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

                                                 FILED
                                                                         November 23, 2009

                                     No. 09-20187                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LARRY PIECZNSKI,

                                           Plaintiff–Appellant,
v.

DRIL-QUIP, INC. LONG TERM DISABILITY PLAN,

                                           Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:08-CV-212


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Larry Piecznski appeals from the district court’s grant of summary
judgment to Dril-Quip, Inc. Long Term Disability Plan (the Plan). The district
court concluded that Piecznski had not exhausted available administrative
remedies prior to bringing suit to recover benefits under the disability plan, and,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                     No. 09-20187

alternatively, that Piecznski’s claim was time-barred by the Plan’s limitations
period for filing suit. We affirm.
                                          I
      Piecznski, as an employee of Dril-Quip, Inc., participated in the Dril-Quip,
Inc. Long Term Disability Plan, an employee welfare benefit plan governed by
the Employee Retirement Income Security Act (ERISA).              Piecznski was
diagnosed with multiple sclerosis and in February 2004 applied for long-term
disability benefits under the Plan.
      Metropolitan Life Insurance Company (MetLife), as the Plan’s claim
administrator and a Plan fiduciary, reviewed Piecznski’s claim and determined
that Piecznski was not disabled as defined by the terms of the Plan. MetLife
sent Piecznski a letter on May 26, 2004, notifying him that his claim had been
denied. The letter included the following information regarding the appeal
process:
                   Because your claim was denied in whole or in
            part, you may appeal this decision by sending a written
            request for appeal to MetLife Disability . . . within 180
            days after you receive this denial letter. Please include
            in your appeal letter the reason(s) you believe that
            claim was improperly denied, and submit any
            additional comments, documents, records or other
            information relating to your claim that you deem
            appropriate for us to give your appeal proper
            consideration. Upon request, MetLife will provide you
            with a copy of the documents, records, or other
            information we have that are relevant to your claim
            and identify any medical or vocational expert(s) whose
            advice was obtained with your claim.
                   MetLife will evaluate all the information and
            advise you of our determination of your appeal within
            45 days after we receive your written request for
            appeal. If there are special circumstances requiring
            additional time to complete [our] review, we may take
            up to an additional 45 days, but only after notifying you

                                          2
                                  No. 09-20187

            of the special circumstances in writing. In the event
            your appeal is denied in whole or in part, you will have
            the right to bring a civil action under Section 502(a) of
            the Employee Retirement Income Security Act of 1974.
      On September 2, 2004, Piecznski’s attorney sent a letter to MetLife:
                  Prior correspondence indicates that you have
            denied long term disability benefits to Mr. Piecznski
            and that his case is in the administrative appeals
            process. We believe there is additional evidence that
            will become available soon that justifies review of his
            claim.
                  Please accept this letter as notice of Mr.
            Piecznski’s intention to appeal your decision denying
            benefits under the above referenced policy. Once we
            have adequate time to review and supplement the
            record, we will notify you in writing to proceed with Mr.
            Piecznski’s administrative appeal under the terms of
            the Plan.
The letter also requested copies of various documents and “request[ed] that
[MetLife] disclose any deadlines imposed under the policy that you believe are
pending, will be pending upon any event in the future or that you believe have
already expired.”
      MetLife responded to this letter on September 15, 2004, and sent a
complete copy of Piecznski’s claim file. The letter stated, “As indicated in our
May 26, 2004 letter, your client has 180 days from receipt of that letter to submit
his appeal. Accordingly, please submit any additional information you wish
MetLife to consider in its review of your client’s claim by November 29, 2004.”
      On August 16, 2006, Piecznski’s attorney sent a letter to MetLife to
“supplement[] his appeal of MetLife’s decision with further medical evidence and
with information to further clarify his condition.”      The letter specified the
grounds of Piecznski’s appeal in great detail. MetLife responded by letter on




                                        3
                                          No. 09-20187

August 28, 2006, stating that Piecznski “is not entitled to an appeal as the 180
days have expired.”
       Piecznski then filed suit in district court, seeking long-term disability
benefits from the plan. Both parties moved for summary judgment. The district
court granted summary judgment to the Plan, concluding that Piecznski had not
exhausted available administrative remedies, and even if he had exhausted all
available administrative remedies, his suit was barred by the limitations period
in the Plan. Piecznski appeals from this judgment.
                                                 II
       We review a district court’s grant of summary judgment de novo.1
Summary judgment is proper if there is no genuine issue of material fact and the
movant is entitled to a judgment as a matter of law.2
                                                III
       On appeal, Piecznski argues that the district court erred in granting
summary judgment to the Plan because he presented sufficient evidence to raise
at least a fact issue that: (1) Piecznski exhausted or was prevented from
exhausting his administrative remedies, and (2) Piecznski’s lawsuit was not
time-barred because MetLife’s refusal to issue a final decision effectively delayed
suit and tolled the statute of limitations.
                                                 A
       Piecznski first argues that he has presented sufficient evidence to raise at
least a fact issue that he exhausted or was prevented from exhausting his
administrative remedies.                Exhaustion of administrative remedies is a




       1
          Dutka ex rel. Estate of T.M. v. AIG Life Ins. Co., 573 F.3d 210, 213 (5th Cir. 2009), cert.
pet. filed, No. 09-347 (Sept. 18, 2009).
       2
        F   ED .   R. CIV . P. 56(c).

