*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation. 

 1Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 et seq. 

United States Court of Appeals, Eleventh Circuit.

No. 96-8795.

J.W. COUNTS, Plaintiff-Counter-Defendant, Appellant,

v.

AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY; American

General Corporation Plan Administrator, Defendants-CounterClaimants-Appellees,

Gulf Life Insurance Company, et al., Defendants.

April 29, 1997.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV694-055), Anthony A. Alaimo, Judge.

Before DUBINA and BLACK, Circuit Judges, and COHILL*

, Senior

District Judge.

DUBINA, Circuit Judge:

Appellant J.W. Counts ("Counts") appeals the district court's

grant of summary judgment in this ERISA 1 action in favor of

Appellees American General Life and Accident Insurance Company and

American General Corporation Plan Administrator (collectively,

"AGLA"). The district court ruled that Counts failed to exhaust

his administrative remedies. For the reasons that follow, we

affirm.

I. BACKGROUND

Counts worked as an insurance agent and sales manager for AGLA

and its predecessors from 1965 to 1990. Counts was a participant

in the Gulf Life Field Representative's Long-Term Disability Plan
 2

AGLA assumed control of all Gulf Life operations in 1990. 

("the Plan"), 2 an employee benefit plan governed by ERISA and

administered by AGLA. A participant must be totally disabled to

receive long term disability ("LTD") benefits under the Plan. The

Plan defines total disability as a sickness or injury which

prevents a participant from performing the main duties of his or

her regular occupation. After 12 months, however, the definition

changes: the participant must be unable to perform "each and every

of the main duties of any occupation. Any occupation is one that

the Participant's training, education, or experience will

reasonably allow." R3-61, District Court Order at 3 (emphasis

added).

Counts injured his back in 1986. Four years later, he became

totally disabled and stopped working. In November 1990, AGLA began

paying Counts LTD benefits under the Plan. Counts received LTD

benefits for 12 months. AGLA then suspended his benefits pending

receipt of an opinion from his physician, Dr. Cannon, as to whether

Counts was totally disabled under the "any occupation" definition.

In March 1992, Dr. Cannon sent AGLA a letter stating that he felt

Counts was capable of light clerical work and was not totally

disabled. Two other doctors who evaluated Counts reached similar

conclusions.

By letter dated April 30, 1992, AGLA's Disability Committee

terminated both Counts' LTD benefits and his employment with AGLA.

The termination letter stated that the committee had determined

that Counts no longer met the requirements for total disability

under the Plan. The letter also provided as follows:
The Disability Committee decision is final unless overturned

by an appeal; therefore, your employment and benefit status

will remain terminated during the appeal process.

If you disagree with this determination, you may appeal the

decision by sending your written request within 60 days

following your receipt of this notice stating the reason for

your appeal along with any additional information for review

to [address omitted].

If you wish to examine any pertinent documents, we will need

a written authorization from your physician before medical

information can be released to you.

District Court Order at 4-5.

Counts did not appeal the decision. Four months after the 60-

day appeals period expired, Counts' attorney wrote AGLA a letter

discussing Counts' medical situation and stating, "We would

appreciate hearing from you regarding this matter at your earliest

convenience." Id. at 5. Counts' attorney did not request any

specific information from AGLA. AGLA wrote back reiterating its

basis for discontinuing Counts' benefits and offering further

assistance upon request. Ten months later, Counts' attorney wrote

AGLA a second letter stating that AGLA's letter terminating Counts'

LTD benefits failed to comply with the notice requirements set

forth in 29 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1(f). AGLA

responded that it felt its denial letter was in substantial

compliance with the regulatory requirements, but that it welcomed

further inquiries. Counts made none. Five months later, Counts

filed this action.

Counts' complaint alleged (1) that AGLA wrongfully

discontinued his LTD benefits under the Plan and (2) that AGLA

terminated his employment for the purpose of interfering with his

rights under other AGLA employee benefit plans in which Counts was
 3

Counts' first appeal was dismissed for lack of

jurisdiction. The district court then certified that its summary

judgment order was final, and Counts renewed his appeal. AGLA's

counterclaim is still pending in the district court. 

a participant. Counts sought an order reinstating his LTD benefits

and requiring AGLA to continue contributing to his other employee

benefit plans. Counts also sought attorney's fees and an award of

civil penalties for AGLA's alleged failure to supply him with

requested information. AGLA counterclaimed for overpayment of LTD

benefits. The district court granted AGLA's motion for summary

judgment on the ground that Counts failed to exhaust his

administrative remedies. Counts appealed.3

II. DISCUSSION

We review the district court's grant of summary judgment de

novo, applying the same standards as the district court. Harris v.

Board of Educ. of the City of Atlanta, 105 F.3d 591, 595 (11th

Cir.1997). "Summary judgment is appropriate if the pleadings,

depositions, and affidavits show that there is no genuine issue of

material fact and that the movant is entitled to judgment as a

matter of law." Harris v. H & W Contracting Co., 102 F.3d 516, 518

(11th Cir.1996). In reviewing a grant of summary judgment, we view

the evidence in the light most favorable to the party opposing the

motion. Id. at 519.

 It is undisputed that Counts failed to exhaust his

administrative remedies. The Plan required Counts to appeal the

denial of his LTD benefits within 60 days of receiving his

termination letter. Counts never appealed. The law is clear in

this circuit that plaintiffs in ERISA actions must exhaust
available administrative remedies before suing in federal court.

