                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                                                         U.S. COURT OF APPEALS
                        ________________________           ELEVENTH CIRCUIT
                                                             September 24, 2008
                               No. 07-14752                 THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                 D.C. Docket No. 01-01077-CV-1-MEF-SRW

ROBBIN CROMER-TYLER, M.D.,

                                                       Plaintiff-Appellee-
                                                       Cross Appellant,

                                    versus

EDWARD R. TEITEL, M.D., P.C., and
Edward R. Teitel, individually and as Plan Administrator
of the Edward R. Teitel, M.D., P.C. Profit Sharing Plan and
Trust, and Edward R. Teitel, M.D., P.C., Money Purchase Pension Plan,

                                                       Defendants-Appellants-
                                                       Cross Appellees.

                         ________________________

                 Appeals from the United States District Court
                     for the Middle District of Alabama
                        ________________________

                             (September 24, 2008)

Before TJOFLAT, BLACK and COX, Circuit Judges.

PER CURIAM:
                                  I. Background

      Dr. Robbin Cromer-Tyler worked as a physician for Edward R. Teitel,

M.D., P.C. (“The Professional Corporation”) from 1994 to 1997. During her

employment with The Professional Corporation, Cromer-Tyler became a

participant in the Edward R. Teitel, M.D., P.C. Profit Sharing Plan (“Profit

Sharing Plan”) and the Edward R. Teitel, M.D., P.C. Money Purchase Pension

Plan (“Money Purchase Plan”). Dr. Teitel, the sole shareholder of The

Professional Corporation, was administrator of both the Profit Sharing Plan and

the Money Purchase Plan.

      Olde Discount Corporation, the custodian for the accounts under the Profit

Sharing Plan and the Money Purchase Plan, began sending Cromer-Tyler

statements for both plans shortly after her employment with The Professional

Corporation ended. Cromer-Tyler then learned that other employees of The

Professional Corporation had received instructions on the procedure for obtaining

distributions from both plans. Cromer-Tyler contacted Olde Discount Corporation

to obtain information about distributions. Olde Discount Corporation directed her

to address her inquiries to Teitel, who, on September 10, 1998, informed Cromer-

Tyler by letter that she had no vested account balance in either plan and was not

entitled to any distributions. On September 28, 1998, Cromer-Tyler’s attorney

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wrote a letter to Teitel asking him to provide certain documents and vesting

schedules for both retirement plans. In November of 1998, Teitel sent Cromer-

Tyler a copy of a prototype profit sharing plan and an Adoption Agreement for the

Profit Sharing Plan.

      Cromer-Tyler sued pursuant to ERISA, claiming that because she is a

participant in the Profit Sharing Plan and Money Purchase Plan, she is entitled to

statutory penalties for Teitel’s failure to provide her with the documents requested

on September 28, 1998, distributions of the entire account balances in the Plans,

and attorney’s fees. The suit was brought against Teitel both individually and as

Administrator for the Plans, and against Teitel’s Professional Corporation.

      The district court dismissed on summary judgment Cromer-Tyler’s claim for

distribution under the Profit Sharing Plan, holding that Cromer-Tyler did not

exhaust her administrative remedies. The district court refused to dismiss the

claim based on the Money Purchase Plan, however, holding that since no

documentation regarding the plan was ever sent to Cromer-Tyler, and accordingly

no opportunity provided for meaningful access to the Money Purchase Plan’s

review procedures, the exhaustion requirement was excused.




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      Following a bench trial, the district court entered judgment in favor of

Cromer-Tyler on her claim for statutory penalties based on Teitel’s failure to

respond to her request for Money Purchase Plan documentation, and on her claim

for a distribution of the account balance in the Money Purchase Plan.

Additionally, the district court awarded attorney’s fees to Cromer-Tyler.

      Teitel appeals both the judgment following the bench trial and the award of

attorney’s fees. Cromer-Tyler cross-appeals the dismissal of her claim for a

distribution under the Profit Sharing Plan. For the reasons discussed below, we

affirm the judgment following the bench trial and the award of attorney’s fees, and

reverse the dismissal of Cromer-Tyler’s claim for a distribution under the Profit

Sharing Plan.

                                   II. Discussion

A.    The district court properly excused the exhaustion requirement for Cromer-
      Tyler’s claim for a distribution of assets in the Purchase Money Plan.


      Teitel first argues that there is no statutory exception to the exhaustion

requirement which is applicable here, and so the district court clearly abused its

discretion in excusing the exhaustion requirement for the Purchase Money Plan.

We disagree. Teitel, who controlled the Money Purchase Plan’s administrative

review procedures, denied Cromer-Tyler meaningful access to those review

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procedures, and so the district court properly excused the requirement that

Cromer-Tyler exhaust her administrative remedies before filing suit.

B.    Cromer-Tyler’s request for documents was sufficiently specific to constitute
      a request under 29 U.S.C. § 1024(b)(4).


