Appellate Case: 13-1175       Document: 01019293694       Date Filed: 08/12/2014     Page: 1
                                                                                       FILED
                                                                           United States Court of Appeals
                                           PUBLISH                                 Tenth Circuit

                        UNITED STATES COURT OF APPEALS                           August 12, 2014
                                        TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                                  Clerk of Court
  LUCRECIA CARPIO HOLMES,
               Plaintiff - Appellant,
         v.                                                     No. 13-1175
  COLORADO COALITION FOR THE
  HOMELESS LONG TERM
  DISABILITY PLAN,
               Defendant - Appellee.


              APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLORADO
                        (D.C. No. 1:09-CV-02986-REB-BNB)


  Brian A. Murphy, Lakewood, Colorado, for Plaintiff-Appellant.

  Richard N. Bien (Robyn L. Anderson, with him on the brief), Kansas City, Missouri, for
  Defendant-Appellee.


  Before KELLY, TYMKOVICH and McHUGH, Circuit Judges.


  McHUGH, Circuit Judge.



         Plaintiff Lucrecia Carpio Holmes appeals the district court’s ruling that her claim

  for disability benefits under the Employee Retirement Income Security Act (ERISA) is

  barred due to her failure to exhaust administrative remedies. Exercising jurisdiction under

  28 U.S.C. § 1291, we affirm.
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                                     I. BACKGROUND

         Ms. Holmes is a former employee of the Colorado Coalition for the Homeless (the

  Coalition) and participated in an employee benefits plan funded, in part, by a disability

  insurance policy through Union Security Insurance Company (Union Security).1 The

  benefits were provided by Union Security under Group Policy 4048742 (the Policy). The

  benefits plan is subject to the requirements of ERISA.

         While employed by the Coalition, Ms. Holmes presented with a number of

  medical conditions, including breast cancer, cataplexy, apnea, blackouts, diabetes, carpal

  tunnel syndrome, and neuropathy. As a result, she filed a claim for disability benefits

  with Union Security on March 10, 2005. Union Security sent written notification to Ms.

  Holmes on May 27, 2005 that it had denied her claim because she failed to prove she was

  disabled as defined by the Policy. The denial letter included an explanation of Ms.

  Holmes’s right to internal review of the decision and attached a copy of a Group Claim

  Denial Review Procedure (the Denial Review Procedure), which describes a two-level

  review process.

         On November 21, 2005, in accordance with the Denial Review Procedure, Ms.

  Holmes filed a request for review of the denial (the first-level review). Union Security

  issued a decision on the first-level review 137 days later on April 7, 2006, when it


         1
          Union Security was formerly known as Fortis Benefits Insurance Company. For
  convenience, we have replaced references to Fortis Benefits in the relevant documents
  with references to Union Security.

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  informed Ms. Holmes in writing that it had affirmed the denial of benefits. Union

  Security’s April 7, 2006, letter contained a second copy of the Denial Review Procedure,

  which informed Ms. Holmes that she “may request another review of [Union Security’s]

  decision,” and that this second-level review is the “final level of administrative review

  available.” Aplt. App. 235–36; 294–97. The Denial Review Procedure further states that

  if Ms. Holmes’s claim is denied “as part of the [second-level review],” she will “have a

  right to bring a civil action.” Id. at 236.

           Rather than pursuing further administrative remedies at that time, Ms. Holmes

  took no action for over two years. Then, on April 28, 2008, she filed a civil action against

  the Colorado Coalition for the Homeless Long Term Disability Plan (the Defendant) in

  Colorado state court pursuant to ERISA’s civil enforcement provisions. See 29 U.S.C.

  § 1132(a)(1)(B). The Defendant was unaware of the lawsuit and the state court entered

  default judgment against it. Upon learning of the suit, the Defendant removed the action

  to federal court and moved to have the default judgment set aside. The district court

  granted the Defendant’s motion, holding that Ms. Holmes had not validly served process

  on it.

           The proceedings in the district court continued and both parties sought summary

  judgment based on the undisputed facts in the Administrative Record. While those cross

  motions were pending, Ms. Holmes filed a motion to stay decision, reopen discovery, and

  proceed to trial, if necessary (the discovery motion). The basis of Ms. Holmes’s

  discovery motion was that further discovery was needed to identify which document or

  set of documents actually constitutes the plan.

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         The district court denied the discovery motion and granted the Defendant’s motion

  for summary judgment. It held Ms. Holmes’s claim was barred because she failed to

  exhaust her administrative remedies by not seeking a second-level review as required by

  the plan. The court rejected Ms. Holmes’s arguments that she should be deemed to have

  exhausted her administrative remedies because Union Security failed to render a timely

  decision on her first-level review or because Union Security did not provide notice of the

  two-level review process as required by ERISA. It concluded that although Union

  Security did not render a decision until 137 days after Ms. Holmes sought a first-level

  review, 67 of those days were attributable to Ms. Holmes’s delay in providing Union

  Security with requested medical records. As a result, the district court held Ms. Holmes

  had forfeited her right to enforce the ERISA deadlines. The district court also held Union

  Security had complied with the applicable ERISA notice and disclosure requirements.

                                      II. DISCUSSION

         Ms. Holmes claims the district court erred by determining she failed to exhaust her

  administrative remedies. In addition, she appeals two interlocutory decisions: the district

  court’s order setting aside default judgment against the Defendant and its order denying

  her discovery motion. Ms. Holmes has not met her burden of adequately briefing her

  challenges to the interlocutory orders on appeal and we will not consider them further.

  Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1223 n.6 (10th Cir. 2008)

  (refusing to consider an argument where appellant failed to “‘advanc[e] reasoned

  argument as to the grounds for the appeal’” (alteration in original) (quoting Am. Airlines

  v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992))); Adler v. Wal-Mart Stores, Inc.,

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  144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening

  brief are waived . . . .”); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)

  (stating that “a few scattered” and “perfunctory” statements that failed to frame and

  develop an issue were insufficient to invoke appellate review); see also Fed. R. App. P.

  28(a)(9)(A) (“The appellant’s brief must contain . . . appellant’s contentions and the

  reasons for them, with citations to the authorities and parts of the record on which the

  appellant relies.”). Our review is therefore limited to determining the scope of Ms.

  Holmes’s internal review obligations and whether the district court properly granted the

  Defendant summary judgment based on Ms. Holmes’s failure to exhaust those

  administrative remedies.

         This court reviews summary judgment orders de novo, applying the same

  standards as the district court. Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196,

  1201 (10th Cir. 2013). Summary judgment is available “if the movant shows that there is

  no genuine dispute as to any material fact and the movant is entitled to judgment as a

  matter of law.” Fed. R. Civ. P. 56(a).

         According to Ms. Holmes, the undisputed facts of this case show that she, rather

  than the Defendant, is entitled to summary judgment on the issue of exhaustion. She

  offers two separate arguments in support. First, she contends she cannot be required to

  engage in a second-level review before bringing a civil action because such a requirement

  is not included in the summary plan description (SPD) provided by Union Security to

  plan participants. Second, and in the alternative, Ms. Holmes argues that even if such a

  requirement does exist, she should be deemed to have exhausted her administrative

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  remedies due to Union Security’s failure to comply with ERISA’s timing and notice

  requirements. We address each of these arguments in turn, beginning with the level of

  internal review required by the plan.

