                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0074p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                                Plaintiff-Appellant, -
 JOHN T. GORE,
                                                       -
                                                       -
                                                       -
                                                           No. 05-6792
           v.
                                                       ,
                                                        >
 EL PASO ENERGY CORPORATION LONG TERM                  -
                                                       -
                                                       -
 DISABILITY PLAN and EL PASO ENERGY

                             Defendants-Appellees. -
 CORPORATION,

                                                       -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                     No. 02-01008—Aleta A. Trauger, District Judge.
                                           Argued: October 24, 2006
                                   Decided and Filed: February 23, 2007
         Before: GIBBONS and McKEAGUE, Circuit Judges; TARNOW, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Bynum E. Tudor III, TUDOR LAW FIRM P.C., Nashville, Tennessee, for Appellant.
Mark W. Peters, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellees.
ON BRIEF: Bynum E. Tudor III, TUDOR LAW FIRM P.C., Nashville, Tennessee, for Appellant.
Mark W. Peters, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellees.
                                              _________________
                                                  OPINION
                                              _________________
        ARTHUR J. TARNOW, District Judge. Plaintiff, John T. Gore appeals the district court’s
grant of summary judgment in which all claims were dismissed in favor of the employer/ERISA plan
administrator El Paso Energy Corporation (“El Paso”) and ERISA plan manager/adjudicator Liberty
Life Insurance Company of Boston (“Liberty”).




         *
          The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                          1
No. 05-6792           Gore v. El Paso Energy Corp., et al.                                    Page 2


        Gore raises the following issues on appeal: (1) whether the district court erred in dismissing
Gore’s claim of breach of fiduciary duty against El Paso, pursuant to 29 U.S.C. § 1132(a)(3); and
(2) whether the district court erred in disposing of Gore’s claim for civil penalties against El Paso,
pursuant to 29 U.S.C. § 1132(c). Gore does not appeal the district court’s affirmance of Liberty’s
denial of Gore’s claim for long-term disability benefits.
         For the reasons that the follow, we AFFIRM the district court’s dismissal of Gore’s claim
for civil penalties but REVERSE the district court’s dismissal of Gore’s claim of breach of fiduciary
duty against El Paso and REMAND the case for further proceedings consistent with this ruling.
I.     Factual and Procedural History
        Plaintiff John T. Gore began working for Tennessee Gas Pipeline Company (“Tennessee
Gas”), a subsidiary of Tenneco, Inc. (“Tenneco”) in 1974. As an employee, Gore participated in
Tenneco’s long-term disability (“LTD”) plan, which provided for “own occupation” disability
benefits for a period of 24 months and “any occupation” disability benefits thereafter until the age
of 65.
        In 1996, El Paso acquired Tennessee Gas. Shortly thereafter, El Paso’s area manager and
HR manager met with El Paso’s new employees from former Tenneco Gas. The employees were
told that their benefits at El Paso would remain the same as they were at Tenneco. According to
Gore, at no time during his employment with El Paso did he receive a summary plan description,
nor was he informed of any changes to the plan.
       Tenneco’s LTD plan was in effect until December 31, 1997. On January 1, 1998, a new
Group Disability or Income Policy began to cover the company’s employees, including Gore. This
new policy, governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§§ 1001 et seq., is the subject of this dispute.
        Under the terms of the new policy, Liberty was required to both manage and adjudicate
claims for El Paso. The plan itself was different from the previous plan in that it provided for “own
occupation” disability benefits for only 12 months after an elimination period, as opposed to the 24
months of the Tenneco Plan. After 12 months under the new plan, an employee would be required
to demonstrate that his injury prevented him from working “any occupation” for which he is
qualified.
       In late November 2000, Gore was injured in a natural gas explosion at the El Paso facility
and has not worked there since. In June of 2001, Gore filed a claim for LTD benefits with Liberty.
Liberty retroactively extended disability benefits to him from May 21, 2001 to May 20, 2002
because it was determined that he was unable to perform his “own occupation.”
        In October 2001, a vocational case manager conducted a Transferable Skills Analysis to
determine whether occupational alternatives were available to Gore, based on his medical/functional
and education/vocational capacities. The case manager determined that occupational alternatives
were available to Gore within the petroleum industry involving either sedentary work or work light
in physical demand. These occupational alternatives were Control Panel Operator, Dispatcher, or
Title Clerk.
        In December 2001, a physician conducted an Independent Medical Examination of Gore in
connection with his Worker’s Compensation claims. The physician recommended that Gore have
certain restrictions placed on his work activities. This report was forwarded to another physician
who essentially agreed with its evaluation of Gore’s condition.
No. 05-6792           Gore v. El Paso Energy Corp., et al.                                     Page 3


