Richard Angevine v. Anheuser-Busch, et al

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, DUANE BENTON and BOBBY E. SHEPHERD. Bobby E. Shepherd, Authoring Judge (PUBLISHED) [3810265] [10-2832]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-2832
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Richard Angevine, Individually
and on behalf of all others
similarly situated,

*
*
*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the Eastern
* District of Missouri.
Anheuser-Busch Companies Pension
*
Plan; Anheuser-Busch
*
Companies, Inc. , a Delaware
*
Corporation; Anheuser-Busch
*
Inbev, N.V., a Belgian Corporation,
*
*
*
Appellees.
*
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Submitted: April 14, 2011
Filed: July 22, 2011
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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.

Appellate Case: 10-2832

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Date Filed: 07/22/2011 Entry ID: 3810265

Richard Angevine appeals from the district court’s1 dismissal of his claim for
benefits under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.
§§ 1101 et seq. The district court held that Angevine had failed to exhaust his
administrative remedies. Because we agree that an administrative remedy was
available to Angevine and that pursuing it would not have been futile, we affirm.
I.
Angevine is a salaried employee of Busch Entertainment Corporation (BEC),
which before 2008 was a subsidiary of Anheuser-Busch Companies, Inc. (ABC).
ABC provides its salaried employees and the salaried employees of its subsidiaries
with a benefits plan, the Anheuser-Busch Companies Pension Plan (the Plan), which
is governed by ERISA.
The Plan includes a “Change in Control” provision, which makes Plan
participants eligible for enhanced retirement benefits if their employment within the
Controlled Group is “involuntarily terminated” within three years of a change in
control. For these employees, the Plan presumes an additional five years of credited
service and five years of age for purposes of determining pension benefits (the “+5/+5
enhancement”). The Plan specifies that ABC is the “Company” and the “Controlled
Group” consists of “[t]he controlled group of corporations, trade, and businesses . . .
of which the Company is a part, as determined from time to time.”2

1

The Honorable Carol E. Jackson, United States District Judge for the
Eastern District of Missouri.
2

We consider all provisions of the Plan, even those portions not included in
Angevine’s pleadings, because his complaint stated that the provisions of the Plan
were the grounds for his claim. Moses.com Sec., Inc. v. Comprehensive Software
Sys., Inc., 406 F.3d 1052, 1063 n.3 (8th Cir. 2005).
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ABC was bought in 2008 by InBev, N.V., which changed its name to AnheuserBusch InBev, N.V. (A-B InBev). The parties agree that this acquisition constituted
a “Change in Control” for purposes of the Plan. In 2009, A-B InBev agreed to sell
BEC to Blackstone Capital Partners V, L.P. On November 27, 2009, before the sale
went through, Angevine received an email captioned, “Salaried Employee Transition
Frequently Asked Questions.” The email stated in part:
What is the effect on the sale on my participation in the pension
plan?
You will stop accruing benefits in the Anheuser-Busch Salaried
Employee Pension Plan as of the date of the sale transaction. You are
eligible for a pension distribution at any time after age 55. . . .
When can I begin receiving my pension benefit?
You may begin receiving your pension at any time after age 55. If you
elect to start receiving your pension benefit before age 65, the amount of
your benefit may be reduced. The amount of the reduction depends on
your years of vesting service and your age on the date of the closing of
the sale of BEC to Blackstone Group. . . .
Am I eligible for the +5/+5 enhancement applicable to involuntary
terminations of employment within 3 years of the InBev change of
control?
You will not be eligible for the +5/+5 enhancement upon the date of your
separation from active participation in the Anheuser-Busch Salaried
Employees’ Pension Plan or at the time of your termination of
employment with BEC after the sale is finalized.
BEC was sold to Blackstone on December 1, 2009.
On the day of the sale, Angevine filed an ERISA class action against BEC, A-B
InBev, the Plan, and State Street Bank & Trust Company, the Plan’s trustee, under 29
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U.S.C. § 1132(a)(1)(B).3 Angevine claims that he and other class members were
entitled to the +5/+5 enhancement because the sale of BEC to Blackstone
involuntarily terminated their employment with the Controlled Group and occurred
within three years of the Change in Control that had occurred when ABC was bought
by InBev. Angevine sought an award of early retirement benefits that included the
+5/+5 enhancement, pre- and post-judgment interest dating back to December 1, 2009,
an injunction requiring that he be given the +5/+5 enhancement in determinations of
his future benefits, and various class-specific relief.
II.
The district court granted the Appellees’ motion to dismiss on the ground that
Angevine failed to exhaust his plan remedies. Angevine appeals, arguing that the
email he received on November 27, 2009, excused him from the exhaustion
requirement and, in the alternative, that no administrative remedy existed.
“Exhaustion is a threshold legal issue we review de novo.” Kinkead v. Sw. Bell Corp.
Sickness & Accident Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir. 1997).
ERISA allows a plan participant to bring a civil action “to recover benefits due
to him under the terms of his 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). Before filing in federal court, however, a claimant must exhaust the
administrative remedies required under the particular ERISA plan. Chorosevic v.
MetLife Choices, 600 F.3d 934, 941 (8th Cir. 2010). This judicially created
exhaustion requirement serves many important purposes, including “giving claims
administrators an opportunity to correct errors, promoting consistent treatment of
claims, providing a non-adversarial dispute resolution process, decreasing the cost and
3

