                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2051
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  Trustees of the Electricians’ Salary Deferral Plan; Trustees of the Local No. 1,
                         IBEW Pension Benefit Trust Fund

                             lllllllllllllllllllll Plaintiffs

                                           v.

                  Pamela Wright, also known as Pamela Dallas

                       lllllllllllllllllllll Defendant - Appellee

                                   Eloise Walker

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: June 14, 2012
                              Filed: August 21, 2012
                                  ____________

Before SMITH, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.
       Eloise Walker submitted a claim for benefits from the trustees of the
Electricians’ Salary Deferral Plan, a 401(k), and from the Local No. 1 IBEW Pension
Benefit Trust Fund after the death of her son, Bernard Walker, who was an electrician
and a participant in and had benefits under the 401(k) and the Pension Plan. The
Administrative Manager of the plans (Plan Administrator) denied Walker’s request
for benefits because Bernard Walker had named his cousin, Pamela Wright-Dallas
(Dallas), and not his mother, as his beneficiary under the plans. Walker alleged that
Bernard Walker lacked the requisite mental capacity to name Dallas as his beneficiary
and that he named Dallas as his beneficiary as a result of undue influence. Walker
appealed the Plan Administrator’s decision, and the administrative Appeals
Committee charged with reviewing decisions of the Plan Administrator denied
Walker an appeal hearing and simultaneously affirmed the Plan Administrator’s
decision.

      The plans’ trustees then filed an action for interpleader in the district court,1
depositing the death benefits with the court pending judicial review of the
administrative determination of benefits. The court dismissed the trustees from the
action. Subsequently, Dallas filed a cross claim against Walker and sought summary
judgment and enforcement of the administrative decision. After the court denied
Walker’s request for appointment of counsel, Walker proceeded pro se and filed an
answer to Dallas’s complaint and a response to Dallas’s motion for summary
judgment. The district court granted summary judgment in favor of Dallas.

       Walker appeals the grant of summary judgment, arguing that the district court
erred because it made a ruling without first reviewing the entire administrative record.




      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.

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In the alternative, Walker argues that the court erred by applying the wrong standard
of review.2 We affirm.

                                           I.

       “Under ERISA, when a denial of benefits is challenged through judicial review,
‘the record that was before the administrator furnishes the primary basis for review.’”
Callow v. Prudential Ins. Co. of Am., No. CO7-1247RSM, 2009 WL 1455326, at *1
(W.D. Wash. May 21, 2009) (unpublished) (quoting Kearney v. Standard Ins. Co.,
175 F.3d 1084, 1090 (9th Cir. 1999) (en banc)). See also Brown v. Seitz Foods, Inc.


      2
        Walker’s brief also argues the district court erred in denying her request for
appointed counsel. This argument is not properly before us. Walker’s notice of
appeal stated that hers was an appeal from the final ruling of the court, which in this
case was the ruling granting summary judgment in favor of Dallas. “The Federal
Rules of Appellate Procedure require a notice of appeal to ‘designate the judgment,
order or part thereof appealed from.’” Berdella v. Delo, 972 F.2d 204, 207 (8th Cir.
1992) (quoting Fed. R. App. P. 3(c)). “[T]he requirements of Rule 3 must be
satisfied, because they are jurisdictional prerequisites to review.” Schibursky v. Int’l
Bus. Machines, No. 95-3290, 1996 WL 351141, 89 F.3d 841, at *1 (8th Cir. 1996)
(unpublished per curiam). Walker notes that she was pro se at the time she filed her
appeal. We have previously stated that “[a]lthough we traditionally construe notices
of appeal liberally, particularly those of pro se litigants, an intent to appeal the
judgment in question must be apparent and there must be no prejudice to the adverse
party.” Berdella, 972 F.2d at 207-08. In this case, Walker’s intent to appeal the
court’s intermediate order declining to appoint counsel was not apparent from
Walker’s notice of appeal. Although Walker’s appeal Form A indicated Walker’s
intent to appeal the denial of counsel, Walker’s Form A was filed some eight months
after her notice of appeal, and well after the time period for appeal passed. In order
for Form A to be considered part of the notice of appeal, it must be filed within the
time constraints for the notice of appeal. See Schibursky, at *2. Accordingly, we
have no jurisdiction to review the ruling. Id.; see also Smith v. Barry, 502 U.S. 244
(1992) (where litigant’s failure to provide notice of intent to appeal prohibited the
court from entertaining the appeal).

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Disability Ben. Plan, 140 F.3d 1198, 1200 (8th Cir. 1998) (suggesting a district court
should ordinarily limit its review to the evidence contained in the administrative
record). Walker now contends that the complete administrative record was not before
the district court and that the court erred in granting summary judgment to Dallas
without the benefit of that entire record. Walker did not present this argument to the
district court.

