
    Gilbert M. GOLDMAN, Jr. v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
    No. Civ.A. 03-0759.
    United States District Court, E.D. Louisiana.
    Feb. 23, 2006.
    
      Joseph L. Waitz, Waitz & Downer, Hou-ma, LA, for Gilbert M. Goldman, Jr.
    Jennifer M. Lawrence, Virginia N. Rod-dy, Preaus, Roddy & Associates, LLP, New Orleans, LA, for Hartford Life And Accident Insurance Company.
   ORDER AND REASONS

VANCE, District Judge.

This is an action for review of the denial of long-term disability benefits under an employee disability benefit plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. Plaintiff Gilbert Goldman now moves for summary judgment and defendant Hartford Life and Accident Company moves to strike Goldman’s pleadings and to impose sanctions. For the reasons stated below, the Court DENIES Goldman’s motion for summary judgment and DENIES Hartford’s motion to strike and for sanctions.

I. BACKGROUND

Gilbert Goldman is a former employee of Baroid, a division of the Halliburton Company. On March 23, 2001, Goldman injured his head, arm and neck while he worked as a mud engineer on an offshore drilling rig. This action stems from Goldman’s attempts to collect long-term disability benefits as a result of this accident.

A. The Plan

Goldman’s claims in this case arise under the Halliburton long-term disability insurance plan. (See Admin. Rec. at H-1792-H-1832). Defendant Hartford Life and Accident Insurance Company insures the plan and also makes benefit determinations under the plan. {See Admin. Rec. at H-1821 (“The Hartford reserves the right to determine if your proof of loss is satisfactory.”)). An employee is eligible for benefits under the plan if he has a “disability,” as that term is defined by the plan. The plan provides two definitions of disability. During the 180-day “Elimination Period” and the next two years, a “disability” is an injury or illness that prevents the employee from performing an essential duty of his occupation and causes him to suffer a decline in earnings. {See Admin. Rec. at H-1801). At the end of that time period, the definition of disability changes to mean an injury or illness that prevents the employee from performing an essential duty of any occupation for which he is qualified that provides the potential to make more than 60% of his predisability earnings. {See Admin. Rec. at H-1801). Benefits under the plan are equal to 60% of lost income for the first three years of disability and are reduced to 30% of lost income thereafter. {See Admin. Rec. at H-1797-H-1798).

To make a claim for benefits under the plan, an employee must provide Hartford with written notice of disability and proof of loss establishing the disability. {See Admin. Rec. at H-1820-H-1821). If Hartford denies the claim, the plan requires Hartford to provide the claimant with written notice of the decision, including the specific reasons for the denial, the specific policy provisions on which the denial is based, a description of any additional information necessary for processing the claim, and an explanation of the claims appeal procedure. {See Admin. Rec. at H-1821).

Once Hartford denies a claim, the claimant may appeal the decision for a full and fair review of the claim. (See Admin. Rec. at H-1822). The plan provides that appeals will be decided within 60 days under most circumstances and within 120 days in all cases. (See Admin. Rec. at H-1822).

B. Procedural History

On February 3, 2003, Goldman sued Hartford in Louisiana state court for long-term disability benefits under the plan. Hartford removed the action to this Court in March 2003 on the ground that this Court had jurisdiction over Goldman’s claims under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001, et seq. Around the time that Hartford removed Goldman’s action to this Court, Goldman applied with Hartford for long-term disability benefits under the plan. The Court stayed this action in order to allow the parties to complete the administrative review process on Goldman’s claims. Hartford ultimately denied Goldman’s claim on the ground that he was not a covered employee eligible for benefits under the plan.

On October 27, 2004, this Court found that Hartford had abused its discretion in determining that Goldman was not covered by the plan. The Court determined that Goldman was, in fact, a covered employee and remanded the matter to Hartford for a determination of whether Goldman was entitled to benefits under the terms of the plan. (See Rec. Doc. 129).

On November 30, 2004, Hartford informed Goldman that it needed additional information in order to evaluate his reopened claim for benefits. (See Admin. Rec. at H-1131-H-1134). On December 21, 2004 and January 28, 2005, Hartford again requested additional information from Goldman. (See Admin. Rec. at H-1119-H-1120, H-1114-H-1115). On March 10, 2005, Hartford denied Goldman’s claim for benefits on the ground that Goldman had failed to provide it with sufficient proof of loss in a timely manner. (See Admin. Rec. at H-1107-H-1113). In its March 10, 2005 letter, Hartford provided Goldman with a detailed list of the information that it still needed from him in order to determine his eligibility for benefits under the plan. (See Admin. Rec. at H-1110-H-1112). Hartford also informed Goldman that he had the right to administratively appeal Hartford’s decision. (See Admin. Rec. at H-1112).

After Hartford denied his claim, Goldman did not appeal administratively, but instead moved in this Court for a judgment determining that Hartford owed him benefits. (See Rec. Docs. 131-36). The Court denied Goldman’s motion because his first case was closed and the matter was still before Hartford. (See Rec. Doc. 139). Goldman moved for reconsideration of the Court’s April 5, 2005 order, and the Court denied his motion. (See Rec. Doc. 145). The Court again explained that its October 27, 2004 decision that Goldman was covered under the plan did not establish that he was entitled to benefits under the plan. The Court stated that this action was closed and that Goldman could file a new civil action in this Court if, after exhausting his administrative remedies with Hartford, he remained dissatisfied with Hartford’s disposition of his claim. Goldman filed a second motion for reconsideration, which the Court denied. (See Rec. Doc. 154). The Court reiterated that the action was closed and warned Goldman’s counsel that additional filings of this nature could subject him to sanctions.

