dissenting:

This case presents a novel issue of law: does ERISA preempt a federal law claim of estoppel where an insurance company erroneously holds itself out as the plan administrator? This circuit has held that

Dockray v. Phelps Dodge Corp., 801 F.2d 1149, 1155 (9th Cir.1986) (where employer informs striking worker that he is being dropped from payroll because no work was available, rather than because he was refraining from work, employer is estopped from denying plaintiff pension benefits).

ERISA preempts state law contract theories based on estoppel, Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1095 (9th Cir.1985), but not federal claims based on es-toppel. Id. at 1096 . We stated in Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496 (9th Cir.1984), that courts retain broad authority to develop interstitial ERISA common law:

Id. at 1499-1500 (holding that ERISA does not have retroactive application); see also Misic v. Building Service Employees Health & Welfare Trust, 789 F.2d 1374 (9th Cir.1986) (although 29 U.S.C. § 1056 (d) prohibits assignment of pension benefits, ERISA is silent regarding assignment of health and welfare benefits; assignment allowed as matter of federal common law).

Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134 , 105 S.Ct. 3085 , 87 L.Ed.2d 96 (1985) is not dispositive on the issue *302 presented here. Russell was concerned solely with the type of remedies available to individuals under 29 U.S.C. § 1109 (a); it held that § 1109(a) affords only relief which would benefit the plan as a whole. Because other sections of ERISA benefit individuals, § 1109(a) could not be read to extend relief. Id. at 142-43, 105 S.Ct. at 3090-91 . 1

The result in Russell was dictated by the plain language of the statute, and by the fact that § 1109 was concerned principally with upholding the financial integrity of the plan. Id. at 141-42 & n. 9, 105 S.Ct. at 3090 & n. 9. In contrast, § 1132(c) is specifically concerned with protecting the beneficiary’s interest in obtaining plan information, providing that “[a]ny administrator” can, in certain circumstances, “be personally liable to such participant as beneficiary.” This case is much closer to Misic , which expanded the class of potential plaintiffs beyond those expressly enumerated in § 1132(a)(1)(B), than to Russell , which dealt with remedies. I see no rational basis for expanding the class of plaintiffs by reference to federal common law while refusing to permit expansion of the class of defendants by reference to that same body of law. Indeed, the statutory provision is the same in both cases: § 1002, the definitions provision.

The majority’s reliance on Davidian v. Southern Cal. Meat Cutters Union, 859 F.2d 134 (9th Cir.1988) also is misplaced. That case merely continues a line of decisions holding that a benefit plan cannot be estopped from denying benefits if payment would be inconsistent with the written plan. See, e.g., Thurber v. Western Conf. of Teamsters Pens. Plan, 542 F.2d 1106 (9th Cir.1976). Those decisions are based on the application of the law of trusts: the written terms of a plan cannot be altered so as to divert contributions made on behalf of covered employees. Id. at 1109 . This is not a suit against a trust fund: § 1132(c) provides that the administrator, not the fund, is liable to the beneficiary. “This distinction is critical.” Davidian , at 136. Davidian expressly noted that estoppel may be available against individual trustees and plan administrators, since “recovery against individual fiduciaries would not directly diminish the fund.” Id.

It is apparent that absolutely no authority, statute or case law, prevents this court from applying the doctrine of estoppel in this case. 2 Furthermore, applying estoppel here would further substantial policies of ERISA. § 1001(a) and (b) demonstrate congressional interest in protecting employees by requiring prompt disclosure of information pertaining to the plan. This goal would be frustrated by shielding fiduciaries from the consequences of providing false information. Because an employee who is told that the wrong entity is the plan administrator is likely to continue to seek information from that source, rather than the proper source, imposing the penalties for delay provided by § 1132(c) on the fiduciary who causes that delay by claiming to be the plan administrator would further the purposes of § 1132(c). Nor would Moran be given a windfall: the statute allows the court discretion to decide whether to impose personal liability and to decide the amount of any penalty up to the statutory maximum that should be assessed.

Aetna is a sophisticated purveyor of insurance and administrator of ERISA plans. It distributed materials to plaintiff’s employer and to plaintiff that were consistent with its being the plan administrator for *303 plaintiff’s employer’s plan. 3 Upon inquiry, it confirmed in writing to plaintiff that it was the plan administrator. Plaintiff’s reliance on Aetna’s statement that it was the plan administrator was eminently reasonable. 4

Contrary to the majority’s argument, Moran could not have determined that Aet-na was not the plan administrator merely by consulting §§ 1132(c) and 1002(16). § 1132(c) does not define “plan administrator.” The definition in § 1002(16) requires reference to “the terms of the instrument under which the plan is operated.” There is considerable doubt that such an instrument was ever provided to Moran or placed into evidence. Aetna seeks to rely on the fact that its group insurance policy does not identify a plan administrator, assuming that § 1002(16)(B) would then apply, making Moran’s employer the plan administrator.

There are two flaws to such reasoning. First, the group insurance policy cannot be the written instrument for purposes of § 1002(16), because it fails to “provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan.” 29 U.S.C. § 1102 (a)(1). Second, from the absence of a known written instrument, Moran could not reasonably infer that § 1002(16)(B) would apply. For all Moran could know, Aetna might well have been in possession of the requisite written instrument. The fact that some of the documents available to Moran did not reveal the identity of the plan administrator is irrelevant, especially in light of the fact that the health identification card furnished to Moran named Aetna as the plan administrator, and Aetna’s own claims supervisor confirmed this representation in writing. The majority forgets that this whole dispute centers around Aet-na’s frustration of Moran’s attempts to acquire the documentation she needed to understand Aetna s obligations. Moran requested documents from Aetna in reliance on Aetna’s assertions that it was, indeed, the plan administrator. Yet Moran is expected to deduce from the absence of language in some of the documents which were not provided to her that Aetna was not what it claimed to be!

Aetna should be subject to the penalties that may be assessed in the court’s discretion against a plan administrator under § 1132(c). I would reverse and remand to the district court to reach the merits of plaintiff’s estoppel claim.

. § 1109(a) includes phrases such as "shall be ... liable to make good to such plan any losses to the plan "and to restore to such plan any profits." (emphasis added).

. The majority advances the proposition that estopping Aetna from denying it is the plan administrator cannot be countenanced because it would be inconsistent with the express language of the statute. Maj. op. at 300. On the contrary, the invocation of estoppel in this case does no violence to the language of the statute— it simply precludes Aetna from denying that it is the plan administrator. In any event, as a general proposition, the majority’s pronouncement is unsound. Statutes of limitations’ explicit language routinely is subjected to equitable modification by the application of estoppel, waiver, or equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 , 102 S.Ct. 1127, 1132 , 71 L.Ed.2d 234 (1982); Learned v. City of Bellevue, 860 F.2d 928, 931 (9th Cir.1988).

. For example, Moran's health identification card named Aetna as the plan administrator.

. While the availability of other remedies under § 1109(a) may adversely affect Moran’s ability to prove detrimental reliance in this case, I address only the question of whether estoppel, if proven, can be applied so as to impose penalties under § 1132(c). The majority’s argument erroneously compresses the merits of Moran’s particular claim with the more general question.