      In February 2002, Liberty informed Gore that in order to remain eligible for benefits after
May 21, 2002, Gore would have to meet the “any occupation” standard.
        That next month, Liberty ordered a Labor Market Survey to be conducted concerning the
three occupational alternatives identified by the vocational case manager. The survey was sent to
nine different employers in Texas and Louisiana concerning nine available positions. Eight of the
nine employers determined, based on Gore’s restrictions, that Gore was qualified for the specified
job.
       In April 2002, Gore submitted his own Vocational Evaluation based on his medical records,
academic testing, and a clinical interview with Gore. This personal Vocational Evaluation
determined that the types of jobs that Gore could perform were not available in Tennessee.
        In May 2002, Liberty notified Gore by letter that it had denied his claim for LTD because
he did not meet El Paso’s definition of disability. The denial was based on the finding that other
occupational alternatives were available to Gore accounting for his restrictions, limitations, and
transferable skills in the petroleum industry.
        Gore appealed and requested to “review pertinent claim file documents upon which the
denial of benefits was based.” After securing an attorney, the attorney requested from Liberty: (1)
the administrative record of Gore’s claim; (2) a written explanation of the claims and appeals
procedures applicable to Gore’s claim; (3) an additional 90 days to submit proof; and (4) a written
explanation of Liberty’s reasons for relying on the Labor Market Survey.
       Liberty denied the appeal on July 23, 2002 by letter. The letter also noted that Mr. Gore had
already been forwarded a copy of both the administrative file and a copy of El Paso’s LTD Group
Contract. As a result, Liberty denied his request for a copy.
         In October of 2003, Gore filed a complaint against both Liberty and El Paso in the United
States District Court for the Middle District of Tennessee asserting wrongful denial of long-term
disability benefits under El Paso’s LTD plan, pursuant to 29 U.S.C. § 1132(a)(1)(B). Gore also
asserted a claim for civil penalties due to defendants’ failure or refusal to provide certain documents
within 30 days after written request. Gore finally asserted that both Liberty and El Paso breached
their fiduciary duties and requested “other appropriate equitable relief to redress violations of the
Plan and/or ERISA,” pursuant to 29 U.S.C. § 1132(a)(3). In addition to “benefits” and “civil
penalty” damages, Gore requested an injunction, fees and costs.
         The parties conferred, drafted, and submitted a proposed Initial Case Management Order that
the district court then entered in February 2003. The order structured the case in two stages. The
first stage concerned Gore’s claims for wrongful denial of benefits, while the second stage dealt with
both Gore’s breach of fiduciary duty claims and civil penalty claims.
         In early 2003, Gore moved to supplement the administrative record. In May 2003, the
district court granted Gore’s Motion to Supplement the Administrative Record with the July 23,
2002 medical examination report and remanded the case to Liberty for reconsideration of Gore’s
claim for LTD benefits.
        Liberty then commissioned a peer review of Gore’s medical files, which came to the
consensus that Gore was at the time “capably and gainfully employed of being fit for full duty” of
“light to medium duty” with certain restrictions and limitations. After the peer review, Liberty
sought an updated Vocational Review, which determined that Gore could earn between $24,000 and
$42,000 a year for the previously identified alternative occupations in the Tennessee area and
roughly the same for the national economy.
No. 05-6792           Gore v. El Paso Energy Corp., et al.                                     Page 4