                           A. Ms. Holmes’s Internal Review Obligations

         To determine whether Ms. Holmes was required to pursue a second-level review

  before she could file a civil action, we must first identify the documents that control her

  obligations under ERISA. ERISA addresses two categories of documents relevant here,

  which each serve a different purpose. The first is the plan document, which must specify

  in writing the basis on which payments are to be made under the plan. 29 U.S.C.

  § 1102(a)(1), (b)(4). Second, ERISA requires plan administrators to provide participants

  with a “summary plan description,” which must reasonably apprise participants of their

  rights and obligations under the plan. 29 U.S.C. §§ 1002(21)(A), 1021(a), 1022, 1024.

  Although the plan documents contain the enforceable terms of the benefit plan, the

  summary plan description is intended to communicate the contents of the plan in

  understandable language to participants. CIGNA Corp. v. Amara, ___ U.S. ___, 131 S.

  Ct. 1866, 1877 (2011).

         Ms. Holmes argues she cannot be required to engage in a second-level review

  because the SPD provided by Union Security does not describe a two-level review

  process. In response, the Defendant asserts that the two-level review process was

  incorporated into the SPD by reference. The underlying assumption of both arguments is

  that the enforceability of the two-level review process is dependent upon whether it is



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  part of the SPD. However, this analytical approach is unsound because it is inconsistent

  with the distinct purposes of the SPD and the plan documents as established by ERISA.

         In Amara, the Supreme Court clarified that the requirements of an ERISA plan

  must be based on the terms of the plan document, which do not include the summary plan

  description in all circumstances.2 131 S. Ct. at 1878 (“[S]ummary documents, important

  as they are, provide communication with beneficiaries about the plan, but . . . their

  statements do not themselves constitute the terms of the plan . . . .”) (emphasis in

  original)); see also US Airways, Inc. v. McCutchen, ___ U.S. ___, 133 S. Ct. 1537, 1548

  (2013) (“The statutory scheme [of ERISA], we have often noted, ‘is built around reliance

  on the face of the written plan documents.’” (quoting Curtiss-Wright Corp. v.

  Schoonejongen, 514 U.S. 73, 83 (1995))). The Supreme Court explained that where the

  relevant term does not appear in the plan, it is not “necessarily . . . enforce[able] . . . as

  the terms of the plan itself.” Amara, 131 S. Ct. at 1877. For example, Amara held that a

  court may not enforce the terms of a summary plan description which conflict with the

  terms of the plan. Id. at 1876–77 (noting that the “statutory language speaks of

  ‘enforc[ing]’ the ‘terms of the plan,’ not of changing them” (alteration and emphasis in



         2
            The Supreme Court issued Amara while this case was pending in the district
  court. Although Ms. Holmes cited Amara below as support for her discovery motion, she
  did not argue that it affected her requirement to engage in a second level of the internal
  review. On appeal, neither party has cited Amara. Nevertheless, we are bound by its
  holding in assessing Ms. Holmes’s internal review obligations. See Planned Parenthood
  of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 837 (10th Cir. 2014) (holding that appellate
  court has power to identify and apply governing law, even when not advanced by the
  parties).

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  original) (quoting 29 U.S.C. § 1132(a)(1)(B))). Amara did not address the question of

  when a term that is consistent with the plan, but not contained in it, can be enforced.

         Considering that question after Amara, this circuit has enforced terms that do not

  appear on the face of the plan but do not conflict with it when they are authorized by or

  made part of the plan documents. For example, in Eugene S. v. Horizon Blue Cross Blue

  Shield of New Jersey, 663 F.3d 1124, 1131 (10th Cir. 2011), we held that a provision

  granting discretion to the plan administrator contained only in the summary plan

  description was enforceable because it did not conflict with the plan and because the

  summary plan description expressly stated that it was part of the plan. We again enforced

  terms not contained in the plan in Foster v. PPG Industries, Inc., 693 F.3d 1226, 1239

  (10th Cir. 2012). There, we held a participant could not recover amounts his former wife

  fraudulently withdrew from his stock-ownership plan because he had failed to comply

  with withdrawal procedures contained only in the summary plan description. We

  concluded the procedures were enforceable because they did not conflict with the plan

  document, and because the plan document explicitly referenced them by stating that

  withdrawals must be “‘made in accordance with procedures established by the

  Administrator.’” Id. at 1235. We explained,

         Even if the [summary plan description] did not constitute “terms” of the
         Plan, the procedures laid out in the [summary plan description] were
         explicitly referenced in the Plan Document and do not in any way
         contradict the Plan Documents. A participant who elected to defer
         withdrawal was required to make those withdrawals “in accordance with
         procedures established by the Administrator.”




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  Id. at 1235 n.5; see also Kennedy v. Plan Adm’r for DuPont Savings & Inv. Plan, 555

  U.S. 285, 288, 304 (2009) (holding that a plan administrator was entitled to distribute

  benefits pursuant to information contained in a beneficiary designation form because the

  plan document required “‘[a]ll authorizations, designations and requests concerning the

  Plan [to] be made by employees in the manner prescribed by the [plan administrator],’”

  who provided the plan participants with specific beneficiary designation change forms

  (alterations in original)). These decisions indicate that a term not contained in the plan,

  which does not conflict with the plan, is enforceable where it is “authorized by, or

  reflected in” the plan. Eugene S., 663 F.3d at 1131.

         Accordingly, the correct analytical framework for determining Ms. Holmes’s

  obligations with respect to internal review begins with an examination of the plan’s

  requirements and then considers the extent to which other non-conflicting terms have

  been authorized by or reflected in the plan. Applying that analysis here, we first review

  the plan document and conclude it specifically authorized Union Security to advise Ms.

  Holmes of further appeal rights, which could include a second-level review. We next

  determine that Union Security advised Ms. Holmes of her further appeal rights by

  supplying her with a copy of the Denial Review Procedures. We then consider whether

  the SPD was made part of the plan and conclude that it was not. Finally, based on the

  plan and the additional terms authorized by it, we conclude Ms. Holmes was required to

  seek a second-level review.




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   1.     The Plan Document

          We begin our analysis of the internal review procedures provided by the plan with

   an examination of the terms of the plan. The parties and the district court have identified

   the Policy as the plan document, and we do so as well. See US Airways, 133 S. Ct. at

   1543 n.1 (rejecting an attempt to identify the plan documents for the first time on

   certiorari review and stating that “[b]ecause everyone in this case has treated the

   language from the summary description as though it came from the plan, we do so as

   well”). Accordingly, we turn to the language of the Policy to ascertain the plan’s review

   procedures.

          The Policy describes the internal review process by setting out the specifics of the

   first-level review, but noting only the possibility of further appeal rights. It states,

          Review Procedure

          You must request, in writing, a review of a denial of your claim within 180
          days after you receive notice of denial.

          ...

          We will review your claim after receiving your request and send you a
          notice of our decision within 45 days after we receive your request, or
          within 90 days if special circumstances require an extension. We will state
          the reasons for our decision and refer you to the relevant portions of the
          policy. We will also advise you of your further appeal rights, if any.3

          3
             Ms. Holmes argues for the first time on appeal that the phrase “further appeal
   rights, if any” is ambiguous and therefore should be construed in her favor. Because it is
   raised for the first time on appeal, we do not consider this argument. See United States v.
   Holmes, 727 F.3d 1230, 1237 (10th Cir. 2013) (“[W]e do not permit new arguments on
   appeal when those arguments are directed to reversing the district court.”); Hickman v.
   GEM Ins. Co., 299 F.3d 1208, 1213 (10th Cir. 2002) (refusing to consider the argument
   that an ERISA plan was ambiguous because it was raised for the first time on appeal);
   Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (“[V]ague, arguable
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   Aplt. App. 146, 167 (emphasis omitted). Although the Policy describes only one level of

   internal review, it allows Union Security to advise the participant of further appeal rights

   when the decision on a first-level review is communicated to the claimant.

   2.     The Denial Review Procedure

          As permitted by the Policy, Union Security advised Ms. Holmes of her further

   appeal rights. It did so first in its decision denying Ms. Holmes’s initial claim for

   benefits, and second in its decision on Ms. Holmes’s first-level review. Each of those

   denial letters informed Ms. Holmes that a copy of the Denial Review Procedure was

   enclosed, which described her “rights with respect to [Union Security’s] administrative

   appeals process,” and “her right to bring a lawsuit.” Id. at 233. In turn, the Denial Review

   Procedure, attached with each letter, explained the applicable time limits for seeking and

   rendering a decision on review and then clearly described a two-level review process that

   had to be exhausted before Ms. Holmes could proceed to court. 4 The Denial Review

   Procedure states, with our emphasis:




   references to a point in the district court proceedings do not . . . preserve the issue on
   appeal.” (brackets and internal quotation marks omitted)).
          4
           In a citation of supplemental authority, Ms. Holmes asserts that because the
   Denial Review Procedure contains some permissive language, it is insufficient to impose
   a mandatory second-level internal review. We do not consider this argument because it
   was not raised before the district court or argued in Ms. Holmes’s opening brief. See
   Hickman, 299 F.3d at 1213; Adler, 144 F.3d at 679.

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                                          Appeal Process

             The following is an explanation of the steps [Union Security] will take
             in handling your appeal for benefits.

             First Review: If you request a review of our decision, your claim will
             be reviewed by an individual not previously involved in the decision to
             deny your claim. The review will either overturn or uphold the denial.
             You will be notified of this decision in writing. However, before
             reaching our decision, it may be necessary to request additional
             information, an examination, an interview, or other evaluation, or
             consult with a health care professional or vocational expert regarding
             your claim.

             Second Review: If your claim is denied after your initial request for
             review, you may request another review of our decision. Your request
             for review would then be forwarded to a manager in the Disability
             Claims area or to the [Union Security] Benefits Disability Claims
             Appeals Committee. The decision of that manager or committee is the
             final level of administrative review available.

                                     Right to Bring a Lawsuit

             If your claim is denied by the [Union Security] Disability Claims
             Appeals Committee or Disability Claims Manager as part of the Second
             Review described above, you have the right to bring a civil action under
             section 502(a) of [ERISA].

   Id. at 235–36.

          Although the Denial Review Procedure is more complete than the first-level

   review described in the Policy, it does not contradict the terms of the Policy. Rather than

   foreclosing the possibility of a second-level review, the Policy indicates that when Union

   Security informs a claimant of the decision on a first-level review, it may advise the

   participant of further appeal rights. When Union Security rendered its decision on Ms.

   Holmes’s first-level review it did just that by including a copy of the Denial Review

   Procedure, which advised Ms. Holmes of her further rights and that she could pursue a

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   civil action after engaging in that second-level review. Thus, like the “procedures to be

   established by the administrator” in Foster, the Denial Review Procedure is authorized by

   the plan and enforceable against Ms. Holmes. See Foster, 693 F.3d at 1235 n.5; see also

   Kennedy, 555 U.S. at 304 (enforcing the terms of beneficiary designation change forms).

   3.     The SPD

          Rather than focus on the plan terms, Ms. Holmes and Union Security engage on

   whether the SPD describes a second-level review. In particular, Ms. Holmes points to the

   fact that the SPD describes only one level of internal review, without also indicating that

   the decision on that first-level review may include an explanation of her further appeal

   rights. As discussed, however, the SPD is not necessarily enforceable as the terms of the

   plan. See Amara, 131 S. Ct. at 1877. Here, the Policy—the plan document—does not

   authorize the review procedures as set forth in the SPD. Although it contains an explicit

   reference to further appeal rights communicated with the decision on the first-level

   review, it makes no reference to the appeal rights described in the SPD. Furthermore,

   unlike the summary plan description in Eugene S., the SPD is not enforceable as part of

   the plan. To the contrary, the SPD expressly states that it “does not replace or modify the

   [Policy] in any way. The [Policy] is the contract which sets forth the terms and conditions

   of the benefits the Plan Sponsor chose to provide in its welfare benefit plan.” Aplt. App.

   163. As a result, the SPD review procedures are not enforceable as part of the plan.

          Because the SPD’s review procedures are neither authorized by, nor reflected in

   the plan, they do not inform our decision of whether Ms. Holmes was required to pursue

   a second-level review. Although any alleged discrepancies between the review

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   procedures described in the SPD and the plan requirements may be the basis for relief

   under ERISA’s notice and disclosure requirements,5 the enforceable terms of the plan are

   governed by the Policy, which is the plan document. The Policy, as supplemented by the

   authorized Denial Review Procedure, provides for a two-level review process.

                                B. Exhaustion of Administrative Remedies

          Ms. Holmes engaged in only a first-level review before filing the present action

   and therefore did not actually exhaust her administrative remedies. Although ERISA

   contains no explicit exhaustion requirement, courts have uniformly required that

   participants exhaust internal claim review procedures provided by the plan before

   bringing a civil action. See Heimeshoff v. Hartford Life & Accident Ins. Co., ___ U.S.

   ___, 134 S. Ct. 604, 610 (2013). Unless Ms. Holmes can establish some exception to the

   exhaustion requirement, her civil action is barred by her failure to engage in a second-

   level review.

          Generally, a failure to exhaust will be excused in two limited circumstances—

   when resort to administrative remedies would be futile or when the remedy provided is

   inadequate. See McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir.

   1998). The Department of Labor added another exception to the exhaustion requirement

   when it amended the ERISA regulations in 2000 to provide that claimants are “deemed to

   have exhausted” their administrative remedies if a plan has failed to establish or follow




          5
              See discussion infra Part II.B.2.

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   claims procedures consistent with the requirements of ERISA. See 29 C.F.R.

   § 2560.503-1(l) (the deemed-exhausted provision).6

          Ms. Holmes argues she should be deemed to have exhausted her administrative

   remedies because the Defendant has failed to establish or follow claims procedures

   consistent with ERISA’s requirements in two respects. First, Ms. Holmes asserts Union

   Security failed to render a decision on her first-level review within the time required by

   ERISA. Second, she contends the SPD is not consistent with ERISA’s notice and

   disclosure requirements because it failed to describe the two-level internal review

   process. We are not persuaded by either argument.

