No. 98-3127EMUnited States Court of Appeals, Eighth Circuit.Submitted: March 11, 1999
Filed: March 24, 1999
On Appeal from the United States District Court for the Eastern District of Missouri.
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Counsel who presented argument on behalf of the appellant was Frank J. Niesen, Jr. of St. Louis, Missouri.
Counsel who presented argument on behalf of the appellee was Robert J. Golterman of St. Louis, Missouri. Also appearing on the brief is Christopher C. Swenson of St. Louis, Missouri.
Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
PER CURIAM.
[1] In this ERISA case, the issue is whether the employee-beneficiary failed to exhaust his administrative remedies by not filing a timely intra-plan appeal. The District Court[1] held the claim barred by failure to exhaust. We affirm. [2] Plaintiff argues exhaustion would have been futile. But no evidence to support this claim was adduced, and we are unwilling to assume futility. Plaintiff points out that he had already obtained one level of intra-plan review, and that his failure, if any, related only to a second level of intra-plan review. The law does not forbid an intra-plan appellate structure containing two levels. [3] Affirmed.[1] The Hon. Stephen N. Limbaugh, United States District Court for the Eastern and Western Districts of Missouri.
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