        In December 2003, Liberty determined that Gore’s medical restrictions and limitations “do
not prevent him from returning to… alternative sedentary to light occupations.” Thus, Liberty again
determined that Gore did not meet the policy’s definition of disability.
        After the case was reopened by the district court, a second Case Management Order was
entered in March 2004. The only relevant change was that the parties agreed to include both the
benefits and civil penalties claims in the first stage of the litigation, leaving only the breach of
fiduciary duties claims under § 1132(a)(3) for the second stage. This Second Case Management
Order discussed the relationship between Gore’s claim for benefits and breach of fiduciary duties
claim:
       To the extent that the Order ruling on Plaintiff’s and Liberty’s cross motions for
       judgment awards full benefits to Plaintiff from the date of curtailment of benefit
       payments through his attainment of 65, the second stage of the case becomes moot.
       Once the discovery for the first stage of the litigation was complete, Liberty moved
       for summary judgment on Gore’s claim for civil penalties. Gore moved for partial
       summary judgment on his civil penalty claims.
        In December 2004, the district court entered an order denying Gore’s motion and dismissed
his claims for benefits and civil penalties. The court determined that El Paso, not Liberty, was the
Plan Administrator. Though the Policy itself was silent as to the Plan Administrator, the 2000 Long
Term Disability Plan Summary Description stated that El Paso was the Plan Administrator.
Furthermore, the parties stipulated that “El Paso is the ‘administrator’ of the LTD Plan” within the
meaning of ERISA in the Initial Case Management Order. In addition, the district court further
found that Gore requested information about the plan from Liberty only. Relying on this circuit’s
case law, the district court declined in its discretion to impose statutory penalties against El Paso.
        In early December 2004, the district court ordered another case management conference and
required the parties to confer, draft, and submit position statements on the status of the case. In
January 2005, the district court ordered Gore to file a brief “that supports the survival of his
fiduciary duty claim after the Court’s prior ruling.” Gore submitted his brief and El Paso responded.

        In October 2005, the district court dismissed Gore’s § 1132(a)(3) claim for breach of
fiduciary duty and request for equitable relief. The district court held:
       In light of these facts [i.e., the fact that § 1132(a)(1)(B) provided an adequate
       remedy], as well as the aforementioned [Gore’s] admissions, the court finds that the
       plaintiff’s remaining claim against El Paso for breach of fiduciary duty is nothing
       more than a repackaged denial of benefits claim, precisely the type of claim
       expressly rejected by the Supreme Court in Varity, and the Sixth Circuit in Wilkins.
       Equitable relief under § 1132(a)(3) is, therefore, not “appropriate,” and Gore’s
       breach of fiduciary duty claims against El Paso must be dismissed.
The district court also rejected Gore’s equitable estoppel argument on the grounds that it was not
preserved, calling it an “eleventh-hour claim.” As a result, the case was dismissed.
        Gore appealed raising two separate issues: first, whether the district court erred by denying
his claim against El Paso for equitable relief; and second, whether the district court erred by denying
his claim for civil penalties against El Paso. Gore has subsequently settled his claims against
Liberty, and Liberty has been dismissed from the appeal.
No. 05-6792               Gore v. El Paso Energy Corp., et al.                                                   Page 5


