                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS             March 21, 2007

                          FIFTH CIRCUIT                 Charles R. Fulbruge III
                                                                Clerk

                          No. 06-30956
                        Summary Calendar


                         RAYMOND HOLMES,

                                              Plaintiff - Appellant,

                             versus

           PROCTOR AND GAMBLE DISABILITY BENEFIT PLAN,

                                              Defendant - Appellee.


          Appeal from the United States District Court
              for the Eastern District of Louisiana
                         (2:05-CV-1227)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Raymond Holmes appeals the summary judgment awarded against

his challenge to the termination of his disability benefits by the

Proctor and Gamble Disability Benefit Plan.

     In March 2002, Holmes sustained serious back injuries, due to

an accident unrelated to his employment at the Folgers Coffee

Company, a subsidiary of Protector and Gamble.       It maintains a



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
disability benefit plan for its employees; and, after a physician

found him to be completely disabled, Holmes applied for benefits

under the Plan.        It began paying Holmes disability benefits.

     In    January     2004,   however,       the   Plan    stopped   paying   such

benefits    because      Holmes     had       failed   to    provide     the   Plan

administrators with an updated disability status report, certifying

his continued disability, as required under the Plan.                      (Holmes

claims he did so only because a health-services employee at Folgers

told him he could discontinue such reports until after he underwent

a physical examination by a Plan-selected physician.)

     The Plan notified Holmes of its decision in a March 2004

letter.    It also stated:        Holmes had a right to appeal the denial

of benefits; the appeal had to take place within 180 days of the

March 2004 letter; and Holmes could submit supporting documents.

     In April 2004, Holmes’ attorney notified Folgers of Holmes’

“inten[t] to pursue an appeal of the decision of the [review

board]” and, to that end, asked for a copy of Holmes’ personnel

file so “[Holmes] may properly prepare his appeal”.                   In response,

in May 2004, an attorney for the Plan sent a letter to Holmes’

attorney, stating:         the Plan was a separate legal entity from

Folgers    and   all    communications        regarding     the   Plan   should   be

addressed to the trustees of the Plan; and Holmes would have to

follow the Plan’s appeal procedures if he wished to challenge the

denial of benefits.



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     In March 2005, over a year after Holmes was denied disability

benefits, a new attorney for Holmes contacted both an attorney for

the Plan and a Plan manager, asking for an extension of the 180-day

appeal period.    Both individuals stated they did not have the power

to authorize such a request and asked Holmes’ attorney to contact

the Plan’s trustees.      Holmes did not contact the Plan again.

     Instead, in April 2005, Holmes filed this action in district

court,   claiming,    inter     alia,    the    Plan   acted    arbitrarily    and

capriciously   in    terminating        his    benefits.       See   29   U.S.C.   §

1132(a)(1)(B) (authorizing ERISA plan participants to maintain

civil actions to recover benefits from an ERISA plan).                    The Plan

moved: to dismiss; and, in the alternative, for summary judgement.

     In August 2006, the district court awarded summary judgment

against Holmes.      It held:    Holmes’ April 2004 letter could not be

considered an appeal of the Plan’s decision; and, therefore, Holmes

failed to exhaust administrative remedies under the Plan.

     A summary judgment is reviewed de novo.                   Tango Transp. v.

Healthcare Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003).

Such judgment is proper if there is no genuine issue of material

fact and the movant is entitled to a judgment as a matter of law.

FED. R. CIV. P. 56(c).   “We resolve doubts in favor of the nonmoving

party and make all reasonable inferences in favor of that party.”

Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir. 2006).                     No

genuine issue of material fact exists if the evidence is such that


                                         3
no reasonable juror could find for the nonmovant.              Wheeler v. BL

Dev. Corp., 415 F.3d 399, 402 (5th Cir.), cert. denied, 126 S. Ct.

798 (2005).

     In challenging the summary judgment, Holmes contends:                  he

substantially complied with the Plan’s appeal procedures; and the

Plan arbitrarily and capriciously terminated his benefits.                  He

seeks to have the Plan consider his appeal.

     “[C]laimants seeking benefits from an ERISA plan must first

exhaust available administrative remedies under the plan before

brining suit to recover benefits”.       Bourgeois v. Pension Plan for

Employees of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir.

2000) (citing Denton v. First Nat’l Bank of Waco, 765 F.2d 1295,

1300 (5th Cir. 1985)).         The exception to this requirement is

limited, arising only when resorting to administrative remedies is

futile or the remedy inadequate.         See, e.g., Cooperative Ben.

Adm’rs, Inc. v. Ogden, 367 F.3d 323, 363, n. 61 (5th Cir. 2004).

     Under the Plan, Holmes was required to submit a request for an

appeal in writing within 180 days of the March 2004 denial-of-

benefits letter.    Holmes claims he did appeal the Plan’s decision

through   his   April   2004   letter;   as     noted,    he   maintains    it

substantially complied with the Plan’s appeal procedures.                  See,

e.g., Lacy v. Fulbright & Jaworski, 405 F.3d 254, 256-57 (5th Cir.

2005)   (holding   strict   compliance   with    claims    regulations     and

procedures is not always essential).

                                    4
     As the district court correctly noted, however, Holmes’ April

2004 letter did not substantially comply with the Plan’s appeal

procedures.    In the letter, Holmes stated only his intent to appeal

the Plan’s decision at some time in the future.              Indeed, in the

letter, Holmes’ attorney requested Holmes’ personnel file in order

to prepare an appeal.

     Subsequent to Holmes’ April 2004 letter, the Plan contacted

Holmes’ attorney; gave clear indication that his April 2004 letter

was not an appeal; and stated that, if he desired to challenge the

Plan’s decision, he had to follow Plan procedures. Furthermore, in

March 2005, Holmes’ attorney contacted Plan administrators to ask

for an extension to the 180-day appeal deadline, belying Holmes’

claims that he intended the April 2004 letter to be an appeal of

the Plan’s decision.

     Holmes’    inaction,   in   not       properly   appealing   the   Plan’s

decision within the 180-day window, was not a harmless, technical

error under which substantial-compliance relief may sometimes be

granted.   See, e.g., Davis v. Combes, 294 F.3d 931, 942 (7th Cir.

2002) (holding plan participant substantially complied with plan

procedures, despite participant’s failure to sign and date form

because participant’s intent was clear and form was later accepted

by plan administrator).     Holmes’ now claimed intent that the April

2004 letter be considered an appeal was not evident, particularly

in the light of the Plan’s follow up letter, dated May 2004,


                                       5
telling Holmes that if he still wished to appeal, he had to follow

Plan procedure.

     Holmes did not comply with the Plan’s procedures in appealing

its decision and therefore did not exhaust his administrative

remedies.   His failure to do so was fatal; the Plan’s 180-day

deadline has passed and his appeal of its decision is now time

barred.   Therefore, summary judgment was properly awarded against

Holmes for failure to exhaust administrative remedies.    See Gayle

v. United Parcel Service, 401 F.3d 222, 230-31 (4th Cir. 2005)

(holding where Plan review of benefits is time barred, dismissal

with prejudice is appropriate).

                                                         AFFIRMED




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