[Not for Publication-Not to be Cited as Precedent]

                 United States Court of Appeals

                     For the First Circuit

                                

                                







No. 98-1046



                        WALTER K. GRANT,

                                

                     Plaintiff, Appellant,

                                

                               v.

                                

          JAMES RIVER CORPORATION OF VIRGINIA, ET AL.,

                                

                     Defendants, Appellees.

                                





          APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS

                                

          [Hon. William G. Young, U.S. District Judge]

                                





                             Before

                                

                     Torruella, Chief Judge,

                 Rosenn,* Senior Circuit Judge,

                   and Stahl, Circuit Judge.

                                

                                





     Edwin J. Carr, with whom Carr & Liston was on brief for

appellant.

     David F. Dabbs, with whom McGuire, Woods, Battle & Boothe LLP,

Francis C. Lynch, Dawn Reddy Solowey, and Palmer & Dodge LLP were

on brief, for appellees.











June 22, 1998







____________________

*Of the Third Circuit, sitting by designation.  Per curiam.  Upon review of all documents in the record

(not just those before the administrative tribunal), assuming

arguendo that our review of this matter is de novo, and assuming

arguendo that plaintiff-appellant Walter K. Grant's construction of

the phrase "other regular gainful occupation" (as used in the

benefits plan at issue) is the correct one, we affirm the judgment

of the district court on the ground that there is insufficient

evidence, indeed no evidence, upon which a rational factfinder

could conclude by a preponderance of the evidence that Grant was

"totally disabled . . . from engaging in . . . any . . . regular

gainful occupation" as of the date of his termination.  The July

24, 1991 letter from Dr. Oliver upon which Grant so heavily relies

tends to establish only that Grant could not, as of that point in

time, return to his then "current work environment."  

  In affirming the lower court's judgment, we regard as

waived Grant's breach of fiduciary duty claim.  But even if Grant

had not waived this claim, the relief sought thereunder is

precluded by Massachusetts Mut. Life Ins. v. Russell, 473 U.S. 134

(1985).

  Affirmed.  Costs to appellees.