                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                     August 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-51214


                            LAURA GALVAN,

                                                Plaintiff-Appellant,

                                versus

         SBC PENSION BENEFIT PLAN; SBC COMMUNICATIONS, INC.;
               UNIDENTIFIED CLAIMS ADMINISTRATOR FOR THE
          SBC PENSION BENEFIT PLAN; UNIDENTIFIED FIDUCIARIES
         OF THE SBC PENSION BENEFIT PLAN, each individually;
                      MELLON FINANCIAL CORPORATION,

                                               Defendants-Appellees.


            Appeal from the United States District Court
                  for the Western District of Texas
                            (5:04-CV-333)


Before BARKSDALE, DEMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Laura Galvan appeals the dismissal, for failure to exhaust

administrative remedies, of her claims arising under the Employee

Retirement and Income Security Act of 1974, 29 U.S.C. § 1101 et

seq. (ERISA).      She contends:     SBC Pension Benefit Plan, SBC

Communications, Inc. (the Plan’s sponsor and coordinator), and

Mellon     Financial   Corporation   (the   Plan’s   outside     claims

administrator) wrongfully deprived her of Plan benefits; and the

     *
       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this opinion should not be published and is not precedent except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.
Plan’s fiduciaries breached their fiduciary duties toward the Plan

when, inter alia, they misallocated under a qualified domestic

relations order (QDRO).        VACATED and REMANDED.

                                     I.

      Galvan    and   Stanley    Davis,     an   SBC   employee     and    Plan

participant, divorced in 1995.        As part of that process, Galvan

acquired an interest in Davis’ Plan benefits pursuant to a QDRO,

entitling her to fifty percent of his accrued benefits as of 16

March 1995.

      In November 2000, Davis accepted an early-retirement payment

from SBC.      Galvan contacted SBC in February 2001, requesting

information about that payment and how the QDRO affected its

distribution.     SBC replied that April, stating, inter alia, the

amount it determined Galvan was due under the QDRO, based on Davis’

accrued benefits under the Plan, and offering her a single life

annuity, payable over Davis’ lifetime, of $ 639.91 a month, with a

lump-sum amount of $ 106,921.74. This distribution did not include

part of Davis’ early-retirement payment.

      Because Galvan and defendants disagreed whether the QDRO

entitles Galvan to a portion of that payment, she requested from

SBC more information about the payment, including an accounting.

SBC   did   not   reply   to     Galvan’s    satisfaction,    and     further

communication between them failed to resolve her concerns.                (Among




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other things, Galvan filed an action in state court, but dismissed

the Plan in order to exhaust administrative remedies.)

       Therefore, as an alternate payee under the Plan, Galvan filed

a benefits claim with SBC, which it received on 22 March 2004,

approximately three years after Galvan’s initial 2001 contact with

SBC.     In this administrative claim, Galvan asserted:            the QDRO

entitled her to part of Davis’ early-retirement payment; and the

Plan’s fiduciaries breached various duties in their communications

with her and in their transaction with Davis.           Galvan requested

benefits under the QDRO, as well as for the fiduciaries, inter

alia, to reimburse the Plan the amount allegedly misallocated to

Davis.

       Pursuant to ERISA regulation, SBC had 90 days from the 22

March receipt of Galvan’s administrative claim in which to respond.

See 29 C.F.R. § 2560.503-1(f)(1).         Nevertheless, Galvan filed her

original complaint in this action on 20 April, approximately 60

days before defendants’ 90-day response window had closed and

without resolution of her administrative claim.           Her complaint

presented claims for benefits and breach of fiduciary duty.             The

prompt filing of her complaint was to preserve her fiduciary claims

in the face of potential expiration of the limitations period; she

did not, however, serve defendants with that complaint.

       On   22   June   2004,   two   days   after   defendants’     90-day

administrative-response period had ended, SBC sent a letter (dated


                                      3
15 June) notifying Galvan it needed more time to process her

administrative       claim.       See   id.    (“If    the    plan    administrator

determines that an extension of time for processing is required,

written notice of the extension shall be furnished to the claimant

prior to the termination of the initial 90-day period.”).                     Galvan

received this extension notice on 25 June 2004.

      One day earlier (24 June), however, Galvan had concluded her

administrative claims were exhausted because the 90-day period had

expired without a response from defendants.                    Accordingly, on 24

June, she filed an amended complaint and moved the district court

to either:      rule she had exhausted administrative remedies; abate

her claims until her administrative remedies were exhausted; or

toll the limitations period for her fiduciary claims.                          In so

moving,   she    contended:        because     SBC    did    not    respond   to   her

administrative claim within 90 days, her administrative remedies

should be deemed exhausted under 29 C.F.R. § 2560.503-1(l), which

states    a    party    shall     “be    deemed       to     have    exhausted     the

administrative remedies available under the plan and shall be

entitled to pursue any available remedies” under ERISA, 29 U.S.C.