II.      Standard of Review
        The district court in its orders dismissing the claims for civil penalties and breach of
fiduciary duty accepted “all the allegations pleaded in the Complaint as true.” The district court then
dismissed the claims presumably under Federal Rule of Civil Procedure 12(b)(6). We review de
novo the district court’s dismissal of Plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Hill v. Blue Cross and Blue Shield of Michigan, 409 F.3d 710, 716 (6th Cir.
2005). The district court’s order will not be affirmed unless it appears beyond doubt that the
plaintiff “can prove no set of facts in support of his claims that would entitle him to relief.” Marks
v. Newcourt    Credit Group, Inc., 342 F.3d 444, 452-53 (6th Cir. 2003)(quotation and citation
omitted).1
       We review the district court’s decision on the imposition of penalties under § 1132(c) for
abuse of discretion. Hiney Printing Co. v. Brantner, 243 F.3d 956, 960 (6th Cir. 2001) (citing
Bartling v. Fruehauf Corp., 29 F.3d 1062, 1068 (6th Cir. 1994).
III.     Fiduciary-Duty Claims as “Repackaged Individual Benefits Claims”
        Gore contends that he is entitled to equitable relief for El Paso’s breach of fiduciary duty,
pursuant to 29 U.S.C. § 1132(a)(3). Specifically, Gore claims that El Paso breached its duty by
“misrepresenting the duration of his ‘own occupation’ long term disability benefits,” citing Varity
Corp. v. Howe, 516 U.S. 489 (1996), for support. As a result of this alleged breach, Gore argues that
he should be awarded compensatory damages in the form of one year’s worth of compensation, i.e.,
the difference between Tenneco’s LTD plan’s “own occupation” benefits (2 years) and El Paso’s
LTD plan’s “own occupation” benefits (1 year).
         Section § 502(a) of ERISA, 29 U.S.C. § 1132(a), provides that:
         A civil action may be brought-
         (1) by a participant or beneficiary
                 (A) for the relief provided in subsection (c) of this section [providing for
         liquidated damages for failure to provide certain information on request], or
                 (B) to recover benefits due to him under the terms of his plan, to enforce his
         rights under the terms of the plan, or to clarify his rights to future benefits under the
         terms of the plan;
         (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate
         relief under section 1109 of this title;
         (3) by a participant, beneficiary, or fiduciary
                 (A) to enjoin any act or practice which violates any provision of this
         subchapter or the terms of the plan, or
                 (B) to obtain other appropriate equitable relief
                         (i) to dress such violations or
                         (ii) to enforce any provisions of this subchapter or the terms of the
                         plan;…




         1
           Gore argues that the district court sua sponte granted summary judgment on his breach of fiduciary duties
claim because the parties briefed the legal, but not the factual, issues relating to the claim. The district court’s order
requesting briefing on the issue did not preclude facts from being argued. The district court took all of Plaintiff’s
allegations pled in the Complaint as true. Finally, the issue itself was a purely legal question based on the analysis and
interpretation of law rather than the facts of the case. The Court reviews the district court’s dismissal of Gore’s breach
of fiduciary duties claims de novo.
No. 05-6792           Gore v. El Paso Energy Corp., et al.                                     Page 6


        The district court determined that Plaintiff was barred from pursuing equitable relief under
the catch-all provision of § 1132(a)(3) because Gore’s breach of fiduciary duty claim “was nothing
more than a repackaged denial of benefits claim,” similar to the type warned about in Varity, 516
U.S. at 515, and determined to be barred in Wilkins v. Babtist Healthcare System Inc., 150 F.3d 609,
615 (6th Cir. 1998).
        In Varity, an employer reorganized, combining some of its divisions into a new subsidiary
corporation. 516 U.S. at 493. The employer also administered its employees’ original welfare
benefit plan. Id. During the reconfiguration, the employer convinced many of the employees to
transfer their benefits plan to a plan offered by the new subsidiary, assuring them that the benefits
would remain secure. Id. at 494. However, the employer was aware that the new entity was
insolvent from its inception. Id. At the end of the corporation’s second year, the new entity went
into receivership, resulting in the loss of the employees’ nonpension benefits. Id. A group of those
employees brought suit seeking the benefits they would have been paid had they not transferred to
the new entity’s plan. Id.
        Agreeing with the district court and the Eighth Circuit, the Supreme Court found that ERISA
§ 502(a)(3), 29 U.S.C. § 1132(a)(3), gave the employees a right to appropriate equitable relief to
redress the harm that the original deception had caused them individually. Id. at 515. The Supreme
Court determined that while there is a remedy for a breach of fiduciary duty related to the
interpretation of plan documents and payment of claims under ERISA § 502(a)(1)(B), 29 U.S.C.
§ 1132(a)(1)(B), the remedy for “other breaches of other sorts of fiduciary obligation” may be
sought under § 1132(a)(3).
       ERISA specifically provides a remedy for breaches of fiduciary duty with respect to
       interpretation of plan documents and the payment of claims, one that is outside the
       framework of the second subsection and cross-referenced [§ 1109], and one that runs
       directly to the injured beneficiary [§ 1132(a)(1)(B)]. Why should we not conclude
       that Congress provided yet other remedies for yet other breaches of other sorts of
       fiduciary obligation in another, “catchall” remedial section?
Id. at 512 (internal citations omitted). The Supreme Court concluded that it “should expect that
where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be
no need for further equitable relief, in which case such relief would normally not be appropriate.”
Id. at 515. The plaintiffs in Varity qualified for this catchall because they had no remedy
under§ 1132(a)(1)(B) or § 1132(a)(2).
        With this guidance, the Sixth Circuit in Wilkins v. Baptist Healthcare System Inc., 150 F.3d
609 (6th Cir. 1998), first addressed § 1132(a)(3) as interpreted by Varity. In Wilkins, the plaintiff
contended that he was entitled to compensatory damages, pursuant to 29 U.S.C. § 1132(a)(3), based
on the defendant’s breach of fiduciary duty to act solely in Wilkins’ interest for the exclusive
purpose of providing benefits to him. Id. at 615. This Court interpreted Varity as clearly limiting
“the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132’s other
remedies.” Id. (citing Varity, 516 U.S. at 512). Because § 1132(a)(1)(B) provided a remedy for
Wilkins’ alleged injury and allowed him to bring a lawsuit to challenge the Plan Administrator’s
denial of benefits, a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3) was not
appropriate. Id. In further distinguishing Wilkins from the plaintiffs in Varity, this Court noted that
the employer-insurer in Varity misled the employees, causing them to lose their non-pension
benefits. Id.
        Several subsequent Sixth Circuit decisions that have addressed § 1132(a)(3) claims suggest
that a plaintiff who is permitted to bring a § 1132(a)(1)(B) claim for denial of benefits and does so
is under no circumstance permitted to also bring a § 1132(a)(3) claim. See Marks v. Newcourt, 342
No. 05-6792            Gore v. El Paso Energy Corp., et al.                                       Page 7


F.3d 444, 454 (6th Cir. 2003); Julia v. Bridgestone/Firestone, Inc., 101 F. App’x 27, 30 (6th Cir.
2004); Putney v. Medical Mutual of Ohio, 111 F. App’x 803, 806 (6th Cir. 2005).
        This misunderstanding was dispelled by this Court’s decision in Hill v. Blue Cross and Blue
Shield of Mich., 409 F.3d 710 (6th Cir. 2005). The Hill decision clarified that under some
circumstances an ERISA plaintiff may simultaneously bring claims under both § 1132(a)(1)(B) and
§ 1132(a)(3). Id. at 718. In Hill, participants in an employer-sponsored health plan filed a putative
class action against the plan’s third party administrator. Id. at 715. The suit alleged that the third
party administrator’s handling of the plaintiffs’ claims for emergency medical treatment expenses
resulted in the wrongful denial of benefits, pursuant to § 1132(a)(1)(B), and constituted a breach of
the administrator’s fiduciary duties to the program participants, pursuant to § 1132(a)(3). Id. at 715-
16. Relying on Wilkins and its progeny, the district court dismissed the breach of fiduciary duty
claim as a repackaged claim for individual benefits. The Sixth Circuit reversed the district court,
determining that Wilkins did not apply:
        In this case, an award of benefits to a particular Program participant based on an
        improperly denied claim for emergency-medical-treatment expenses will not change
        the fact that BCBSM is using an allegedly improper methodology for handling all of
        the Program’s emergency-medical-treatment claims. Only injunctive relief of the
        type available under § 1132(a)(3) will provide the complete relief sought by
        Plaintiffs by requiring BCBSM to alter the manner in which it administers all the
        Program’s claims for emergency-medical-treatment expenses.
Id. at 718. Because an award of individual benefits pursuant to § 1132(a)(1)(B) could not provide
an adequate remedy for the alleged injury to the plaintiffs caused by the breach of fiduciary duties,
outright dismissal of the plaintiffs’ § 1132(a)(3) claims was in error. Id.
        In reviewing the Sixth Circuit’s jurisprudence relating to Varity, the district court in this case
determined that the line of cases stood for the proposition that dismissal of the § 1132(a)(3) claim
is appropriate
        only if the alleged injury to the plaintiff may be completely remedied under the
        asserted § 1132(a)(1)(B) claim for benefits, or any other § 1132 provision for that
        matter. The availability of an adequate remedy for the alleged injury, rather than the
        actual substance of the claim, was the very essence of the Supreme Court’s concern
        in Varity.
Gore v. El Paso Energy Corp. Long Term Disability Plan, 2005 U.S. Dist. LEXIS 26591, * 20
(M.D. Tenn. 2005).
       Relying on Gore’s admission that the injury caused by El Paso’s alleged breach of fiduciary
duties may have been adequately remedied under his § 1132(a)(1)(B) denial of benefits claim and
because the parties agreed to structure the case in two stages as a result, the district court concluded
that Gore was attempting a second bite of the apple.
        [P]roceeding with stage two is inappropriate, because, as the plaintiff himself admits,
        29 U.S.C. § 1132(a)(1)(B), of which Gore has availed himself, provided an adequate
        remedy covering the full extent of his alleged injuries.
Id. at *21.
        El Paso contends that this case falls under the Wilkins line of cases, as opposed to the Hill
and Varity decisions. This Court disagrees. An examination of the specifics of Gore’s alleged
injuries will show why.
No. 05-6792           Gore v. El Paso Energy Corp., et al.                                    Page 8


