                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0046n.06

                                              Case No. 17-5588

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                                     FILED
                                                                                             Jan 23, 2018
OLIVER HUSTON BARBER, III, on behalf of )                                                DEBORAH S. HUNT, Clerk
himself and two classes of similarly situated )
persons,                                      )
                                              )                      ON APPEAL FROM THE UNITED
         Plaintiff-Appellant,
                                              )                      STATES DISTRICT COURT FOR
         v.                                   )                      THE WESTERN DISTRICT OF
                                              )                      KENTUCKY
LINCOLN NATIONAL LIFE INSURANCE )
COMPANY,                                      )
                                              )
         Defendant-Appellee.                  )

        BEFORE: COLE, Chief Judge; SILER and COOK, Circuit Judges.

        COOK, Circuit Judge. Oliver Barber sued Lincoln National Life Insurance Company

(“Lincoln”) under the Employee Retirement Income Security Act of 1974 (“ERISA”) for

(1) offsetting from his disability benefits his earnings as a political consultant and (2) calculating

those offsets using figures he disclosed to Lincoln rather than the numbers he later reported for

federal income tax purposes. The district court dismissed the first count for failure to state a

claim and the second for failure to exhaust administrative remedies. For the reasons explained

here, we AFFIRM.

                                         I.       BACKGROUND

        Barber worked as a litigator at Stites & Harbison, PLLC. The firm’s long-term disability

insurance policy with Lincoln offers both Total and Partial Disability benefits.1 Under the


        1
           Because the complaint attaches the policy and the claims revolve around the policy’s terms, we consider
the policy on this appeal. See Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680–81 (6th Cir. 2011).
Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


policy, beneficiaries may qualify for disability benefits when they cannot “perform one or more

of the Main Duties of his or her Specialty in the Practice of Law on a full-time basis.” If a

beneficiary engages in Partial Disability Employment––in other words, an employee continues

“working at his or her Own Occupation or any other occupation” under reduced hours, duties, or

pay––then Partial Disability benefits apply.           But if a disabled beneficiary stops working

altogether, then he may be entitled to Total Disability benefits.

       After being diagnosed with Parkinson’s disease, Barber applied for Total Disability

benefits and Lincoln approved his application. When Lincoln later asked whether he had any

other sources of income, Barber reported that he was working as an independent contractor for a

political campaign. Lincoln thereafter began reducing his monthly benefits to reflect those

consulting earnings. After Lincoln denied his requests to stop offsetting his benefits, Barber

initiated this purported class action.       He now appeals the district court’s dismissal of his

complaint. See Barber v. Lincoln Nat’l Life Ins. Co., 260 F. Supp. 3d 855, 864 (W.D. Ky. 2017).

                                       II.      DISCUSSION

       We review de novo the district court’s decision on the motion to dismiss for failure to

state a claim. Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 846 (6th Cir. 2012). To

survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Where, as here, a policy

grants a plan administrator discretion to interpret the policy, courts apply the deferential arbitrary

and capricious standard of review to the administrator’s decision. Shields v. Reader’s Digest


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Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


Ass’n, Inc., 331 F.3d 536, 541 (6th Cir. 2003). Thus, Barber’s appeal hinges on whether the

facts in the complaint, taken as true, plausibly show that Lincoln interpreted the policy arbitrarily

and capriciously.    See Tate v. Gen. Motors LLC, 538 F. App’x 599, 601 (6th Cir. 2013)

(examining whether the plaintiffs “have shown that the plan administrator’s interpretation is

arbitrary and capricious”).

                                                 A.

       Barber seeks to recover the benefits he claims Lincoln unjustifiably withheld. Lincoln

counters that Barber fails to plausibly state a claim because the policy clearly entitled Lincoln to

offset Barber’s employment earnings from his monthly benefit. When interpreting ERISA plans,

“general principles of contract law apply.” Lipker v. AK Steel Corp., 698 F.3d 923, 928 (6th Cir.

2012). And we interpret plan provisions “according to their plain meaning, in an ordinary and

popular sense.” Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir. 1998).