§   1132(a),    if   the   plan    fails      to   “follow     claims    procedures

consistent with the requirements of this section”.                      29 C.F.R. §

2560.503-1(l). Galvan served defendants with the amended complaint

and motions.




                                         4
     Galvan’s     amended      complaint        reiterated       the   claims      in   her

original complaint.        She presented two claims for benefits under

the QDRO.     She also raised, inter alia, three breach-of-fiduciary-

duty claims for:       causing the Plan to lose money by distributing to

Davis sums due Galvan under the QDRO; negligence and imprudence in

making   a    lump-sum      distribution          to    Davis     without         Galvan’s

authorization; and not disclosing the identity of the fiduciary

responsible for determining Galvan’s benefits claims.

     Defendants moved to dismiss pursuant to Federal Rule of Civil

Procedure     12(b),     asserting      Galvan          had    not     exhausted        her

administrative remedies for her benefits and fiduciary claims.

Defendants contended Galvan’s administrative remedies should not be

deemed   exhausted      based    on   the       late    notice    of   administrative

continuance because that notice substantially complied with ERISA

regulations.          Alternatively,        defendants         moved    to       stay   the

proceedings until administrative remedies had been exhausted.

     On 30 September 2004, the district court granted defendants’

motion   to   dismiss,    concluding        they       had    acted    in    substantial

compliance     with    ERISA    regulations        in    responding         to    Galvan’s

administrative claim; therefore, her administrative remedies had

not been exhausted.            It held:         tolling did not apply to her

fiduciary claims under Radford v. General Dynamics Corp., 151 F.3d

396, 400 (5th Cir. 1998) (holding the ERISA limitations period is

not tolled while administrative remedies are being exhausted),


                                            5
cert.   denied,     525     U.S.    1105        (1999);      and   dismissal     without

prejudice, not abatement, was the proper disposition.

     Galvan moved to reconsider, asking the court to find her

administrative remedies exhausted because of defendants’ failure to

comply strictly with ERISA regulations concerning the timing and

content of the extension notice.                      Galvan acknowledged SBC had

denied her administrative claim and declared it exhausted during

the district court proceedings (the final administrative ruling was

rendered on 29 September 2004, the day before the district court’s

dismissal order).          Notwithstanding her administrative remedies

therefore being exhausted, Galvan asserted the exhaustion issue was

not moot because whether the district court would defer to the

Plan’s denial of her administrative claim remained at issue.                           She

contended:        the     applicable    ERISA          regulations     abolished       the

substantial-compliance doctrine relied upon by the district court;

and defendants’ administrative-compliance failures, taken in the

aggregate, deprived her of adequate notice of the initial denial of

her administrative claim and of full and fair review of that claim.

     Defendants         responded     that        Galvan      failed    to     establish

justifiable grounds for reconsideration. The district court denied

the motion for reconsideration, holding: the ERISA regulations did

not abolish the substantial-compliance doctrine; and the later

exhaustion   of    Galvan’s        claims       did    not   affect    their    lack   of

exhaustion at the time she filed her complaint.


                                            6
                                      II.

     Although     Galvan   contends        fiduciary   claims   need   not    be

exhausted, she acknowledges that benefits claims must be.                 Galvan

asserts the district court erred by:           (1) dismissing her benefits

and fiduciary claims for lack of exhaustion; (2) declining to abate

her fiduciary claims, pending exhaustion of her benefits claims;

(3) declining to toll the limitations period for her fiduciary

claims, pending any required exhaustion of her administrative

claim;    and   (4)   ruling   SBC   substantially     complied    with   ERISA

regulations in responding to Galvan’s benefits claims two days

outside the 90-day window.

                                      A.

     Galvan maintains her claims were wrongly dismissed for failure

to exhaust administrative remedies.           Such a dismissal is reviewed

de novo. E.g., Bombardier Aerospace Employee Welfare Benefits Plan

v. Ferrer, Poirot & Wansbrough, 354 F.3d 348, 351 (5th Cir. 2003),

cert. denied, 541 U.S. 1072 (2004); see also Nichols v. Prudential

Ins. Co. of Am., 406 F.3d 98, 105 (2d Cir. 2005) (A district

court’s dismissal of a claim for failure to exhaust administrative

remedies is reviewed de novo.); D’Amico v. CBS Corp., 297 F.3d 287,

290 (3d Cir. 2002) (“[W]e review de novo the applicability of

exhaustion principles to plaintiffs’ claims”.).

