                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3803
                                  ___________

Barbara Brown,                          *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
J.B. Hunt Transport Services, Inc.,     *
                                        *
             Defendant/Appellee,        *
                                        *
Prudential Insurance Company            *
of America,                             *
                                        *
             Intervenor Defendant/      *
             Appellee.                  *
                                    __________

                            Submitted: September 22, 2009
                               Filed: November 17, 2009
                                ___________

Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

      Barbara Brown (Brown) hurt her knee while working as a truck driver for J.B.
Hunt Transport Services, Inc. (Hunt). Prudential Insurance Company of America
(Prudential), which insured Hunt’s employee welfare benefits plan (Plan),
discontinued Brown’s long-term disability (LTD) benefits and ignored her requests
for information about its decision. Brown sued Hunt and Prudential under ERISA1
for reinstatement of her LTD benefits and penalties, but the district court held she
failed to exhaust her administrative remedies and dismissed her lawsuit. Because we
hold Prudential failed to afford Brown a reasonable opportunity for a full and fair
review of Prudential’s decision to discontinue her LTD benefits, we affirm in part,
reverse in part, and remand for further proceedings.

I.    BACKGROUND
      A.     Prudential Discontinues Brown’s LTD Benefits
      Brown worked for Hunt as a truck driver and enrolled in the Plan. Hunt
sponsored the Plan and served as plan administrator. Pursuant to a group insurance
contract with Hunt, Prudential insured the Plan and served as claims administrator.
Prudential, not Hunt, was responsible for processing claims, determining eligibility,
and paying benefits under the Plan.

       In August 2005, Brown stopped working for Hunt due to neck, back, and left
knee pain. She made a claim for LTD benefits under the Plan. In September 2005,
Prudential awarded Brown LTD benefits based upon her left knee condition.
Prudential found Brown met the Plan’s definition of “disabled,” i.e., “unable to
perform the material and substantial duties of [one’s] regular occupation due to . . .
injury.” Brown was a lifelong trucker, and her knee pain made it impossible for her
to continue driving a truck.

        In June 2007, Prudential discontinued Brown’s LTD benefits. The Plan’s
definition of “disabled” changes after the first year of payments. The Plan states:
“After 12 months of payments, you are disabled when Prudential determines that due
to the same . . . injury, you are unable to perform the duties of any gainful occupation


      1
      Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461,
as amended.

                                          -2-
for which you are reasonably fitted by education, training or experience.” Prudential
determined that, even though Brown’s knee pain prevented her from returning to work
as a truck driver, there were other jobs she could perform.

       Prudential informed Brown it had “obtain[ed] and review[ed] information”
about her “medical condition,” “daily activities,” and “education, experience, and
other occupations [she] would be qualified to perform.” Prudential explained that,
“[b]ased on [its] clinical reviews, the medical documentation supports that [Brown
had] sedentary work capacity and [was] limited to lifting up to ten pounds, stooping
and bending [was] generally to be avoided, and sitting and standing [could] be
alternated as needed.” Prudential indicated one of its vocational rehabilitation
specialists had determined Brown was employable as a semiconductor bonder, a
surveillance system monitor, a food checker, or an assembler.

       Prudential notified Brown of her right to an internal administrative appeal of
its decision “in writing . . . within 180 days.” Prudential required any appeal to state
the reasons for disagreeing with its decision and to contain supporting evidence,
including: “[c]opies of therapy treatment notes,” “[a]ny additional treatment records
from physicians,” “[a]ctual test results,” and “any other written comments, documents,
records, or information related to [her] claim.” Prudential informed Brown of her
concomitant right “to receive, upon request and free of charge, reasonable access to,
and copies of, all documents, records and other information relevant to [her] claim.”

      B.     Brown Requests Information from Prudential and Hunt
      In June 2007, Brown called Prudential and indicated she wanted to appeal. One
of Prudential’s representatives told Brown she needed to explain in writing why she
disagreed with Prudential’s decision, but Brown never did so. Instead, Brown
requested a copy of the Plan from Prudential and, through her attorney, sent Hunt and
Prudential a series of letters requesting a wide variety of information. Brown asked
Hunt for copies of all employee welfare or pension plans in which she had enrolled

                                          -3-
and copies of all summary plan descriptions, annual reports, and amendments thereto.
Brown asked Prudential for a copy of the Plan and a complete copy of the
Administrative Record. Brown also requested Prudential provide her all Plan
documents, internal guidelines, and administrative precedents upon which Prudential
had relied when deciding to discontinue her LTD benefits, as well as the names and
addresses of all individuals who reviewed her personal health information.

       At Prudential’s request, Hunt sent Brown a copy of the Plan’s summary plan
description and “Wrap” document, a description of the various benefits available to
Hunt employees. Hunt sent Brown copies of summary plan descriptions and benefit
booklets for every plan in which she had enrolled while working for Hunt. Prudential
otherwise ignored Brown’s requests. Thereafter, Brown sent Prudential another letter
through her attorney, in which she demanded a response within ten days. Absent a
response, Brown stated she would “assume [Prudential had] no intention of
responding to [her] letter, and [would] take appropriate action.” Prudential again
failed to respond to Brown’s request for information.

       In January 2008, Brown’s attorney called Prudential and asked whether Brown
had filed an administrative appeal. Prudential informed Brown’s attorney that Brown
had not filed a written appeal. Prudential contends Brown’s deadline for filing such
an appeal expired in late November 2007.

      In February 2008, Brown’s attorney reminded Hunt he had “previously
requested certain documents from Hunt, but . . . did not receive certain information.”
Brown’s attorney requested all relevant documents under the pertinent regulations,
“including but not limited to claims manuals.” On March 21, 2008, Hunt mailed the
Administrative Record to Brown.2 Hunt did not send any claims manuals.



      2
       The same attorney represented Prudential and Hunt in the district court.

                                         -4-
C.     Relevant Prior Proceedings
       In April 2008, Brown filed a two-count amended complaint against Hunt and
Prudential in the district court.3 In Count I, Brown sought an order reinstating her
LTD benefits under the Plan and awarding her back benefits. See 29 U.S.C.
§ 1132(a)(1)(B). In Count II, Brown sought statutory penalties for the failures of Hunt
and Prudential to respond to her requests for information. See id. § 1132(c). The
district court dismissed both counts after Hunt and Prudential filed a series of motions
for summary judgment.

      The district court dismissed Count I because Brown did not file a written
administrative appeal of Prudential’s decision to discontinue her LTD benefits. The
court held Brown did not exhaust her administrative remedies. The court reasoned
there was no substantial compliance exception to ERISA’s exhaustion requirement
and the futility exception did not apply.

       The district court dismissed Count II as to Prudential because § 1132(c) only
governs the conduct of plan administrators. The court rejected Brown’s argument that
Prudential was the Plan’s de facto plan administrator. The court dismissed Count II
as to Hunt because Hunt could not be held liable for any failure to provide Brown with
claims manuals. The court reasoned a claims manual is not an “instrument,” 29
U.S.C. § 1024(b), and a plan administrator cannot be held liable for penalties under
§ 1132(c) for a violation of the regulations to § 1133. The court denied Brown’s


      3
        In December 2007, Brown filed a one-count complaint against Hunt in state
court. Hunt removed the complaint to the federal district court, which later granted
Prudential leave to intervene because it was uncontroverted Prudential, as claims
administrator, was liable to pay benefits were Brown found to be disabled. The
district court and the parties have proceeded on the assumption that Hunt and
Prudential are both defendants in this case even though Brown did not list Prudential
as a defendant in the amended complaint. As an intervenor, volunteer or assumed
party, we accept Prudential as a real party in interest now included in this case.

                                          -5-
motion under Federal Rule of Civil Procedure 56(f) to conduct discovery concerning
whether Hunt possessed any claims manuals.

II.    DISCUSSION
       A.    Standard of Review
       Brown appeals the district court’s grant of the defendants’ motions for summary
judgment and the denial of her Rule 56(f) motion. We review the district court’s grant
of the motions for summary judgment de novo. See Hutson v. Wells Dairy, Inc., 578
F.3d 823, 825 (8th Cir. 2009).4 Summary judgment is appropriate only if there are no
genuine issues of material fact and Hunt and Prudential are entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56; Eisenrich v. Minneapolis Retail Meat Cutters
& Food Handlers Pension Plan, 574 F.3d 644, 647 (8th Cir. 2009). We view the
evidence in the light most favorable to the nonmoving party, Brown, and afford her
all reasonable inferences. See id.; Weitz Co. v. Lloyd’s of London, 574 F.3d 885, 892
(8th Cir. 2009). “We review for abuse of discretion the district court’s denial of a
Rule 56(f) continuance, upholding the decision if the nonmoving party was not
deprived of a fair chance to respond to the summary judgment motion.” Rakes v. Life
Investors Ins. Co. of Am., 582 F.3d 886, 893 (8th Cir. 2009) (citations omitted).




      4
        The parties apparently agree we also should review de novo the underlying
issue of whether Brown was required to exhaust her administrative remedies. See,
e.g., Kinkead v. Sw. Bell Corp. Sickness & Accident Disability Benefit Plan, 111 F.3d
67, 68 (8th Cir. 1997); Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 107 (2d Cir.
2003). But see Zhou v. Guardian Life Ins. Co. of Am., 295 F.3d 677, 679 (7th Cir.
2002) (reviewing for an abuse of discretion); Perrino v. S. Bell Tel. & Tel. Co., 209
F.3d 1309, 1315 (11th Cir. 2000) (reviewing for “only a clear abuse of discretion”);
Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483
(9th Cir. 1995) (reviewing for an abuse of discretion).

                                         -6-
       B.    Count I—Claim for Benefits
       Brown contends the district court erred in dismissing Count I, her claim for
LTD benefits under § 1132(a). Brown maintains she was not required to exhaust her
administrative remedies because it was “futile” to do so.5 Brown stresses Prudential’s
repeated failures to provide her with the Administrative Record and the other
documents she requested would have forced “an appeal in the blind.” Prudential and
Hunt maintain Brown’s failure to file a written appeal is fatal to Count I. Hunt argues
it cannot be held liable on Count I in any event, because it is the plan administrator
and not the claims administrator.

           1.    Exhaustion of Administrative Remedies
      ERISA’s exhaustion requirement finds its genesis in 29 U.S.C. § 1133, which
provides:

      In accordance with regulations of the Secretary [of Labor], every
      employee benefit plan shall—

      (1) provide adequate notice in writing to any participant . . . whose claim
      for benefits under the plan has been denied . . . , [and]

      (2) afford a reasonable opportunity to any participant whose claim for
      benefits has been denied for a full and fair review by the appropriate
      named fiduciary of the decision denying the claim.

       On its face, § 1133 only imposes an affirmative duty upon ERISA-governed
plans to provide plan participants with appropriate notice and review—it “does not
contain an express requirement that employees exhaust contractual remedies prior to
bringing suit.” Wert v. Liberty Life Assurance Co. of Boston, 447 F.3d 1060, 1062
(8th Cir. 2006) (citing Conley v. Pitney Bowes, 34 F.3d 714, 716 (8th Cir. 1994)).


      5
       Brown also argues she substantially complied with ERISA’s exhaustion
requirement. We need not reach this argument.

                                         -7-
Nonetheless federal courts have universally construed § 1133 to require exhaustion.
See id. at 1062-63; Kinkead v. Sw. Bell Corp. Sickness & Accident Disability Benefit
Plan, 111 F.3d 67, 68 (8th Cir. 1997) (stating “Federal courts . . . have uniformly
concluded” exhaustion is required under ERISA); see, e.g., Midgett v. Wash. Group
Int’l Long Term Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009) (recognizing,
“‘[i]n this circuit, benefit claimants must exhaust . . . before bringing claims for
wrongful denial to court’” (quoting Galman v. Prudential Ins. Co. of Am., 254 F.3d
768, 770 (8th Cir. 2001)). “‘Where a claimant fails to pursue and exhaust
administrative remedies that are clearly required under a particular ERISA plan, [her]
claim for relief is barred.’” Id. (quoting Layes v. Mead Corp., 132 F.3d 1246, 1252
(8th Cir. 1998)).