       In his complaint, Gore has alleged two separate and distinct injuries. First, Gore alleges that
Liberty’s “any occupation” determination was wrongly decided and that as a result he is entitled to
LTD benefits. Second, he alleges that even if he is not entitled to the “any occupation”
determination, he should receive “own occupation” benefits for two years rather than one based on
El Paso’s misrepresentation. The district court is correct when it states that 29 U.S.C.
§ 1132(a)(1)(B) provides Gore a remedy for Liberty’s denial of benefits claim under the “any
occupation” determination. But neither 29 U.S.C. § 1132(a)(1)(B) nor 29 U.S.C. § 1132(a)(2)
provides Gore a remedy for El Paso’s alleged misrepresentation.
       Had Gore alleged that Liberty breached its fiduciary duty, pursuant to § 1132(a)(3), for
wrongful denial of benefits, under Wilkins the claim would be duplicative of his § 1132(a)(1)(B)
claim. Gore cannot claim that Liberty breached its fiduciary duty pursuant to § 1132(a)(1)(B) or
§ 1132(a)(3),for misrepresenting the scope of the policy coverage because Gore alleges that El Paso,
not Liberty, misrepresented the scope of the policy.
        The injury of which Gore complains is different than both of these. Instead, Gore complains
that El Paso breached its fiduciary duty by leading Gore to believe that he had two years of “own
occupation” benefits. Assuming that he could not seek relief from El Paso pursuant to
§ 1132(a)(1)(B) or § 1132(a)(2) (see discussion supra), Gore’s only remedy against El Paso would
be under § 1132(a)(3). The two claims are distinct and unrelated to each other.
         The reason why the district court and the Defendant confuse Gore’s argument is because the
remedy available to Gore if he had succeeded in his “any occupation” claim would have rendered
the “own occupation” misrepresentation moot. Both the district court and the Defendant believe that
this settles the issue. But an examination of the reason why Gore’s § 1132(a)(3) misrepresentation
claim against El Paso would be moot is necessary.
        If Gore received LTD benefits under the “any occupation” coverage, Gore would no longer
suffer any injury from El Paso’s misrepresentation of the “own occupation” benefit. Gore would
receive payment for the second year regardless of whether El Paso should have told him that the
“own occupation” benefits only lasted a year. However, the opposite result is not true. When Gore
did not receive the “any occupation” wages, his misrepresentation claim was not moot because his
injury from the misrepresentation was not eliminated.
       That Gore’s “own occupation” injury would be rendered moot if remedied by the “any
occupation” determination does not mean that the Plaintiff’s alleged injury is “a repackaged denial
of benefits claim.” The fact that Plaintiff’s claim for an equitable remedy “could have been”
resolved if his § 1132(a)(1)(B) claim was resolved in his favor, does not mean that his claim is the
same as the one barred in Wilkins.
       As in Variety, an award of benefits to Gore under the “any occupation” examination would
not have changed the alleged fact that El Paso misrepresented the policy’s coverage to Gore. The
award of benefits would have merely made the need for relief in the form of injunction or damages
moot, but it would not have addressed the question of whether Gore was entitled to another year of
“own occupation” benefits.
        The question that remains is whether the claim for breach of fiduciary duty based on El
Paso’s misrepresentation, pursuant to § 1132(a)(3), is more properly construed as a claim for
equitable estoppel/misrepresentation under § 1132(a)(1)(B). The district court refused to
substantively address this question because it believed that the claim was an eleventh-hour claim.
The district court did however note the confusion about whether such a claim may be properly
asserted under § 1132(a)(1)(B).
No. 05-6792                Gore v. El Paso Energy Corp., et al.                                                    Page 9