   1. ERISA’s Timing Requirements

          In considering Ms. Holmes’s argument that the decision on review was untimely,

   we first discuss ERISA’s provisions governing the time in which a plan administrator

   must render a decision on review. We then apply those provisions to the present facts,

   rejecting Ms. Holmes’s argument that the tolling provision is inapplicable. Ultimately, we

   conclude that Union Security’s decision on Ms. Holmes’s first-level appeal was timely,

   and therefore she should not be deemed to have exhausted her administrative remedies on

   this basis.

          Although the statute itself contains no time limits, ERISA’s regulations provide

   time restrictions on a plan’s administrative review of a participant’s claim for benefits.

   Two regulations govern a plan administrator’s time for rendering a decision on review of

          6
           The current regulations are applicable to claims filed after 2002. See 29 C.F.R.
   § 2560.503–1(o).

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   a denial of a claim for benefits. The first is 29 C.F.R. § 2560.503-1(i)(1), “Timing of

   notification of benefit determination on review” (the timing provision), which requires

   the plan administrator to notify the claimant of the decision on review “not later than [45]

   days after receipt of the . . . request for review . . . , unless the plan administrator

   determines that special circumstances . . . require an extension of time for processing the

   claim.” Id.7 Any such extension shall not exceed 45 days. Id. § 2650.503-1 (i)(3)(i).

          The second regulation governing the time for review, § 2560.503-1(i)(4),

   “Calculating time periods” (the tolling provision), dictates how the time periods specified

   in the timing provision are calculated.8 The tolling provision stays the running of the

   limits in the timing provision pending a participant’s response to a request for additional

   information. The tolling provision states,

          For purposes of [the timing provision], the period of time within which a
          benefit determination on review is required to be made shall begin at the

          7
            This provision describes a 60-day review period for non-disability claims, but 29
   C.F.R. § 2650.503-1(i)(3)(i) provides that “claims involving disability benefits . . . shall
   be governed by paragraph (i)(1) of this section, except that a period of 45 days shall
   apply instead of 60 days for purposes of that paragraph.” Because Ms. Holmes seeks
   disability benefits, we have inserted the applicable time limits into § 2560.503-1(i)(1).
          8
             Ms. Holmes correctly observes the Defendant did not direct the district court to
   the tolling provision and the court did not consider it in reaching its decision. We apply
   the tolling provision despite the Defendant’s failure to raise it below because in affirming
   a district court’s decision, we are “‘not limited to the particular legal theories advanced
   by the parties, but rather retain[] the independent power to identify and apply the proper
   construction of governing law.’” Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747
   F.3d 814, 837 (10th Cir. 2014) (quoting U.S. Nat’l Bank v. Independent Ins. Agents of
   Am., Inc., 508 U.S. 439, 446 (1993)). See also United States v. Lott, 310 F.3d 1231, 1242
   n.7 (10th Cir. 2002) (stating we may “‘affirm a district court decision on any grounds for
   which there is a record sufficient to permit conclusions of law, even grounds not relied
   upon by the district court’” (quoting United States v. Sandoval, 29 F.3d 537, 542 n.6
   (10th Cir. 1994)).
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          time an appeal is filed in accordance with the reasonable procedures of a
          plan, without regard to whether all the information necessary to make a
          benefit determination on review accompanies the filing. In the event that a
          period of time is extended as permitted pursuant to paragraph (i)(1),
          (i)(2)(iii)(B), or (i)(3) of this section due to a claimant’s failure to submit
          information necessary to decide a claim, the period for making the benefit
          determination on review shall be tolled from the date on which the
          notification of the extension is sent to the claimant until the date on which
          the claimant responds to the request for additional information.

   Id. § 2560.503-1(i)(4); see generally Heimeshoff, 134 S. Ct. at 613 (explaining the timing

   of the disability claims process under ERISA and recognizing that the time for review of

   an administrative appeal may be tolled due to a claimant’s failure to provide information

   necessary to decide the claim). Thus, the running of the time limit for a decision on

   review is paused during the period of time between the administrator’s request for

   additional information and the participant’s response to that request. When the participant

   responds, the running of the time limit recommences and the plan administrator must

   render its decision before the time limit expires. If the plan administrator fails to do so, a

   participant is “deemed to have exhausted the administrative remedies.” 29 C.F.R.

   § 2560.503-1(l).

          Turning to the present facts, Ms. Holmes sought a first-level review of the initial

   denial of her claim for benefits on November 21, 2005. On the last day of its initial 45-

   day deadline, January 5, 2006, see id. § 2560.503-1(i)(1), Union Security notified Ms.

   Holmes that due to “special circumstances,” additional time was required to complete the

   first-level review. The letter stated,

          I am contacting you to notify you that we require an extension of time for
          processing your appeal for long-term disability benefits. Special
          circumstances exist that prevent me from rendering a decision on your

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          appeal currently. The following are the reasons why additional time is
          required to make a determination of your claim:

               1. I forwarded Ms. Holmes’[s] claim file to a physician to determine
                  her limitations. The physician consultant has completed the review
                  of the available record and has suggested obtaining a complete set
                  of medical records from Drs. Kinnard, Hunter and Beers prior to
                  completing a determination. Please forward a copy of Ms.
                  Holmes’s medical records to our attention as soon as possible.

   Aplt. App. 181. The letter concluded, “We expect to make this determination no later

   than February 26, 2006.” Id. Ms. Holmes did not respond to this letter.

          Union Security again wrote to Ms. Holmes on February 2, 2006. It reiterated that

   “special circumstances exist that prevent [it] from rendering a decision on Ms.

   Holmes’[s] appeal,” and renewed its request for a complete set of medical records. Id. at

   180. When it received no response, Union Security sent a third letter on February 24,

   2006, which again explained that “special circumstances” prevented it from rendering a

   decision on Ms. Holmes’s first-level review because a complete set of medical records

   was “necessary in order to establish [Union Security’s] liability.” Id. at 179. Union

   Security received no response to this letter until March 13, 2006, when Ms. Holmes

   provided it with the requested records.

          Union Security’s notice to Ms. Holmes prior to the termination of the initial 45-

   day period, indicating that “special circumstances” prevented it from rendering a decision

   on her first-level review and requesting a complete set of her medical records, tolled the

   running of the time for decision. See 29 C.F.R. § 2560.503-1(i)(1)(i), (3)(i). Once Ms.

   Holmes responded, the time limit again began to run and, in light of the extension, Union

   Security was required to render a decision on Ms. Holmes’s first-level review within 45

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   days. See id. § 2560.503-1(i)(4). By providing a decision 25 days later on April 7, 2006,

   Union Security acted well within the period permitted by ERISA.

          Ms. Holmes hopes to avoid application of the tolling provision because Union

   Security failed to establish that the requested records were, in fact, “necessary” to decide

   her claim. However, ERISA’s regulations governing extensions of time and calculating

   time periods on review place with the plan administrator the sole discretion to determine

   whether special circumstances exist requiring an extension of time for decision. The

   regulations provide that a plan administrator must notify the claimant of the decision on

   review within 45 days unless “the plan administrator determines” special circumstances

   require an extension of time, and if “the plan administrator determines” such an

   extension is required, he need only furnish written notice of the extension to the claimant.

