     Case: 13-30051       Document: 00512338134          Page: 1     Date Filed: 08/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                             FILED
                                                                           August 12, 2013

                                     No. 13-30051                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



TROY McGOWAN,

                                                   Plaintiff–Appellant
v.

NEW ORLEANS EMPLOYERS INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, AFL-CIO PENSION FUND,

                                                   Defendant–Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:12-cv-00990


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Troy McGowan filed suit against his pension plan following the
termination of his disability pension benefits. The district court granted
summary judgment in favor of the plan because McGowan failed to timely
exhaust his administrative remedies, as required by the plan. McGowan



       *
        Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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appealed on multiple grounds. For the reasons that follow, we affirm the
district court’s grant of summary judgment.
                 I. Factual and Procedural Background
      Plaintiff–Appellant    Troy   McGowan       (“McGowan”)     worked        as   a
longshoreman covered by a plan of benefits (“the Plan”) administered by
Defendant–Appellee New Orleans Employers International Longshoremen’s
Association, AFL-CIO Pension Fund (“the Fund”). McGowan was injured while
winding up the landing gear on a container and subsequently qualified for
disability benefits under the Plan effective December 2003.
      The parties do not dispute that the Plan is an employee pension benefit
plan as defined by the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1002(2)(A)(i). The Plan contains the following terms and
conditions that are relevant to McGowan’s claims:
      •     “Disability means a physical or mental condition that
            permanently prevents an Employee from working in
            Employment in the Industry.”

      •     “A Disability Pension . . . will terminate upon the happening
            of any of the following . . . (ii) ceasing to be Disabled or
            engaging in gainful employment other than for purposes of
            rehabilitation on a nominal wage basis[.] . . . If Disability
            Pension benefits are terminated, the Board will provide
            written notice by first class mail or personal delivery to the
            affected Qualified Pensioner, . . . setting forth the reasons for
            termination and an explanation of the right to file a written
            claim for review . . . .”

      •     “Within 180 days after receipt of an adverse benefit
            determination . . . the claimant or his representative may
            appeal the determination by making a written request for
            review to the board[.]”




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      •     “If a timely written request for review is not made, the
            initial decision on the claim will be final.”

      •     “[A]n initial decision on a claim under the Plan that is not
            timely appealed[] will be conclusive, final and binding on all
            persons.”

      •     “In no event may legal action be brought by or on behalf of
            any individual to receive benefits under the Plan unless the
            individual . . . has first fully complied with and timely
            exhausted the Claims and Claims Review Procedures under
            the Plan.”
      On April 18, 2011, McGowan spoke with Thomas Daniel (“Daniel”), the
Plan’s Administrative Manager. During the course of this discussion, it was
suggested that McGowan may have returned to gainful employment and that
disability benefits would be terminated if that was the case. Two days later
McGowan received a letter notifying him that his benefits would be terminated
effective April 30, 2011, on the basis that McGowan had returned to work and
was thus no longer disabled. In addition to explaining the decision, the letter
included the following language regarding McGowan’s ability to contest the
determination: “Your post-appeal rights are set forth on pages 36-39 of the
enclosed Summary Plan Description booklet. Please note your right to pursue
legal action under Section 502(a) of ERISA. The limitation period is one (1)
year from today.” A booklet explaining the terms of the Plan accompanied the
letter.   Pages 36–39 of the booklet contained language explaining that
McGowan had 180 days to file a written request for review.
      McGowan concedes that he did not file a written appeal within 180 days
of the April 20, 2011 letter. He does claim, however, that he called Daniel “to
discuss the notice and [to] notif[y] him of his intent to appeal.” The Fund
received two letters thereafter. The first letter was sent on September 12, 2011


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by an attorney who claimed to be assisting McGowan in his attempt to return
to work as a longshoreman. Approximately ten months after receiving the
termination of benefits letter, on February 9, 2012, the Fund received a second
letter from a different attorney. The second letter requested a reevaluation of
McGowan’s eligibility for disability benefits.
      On April 18, 2012, McGowan filed suit against the Fund, challenging the
termination of his disability benefits. While McGowan’s suit was pending, the
Fund held a hearing to evaluate the timeliness of McGowan’s appeal, as well
as the underlying issue of disability, in response to the February 9, 2012 letter.
On September 12, 2012, the Fund issued a final determination that denied
McGowan’s claims. Specifically, the Fund found that (1) “No written appeal
was filed by Mr. McGowan or his counsel within the 180-day period established
by the Plan[;]” (2) “The ‘appeal’ lodged by Mr. McGowan’s second counsel . . .
was clearly untimely[;]” and (3) “Even if the February 9, 2012 letter constituted
a timely appeal, the facts developed clearly confirm . . . that [McGowan] was
able to work as a longshoreman and that he had been working as a
longshoreman since 2009.” The district court granted summary judgment in
the Fund’s favor on October 15, 2012, holding that McGowan had failed to
timely exhaust his administrative remedies. McGowan appealed.
                 II. Jurisdiction and Standard of Review
      This Court has jurisdiction pursuant to 28 U.S.C. § 1291, because
McGowan appeals the district court’s final judgment. On appeal, this Court
reviews a district court’s grant of summary judgment de novo, applying the
same standards as the district court. Greater Hous. Small Taxicab Co. Owners
Ass’n v. City of Hous., 660 F.3d 235, 238 (5th Cir. 2011). Summary judgment
is warranted when the movant shows that there is no genuine dispute over any
material fact and that the movant is entitled to judgment as a matter of law.

