1                      IN THE UNITED STATES COURT OF APPEALS

2                              FOR THE FIFTH CIRCUIT



3                                 _______________

4                                   No. 92-1147
5                                 _______________


6                             CRYSTAL CAMMACK MEDINA,

7                                                        Plaintiff-Appellant,


8                                      VERSUS

 9                      ANTHEM LIFE INSURANCE COMPANY,
10               f/k/a American General Group Insurance Co.,

11                                                       Defendant-Appellee.


12                           _________________________

13              Appeal from the United States District Court
14                   for the Northern District of Texas
15                        _________________________

16                              (January 28, 1993)

17   Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

18   JERRY E. SMITH, Circuit Judge:

19        Crystal Cammack Medina sought to amend her complaint to add

20   claims for recovery of extracontractual and punitive damages from

21   her insurance carrier, Anthem Life Insurance Company ("Anthem"),

22   under   section    502(a)(1)(B)   of   the   Employee   Retirement   Income

23   Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B).              She

24   also sought recovery from Anthem of certain payments she had made

25   to one of her doctors.       The district court refused to find that

26   section 502(a)(1)(B) allows extracontractual and punitive relief

27   and also refused to grant Medina recovery of other payments because
28   she failed to exhaust administrative remedies.          We affirm.



29                                       I.

30        Medina works for Credit Finance Corporation, which is insured

31   by Anthem, which presently insures Medina. In January 1988, Medina

32   began a   course   of   dental   treatments    during   which   her   doctor

33   submitted a request to Anthem for predetermination of a dental

34   procedure.     Anthem's    claim   committee    reviewed    the   request,

35   concluded that sufficient evidence did not exist to prove the

36   medical necessity of the procedure, and refused to pay any benefit.

37   Medina's doctor submitted the request again in 1990; Anthem's claim

38   committee further reviewed the request and once again reached the

39   same conclusion.

40        In April 1990, Medina sought a second opinion from another

41   doctor, who recommended a different procedure.             Anthem's claim

42   committee still determined that it would not cover the procedure.

43   In June, Medina's attorney wrote to Anthem seeking to convince

44   Anthem to approve the new procedure.     Anthem sent Medina's records

45   to the Medical Review Institute of America for an independent

46   evaluation.   When the institute recommended going forward with the

47   procedure, Anthem approved the procedure on August 16, 1990.

48        The next day, Medina brought suit against Anthem in state

49   court, seeking $10,035 as the cost of treatment, $50,000 for pain

50   and suffering and mental anguish, and $500,000 in punitive damages.

51   Anthem removed the case to federal court.

52        Medina then filed an amended complaint that acknowledged that


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53   ERISA preempts her state law remedies.        She requested that the

54   court clarify her rights to future benefits, enjoin Anthem's "acts

55   and practices," and award her costs and attorneys' fees.

56        On October 16, 1991, Medina sought leave to file a second

57   amended complaint to add a claim for extracontractual and punitive

58   damages based upon Anthem's handling of her claims. The magistrate

59   judge refused to allow Medina to amend her complaint, finding that

60   ERISA precludes the award of extracontractual and punitive relief.

61        On November 18, 1991, Anthem moved to dismiss the complaint

62   for failure to exhaust administrative remedies. Anthem argued that

63   it had paid all claims that Medina had submitted in accordance with

64   its policy. All that remained was a disputed $1,363.20 that Medina

65   averred to have paid her doctor for the latest procedure she had

66   undergone.   Anthem asserted that Medina never submitted proper

67   documentation to Anthem's claims department, so Anthem had no

68   obligation to reimburse Medina.       The magistrate judge agreed and

69   dismissed Medina's complaint for failure to exhaust administrative

70   remedies.



71                                  II.

72        We turn first to Medina's contention that the magistrate judge

73   erred in refusing to allow Medina to amend her complaint to add a

74   claim for extracontractual and punitive damages.      Medina urges us

75   to develop a body of federal common law to supplement the express

76   provisions of ERISA, which include no mechanism for awarding

77   extracontractual or punitive damages.        Joining the Seventh and


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78    Eleventh Circuits, we decline this invitation.

79         ERISA section 502(a) is the civil enforcement provision of the

80    statute.   It provides that

81         [a] civil action may be brought ))

82         (1)   by a participant or beneficiary ))

83               . . .

84               (B)      to recover benefits due to him under the terms
85                        of his plan, to enforce his rights under the
86                        terms of the plan, or to clarify his rights to
87                        future benefits to under the terms of the plan
88                        . . . .

89    The plain language of this statute does not mention recovery of

90    extracontractual or punitive damages.              Nothing in the statute

91    instructs us to fashion a federal common law remedy to grant

92    plaintiffs    the    right     to   recover   punitive    or   extracontractual

93    damages.   Nevertheless, Medina asks us to do just that.

