United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2832

___________

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. *

___________

Submitted: April 14, 2011

Filed: July 22, 2011

___________

Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

___________

SHEPHERD, Circuit Judge.
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). 

-2-

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

 
-3-

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
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.

-4-

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
-5-

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
-6-

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.

______________________________