Opinion
16-1374
04-10-2017
KEVIN MCCULLOCH, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE SEIU AFFILIATES OFFICERS AND EMPLOYEES PENSION PLAN; THE SEIU AFFILIATES OFFICERS AND EMPLOYEES PENSION PLAN, Defendants-Appellees.
FOR APPELLANT: ALISSA PYRICH (with Richard S. Meisner on the brief), Jardim Meisner & Susser P.C., Florham Park, NJ. FOR APPELLEE: LAUREN P. MCDERMOTT, Mooney Green Saindon Murphy & Welch P.C., Washington, DC.
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of April, two thousand seventeen. PRESENT: JON O. NEWMAN, DENNIS JACOBS, Circuit Judges , LEWIS A. KAPLAN, District Judge , FOR APPELLANT: ALISSA PYRICH (with Richard S. Meisner on the brief), Jardim Meisner & Susser P.C., Florham Park, NJ.
Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. --------
FOR APPELLEE:
LAUREN P. MCDERMOTT, Mooney Green Saindon Murphy & Welch P.C., Washington, DC.
Appeal from a judgment of the United States District Court for the Southern District of New York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Kevin McCulloch appeals from the judgment of the United States District Court for the Southern District of New York (Gardephe, J.), granting summary judgment in favor of the SEIU Affiliates Officers and Employees Pension Plan ("the Plan") and its Board of Directors, on the ground that McCulloch failed to exhaust the Plan's internal administrative procedures before filing suit. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
The general rule is that exhaustion is required for ERISA claims. See Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993); Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989). However, we have not decided whether an exception applies when a plaintiff brings a claim premised on statutory violations and that does not require interpretation of the plan's terms. Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 102 (2d Cir. 2005) ("This circuit has not addressed the specific question whether exhaustion is required for statutory claims . . . ."). McCulloch asserts that his claim is statutory and does not require exhaustion.
His claim is not statutory. To determine whether McCulloch had the right he asserts, the district court would have needed to construe specific terms of the Plan. Because his claim is not statutory, McCulloch was required to exhaust internal administrative remedies.
Accordingly we hereby AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK