FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY R. GABRIEL,

Plaintiff-Appellant,

v.

ALASKA ELECTRICAL PENSION

FUND; TRUSTEES OF THE ALASKA

ELECTRICAL PENSION FUND;

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.

No. 12-35458

D.C. No.

3:06-cv-00192-

TMB

OPINION

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
2 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

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 Fund and other

defendants on claims (1) that the Fund abused its discretion

in denying the plaintiff benefits under the Alaska Electrical

Pension Plan and (2) that he was entitled to equitable relief

under ERISA.

For over three years, the Fund paid the plaintiff monthly

pension benefits he had not earned. When it rediscovered an

earlier determination that the plaintiff had never met the

Plan’s vesting requirements, it terminated his benefits.

The panel affirmed the district court’s summary judgment

on the plaintiff’s claim that the defendants violated their

fiduciary duties under ERISA or the terms of the Plan and

that he therefore was entitled to “appropriate equitable relief”

under 29 U.S.C. § 1132(a)(3). The panel held that the

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 3

plaintiff was not entitled to an order equitably estopping the

Fund from relying on its corrected records that showed his

actual years of service because he failed to show that a letter

informing him that he would receive a pension was an

interpretation of ambiguous language in the Plan, rather than

a mere mistake in assessing his entitlement to benefits, and he

also failed to show that he was ignorant of the true facts. The

panel held that the plaintiff was not entitled to the equitable

remedy of reformation based on mistake under trust or

contract law principles because he failed to demonstrate that

a mistake of fact or law affected the terms of the Plan. He

also was not entitled to reformation based on fraud. The

panel held that the plaintiff was not entitled to the equitable

remedy of surcharge, to receive an amount equal to the

benefits he would have received if he had been a participant

with the hours erroneously reflected in the Fund’s records

when he applied for benefits, because he did not show that the

defendants were unjustly enriched by their alleged breaches

of fiduciary duty. In addition, the surcharge remedy the

plaintiff sought would not restore the trust estate, but rather

would wrongfully deplete it by paying benefits he was not

eligible to receive under the Plan.

The panel also affirmed the district court’s summary

judgment on the plaintiff’s claim that the defendants erred in

denying him benefits on the ground that he was non-vested. 

The panel rejected the plaintiff’s argument that the Fund

waived this rationale for denying him benefits by not timely

raising it.

Judge Berzon concurred and dissented. She dissented

from Part II(B)(3) of the majority opinion because the

plaintiff might be entitled to an equitable remedy similar to

surcharge. She wrote that the majority disregarded Supreme
4 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

Court guidance in CIGNA Corp. v. Amara, 131 S. Ct. 1866

(2011), and created a conflict with recent decisions of the

Fourth, Fifth, and Seventh Circuits regarding the scope of the

“surcharge” remedy. Judge Berzon concurred in the

remainder of the majority opinion.

COUNSEL

Jennifer Mary Coughlin, K&L Gates, LLP, Anchorage,

Alaska, for Plaintiff-Appellant.

Allen Bruce McKenzie (argued), and Frank J. Morales,

McKenzie Rothwell Barlow & Coughran, P.S., Seattle,

Washington, for Defendants-Appellees.

OPINION

IKUTA, Circuit Judge:

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.
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 5

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

determine any and all questions arising thereunder or in

connection with the administration thereof.”

Under section 5.01 of the Plan, a participant who has

completed ten or more “[y]ears of service,” as defined in the

Plan, is vested under the Plan and is eligible to apply for

pension benefits on retirement after reaching a specified age. 

Section 8.01 provides that a participant who fails to earn a

total of 500 hours of service in a two-year period, and is not

on a qualifying leave of absence pursuant to section 8.02, is

terminated from the Plan. A terminated participant may be

reinstated under section 8.04. Under Section 8.03, a vested

participant who is terminated is not devested; once vested, a

participant remains vested.

Gabriel worked until April 1975 as an employee of

several different electric companies that participated in the

Plan. In 1975, he became the sole proprietor of Twin Cities

Electric. From September 1975 through November 1978,
6 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

Twin Cities made contributions for both Gabriel and its

employees. Based on these contributions, the Fund initially

credited Gabriel with eleven years of service, enough to

qualify Gabriel as a vested participant under section 5.01.

But in 1979, the Fund determined that Gabriel was an

owner of Twin Cities, rather than an employee, and therefore

not eligible to participate in the Plan. In a letter dated

November 20, 1979, the Fund’s general counsel informed

Gabriel about this error and told him that the Fund owed him

a refund of $13,626 for the erroneous contributions made on

his behalf from 1975 to 1978. Further, the letter informed

Gabriel that he was terminated from the Plan as of January 1,

1978, pursuant to section 8.01, because its records showed

that by that time he had two consecutive years with less than

500 hours of service. An attachment to the letter, entitled

“Benefit Statement Without Hours ReportedByTwinCities,”

stated that Gabriel had “8 yrs. Credited Service” from 1968

to 1975 when the improper hours for his time as an employer

at Twin Cities were excluded, and that the Fund would update

Gabriel’s hours report to remove the improperly credited

hours.

As a separate matter, the letter stated that, because Twin

Cities had been delinquent in making contributions for its

other employees, the Fund would set off the delinquent

amounts owed to the Fund (a total of $6,989.24) from the

refund amount owed Gabriel, for a total refund to Gabriel of

$6,636.76.

On December 3, 1979, the Fund drafted a follow-up letter

stating that Twin Cities actually owed more in delinquent

obligations than the Fund originally had calculated. To

satisfy Twin Cities’ delinquent obligations for its employees,
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 7

the Fund intended to withhold $12,982.69, instead of

$6,989.24. Therefore, the Fund would give Gabriel a refund

of only $643.31. The letter enclosed a release agreement,

which documented the terms of the setoff and refund. It also

informed Gabriel about the steps he would have to take to

become vested in the Plan. The record includes only an

unsigned copy of this letter, which was found in the Fund’s

files. Gabriel asserts he never received this letter.

In January 1980, Gabriel signed the release agreement, in

which he acknowledged that he was receiving a refund of

$643.31 arising from “the improper employer contributions

paid from the year 1975 through 1978” made on his behalf

when he was the owner of Twin Cities, and that the remainder

of the improper contributions (amounting to $12,982.69)

would be used to pay delinquent obligations.

Gabriel did not meet any of the requirements under the

Plan for reinstatement and so never vested in the Plan. 

Nevertheless, in late 1996, Gabriel asked the Fund for

information about the amount of pension benefits he would

receive if he retired. In a letter dated January 6, 1997, a

pension representative for the Fund stated that it had

calculated Gabriel’s pension benefits based on his years of

service from 1968 to 1978, and determined that, if he retired,

Gabriel would receive pension benefits of $1,236 each month.

Gabriel subsequently retired and applied for benefits,

which he began receiving in March 1997. In an affidavit

submitted as part of this litigation, Gabriel stated that he

would not have retired in 1997 if the pension representative

had informed him he was ineligible to receive pension

benefits.
8 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

The sequence of events leading the Fund to rediscover its

error and terminate Gabriel’s benefits began in May 2000. At

that time, Gabriel began working part-time as an OSHA

safety inspector for Udelhoven Oilfield Services to

supplement his retirement income. In 2001, the Fund warned

Gabriel that his work constituted prohibited post-retirement

employment in the industry, which could lead to a suspension

of benefits. Although Gabriel argued that his employment at

Udelhoven was not in the same industry, the Fund

nonetheless suspended his benefits on that basis in November

2001.

Gabriel challenged this suspension of benefits through the

administrative process established in the Plan. First, Gabriel

appealed the suspension to the Appeals Committee. The

Committee denied his appeal, and Gabriel appealed again to

the next administrative level, which required arbitration of the

dispute. The arbitrator reversed the Appeals Committee’s

decision and remanded the issue for further fact finding.