Goldman appealed Hartford’s decision to deny his claim for benefits by letter dated May 2, 2005. (See Admin. Rec. at H-1639). On June 14, 2005, Hartford informed Goldman that it needed additional time to render a decision on his May 2, 2005 appeal and that a decision would be made no later than July 31, 2005. (See Admin. Rec. at H-1787-H-1789). On July 20, 2005, Hartford rendered a decision on Goldman’s appeal. (See Admin. Rec. at H-1639-H-1643; Rec. Doc. 158 Ex. 2). Hartford determined that Goldman was eligible for long-term disability benefits for the period September 20, 2001 (the end of the Elimination Period under the plan) through September 19, 2003. (See Admin. Rec. at H-1639). Hartford denied Goldman’s claim for benefits after September 19, 2003 because it found that there was insufficient evidence in the record to establish that Goldman qualified as disabled under the plan after September 19, 2003. Hartford pointed to medical evidence indicating that Goldman was capable of performing essentially light duty work, which would mean that he would not qualify as disabled under the definition of disability that applied after September 19, 2003. (See Admin. Rec. at H-1642-H-1643; Rec. Doc. 158 Ex. 2). Hartford’s July 20, 2005 letter again advised Goldman of his right to administratively appeal its benefits decision. (See Admin. Rec. at H-1643 (“[ERISA] gives you the right to appeal our decision and receive a full and fair review. You may appeal our decision even if you do not have new information to send us.”))..

On July 26, 2005, Goldman appealed Hartford’s determination that he was not entitled to benefits after September 19, 2003. (See Admin. Rec. at H-1579). Hartford acknowledged receipt of Goldman’s appeal on July 28, 2005 and informed Goldman that it had 45 days in which to decide his appeal, and up to 90 days under special circumstances. (See Admin. Rec. at H-1576). The parties exchanged a number of letters from late July 2005 through September 2005, but that correspondence related primarily to the amount of benefits to which Goldman was entitled for the period September 20, 2001 through September 19, 2003, not to his July 26, 2005 appeal. (See Admin. Rec. at H-1574-H-1575, H-1587, H-1591, H-1594, H-1596, H-1598-H-1600, H-1619, H-1628-H-1629). The Court’s review of the administrative record indicates that Hartford never informed Goldman that it would need additional time to process his July 26, 2005 appeal and never informed Goldman that it had made a decision on that appeal.

Goldman commenced this action on September 22, 2005 by filing a new complaint under this docket number. (See Rec. Doc. 157). Goldman’s new complaint alleges both that Hartford did not provide him with the full amount of benefits to which he is entitled for the period September 20, 2001 through September 19, 2003 and that Hartford never made a decision on his July 26, 2005 appeal concerning the denial of benefits after September 19, 2003. Goldman moved for summary judgment on these claims, seeking benefits owed from September 20, 2001 through the present, as well as penalties and attorney’s fees. Hartford moved to strike Goldman’s pleadings and to impose sanctions for violation of the Court’s order that Goldman cease filing pleadings in this case. Goldman thereafter moved to voluntarily dismiss his claim for benefits for the period September 20, 2001 through September 19, 2003. The Court granted that motion. Accordingly, only Goldman’s claim for benefits after September 19, 2003 remains before the Court.

II. HARTFORD’S MOTION TO STRIKE AND FOR SANCTIONS

A district court has the inherent power to impose sanctions on a litigant to enforce compliance with its orders. See, e.g., Rousseau v. 3 Eagles Aviation, Inc., 130 Fed.Appx. 687, 690 (5th Cir.2005) (noting district court’s inherent power to sanction “ ‘to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance’ ”) (quoting Cook v. Ochsner Fownd. Hosp., 559 F.2d 270, 272 (5th Cir.1977)). This inherent power includes the authority to strike a litigant’s pleadings or dismiss a case for failure to comply with the court’s orders. See Smith v. Legg (In re United Mkts. Int’l, Inc.), 24 F.3d 650, 654 (5th Cir.1994). This authority should be invoked only in extreme cases, however, and it must be used with great restraint. See Toon v. Wackenhut Corr. Corp., 250 F.3d 950, 952-53 (5th Cir.2001).

Here, Hartford moves to strike Goldman’s new complaint and impose sanctions because this Court repeatedly warned Goldman and his counsel that this matter was closed. There can be no doubt that Goldman’s most recent filings are in violation the Court’s earlier orders. Although the Court informed Goldman that, once he completed the administrative appeals process, he could file a new civil action for benefits, the Court clearly stated that Goldman was to file no more pleadings in this action. (See Rec. Doc. 145, at 3 (“Once Goldman appeals Hartford’s determination and Hartford rules on his appeal, Goldman may file a new civil action in this Court to challenge Hartford’s determination.” (emphasis added)); Rec. Doc. 154, at 3 (“As this Court has stated twice before, this case is closed.... The Court warns Goldman’s counsel that further filings in this action may subject him to sanctions.”)).

Nonetheless, the Court finds that no sanction is appropriate in this case. First, the Court’s earlier orders were directed more at Goldman’s failure to exhaust his administrative remedies than to how Goldman brought his claims in this Court once he had exhausted his remedies with Hartford. Goldman exhausted his administrative remedies with Hartford before filing his new complaint. Although his recent filings are proeedurally flawed, Goldman currently has the right to proceed in court against Hartford for the benefits to which he believes he is entitled. Accordingly, Hartford has not been prejudiced by having to respond to Goldman’s new complaint. Second, despite the clarity with which the Court instructed Goldman and his counsel that this action was closed, the Court finds no evidence to suggest that Goldman’s filings were made in bad faith. Moreover, any new ease that Goldman filed in this Court concerning his claim for benefits would in all likelihood have been assigned to this section as a related case under Local Rule 3.1.1E. The Court will therefore deny Hartford’s motion to strike and to impose sanctions.

III. GOLDMAN’S MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings and summary judgment evidence establish that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, “that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party has the burden of showing that there are no genuine issues of material fact.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the record contains insufficient proof concerning an essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See id. at 325, 106 S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

B. Standard of Review—ERISA Claims

Under ERISA, an administrator or fiduciary of a covered plan must make two general types of determinations in order to determine whether a claimant is entitled to benefits under the plan. See Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394 (5th Cir.1998) (citing Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552, 1557 (5th Cir.1991)). It must first determine the facts underlying the claim for benefits. Id. (citing Pierre, 932 F.2d at 1562). The administrator or fiduciary must then “determine whether those facts constitute a claim to be honored under the terms of the plan.” Id. (emphasis in original). If the administrator or fiduciary denies benefits to the participant, once the participant has exhausted his administrative remedies, he can bring a civil action “to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).

