call to

MetLife but that MetLife prevented him from pursuing the claim by

failing to send him forms necessary to perfect that claim; by not

responding    to   his    attorney’s   November     2005   and   January    2006

letters; and by otherwise failing to act on his LTD claim.            MetLife

responds that Isaacs never actually filed an LTD claim and that it

processed and ultimately rejected the only properly-filed claims--

the   STD   and    FMLA   claims--based      on   insufficient   evidence    of

disability.

      Isaacs’s argument ultimately implodes as it attempts to do two

inherently    contradictory     things      simultaneously.      Isaacs    fully

pursued the claim he initiated on February 18, 2005 through the

administrative process.        Isaacs’s attorney indicated in November

2005 that he understood that Isaacs’s STD and LTD claims were one

and the same, and in January 2006, referencing a single claim

number, that he was “appealing the denial of both Mr. Isaac’s claim

for short term disability and long term disability benefits.” J.A.


                                       8
107. Isaacs eventually litigated this claim to settlement in state

court.   Now, Isaacs would have it that MetLife precluded him from

pursuing a claim for LTD benefits by not processing a separate LTD

claim based on his February 18, 2005 telephonic claim.

     Isaacs cannot have it both ways.   The initial claim on which

he now seeks to rely was denied due to Isaacs’s failure to provide

sufficient evidence of a disability.4   His dismissal of the appeal

in that regard and pursuit and settlement of the matter in state

court places the denial of benefits on that claim beyond the scope

of our review, and the record is devoid of evidence that any other

claim was filed pursuant to the LTD Plan claims procedures.    See

J.A. 194 (describing the two methods for filing a claim under the

LTD Plan).5

                                B.

     Isaacs also argues that his receipt, completion, and return of

the forms Woods gave him on June 6, 2005 was the functional


     4
      It is unclear how Isaacs believes he would have benefitted
had MetLife processed an LTD claim beginning on February 18, 2005.
As Isaacs himself points out, “disability” is defined identically
in the STD and LTD plans. Appellant’s Br. at 8. Isaacs’s failure
to provide evidence of a disability therefore would likely have
doomed his LTD claim just as it did his claim for STD benefits.
     5
      The evidence leaves no doubt that on June 6, 2005, if not
before, Isaacs knew that MetLife had not yet received from him
documentation sufficient to initiate a claim for LTD benefits. See
Isaacs Aff., J.A. 208 (“[At the June 6 meeting] I was told that I
needed to file for long-term disability [benefits] and I replied
that I did not have the forms.”). It seems disingenuous for Isaacs
to claim that he continued to labor under the illusion that an LTD
claim had been filed on February 18, 2005 and remained pending.

                                 9
equivalent of filing a claim under the LTD Plan.                 We disagree.

Aside from the February 18, 2005 claim discussed above, Isaacs has

never properly initiated any other claim for benefits with MetLife.

Moreover, the documents faxed by Isaacs’s doctor referenced either

the STD and FMLA claims or no claim at all.       We therefore hold that

the faxed forms were insufficient to initiate a claim under the LTD

Plan.6   Isaacs’s   attorney’s    subsequent      letters       were   likewise

insufficient either to initiate an LTD claim or to put MetLife on

notice that Isaacs believed that such a claim existed separate and

apart from his STD claim.



                                  III.

     Isaacs’s   actions   have   presented   us    with     a    record   which

includes neither a predicate finding of disability nor a completed

claim for LTD benefits.     We therefore have no basis on which to

grant him the relief he seeks.

                                                                       AFFIRMED




     6
      Isaacs argues, in the alternative, that his failure to
exhaust his administrative remedies with respect to his LTD claim
should be excused because, in light of MetLife’s denial of his STD
claim, any attempt to pursue the LTD Plan remedies would have been
futile. We find that Isaacs failed to show that he was (or would
have been) denied access to the claims procedures provided by the
LTD Plan. His “bare allegations of futility are no substitute for
the ‘clear and positive’ showing of futility . . . required before
suspending the exhaustion requirement.” Makar v. Health Care Corp.
of Mid-Atlantic (Carefirst), 872 F.2d 80, 83 (4th Cir. 1989). We
therefore find Isaacs’s argument to be without merit.

                                   10