         In the unpublished case Julia v. Bridgestone/Firestone, the plaintiff sought recovery of
benefits according to the plan terms as they were represented to her by the defendant rather than
according to the actual terms of the plan. 101 F. App’x at 31. The question raised was whether the
action should have been brought under § 1132(a)(1)(B), rather than as an action for equitable relief
under § 1132(a)(3). Id. at 30-32. After surveying the legal landscape, this Court remarked that
“[s]ome courts have construed § 1132(a)(1)(B) strictly and refused recovery under that section.”
Id. at 30 (citing Flint v. ABB, Inc., 337 F.3d 1326, 1329-30 (11th Cir. 2003)). However, because the
plaintiff could not show she reasonably relied on Bridgestone’s misrepresentation, the Julia Court
declined to “wade too deeply into the morass” of whether the plaintiff properly sought to recover
under § 1132(a)(1)(B) and estop the defendant from deviating from its misrepresentation to the
plaintiff, or sought equitable estoppel under § 1132(a)(3) for breach of fiduciary duty. Id. at 31.
         A similar predicament is present here since Plaintiff “is not seeking to recover benefits due
under the terms of the plan.” Id. Yet, we need not wade too deeply into this morass either. “Unless
an employer is shown to control administration of a plan, it is not a proper party defendant in an
action concerning benefits.” Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988) (citation
omitted), cert. denied, 488 U.S. 826 (1988). El Paso cannot be sued under 29 U.S.C.
§ 1132(a)(1)(B) because Liberty was solely responsible for the denial of benefits. Moreover, the
policy clearly states that Liberty is the proper party in a denial of benefits case. The question would
be different had Gore brought his misrepresentation claim under 29 U.S.C. § 1132(a)(3) for breach
of fiduciary duty based on a misrepresentation by Liberty, the fiduciary who controlled the claims.
However, in this case the § 1132(a)(3) action based on misrepresentation was brought against a
fiduciary, El Paso, who did not control the claims. Thus, Gore properly brought his claim of
misrepresentation under § 1132(a)(3), since§ 1132(a)(1)(B) requires a beneficiary “to recover
benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the terms of the plan,” and it is undisputed that Gore is
not entitled to the benefit under the terms of the plan.
        It should also be noted that this Court in Marks acknowledged in dicta that this circuit will
recognize a § 1132(a)(3) claim as separate from a § 1132(a)(1)(B) claim even against the same
fiduciary. “Even if Marks could bring a breach-of-fiduciary-duty claim, we have recognized such
claims only where the misrepresentation in question involves the availability or extent of plan
benefits.” Marks, 342 F.3d at 454 n.2 (citations omitted).
        In each case where this circuit has found that a plaintiff’s § 1132(a)(3) claim of breach of
fiduciary duty is merely a repackaged § 1132(a)(1)(B) claim, the claims could have been brought
under § 1132(a)(1)(B). Here, Gore’s claim of breach of fiduciary duty could not have been
characterized as a denial of benefits claim, thus the district court’s dismissal of Plaintiff’s
§ 1132(a)(3)2claim was in error. The ruling must be reversed and the case remanded for further
proceedings.
IV.      Civil Penalties
        ERISA imposes particular duties on a plan administrator to provide information to a plan
participant. See 29 U.S.C. § 1024(b)(4). Specifically, a plan administrator shall
         upon written request of any participant or beneficiary, furnish a copy of the latest
         updated summary plan description, plan description, and the latest annual report, any