                                                 4
                                        No. 09-20187

prerequisite to an ERISA action in federal court.3               We have recognized an
exception to this requirement when an attempt to exhaust would be futile.4
Piecznski contends that he preserved his right to appeal by sending a letter to
MetLife on September 2, 2004, as notice of appeal, and that this letter was
within the 180-day time limit for filing an appeal. Piecznski argues that the
exception to the exhaustion requirement applies because MetLife has made
Piecznski’s attempts to exhaust his remedies futile by refusing to consider his
appeal.
       The district court found that Piecznski’s September 2, 2004 letter was not
an appeal, recognizing that “an employee cannot indefinitely extend an ERISA
plan’s appeal deadline by notifying the plan that he intends to appeal sometime
in the future” because “[s]uch a rule would render the plan’s deadlines
meaningless.” The district court’s finding is further supported by this court’s
recent decision in Swanson v. Hearst Corp. Long Term Disability Plan,5 which
held that a claimant’s letter expressing an intention to appeal was not an appeal
for purposes of the ERISA plan.
       The facts in Swanson are almost identical to the facts in this case. The
ERISA plan in Swanson provided Swanson 180 days to appeal the determination
to terminate her benefits under the plan, after which the plan administrator
would have 45 days to rule on the appeal. 6               Before the 180 days expired,




       3
        Bourgeois v. Pension Plan for the Employees of Santa Fe Int’l Corps., 215 F.3d 475, 479
(5th Cir. 2000).
       4
           Id.
       5
           No. 09-20159, 2009 WL 3582435 (5th Cir. Nov. 3, 2009) (slip op.).
       6
           Swanson, No. 09-20159, slip op. at 2.

                                               5
                                      No. 09-20187

Swanson’s attorney sent a letter to the plan administrator requesting various
documents and asking for notification of further deadlines.7 The letter stated:
                Please accept this letter as notice of Debra Swanson’s
                intention to appeal your decision terminating her
                benefits under the above referenced policy. Once we
                have had adequate time to review and supplement the
                record, we will notify you in writing to proceed with
                Debra Swanson’s administrative appeal under the
                terms of the Plan.8
The plan administrator subsequently forwarded Swanson’s file, which included
a notation that “[i]ntent to appeal letter rec’d not an appeal,” to Swanson’s
attorney. 9 Three and a half years later, Swanson’s counsel submitted a brief
with accompanying evidence, which the plan administrator rejected as an appeal
filed after the 180-day deadline.10 Swanson filed suit, and we affirmed the
district court’s ruling that Swanson had failed to exhaust her administrative
remedies, concluding that Swanson’s “letter was not an appeal; it merely
expressed an ‘intention to appeal.’” 11 We explained:
                Swanson’s letter included no factual or substantive
                arguments, and no evidence. There was accordingly
                nothing for [the plan administrator] to consider on
                appeal, and no basis to require [the plan administrator]
                to “issue its decision in writing 45 days after it received
                the written request,” as Swanson proposes. The
                appropriate materials making Swanson’s case—her




      7
          Id.
      8
          Id.
      9
          Id.
      10
           Id. at 2-3.
      11
           Id. at 4.

                                            6
                                     No. 09-20187

                  actual appeal—did not arrive until more than three
                  years later.12
       Like Swanson’s letter, Piecznski’s September 2, 2004 letter was not an
appeal—it merely expressed an intention to appeal. Piecznski’s letter did not
include the required information for an appeal letter; he did not “include . . . the
reasons(s) [sic] [he] believed that [his] claim was improperly denied,” and he did
not “submit any additional comments, documents, records or other information
relating to [his] claim that [he] deem[ed] appropriate for [the Plan] to give [his]
appeal proper consideration.” As in Swanson, there was nothing for the Plan to
consider on appeal and no basis to require the Plan to issue a decision within 45
days of receiving Piecznski’s letter. Piecznski did not provide the Plan with the
required information until August 16, 2006, well after the 180-day appeal period
had expired. The Plan’s refusal to consider Piecznski’s untimely appeal does not
justify the application of an exception to the exhaustion requirement.
Accordingly, we hold that Piecznski failed to exhaust available administrative
remedies.
                                            B
       Although we conclude that Piecznski failed to exhaust administrative
remedies, we will also address his argument that he has presented sufficient
evidence to raise at least a fact issue on whether his lawsuit was not time-
barred. ERISA does not provide a specific limitations period, and therefore we
apply state law principles of limitation.13 When “a plan designates a reasonable,
shorter time period, however, that lesser limitations schedule governs.”14 In this
case, the Plan requires that legal action be brought within “three years after