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Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the evidence
is such that a reasonable jury could find for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is not enough to simply claim
a fact is disputed; such an assertion must be supported by argumentation and
citations to the record. Fed. R. Civ. P. 56(c)(1)(A)–(B).


                                 III. Analysis
A.    Sufficiency of the Termination Notice
      McGowan argues that the 180-day period did not begin to run when he
received the termination letter because the termination letter did not
substantially comply with the requirements of 29 U.S.C. § 1133 and 29 C.F.R.
§ 2560.503-1, which govern the content of ERISA notices. The Fund was
required to provide McGowan with “[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 under section 502(a) of
[ERISA] following an adverse benefit determination on review.” 29 C.F.R.
§ 2560.503-1(g)(1)(iv). Strict compliance with ERISA is not necessary, however.
Fifth Circuit precedent makes clear that substantial compliance will suffice to
trigger the running of the administrative appeal period. Lacy v. Fulbright &
Jaworski, 405 F.3d 254, 257 (5th Cir. 2005).
      The termination letter that McGowan received included a copy of the
Plan and stated that McGowan’s “post-appeal rights are set forth on pages 36-
39 of the enclosed Summary Plan Description booklet.” Pages 36–39 of the
booklet describe the Plan’s claim procedures, inform beneficiaries of their right
to seek review of the adverse determination, and specifically state a 180-day
limit for submitting a written request for review. The termination letter
further notified McGowan of his right to file suit under ERISA. The content of

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the termination letter thus substantially complied with § 2560.503-1(g)(1)(iv).
While the letter itself did not explicitly state that McGowan had 180 days to
file a written appeal, it incorporated that information by specifically
identifying the pages on which the 180-day rule was located. Moreover, a copy
of the benefit booklet was included with the letter. Because the termination
letter also mentioned McGowan’s right to file suit under § 502(a) of ERISA, as
well as the one-year time limit, the district court correctly found that the
termination letter substantially complied with § 2560.503-1(g)(1)(iv).
Therefore, the 180-day period began to run when McGowan received the
termination letter.
B.    Timely Exhaustion of Administrative Remedies
      Because the termination letter substantially complied with the relevant
regulation, McGowan had 180 days from receipt of the letter to file a written
request for review. As the Plan clearly states, a determination “that is not
timely appealed[] will be conclusive, final and binding on all persons.” In order
to challenge the Fund’s determination in court, McGowan must show that he
timely exhausted the administrative remedies available.
      McGowan concedes that he did not file a written request for review
within the 180-day period provided by the Plan. He claims instead that he
orally notified Daniel of his intent to appeal the termination in a phone call
that took place a few days after he received the letter. As the Plan makes
abundantly clear, however, oral notification does not suffice. Beneficiaries
seeking review of a determination must make “a written request for review to
the Board” within 180 days of receiving the adverse benefit determination.
Since McGowan failed to do so, his termination of benefits became final and
binding.



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      In an attempt to salvage his claim, McGowan contends that the hearing
held in 2012, prior to the district court’s summary judgment determination,
remedied his failure to timely exhaust administrative remedies because the
merits of his claim were considered.        McGowan, however, provides no
argumentation or authority in support of this proposition. Furthermore, the
Fund’s decision to evaluate the timeliness of McGowan’s appeal at a hearing
where McGowan’s employment history was also discussed does not remedy
McGowan’s failure to exhaust. The hearing was held in response to McGowan’s
February 9, 2012 letter, a written request for review that was submitted ten
months after McGowan received the termination letter; and the primary
purpose of the hearing was to evaluate the timeliness of McGowan’s appeal. As
the Fund stated in its final determination: “No written appeal was filed by Mr.
McGowan or his counsel within the 180-day period established by the plan.”
McGowan thus did not appeal the termination of benefits within the time
allotted; the subsequent hearing did not remedy McGowan’s default.
Therefore, we affirm the district court’s grant of summary judgment for failure
to timely exhaust administrative remedies.
C.    Daniel’s Authority as Administrator
      McGowan’s last argument alleges that an ambiguity exists as to whether
Daniel, the Plan’s Administrative Manager, was acting within the scope of his
authority when he determined that McGowan’s disability benefits should be
terminated. McGowan raises this argument in order to void the termination
of his disability benefits.   We do not reach this issue, however, because
McGowan is foreclosed from challenging the termination because he did not
timely exhaust his administrative remedies, as explained above. See Coop.
Benefit Adm’rs, Inc. v. Ogden, 367 F.3d 323, 336 (5th Cir. 2004) (denying a claim
for benefits when the pensioner failed to timely exhaust available

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administrative remedies); Bourgeois v. Pension Plan for the Emps. of Santa Fe
Int’l Corps., 215 F.3d 475, 479 (5th Cir. 2000) (“This court requires that
claimants seeking benefits from an ERISA plan must first exhaust available
administrative remedies under the plan before bringing suit to recover
benefits.”). McGowan could have challenged Daniel’s authority as part of the
administrative review procedure.         Having failed to timely pursue
administrative review, McGowan is barred from raising this claim.




                              IV. Conclusion
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment for the Fund.




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