At the remand hearing before the Appeals Committee,

Gabriel learned that the Fund had not provided him with

certain relevant Plan amendments. The Appeals Committee

suspended the hearing to give Gabriel an opportunity to

review the amendments. Before the Appeals Committee

ruled on the dispute, Gabriel stopped working for Udelhoven,

and the Fund reinstated his pension benefits as of July 1,

2004.

Gabriel nevertheless continued to pursue his claim against

the Fund, and demanded payment of the benefits that the

Fund had withheld due to his Udelhoven work, as well as

attorney’s fees and costs incurred in the administrative

appeals process. The parties engaged in settlement
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 9

negotiations, and the Fund agreed to reimburse Gabriel’s

attorney’s fees and costs. After further negotiations, the Fund

also offered to pay Gabriel the withheld benefits, with

interest.

Before Gabriel could respond to this offer, however, the

Fund revoked it. The Fund rediscovered its earlier

determination that Gabriel had been ineligible to participate

in the Plan between September 1975 and November 1978,

and therefore had never met the Plan’s vesting requirements. 

Because Gabriel had never become eligible for retirement

benefits, the Fund terminated Gabriel’s benefits and

threatened to seek reimbursement for the $81,033 in benefits

Gabriel had previously received.1

In response, Gabriel brought an ERISA action in district

court against the Fund, the Board of Trustees, the Pension

Administrative Committee (comprised of trusteesresponsible

for deciding benefit claims), the Appeals Committee, and

various other individuals responsible for administering the

Fund. In his complaint, Gabriel brought claims for recovery

of benefits and clarification of rights to future benefits under

29 U.S.C. § 1132(a)(1)(B), and breach of the fiduciary duties

set forth in 29 U.S.C. § 1104(a)(1)(A)–(B) and § 1109 under

§ 1132(a)(3).2 The complaint also alleged misrepresentation

and estoppel based on written and oral representations, as

 

1 The Fund initially brought a counterclaim for reimbursement of these

benefits against Gabriel in this litigation, but later voluntarily dismissed

it.

2 The complaint also alleged claims for breach of co-fiduciary duties set

forth in 29 U.S.C. § 1105(a), under 29 U.S.C. § 1132(a)(3), but because

these claims are derivative of his breach of fiduciary duty claims, we do

not discuss them separately.
10 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

well as other claims not relevant here. The defendants moved

for summary judgment on all of Gabriel’s claims.

The district court addressed the defendants’ motion for

summary judgment in a series of orders. In its first order, the

district court held that Gabriel had raised a genuine issue of

material fact as to whether he had satisfied the Plan’s vesting

requirements, and therefore denied the defendants’ summary

judgment motion on Gabriel’s claims under § 1132(a)(1)(B)

for retroactive reinstatement of his monthly pension benefits

to November 2001, and clarification of his rights to future

benefits. The district court remanded this claim to the

Appeals Committee so Gabriel could exhaust his

administrative remedies. The district court rejected Gabriel’s

claim that the defendants were equitably estopped to deny

him future pension benefits and granted summary judgment

to the defendants on this claim.

On remand before the Appeals Committee, Gabriel no

longer argued that he had satisfied the Plan’s vesting

requirements, but argued that his pension benefits should be

reinstated because he had relied to his detriment on the 1997

determination by the pension representative that he was

eligible for those benefits. The Appeals Committee rejected

this claim, finding that Gabriel was properly informed of the

ten-year vesting requirement in the Fund’s letters to him of

November 20 and December 3, 1979. It also held that, even

if Gabriel relied to his detriment on the pension

representative’s statements, he was not entitled to have those

benefits reinstated in violation of the express terms of the

Plan.

In its second order, the district court rejected Gabriel’s

claims under § 1132(a)(3)(B) that he was entitled to equitable
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 11

relief due to the Fund’s breaches of fiduciary duty because

part of the relief Gabriel sought (compensatory damages in

the form of benefits) was not equitable, and he was not

entitled to the equitable relief he sought (restitution or the

imposition of a constructive trust) given his failure to show

any fraud by the Fund.

In its third order, the district court held that it would

review the Appeals Committee’s final denial of benefits

under an abuse of discretion standard, because the Plan

provided the trustees with broad discretion to construe the

terms of the Plan. The court rejected Gabriel’s claim that the

Fund had waived its argument that he did not satisfy the

Plan’s vesting requirement, as well as Gabriel’s argument that

the Fund breached its obligation to inform him that he was

non-vested in 1979. Under its deferential standard of review,

the district court concluded that the Appeals Committee’s

determination that Gabriel had been properly informed of the

ten-year vesting requirement in the letters of November 20

and December 3, 1979, was not clearly erroneous. The court

therefore granted summary judgment in favor of the

defendants on Gabriel’s benefits claim.

After the district court resolved all his claims, Gabriel

timely appealed. We review a district court’s grant of

summary judgment de novo, and must determine, viewing the

evidence in the light most favorable to the non-moving party,

whether there are any genuine issues of material fact. 

Tremain v. Bell Indus., Inc., 196 F.3d 970, 975–76 (9th Cir.

1999). We review de novo the district court’s conclusion that

an ERISA fiduciary did not abuse its discretion. Winters v.

Costco Wholesale Corp., 49 F.3d 550, 552 (9th Cir. 1995).
12 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

II

We begin by considering Gabriel’s argument that the

defendants violated their fiduciary duties under ERISA or the

terms of the Plan, for which he is entitled to “appropriate

equitable relief” under § 1132(a)(3).3

A

The civil enforcement provisions of ERISA, codified in

§ 1132(a), are “the exclusive vehicle for actions by

ERISA-plan participants and beneficiaries asserting improper

processing of a claim for benefits.” Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 52 (1987). Courts may not “infer

[additional] causes of action in the ERISA context, since that

statute’s carefully crafted and detailed enforcement scheme

provides ‘strong evidence that Congress did not intend to

authorize other remedies that it simply forgot to incorporate

expressly.’” Mertens v. Hewitt Assocs., 508 U.S. 248, 254

(1993) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.

134, 146–147 (1985)). Under ERISA, the issue is not

 

3

 Section 1132(a)(3) provides in pertinent part:

(a) Persons empowered to bring a civil action

A civil action may be brought— . . .

(3) by a participant, beneficiary, or fiduciary (A) to

enjoin any act or practice which violates any provision

of this subchapter or the terms of the plan, or (B) to

obtain other appropriate equitable relief (i) to redress

such violations or (ii) to enforce any provisions of this

subchapter or the terms of the plan . . . .

29 U.S.C. § 1132(a)(3).
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 13

whether the statute bars a particular cause of action, but rather

“whether the statute affirmatively authorizes such a suit.” Id.

at 255 n.5.

Section 1132(a)(3) provides that “[a] civil action may be

brought . . . (3) by a participant, beneficiary, or fiduciary . . .

(B) to obtain other appropriate equitable relief (i) to redress

[any act or practice which violates any provision of this

subchapter or the terms of the plan] or (ii) to enforce any

provisions of this subchapter or the terms of the plan.” 

29 U.S.C. § 1132(a)(3). Under this provision, a plaintiff must

prove both (1) that there is a remediable wrong, i.e., that the

plaintiff seeks relief to redress a violation of ERISA or the

terms of a plan, see Mertens, 508 U.S. at 254; and (2) that the

relief sought is “appropriate equitable relief,” 29 U.S.C.

§ 1132(a)(3)(B). A claim may fail if the plaintiff cannot

establish the second prong, that the remedy sought is

“appropriate equitable relief” under § 1132(a)(3)(B),

regardless whether “a remediable wrong has been alleged.” 

Mertens, 508 U.S. at 254.

The Supreme Court has made clear that “appropriate

equitable relief” refers to a “remedy traditionally viewed as

‘equitable.’” Id. at 255. Because “ERISA abounds with the

language and terminology of trust law,” Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), the Court

relies heavily on trust law doctrine in interpreting ERISA,

see, e.g., Conkright v. Frommert, 559 U.S. 506, 512 (2010)

(stating that, when “ERISA’s text does not directly resolve

the matter,” the Court has “looked to ‘principles of trust law’

for guidance” (quoting Firestone, 489 U.S. at 109)).