   See id. § 2560.503-1(i)(1)(i), (i)(4) (emphasis added); see also McDowell v. Standard Ins.

   Co., 555 F. Supp. 2d 1361, 1369 (N.D. Ga. 2008) (“[The third-party claims

   administrator] has unilateral authority to begin tolling an extension period insofar as [the

   third-party claims administrator] has discretion to determine what ‘necessary’

   information is lacking.”). The tolling provision does nothing to limit that discretion. It

   simply explains how time is calculated if Union Security makes such a determination. See

   29 C.F.R. § 2560.503-1(i)(4).

          As the third-party claims administrator,9 Union Security could determine that

   special circumstances required additional time to render a decision. Because of the broad


          9
           Because the Policy, which the parties identify and the district court treated as the
   plan document, does not specifically identify a plan administrator, the Coalition is the
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   discretion placed in Union Security under the plan and ERISA’s regulations, we review

   that decision under the arbitrary and capricious standard. Geddes v. United Staffing

   Alliance Emp. Med. Plan, 469 F.3d 919, 927 (10th Cir. 2006) (“If a plan administrator

   has been allotted discretionary authority in the plan document, the decisions of both it

   and its agents are entitled to judicial deference”); Gilbertson v. Allied Signal, Inc., 328

   F.3d 625, 630 (10th Cir. 2003) (stating that because the plan granted discretionary

   authority to a third-party claims administrator, the claims administrator’s “decisions on

   benefit claims should generally be reviewed under the arbitrary and capricious

   standard.”). Ms. Holmes points us to nothing indicating Union Security’s decision that it

   needed her entire medical file to complete her claim evaluation was arbitrary or

   capricious. See Winchester v. Prudential Life Ins. Co. of Am., 975 F.2d 1479, 1483 (10th

   Cir. 1992) (“Indicia of arbitrary and capricious conduct include lack of substantial


   default plan administrator. See 29 U.S.C. § 1002(16)(A), (B) (providing that the “plan
   sponsor” means the employer and the “administrator” means “the person specifically so
   designated by the terms of the instrument under which the plan is operated; [or] if an
   administrator is not so designated, the plan sponsor”). However, the Policy specifically
   provides that the Coalition has delegated to Union Security the “sole discretionary
   authority to determine eligibility for participation or benefits and to interpret the terms of
   the Policy.” Aplt. App. 124, 145. Pursuant to this delegation, Union Security has the
   authority to administer claims for benefits and to determine benefits eligibility. See, e.g.,
   Geddes v. United Staffing Alliance Emp. Med. Plan, 469 F.3d 919, 926 (10th Cir. 2006)
   (recognizing a plan administrator’s delegation of claims review authority to an
   independent, third-party claims agency as an appropriate exercise of fiduciary discretion);
   Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 630 (10th Cir. 2003) (approving a plan
   administrator’s delegation of discretionary authority to determine benefits eligibility to a
   third-party claims administrator); see also 29 U.S.C. § 1105(c)(1) (“The instrument under
   which a plan is maintained may expressly provide for procedures . . . for named
   fiduciaries to designate persons other than named fiduciaries to carry out fiduciary
   responsibilities . . . under the plan.”).

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   evidence, mistake of law, bad faith, and conflict of interest.”). Even weighing as a factor

   Union Security’s inherent conflict of interest as both the evaluator and payor of her

   claim, there is no evidence Union Security acted in bad faith or otherwise improperly

   sought to delay a decision on Ms. Holmes’s internal appeal. See Foster v. PPG Indus.,

   Inc., 693 F.3d 1226, 1232 (10th Cir. 2012) (holding that a plan administrator operating

   under an inherent conflict of interest had not abused its discretion). To the contrary,

   although the regulations provided Union Security 45 days to complete its review after

   Ms. Holmes responded to the request for records, it rendered its decision on review only

   25 days later. Furthermore, Ms. Holmes had the power to end the tolling period and

   recommence the running of the time for decision simply by responding to Union

   Security’s request, even if the response was a refusal to provide the documents. See 29

   C.F.R. § 2560.503-1(i)(4).

          The deadline for a decision on Ms. Holmes’s first-level of internal review was

   tolled until she responded to Union Security’s request for additional medical records.

   Once the period recommenced, Union Security completed its review before the time limit

   expired. Therefore, Ms. Holmes cannot be deemed to have exhausted her administrative

   remedies on the basis that Union Security did not comply with ERISA’s timing

   regulations.10


          10
            Because we conclude that Union Security actually complied with the ERISA
   time limits for rendering a decision on review, we need not consider the Defendant’s
   argument that Union Security substantially complied with ERISA’s timing requirements.
   Compare Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073, 1080 (9th Cir.
   2011) (holding that a participant was deemed to have exhausted administrative remedies
   because the plan failed to comply with ERISA’s timing regulations), and Nichols v.
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   2.     ERISA’s Notice and Disclosure Requirements

          According to Ms. Holmes, even if Union Security’s decision on her first-level

   review was timely, she should nonetheless be deemed to have exhausted her

   administrative remedies because the SPD failed to comply with ERISA’s notice and

   disclosure requirements. We begin our analysis of this argument by identifying the

   relevant notice and disclosure requirements under ERISA. Next, we review the SPD to

   determine whether it complies with those requirements. In making that assessment, we

   assume for purposes of analysis only that the district court correctly incorporated the

   Denial Review Procedure into the SPD by reference. Finally, we address whether any

   deficiencies in the SPD warrant excusing Ms. Holmes from exhausting her administrative

   remedies. We conclude the SPD does not meet ERISA’s notice and disclosure

   requirements, but Ms. Holmes was not prejudiced by those deficiencies. As a result, we

   hold she is not deemed to have exhausted her administrative remedies.

            Benefit plans regulated by ERISA are required to “establish and maintain

   reasonable claims procedures governing the filing of benefit claims, notification of

   benefit determinations, and appeal of adverse benefit determinations.” 29 C.F.R.

   § 2560.503-1(b). If a claim is denied, plans must “provide adequate notice in writing to


   Prudential Ins. Co. of Am., 406 F.3d 98, 106–08 (2d Cir. 2005) (rejecting a plan’s
   argument that it substantially complied with ERISA’s timing requirements and holding
   that a “failure to adhere literally to the regulatory deadlines renders the claimant’s
   administrative remedies exhausted by operation of law and consequently permits the
   claimant to seek review in the federal courts without further delay”), with Tindell v. Tree
   of Life, Inc., 672 F. Supp. 2d 1300, 1310–12 (M.D. Fla. 2009) (holding that
   administrative remedies were not deemed exhausted where the plan substantially
   complied with ERISA’s timing deadlines).

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   any participant or beneficiary whose claim for benefits under the plan has been denied . .

