## 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, Un ited States District Judge for the Eastern District of Missouri.

2We consider all provisions of the Plan, even those portions not included in Angevine’s pleadings, because his complain t stated that the provisions of the Plan were the grounds for his claim. Moses.co m 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’s 1 dismissal of his claim for benefits under the Employee Retirement In come Security Act (ERISA), 29 U.S.C. §§ 1101 et seq. The district court held that Angevine had faile d to exhaust his administrative remedies. Because we agr ee 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 A nheuser-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 C ontrol” provision, which makes Plan participants eligible for enhanced retiremen t benefits if their employment within the Controlled Group is “involuntarily terminated ” within three year s 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 thatABC 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 partie s 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 ema il 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 yourage on the date of the closing of the sale of BEC to Blackstone Group. . . . Am I eligible for the +5/+5 enha ncement 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, A ngevine filed an ERISA cla ss action against BEC, A-B InBev, the Plan, and State Street Bank & Trust Company, the Plan’s trustee, under 293 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 becau se the sale of BEC to Blackstone involuntarily terminated their employmen t with the Controlled Group and occurred within three years of the Change in C ontrol that had occurred when ABC was bought by InBev. Angevine sought an award of ear ly retirement benefits that included the +5/+5 enhancement, pre- and post-judgment interest dating back to December 1, 2009, an injunction requiring that hebe given the +5/+5 enhan cement in determinations of his future benefits, and various class-specific relief.

II.

The district court granted the Appell ees’ motion to dismiss on the ground that Angevine failed to exhaust hi s 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 re view 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 bri ng a civil action “to recover benefits due to him under the terms of his plan, to enfo rce 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 serv es 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 r ecord that will assist the court if judicial review is necessary, and minimizing the lik elihood 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 pursu e. Brown v. J.B. Hunt Transp. Serv., Inc. , 586 F.3d 1079, 1085 (8th Cir. 2009).

Angevine argues that repudiation constitu tes 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 benefi ciary 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 quotati on omitted). Statutory accrual, however, is a distinct question from whether the j udicially 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 atte mpt to pursue an admi nistrative remedy and the Plan administrator had not denied any si milar claims. Angevine’s sole basis for alleging futility is the email hereceived on November 27. Even if the email provides some indication of the position the Plan ad ministrator would takeif Angevine had pursued an administrative remedy, it does not show with certainty that the Plan-6- administrator would have denied Angevi ne’s claim for the +5/+5 enhancement upon either initial review or appeal.

Angevine’s allegations show that the Pl an provided him with an administrative remedy. The Plan requires that “[a]n app lication for distribution shall be a condition precedent to any distribution under this Plan” and details how to s ubmit an application for distribution. Under the Plan’s plain language, applications for any distribution, regardless of whether for curre nt or future benefits, fall within the Plan’s claims procedure. Thus, because A ngevine 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 l ack of an administrative remedy, and we conclude that he is requi red 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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