Angevine also brought a claim for breach of fiduciary duty under section
1132(a)(3). However, the district court dismissed the claim, and Angevine does
not appeal that dismissal.
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time of claims resolution, assembling a fact record that will assist the court if judicial
review is necessary, and minimizing the likelihood of frivolous lawsuits.” Galman v.
Prudential Ins. Co. of Am., 254 F.3d 768, 770 (8th Cir. 2001). We excuse the
exhaustion requirement only when pursuing an administrative remedy would be futile
or there is no administrative remedy to pursue. Brown v. J.B. Hunt Transp. Serv.,
Inc., 586 F.3d 1079, 1085 (8th Cir. 2009).
Angevine argues that repudiation constitutes a third exception to the exhaustion
requirement. According to Angevine, when an ERISA plan or its fiduciary repudiates
a beneficiary’s rights under a plan, the beneficiary can bring a civil action in federal
court without first filing an application for benefits under the plan. Angevine is
correct that an ERISA claim accrues “when there has been a repudiation by the
fiduciary which is clear and made known to the beneficiary,” even if the repudiation
occurs before a claim for benefits is filed. Union Pac. R.R. Co. v. Beckham, 138 F.3d
325, 330-31 (8th Cir. 1998) (internal quotation omitted). Statutory accrual, however,
is a distinct question from whether the judicially created exhaustion requirement is
excused. Cf. id. at 332 n.4. Our case law is clear that Angevine’s claim can proceed
only if he has pled sufficient facts to show either futility or lack of administrative
remedy.
Angevine’s allegations do not show that it would have been futile for him to
pursue an administrative remedy under the Plan. “The futility exception is
narrow—the plan participant must show that it is certain that [his] claim will be denied
on appeal, not merely that [he] doubts that an appeal will result in a different
decision.” Brown, 586 F.3d at 1085 (internal quotation omitted). At the time he filed
this lawsuit, Angevine had made no attempt to pursue an administrative remedy and
the Plan administrator had not denied any similar claims. Angevine’s sole basis for
alleging futility is the email he received on November 27. Even if the email provides
some indication of the position the Plan administrator would take if Angevine had
pursued an administrative remedy, it does not show with certainty that the Plan
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administrator would have denied Angevine’s claim for the +5/+5 enhancement upon
either initial review or appeal.
Angevine’s allegations show that the Plan provided him with an administrative
remedy. The Plan requires that “[a]n application for distribution shall be a condition
precedent to any distribution under this Plan” and details how to submit an application
for distribution. Under the Plan’s plain language, applications for any distribution,
regardless of whether for current or future benefits, fall within the Plan’s claims
procedure. Thus, because Angevine seeks either current or future benefits, the Plan
provides an administrative procedure for his claim. The facts alleged in Angevine’s
complaint show neither futility nor the lack of an administrative remedy, and we
conclude that he is required to exhaust his administrative remedies under the Plan
before he can bring a civil action in federal court.
III.
Accordingly, we affirm the district court’s dismissal of Angevine’s claim for
failure to exhaust.
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