Gabriel

Opinion by Judge IKUTA; Concurrence by Judge KOZINSKI.

ORDER

The opinion filed on June 6, 2014, and appearing at 755 F.3d 647 , is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file additional petitions for rehearing or rehearing en banc.

OPINION

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. We affirm the district court’s determination that Gabriel failed to raise a genuine issue of material fact as to his entitlement to “appropriate equitable relief’ under 29 U.S.C. § 1132 (a)(3) in the form of equitable estoppel or reformation. We also reject Gabriel’s argument that the Fund failed to comply with ERISA procedural requirements or waived its determination that Gabriel never vested, and therefore affirm the district court’s deference to the Fund’s denial of benefits. But, because the district court made its ruling prior to the Supreme Court’s decision in CIGNA Corp. v. Amara, the district court did not consider the availability of the…

concurring:

I don’t object to the decision to remand so the district court may consider whether Gabriel is entitled to the equitable remedy of “surcharge” against the Fund under CIGNA Corp. v. Amara, — U.S. -, 131 S.Ct. 1866 , 179 L.Ed.2d 843 (2011). But on the record before us, I seriously doubt that Gabriel will prevail on such a surcharge claim consistent with our opinion.

Gabriel claims he’s entitled to equitable relief from the Fund in the form of a surcharge, see Amara, 131 S.Ct. at 1880 , because the Fund’s inaccurate statements and payment of benefits he hadn’t earned “induced Gabriel into an earlier retirement than he could afford.” But we hold, in the course of affirming the district court’s grant of summary judgment to the Fund on Gabriel’s equitable estoppel claim, that Gabriel wasn’t “ignorant of the true facts.” Op. 961. Gabriel doesn’t dispute that he *965 received a letter from the Fund on November 20, 1979 informing him that he didn’t meet the vesting requirements and would be terminated from the Plan. We find the letter sufficient to inform him that he wasn’t vested. Id. at 961-62. Thus,' Gabriel can’t show that any reliance on the Plan’s representations was…