Award Service, Inc. v. Northern California Retail Clerks Union and Food Employers Joint Pension Trust Fund, a Trust Fund

ORDER

Defendant-Appellee Northern California Retail Clerks Union and Food Employers Joint Pension Trust Fund (“Pension Trust”) moves this court to recall its mandate, issued pursuant to our decision in this case, reported at 763 F.2d 1066 (9th Cir.1985). Pension Trust contends that our decision is undermined by the subsequent decision of the Supreme Court of the United States in Massachusetts Mutual Life Ins. Co. v. Russell, — U.S. —, 105 S.Ct. 3085 , 87 L.Ed.2d 96 (1985). We reject the contention and deny Pension Trust’s motion.

In Massachusetts Mutual, the Supreme Court refused to imply a remedy in favor of a beneficiary of an employee benefit plan against a trustee of that plan for untimely processing of a benefit claim. In so doing, the Court indicated that it was reluctant to “fine-tune” the carefully crafted enforcement scheme of the Employee Retirement Income Security Act (ERISA). — U.S. at —, 105 S.Ct. at 3093 . The Supreme Court’s language and ruling, however, was addressed to the situation before it, in which ERISA provided specifically for various kinds of recovery against a trustee, but only in favor of the plan. Id. at —, 105 S.Ct. at 3089 . Similarly, ERISA…