                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3398
                                  ___________

Brian J. Price,                         *
                                        *
             Appellant,                 * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
Xerox Corporation; a New York           *
corporation; SHPS, Inc., a Florida      *
corporation, also known as              *
SHPS Healthcare Services, Inc.,         *
                                        *
             Appellees.                 *
                                   ___________

                            Submitted: March 15, 2006
                               Filed: April 19, 2006
                                ___________

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

BENTON, Circuit Judge.

        Brian J. Price sued Xerox Corporation, his employer, and SHPS, Inc., the
administrator of its Long-Term Disability Income Plan. Price claimed that the Plan
itself violates the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§
1001 – 1461 (ERISA). The district court1 granted summary judgment to defendants.
Price appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

      On May 7, 2002, Price became disabled and began receiving short-term and
long-term disability benefits under the Plan. On September 30, 2003, SHPS notified
him that he was no longer medically eligible, and terminated his benefits. By the Plan,
he had 180 days to file a first-level internal appeal with SHPS to contest the denial.
He requested and received a 90-day extension, filing his first appeal on July 6, 2004.
On September 3, SHPS notified Price of its decision to uphold the termination of
benefits. In the notice, SHPS also told him that, under the Plan, he was required to file
a second-level internal appeal within 60 days.

        Price never filed a second appeal. Rather, he sued Xerox and SHPS, alleging
that the Plan violates ERISA by requiring claimants to pursue a second appeal within
60 calendar days of notification that SHPS has upheld the denial in the first appeal.2
He argued to the district court that ERISA regulations require all disability plans to
provide at least 180 days for a mandatory internal appeal of the denial, whether it is
first-level or second-level. The district court disagreed, finding the relevant ERISA
regulations inapplicable to second appeals. The court granted summary judgment to
defendants, holding that Price failed to exhaust administrative remedies under the Plan
by not pursuing the mandatory second appeal.

      This court reviews the grant of summary judgment de novo, applying the same
standards as the district court. See Young v. Pollock Eng'g Grp., Inc., 428 F.3d 786,


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
      2
        Price has never argued that the notice of his appeal rights was inadequate or
that SHPS's explanation for the denial of benefits under applicable regulations was
insufficient.
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788 (8th Cir. 2005). The district court is affirmed if, viewing the evidence most
favorably to the non-moving party, there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006).

      The only issue is whether ERISA regulations require at least 180 days for a
second internal appeal of a denial. ERISA plans must include a reasonable
opportunity to appeal from an "adverse benefit determination," to allow full and fair
review of the contested claim. 29 C.F.R. § 2560.503-1(h)(1). See also 29 U.S.C. §
1133(2). To be "full and fair," claimants must have at least 180 days after an "adverse
benefit determination" to file an administrative appeal. See 29 C.F.R. §§ 2560.503-
1(h)(3)(i), (h)(4). The regulations also permit, but do not require, plans to mandate
a second internal appeal of a denial before a claimant may sue. Id. §§ 2560.503-
1(c)(2), (d). The regulations, however, do not explicitly specify the time period for
a second internal appeal, which frames the issue in this case.

      Price contends that SHPS's decision upholding the denial in his first appeal is
an "adverse benefit determination," triggering the 180-day period for appeal. See id.
§§ 2560.503-1(h)(3)(i), (h)(4). He asserts that, because the Xerox Plan provides only
60 days for the mandatory second appeal, he is not required to exhaust administrative
remedies under the Plan before seeking judicial review. See id. § 2560.503-1(l)
(deeming administrative remedies exhausted where a plan fails to establish or follow
reasonable claims procedures).

      The regulations define an "adverse benefit determination" as:

      a denial, reduction, or termination of, or a failure to provide or make
      payment (in whole or in part) for, a benefit, including any such denial,
      reduction, termination, or failure to provide or make payment that is
      based on a determination of a participant's or beneficiary's eligibility to
      participate in a plan. . . .

                                          -3-
Id. § 2560.503-1(m)(4). The parties agree that the initial denial is an "adverse benefit
determination," mandating the 180-day period for a first appeal (which Price was
given). The parties dispute whether the definition also encompasses the decision on
the first appeal.

       The definition is unclear and, as the district court found, no case law interprets
this specific provision. However, language elsewhere in the regulations indicates that
only the initial denial of benefits is an "adverse benefit determination." Specifically,
plans shall not require "more than two appeals of an adverse benefit determination."
Id. §§ 2560.503-1(c)(2), (d). See also id. § 2560.503-1(h)(1) (requiring "a reasonable
opportunity to appeal an adverse benefit determination" affording "full and fair review
of the claim and the adverse benefit determination") (emphasis added). The use of the
singular "determination" in these regulations shows that only the initial denial is an
"adverse benefit determination," and a decision on appeal is not.

       Price asserts that the regulations consistently use the term "adverse benefit
determination on review" to describe mandatory claims procedures and the notice the
plan must give after a first appeal. See id. §§2560.503-1(f)(3) (content of notification
in plan description); 2560.503-1(h)(3)(vi)(B) (notice method); 2560.503-1(i)(1)(i)
(time period for rendering administrative decision); 2560.503-1(i)(2) (time periods for
urgent-care, pre-service, and post-service claims); 2560.503-1(i)(4) (calculation of
time period for rendering administrative decision); 2560.503-1(i)(5) (furnishing
documents that form basis of administrative decision); 2560.503-1(j) (written or
electronic notice of decision, including contents).

      The provisions Price cites do not discuss the time period for a mandatory
second appeal. The inclusion of the language "on review" differentiates the initial
"adverse benefit determination" from later internal appeals of it. Given the regulatory
language, the district court did not err in concluding that a plan administrator's

                                           -4-
affirmance of the denial in a first appeal is not an "adverse benefit determination."
Accordingly, an ERISA plan need not provide a claimant with at least 180 days to file
a mandatory second appeal.

       Although the 180-day requirement does not govern second appeals, the
regulations mandate a "reasonable opportunity for full and fair review" of an adverse
decision. See id. §§ 2560.503-1(b), (h)(2). The Plan here provides 60 days for filing
the mandatory second appeal, after notification of SHPS's decision on the first appeal.
A regulation does specify 60 days as a reasonable period to appeal the denial of
benefits under a general, non-disability ERISA plan. See id. § 2560.503-1(h)(2)(i).
While not applicable to disability plans like the Plan here, this regulation does indicate
that 60 days is a "reasonable opportunity for full and fair review."

      Price contends that 60 days is unreasonable, because it restricts new evidence
and adequate dialogue with the administrator. However, this argument ignores that
he had over 180 days to present evidence and contest the denial in the first appeal.
Price fails to show that the Plan's provision of 60 days for the second appeal is
unreasonable or otherwise does not comply with relevant ERISA regulations.

       Because Price failed to exhaust administrative remedies under the Plan, the
district court properly summary judgment to defendants. See Norris v. Citibank, N.A.
Disability Plan (501), 308 F.3d 880, 884 (8th Cir. 2002), citing Layes v. Mead Corp.,
132 F.3d 1246, 1252 (8th Cir. 1998).

      The judgment of the district court is affirmed.

                        ______________________________




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