                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 28 2001
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 DEBRA S. GETTING,

          Plaintiff-Appellant,

 v.                                                       No. 00-3278
                                                            (D. Kan.)
 FORTIS BENEFITS INSURANCE                        (D.Ct. No. 97-CV-4177-SAC)
 COMPANY,

          Defendant-Appellee.
                        ____________________________

                             ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Debra S. Getting, a pro se litigant, appeals the district court’s decision,

granting summary judgment to Fortis Benefits Insurance Company, Inc. (Fortis) in

an action alleging it violated the Employee Retirement Income Security Act of

1974, 29 U.S.C. §§ 1001-1461 (ERISA). Exercising our jurisdiction under 28

U.S.C. § 1291, we affirm the judgment of the district court.



      The material, uncontroverted facts are fully set forth in the district court’s

July 27, 2000 Memorandum and Order. In short, Fortis twice denied Ms.

Getting’s claim seeking long-term disability benefits – first denying her initial

claim and then her appeal. Each time Fortis denied Ms. Getting’s claim, it

provided her with the ERISA appeal guidelines it used in administering claims.

Following Fortis’ denial of Ms. Getting’s appeal, Ms. Getting’s attorney

demanded an explanation from Fortis on why it denied her appeal and requested

certain documents, including the “summary plan description.” In a letter to Ms.

Getting’s attorney, Fortis provided additional information on why it denied Ms.

Getting’s appeal and stated, “[i]f you wish to appeal the denial of her claim,

enclosed are the procedures as required under [ERISA].” Fortis also provided

Ms. Getting’s attorney a copy of the master policy, insurance booklet, policy

schedule, and the ERISA appeal guidelines it used in administering claims, but

did not provide the “summary plan description.” Although Fortis’ denial letter


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did not explicitly mention it, Fortis had an established procedure of providing a

third level of review to ERISA participants.



      Ms. Getting did not file for a third-level review with Fortis, and instead

filed a pro se, federal complaint against Fortis, alleging it wrongfully denied her

long-term disability benefits under its policy in violation of ERISA requirements.

Fortis filed a motion for summary judgment claiming Ms. Getting failed to

exhaust her administrative remedies under ERISA by not pursuing a third-level

review. Ms. Getting responded to Fortis’ summary judgment motion, contending

it must be dismissed because Fortis failed to produce the “summary plan

description” or any other plan documents which “support” or “establish[]” its

administrative claims procedure.



      The district court granted summary judgment in favor of Fortis, finding Ms.

Getting failed to exhaust her administrative remedies. Although no evidence

showed Fortis explicitly told Ms. Getting about its third-level review, the district

court determined the letters and ERISA appeal guidelines Fortis sent Ms. Getting

put her and her attorney on notice of a third-level review existed. The district

court also noted Ms. Getting did not claim a third-level review would have been

futile or that Fortis would again deny her claim.


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      On appeal, Ms. Getting does not claim she was unaware of Fortis’ third-

level review. Rather, Ms. Getting implicitly acknowledges she was aware of the

third-level review, stating “I decided to pursue my next appeal through the courts

because I was not getting the information I needed to pursue my appeal from

Fortis.” She identifies the information she needed as the “summary plan

description” and bases her appeal on the fact she never received this document

from Fortis, 1 which she claims denied her access to the appeals procedure.

Finally, Ms. Getting summarily states that appealing directly to Fortis “would

have been futile.”



      In response to Ms. Getting’s appeal, Fortis contends it is the duty of the

plan administrator or sponsor to prepare and provide the “summary plan

description” to its participants. Fortis asserts Ms. Getting failed to show in this

case that Fortis was the administrator or sponsor of the ERISA plan at issue, had a

duty to provide her the summary plan description, or even had the summary plan


      1
          In support of her argument that Fortis intentionally concealed information about
the “summary plan description,” Ms. Getting attaches a copy of a handwritten, internal
document obtained from Fortis which is partially covered with a stick’em note. (Apt. Br.
at 4 (¶ 3(a) and att’d Ex. DEF 0079).) However, a review of the record shows Fortis
supplemented the district court record with a clean copy of the handwritten document –
minus the stick’em note – and that the portion of the document previously covered did not
pertain to the summary plan description. (Ape. Br. at 13; Vol. 1, Doc. 22 (att’d Ex. DEF
0079(A)).)


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description at the time it was requested.



      We begin with our standard of review:

             We review the district court’s grant of summary judgment de
      novo, applying the same legal standard used by the district court.
      Summary judgment is appropriate “if the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any
      material fact and that the moving party is entitled to a judgment as a
      matter of law.” .... [W]e view the evidence and draw reasonable
      inferences therefrom in the light most favorable to the nonmoving
      party.

Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165

F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999) (quoting Fed. R.

Civ. P. 56(c)).



      Next, we must look at the exhaustion requirement. Although ERISA

contains no explicit exhaustion requirement, we have held that exhaustion of

administrative remedies is an implicit prerequisite to seeking judicial relief. See

McGraw v. Prudential Ins. Co., 137 F.3d 1253, 1263 (10th Cir. 1998). Generally,

a district court may waive exhaustion only when appeal in the review process

would be futile or the remedy in the benefit plan is inadequate. See id. In order

to meet the futility exception, Ms. Getting must show her claim would be denied

on appeal, and not just that she thinks it is unlikely an appeal will result in a


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different decision. See Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.

1996).



         A review of the record establishes Ms. Getting failed to exhaust her

administrative remedies by not filing for a third-level review. Regarding her

conclusory statement that another appeal would have been “futile,” we note Ms.

Getting provides no evidence in support of this statement and did not make this

argument to the district court. Therefore, Ms. Getting has not made the requisite

showing that “futility” was an excuse for not exhausting her administrative

remedies. Similarly, Ms. Getting never explains why a copy of the “summary

plan description” was required for further appeal. While she contends the

summary plan description would have somehow “establishe[d]” Fortis’

administrative claims procedure, evidence in the record shows she knew and

received the ERISA appeal guidelines containing the claim review procedures

used by Fortis, which she and her attorney followed in filing her first appeal.

Thus, under the circumstances presented, Ms. Getting fails to show a genuine

issue as to any material fact or that she is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(c).



         For these and substantially the same reasons in the district court’s July 27,


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2000 Memorandum and Order, the district court’s grant of summary judgment in

favor of Fortis was correct. Accordingly, we AFFIRM the judgment of the

district court.


                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




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