                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1851
                       ___________________________

                                    Lisa Jones

                      lllllllllllllllllllllPlaintiff - Appellant

                                         v.

  Aetna Life Insurance Company; The Boeing Company Employee Health and
                           Welfare Benefit Plan

                     lllllllllllllllllllllDefendants - Appellees

Employee Benefit Plans Committee of The Boeing Company; The Boeing Company

                           lllllllllllllllllllllDefendants
                                   ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                         Submitted: September 26, 2019
                           Filed: December 6, 2019
                                ____________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                         ____________

BENTON, Circuit Judge.

      Aetna 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. §§ 1132(a)(1)(B); 1132(a)(3) (incorporating § 1104(a)).


      In 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 court1 concluded that Aetna did not breach its fiduciary duty.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.


      Aetna 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. 1997).


      “[E]xhaustion 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).

      1
       The Honorable Jean C. Hamilton, United States District Judge for the
Eastern District of Missouri.

                                           -2-
      The 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 breach-of-fiduciary-duty claim?


       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 claim.


       True, 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).


      Jones 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


                                          -3-
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 claim.


                                    *******

      The judgment is affirmed.
                     ______________________________




                                         -4-