94         Medina      points   to    legislative     history    that    indicates   a

95    willingness on the part of Congress to allow federal courts to mold

96    a federal common law of ERISA.           The Conference Report describing

97    ERISA section 502(a) states that a plan beneficiary may bring a

98    civil action

 99        to recover benefits under the plan which do not involve
100        application of the title I provisions . . . [and suits]
101        may be brought not only in U.S. district courts but also
102        in State courts of competent jurisdiction.      All such
103        actions in Federal or State courts are to be regarded as
104        arising under the laws of the United States in similar
105        fashion to those brought under section 301 of the Labor-
106        Management Relations Act of 1947.

107   H.R. Conf. Rep. No. 1280,           93d Cong., 2d Sess. 327, reprinted in

108   1974 U.S.C.C.A.N. 4639, 5107.           As late as 1989, the House Budget

109   Committee "reaffirmed the authority of the federal courts to shape

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110   legal remedies to fit the facts and circumstances of the cases

111   before them, even though those remedies may not be specifically

112   mentioned in ERISA itself."                 Report of the Comm. on the Budget,

113   House of Rep., 101st Cong., 1st Sess. 55-56 (1989).

114        Unfortunately for Medina, Congress has had almost two decades

115   to enact its putative intent into law and has not done so.                              Had

116   Congress intended to develop ERISA remedies additional to the ones

117   it specifically crafted, it has had ample opportunity to enact such

118   legislation.       Since Congress has not translated its intent into

119   law, we are loathe to take this initiative on our own.

120        In Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52 (1987), the

121   Court considered whether Congress meant for the civil enforcement

122   provisions   of     section       502(a)     to    be   the    exclusive    remedy      for

123   beneficiaries.           While   the   Court       directed     its     opinion    to   the

124   question of whether ERISA preempts a state law claim for improper

125   processing of disability benefits, and decided that ERISA did

126   preempt,    it    also    noted      that    the    text   of     the   statute     argues

127   "strongly    for    the     conclusion        that      ERISA's    civil    enforcement

128   remedies were intended to be exclusive."                       Id. at 54.        The Court

129   concluded    that    the        "`carefully        integrated      civil    enforcement

130   provisions       found     in    §    502(a)       of    the    statute     as     finally

131   enacted . . . provide strong evidence that Congress did not intend

132   to authorize other remedies that it simply forgot to incorporate

133   expressly.'"       Id. (quoting Massachusetts Mut. Life Ins. Co. v.

134   Russell, 473 U.S. 134, 146 (1983)).

135        In Russell, 473 U.S. at 144, the Court also addressed section


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136   502(a)(1)(B).      Although the issue at bar in that case was whether

137   a fiduciary to a plan may be held liable for extracontractual or

138   punitive damages under ERISA section 409(a), the Court turned to

139   section 502(a)(1)(B) for insight by analogy.                     Id.      It noted that

140   since   that     section         "says     nothing       about      the     recovery    of

141   extracontractual damages . . . there really is nothing at all in

142   the statutory text to support the conclusion" that the statute

143   intended    to     give    "rise     to     a    private     right     of    action     for

144   compensatory or punitive relief."                    Id.      The Court held that

145   Congress did not intend for section 409(a) to include any relief

146   outside of that expressly authorized by the statute.                         Id.

147        Medina points out that the Court more recently has addressed

148   this issue in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111

149   S. Ct. 478, 486 (1990).            In a case once more holding that ERISA

150   preempts state law claims for damages for wrongful discharge, the

151   Court mentioned in dicta that "there is no basis in § 502(a)'s

152   language for limiting ERISA actions to those which seek `pension

153   benefits.'         It     is    clear      that    the     relief      requested       here

154   [compensatory and punitive damages] is well within the power of

155   federal courts to provide."               Id.

156        Both    the    Seventh       and     Eleventh       Circuits    have     considered

157   Ingersoll-Rand       and       nevertheless       have     refused     to    fashion     an

158   extracontractual or punitive remedy under section 502(a). In McRae

159   v. Seafarers' Welfare Plan, 920 F.2d 819, 821 n.7 (11th Cir. 1991),

160   Judge Wisdom, sitting by designation, explained the Ingersoll-Rand

161   dicta as follows:


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162         We do not interpret these statements to mean that the
163         remedies which the plaintiff in Ingersoll-Rand was
164         seeking )) future lost wages, mental anguish and punitive
165         damages )) are necessarily available under ERISA
166         § 502(a). The Supreme Court was stating that federal law
167         provides relief for ERISA actions other than those that
168         seek to recover pension benefits, such as the plaintiff's
169         cause of action for wrongful termination. The Supreme
170         Court is not holding that the specific remedies this
171         plaintiff had sought under state law are necessarily the
172         remedies that will be afforded him should he be granted
173         relief under ERISA § 502.

174   The court then went on to rely upon the reasoning in Russell to

175   hold that section 502(a)(3) precludes extracontractual remedies.

