Gregory Gabriel v. Alaska Electrical Pension Fund

concurring and dissenting:

The majority opinion disregards Supreme Court guidance in CIGNA Corp. v. Amara, — U.S. -, 131 S.Ct. 1866 , 179 L.Ed.2d 843 (2011), and creates a conflict with recent decisions of the Fourth, Fifth, and Seventh Circuits. As Gabriel may be entitled to an equitable remedy similar to surcharge, I dissent from Part 11(B)(3) of the majority opinion, but concur in the remainder.

Gabriel seeks a “remedy that will put [him] in the position he ... would have attained but for the trustee[s]’[ ] breach.” Skinner v. Northrop Grumman Ret. Plan B, 673 F.3d 1162, 1167 (9th Cir.2012). Amara described “this kind of monetary remedy against a trustee” as “ ‘exclusively equitable.’” 131 S.Ct. at 1880 (citation omitted). Although Amara identified such relief as “sometimes called a ‘surcharge,’ ” the focus was not on the particulars of traditional surcharge law. Id. (citation omitted). Instead, Amara embraced the concept that where the defendant is “analogous to a trustee,” the “charge [against] the defendant, as a trustee, [is] for breach of trust,” and “award [is] of make-whole relief,” then “the remedies ... fall within the scope of the term ‘appropriate equitable…

Gregory R. Gabriel appeals the district court’s dismissal of his claims against the Alaska Electrical Pension Fund (the Fund) and other defendants under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. Because Gabriel failed to raise a genuine issue of material fact that the Fund abused its discretion in denying him benefits, or that he was entitled to “appropriate equitable relief’ under 29 U.S.C. § 1132 (a)(3), we affirm the district court.

I

For over three years, the Fund paid Gabriel monthly pension benefits he had not earned. This case arises from the events that occurred after the Fund discovered this error.

From August 1968 through April 1975, Gabriel participated in the Alaska Electrical Pension Plan (the Plan). The Plan is an “employee pension benefit plan” as defined in ERISA, 29 U.S.C. § 1002 (2)(A). It covers electrical workers and contractors who work for employers that participate in one of several electrical industry collective bargaining agreements. The Plan is administered by the Fund, which is run by a board of trustees. The Plan gives the trustees “the exclusive right to construe the provisions of the Plan and to…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY R. GABRIEL, No. 12-35458 Plaintiff-Appellant, D.C. No. v. 3:06-cv-00192-

TMB

ALASKA ELECTRICAL PENSION

FUND; TRUSTEES OF THE ALASKA

ELECTRICAL PENSION FUND; OPINION

PENSION ADMINISTRATIVE

COMMITTEE OF THE ALASKA

ELECTRICAL PENSION FUND;

APPEALS COMMITTEE OF THE

ALASKA ELECTRICAL PENSION

FUND; GREGORY STOKES; GARY

BROOKS; STEVE BOYD; JOHN

GIUCHICI; CHERESA MACLEOD;

SCOTT BRINGMANN; DAVID CARLE;

JIM FULLFORD; MARY TESCH;

KNUTE ANDERSON; MIKE BAVARD;

LARRY BELL; VINCE BELTRAMI,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Argued and Submitted August 14, 2013—Anchorage, Alaska Filed June 6, 2014

Before: Alex Kozinski, Chief Judge, and Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Berzon

SUMMARY*

Employee Retirement Income Security Act

The panel affirmed the district court’s summary judgment in favor of Alaska Electrical Pension…