       This judicially created exhaustion requirement “serves important purposes.”
Back v. Danka Corp., 335 F.3d 790, 792 (8th Cir. 2003). “It enables an employer, or
its plan, to obtain full information about a claim for benefits, to compile an adequate
record, and to make a reasoned decision.” Id. “The process is of substantial benefit
to reviewing courts, because it gives them a factual predicate upon which to proceed.”
Id.

        The exhaustion requirement is not absolute. When an ERISA-governed plan
fails to comply with its antecedent duty under § 1133 to provide participants with
notice and review, aggrieved participants are not required to exhaust their
administrative remedies before filing a lawsuit for benefits under § 1132(a). See
Wert, 447 F.3d at 1064 (concluding prior cases recognized “exhaustion was not
required when notice in compliance with a plan was not provided to a claimant . . .
or when the available review procedures neither complied with ERISA’s fiduciary
review requirements nor applied to the specific claimants”); see, e.g., Back, 335 F.3d
at 792 (holding claimant was not required to exhaust when the plan failed to provide
notice). Nor are plan participants required to exhaust if doing so would prove futile.
See Union Pac. R.R. Co. v. Beckham, 138 F.3d 325, 332 n.4 (8th Cir. 1998)

                                         -8-
(recognizing the futility exception in the context of the accrual of an ERISA action);
Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 402 (7th Cir. 1996) (declaring
“[a] plaintiff’s failure to exhaust administrative remedies is excused . . . where
exhaustion of internal remedies would be futile”).

               2.     Analysis
        At first glance, Brown’s attempt to except her case from ERISA’s exhaustion
requirement would appear to fail. Brown mistakenly labels her argument as a
“futility” argument. The futility exception is narrow—the plan participant “‘must
show that it is certain that [her] claim will be denied on appeal, not merely that [she]
doubts that an appeal will result in a different decision.’” Zhou v. Guardian Life Ins.
Co. of Am., 295 F.3d 677, 680 (7th Cir. 2002) (quoting Lindemann v. Mobile Oil
Corp., 79 F.3d 647, 650 (7th Cir. 1996)). Because Brown has not proffered any facts
to show Prudential certainly would have denied her claim had she given Prudential
written notice of her intention to appeal, the futility exception is inapplicable here.

       We must take care, however, to refrain from focusing on the facial label Brown
places upon her argument while ignoring its substance. See, e.g., Wardair Can., Inc.
v. Fla. Dep’t of Revenue, 477 U.S. 1, 5-6 (1986) (considering the substance of
preemption argument despite the parties’ failure to label it properly); Liquidation
Comm’n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1350 (11th Cir.
2008) (similar); United States v. Wheeler, 330 F.3d 407, 413 (6th Cir. 2003) (similar).
Although couched in terms of “futility,” the gravamen of Brown’s argument in the
district court and this court is simply this: Prudential’s failure to comply with its duty
under § 1133 to afford Brown “a reasonable opportunity . . . for a full and fair review”
excuses her failure to exhaust. More specifically, Brown argues Prudential’s failure
to respond to her requests for the Administrative Record and other documents
absolves Brown’s failure to file a timely written appeal of Prudential’s decision to
discontinue her LTD benefits. We choose to analyze the substance, and not the label,
of Brown’s debate.

                                           -9-
       When stripped of its “futility” label, Brown’s argument is a winner. Prudential’s
failure to comply with its duty under § 1133(2) to provide Brown with “a reasonable
opportunity . . . for a full and fair review” of Prudential’s decision to discontinue her
LTD benefits excuses Brown’s failure to exhaust before bringing suit under § 1132(a).
Without the Administrative Record and other requested documents in hand, Brown
was unable fully and fairly to prepare her appeal.