Under the standard established in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), a fiduciary’s decisions on plan terms and eligibility for benefits under the plan are subject to de novo review in the district court “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. 948. If the plan grants such discretion, the administrator’s determinations are reviewed only for abuse of discretion. See Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 226 (5th Cir.2004). In the Fifth Circuit, a fiduciary’s factual determinations are always reviewed for abuse of discretion, irrespective of whether the fiduciary is granted discretion under the plan. See id. (citing Pierre, 932 F.2d at 1562).

As this Court has previously determined, the plan provides Hartford with discretion to interpret the plan and to determine eligibility for benefits. (See Rec. Doc. 129, at 14; Admin. Rec. at H-1797 (“Final interpretation of all provisions and coverages will be governed by the Group Insurance Policy on file with The Hartford at its home office.”); Admin. Rec. at H-1821 (“The Hartford reserves the right to determine if your proof of loss is satisfactory.”)).

Goldman argues that Hartford’s benefits determination should be subject to de novo review because Halliburton, not Hartford, is named as the Plan Administrator, and it therefore exercises discretion under the plan. (See Admin. Rec. at H-1825). This argument is without merit. Although it is true that Halliburton is named as the Plan Administrator under the plan, nothing in the plan gives Halliburton any responsibility or discretion to interpret the provisions of the plan or to determine an individual’s eligibility for benefits. Moreover, that Hartford is not itself designated as the Plan Administrator does not establish that it is not vested with discretion under the plan. Under Bruch, review under the abuse of discretion standard is not limited exclusively to plan administrators. Rather, the abuse of discretion standard is appropriately used to review the decisions of any “administrator or fiduciary” with “discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Bruch, 489 U.S. at 115, 109 S.Ct. 948 (emphasis added); see also 29 U.S.C. § 1002(21) (“[A] person is a fiduciary with respect to a plan to the extent ... he has any discretionary authority or discretionary responsibility in the administration of such plan.”). Thus, the focus of the Bruch test is not on the formal title of the decision-maker, but instead on whether the plan at issue confers discretion upon the decision-maker for the particular type of decision in question. Here, the Halliburton long-term disability plan provides in no uncertain terms that Hartford, not Halliburton, is to administer claims for benefits, and, as noted supra, the plan confers discretion on Hartford in making those determinations. Accordingly, Hartford’s decisions with respect to a plan participant’s eligibility for benefits should ordinarily be reviewed only for abuse of discretion.

Because Hartford both determines eligibility for benefits under the plan and insures the plan, however, it necessarily operates under a potential conflict of interest, because it has a financial stake in the outcome of its benefits determinations. See Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir.1999). The Court considers the existence of a conflict of interest as a factor in determining whether a fiduciary has abused its discretion. Id. at 295-97. Courts in the Fifth Circuit apply a “sliding scale” approach to determine the extent to which a conflict of interest need be considered. Id. at 297 (“The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.”). Here, Goldman has introduced no evidence on the extent of Hartford’s conflict of interest. As a result, the Court concludes that this conflict requires that Hartford’s decision be granted “only a modicum less deference” than it would otherwise receive. Id. at 301.

C. Standard of Review — “Deemed Denials”

Goldman also argues that Hartford’s decision should be subject to de novo review because Hartford never responded to his July 26, 2005 appeal. Goldman asserts that any deference that might ordinarily be due Hartford’s determinations is unwarranted because Hartford has simply failed to exercise the discretion granted it under the plan.

Under regulations promulgated by the Secretary of Labor pursuant to section 503 of ERISA, a plan administrator or fiduciary responsible for deciding benefits claims under a disability plan must ordinarily make a decision on a claim within 45 days after the claim is received by the plan. See 29 C.F.R. § 2560.503-1(0(3) (2005). Under certain circumstances, this 45-day period may be extended for up to an additional 60 days. Id. This time period is tolled for delays caused by the claimant’s failure to provide information necessary to decide, his claim. Id. § 2560.503-1(f)(4). In the event of an adverse benefits determination, the claimant must be given at least 180 days in which to appeal the decision administratively. Id. § 2560.503-l(h)(3)(i), (h)(4). Once received, an appeal must be decided within 45 days, or, if special circumstances require and if notice is provided to the claimant, within 90 days, of the date on which the appeal is received. Id. § 2560.503-1(0(3). As with an initial benefits determination, this time period is tolled during periods of delay caused by the claimant’s failure to respond to a request for additional information necessary to determine the appeal. Id. § 2560.503-l(i)(4). If, at any stage of a plan’s administrative process, the plan fails to abide by these time limitations, the claimant may abandon the administrative process and bring an action in court. Id. § 2560.503-1(1).

In this case, Hartford did not timely decide Goldman’s July 26, 2005 appeal. Hartford acknowledged receipt of the appeal on July 28, 2005 and stated that it had 45 days, or in special circumstances 90 days, in which to render a decision. (See Admin. Rec. at H-1576). Thus, assuming that Hartford first received Goldman’s appeal on July 28, 2005, it was required to either to decide his claim or notify him that additional time was necessary no later than September 11, 2005. As noted supra, however, Hartford neither issued a decision on Goldman’s July 26 appeal nor notified him that additional time was necessary. Goldman filed his petition for damages on September 22, 2005, eleven days after the 45-day period expired. Because Hartford failed to decide Goldman’s July 26 appeal within the time limits provided by 29 C.F.R. § 2560.503-1, Goldman is deemed to have exhausted his administrative remedies.

Hartford asserts, in passing, that the deadline for determining Goldman’s appeal should be tolled because Goldman did not provide Hartford with any additional information on appeal. The Court notes, however, that Hartford informed Goldman that he could appeal its decision even if he did not have additional information to submit. (See Admin. Rec. at H-1643). Moreover, there is nothing in the record to suggest that Hartford ever informed Goldman that it required additional information in order to decide his appeal. On these facts, the tolling provision of 29 C.F.R. § 2560.503-l(i)(4) has no application, and Goldman’s claim is properly before the Court.

The more difficult question is whether Hartford’s failure to render a timely decision on Goldman’s July 26 appeal affects the standard under which this Court must review Goldman’s claim.