In interpreting § 1132(a)(3), the Court has distinguished

between equitable and legal relief. According to the Court,
14 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

Congress intended to limit the relief available under

§ 1132(a)(3) to “those categories of relief that were typically

available in equity (such as injunction, mandamus, and

restitution, but not compensatory damages),” Mertens,

508 U.S. at 256, and did not authorize any legal remedies,

even though an equity court was empowered to grant such

relief, id. at 256–59. Accordingly, in Mertens the Court

rejected the plaintiffs’ efforts to seek money damages to

remedy alleged breaches of fiduciary duty. Id. at 255. 

Further, the Court held that plaintiffs may not disguise an

attempt to obtain monetary relief as a traditional equitable

remedy. For example, “an injunction to compel the payment

of money past due under a contract, or specific performance

of a past due monetary obligation, was not typically available

in equity,” and thus is not available under § 1132(a)(3). 

Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,

210–11 (2002). And although restitution can be an equitable

remedy, “not all relief falling under the rubric of restitution

is available in equity.” Id. at 212. For instance, a plaintiff

“had a right to restitution at law through an action derived

from the common-law writ of assumpsit.” Id. at 213. But “a

plaintiff could seek restitution in equity” only “where money

or property identified as belonging in good conscience to the

plaintiff could clearly be traced to particular funds or property

in the defendant’s possession.” Id.

While ruling out legal remedies and limiting the

availability of injunction, mandamus, and restitution in

Mertens and Great-West Life, the Supreme Court has

identified three forms of traditional equitable relief that may

be available under § 1132(a)(3).

First, “appropriate equitable relief” may include “the

reformation of the terms of the plan, in order to remedy the
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 15

false or misleading information” provided bya plan fiduciary.

CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1879 (2011). The

power to reform contracts is available only in the event of

mistake or fraud. Id.; see also Skinner v. Northrop Grumman

Ret. Plan B, 673 F.3d 1162, 1166 (9th Cir. 2012). A plaintiff

may obtain reformation based on mistake in two

circumstances: (1) “if there is evidence that a mistake of fact

or law affected the terms of [a trust] instrument and if there

is evidence of the settlor’s true intent”; or (2) “if both parties

[to a contract] were mistaken about the content or effect of

the contract” and the contract must be reformed “to capture

the terms upon which the parties had a meeting of the minds.” 

Skinner, 673 F.3d at 1166. Under a fraud theory, a plaintiff

may obtain reformation when either (1) “[a trust] was

procured by wrongful conduct, such as undue influence,

duress, or fraud,” or (2) a “party’s assent [to a contract] was

induced by the other party’s misrepresentations as to the

terms or effect of the contract” and he “was justified in

relying on the other party’s misrepresentations.” Id.

Second, “appropriate equitable relief” may include the

remedy of equitable estoppel, which holds the fiduciary “to

what it had promised” and “‘operates to place the person

entitled to its benefit in the same position he would have been

in had the representations been true.’” Amara, 131 S. Ct. at

1880 (quoting James W. Eaton, Handbook of Equity

Jurisprudence § 62, p.176 (1901)). Under this theory of

relief:

“(1) the party to be estopped must know the

facts; (2) he must intend that his conduct shall

be acted on or must so act that the party

asserting the estoppel has a right to believe it

is so intended; (3) the latter must be ignorant
16 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

of the true facts; and (4) he must rely on the

former’s conduct to his injury.”

Greany v. W. Farm Bureau Life Ins. Co., 973 F.2d 812, 821

(9th Cir. 1992) (quoting Ellenburg v. Brockway, Inc.,

763 F.2d 1091, 1096 (9th Cir. 1985)); see also 1 John Norton

Pomeroy, A Treatise on Equity Jurisprudence § 805,

pp.190–98 (5th ed. 1941).

A plaintiff seeking equitable estoppel in the ERISA

context must meet additional requirements.4 First, we have

consistently held that a party cannot maintain a federal

equitable estoppel claim in the ERISA context when recovery

on the claim would contradict written plan provisions. 

Greany, 973 F.2d at 822 (non-trust fund defendants);

Davidian v. S. Cal. Meat Cutters Union & Food Emps.

Benefit Fund, 859 F.2d 134, 136 (9th Cir. 1988) (trust fund

defendant). This principle is derived from ERISA’s

requirement that “[e]very employee benefit plan shall be

established and maintained pursuant to a written instrument.” 

29 U.S.C. § 1102(a)(1). The purpose of this requirement is to

protect “the plan’s actuarial soundness by preventing plan

4 Although our cases have sometimes discussed equitable estoppel

claims as if they were independent causes of action, see, e.g., Greany,

973 F.2d at 821, the Supreme Court has now clarified that courts may not

“infer causes of action in the ERISA context” beyond what is set forth in

the statute, and has instructed us to analyze equitable estoppel as a form

of “appropriate equitable relief” under § 1132(a)(3)(B), Mertens, 508 U.S.

at 254. But because our estoppel precedent relied on traditional equitable

principles, see United States v. Ga.-Pac. Co., 421 F.2d 92, 96 (9th Cir.

1970) (citing 3 Pomeroy, Equity Jurisprudence §§ 801–02, 804), and

Lavin v. Marsh, 644 F.2d 1378, 1382 (9th Cir. 1981)), it continues to

inform our understanding of what constitutes “appropriate equitable

relief.”
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 17

administrators from contracting to pay benefits to persons not

entitled to them under the express terms of the plan.” 

Rodrigue v. W. & S. Life Ins. Co., 948 F.2d 969, 971 (5th Cir.

1991); see also Greany, 973 F.2d at 822 (citing Rodrigue,

948 F.2d at 971). Accordingly, a plaintiff may not bring an

equitable estoppel claim that “would result in a payment of

benefits that would be inconsistent with the written plan,” or

would, as a practical matter, result in an amendment or

modification of a plan, because such a result “would

contradict the writing and amendment requirements of

29 U.S.C. §§ 1102(a)(1) and (b)(3).” Greany, 973 F.2d at

822. For the same reason, “oral agreements or modifications

cannot be used to contradict or supersede the written terms of

an ERISA plan.” Richardson v. Pension Plan of Bethlehem

Steel Corp., 112 F.3d 982, 986 n.2 (9th Cir. 1997); see also

Thurber v. W. Conf. of Teamsters Pension Plan, 542 F.2d

1106, 1109 (9th Cir. 1976) (per curiam) (holding in an

analogous context that an employee’s reliance on advice from

a pension administrator did not estop the pension fund from

denying benefits because “[t]he rights of other pensioners

must be considered, and the trust fund may not be deflated

because of the misrepresentation or misconduct of the

Administrator of the fund”). The same rule applies to

informal written interpretations of an ERISA plan. See Nat’l

Cos. Health Benefit Plan v. St. Joseph’s Hosp., 929 F.2d

1558, 1572 (11th Cir. 1998) (holding that “use of the law of

equitable estoppel to enforce informal written interpretations

will not undermine the integrity of ERISA plans”), abrogated

on other grounds by Geissal v. Moore Med. Corp., 524 U.S.

74 (1998). Nevertheless, we have distinguished “between

oral statements that contradict or supersede the terms of an

ERISA plan and oral interpretations of a plan’s provisions

that are not contrary to the plan’s written provisions,” and
18 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

may give effect to interpretations of ambiguous plan

provisions. Richardson, 112 F.3d at 986 n.2.

Second, we have held that an ERISA beneficiary seeking

to recover benefits under an equitable estoppel theory must

establish “extraordinary circumstances.” Pisciotta v.

Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996) (per

curiam). “The actuarial soundness of pension funds is, absent

extraordinary circumstances, too important to permit trustees

to obligate the fund to pay pensions to persons not entitled to

them under the express terms of the pension plan.” Phillips

v. Kennedy, 542 F.2d 52, 55 n.8 (8th Cir. 1976); see also

Rosen v. Hotel & Rest. Emps. & Bartenders Union of Phila.,

637 F.2d 592, 598 (3d Cir. 1981). Although we have not

defined “extraordinary circumstances” in this context, courts

have held that making “a promise that the defendant

reasonably should have expected to induce action or

forbearance on the plaintiff’s part,” Devlin v. Empire Blue

Cross & Blue Shield, 274 F.3d 76, 86 (2d Cir. 2001), as well

as “conduct suggesting that [the employer] sought to profit at

the expense of its employees,” a “showing of repeated

misrepresentations over time,” or evidence “that plaintiffs are

particularly vulnerable,” Kurz v. Phila. Elec. Co., 96 F.3d

1544, 1553 (3d Cir. 1996), can constitute extraordinary

circumstances.

Accordingly, to maintain a federal equitable estoppel

claim in the ERISA context, the party asserting estoppel must

not onlymeet the traditional equitable estoppel requirements,

but must also allege: (1) extraordinary circumstances;

(2) “that the provisions of the plan at issue were ambiguous

such that reasonable persons could disagree as to their

meaning or effect”; and (3) that the representations made

about the plan were an interpretation of the plan, not an
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 19

amendment or modification of the plan. Spink v. Lockheed

Corp., 125 F.3d 1257, 1262 (9th Cir. 1997) (citing Pisciotta,

91 F.3d at 1331); see also Greany, 973 F.2d at 822 n.9 (“A

plaintiff must first establish that the plan provision in

question is ambiguous and the party to be estopped

interpreted this ambiguity. If these requirements are satisfied,

the plaintiff may proceed with the equitable estoppel claim by

satisfying” traditional equitable estoppel requirements.).

Third, “appropriate equitable relief” also includes

“surcharge,” defined as “the power to provide relief in the

form of monetary ‘compensation’ for a loss resulting from a

trustee’s breach of duty, or to prevent the trustee’s unjust

enrichment.” Amara, 131 S. Ct. at 1880 (citing Restatement

(Third) of Trusts § 95 & cmt. a (Tent. Draft No. 5, Mar. 2,

2009)). Under the traditional equitable principles specified

in Amara, id. at 1879–80, the surcharge remedywas available

when a breach of trust committed by a fiduciary resulted in a

loss to the trust estate or allowed the fiduciary to profit at the

expense of the trust. See Restatement (Second) of Trusts

§ 205 (1959) (limiting a trustee’s liability for breach of trust

to “any loss or depreciation in the value of the trust estate,”

“any profit which would have accrued to the trust estate,” and

“any profit made by [the trustee]”); see also George Gleason

Bogert et al., The Law of Trusts and Trustees § 862 (2013)

(defining the three primary measures of damages for breach

of trust to include “the loss in the value of the trust estate,”

“any profit [the trustee] has made,” and “profit that would

have accrued to the trust”); 4 Austin Wakeman Scott, William

Franklin Fratcher, & Mark L. Ascher, Scott and Ascher on

Trusts § 24.9, pp.1686–87 (5th ed. 2007) (same). Under

these circumstances, a surcharge remedy can protect the

beneficiaries of a trust by making the trust estate whole. “If

a breach of trust causes a loss, including any failure to realize
20 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

income, capital gain, or appreciation that would have resulted

from proper administration, the beneficiaries are entitled to

restitution and may have the trustee surcharged for the

amount necessary to compensate fully for the consequences

of the breach.” Restatement (Third) of Trusts § 95 & cmt. b

(2012). However, “[t]he trustee is not subject to surcharge

for a breach of trust that results in no loss to the estate” or

profit to the trustee. 4 Scott and Ascher on Trusts § 24.9,

p.1693; see also id. § 24.10, pp.1707–08; Thomas Lewin, A

Practical Treatise on the Law of Trusts and Trustees ch. 26,

§ 3, p.604 (2d ed. 1858) (“In the event of a breach of trust, the

cestui que trust is entitled to file a bill against the trustee

. . . to compel from him personally a compensation for the

loss the trust estate has sustained.”).

Contrary to the dissent, Amara did not suggest that the

remedy of surcharge is available to provide any sort of

“[m]ake-whole relief for breach of fiduciary duty against a

trustee” regardless “whether or not traditional trust law would

have provided that relief under the ‘surcharge’ terminology.” 

Dissent at 39. Rather, the Supreme Court followed its prior

interpretation of “appropriate equitable relief” as including

only traditional equitable remedies. See Amara, 131 S. Ct. at

1878 (observing that “appropriate equitable relief” refers to

“those categories of relief that . . . were typically available in

equity” (internal quotation marks and citation omitted)). In

this vein, the Court carefully distinguished Mertens, which

had held that “appropriate equitable relief” did not include

“‘compensatory damages’ against a nonfiduciary.” Id. at

1878 (quoting Mertens, 508 U.S. at 255). The Court pointed

out that while Mertens disallowed a monetary remedy against

a non-fiduciary under § 1132(a)(3), traditional equitable

principles allowed surcharge as a “monetary remedy against

a trustee,” and “[t]hus, insofar as an award of make-whole
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 21

relief is concerned, the fact that the defendant in [Amara],

unlike the defendant in Mertens, is analogous to a trustee

makes a critical difference.” Id. at 1880 (emphasis added). 

In explaining the scope of traditional equitable remedies,

including surcharge, available against a trustee, the Court

relied on standard trust treatises. See, e.g., id. at 1881 (citing

4 Scott and Ascher on Trusts § 24.9, for the principle that “a

court of equitywould not surcharge a trustee for a nonexistent

harm”). As the very section of Scott and Ascher on Trusts

cited in Amara explains, “[t]he trustee is not subject to

surcharge for a breach of trust that results in no loss to the

trust estate.” 4 Scott and Ascher on Trusts § 24.9, p.1693.5

We followed the traditional equitable principles and

treatises relied on in Amara in our subsequent decision in

Skinner, where we held that surcharge is an appropriate form

of equitable relief to redress losses of value or lost profits to

the trust estate and to require a fiduciary to disgorge profits

from unjust enrichment. 673 F.3d at 1167. Specifically,

Skinner held that if a trustee breaches a fiduciary duty: (1) the

remedy of surcharge is available against the fiduciary “for

benefits it gained through unjust enrichment or for harm

caused as the result of its breach”; and (2) the trustee “could

be liable for loss of value to the trust or for any profits that

the trust would have accrued in the absence of the breach,” in

order to return the beneficiary to “the position he or she

 

5

 While Amara made the important determination that surcharge was a

form of “appropriate equitable relief” potentially available under

§ 1132(a)(3), the Supreme Court concluded that it “need not decide which

remedies are appropriate on the facts of this case.” 131 S. Ct. at 1880. 

Indeed, the Supreme Court’s analysis ofsurcharge was necessarily limited

because neither the district court nor the Second Circuit had addressed the

applicability of a surcharge remedy, see id. at 1882, and the parties had

not briefed the issue, see id. at 1885 & n.3 (Scalia, J., concurring).
22 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

would have attained but for the trustee’s breach.” Id.

Skinner’s identification of the two circumstances in which

surcharge may be available is consistent with the

Restatements of Trusts it cites, see id. (citing Restatement

(Third) Trusts § 100(b) (2012), and Restatement (Second) of

Trusts § 205 (1959)), as well as with the treatises cited by the

Supreme Court in Amara, including Bogert, The Law of

Trusts and Trustees § 862, and 4 Scott and Ascher on Trusts

§ 24.9, see 131 S. Ct. at 1880–81.

Relying on McCravy v. Metropolitan Life Insurance Co.,

690 F.3d 176 (4th Cir. 2012), Gabriel argues that surcharge

is available more broadly than these traditional equitable

principles suggest, and claims that he is entitled to makewhole relief, even if it comes at the expense of the trust

estate. We disagree. McCravy, as well as subsequent similar

decisions from the Fifth and Seventh Circuits, see Kenseth v.

