ARNOLD CHERRY, Plaintiff-Appellant, -v- ROGER TOUSSAINT, TWU Local , TWU Local Staff Pension Plan Trustee; ED WATT, TWU Local , TWU Local, (2nd Cir. 2005)

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 11th day of February, two thousand and five.

Present: ROSEMARY S. POOLER, BARRINGTON D. PARKER, Circuit Judges, P. KEVIN CASTEL, District Judge.*

ARNOLD CHERRY, Plaintiff-Appellant, -v- (03-9020)

ROGER TOUSSAINT, TWU Local 100, TWU Local 100 Staff Pension Plan Trustee; ED WATT, TWU Local 100, TWU Local 100 Staff Pension Plan Trustee; NOEL ACEVEDO, TWU Local 100, TWU Local 100 Staff Pension Plan Trustee, Defendants-Appellees, SONNY HALL, TWU International President; JOHN KERRIGAN, TWU International, Secretary/Treasurer; FRANK McCANN, TWU International, Vice President, Defendants.

Appearing for Appellants: Arnold Cherry, pro se, Brooklyn, NY.

Appearing for Appellees: Stuart Lichten, Kennedy, Schwartz & Cure, P.C., New York, NY.

Appeal from the United States District Court for the Southern District of New York (Buchwald, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Arnold Cherry appeals from a judgment of the district court awarding him $1,575 from the trustees of his pension plan as a penalty for the trustees' failure to respond promptly to his request for certain information. See 29 U.S.C. 1132(c)(1)(B) (authorizing discretionary financial penalties of up to $100 a day against plan administrators who fail to provide mandated information within thirty days after a participant's or beneficiary's request).

We assume the parties' familiarity with the factual and procedural background and with the specification of appellate issues.

We review the district court's determination under Section 1132(c)(1) for abuse of discretion. Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 290 (2d Cir.

2000). The district court, in assessing a claim for penalties should consider "various factors, including bad faith or intentional conduct on the part of the administrator, the length of the delay, the number of requests made and documents withheld, and the existence of any prejudice to the participant or beneficiary." Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76, 90 (2d Cir. 2001) (internal quotation marks omitted).

The district court reasonably applied each of the relevant factors and thus did not abuse its discretion. In particular, the district court correctly determined that the penalty should apply only for those days that Cherry was deprived of the particular information he requested and not for a longer period in which he did not receive the Plan's annual report, which also contained the requested information.

We therefore affirm the judgment of the district court.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk By:

[*]-. The Honorable P. Kevin Castel, United States District Judge for the Southern District of New York, sitting by designation.

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