       “[O]rdinarily, this court will not consider arguments raised for the first time on
appeal.” Wiser v. Wayne Farms, 411 F.3d 923, 926 (8th Cir. 2005) (quotation
omitted). “As such, a party cannot assert arguments that were not presented to the
district court in opposing summary judgment in an appeal contesting an adverse grant
of summary judgment.” Cole v. International Union, et al, 533 F.3d 932, 936 (8th
Cir. 2008) “We may notice plain error despite a failure to raise the issue below, but
we generally do so only to prevent a miscarriage of justice.” Id. (quotation omitted).
“Plain error is a stringently limited standard of review, especially in the civil context.”
Littrell v. Franklin, 388 F.3d 578, 587 (8th Cir. 2004) (quotation omitted). “[T]he
party claiming plain error [must] demonstrate . . . that [the alleged error] likely altered
the outcome[ ]” of the proceeding. Id. (quotation omitted).

       The district court had an extensive record before it. The only items that Walker
identifies that were not before the district court are records of Bernard Walker’s
employment and a record of his investment decisions. Walker fails to point out how
consideration of these records would have “likely altered the outcome” of this
proceeding. See id. Finding no plain error, we reject Walker’s claim that the district
court considered an inadequate record.

                                            II.

       Next, Walker argues that the district court erred in applying the abuse of
discretion standard in reviewing the initial decision of the Plan Administrator. She

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alleges the Appeals Committee did not make a decision on the merits of her claim by
not addressing the issues of mental incapacity or undue influence and instead merely
denied her a hearing, leaving the merits decision to the district court by filing the
interpleader action. “Where an ERISA plan gives the administrator discretionary
power to . . . make eligibility determinations, the administrator’s decision is reviewed
for an abuse of discretion.” Hankins v. Standard Ins. Co., 677 F.3d 830, 834 (8th Cir.
2012). However, the district court should apply a de novo standard of review, rather
than an abuse of discretion standard, when the “administrator did not exercise the
discretion granted to it.” Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 868 (8th
Cir. 2006).

      In its decision, the Appeals Committee determined the merits of Walker’s
claim. The Committee directly addressed the issues of undue influence and mental
incapacity, finding Walker had not submitted specific evidence to prove her claims.
The trustees’ choice to file an interpleader action does not preclude its eligibility
determination from being afforded an abuse of discretion review. See Alliant
Techsystems Inc., 465 F.3d at 869 (the district court should give judicial deference
toward issues the administrator did decide before filing its interpleader action)
(quotations omitted). The district court properly applied the abuse-of-discretion
standard.

                                          III.

       Finally, Walker argues that the district court should have applied a de novo
standard of review rather than an abuse of discretion standard to the Plan
Administrator’s decision because of procedural irregularities at the administrative
level. The district court should “apply heightened review . . . where the [would-be]
beneficiary can show (1) that a serious procedural irregularity existed; and (2) that the
irregularity caused a serious breach of the plan trustee’s fiduciary duty to the plan
beneficiary. The mere assertion of an apparent irregularity, without more, is

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insufficient to give rise to heightened review.” Layes v. Mead Corp., 132 F.3d 1246,
1250 (8th Cir. 1998) (internal citation omitted).

       Walker alleges the following irregularities occurred: the Appeals Committee
failed to make findings of fact; the Appeals Committee denied Walker’s request for
a hearing even though Walker indicated she had new evidence that was not before the
Plan Administrator; the Appeals Committee issued its decision to deny a hearing
simultaneously with its decision on the appeal; and the Appeals Committee failed to
advise Walker that she could obtain the administrative record.

       The first three of Walker’s allegations do not appear to be irregularities at all,
much less serious ones. First, Walker failed to demonstrate that the Appeals
Committee’s decision failed to make findings of fact. As noted, the decision
specifically found that Walker had presented insufficient evidence to support her
claims. Second, the appeal procedure expressly gave the trustees the authority to
decide whether a hearing would be held. Third, nothing in the appeal procedure
prohibited the filing of a denial of an appeal simultaneously with the denial of a
hearing.

        Walker points out that the adverse decision did not contain notice, as required
by the appeal procedure, that Walker had the right to access the full administrative
record. However “‘the mere presence of a procedural irregularity is not enough to
strip a plan administrator of the deferential standard of review.’” Menz v. Procter &
Gamble Health Care Plan, 520 F.3d 865, 869 (8th Cir. 2008) (citation omitted). For
a less deferential standard of review to apply, Walker must demonstrate a “serious
procedural irregularity caused a serious breach of [the Plan’s] fiduciary duty.” Torres
v. UNUM Life Ins. Co. of Am., 405 F.3d 670, 679 (8th Cir. 2005). Additionally, the
heightened standard is only warranted where the procedural irregularity has a
“‘connection to the substantive decision reached.’” See Wade v. Aetna Life Ins. Co.,
No. 11-3295, __ F. 3d __, __, 2012 WL 3000661, at *1 (8th Cir. July 24, 2012)

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(quoting Menz, 520 F.3d at 869). Walker has offered no evidence that the Plan
Administrator breached its fiduciary duty to Walker nor has she demonstrated that the
Appeals Committee’s failure to notify Walker of her right to access the administrative
record was connected to the Committee’s ultimate decision. The procedure required
that the notice be included with the adverse decision, not given before the decision
was issued. The heightened standard of review “is not warranted in situations such
as this, where the procedural irregularities had no ‘connection to the substantive
decision reached.’” Id. (quoting Menz, 520 F.3d at 869).

                                         IV.

      For the foregoing reasons, we affirm.
                      ______________________________




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