Goldman argues that Hartford’s denial of his claim should be reviewed de novo. Goldman relies heavily on Gilbertson v. Allied Signal, Inc., 328 F.3d 625 (10th Cir.2003). In Gilbertson, the Tenth Circuit held that when a claim under an ERISA plan is “deemed denied” because of the administrator’s failure to comply with the regulatory deadlines for determining claims, “the district court must review the denial de novo, even if the plan administrator has discretionary authority to decide claims.” Id. at 631.

Hartford argues that the abuse of discretion standard should apply even though it made no decision on Goldman’s July 26 appeal because, under Fifth Circuit law, a fiduciary’s failure to render a timely decision does not alter the standard under which the district court reviews the fiduciary’s decision. Hartford also asserts that Gilbertson is inapplicable because it was decided under an old version of 29 C.F.R. § 2560.503-1, which does not apply to this case. Finally, Hartford argues that the abuse of discretion standard is appropriate here in any event because Hartford has “substantially complied” with the applicable federal regulations.

As an initial matter, Hartford is correct that Gilbertson is not directly applicable to this case because that case involved an earlier version of the Department of Labor’s regulation concerning the ERISA administrative review process. It is less clear, however, whether this distinction actually supports Hartford’s argument. This follows because the Fifth Circuit case upon which Hartford relies, Southern Farm Bureau Life Insurance Co. v. Moore, 993 F.2d 98 (5th Cir.1993), was also decided under the earlier version of section 2560.503-1.

1. The Old Regulation

Under the former version of section 2560.503-1, which applies to all cases concerning benefits claims filed before January 1, 2002, if a plan administrator or fiduciary fails to comply with the regulatory deadlines for deciding a claim, the claim is “deemed denied” on review. See 29 C.F.R. § 2560.503-1(h)(4) (1999) (amended Nov. 21, 2000) (stating that, if decision on review “is not furnished within [the appropriate] time, the claim shall be deemed denied on review”). Once a claim is “deemed denied” on review, the claimant can then file an action for benefits under ERISA section 502(a) in the district court. See Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 983 (9th Cir.2005) (“[T]he ‘deemed denied’ language gives claimants the ability to access the courts if the administrator does not exercise its discretion within a reasonable time.”); Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 105 (2d Cir.2005) (“[I]f Prudential failed to meet the deadlines, Nichols’s administrative appeal is deemed denied, and her administrative remedies are therefore exhausted.”).

A number of courts of appeals hold that a deemed denial under the old regulation is simply the equivalent of a failure by the administrator to exercise any discretion. As the application of an abuse of discretion standard to an ERISA benefits determination presupposes that the determination was the result of an exercise of discretionary authority, those courts hold that a deemed denial is therefore presumptively not entitled to judicial deference and is ordinarily subject to de novo review. See, e.g., Nichols, 406 F.3d at 109 (“A ‘deemed denied’ claim is not denied by any exercise of discretion, but by operation of law.... We therefore hold that a ‘deemed denied’ claim is entitled to de novo review....”); Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1103 (9th Cir.2003) (when claim is deemed denied, “there is no opportunity for the exercise of discretion and the denial is usually to be reviewed de novo”); Gilbertson, 328 F.3d at 632 (“Deference to the administrator’s expertise is inapplicable where the administrator has failed to apply his expertise to a particular decision.”); Gritzer v. CBS, Inc., 275 F.3d 291, 296 (3d Cir.2002) (“Where a trustee fails to act or to exercise his or her discretion, de novo review is appropriate because the trustee has forfeited the privilege to apply his or her discretion....”).

Several courts of appeals, including some of those that hold that deemed denied claims are ordinarily subject to de novo review, employ a somewhat flexible approach and hold that a deemed denial caused by an administrator’s failure to render a timely decision can nonetheless be reviewed under the abuse of discretion standard if the specific facts and circumstances of the case indicate that the administrator’s procedural errors did not compromise the overall integrity of the administrative review process. For example, in McGarrah v. Hartford Life Insurance Co., 234 F.3d 1026 (8th Cir.2000), the Eighth Circuit held that abuse of discretion review was appropriate notwithstanding the administrator’s violation of section 2560.503-1, when the violation did not “raise serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator’s whim.” McGarrah, 234 F.3d at 1031. In that case, the plan’s claims administrator issued a written decision that set forth specific reasons for its decision to terminate the claimant’s benefits. The claimant timely appealed the decision, but the administrator simply, and inexplicably, failed to respond to the appeal. After noting that the administrator’s failure to respond to the appeal was a “serious procedural irregularity,” the court explained that the “mere presence of a procedural irregularity is not enough to strip a plan administrator of the deferential standard of review.” Id. The court ultimately held that abuse of discretion review was appropriate because the administrator’s procedural violations did not undermine its confidence in the administrator’s decision-making process. Id. In reaching this conclusion, the court found it significant both that the administrator had conducted an extensive investigation of the claim before rendering its initial decision and that the claimant had presented no credible new evidence with his appeal. Id; see also Finley v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 379 F.3d 1168, 1174-75 (10th Cir.2004) (applying McGarrah exception to untimely benefits determination); Gatti, 415 F.3d at 985 (de novo review required only when procedural violations are “so flagrant as to alter the substantive relationship between the employer and employee”).

Similarly, a number of courts recognize a “substantial compliance” exception to de novo review for cases in which the administrative review process contained technical, though insubstantial, procedural defects. See Gilbertson, 328 F.3d at 634-35 (“[O]ur holding does not require that every decision that comes on the 61st or 121st day following the claimant’s notice of appeal must be subject to plenary review in federal court.”); see also Jebian, 349 F.3d at 1107-08 (adopting substantial compliance exception as recognized in Gilbert-son). But cf. Nichols, 406 F.3d at 109 (reserving decision on substantial compliance exception).

The basic principle that emerges from these cases is that these courts of appeals will not grant deference to an ERISA administrator when its claims decisions are rendered suspect because of material procedural violations, but that they will assess the substantiality of the violations according to the facts of each case.