       One of the purposes of § 1133 is to provide claimants with sufficient
information to prepare adequately for any further administrative review or for an
appeal to the federal courts. See DuMond v. Centex Corp., 172 F.3d 618, 622 (8th
Cir. 1999); Richardson v. Cent. States, Se. & Sw. Areas Pension Fund, 645 F.2d 660,
665 (8th Cir. 1981) (stating § 1133 and its regulations “were intended to help
claimants process their claims efficiently and fairly”). To the extent the statute is
ambiguous, § 1133’s disclosure requirements should be construed broadly, because
ERISA is remedial legislation and should be liberally construed to effectuate
Congress’s intent to protect plan participants. See Starr v. Metro Sys., Inc., 461 F.3d
1036, 1040 (8th Cir. 2006).

       Prudential’s failures to respond deprived Brown of sufficient information to
prepare adequately for further administrative review or an appeal to the federal courts.
Brown did not know the identity of critical persons, including the medical and
vocational experts who determined she was not disabled and who calculated her
residual functional capacity. See, e.g., Lafleur v. La. Health Serv. and Indem. Co.,
563 F.3d 148, 156 (5th Cir. 2009) (holding an insurance company denied a claimant
full and fair review in part because it did not identify the board certified urologist
“whose advice was obtained on behalf of the plan in connection with [claimant’s]
adverse benefit determination”). Brown did not have access to Prudential’s
methodologies or reports. She had no opportunity to challenge Prudential’s bald
assertion she had the residual functional capacity to work as a semiconductor bonder,
a surveillance system monitor, a food checker, or an assembler. Cf. Grossmuller v.

                                          -10-
Int’l Union, United Auto., Aero. & Agric. Implement Workers of Am., UAW, Local
813, 715 F.2d 853, 858 n.5 (3d Cir. 1983) (identifying “the persistent core
requirements” of full and fair review as including “knowing what evidence the
decision-maker relied upon” and “having an opportunity to address the accuracy and
reliability of that evidence”).

       It must be emphasized the Plan required Brown to do much more than simply
file a written notice of appeal to exhaust her administrative remedies. Brown was
required to (1) state the reasons why she disagreed with Prudential’s decision;
(2) provide medical evidence or other information to support her position, such as
copies of her treatment notes and medical test results; and/or (3) submit other written
comments, documents, records, or information related to her claim. In other words,
unlike a court of law, Brown was required to mount a detailed challenge to
Prudential’s decision at the moment she appealed. Yet Prudential deprived Brown of
meaningful information necessary to do so.

      The Supreme Court has stressed “[t]he relevant regulations . . . establish
extensive requirements to ensure full and fair review of benefit denials.” Aetna
Health Inc. v. Davila, 542 U.S. 200, 220 (2004) (citing 29 C.F.R. § 2560.503-1). We
have characterized these regulations, including 29 C.F.R. § 2560.503-1, as “‘set[ting]
forth minimum requirements for employee benefit plan procedures pertaining to
claims for benefits.’” Midgett, 561 F.3d at 893 (quoting 29 C.F.R. § 2560.503-1(a)).
Prudential violated § 2560.503-1(h)(2)(iii) and (3)(iv) when it ignored Brown’s
repeated requests for relevant information.

      Under § 2560.503-1(h)(2)(iii), a plan only provides a claimant with a full
      and fair review of a claim and adverse benefit determination if “the
      claims procedures . . . [p]rovide that [the] claimant shall be provided,
      upon request and free of charge, reasonable access to, and copies of, all
      documents, records, and other information relevant to the claimant’s
      claim for benefits.”

                                         -11-
Midgett, 561 F.3d at 894. Subparagraph 2560.503-1(h)(3)(iv), in turn, requires plans
to “[p]rovide for the identification of medical or vocational experts whose advice was
obtained on behalf of the plan in connection with a claimant’s adverse benefit
determination, without regard to whether the advice was relied upon in making the
benefit determination.”