     The district court ruled generally:               Galvan’s claims were

“barred    by   the   requirement     of     exhaustion   of    administrative


                                       7
remedies”,   but    erroneously    specified:            “failure    to   exhaust

administrative     remedies    under    ERISA    causes      a   court    to   lose

jurisdiction”, Galvan v. SBC Pension Benefit Plan, No. SA-04-CA-

033-XR, slip op. at 6 (W.D. Tex. 30 Sept. 2004); and it was

“without   jurisdiction”      because       Galvan    had   failed   to   exhaust

administrative remedies before she filed her complaint, Galvan v.

SBC Pension Benefit Plan, No. SA-04-CA-0333-XR, slip op. at 2 (W.D.

Tex. 21 Oct. 2004) (order denying motion for reconsideration).

     Our court has held ERISA exhaustion is not a prerequisite to

federal court jurisdiction.        See Hager v. NationsBank N.A., 167

F.3d 245, 248 n.3 (5th Cir. 1999); Chailland v. Brown & Root, Inc.,

45 F.3d 947, 950 n.6 (5th Cir. 1995).                Furthermore, the district

court erred in ruling on Galvan’s contentions pertaining to her

fiduciary-duty claims without factual development of whether she

properly stated a breach-of-fiduciary-duty claim, or whether her

asserted fiduciary claims are instead disguised benefits claims.

The court’s not factually developing this fundamental issue before

dismissing both her fiduciary and benefits claims for failure to

exhaust was significant because, although benefits claims require

administrative     exhaustion,    fiduciary      claims     do   not.     Compare

Milofsky v. Am. Airlines, Inc., 442 F.3d 311, 313 (5th Cir. 2006)

(en banc) (holding “fiduciary breach claims [do] not requir[e]

exhaustion of administrative remedies”) (citing Smith v. Sydnor,

184 F.3d 356, 365 (4th Cir. 1999), cert. denied, 528 U.S. 1116

                                        8
(2000) and Molnar v. Wibbelt, 789 F.2d 244, 250 n.3 (3d Cir.

1986)), with Chailland, 45 F.3d at 950 n.6 (holding administrative

remedies must be exhausted before bringing a benefits claim), and

Denton v. First Nat’l Bank of Waco, Tex., 765 F.2d 1295, 1301-02

(5th Cir. 1985) (same).

     In dismissing Galvan’s claims, the district court erroneously

stated   breach-of-fiduciary-duty   claims   are   subject   to   the

exhaustion requirement, citing Simmons v. Willcox, 911 F.2d 1077

(5th Cir. 1990). Simmons, however, held the exhaustion requirement

applies to fiduciary claims that are instead disguised benefits

claims, not to true breach-of-fiduciary-duty claims.   Id. at 1081;

see Smith, 184 F.3d at 362 (interpreting Simmons as requiring

administrative exhaustion where a fiduciary claim is based on

either the denial of benefits or a similar decision regarding a

benefits claim, in which case “such a claim is a naked attempt to

circumvent the exhaustion requirement”).

     Because the district court did not consider whether Galvan’s

fiduciary claims for misallocation of Plan assets are disguised

benefits claims, thus subject to exhaustion, we remand for factual

development of whether Galvan is pursuing a fiduciary claim, which

does not require administrative exhaustion, or a disguised benefits

claim.   See Milofsky, 442 F.3d at 313; see also D’Amico, 297 F.3d

at 291 (Fiduciary claims amount to benefits claims when “resolution

of the claims rests upon an interpretation and application of an

                                9
ERISA-regulated     plan        rather   than     on   an   interpretation     and

application of ERISA”. (Internal quotation omitted.)); Harrow v.

Prudential Ins. Co. of Am., 279 F.3d 244, 253 (3d Cir. 2002)

(“Plaintiffs    cannot      circumvent     the    exhaustion    requirement     by

artfully pleading benefit claims as breach of fiduciary duty

claims.”).

     Because we remand for factual development and determination of

whether Galvan      has    properly      raised   a    breach-of-fiduciary-duty

claim, we need not consider her assertion regarding the district

court’s refusal to abate her fiduciary claims pending exhaustion of

her benefits claims.            Likewise, until it is determined whether

Galvan properly raised a fiduciary claim, it would be premature to

determine    whether      the    court   erred    in   declining   to   toll   the

limitations period for her fiduciary claims, pending exhaustion of

her administrative claim.

