FILED

NOT FOR PUBLICATION

OCT 21 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA D. WHITE, No. 19-16954

Plaintiff-Appellant, D.C. No. 4:18-cv-01941-HSG

v.

MEMORANDUM*

ANTHEM LIFE INSURANCE

COMPANY,

Defendant-Appellee,

and

MERCED SYSTEMS HEALTH AND

WELFARE PLAN; MERCED SYSTEMS,

INC.,

Defendants.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted October 19, 2020** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.

Appellant Patricia White appeals the district court’s dismissal on summary

judgment of her claims under the Employee Retirement Income Security Act of

1974 (“ERISA”) against Anthem Life Insurance Company (“Anthem”). We review

the district court’s order de novo. See Barboza v. Cal. Ass’n of Prof’l Firefighters,

799 F.3d 1257, 1263 (9th Cir. 2015). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. The district court did not err in granting summary judgment to Anthem,

because White failed to exhaust her administrative remedies under the employee-

welfare plan in which she participated (the “Plan”). See Vaught v. Scottsdale

Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008). It is undisputed

that the Plan (which was sponsored by White’s former employer and issued and

administered by Anthem) requires a participant to appeal an adverse-benefits

determination to Anthem as a prerequisite to filing suit in the district court. It is

also undisputed that “an ERISA plaintiff claiming a denial of benefits,” like White,

“must avail . . . herself of a plan’s own internal review procedures before bringing

suit in federal court.” Id. (quoting Diaz v. United Agric. Emp. Welfare Benefit Plan

& Tr., 50 F.3d 1478, 1483 (9th Cir. 1995)). Finally, it is undisputed that White did

2 not file an administrative appeal of Anthem’s denial of long-term disability

benefits set forth in Anthem’s October 2014 letter to White.

However, White argues that her counsel’s September 2014 letter appealed

earlier “adverse determination[s] regarding [her] benefits claim,” including

Anthem’s decision to stop paying benefits to White on or before April 1, 2014.

Anthem’s cessation of payments to White (pending the determination of whether

White qualified for long-term disability benefits beyond April 2, 2014) did not

constitute an appealable adverse-benefits determination. Simply put, as of April 2,

2014, Anthem had neither determined whether White was entitled to benefits

beyond April 2, 2014 nor had it denied White those benefits. Thus, because

Anthem had made no determination at that point as to whether White was entitled

to benefits, Anthem had not denied, reduced, terminated, or otherwise failed to pay

for “a benefit” to which White was entitled under the Plan. See 29 C.F.R.

§ 2560.503-1(h), (m)(4)(i).1

Even assuming that the cessation of payments to White constituted an

appealable adverse-benefits determination, the plain language of the September

1 Although the regulation has been amended, the relevant definition of “adverse benefit determination” remains the same as the regulation in place in 2014. Compare 29 C.F.R. § 2560.503–1(m)(4) (2014), with 29 C.F.R. § 2560.503–1(m)(4)(i) (2020). 3 2014 letter from White’s counsel to Anthem forecloses White’s argument that she

appealed the cessation of payments. The letter fails to even reference Anthem’s

alleged decision to stop disability payments, despite referencing events through

July 2014. Further, to the extent the September 2014 letter contained an appeal, it

was a conditional appeal of Anthem’s determination of whether White qualified for

benefits under the Plan’s “any Gainful Occupation” standard, in the event that such

a determination had already been made by Anthem without White’s or her

counsel’s knowledge. That determination was not made until October 2014, and

White did not appeal that determination.

White also argues for the first time on appeal that the September 2014 letter

from her counsel appealed a number of other internal Anthem actions from May,

June, and August 2014, which purportedly denied long-term disability benefits

beyond April 2, 2014. Even assuming that White did not forfeit these arguments by

failing to raise them before the district court, see El Paso City v. Am. W. Airlines,

Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161, 1165 (9th Cir. 2000), White’s

arguments fail on the merits. First, the September 2014 letter fails to mention any

of the challenged internal Anthem decisions; thus, the letter cannot reasonably be

read to appeal those actions. Second, none of the non-final internal actions

identified by White are subject to appeal under the Plan (which permits appeals of