   . and . . . afford a reasonable opportunity . . . for a full and fair review . . . of the decision

   denying the claim.” 29 U.S.C. § 1133. To effectuate that requirement, ERISA further

   provides that a claim denial notice shall contain a “description of the plan’s review

   procedures and the time limits applicable to such procedures, including a statement of the

   claimant’s right to bring a civil action . . . following an adverse benefit determination on

   review.” 29 C.F.R. § 2560.503-1(g)(1)(iv). Here, there is no dispute that the claim denial

   letters included the Denial Review Procedure, which described a two-level internal

   review and advised participants of their right to pursue a civil action after completing the

   second-level review.

          In addition to the requirements affecting the contents of the plan and claim denial

   letters, ERISA mandates that plan administrators provide participants with a summary

   plan description. 29 U.S.C. §§ 1002(21)(A), 1021(a), 1022, 1024; CIGNA Corp. v.

   Amara, ___ U.S. ___, 131 S. Ct. 1866, 1877 (2011). The summary plan description must

   set forth the plan’s policies “in a manner calculated to be understood by the average plan

   participant” and be “sufficiently accurate and comprehensive to reasonably apprise such

   participants and beneficiaries of their rights and obligations under the plan.” 29 U.S.C.

   § 1022(a). The summary plan description’s format may not mislead or fail to inform

   participants about the plan, and limitations or restrictions must not be “minimized,

   rendered obscure or otherwise made to appear unimportant.” 29 C.F.R. § 2520.102-2(b).

   Of particular relevance here, the summary plan description must contain “[t]he

   procedures governing claims for benefits (including procedures for . . . reviewing denied

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   claims . . .), applicable time limits, and remedies available under the plan for the redress

   of claims which are denied in whole or in part.” Id. § 2520.102-3(s).

          If a plan fails to “establish and follow reasonable claims procedures,” the claimant

   is “deemed to have exhausted the administrative remedies available under the plan” and

   is entitled to bring a civil action “on the basis that the plan has failed to provide a

   reasonable claims procedure that would yield a decision on the merits of the claim.” Id.

   § 2560.503-1(l). A claims procedure is reasonable only if “[a] description of all claims

   procedures . . . and the applicable time frames is included as part of a summary plan

   description.” Id. § 2560.503-1(b)(2). Ms. Holmes contends that the SPD does not contain

   a description of the second-level review, the plan’s claims procedure is therefore

   unreasonable, and she is deemed to have exhausted her administrative remedies on this

   basis. We are not convinced Ms. Holmes’s failure to exhaust should be excused by

   deficiencies in the SPD.

          a. The SPD does not comply with ERISA.

          We agree with Ms. Holmes that the SPD does not comply with ERISA. Before we

   address its deficiencies, we pause to identify the document in the record that constitutes

   the SPD. Union Security provided plan participants with the SPD in a Group Benefits

   booklet (the Booklet), which also includes an abbreviated version of the Policy. The copy

   of the double-sided Booklet in the Administrative Record was made without unbinding it,

   resulting in two pages of the Booklet appearing on each page in the record. The record

   copies of the Booklet pages are not in sequential order. For purposes of the argument

   before the district court and on appeal, neither Ms. Holmes nor the Defendant have

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   addressed the provisions in the Booklet as they appear when it is properly collated so that

   the pages run sequentially from 1 through 41. That simple task produces a document

   which clearly delineates between the abbreviated version of the Policy found at the

   beginning of the Booklet and the expressly identified “Summary Plan Description” which

   follows on pages 35 through 41.11 Our analysis is of the SPD identified as such in the

   Booklet.

          The SPD describes only one level of internal review. It contains a section with the

   heading “Claims Procedure,” which states, “The following procedures apply to the extent

   benefits under your employee benefit plan are insured under a contract issued by [Union

   Security].” Aplt. App. 159; attachment, p. 40. Under the sub-heading “Notification of

   Decision—Disability,” the SPD provides the time limits for a decision on an initial claim

   for benefits and then indicates that the plan administrator will provide written notice to

   the claimant “if the claim is denied in whole or in part,” which will include “[a]n

   explanation of the plan’s claim review procedure.” Aplt. App. 159; attachment, p. 40.

   Thus, the SPD alerts participants that with a claim denial letter they will also receive

   information about the plan’s review procedures.

          The Claims Procedure section of the SPD also contains a sub-heading “Review

   Procedure—Disability” (SPD Review Procedure), which states with our emphasis:

          You are entitled to a full and fair review of denial of claim. You may make
          a request to the Plan Administrator or appropriate named fiduciary, if other
          than the Plan Administrator. The procedure is as follows:

          11
               A properly organized copy of the Booklet is included as an attachment to this
   decision.

                                                    25
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          ...

          [Union Security] will make a decision upon review within 45 days after
          receipt of the request unless special circumstances require an extension of
          time for processing in which case the time limit shall not be later than 90
          days after receipt. The decision or review will be in writing, include the
          specific reasons for the decision and specific reference to the pertinent plan
          provisions on which the decision is based and be furnished either directly to
          you or to the Plan Administrator for delivery to you.

   Aplt. App. 158; attachment, p. 41. This subsection is narrowly tailored to the review of

   disability claims and describes only one level of internal review.

          Taken together, these provisions of the SPD fail to inform participants accurately

   of their internal review rights. Although the section of the SPD addressing the

   “Notification of Decision—Disability” indicates that the denial of the initial claim for

   benefits will include “[a]n explanation of the plan’s claim review procedure,” there is

   nothing in the SPD which indicates the description of the review procedure for disability

   claims is incomplete or that after the described first-level review, the claimant may be

   informed of additional appeal rights. Furthermore, unlike the Policy, the SPD does not

   indicate that Union Security will advise participants of “further appeal rights, if any,” in

   its decision on a first-level review.12 As a result, the SPD does not adequately inform

   participants of the second-level of internal review authorized by the plan and contained in

   the Denial Review Procedure.


          12
            The abbreviated copy of the Policy included in the Booklet states, “we will also
   advise you of your further appeal rights, if any.” Aplt App. 167; attachment, p. 31.
   Contrary to the parties’ representations, this language does not appear in the SPD. See
   attachment, pp. 35–41.

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          Relying on Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620 (9th

   Cir. 2008), the district court held this deficiency was cured because the Denial Review

   Procedure was incorporated by reference into the SPD. In Vaught, the Ninth Circuit held

   a summary plan description’s statement that “‘a description of the plan’s appeal

   procedures’” would be included with the claim denial letters was effective to incorporate

   those appeal procedures into the summary plan description, bringing it into compliance

   with ERISA’s notice requirements. Id. at 627. Here, unlike in Vaught, even if we assume,

   without deciding, that the Denial Review Procedure was incorporated by reference,13 it

   does not cure the SPD’s deficiencies.