The Fifth Circuit has been considered somewhat of an outlier in this area. It addressed the standard of review applicable to deemed denied claims in Moore, which involved an employee’s efforts to obtain accidental death benefits for the death of her husband under a plan administered by her employer. Moore, 993 F.2d at 99. The administrator in that case investigated the employee’s claim, and it ultimately concluded that the loss was excluded by the terms of the policy. Id. at 99-100. The administrator did not, however, formally notify the employee of its decision, as it was required to do under the regulation. Id. at 100. Instead, the administrator sought a declaratory judgment in federal court that it did not have to pay benefits under the plan. Id. Because the administrator had failed to provide the employee with the requisite written notice of its decision to deny her claim, the district court reviewed its factual determinations under a de novo standard of review. Id. at 101.

On appeal of a jury verdict in favor of the employee, the administrator argued that the district court erred in failing to review its factual determinations for abuse of discretion. The Fifth Circuit sided with the administrator and held that the administrator’s findings of fact should have been reviewed for abuse of discretion. The court first restated the general rule that, under its earlier decision in Pierre, an administrator’s factual determinations are always reviewed for abuse of discretion. Id. at 100-01. The court then noted that the purpose of the “deemed denied” provision of section 2560.503-1 is to permit a claimant to bring an action in the district court when an ERISA administrator simply fails to decide a claim on the merits. Id. at 101. The Moore court went on to hold, however, that the administrator’s failure to provide the employee with written notice of its decision did not affect the applicable standard of review: “In our view, the standard of review is no different whether the claim is actually denied or deemed denied. The role of the district court is the same in either event....” Id. (footnote omitted). In a footnote, the court added that its conclusion was “buttressed by the fact that [the employee] cite[d] no authority for applying de novo review when a claim is deemed denied.” Id. at 101 n. 6.

In part because the Moore court did not elaborate on the reasoning underlying its decision, the case has been viewed with some skepticism. No other circuit has adopted its holding, and the courts of appeals often interpret Moore as standing for the proposition that an administrator’s failure to act on a claim is never reason for altering the standard of judicial review, putting the Fifth Circuit in conflict with those courts that employ a presumption of de novo review in deemed denied cases. See Finley, 379 F.3d at 1173 n. 5; Jebian, 349 F.3d at 1106; Gilbertson, 328 F.3d at 633. At least one court has conjectured that Moore is grounded in the notion that a decision to simply let a claim lapse, resulting in a constructive denial, is no less an affirmative exercise of discretion than is a denial on the merits. See Nichols, 406 F.3d at 109 (describing Moore as “apparently reasoning that the decision to deny is the same whether accomplished formally or by inaction”).

This Court is not convinced that Moore should be read so broadly. First, the Court notes that the Moore court did not provide a reasoned analysis for its decision, and, as the court itself noted, the decision was at least somewhat influenced by lack of authority for the proposition that de novo review should apply to deemed denials. More important, however, Moore was not a case in which the administrator simply failed to act on a claim and let it languish unresolved. As the Fifth Circuit’s opinion makes clear, the administrator in that case conducted a full investigation of the employee’s claim, made factual determinations about the cause of the loss, and decided that the loss was excluded under the terms of the policy. The procedural breakdown in Moore was that, once the administrator decided to deny the employee’s claim, rather than sending the employee written notice of the denial, the administrator sought a declaratory judgment of non-liability.

Moore is therefore a case in which the administrator actually exercised its discretion and made factual findings concerning the employee’s claim, but simply failed to comply with the regulation’s notice procedures. Moreover, notwithstanding the administrator’s failure to notify the employee of its decision as required by the regulation, the employee no doubt received actual notice of the administrator’s reasoning in the declaratory judgment action. The question actually presented to the Fifth Circuit was, therefore, whether to grant deference to the factual findings that the administrator actually made during its investigation, or whether de novo review was required because of the administrator’s procedural error. The Fifth Circuit held that, because the district court’s task, reviewing the factual determinations that the administrator made at the conclusion of its investigation, was the same whether or not the administrator complied with the regulation’s notice requirement, there was no reason to alter the standard of judicial review.

Although some of the language in Moore can be read broadly to suggest that the Fifth Circuit would never apply a different standard of review to a claim that was deemed denied than it would to one that was actually decided on the merits, it is far from clear that Moore was intended as such a blanket pronouncement. Rather, it appears that the Fifth Circuit simply determined that, on the record before it, nothing about the administrator’s failure to comply with the regulation’s notice requirement warranted withholding deference to the administrator’s factual determinations. Viewed in this manner, the decision is quite analogous to cases like McGarrah and Finley, which recognized exceptions to the presumption of de novo review of deemed denied claims when the administrator’s procedural errors did not undermine the court’s confidence in the administrator’s overall decision-making process. In addition, a more circumscribed interpretation of Moore is consistent with a later indication by the Fifth Circuit that it might, in fact, find de novo review appropriate when an administrator simply fails to decide a claim. See Schadler, 147 F.3d at 398 n. 11 (“[I]t may be appropriate for a district court to undertake a de novo review of the denial where the administrator, despite repeated opportunities to do so, refuses to make a ruling ... or where the administrator so delays in making a decision that such delay amounts to a failure to decide the issue.”). Accordingly, the Court finds that Moore is not a clear pronouncement that an ERISA administrator’s failure to decide a claim can never affect the applicable standard of review for deemed denied claims under the old regulation. The Court instead concludes that the Fifth Circuit would decide whether a deemed denied claim should be reviewed de novo or for abuse of discretion based on a consideration of the record in the case before it.

2. The New Regulation

Under the current version of section 2560.503-1, which applies to benefits claims filed on or after January 1, 2002, the “deemed denied” provision has been removed and replaced with the current paragraph (1), which provides:

In the case of the failure of a plan to establish or follow claims procedures consistent with the requirements of this section, a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under section 502(a) of the Act on the basis- that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim.

29 C.F.R. § 2560.503-1(1). The issue the Court must- consider is whether the foregoing amendment to section 2560.503-1 altered the applicable standard of review for cases in which an administrator or fiduciary fails to decide a benefits appeal on a timely basis. If it did not, the Court will look to the record to determine whether Hartford’s decision is entitled to deference. If it did, the Court may be required to review Goldman’s claim de novo.

This issue appears to be one of first impression in this circuit, and the Court has found no appellate decisions addressing this issue. See Gatti, 415 F.3d at 982 n. 1 (“We do not address the question of whether, under the new regulation, claimants who can establish a failure to comply with the claims procedures established by ERISA regulations are entitled to de novo consideration of their claims.”); Finley, 379 F.3d at 1175 n. 6 (“We specifically reserve the question of whether this decision and our decision in Gilbertson apply to the regulations as amended.”). A small number of district court opinions have considered the issue, with conflicting results. Compare Reeves v. Unum Life Ins. Co. of Am., 376 F.Supp.2d 1285, 1293-94 (W.D.Okla.2005) (failure to comply with time limits of amended regulation mandates de novo review), and Stefansson v. Equitable Life Assurance Soc’y of the United States, No. 5:04CV40(DF), 2005 WL 2277486, at *11-12 (M.D.Ga. Sept.19, 2005) (applying de novo review), with Seger v. ReliaStar Life, No. 3:04 CV 16/RV/MD, 2005 WL 2249905, at *7-11 (N.D.Fla. Sept.14, 2005) (abuse of discretion review appropriate when administrator substantially complied with new deadlines), Ott v. Litton Indus., Inc., No. 4:04-CV-763, 2005 WL 1215958, at *6-7 (M.D.Pa. May 20, 2005) (removal of deemed denial provision does not mandate de novo review), and Oman v. Intel Corp. Long Term Disability Benefit Plan, No. 03-1591-AA, 2004 WL 2384965, at *4 (D.Or. Oct.21, 2004) (applying substantial compliance doctrine under amended regulation).

It is not apparent either from the text of the amended regulation or from a comparison of the amended and former versions of the regulation that the November 2000 amendment requires de novo review when a plan administrator or fiduciary fails to render a decision within the appropriate timeframe. First, neither version of the regulation expressly purports to establish the applicable standard for judicial review of untimely decisions. Moreover, there appears to be little functional difference between the “deemed denied” provision of the old regulation and paragraph (1) of the new regulation. Under both the old and new versions, an administrator’s failure to issue a timely decision on a benefits appeal has the effect of permitting the participant to forego any additional administrative procedures and file a civil action against the administrator. See Stefansson, 2005 WL 2277486, at *9 (“Though the regulation has been reworded, it is clear to the Court that a plan’s failure to make a benefits determination ... still constitutes a constructive denial.... ”).

In both the notice of proposed rulemak-ing and the notice of final regulation for the November 2000 amendment, however, the Department of Labor stated that this amendment was important in order to clarify that the administrative procedures required by section 2560.503-1 are the minimum necessary to ensure that claims are given a full and fair administrative review. The Department further stated that an administrator’s failure to comply with the regulation’s procedural requirements should deprive its decision of any judicial deference in a later lawsuit. See ERISA Claims Procedure, 63 Fed.Reg. 48,390, 48,397 (proposed Sept. 9, 1998) (noting Department’s view that, when claims procedure does not comply with regulatory requirements, “any decision that may have been made by the plan ... is not entitled to the deference that would be accorded to a decision based upon a full and fair review that comports with the requirements of section 503 of [ERISA]”); ERISA Claims Procedure, 65 Fed.Reg. 70,246, 70,255 (Nov. 21, 2000) (“[A] decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.”).

In determining the weight to accord the Department’s statements, the Court must first consider whether the statements are entitled to deference under either Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), or Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). See Gonzales v. Oregon, — U.S. -, 126 S.Ct. 904, 914-15, 163 L.Ed.2d 748 (2006) (discussing Chevron and Auer deference).

Under the Chevron doctrine, an agency’s interpretation of an ambiguous statutory provision may be entitled to deference if Congress has delegated to the agency authority to administer the statute through rules having the force of law and the interpretation in question is an exercise of that authority. See Gonzales v. Oregon, 126 S.Ct. at 914-15 (quoting United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). Here, Congress has clearly and expressly given the Department of Labor the authority to administer ERISA. See 29 U.S.C. § 1133 (“In accordance with regulations of the Secretary, every employee benefit plan shall ... afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.”); id. § 1135 (“[T]he Secretary may prescribe such regulations as he finds necessary or appropriate to carry out the provisions of this subchapter.”). The Department’s statements concerning the standard of review, which are in the form of comments accompanying the proposed and final rules, are nevertheless not entitled to Chevron deference because those statements do not have the force of law. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.”). Although the Department’s comments were made in the course of the rulemaking process, nothing in the text of the rule itself purports to prescribe a standard of judicial review. Thus, Chevron deference is unwarranted. See Stefansson, 2005 WL 2277486, at *12 n. 18 (Department’s statements not entitled to Chevron deference); cf. Seger, 2005 WL 2249905, at *9 (denying Chevron deference because Department was not delegated authority “to regulate the scope of the judicial power vested by [ERISA]”).

The Department’s statements may still be entitled to deference under Auer if the statements can be considered an interpretation of the Department’s own ambiguous regulation. See Gonzales v. Oregon, 126 S.Ct. at 914 (citing Auer, 519 U.S. at 461-63, 117 S.Ct. 905). At issue in Auer was the proper interpretation of the Department of Labor’s “salary-basis test” for determining whether an employee is exempt from the overtime provisions of the Fail-Labor Standards Act. At the request of the Court, the Secretary of Labor provided an amicus brief setting forth his interpretation of the salary-basis test. The Court held that because the salary-basis test is “a creature of the Secretary’s own regulations,” it was required to defer to his interpretation unless it was clearly erroneous or inconsistent with the regulation. Auer, 519 U.S. at 461, 117 S.Ct. 905. Unlike Alter, however, this case does not involve ambiguity in the terms of a regulation. Rather, the amended section 2560.503-1 simply does not speak to the issue of the standard of review, and, accordingly, Auer does not require deference to the Department’s position in this case.

Although the Department’s position is therefore not entitled to any formal deference, it is nonetheless entitled to judicial respect, but “only to the extent that [it has] the ‘power to persuade.’ ” Christensen, 529 U.S. at 587, 120 S.Ct. 1655 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

Having considered the effect of the November 2000 amendment to section 2560.503-1, the Court is not persuaded that the new version of the regulation requires a rigid rule of de novo review in all cases.