      Teitel next argues Cromer-Tyler’s request for plan documents was not

specific enough to be cognizable as a request under 29 U.S.C. § 1024(b)(4). This

argument is without merit, as is Teitel’s contention that he provided Cromer-Tyler

with all required documents.

C.    The district court did not err in imposing the statutory penalty provided for
      in 29 U.S.C. § 1132(c)(1) on Teitel personally.


      Teitel next argues that the district court erred in imposing on him personally

the penalty provided for in 29 U.S.C. § 1132(c)(1). We disagree.

      Under ERISA, a plan administrator, upon the request of a participant, is

required to furnish a participant a “summary, plan description, and the latest

annual report, any terminal report, the bargaining agreement, trust agreement,

contract, or other instruments under which the plan is established or operated.” 29

U.S.C. § 1024(b)(4). If an administrator fails to provide information he is required

by the statute to furnish upon request, the district court, in its discretion, may hold




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the administrator “personally liable” to the participant in an amount up to $110 a

day. 29 U.S.C. § 1132(c)(1); 29 C.F.R. § 2575.502c-1.

      On September 28, 1998, Cromer-Tyler sent a letter to Teitel asking for the

plan agreements, vesting information, and documentation of IRS approval of the

plans. Teitel did not furnish any documentation relating to the Money Purchase

Plan until April 21, 2003, some four and a half years after Cromer-Tyler requested

it. The statute plainly requires an administrator to furnish a participant such as

Cromer-Tyler the information she requested. The statute plainly permits a district

court to impose the penalty on the administrator personally if he fails to furnish

such information when requested.

      Teitel cites no case law which suggests a different understanding of the

statute. The cases in Teitel’s brief deal with the imposition of liability on a

corporate shareholder or officer who is not the plan administrator, or the

imposition of 29 U.S.C. § 1132(c)(1) penalties on an administrator for violations

of duties imposed on the plan and not the administrator, and so are inapposite

here. We hold the district court did not err in imposing the penalty on Teitel

personally.

D.    The district court did not err in awarding attorney’s fees.



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      Teitel next argues that the district court erred in awarding attorney’s fees.

We disagree. The district court did not abuse its discretion in analyzing whether

an award of attorney’s fees is proper under the five factors found in Iron Workers

Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980). There is ample evidence

in the record to support the district court’s award of attorney’s fees.

E.    The district court did err in dismissing Cromer-Tyler’s claim for a
      distribution under the Profit Sharing Plan.


      Cromer-Tyler cross-appealed the district court’s dismissal of her claim

under the Profit Sharing Plan. Cromer-Tyler argues that because Teitel’s letter

informing her that all her benefits under the Profit Sharing Plan were terminated

was inadequate, the district court should have remanded her claim to the plan

administrator so that she could make an out-of-time appeal. We agree.

      The appropriate remedy for an inadequate benefits determination letter is

"remand to the plan administrator for an out-of time administrative appeal.”

Counts v. Am. Gen. Life and Accident Ins. Co., 111 F.3d 105, 108 (11th Cir.

1997). For a benefit determination letter to be adequate, it must contain the

specific reason for the determination, reference to the specific plan provisions on

which the determination is based, and a description of the plan's procedures for



                                           7
review of the claim and the applicable time limits. 29 U.S.C. § 1133; 29 C.F.R. §

2560.503-1(g).

      In this case, Teitel's September 10, 1998 letter to Cromer-Tyler notifying

her that she was not vested in the Profit Sharing Plan and accordingly had no

rights under it was an inadequate benefits determination letter. It provided a

determination of benefits without stating a specific reason for the determination.

It did not specify the particular provision on which the determination was based.

Finally, it did not describe the procedures necessary to review the claim. Teitel

argues he then supplemented this letter with a copy of the Profit Sharing Plan,

which contained the proper review procedures, and so the determination letter was

adequate. At a minimum, however, the benefit determination letter still did not

specify the reason for the determination, nor did it specify the precise provisions

upon which the determination was based, as required by statute. Accordingly, the

benefit determination letter was inadequate.

      Teitel argues next that even if the letter he provided was inadequate, remand

is only appropriate if the letter is an adequate determination of benefits after a

claim has been made, and since Cromer-Tyler made no claim here, remand is

inappropriate. In this case, Cromer-Tyler asked both the custodian of the Plans

and Teitel for information which would allow her to request a distribution under

                                           8
the Plans. Teitel cannot avoid the statutory and regulatory requirements of a

benefit determination letter merely by preemptively terminating the benefits of

participants who are attempting to obtain the information necessary to make a

claim, then refusing to answer correspondence requesting more information.

      Because Teitel's benefit determination letter was inadequate, the district

court should have remanded the case for Cromer-Tyler to appeal her claim for a

distribution under the Profit Sharing Plan before the plan administrator.

                                   III. Conclusion

      For the reasons discussed above, we affirm the judgment following the

bench trial and the award of attorney’s fees, reverse the district court’s dismissal

of Cromer-Tyler’s claim for a distribution under the Profit Sharing Plan, and

remand to the district court for proceedings consistent with this opinion.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




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