       12
            Id.
       13
        Harris Methodist Fort Worth v. Sales Support Servs. Inc. Employee Health Care Plan,
426 F.3d 330, 337 (5th Cir. 2005).
       14
            Id.

                                            7
                                      No. 09-20187

proof of Disability must be filed.” Claimants are required to “[p]rovide proof of
Disability within 3 months after the end of [their] Elimination Period.” The
Elimination Period ends 90 days after the date of disability. According to the
Plan, Piecznski was required to file his proof of Disability by August 12, 2004,
meaning that Piecznski was required to file suit by August 12, 2007. Piecznski
did not file suit until January 17, 2008.
       Piecznski does not contend that this is not a reasonable time period, nor
does he contest the Plan’s calculation of the limitations period. Instead, he
argues that the limitations period should be tolled under the doctrine of
equitable estoppel. In order to establish an ERISA-estoppel claim, Piecznski
must demonstrate: “(1) a material misrepresentation; (2) reasonable and
detrimental     reliance    upon    the    representation;     and    (3)   extraordinary
circumstances.”15
       Piecznski maintains that MetLife indicated that it would issue its final
decision pursuant to its September 15, 2004 letter, and his reliance on the letter
and the terms of the Plan was reasonable and consistent with the terms of the
Plan. Thus, Piecznski argues, the limitations period was tolled until August 28,
2006, when MetLife informed Piecznski that it would not render a decision on
his appeal. As a result, Piecznski argues that this period of one year, eleven
months, and thirteen days should then be added to the applicable limitations
period, meaning that his limitations period did not end until July 25, 2009.
       The district court concluded that MetLife had not made a material
misrepresentation. However, even if MetLife’s September 15, 2004 letter made
a material representation that MetLife would issue a final decision, Piecznski
has not established that he reasonably relied on the representation to his


       15
         See Mello v. Sara Lee Corp., 431 F.3d 440, 444-45 (5th Cir. 2005) (citing McCall v.
Burlington N./Santa Fe Co., 237 F.3d 506, 513 (5th Cir. 2000); Weir v. Fed. Asset Disposition
Ass’n, 123 F.3d 281, 290 (5th Cir. 1997)).

                                             8
                                         No. 09-20187

detriment, nor has he presented any evidence of extraordinary circumstances
warranting application of the doctrine of equitable estoppel.
       “[A] party’s reliance can seldom, if ever, be reasonable or justifiable if it is
inconsistent with the clear and unambiguous terms of plan documents available
to or furnished to the party.” 16 The Plan’s limitation provision is not ambiguous,
and it is not tied to the claim determination or appeal period. Under the terms
of the Plan, MetLife must notify a claimant of its final decision on appeal “within
a reasonable period of time, but no later than 45 days after MetLife’s receipt of
[the] written request for review.” Therefore, assuming arguendo that Piecznski’s
September 2, 2004 letter was a written request for an appeal, MetLife should
have provided Piecznski with its final decision in writing on or about October 23,
2004, 45 days from the date MetLife says it received Piecznski’s letter. While it
might have been reasonable for Piecznski to wait to file suit until MetLife
rendered its final decision on appeal, thus exhausting his claim, it was not
reasonable for Piecznski to continue to wait to file suit after the 45-day period
expired. However, Piecznski’s suit would still be time-barred even if we applied
the doctrine of equitable estoppel and tolled the limitations for 45 days.
       Furthermore, even if Piecznski’s reliance were reasonable, he has not
established that such reliance was to his detriment. After MetLife notified
Piecznski on August 28, 2006, that his appeal time had expired, Piecznski still
had almost a full year—until August 12, 2007—to file his lawsuit. However,
Piecznski did not file his suit until January 17, 2008. Accordingly, we hold that
Piecznski is not entitled to tolling under the doctrine of equitable estoppel, and
thus his suit is time-barred.
                                     *        *         *



       16
         High v. E-Sys. Inc., 459 F.3d 573, 580 (5th Cir. 2006) (quoting Sprague v. GMC, 133
F.3d 388, 404 (6th Cir. 1998) (internal quotation marks omitted)).

                                              9
                                No. 09-20187

     Therefore, for the reasons discussed above, we AFFIRM the district court’s
judgment.




                                     10