It is true that, from a claimant’s perspective, there appears to be no functional difference between the “deemed denied” provision of the old regulation and paragraph (1) of the amended regulation. From a judicial perspective, however, the new regulation somewhat strengthens the argument that administrative decisions that do not comply with the regulation are not entitled to deference. Under the old regulation, an administrator at least arguably had the discretion to let a benefits appeal lapse, in the knowledge that it would be deemed denied by operation of law. Under the new regulation, an administrator cannot simply let a claim lapse. It is obliged to decide the claim within the requisite time period. If it does not, the claimant may file suit on the ground “that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim.” 29 C.F.R. § 2560.503-1(1).

Although this change cements the argument that untimely benefits decisions should presumptively be subject to de novo review, the Court does not believe that the Fifth Circuit would adopt the Department of Labor’s position and apply de novo review in all cases. First, while the amended regulation may foreclose the broad reading that some other circuits have given Moore, nothing about the new regulation is inconsistent with idea of looking to the record in each case to determine if deference is warranted notwithstanding the administrator’s failure to comply with the regulation. In addition, the Department’s position that a procedural defect should automatically strip an administrator’s decision of any deference is not limited to untimely decisions. Rather, it extends to any failure to comply with any provision of section 2560.503-1, however insubstantial. See ERISA Claims Proce dure, 65 Fed.Reg. 70,246, 70,255-56 (Nov. 21, 2000) (stating that any departure from required administrative procedures “would effectively deny a claimant access to the administrative review process mandated by the Act” and should entitle a claimant to proceed to court for a full and fair hearing). The Court does not believe that the Fifth Circuit would adopt such a rigid and mechanical rule, particularly given that the Fifth Circuit recently expressly endorsed the doctrine of substantial compliance under the old regulation. See Lacy v. Fulbright & Jaworski Ltd. Liab. P’ship Long Term Disability Plan, 405 F.3d 254, 256-57 (5th Cir.2005) (applying substantial compliance exception to claim concerning sufficiency of denial notice). The Court therefore holds that the Fifth Circuit would continue to look to the record to determine whether a claims decision that does not comply with section 2560.503-1 is entitled to any judicial deference. The Court also predicts that the Fifth Circuit would adopt the exceptions to de novo review recognized by other circuits in cases such as McGarrah, Finley, and Gatti.

Applying these principles, the Court concludes that this case falls squarely within the McGarrah exception to de novo review. After this Court’s October 27, 2004 order requiring that Hartford reinstate Goldman’s claim, Hartford diligently reviewed Goldman’s claim. On three separate occasions, Hartford wrote Goldman and informed him that it needed additional information in order to complete its evaluation of his claim. When Goldman failed to provide that information, Hartford ultimately denied his claim. After Goldman appealed that decision, and Hartford received the necessary information, Hartford issued a reasoned decision awarding Goldman benefits for a two-year period from September 20, 2001 through September 19, 2003. In that decision, Hartford set out at length its reasons for denying Goldman’s claim for benefits after September 19, 2003. Goldman then filed a second appeal, but he did not provide with that appeal any new or additional information for Hartford to consider.

It is no doubt true that the administrative process broke down at this point and that Hartford has failed to provide any real explanation of why it never decided Goldman’s July 26, 2005 appeal, or, for that matter, why a second level of administrative appeal was even appropriate in this case. Notwithstanding these failures, however, this is not a case in which the fiduciary’s failure to abide by the regulatory requirements of section 2560.503-1 creates concern about the overall adequacy of the decision-making process. See McGarrah, 234 F.3d at 1031. The Court is not presented with a situation in which the administrator has simply failed to issue any reasoned decision or has failed to consider additional evidence provided by the claimant. To the contrary, Hartford has generated an 1800 page administrative record on Goldman’s claims, and Hartford’s July 20, 2005 decision reflects that Hartford considered the very evidence that Goldman argues establishes his entitlement to benefits. (See Admin. Rec. at H-1642). Although these facts do not excuse Hartford’s sheer failure to dispose of Goldman’s second appeal, the Court finds that they show that it is appropriate to review Hartford’s denial of Goldman’s claim under an abuse of discretion standard.

D. Analysis

As to the merits of Goldman’s motion, Goldman can prevail on his motion for summary judgment only if he establishes that no issue of material fact exists as to whether Hartford abused its discretion in denying him benefits after September 19, 2003. Under the abuse of discretion standard, a court looks to whether the administrator’s factual finding was arbitrary and capricious. Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir.1999). The Court will uphold the administrator’s finding under this standard “if it is supported by substantial evidence.” Id. at 215 (“A decision is arbitrary only if ‘made without a rational connection between the known facts and the decision or between the found facts and the evidence.’ ”) (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 828-29 (5th Cir.1996)). In reviewing Hartford’s decision, the Court is limited to the record that was available to Hartford. Id. (citing Wildbur v. ARCO Chem. Co., 974 F.2d 631, 639 (5th Cir.1992)).

Goldman has wholly failed to satisfy his burden on this motion. The thrust of Goldman’s argument is that Hartford abused its discretion in denying him benefits after September 19, 2003 because one of Goldman’s physicians, Dr. John McCain, has repeatedly reported that he considers Goldman totally disabled, most recently in a letter dated January 24, 2005. Goldman asserts that this evidence was provided to Hartford and establishes his entitlement to continued benefits. Goldman completely fails to acknowledge, however, that Hartford’s July 20, 2005 decision on his claim expressly stated that Hartford had taken Dr. McCain’s assessments into account. The decision states, in pertinent part:

The medical evidence contained in Mr. Goldman’s file was forwarded to University Disability Consortium for referral to an independent physician for review. In a 6/29/05 report Barry Turner, MD states, “My telephone conversation with Pain Management specialist, Dr. McCain, revealed that there was no more he could do for [Goldman] and he has not seen him in approximately seven to eight months”. He stated that he had opined that he was incapable of working at all and totally disabled because he felt he needed to lie down during the day. However, upon further questioning, Dr. McCain stated that he would go along with the functional capacity evaluation recommendation in August of 2002 that [Goldman] was capable of essentially light duty work.