       Although the parties dispute whether Barber’s benefits should be calculated under the

policy’s Total or Partial Disability benefits section, Barber’s appeal turns on whether his

consulting earnings qualify as “Other Income Benefits,” which the policy incorporates into both

sections. Per the policy, the Total Disability benefit equals “the Insured Employee’s Basic

Monthly Earnings multiplied by the Benefit Percentage . . . minus Other Income Benefits.”

And the Partial Disability benefit comprises the lesser of either the “Insured Employee’s

Predisability Income, minus all Other Income Benefits (including earnings from Partial

Disability Employment),” or the “Insured Employee’s Predisability Income multiplied by the

Benefit Percentage (limited to the Maximum Monthly Benefit); minus . . . Other Income


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Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


Benefits, except for earnings from Partial Disability Employment.” Even evaluating Barber’s

claim under the Total Disability formula as he alleges it should be calculated, Barber fails to

plausibly state a claim because the policy allows Lincoln to consider his earnings as Other

Income Benefits under either section.

       The first paragraph of the policy’s Other Income Benefits section affirms that Earnings

may offset benefits:

       OTHER INCOME BENEFITS means benefits, awards, settlements or Earnings
       from the following sources. These amounts will be offset, in determining the amount
       of the Insured Employee’s Monthly Benefit. Except for Retirement Benefits and
       Earnings, these amounts must result from the same Disability for which a Monthly
       Benefit is payable under this Policy.

The policy then lists the sources of Other Income Benefits, including Earnings, which it defines,

in relevant part, as “pay the Insured Employee earns or receives from any occupation or form of

employment, as reported for federal income tax purposes.” Because “any occupation or form of

employment” encompasses Barber’s political consulting work, his earnings qualify as Other

Income Benefits.       Thus, the policy allows Lincoln to consider that compensation when

calculating his monthly benefit.

       Despite this clear language, Barber contends that the Earnings provision operates simply

as a definition in the Other Income Benefits section, but not as one of “the following sources”

that can offset benefits. Although the term “Earnings” never appears in the other sources listed

in the Other Income Benefits section (such as Social Security or worker’s compensation

benefits), Barber claims the term “may be relevant” elsewhere in the contract. To support his

reading, Barber points to the Progressive Income Benefit provision, which states, “The


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Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


Progressive Income Benefit will not be reduced by any Other Income Benefits, or by earnings

from any form of employment.”        Barber suggests that if Other Income Benefits included

employment earnings, the references to both Other Income Benefits and “earnings from any form

of employment” would be unnecessary. Lincoln claims that this provision only references

“earnings” generally––in contrast to the defined term Earnings used in the Other Income

Benefits section. But the Earnings definition includes “pay . . . from any occupation or form of

employment.” And Lincoln fails to explain how that language would not encompass “earnings

from any form of employment.”

       Various sections of the policy, however, confirm that Other Income Benefits includes

Earnings. For one, the Exceptions section to Other Income Benefits explicitly exempts Earnings

from Other Income Benefits in assessing cost-of-living increases: “The following will not be

considered Other Income Benefits . . . a cost-of-living increase in any Other Income Benefit

(except Earnings) . . . .” If Earnings were not Other Income Benefits, no exception would be

necessary. Similarly, the Cost-of-Living Freeze provision also exempts Earnings: “After the first

deduction for each of the Other Income Benefits (except Earnings), its amount will be frozen.”

Thus, despite the isolated language in the Progressive Income Benefit section, other provisions

support the more natural reading, recognizing Earnings as one of the Other Income Benefits

sources.

       In opposition, Barber argues that Lincoln’s inherent conflict-of-interest in both evaluating

and paying benefits claims entitles Lincoln’s interpretation to little deference. Taking this

conflict “into account as a factor in determining whether the [administrator’s] decision was


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Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


arbitrary and capricious,” Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 694 (6th Cir. 1989), we

still conclude that Barber fails to plausibly allege that Lincoln acted arbitrarily and capriciously

because the plain language allows Lincoln to consider his consulting earnings when calculating

his benefits.