         2
           Plaintiff notes that the appropriate equitable relief under § 1132(a)(3) could come in the form of five different
equitable remedies: 1) Reformation; 2) Rescission; 3) Reinstatement; 4) Equitable Estoppel; and 5) Promissory Estoppel.
At this point, we need not determine what remedy is required to address the possible misrepresentation since the district
court did not determine whether any misrepresentation in fact took place.
No. 05-6792           Gore v. El Paso Energy Corp., et al.                                    Page 10


       terminal report, the bargaining agreement, trust agreement, contract, or other
       instrument under which the plan is established or operated.
Id. An administrator who fails to comply within thirty days with a request for information from a
plan participant
       may in the court’s discretion be personally liable to such participant… in the amount
       of $100 a day from the date of such failure or refusal, and the court may in its
       discretion order such relief as it deems proper.
29 U.S.C. § 1132(c). ERISA defines the plan administrator as “the person specifically so designated
by the terms of the instrument under which the plan is operated.” 29 U.S.C.§ 1002(16)(A).
        “It is well established that only plan administrators are liable for statutory penalties under
§ 1132(c).” Caffey v. Unum Life Ins. Co., 302 F.3d 576, 584 (6th Cir. 2002)(citing Hiney, 243 F.3d
at 960; Vanderklok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 618 (6th Cir. 1992). In
Hiney, the Sixth Circuit reiterated that it was clear that a plan administrator cannot be liable for
statutory penalies if the request for information was not directed to it. 243 F.3d at 961.
         The court in Hiney also rejected an agency theory when confronting a claim for civil
penalties brought pursuant to § 1132(c) for violations of § 1024(b). The Master Document Plan of
Hiney Printing Company stated that the Plan was to be administered by Administrative Service
Consultants. Id. at 958. The plaintiff requested plan information from Administrative Service
Consultants but did not receive the information. Id. The plaintiff claimed that Hiney Printing was
liable for Administrative Service Consultants’ failure to produce the requested information because
Administrative Service Consultants was the “de facto” administrator, without citing any case law.
Id. at 960. This Court stated that “[t]he law in this Circuit is clear that ‘only a plan administrator
can be held liable under section § 1132(c).’” Id. at 961 (quoting Vanderklok, 956 F.2d at 617). The
Court found that given “the lack of precedent for expanding the statutory definition of the plan
administrator under ERISA, we find that the district court did not abuse its discretion in refusing to
impose statutory penalties on Hiney Printing.” Id.
        Plaintiff argues that the district court erred in determining that El Paso was the exclusive
administrator of the plan. The parties in the initial case management order stipulated that “El Paso
is the ‘administrator’ of the LTD plan… and that El Paso has delegated all duties of the
administrator to Liberty.” This is also supported by the LTD Plan’s Summary Plan Description.
Although the Plan itself did not designate the plan administrator, the district court relied on the
stipulation as well as the Plan’s Summary to find that El Paso was the administrator of the plan.
        Gore argues this Court changed course from Hiney in Minadeo v. ICI Paints, 398 F.3d 751
(6th Cir. 2005). In Minadeo, an ERISA claimant had addressed document requests to her employer
as opposed to her plan administrator, the Pension Committee. Id. at 755-56. The Sixth Circuit
remanded the case to the lower court because the record did not sufficiently explain the relationship
between the employer and the plan administrator for it to determine liability. Id. at 759. Unlike here,
the evidence available to the Sixth Circuit in Minadeo suggested that the employer participated in
the administration of benefits under the pension plan. Id. Moreover, the Court did not renounce but
instead reiterated the holding of both Hiney and Vanderklok. Id.
        Relying upon the case law and the fact that Gore requested plan materials from Liberty even
though El Paso was the exclusive plan administrator according to both the Summary Plan
Description and the parties’ stipulation in the initial case management order, we conclude the district
court did not abuse its discretion when it declined to impose civil penalties pursuant to § 1132(c).
No. 05-6792          Gore v. El Paso Energy Corp., et al.                               Page 11


V.     Conclusion
        The decision of the lower court is REVERSED IN PART and AFFIRMED IN PART. The
case shall be REMANDED and Plaintiff’s § 1132(a)(3) claim of breach of fiduciary duty against El
Paso shall be REINSTATED. The district court’s decision dismissing Plaintiff’s claim for civil
penalties against El Paso for failure to provide information to a plan participant, pursuant to
§ 1024(b)(4) and § 1132(c) is AFFIRMED.