       Prudential offers no explanation for ignoring Brown’s repeated requests for
information. Prudential opines Brown may have possessed most of the documents in
the Administrative Record, but it remains undisputed Brown did not have access to
the entire Administrative Record or identification of the medical and vocational
experts, and did not know the particular bases for Prudential’s decision to discontinue
her LTD benefits. Cf. Midgett, 561 F.3d at 894-96 (holding claims administrator
complied with the regulations, where the claimant “concede[d] that she received
copies of her administrative record following [the plan administrator’s] initial denial
of her short-term disability claim,” and abrogating in part Abram v. Cargill, Inc., 395
F.3d 882 (8th Cir. 2005)); DuMond, 172 F.3d at 623 (deciding the participant had a
reasonable opportunity for full and fair review in part because the claims administrator
“informed [her] each time of the reasons for [its] decision” to deny benefits). “Full
and fair review includes the right to review all documents, records, and other
information relevant to the claimant’s claim for benefits, and the right to an appeal
that takes into account all comments, documents, records, and other information
submitted by the claimant relating to the claim.” Midgett, 561 F.3d at 893 (quoting
Abram, 395 F.3d at 886) (emphasis added).

      In sum, Prudential denied Brown a reasonable opportunity for full and fair
review. Because Prudential violated § 1133(2), Brown was not required to exhaust
her administrative remedies under the facts of this case. Cf. Kinkead, 111 F.3d at 70.




                                         -12-
              3.     Remedy
       The appropriate remedy for Prudential’s violation of § 1133(2) is not an award
of benefits from this court. Rather, we reverse and remand this case to the district
court with instructions to remand to Prudential for an out-of-time appeal. See, e.g.,
Abram, 395 F.3d at 888 (remanding to the district court for remand to the plan
administrator with instructions to reopen the administrative record); LaFleur, 563 F.3d
at 157 (concluding a remand to the plan administrator is “usually the appropriate
remedy”); Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 630 (2d Cir. 2008)
(similar); Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309, 1317-18 (11th Cir. 2000)
(similar); Syed v. Hercules Inc., 214 F.3d 155, 162 (3d Cir. 2000) (Alito, J.) (holding
“the remedy for a violation of [§ 1133] is to remand to the plan administrator so the
claimant gets the benefit of a full and fair review”); accord Love v. Dell, Inc., 551
F.3d 333, 338 & n.6 (5th Cir. 2008) (observing “failures to provide ‘full and fair
review’ . . . do not usually lead to a claim for damages”).6 The district court shall
retain jurisdiction over Count I as to Prudential until such time as the district court
determines Brown’s claim for LTD benefits is fully resolved. See, e.g., Maida v. Life
Ins. Co. of N. Am., 949 F. Supp. 1087, 1093-94 (S.D.N.Y. 1997). We express no
view as to the merits of Brown’s claim for LTD benefits. Cf. Borntrager v. Cent.
States, Se. & Sw. Areas Pension Fund, 425 F.3d 1087, 1090, 1092-93 (8th Cir. 2005)



      6
        We note Brown did not file a cross-motion for summary judgment in the
district court. Because relevant facts are undisputed and complete, remand to the
district court would only further delay the ultimate disposition of Brown’s claim for
LTD benefits. See 28 U.S.C. § 2106 (providing circuit courts of appeals the power
to “reverse any judgment . . . of a court lawfully brought before it for review” and to
“remand the cause and direct the entry of such appropriate judgment . . . as may be
just”); Dewitt Constr. Inc. v. Charter Oak Fire Ins. Co., 307 F.3d 1127, 1135 n.6 (9th
Cir. 2002) (granting summary judgment to nonmovant on appeal even though
nonmovant did not file cross-motion for summary judgment in the district court); New
Eng. Health Care Employees Union, Dist. 1199 v. Mt. Sinai Hosp., 65 F.3d 1024,
1030 (2d Cir. 1995) (same).

                                         -13-
(explaining we ordinarily lack jurisdiction over an order remanding a case to an
ERISA plan administrator for further proceedings).