        Barber also insists that Lincoln’s interpretation frustrates the “bargained-for” purpose of

the policy, which he contends is “to protect earning power of someone who cannot work in his or

her own occupation.” But Barber––not Lincoln––ignores the bargained-for terms of the policy.

Lincoln paid disability benefits after Barber could no longer work as a lawyer; later, it simply

applied the policy’s terms in offsetting his other earnings from those benefits. Barber effectively

asks this Court to overlook language in the Other Income Benefits section that he deems contrary

to the policy’s purpose. Given the policy’s clear language, we cannot. See Health Cost Controls

v. Isbell, 139 F.3d 1070, 1072 (6th Cir. 1997) (“[T]he plain language of an ERISA plan should

be given its literal and natural meaning.”).

                                                B.

        Barber further alleges that Lincoln’s offsetting earnings from his monthly benefits

violated its duties under ERISA because Lincoln calculated those deductions using the earnings

Barber reported to Lincoln rather than the income he later disclosed on his tax return. According

to Barber, the premature deduction resulted in Lincoln’s using the wrong amount and denied him

the time value of his money. The district court dismissed this claim because Barber failed to

exhaust his administrative remedies. Barber, 260 F. Supp. 3d at 863–64. Barber appeals,

arguing that the exhaustion requirement does not bar his claim. We review de novo whether the


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Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


exhaustion requirement applies. Hitchcock v. Cumberland Univ. 403(b) DC Plan, 851 F.3d 552,

559 (6th Cir. 2017).

       ERISA’s administrative scheme “requires a participant to exhaust his or her

administrative remedies prior to commencing suit.” Ravencraft v. UNUM Life Ins. Co. of Am.,

212 F.3d 341, 343 (6th Cir. 2000) (quoting Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th

Cir. 1991)).   The exhaustion requirement includes an exception for “when resort to the

administrative route is futile or the remedy inadequate.” Hitchcock, 851 F.3d at 560 (quoting

Costantino v. TRW, Inc., 13 F.3d 969, 974 (6th Cir. 1994)). Exhaustion of administrative

remedies would be futile when a suit challenges the “legality,” rather than the interpretation, of a

plan, because the administrator “would merely recalculate [the] benefits and reach the same

result.” Id. (quoting Costantino, 13 F.3d at 975). Therefore, when plaintiffs assert “statutory

violations of ERISA,” they need not exhaust administrative remedies. Id. at 564.

       In his complaint, Barber alleges that Lincoln’s “systemic process in not requesting and

using appropriate tax reporting documentation in connection with calculating benefits payments

violates Defendant’s duties under ERISA.” ERISA requires plan fiduciaries to discharge their

duties “with the care, skill, prudence, and diligence” necessary under the circumstances.

29 U.S.C. § 1104(a)(1)(B). But the statutory-claims exception to the exhaustion requirement

shuns “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.” Hitchcock, 851 F.3d at 565 (quoting Stephens v. Pension Benefit Guar.

Corp., 755 F.3d 959, 966 n.7 (D.C. Cir. 2014)). The relevant inquiry becomes “what forms the


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Case No. 17-5588, Oliver Barber v. Lincoln Nat’l Life Ins. Co.


basis of [Plaintiffs’] right to relief: the contractual terms of the pension plan or the provisions of

ERISA and its regulations.” Id. (quoting Stephens, 755 F.3d at 967). Because no ERISA

provision requires Lincoln to use tax documentation in offsetting benefits, any such duty could

only come from the policy itself.

       As Barber alleges a claim based on the policy, he must either “administratively exhaust

[his] claims or plead futility.” Id. at 564. He does neither. Although Barber exhausted his

administrative remedies for his denial of benefits claim related to Count I, he concedes that his

counts “do not overlap.”      Lincoln also underscores that before this lawsuit Barber never

challenged Lincoln’s decision to offset his earnings on a monthly basis using self-reported

figures. Because Barber failed to administratively exhaust his remedies or plead futility for

Count II, the district court correctly dismissed that count.

                                      III.    CONCLUSION

       We AFFIRM the district court’s dismissal.




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