Dean Health Plan, Inc., 722 F.3d 869 (7th Cir. 2013);

Gearlds v. Entergy Servs., Inc., 709 F.3d 448 (5th Cir. 2013),

did not define the availability of surcharge, or even address

whether the plaintiff was entitled to relief, see, e.g., McCravy,

690 F.3d at 181–82 (“Whether McCravy’s breach of fiduciary

duty claim will ultimately succeed and whether surcharge is

an appropriate remedy under Section 1132(a)(3) in the

circumstances of this case are questions appropriately

resolved in the first instance before the district court.”). 

Instead, these circuits merely corrected district courts’

erroneous interpretations of Mertens as precluding recovery

of any monetary relief and remanded for the district courts to

assess the merits of the plaintiffs’ claims, along with the

appropriateness of the surcharge remedy, in the first instance. 

See Kenseth, 722 F.3d at 883; Gearlds, 709 F.3d at 452;
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 23

McCravy, 690 F.3d at 181–82.6 Accordingly, none of these

circuits has had the opportunity to review the traditional trust

law doctrines on which the Supreme Court relies and

determine the sorts of surcharge remedies that may be

available under those doctrines. See Amara, 131 S. Ct. at

1878 (defining “appropriate equitable relief” in § 502(a)(3) as

“referring to ‘those categories of relief’ that, traditionally

speaking . . . ‘were typically available in equity’”) (quoting

Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 361

(2006)). We are bound by our own precedent, which

correctly identifies surcharge as including only unjust

enrichment and losses to the trust estate. See Skinner,

673 F.3d at 1167.

B

We now turn to Gabriel’s claim under § 1132(a)(3) that

there is a genuine issue of material fact as to whether he is

entitled to “appropriate equitable relief.”7

6 For this reason, it is misleading for the dissent to state that these cases

“confirm that under Amara, surcharge is not limited to the circumstances

in which a trustee personally benefits from a breach of duty or a plan

incurs a loss.” Dissent at 41.

 

7

 We may address this issue before asking whether Gabriel has created

a genuine issue of material fact that the Fund violated the fiduciary duties

set forth in § 1104(a)(1)(A) and (B). See Mertens, 508 U.S. at 254–55

(evaluating whether the relief sought constituted “appropriate equitable

relief” and reserving decision on whether “a remedial wrong has been

alleged”).
24 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

1

We first consider Gabriel’s argument that he is entitled to

an order equitably estopping the Fund from relying on its

corrected records that show his actual years of service.8

Gabriel claims he meets the test for traditional equitable

estoppel because: (1) the defendants were aware that he was

not vested; (2) they nevertheless informed him in the January

7, 1997 letter that he would receive a monthly pension, and

Gabriel was entitled to rely on this letter; (3) Gabriel was

ignorant of the true facts; and (4) Gabriel relied on the

misinformation in the January 1997 letter to his detriment by

retiring at age 62 when he could have continued working. 

Further, Gabriel asserts that he has met the additional

requirements set forth in Spink, because the provisions of the

Plan were ambiguous, the plan representative provided an

interpretation of the Plan, and there were extraordinary

circumstances, including that the defendants operated under

a conflict of interest and violated the procedural requirements

of ERISA.

We need not determine whether Gabriel has raised a

genuine issue of material fact as to every element of his

equitable estoppel claim because we conclude that Gabriel

has failed to show that the plan representative’s January 1997

letter was an interpretation of ambiguous language in the

Plan, rather than a mere mistake in assessing Gabriel’s

8 Gabriel’s request for relief has changed over the course of this

litigation. In his complaint, Gabriel asserted that the defendants should be

estopped fromdenying that he qualified as a vested participant in the Plan. 

Because he now concedes that he did not vest in the Plan, he instead

asserts that the defendants should be estopped from refusing to change the

Fund’s records to show him as vested.
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 25

entitlement to benefits. On its face, the letter does not

provide an interpretation of the Plan, but merely provides the

erroneous information that Gabriel is entitled to benefits of

$1,236 per month upon retirement. Such an error in

calculating benefits is just the sort of mistake that we

repeatedly have held cannot provide a basis for equitable

estoppel. We have made clear that “[a] plaintiff cannot avail

himself of a federal ERISA estoppel claim based upon

statements of a plan employee which would enlarge his rights

against the plan beyond what he could recover under the

unambiguous language of the plan itself.” Greany, 973 F.2d

at 822; see also Renfro v. Funky Door Long Term Disability

Plan, 686 F.3d 1044, 1054 (9th Cir. 2012) (holding that “a

beneficiary cannot obtain recovery on the basis of estoppel

‘in the face of contrary, written plan provisions’”) (quoting

Davidian, 859 F.2d at 134)). “Our precedent dictates that a

trust fund can never be equitably estopped where payment

would conflict with the written agreement.” Greany,

973 F.2d at 822. Nor is this principle limited to trust fund

defendants, because we concluded in Greany that “no

compelling reason [existed] to allow an estoppel claim to

proceed solely because the individual or group to be estopped

is other than a trust.” Id.

To counter the weight of this precedent, Gabriel relies on

Spink, and claims that the type of misinformation he received

from the plan representative, when considered in conjunction

with various provisions in the Plan, makes certain provisions

in the Plan ambiguous as to him. To understand this

argument, we must first take an in-depth look at Spink. In

Spink, Lockheed hired the plaintiff, who was then 61 years

old, away from a competitor. 125 F.3d at 1259. As part of its

recruitment process, Lockheed represented that the plaintiff

could participate in Lockheed’s pension plan. Id. For the
26 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

next four years, Lockheed sent the plaintiff written year-end

statements notifying him of the amount of credited service he

had accumulated as a plan participant. Id. Eventually,

Lockheed notified him he was not eligible to participate in the

plan because he was over 60 when hired. Id. at 1259–60. 

Although the district court granted Lockheed’s motion to

dismiss, id. at 1259, we reversed, rejecting Lockheed’s

argument that the pension plan unambiguously excluded the

plaintiff from obtaining benefits, see id. at 1262–63.

In reaching that conclusion, we relied on two provisions

of Lockheed’s ERISA plan. The first provision stated that

“no Employee may become a Member if he commences

employment on or after December 25, 1976, and, at the time

of such commencement of employment, is sixty (60) years of

age or older.” Id. at 1262. The second provided that “once

each year the Retirement Plan Committee shall notify each

Member in writing of his total Credited Service, according to

the Corporation’s records. Such Credited Service shall be

considered correct and final unless the Member files an

objection by Filing With the Committee within thirty (30)

calendared days following such notice.” Id. Because the

plaintiff had received “correct and final” year-end statements

indicating that he had accrued credited service time, despite

having been older than 60 when hired, we concluded there

was sufficient ambiguity in the plan as applied to the plaintiff

to allow the case to survive Lockheed’s motion to dismiss. 

Id. at 1262–63.

Gabriel claims he is similarly situated to the employee in

Spink, and points to two different provisions in the Plan. 

First, he identifies the “unambiguous statement in the AEPF

plan that ten years of service are required.” This ten-year
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 27

vesting requirement is reflected in both section 5.01,9 which

sets the normal retirement date, and section 8.03,10entitled

“vesting,” which explains when a terminated participant will

be considered to have vested. Second, section 14.02 states

that participants in the Plan “shall be entitled to obtain

periodic reports showing the number of hours credited to their

accounts at the administration office” and may show they are

entitled to additional hours by filing a claim and evidence

with the administration office within one year after the end of

the disputed year. Otherwise the “hours shall remain as

 

9

 Section 5.01(a) provides in relevant part:

The Normal Retirement Date for a Participant shall be

the first day of the month coincident with or

immediately following his attainment of age 62, or one

year after his Effective Date of Coverage, whichever is

later and the date he has:

(a) completed ten (10) Years of Service, of which at

least one year must be Credited Future Service . . . .

