16-1374
McCulloch v. Board of Trustees of the SEIU Affiliates Officers and Employees Pension Plan


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                      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,

     - - - - - - - - - - - - - - - - - - - -X
     KEVIN MCCULLOCH,
              Plaintiff-Appellant,

                    -v.-                                                        16-1374

     BOARD OF TRUSTEES OF THE SEIU
     AFFILIATES OFFICERS AND EMPLOYEES
     PENSION PLAN; THE SEIU AFFILIATES
     OFFICERS AND EMPLOYEES PENSION PLAN,
              Defendants-Appellees.
     - - - - - - - - - - - - - - - - - - - -X



             *
            Judge Lewis A. Kaplan, of the United States District
     Court for the Southern District of New York, sitting by
     designation.
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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.

     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.




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     Accordingly we hereby AFFIRM the judgment of the
district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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