Springer v. Wal-Mart Associates' Group Health Plan, 908 F.2d 897,

899 (11th Cir.1990); Mason v. Continental Group, Inc., 763 F.2d

1219, 1225-27 (11th Cir.1985). However, district courts have

discretion to excuse the exhaustion requirement when resort to

administrative remedies would be futile or the remedy inadequate.

Curry v. Contract Fabricators, Inc. Profit Sharing Plan, 891 F.2d

842, 846 (11th Cir.1990). The district court found neither

circumstance present here. Accordingly, the district court

declined to excuse the exhaustion requirement in this case. Counts

argues that the district court erred for several reasons.

First, Counts argues that the district court should have

excused his failure to exhaust administrative remedies because

AGLA's termination letter failed to comply with ERISA's notice

requirements. See 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1(f).

The district court agreed that AGLA's letter was technically

deficient. Nevertheless, the district court concluded that the

letter substantially complied with the notice requirements because,

taken as a whole, it supplied Counts "with a statement of reasons

that, under the circumstances of the case, permitted a sufficiently

clear understanding of the administrator's position to permit

effective review." District Court Order at 12, quoting Donato v.

Metropolitan Life Ins. Co., 19 F.3d 375, 382 (7th Cir.1994).

 Even if the district court erred in finding substantial

compliance, Counts would not be excused from the exhaustion

requirement. The consequence of an inadequate benefits termination

letter is that the normal time limits for administrative appeal may
not be enforced against the claimant. Epright v. Environmental

Resources Management, Inc. Health & Welfare Plan, 81 F.3d 335, 342

(3rd Cir.1996); White v. Jacobs Eng'g Group, 896 F.2d 344, 350

(9th Cir.1989). Thus, the usual remedy is not excusal from the

exhaustion requirement, but remand to the plan administrator for an

out-of-time administrative appeal. Weaver v. Phoenix Home Life

Mut. Ins. Co., 990 F.2d 154, 159 (4th Cir.1993); Brown v. Babcock

& Wilcox Co., 589 F.Supp. 64, 71-72 (S.D.Ga.1984). Counts

consistently took the position in the district court that remand

was unwarranted and the only suitable course of action was excusal

of the exhaustion requirement. Counts now argues that remand may

be appropriate. However, "[a]n appellate court generally will not

consider an issue raised for the first time on appeal ... [,

especially] where the appellant pursued a contrary position before

the district court." United States v. One Learjet Aircraft, 808

F.2d 765, 773-74 (11th Cir.), vacated on other grounds, 831 F.2d

221 (11th Cir.1987). We hold that Counts waived any entitlement he

may have had to the remedy for deficient notice. Accordingly, we

need not address whether AGLA's termination letter substantially

complied with regulatory notice requirements.

 Counts also argues that the district court should have

excused the exhaustion requirement because AGLA blocked his efforts

to exhaust by failing to answer his requests for information about

its benefits decision. In Curry v. Contract Fabricators Inc.

Profit Sharing Plan, 891 F.2d 842, 846-47 (11th Cir.1990), we held

that "[w]hen a plan administrator in control of the available

review procedures denies a claimant meaningful access to those
procedures, the district court has discretion not to require

exhaustion." In Curry, the plan administrator failed to send Curry

a written denial of his benefits claim. When Curry requested

copies of plan documents to pursue his claim administratively, the

administrator failed to provide them. The situation in this case

was quite different. AGLA sent Counts a written termination letter

which informed him of its decision and of his right to appeal

within 60 days. Counts took no action during the 60 days. Months

later, Counts' attorney sent AGLA two letters, neither of which

requested Plan documents or other specific information from AGLA.

AGLA responded to both letters and offered to supply additional

information upon request. AGLA did not deny Counts meaningful

access to the administrative review process. Curry simply does not

apply here.

 Finally, Counts argues that the exhaustion requirement should

not apply to his claims alleging that AGLA violated ERISA by firing

him to avoid contributing to his other employee benefit plans and

by withholding information about its decision. We have

consistently stated that the exhaustion requirement applies both to

actions to enforce a statutory right under ERISA and to actions

brought to recover benefits under a plan. Springer v. Wal-Mart

Associates' Group Health Plan, 908 F.2d 897, 899 (11th Cir.1990);

Mason v. Continental Group, Inc., 763 F.2d 1219, 1225-27 (11th

Cir.1985). Counts asks us to depart from this precedent and hold,

along with several of our sister circuits, that exhaustion is not

required for claims of statutory violation. See Held v.

Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1205 (10th
Cir.1990); Zipf v. American Tel. & Tel. Co., 799 F.2d 889, 891-94

(3rd Cir.1986); Amaro v. Continental Can Co., 724 F.2d 747, 750-53

(9th Cir.1984); but see Lindemann v. Mobil Oil Corp., 79 F.3d 647,

650 (7th Cir.1996) (rationale for exhaustion applies equally to

claims for benefits and claims based upon ERISA itself). However,

even if we agreed with Counts' position, this panel lacks the

authority to overrule prior panel decisions of this court. Bonner

v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en

banc). Under controlling precedent, Counts was required to exhaust

administrative remedies for all of his ERISA claims.

III. CONCLUSION

Counts failed to exhaust his administrative remedies before

filing this ERISA action. The district court did not abuse its

discretion in refusing to excuse that failure. Accordingly, we

affirm the district court's grant of summary judgment in favor of

AGLA.

AFFIRMED.