176   Id. at 822.   It refused to "create a federal common law of remedies

177   for the benefit of the plaintiff on the sole authority of the House

178   Committee Report."       Id. at 823.

179         Similarly, in Harsch v. Eisenberg, 956 F.2d 651, 660 (7th

180   Cir.), cert. denied, 113 S. Ct. 61 (1992), the court dealt with the

181   Ingersoll-Rand dicta by declaring,

182         We are not rash enough to believe that the Court intended
183         to overrule settled law in most of the circuits, as well
184         as narrowly limit )) if not overrule )) its own decision
185         in Russell in such an off-hand manner . . . . We will
186         continue to doubt the availability of extracontractual
187         damages under ERISA until a more plausible signal reaches
188         us from above.


189   The court held that neither extracontractual nor punitive damages

190   were available under section 502(a)(1)(B).           Id. at 660-61.1

191         We   join   the   other   circuits   that   have   held   that   section

192   502(a)(1)(B) does not allow the recovery of extracontractual or

193   punitive damages.       Like the court in Harsch, we are reluctant to


            1
              See also Reinking v. Philadelphia Life Ins. Co., 910 F.2d 1210, 1219
      (4th Cir. 1990) (denying claim for extracontractual damages for emotional
      distress).

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194   believe that the Supreme Court intended us to create a body of

195   federal common law based upon an off-hand statement in Ingersoll-

196   Rand.   The more direct language in Pilot Life, 481 U.S. at 54, and

197   Russell, 473 U.S. at 144, shows that the Court felt that the

198   statutory enforcement scheme Congress crafted for ERISA in section

199   502(a) did not include a private remedy for extracontractual and

200   punitive damages.    Without explicit instructions from Congress, we

201   are bound to the plain language of the statute that limits suits to

202   the terms of the plan at issue, rather than arbitrarily extending

203   its scope to include suits for extracontractual and punitive

204   damages. The magistrate judge correctly refused to allow Medina to

205   amend her complaint to include a claim for extracontractual and

206   punitive damages under section 502(a)(1)(B).



207                                        III.

208        We turn next to the issue of whether the magistrate judge

209   properly     dismissed    Medina's    claim    for       failure   to    exhaust

210   administrative remedies.      We first note that Medina's brief admits

211   that Anthem has paid all benefits due her in full.                      The only

212   possible   claim   that    might   remain     is   the    disputed      bill   for

213   $1,363.20.

214        On July 11, 1991, Medina answered interrogatories put to her

215   by Anthem.    In answer to Interrogatory No. 11, Medina claimed that

216   Anthem owed her $1,363.20 for a medical bill that Medina had paid

217   and for which Anthem had not reimbursed her.

218        In its motion to dismiss for failure to exhaust administrative


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219   remedies, Anthem responds that it refused to reimburse Medina

220   because she never filed any documentation with Anthem's claims

221   department showing that she had paid the bill. Anthem asserts that

222   it cannot process a claim unless it has received that claim and

223   that it maintains a reasonable claim submission policy that Medina

224   has ignored.     Anthem assures us that if Medina takes the initial

225   step   of   submitting    a   claim,   it   will   calculate   her   benefits

226   accordingly.

227          As the magistrate judge noted, we have fully endorsed the

228   prerequisite of exhaustion of administrative remedies in the ERISA

229   context.2      One   of   the    policies    underlying     the   exhaustion

230   requirement was Congress's desire that ERISA trustees, not federal

231   courts, be responsible for their actions so that not every ERISA

232   action becomes a federal case.         Denton, 765 F.2d at 1300.

233          We find that Medina has not exhausted her administrative

234   remedies regarding the unpaid $1,363.20 bill.             Medina has never

235   filed a claim for the disputed sum.                She obviously knows how

236   Anthem's claims procedure operates, as she previously has filed

237   claims for which Anthem reimbursed her.             Medina may not make her

238   first claim for the unpaid $1,363.20 in this lawsuit but must

239   follow proper procedures in filing a claim with Anthem.              Since she

240   has not exhausted her administrative remedies, the magistrate judge



            2
              See Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir. 1990) (ERISA
      claimant who failed to file claim with insurance company failed to exhaust
      administrative remedies, so no cause of action existed); Meza v. General
      Battery Corp., 908 F.2d 1262, 1279 (5th Cir. 1990) (plaintiff may not make
      initial claim for benefits in a lawsuit); Denton v. First Nat'l Bank, 765 F.2d
      1295, 1303 (5th Cir. 1985) (Congress intended ERISA claimants to exhaust
      administrative remedies before resorting to federal courts).

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241   correctly dismissed her complaint.



242                                   IV.

243        In summary, we refuse to fashion federal common law that would

244   allow recovery of extracontractual and punitive damages under ERISA

245   section 502(a)(1)(B).   We also find that Medina failed to exhaust

246   her administrative remedies by failing to file a claim with Anthem

247   for the disputed $1,363.20.   Consequently, we AFFIRM the judgment

248   of dismissal.




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