4 Anthem’s “denial of all or part” of a claim) or relevant regulations (which permit

appeal of “adverse benefit determinations” that includes the “denial, reduction, or

termination of . . . a benefit,” see 29 C.F.R. § 2560.503–1(h), (m)(4)(i)). In short,

neither the Plan nor regulations permit an appeal of an internal action that may later

support the denial of a claim or an internal action indicating that a claim will later

be denied.2

2. Anthem’s October 2014 letter to White denying her long-term disability

benefits provided adequate notice that her claim had been denied such that it

triggered the 180-day administrative appeal deadline. Under ERISA, an employee-

benefit plan must “provide adequate notice in writing to any participant or

beneficiary whose claim for benefits under the plan has been denied, setting forth

the specific reasons for such denial, written in a manner calculated to be

understood by the participant.” 29 U.S.C. § 1133(1); see also 29 C.F.R.

§ 2560.503–1(g)(1)(ii)–(iv) (listing additional requirements for notice of adverse

2 If a plan fails to provide reasonable claims procedures, then a claimant “shall be deemed to have exhausted the administrative remedies available under the plan.” 29 C.F.R. § 2560.503–1(l)(1). White argues for the first time on appeal that she should be deemed to have exhausted her administrative remedies, because Anthem was required (but failed) to notify White, in compliance with the time limits set forth in 29 C.F.R. § 2560.503–1(f)(3), of its termination of benefits on April 2, 2014. See id. § 2560.503–1(l)(1). White forfeited this argument by failing to raise it before the district court. See El Paso City, 217 F.3d at 1165. 5 benefit determinations).3 If an employee-benefit plan’s notice to a claimant is

inadequate, then the plan’s contractual appeals period will not begin to run. See

Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1033 (9th Cir. 2006).

Contrary to White’s argument that the October 2014 letter was “generic” or

“conclusory” and failed to inform her of the additional information needed to

perfect her claim for benefits, Anthem’s letter provided a detailed summary of

White’s medical file, the Plan requirements, and the reasons for discounting certain

doctors’ limitations that adequately informed White of the “material or information

. . . necessary” to perfect her claim. See 29 C.F.R. § 2560.503–1(g)(1)(iii).

Additionally, Anthem’s notice was not deficient in other respects, because it: (1)

provided the “specific reason or reasons for the adverse determination”; (2)

referenced “the specific plan provisions on which the determination [was] based”;

and (3) described “the plan’s review procedures and time limits applicable to such

procedures, including a statement of the claimant’s right to bring a civil action . . .

3 Again, the regulation has not changed in relevant respect since 2014. Compare 29 C.F.R. § 2560.503–1(g)(1)(i)–(iv) (2014), with 29 C.F.R. § 2560.503–1(g)(1)(i)–(iv) (2020). Although some additional provisions were added, these provisions do not apply to claims filed before April 2018. See 29 C.F.R. § 2560.503–1(g)(1)(vii)–(viii), (p)(3) (2020). 6 following an adverse benefits determination on review.” See id.

§ 2560.503–1(g)(1)(i), (ii), (iv).4

3. “Absent exceptional circumstances, we generally will not consider

arguments raised for the first time on appeal, although we have discretion to do

so.” El Paso City, 217 F.3d at 1165. On appeal, White argues for the first time that

her breach of fiduciary duty claim is not subject to an administrative exhaustion

requirement. However, in making this argument, White failed to address any of the

exceptions to the general rule that an argument raised for the first time on appeal is

waived. See United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990)

(discussing the limited circumstances that permit us to consider an issue raised for

the first time on appeal). Regardless, none of the exceptions apply; thus, White

forfeited this argument.

AFFIRMED.

4 White’s argument that the October 2014 letter was not legally sufficient, because it did not invite the submission of the Social Security Administration’s decision finding White disabled is not persuasive. First, the Social Security Administration’s decision was issued after the October 2014 letter on November 26, 2014. Second, Anthem’s October 2014 letter invited White to submit “any . . . documents, records or information in support of [her] appeal.” Thus, White was free to submit a copy of the Social Security Administration’s decision for Anthem’s consideration in her appeal. Instead, White chose not to file any appeal of Anthem’s October 2014 denial. 7