                                         B.

     On remand, in the event the district court rules Galvan is

indeed   pursuing    breach-of-fiduciary-duty            claims,   as   discussed

supra, no exhaustion was required for those claims.                If, however,

the court rules those claims are disguised benefits claims and,

thus, subject to exhaustion, then it correctly dismissed her

claims, including those she identified as benefits claims, without

prejudice, for failure to exhaust.




                                         10
     The    dismissal    of       a   complaint          for   failure    to     exhaust    is

reviewed for abuse of discretion.                   See Zhou v. Guardian Life Ins.

Co. of Am., 295 F.3d 677, 678 (7th Cir. 2002).                           Galvan asserts:

her administrative remedies were exhausted after she filed her

original    complaint;    therefore,               the    district       court    erred     in

dismissing this action.

     SBC responds:      the district court properly dismissed Galvan’s

claims     because   exhaustion          of        administrative        remedies     is     a

prerequisite to pursuing claims in district court; and she had not

exhausted those remedies when she filed her original complaint on

20 April 2004.       Along this line, SBC maintains:                      a party cannot

pursue   administrative       and       federal          remedies    concurrently;         and

prohibiting this practice better meets the efficiency goals of the

ERISA exhaustion doctrine.                Also, dismissing premature claims

without prejudice allows litigants to cure their mistakes.                                 SBC

analogizes ERISA exhaustion requirements to those of the Prison

Litigation Reform Act, 42 U.S.C. § 1997e (PLRA), which prohibit a

prisoner from filing a claim in federal court while attempting to

exhaust administrative remedies.

     Galvan    replies:       a       plaintiff       may      exhaust     administrative

remedies after a federal action has been filed; the analogy between

the PLRA and ERISA exhaustion requirements fails because the PLRA’s

exhaustion requirement is mandated by statute, while ERISA’s is a

matter of common law; and, in this instance, dismissal of Galvan’s


                                              11
claims will result in harm because the limitations period on her

fiduciary claims may have run by the time she re-files her (now

exhausted) claims.

     It appears the district court’s dismissal for failure to

exhaust     was    based     on     Galvan’s     not     having      exhausted       her

administrative remedies when she filed her amended complaint (see

infra concerning the operative filing date being that of the

original, not the amended, complaint).                   Consequently, Galvan’s

appeal highlights SBC’s failure to respond timely to her claims;

she contends this failure triggered 29 C.F.R. § 2560.503-1(l),

which, as discussed supra, dictates a claim be deemed exhausted if

a   plan    does   not     comply     with     those    regulations         concerning

administrative remedies.            Because SBC did not comply with those

regulations,       Galvan     asserts,        her      administrative         remedies

were exhausted at the time she filed her amended complaint.

     A     claim   arising    under     ERISA    does       not    accrue    until   an

administrative claim has been denied. Paris v. Profit Sharing Plan

for Emp. of Howard B. Wolf, Inc., 637 F.2d 357, 361 (5th Cir.),

cert. denied, 454 U.S. 836 (1981).             SBC received Galvan’s claim on

22 March 2004; Galvan filed her original complaint on 20 April,

less than a month later.

     Further, our court “fully endorse[s] the prerequisite of

exhaustion    of   administrative       remedies       in    the    ERISA    context”.

Medina v. Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir.) (citing


                                         12
Simmons, 911 F.2d at 1081, and Meza v. Gen. Battery Corp., 908 F.2d

1262, 1279 (5th Cir. 1990)) (emphasis added), cert. denied, 510

U.S. 816 (1993).         “A civil action is commenced by filing a

complaint with the court.”        FED. R. CIV. P. 3.        The filing date of

Galvan’s original complaint (20 April), not that of her amended

complaint (24 June), is the operative date for this analysis.

     Galvan did not satisfy the exhaustion requirement when she

filed her original complaint.        Further, she admits she planned to

pursue administrative remedies after filing; and she waited to

serve defendants until after she both concluded her claims had been

exhausted due to defendants’ failure to respond and filed an

amended complaint.       In short, Galvan acted in precisely the manner

the exhaustion requirement was designed to avoid.                The district

court did   not   err    in    dismissing    her    benefits   claims   without

prejudice   for   lack    of   exhaustion.         (Our   conclusion   that   the

district court properly dismissed these claims because they were

not exhausted when Galvan filed her original complaint obviates

reaching the substantial-compliance issue.)

                                     III.

     For the foregoing reasons, the judgment is VACATED and this

matter is REMANDED for further proceedings consistent with this

opinion.

                                                      VACATED AND REMANDED




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