FILED

NOT FOR PUBLICATION MAY 10 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THERESA NOREN, No. 09-35242

Plaintiff - Appellant, D.C. No. 2:08-cv-00034-RAJ

v.

MEMORANDUM*

JEFFERSON PILOT FINANCIAL

INSURANCE COMPANY, formerly a Nebraska Corporation; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted April 7, 2010** Seattle, Washington

Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court correctly applied the prudential exhaustion doctrine in

granting Jefferson Pilot’s motion for summary judgment. The facts of this case are

familiar to the parties and we need not recite them here.

ERISA does not explicitly require a participant to exhaust available internal

review before bringing a claim in federal court. See 29 U.S.C. § 1132; Vaught v.

Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 625–26 (9th Cir. 2008).

However, we “long ago concluded that ‘federal courts have authority to enforce the

exhaustion requirement in suits under ERISA, and that as a matter of sound public

policy they should usually do so.’” Vaught, 546 F.3d at 626 (quoting Amato v.

Bernard, 618 F.2d 559, 568 (9th Cir. 1980)). It is undisputed that 1) the plans in

this case required two levels of internal administrative review and 2) Noren failed

to file a second appeal. Thus, absent an applicable exception, Jefferson Pilot’s

motion for summary judgment was properly granted under the prudential

exhaustion doctrine.

There are three exceptions to the prudential exhaustion doctrine: 1) futility;

2) inadequate remedy; and 3) unreasonable procedures. See Vaught, 546 F.3d at

626–27. None of these exceptions help Noren’s case.

Noren argues that, once her first appeal was rejected, 1) she did not know

what further information she could submit to influence Jefferson and 2) a second

2 appeal would thus have been futile. The claimant’s bare assertion that she does not

think her appeal will be successful does not demonstrate futility. See Diaz v.

United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1485 (9th

Cir. 1995) (rejecting a nearly identical argument).

Likewise, bare assertions are insufficient to establish the applicability of the

inadequate remedy exception. Rather, this exception applies when the procedure is

demonstrably inadequate or tainted by personal bias. See Amato, 618 F.2d at 569.

Noren’s only specific argument relating to inadequate procedure is that, because

the letter denying her appeal did not specifically state a second appeal was

required, the procedures for appeal were too vague and therefore inadequate. This

argument is without merit. The appeal procedure was fully contained in the plan

information, and no ERISA regulation requires that the appeals process also be

outlined in denial letters. See Diaz, 50 F.3d at 1484–85 (rejecting an argument that

a denial letter in English, which the claimant could not understand, was inadequate

when the claimant had a full copy of the applicable plan in Spanish).

We have also recognized that, under 29 C.F.R. § 2560.503-1(l), if a plan

fails to provide reasonable claims procedures, the claimant will be deemed to have

exhausted her required administrative appeals. Under this theory, Noren alleges

Jefferson violated ERISA requirements in a number of areas and, therefore, did not

3 provide or follow reasonable procedures. We need not determine if these

violations amount to unreasonable procedures. Noren may have raised some of

these violations before the district court, but she did not argue that the alleged

violations excused her from exhausting her administrative remedies under 29

C.F.R. § 2560.503-1(l). As it is presented for the first time on appeal, this

argument is waived. See Singleton v. Wulff, 428 U.S. 106, 120 (1976).

Accordingly, we AFFIRM the district court.

4

FILED

MAY 10 2010

Noren v. Jefferson Pilot Financial Insurance Company, No. 09-35242

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

HAWKINS, Circuit Judge, dissenting:

The majority holds that although Noren raised possible ERISA violations

below, she did not raise the arguments explicitly as an excuse for exhausting her

administrative remedies. Noren’s response to Jefferson Pilot’s motion for summary

judgment described Jefferson’s alleged violations of ERISA procedures, see 29 C.F.R.

§ 2560.503-1(g)(1)(v)(A), (h)(2)(iii)-(iv), (i)(5), (j)(5)(i), (l), (m)(8), and then stated

as follows:

Jefferson Pilot’s procedural failures have prevented claimant from understanding what the failures were in Plaintiff’s claim. Without knowing the shortcomings of the material submitted on appeal, it was useless to submit anything further, if indeed there was even anything further to submit.

Noren has therefore preserved her claim that Jefferson Pilot’s ERISA violations

prevented her administrative exhaustion. See In re E.R. Fegert, Inc., 887 F.2d 955,

957 (9th Cir. 1989). Since the entirety of the district court’s analysis of whether

Noren was excused from exhaustion was to note that she was not “excused from doing

so,” I would remand for the district court to develop the record as to this claim and its

application to the ERISA regulations in the first instance.