(Admin. Rec. at H-1642; see also Admin. Rec. at H-1656, H-1704-H-1706). To date, Goldman has made no attempt to dispute or contradict Hartford’s characterization of Dr. McCain’s change of position, either in connection with his administrative appeal or before this Court.

Moreover, even without considering Dr. McCain’s apparent concession that Goldman was capable of light-duty work, the administrative record contains ample evidence to support Hartford’s determination that Goldman did not satisfy the definition of disability after September 19, 2003. Hartford had Goldman’s file reviewed by an independent physician, Dr. Barry Turner, who reviewed Goldman’s medical records, including the notes and recommendations of numerous physicians who had seen Goldman, MRI scans from both before and after Goldman’s May 2001 back surgery, a cervical CT study conducted in February 2002, and a functional capacity evaluation conducted in June 2002. (See Admin. Rec. at H-1700-H-1705). Based on his consideration of this evidence, Dr. Turner concluded that, in his opinion, after September 19, 2001, Goldman’s “only [employment] restriction should be no lifting greater than 20 [pounds] occasionally.” (See Admin. Rec. at H-1706, H-1642-H-1643; Rec. Doc. 158 Ex. 2). Dr. Turner noted that his conclusion was consistent with the June 2002 assessment of Dr. Kinnard, who also concluded that Goldman was capable of light work. (See Admin. Rec. at H-1642, H-1704).

Based on Dr. Turner’s review of Goldman’s medical records and an employability analysis conducted in June 2005, Hartford concluded that the evidence before it established that Goldman was able to perform light work and did not qualify as disabled under the plan after September 19, 2003. (See Rec. Doc. 158 Ex. 2, at 5). The Court finds that this evidence is sufficient to support Hartford’s decision under the abuse of discretion standard. See Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601-03 (5th Cir.1994) (upholding, under abuse of discretion standard, administrator’s decision to deny claim when administrator based decision on independent evaluation of medical records, despite conflicting conclusions of plaintiffs physicians).

E. Attorneys’ Fees

As Goldman has failed to establish his entitlement to summary judgment, the Court finds that the factors articulated in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir.1980), do not favor an award of fees. Accordingly, the Court denies Goldman’s request for fees and costs. See Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 343, 347-48 (5th Cir. 2002) (noting discretionary nature of fee award under ERISA).

IV. CONCLUSION

For the reasons stated above, the Court DENIES Hartford’s motion to strike and its request for sanctions. The Court also DENIES Goldman’s motion for summary judgment. 
      
      . The Elimination Period is the amount of time for which a covered person must be disabled before benefits are payable. {See Admin. Rec. at H-1798, H-1499).
     
      
      . The copy of Hartford’s July 20, 2005 letter included in the administrative record appears to be missing page five. A complete copy of this letter is included as Exhibit 2 to Goldman’s motion for summary judgment. (See Rec. Doc. 158 Ex. 2).
     
      
      .At one point in his brief, Goldman appears to argue that Hartford's failure to decide his July 26, 2005 appeal precludes it from contesting his right to the benefits sought in that appeal. Because an ERISA fiduciary's procedural violations do not generally give rise to a substantive remedy, this argument is without merit. See, e.g., Syed v. Hercules Inc., 214 F.3d 155, 162 (3d Cir.2000).
     
      
      . See 29 U.S.C. § 1133 ("In accordance with regulations of the Secretary, every employee benefit plan shall ... afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.").
     
      
      . Unless otherwise noted, all citations to the Code of Federal Regulations are to the 2005 edition.
     
      
      . Although the terms of the plan give Hartford up to 120 days to decide an appeal under certain circumstances, Hartford does not dispute that appeals under the plan are governed by the shorter time limitations of 29 C.F.R. § 2560.503-1. (See Rec. Doc. 174, at 4-5).
     
      
      . In addition, although neither party raises the issue, it is far from clear that Goldman was even required under the plan to appeal the July 20, 2005 decision to Hartford. Hartford first denied Goldman's claim on March 10, 2005. Goldman appealed that decision, and Hartford's July 20, 2005 decision disposed of that appeal. Goldman's July 26, 2005 appeal was therefore his second appeal. The plan itself, however, provides for only one level of appeal. (See Admin. Rec. at H-1821-H-1822). Accordingly, it would appear that Goldman had exhausted his administrative remedies after Hartford rendered its July 20, 2005 decision on his claim.
     
      
      . The final version of the most recent amendments to 29 C.F.R. § 2560.503-1 was published in the Federal Register on November 21, 2000, but the amendments apply only to claims for benefits that were commenced on or after January 1, 2002. See 29 C.F.R. § 2560.503-1(o).
     
      
      . Under the old version of the regulation, an administrator of a disability plan was required to decide an appeal of a benefits determination within 60 days of receiving a request for review, or, if the claimant was notified that additional time was necessary, within 120 days of receiving a request for review. See 29 C.F.R. § 2560.503-1(h)(1) (1999). As noted supra, the deadlines under the current regulation are 45 and 90 days, respectively.
     
      
      
        .See Bruch, 489 U.S. at 111, 109 S.Ct. 948 (“Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers.”); Pierre, 932 F.2d at 1558 (deferential review appropriate for all factual findings because such findings are "inherently discretionary”).
     
      
      . But cf. Mouisset v. Hartford Life & Accident Ins. Co., No. Civ.A. 03-2292, 2005 WL 3296847, at *3 (W.D.La. Dec.5, 2005) (applying, without discussion, abuse of discretion standard under Moore when administrator failed to comply with amended regulation).
     
      
      . As noted supra, this is how the Second Circuit has characterized the Fifth Circuit's decision in Moore. See Nichols, 406 F.3d at 109.
     
      
      . Although the distinction between an administrator's findings of fact and its interpretations of plan terms is not determinative of the standard of review in this case, the Court notes that Hartford's determination that Goldman’s condition does not meet the definition of disability under the plan after September 19, 2003 is a determination of fact. See Chapman v. Prudential Life Ins. Co. of Am., 267 F.Supp.2d 569, 576 (E.D.La.2003) ("A factual determination usually consists of an administrator's finding that a claimant's condition meets a definition in the policy.... [A] challenge to plan interpretation usually consists of the plan administrator's interpretation of a plan term.”).
     