 

10 Section 8.03 provides in relevant part:

A Participant who prior to January 1, 1978, fails to earn

a total of at least 500 Hours of Service in a twoconsecutive Plan Year period and a Participant, who on

or after January 1, 1978, fails to earn at least 500 Hours

of Service in a Plan Year shall be deemed a Terminated

Vested Participant provided he has completed ten (10)

or more Years of Service, of which one year was

Credited Future Service. Once he attains age 55, he

shall be eligible to apply for a Retirement Income in

accordance with the applicable provisions of Article

VII[, which sets the amount of retirement income].
28 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

credited.”11 According to Gabriel, the Fund gave him an

unequivocal written statement that he would be entitled to

$1,236 per month if he retired in 1997, implicitly indicating

that he had enough hours of service to vest. Gabriel reasons

that, because he did not challenge the Fund’s implicit

indication that his service hours were sufficient for vesting,

the “hours shall remain as credited” under section 14.02. 

Gabriel concludes that the clash between the Fund’s implicit

hours calculation in the representative’s letter to him and the

Plan’s statement that ten years are required for vesting creates

an ambiguity in the Plan’s provisions.

We disagree. Section 14.02 refers only to “periodic

reports showing the number of hours credited” to a

participant’s account. Gabriel does not claim he received or

relied on such periodic reports when deciding to retire. 

Therefore, even if section 14.02’s requirement that the hours

in such a report “shall remain as credited” could create an

ambiguity when read in connection with the vesting

requirements in sections 5.01 and 8.03 under some

circumstances, no such conflict exists in this case.

 

11 Section 14.02 states in pertinent part:

Participants shall be entitled to obtain periodic reports

showing the number of house credited to their accounts

at the administration office. Participants who contend

that they are entitled to be credited with a greater

number of hours for any calendar year must file

evidence in support of such claims with the

administration office within one year after the end of

the disputed year or the hours shall remain as credited. 

The Trustees shall determine the proper number of

hours, if any, to be credited to such Participants.
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 29

Because section 14.02 is not applicable to Gabriel’s

claims, we are left with his argument that the misinformation

provided by the plan representative in 1997 conflicts with the

clear language of sections 5.01 and 8.03. This conflict does

not cast doubt on the meaning or effect of those sections,

however, but merely establishes that the defendants made

misrepresentations, a necessary element of traditional

estoppel. Reasonable persons could not disagree regarding

the effect of sections 5.01 and 8.03. The plan representative’s

mistaken response to Gabriel’s inquiry therefore “does not

rise to the level of an interpretation of the plan’s provisions

justifying application of the equitable estoppel doctrine.” 

Greany, 973 F.2d at 822.

Even if Gabriel could show that the Plan was ambiguous,

he fails to satisfy another element necessary to qualify for

equitable estoppel: that he was ignorant of the true facts. 

Gabriel does not dispute that he received the Fund’s

November 20, 1979 letter. This letter informed Gabriel that

he had not been eligible to participate while a proprietor of

Twin Cities between 1975 and 1978, that his hours accrued

for Twin Cities would be deducted from his account, and that

he had been terminated under section 8.01 of the Plan, which

provides that a non-vested participant who, for any two

consecutive plan years, has less than 500 hours of service will

be deemed a terminated non-vested participant, absent

reinstatement or some other exception. Gabriel argues that

this letter was insufficient to inform him he was not vested,

because it did not expressly state that he was ineligible to

receive a pension unless he met certain criteria. The letter
30 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

itself belies this claim.12 Accordingly, the district court

properly concluded that Gabriel was not entitled to relief

based on estoppel as a matter of law.

2

We next turn to Gabriel’s claim that he is entitled to the

equitable remedy of reformation. To qualify for reformation

of the Plan based on mistake under trust or contract law

principles, Gabriel would need to demonstrate that “a mistake

of fact or law affected the terms” of the Plan, the relevant

trust instrument here, and introduce evidence of the trust

settlor’s (or contractual parties’) true intent. Skinner,

673 F.3d at 1166. Gabriel cannot meet this standard as a

matter of law, because the Plan itself does not contain an

error. Gabriel concedes that he was a sole proprietor of Twin

Cities from 1975 to 1978 and ineligible to participate in the

Plan during that time, and therefore the Fund’s current,

corrected records accurately reflect the agreement between

Gabriel and the Fund. Instead, Gabriel wants to reform the

Fund’s administrative records to conform to the

misinformation given him by the plan representative. But

reformation does not extend so far. The administrative

records are not part of the Plan, see Amara, 131 S. Ct. at

1877–78 (rejecting the use of non-plan summary documents

to create new or different plan terms), and the Fund’s

mistaken administrative records did not reflect the parties’

true intent in entering into the Plan. Accordingly, the remedy

of reformation due to mistake is not applicable in this context.

 

12 Because the November 20, 1979 letter establishes that Gabriel knew

or should have known that he was not vested, we do not need to reach his

argument that he never received the December 3, 1979 letter.
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 31

Nor has Gabriel demonstrated that he is entitled to

reformation based on fraud, because he does not allege that

the Plan “was procured by wrongful conduct, such as undue

influence, duress, or fraud” or that he “was justified in relying

on the [Fund’s] misrepresentations.” Skinner, 673 F.3d at

1166. Accordingly, Gabriel has not adduced evidence giving

rise to a genuine issue of material fact that he is entitled to

reformation.

Gabriel argues that our decision in Mathews v. Chevron

Corp., 362 F.3d 1172 (9th Cir. 2004), supports his

reformation claim. In Mathews, Chevron management

adopted a program to reduce its workforce by offering an

enhanced retirement benefit to any participant in Chevron’s

ERISA plan who was involuntarily terminated without cause,

including those employees who expressed an interest in such

“involuntary” termination. Id. at 1176–77. Despite this

program, plant general managers at first continued to exercise

significant personnel discretion. The Richmond plant general

manager repeatedly informed his employees that he did not

plan to adopt the enhanced benefit program, and certain

employees at the plant voluntarily retired. Id. at 1177. When

Chevron ultimately instituted the program at Richmond, the

retired employees sued for the enhanced benefits. Id. at

1177–78. It was undisputed that all of the employees would

have been selected for involuntary termination had they

expressed an interest. Id. at 1186. We held that Chevron

breached its fiduciary duty to these employees once it began

to seriouslyconsiderimplementing the program in Richmond. 

Therefore, we affirmed the district court’s order that Chevron

had to modify its records to show that the retired plaintiffs

had been involuntarily terminated and were eligible for

enhanced benefits. Id. at 1186–87. The remedy was

“appropriate equitable relief” because it operated merely to
32 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

provide the participants with the benefits they would have

been received but for the breach. Id. (internal quotation

marks omitted).

Mathews does not help Gabriel here. In Mathews, the

employees had been eligible to participate in the enhanced

benefits program, and would have participated but for the

fiduciary’s misinformation. Id. at 1186. Here, by contrast,

Gabriel was not eligible to participate in the Plan, and the

misinformation he received in 1997 from a plan

representative did not prevent him from obtaining any benefit

under the Plan to which he otherwise would have been

entitled. Whereas the order in Mathews allowed the

employees to get the benefit of the involuntary termination

program, but did not alter the terms of the Plan as written, see

id. at 1186–87, the order Gabriel seeks here necessarily

would require violating the terms of the Plan by deeming an

ineligible person to be eligible for pension benefits. 

Equitable remedies are not available where the claim “would

result in a payment of benefits that would be inconsistent with

the written plan.” Greany, 973 F.2d at 822.

3

Finally, we turn to Gabriel’s claim that he is entitled to

the equitable remedy of surcharge, to receive an amount equal

to the benefits he would have received if he had been a

participant with the hours erroneously reflected in the Fund’s

records when he applied for benefits. This claim also fails. 

