02-1074 Zhou v. Guardian Life Ins. Co. of America

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“Zhou admits that he did not exhaust his administrative remedies and pursue further administrative appeals of the partial denial of his claim. Perhaps in an effort to cure this defect, Zhou now claims that he was excused from exhaustion by the alleged futility of further appeal. There is indeed an exception to the exhaustion requirement when further administrative appeal is futile. See Lindeman v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996). However, for a party to come within the futility exception, he ‘must show that it is certain that [his] claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision.’ Id. Save for bald allegations and conclusory statements, Zhou has proffered no facts that would lead this court to find that it was a certainty that further administrative appeal would result in a denial of his claim. When a party has proffered no facts indicating that the review procedure that he initiated will not work, the futility exception does not apply. See, e.g., Talamine v. Unum Life Ins. Co. of America, 803 F. Supp. 198, 201 (N.D. Ill. 1992).”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Flaum, J.