       We affirm the district court’s dismissal of Count I as to Hunt, because Hunt, as
plan administrator, is not the proper defendant for an award of benefits under the Plan.
See, e.g., Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 438 (6th Cir. 2006)
(affirming district court’s decision to dismiss a plan administrator as a defendant).
ERISA only provides Brown with a cause of action “to recover benefits due to [her]
under the terms of [the Plan].” 29 U.S.C. § 1132(a)(1)(B). It is undisputed the Plan
requires Prudential, not Hunt, to pay LTD benefits to Brown if she is disabled.

     C.     Count II—Claim for Penalties
     The district court correctly dismissed Count II. Neither Prudential nor Hunt
may be held liable under 29 U.S.C. § 1132(c).

              1.     Prudential
       Section 1132(c) authorizes the district court to impose statutory penalties upon
a plan administrator if the plan administrator “fails or refuses to comply with a request
for any information which such administrator is required by this subchapter to furnish
to a participant.” 29 U.S.C. § 1132(c)(1)(B). Prudential may not be held liable for
statutory penalties because § 1132(c) only provides a cause of action against plan
administrators. See Ross v. Rail Car Am. Group Diability Income Plan, 285 F.3d 735,
743-44 (8th Cir. 2002) (affirming the district court’s dismissal of a § 1132(c) claim
against the claims administrator because § 1132(c) only provides a cause of action
against plan administrators); Krauss, 517 F.3d at 631 (same); VanderKlok v.
Provident Life & Accident Ins. Co., 956 F.2d 610, 618 (6th Cir. 1992) (same). Hunt,
not Prudential, is the plan administrator. See 29 U.S.C. § 1002(16)(A). Governing
precedent forecloses Brown’s argument that Prudential was the “de facto plan
administrator.” See Ross, 285 F.3d at 743 (rejecting a “de facto [p]lan



                                          -14-
[a]dministrator” argument, which “cannot stand in the face of the uncontroverted
facts, ERISA, and settled case law”).

               2.     Hunt
        Brown complains Hunt failed to provide her with claims manuals, and thus she
is entitled to statutory penalties from Hunt under § 1132(c). Nothing in the relevant
subchapter, 29 U.S.C. §§ 1001-1191c, requires plan administrators to disclose claims
manuals to plan participants. For example, the district court correctly held claims
manuals are not the “other instruments” mentioned in § 1024(b)(4). See, e.g., Brown
v. Am. Life Holdings, Inc., 190 F.3d 856, 861 (8th Cir. 1999) (construing “other
instruments” in § 1024(b)(4) to include “only formal documents that establish or
govern the plan”). Even if we assume the relevant regulations to § 1133 require a plan
administrator to disclose claims manuals to plan participants, see, e.g., 29 C.F.R.
§ 2560.503-1(h)(2)(iii) (requiring disclosure of “all documents, records, and other
information relevant to the claimant’s claim for benefits”), we agree with our sister
circuits that a plan administrator may not be penalized under § 1132(c) for a violation
of the regulations to § 1133. See, e.g., Wilczynski, 93 F.3d at 405-07; Stuhlreyer v.
Armco, Inc., 12 F.3d 75, 79 (6th Cir. 1993); VanderKlok, 956 F.2d at 618; Groves v.
Modified Ret. Plan for Hourly Paid Employees of Johns Manville Corp. &
Subsidiaries, 803 F.2d 109, 116-18 (3d Cir. 1986).

            3.     Discovery
      Because Hunt may not be penalized under § 1132(c) for failing to disclose
claims manuals to Brown, the district court did not abuse its discretion in denying
Brown’s motion under Federal Rule of Civil Procedure 56(f) to conduct discovery
regarding whether Hunt possessed any claims manuals. To the extent Brown requests
wide-ranging discovery from Hunt and Prudential for the first time on appeal, we find
such requests insufficiently preserved for our review. See, e.g., TRI, Inc. v. Boise
Cascade Office Prods., Inc., 315 F.3d 915, 920 (8th Cir. 2003) (holding an argument



                                         -15-
regarding discovery was “not preserved for appeal” absent “indication [the appellant]
brought these discovery complaints to the attention of the district court”).

III.   CONCLUSION
       We affirm in part, reverse in part, and remand for further proceedings consistent
with this opinion.
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