While a trust beneficiary may remedy unjust enrichment

through surcharge by requiring “[a] trustee (or a fiduciary)

who gains a benefit by breaching his or her duty [to] return

that benefit to the beneficiary,” Skinner, 673 F.3d at 1167,

Gabriel does not argue that any of the defendants here were
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 33

unjustly enriched by their alleged breaches of fiduciary duty. 

Nor could he, because the defendants merely prevented

Gabriel from receiving benefits that he was not entitled to

receive under the Plan, and such actions appropriately

discharged the fiduciaries’ duty to act “solely in the interest

of the participants and beneficiaries,” the individuals eligible

to receive such benefits from the Fund. 29 U.S.C.

§ 1104(a)(1); see also id. § 1002(7), (8) (defining

“participant” and “beneficiary” to require potential

“eligibil[ity] to receive a benefit” under a plan).

Nor is Gabriel seeking a monetary award to recoup losses

the Fund suffered from any fiduciary’s breach. Under

traditional trust principles, “[a] trustee who breaches his or

her duty could be liable for loss of value to the trust or for any

profits that the trust would have accrued in the absence of the

breach,” and “[t]he beneficiary can pursue the remedy that

will put the beneficiary in the position he or she would have

attained but for the trustee’s breach.” Skinner, 673 F.3d at

1167. In short, the beneficiary is entitled to restoration of the

trust res, not to benefit at the expense of other beneficiaries. 

Indeed, under traditional trust law principles, a beneficiary

could be obliged to repay any payments received in error

from the trust. See Bogert, The Law of Trusts and Trustees

§ 191 (“A co-beneficiary owes his fellow beneficiaries a duty

to restore to the trust fund payments made to him from trust

principal or income which were improperly made, either due

to mistake or willful breach of trust.”). Because the surcharge

remedy Gabriel seeks would not restore the trust estate, but

rather would wrongfully deplete it by paying him benefits he

is not eligible to receive under the Plan, under Skinner and

trust law principles, Gabriel is not entitled to surcharge as a

remedy under § 1132(a)(3) as a matter of law.
34 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

Because Gabriel is not entitled to estoppel, reformation,

or surcharge, as a matter of law, we affirm the district court’s

grant of summary judgment in favor of the defendants on

Gabriel’s breach of fiduciary and co-fiduciary duty claims

under § 1132(a)(3).13 The basis for our decision obviates the

need for us to reach the question whether the defendants’

actions here breached their fiduciaryduty by violating ERISA

or the terms of the Plan. Mertens, 508 U.S. at 254–55.

III

We now turn to Gabriel’s argument under § 1132(a)(1)

that the defendants erred in denying him benefits on the

ground that he was non-vested. Gabriel does not claim that

the Fund erred in determining that he had not vested in the

Plan. Rather, he argues that the Fund waived this rationale

for denying him benefits because the Fund did not raise his

non-vested status until 2004, three years after the Fund first

suspended benefits on the ground that Gabriel was engaged

in improper post-retirement work in the industry.

The Fund did not abuse its discretion here. Under

ERISA, an employee benefit plan must “provide adequate

notice in writing to any participant or beneficiary whose

claim for benefits under the plan has been denied” and must

“afford a reasonable opportunity to any participant whose

claim for benefits has been denied for a full and fair review

by the appropriate named fiduciary of the decision denying

the claim.” 29 U.S.C. § 1133; see also 29 C.F.R.

13 Gabriel’s breach of co-fiduciary duty claim fails for the same reasons

as his breach of fiduciary duty claim. See 29 U.S.C. § 1105(a) (creating

co-fiduciary liability in certain circumstances when there is an underlying

breach of another fiduciary’s duty).
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 35

§ 2560.503–1(g)(1), (h)(2). Given these statutory and

regulatory requirements, we have held that an administrator

may not raise a new reason for denying benefits in its final

decision, because that would effectively preclude the

participant “from responding to that rationale for denial at the

administrative level,” and insulate the rationale from

administrative review. Abatie v. Alta Health & Life Ins. Co.,

458 F.3d 955, 974 (9th Cir 2006) (en banc); see also Saffon

v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d

863, 871 (9th Cir. 2008) (holding that a plan administrator

must provide a participant with the reasons for a benefits

denial at a time when the participant “had a fair chance to

present evidence on this point,” and should not add a new

reason in the administrator’s final denial). Where the

administrator’s final denial contains a new rationale for

denying a claim, the participant may present evidence on that

point to the district court, which must consider it. Saffon,

522 F.3d at 872. Further, the district court can take into

account the administrator’s violation of ERISA’s procedural

requirements in determining how much deference to give the

administrator’s final decision. Id. at 873.

In this case, the Fund did not violate ERISA’s procedural

requirements because it notified Gabriel regarding his nonvested status while Gabriel’s administrative case was still

pending before the Appeals Committee. The Fund did not

put a new rationale for denying benefits into a final decision

in a manner that would insulate the denial from

administrative review. Cf. Abatie, 458 F.3d at 974. The

Appeals Committee had not yet ruled on Gabriel’s claim for

benefits when it discovered his non-vested status, and nothing

precluded Gabriel from further litigating the Fund’s decision

to deny him benefits through the Fund’s administrative

review process. Indeed, Gabriel had the opportunity to
36 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

present evidence to the Appeals Committee on this veryissue,

because the district court remanded his benefits claim to the

Appeals Committee. As we noted in Saffon, if a plan

administrator fails to give timely notice, the plaintiff is not

entitled to an award of benefits, but only to the opportunity to

present evidence to challenge the plan administrator’s new

determination. See 522 F.3d at 872–74. Gabriel got just such

a remedy in this case. Accordingly, we reject Gabriel’s

arguments that the Fund failed to comply with ERISA

procedural requirements, or that it waived its determination

that Gabriel never vested, and affirm the district court’s

deference to the Fund’s denial of benefits.

IV

Because Gabriel cannot demonstrate that he is entitled to

any of the equitable remedies available under § 1132(a)(3), or

that the Fund waived its argument that he never vested, we

affirm the district court’s grant of summary judgment in favor

of the defendant.

AFFIRMED.

BERZON, Circuit Judge, concurring and dissenting:

The majority opinion disregards Supreme Court guidance

in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (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

II(B)(3) of the majority opinion, but concur in the remainder.
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 37

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 makewhole relief,” then “the remedies . . . fall within the scope of

the term ‘appropriate equitable relief.’” Id.(citation omitted).

The majority understands Amara otherwise — as

providing for make-whole relief against a trustee for breach

of fiduciary duty only when the breach (1) “result[s] in a loss

to the trust estate[;]” or (2) “allow[s] the fiduciary to profit at

the expense of the trust.” Maj. Op. at 19; see also id. at 33

(quoting Skinner, 673 F.3d at 1167). As Gabriel has failed to

demonstrate either an unjust enrichment by a trustee or a loss

to the plan, the majority holds he is not entitled to surcharge

as a matter of law. Id. at 32–34.

But the holding of Amara is not so limited. Amara noted

that the “surcharge remedy [had] extended to a breach of trust

committed by a fiduciary encompassing any violation of a

duty imposed upon that fiduciary.” 131 S. Ct. at 1880

(emphasis added); see also J. Eaton, Handbook of Equity

Jurisprudence § 212, at 439 (1901) (“A breach of trust by a

trustee creates a personal obligation . . . which may be

enforced against the trustee or his estate in a proper

proceeding.”). Explaining its reasoning, Amara noted that
38 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

“before the merger of law and equity,” a beneficiary could

bring suit for breach of fiduciary duty “only in a court of

equity, not a court of law.” 131 S. Ct. at 1879. Equity courts

accordingly developed “specially tailored remedies” such as

surcharge “to fit the nature of the right they sought to protect

because ‘[e]quity suffers not a right to be without a remedy.’” 

Kenseth v. Dean Health Plan, Inc., 722 F.3d 869, 878 (7th

Cir. 2013) (quoting Amara, 131 S. Ct. at 1879) (quotation

marks and citation omitted). The broad character of the

remedies identified in Amara is clearly described in the

portion of a treatise it quoted:

Equity is primarily responsible for the

protection of rights arising under trust, and

will provide the beneficiary with whatever

remedy is necessary to protect him and

recompense him for loss, in so far as this can

be done without injustice to the trustee or

third parties.