          In Vaught, the summary plan description made no attempt to describe the claims

   review procedure, stating only that the plan’s appeal procedures would be provided with

   the denial letters. In contrast, the Denial Review Procedure in the present case adds a

   second level of review that seems to conflict with the one level of disability review

   described in the SPD. As a result, even if the Denial Review Procedure were incorporated




          13
            A document, even one that is not contemporaneous, may be incorporated by
   reference into a contract so long as “the contract makes clear reference to the document
   and describes it in such terms that its identity may be ascertained beyond doubt.” 11
   Williston on Contracts § 30:25 (4th ed.) (citing federal law). Compare Armstrong v. Fed.
   Nat’l Mortg. Ass’n, 796 F.2d 366, 371 (10th Cir. 1986) (upholding incorporation by
   reference of a specifically identified “Servicing Contract Supplement,” including
   subsequent amendments thereto), with Pontchartrain State Bank v. Poulson, 684 F.2d
   704, 706 (10th Cir. 1982) (holding that a list of the debtor’s equipment was not
   incorporated by reference into a security agreement and stating, “the doctrine of
   incorporation by reference is not applicable in this case because the promissory note
   makes no reference to the list.”).

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   into the SPD, it does not reasonably apprise participants of the plan’s review procedures

   as required by ERISA.14 29 U.S.C. § 1022(a); 29 C.F.R. § 2520.102-2(b).

          b. Ms. Holmes has not established prejudice.

          Based on the SPD’s failure to describe the second-level review, Ms. Holmes

   argues she is deemed to have exhausted her administrative remedies. Because she has not

   alleged these deficiencies caused her failure to pursue a second-level review, we disagree.

          As this circuit has previously recognized, “Courts have . . . been willing to

   overlook [an] administrator[’s] failure to meet certain procedural requirements when the

   administrator has substantially complied with the regulations and the process as a whole

   fulfills the broader purposes of ERISA and its accompanying regulations.” Gilbertson,

   328 F.3d at 634. Accordingly, we have excused deviations from ERISA’s notice

   requirements so long as the claimant has not been prejudiced thereby. See Tomlinson v.

   El Paso Corp., 653 F.3d 1281, 1295 (10th Cir. 2011) (recognizing that to obtain

   injunctive relief, the plaintiff would be required to show actual harm from the plan’s

   breach of ERISA’s requirement that the summary plan description reasonably apprise the


          14
             The Defendant asks us to ignore this discrepancy because the statement in the
   “Claim Provisions” of the Policy, “we will also advise you of your further appeal rights,
   if any,” put plan participants on notice that a second-level of internal review may be
   required. However, ERISA mandates that the SPD itself be “sufficiently accurate and
   comprehensive to reasonably apprise [plan] participants and beneficiaries of their rights
   and obligations under the plan.” 29 U.S.C. § 1022(a). “The regulations further provide
   that an SPD must not be ‘misleading’ and should not ‘minimize[ or] render[] obscure’
   other restrictions on benefits.” Tomlinson v. El Paso Corp., 653 F.3d 1281, 1294 (10th
   Cir. 2011) (alteration in original) (quoting 29 C.F.R. § 2520.102-2(b)). The SPD, even as
   supplemented by the Denial Review Procedure, does not meet this standard.


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   participants of their rights and obligations under the plan); Hickman v. GEM Ins. Co., 299

   F.3d 1208, 1215 (10th Cir. 2002) (stating that “[s]ubstantial compliance with the

   requirements of § 1133 [ERISA’s claim denial notice provision] is sufficient,” so long as

   the violation does not cause the claimant a “substantive harm”); Getting v. Fortis Benefits

   Ins. Co., 5 F. App’x 833, 835 (10th Cir. 2001) (unpublished)15 (declining to excuse

   failure to exhaust where a plan participant claimed she was not provided with a copy of

   the summary plan description but did receive claim denial letters that included a copy of

   the review procedures, which she and her attorney followed in filing her first internal

   appeal).16



          15
            Although not precedential, we find the reasoning of this court’s unpublished
   opinions instructive. See 10th Cir. R. 32.1 (“Unpublished opinions are not precedential,
   but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
          16
             Other circuits have also required claimants to establish prejudice caused by a
   plan administrator’s failure to comply with ERISA’s notice and disclosure requirements.
   See, e.g., Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 493 (D.C. Cir. 1998) (holding
   that although an administrator failed to provide a claimant with notice of her right to
   appeal in its initial denial letter, it substantially complied with ERISA regulations where
   the claimant was informed of her right to appeal in subsequent communications and the
   claimant could not show that she was prejudiced by the claims procedure or denied a fair
   administrative review); Meza v. Gen. Battery Corp., 908 F.2d 1262, 1278–79 (5th Cir.
   1990) (rejecting a claimant’s argument that because he was not provided with a summary
   plan description he was not bound by internal review procedures where he did not claim
   the absence of the summary plan description prejudiced his ability to obtain plan
   benefits); cf. Kirkendall v. Halliburton, Inc., 707 F.3d 173, 180 (2d Cir. 2013) (“[P]lan
   participants will not be required to exhaust administrative remedies where they
   reasonably interpret the plan terms not to require exhaustion and do not exhaust their
   administrative remedies as a result.” (emphasis added)); Conley v. Pitney Bowes, 34 F.3d
   714, 718–19 (8th Cir. 1994) (holding that exhaustion was not required when a claim
   denial notice did not advise the claimant of the appeal procedure and the claimant had no
   actual knowledge of that procedure).

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          The Defendant seeks a similar result here, relying on the reasoning of Perrino v.

   Southern Bell Telephone & Telegraph Co., 209 F.3d 1309 (11th Cir. 2000), in which the

   Eleventh Circuit explained, “it makes little sense to excuse plaintiffs from the exhaustion

   requirement where an employer is technically noncompliant with ERISA’s procedural

   requirements but . . . the plaintiffs still had a fair and reasonable opportunity to pursue a

   claim through an administrative scheme prior to filing suit in federal court.” Id. at 1318.

   Ms. Holmes claims we should not rely on Perrino or similar cases because they were

   decided before the ERISA regulations were amended to include 29 C.F.R. § 2560.503-

   1(l)’s deemed-exhausted provision.17 She suggests strict application of the deemed-

   exhausted provision is now mandated, even where a claimant is not prejudiced by

   technical violations of ERISA’s notice and disclosure requirements. We disagree.

          Limiting the application of the deemed-exhausted provision to instances where

   technical noncompliance with ERISA’s notice and disclosure requirements has

   prejudiced the claimant’s right to enjoy a reasonable claims procedure is consistent with

   the express language of the regulation, which provides that:

          In the case of the failure of a plan to establish or follow claims procedures
          consistent with the requirements of this section, a claimant shall be deemed
          to have exhausted the administrative remedies available under the plan and
          shall be entitled to pursue [a civil action] on the basis that the plan has
          failed to provide a reasonable claims procedure that would yield a decision
          on the merits of the claim.

          17
           The Department of Labor amended the regulations implementing ERISA in
   2000 and added both the tolling provision and the deemed exhausted provision.
   Employee Retirement Income Security Act of 1974; Rules and Regulations for
   Administration and Enforcement; Claims Procedure, 65 Fed. Reg. 70246-01, 70246,
   70250, 70255 (Nov. 21, 2000); see 29 C.F.R. § 2560.503-1(i)(4), (l).

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   29 C.F.R. § 2560.503-1(l) (emphasis added).18 Under the provision, the right to pursue a

   civil action without first exhausting the claims procedures provided by the plan is tied to

   the plan’s failure to provide a reasonable claims procedure.

          Since the deemed-exhausted provision’s effective date, the courts have been

   charged with interpreting this language on a case-specific basis. Although this circuit has

   not had prior occasion to consider application of the deemed-exhausted provision to

   violations of ERISA’s notice and disclosure requirements, other circuits have consistently

   limited its application to situations where such violations prejudice claimants by denying

   them a reasonable review procedure.19 See, e.g., Schorsch v. Reliance Standard Life Ins.


          18
             By adopting § 2560.503-1(l), the Department of Labor intended to clarify “the
   consequences that ensue when a plan fails to provide procedures that meet the
   requirements of [the ERISA regulations].” Employee Retirement Income Security Act of
   1974; Rules and Regulations for Administration and Enforcement; Claims Procedure, 65
   Fed. Reg. at 70255. The Department published a draft of the provision during the
   rulemaking process and received comments expressing concern that the provision “would
   impose unnecessarily harsh consequences on plans that substantially fulfill the
   requirements of the regulation, but fall short in minor respects.” Id. Some commentators
   requested that the proposed rule be tempered with a good faith exception or a requirement
   of actual harm to the claimant. Id. at 70256. The final version of the amended regulations
   retained the deemed-exhausted provision because “Claimants should not be required to
   continue to pursue claims through an administrative process that does not comply with
   the law.” Id. It therefore determined that “claimants denied access to the statutory
   administrative review process should be entitled to take that claim to a court . . . for a full
   and fair hearing on the merits of the claim.” Id. (emphasis added).
          19
             Indeed, the Eleventh Circuit recently reaffirmed Perrino in an unpublished
   decision, holding that the claimant was required to exhaust his administrative remedies,
   despite technical deficiencies in a denial notice, where the deficiencies did not deprive
   the claimant of a reasonable claims procedure. See McCay v. Drummond Co., 509 F.
   App’x 944, 947 & n.1, 948 (11th Cir. 2013) (unpublished). The Eleventh Circuit
   concluded that even under the “new” regulations, a claimant will be deemed to have
   exhausted his administrative remedies only where “‘the plan has failed to provide a
                                                    31
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   Co., 693 F.3d 734, 739, 740–41 (7th Cir. 2012) (holding a claimant could not be deemed

   to have exhausted her administrative remedies despite “irregularities” in the plan’s

   benefits termination process, where participant could not show how these problems

   caused her not to seek internal review); Chorosevic v. MetLife Choices, 600 F.3d 934,

   944 (8th Cir. 2010) (holding participant could not be deemed to have exhausted her

   administrative remedies where “the ERISA plan’s actions or omissions [did not] deprive

   the claimant of information or material necessary to prepare for administrative review or

   appeal to federal courts”); cf. Bilyeu v. Morgan Stanley Long Term Disability Plan, 683

   F.3d 1083, 1089 (9th Cir. 2012), cert. denied, 133 S. Ct. 1242 (2013) (deeming the

   claimant to have exhausted administrative remedies where claimant actually

   “misconstrued a confusingly worded communication from her plan’s claims

   administrator” to her detriment); Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221–

   23 & n.10 (2d Cir. 2006) (holding that a claimant was deemed to have exhausted his

   administrative remedies where “there was no compliance, substantial or otherwise, with

   ERISA’s claim requirements,” but declining to decide whether the deemed-exhausted

   provision would apply “where existing claims procedures comply substantially with the

   requirements of ERISA”); see also Amara, 131 S. Ct. at 1881–82 (discussing the harm

   required to bring a civil enforcement claim under ERISA for failure of the summary plan

   description to reasonably apprise participants of plan requirements and concluding that

   although the claimant may not need to show detrimental reliance on the deficient

   reasonable claims procedure that would yield a decision on the merits of the claim.’” Id.
   at 947 n.1.

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   summary plan description, she must establish actual harm); Tomlinson, 653 F.3d at 1293

   n.10 (“[T]he Supreme Court recently altered the required showing of prejudice for some

   ERISA claims, but even under this new, more lenient standard, ‘actual harm must be

   shown.’” (quoting Amara, 131 S. Ct. at 1882)).We agree that the deemed-exhausted

   provision is limited to instances in which the notice and disclosure deficiencies actually

   denied the participant a reasonable review procedure.20

          Here, Ms. Holmes has not alleged that she lacked notice of the two-level internal

   review process, that she was confused about the review process, or that she reasonably

   believed seeking a second-level review was merely voluntary. Nowhere in the briefing

   before this court or the district court does Ms. Holmes explain how Union Security’s

   failure to describe the second-level review in the SPD caused her not to follow the review

   process as described in the Denial Review Procedure, which Union Security provided to

   her on two occasions, and which she and her attorney followed in seeking a first-level

          20
           Recent guidance from the Department of Labor is consistent with this approach.
   Answers to frequently asked questions about ERISA published by the Department state,

          [n]ot every deviation by a plan from the requirement of the regulation
          justifies proceeding directly to court. . . . If the plan’s procedures provide
          an opportunity to effectively remedy the inadvertent deviation without
          prejudice to the claimant, through the internal appeal process or otherwise,
          then there ordinarily will not have been a failure to establish or follow
          reasonable procedures as contemplated by § 2560.503-1(l).

   U.S. Dep’t of Labor, Employee Benefits Security Administration, FAQs About The
   Benefit Claims Procedure Regulation, FAQ F-2, http://www.dol.gov/ebsa/faqs/faq_
   claims_proc_reg.html (last visited July 7, 2014) (emphasis added); see Eastman Kodak
   Co. v. STWB, Inc., 452 F.3d 215, 223 n.10 (2d Cir. 2006) (citing the Department of
   Labor’s FAQ section for the position that “‘not every deviation by a plan from the
   requirement of the regulation justifies proceeding directly to court.’”).

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   review. See Getting, 5 F. App’x at 836. Similarly, she has not alleged that the claims

   procedure itself was unreasonable or that the deficient SPD prevented her from obtaining

   a decision on the merits of her claim.21

          Because Union Security’s failure to include the details regarding the two-level

   internal review process in the SPD did not prejudice Ms. Holmes by denying her a fair

   and reasonable opportunity to pursue her claim through the plan’s internal review

   process, the district court correctly rejected her argument that she should be deemed to

   have exhausted her administrative remedies based on deficiencies in the SPD.

                                      III. CONCLUSION

          The plan document authorized the further appeal procedures described in the

   Denial Review Procedure and they are enforceable against Ms. Holmes. Union Security

   rendered a timely decision on Ms. Holmes’s first-level review and the SPD’s failure to

   describe the second-level review did not prejudice Ms. Holmes. As a result, Ms. Holmes

   was required to exhaust her administrative remedies before filing this action. The district

   court correctly determined that she failed to exhaust those remedies by not pursuing a

   second-level review.

          For the foregoing reasons, we AFFIRM the district court’s decision that

   Ms. Holmes’s claim under ERISA is barred.




          21
            It is not unreasonable for a plan to require two levels of mandatory internal
   review. 29 C.F.R. § 2560.503-1(c)(2), (c)(3), (d); Price v. Xerox Corp., 445 F.3d 1054,
   1056 (8th Cir. 2006).

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