The court is not confined to a limited list of

remedies but rather will mold the relief to

protect the rights of the beneficiary according

to the situation involved.

G. Bogert & G. Bogert, Trusts and Trustees § 861 at 3–4 (rev.

2d ed. 1995) (second sentence quoted in Amara, 131 S. Ct. at

1881).

“Thus, insofar as an award of make-whole relief is

concerned, the fact that the defendant . . . is analogous to a

trustee makes a critical difference.” Amara, 131 S. Ct. at

1880 (distinguishing prior case law concerning non-fiduciary

defendants). Beyond that “critical difference,” id., Amara
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 39

was concerned with whether relief sought under 29 U.S.C.

§ 1132(a)(3) “resembles forms of traditional equitable relief,”

id. at 1879 (emphasis added), not whether the precise

requirements for obtaining such relief under the common law

of trusts are met. Make-whole relief for breach of fiduciary

duty against a trustee conforms to that description, whether or

not traditional trust law would have provided that relief under

the “surcharge” terminology.

Given its breadth, Amara has rightly been described as a

“‘[a] striking development,’” McCravy v. Metro. Life Ins.

Co., 690 F.3d 176, 180 (4th Cir. 2012), “that significantly

altered the understanding of equitable relief available under”

§ 1132(a)(3), Kenseth, 722 F.3d at 876, in cases alleging a

breach of fiduciary duty. Indeed, several other circuits have

overruled their own precedents in its wake. See, e.g.,

McCravy, 690 F.3d at 180 (“Before Amara, various lower

courts, including this one, had (mis)construed Supreme Court

precedent to limit severely the remedies available to plaintiffs

suing fiduciaries under [§] 1132(a)(3).”). The majority

nonetheless treats Amara as a continuation of prior case law,

Maj. Op. at 20, hardly citing it in the portion of its opinion

holding Gabriel not entitled to relief under § 1132(a)(3) as a

matter of law. See id. at 23–34.

The recent decisions from the Fourth, Fifth, and Seventh

Circuits confirm that the doctrine of surcharge is, after

Amara, not as narrow as the majority contends. In McCravy,

for example, the defendant accepted life insurance premiums

from a plan participant on behalf of the participant’s

daughter, even though the daughter was ineligible for

coverage. 690 F.3d at 178. When the participant filed a

claim for benefits following her daughter’s death, the plan

“attempted to refund multiple years’ worth of premiums”
40 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

rather than pay the claim. Id. The Fourth Circuit held that

under the surcharge doctrine, which it characterized as

“make-whole relief,” the participant’s “potential recovery”

was “not limited . . . to a premium refund.” Id. at 181. That

was so even though paying the participant’s benefits would

hold the fiduciaries liable neither for “loss of value to the

trust,” nor for “profits that the trust would have accrued in the

absence of the breach.” Skinner, 673 F.3d at 1167.

Similarly, the participant in Gearlds v. Entergy Services,

Inc., 709 F.3d 448 (5th Cir. 2013), waived medical benefits

available under his wife’s retirement based on his own plan’s

“assurances” that he would be covered for life. The plan later

determined that it had inaccurately “comput[ed] Gearlds’s

service time under the retirement plan” and withdrew his

medical coverage. Id. at 449–50. The Fifth Circuit held that

Gearlds stated a “plausible claim” for surcharge relief, id. at

452, again, notwithstanding that the medical benefits he

sought had nothing to do with unjust enrichment by a trustee

or a loss to the trust.

Finally, in Kenseth, the Seventh Circuit construed Amara

as stating a similarly broad view of surcharge — that “makewhole money damages” are an available “equitable remedy”

whenever a plan participant demonstrates (1) a breach of a

fiduciary duty, (2) causing damages. 722 F.3d at 882. 

Kenseth had undergone surgery based on the health plan’s

customer service representative’s assurance that the surgery

would be covered, but the plan subsequently denied coverage. 

Id. at 871–72. Noting that Amara “clarified that equitable

relief may come in the form of money damages when the

defendant is a trustee in breach of a fiduciary duty[,]” id. at

878–79, the Seventh Circuit held “that if Kenseth is able to

demonstrate a breach of fiduciary duty . . . , and if she can
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 41

show that the breach caused her damages, she may seek an

appropriate equitable remedy including make-whole relief in

the form of money damages,” id. at 883.

McCravy, Gearlds, and Kenseth confirm that under

Amara, surcharge is not limited to the circumstances in which

a trustee personally benefits from a breach of duty or a plan

incurs a loss. Instead, the remedy is based on equity courts’

“power to provide relief in the form of monetary

‘compensation’ for a loss resulting from a trustee’s breach of

duty,” and is intended to “make” a plan participant “whole.” 

Amara, 131 S. Ct. at 1880.

The majority disputes that these recent cases “define the

availability of surcharge.” Maj. Op. at 22. In the majority’s

view, these cases “merely corrected district courts’

erroneous” conclusions that no monetary relief was available

under § 1132(a)(3), and “remanded for the district courts to

assess . . . the appropriateness of the surcharge remedy, in the

first instance.” Id. at 22. These reasoned opinions from other

circuits cannot be dispatched so easily. Had they concluded,

like the majority here, that surcharge was limited to unjust

enrichment by a trustee or a loss to the plan, McCravy,

Gearlds, and Kenseth would have each held their respective

participant not entitled to surcharge as a matter of law. In

each case, a participant sought benefits to which he was not

entitled under the terms of the plan. There was neither

claimed unjust enrichment by the trustee nor a loss to the

plan. There was simply an alleged breach of fiduciary duty

and a loss of benefits to the participant himself. Although

each remanded to the district court to determine whether the

defendant “breached its fiduciary duty” and “[i]f so, . . .

whether that breach . . . harmed” the participant, the appellate

courts made clear that if these questions were answered in the
42 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

affirmative, the participant could “seek an appropriate

equitable remedy including make-whole relief in the form of

money damages.” Kenseth, 722 F.3d at 890, 883.

Indeed, the majority’s narrow view of Amara is

unsupported by the facts of that case itself, which involved

neither a loss to the trust estate nor unjust enrichment by the

fiduciary. The breach alleged in Amara was not the

underlying decision to alter CIGNA’s retirement benefit

offerings. Instead, it was the fiduciary’s “fail[ure] to give

[plan participants] proper notice of changes to their benefits,”

Amara, 131 S. Ct. at 1870, and instead sending “descriptions

of its new plan [which] were significantly incomplete and

misle[a]d[ing],” id. at 1872. Although the fiduciary saved

$10 million annually by changing the retirement benefits

available to its employees, those savings did not result from

the alleged breach. There is no indication that but-for the

improper notice, CIGNA would not have instituted the plan

changes and obtained the resulting savings. Indeed, the

district court in Amara noted that participants may not “have

received a larger benefit were the notices accurate,”

acknowledging that the harm caused by the improper notice

was different from the harm caused by the changes to the

plan. Amara v. Cigna Corp., 534 F. Supp. 2d 288, 353 (D.

Conn. 2008), aff’d, 348 F. App’x 627 (2d Cir. 2009), vacated

and remanded, 131 S. Ct. 1866 (2011). Amara was not,

therefore, a case in which “a breach of trust committed by a

fiduciary resulted in a loss to the trust estate or allowed the

fiduciary to profit at the expense of the trust” — the only two

circumstances in which the majority believes surcharge to be

available. Maj. Op. at 19.

Nor does our precedent in Skinner limit ERISA makewhole equitable relief for a breach of fiduciary duty to “only
GABRIEL V. ALASKA ELECTRICAL PENSION FUND 43

unjust enrichment and losses to the trust estate” such that we

are “bound” to hold as the majority does. Maj. Op. at 23. 

Although Skinner describes only two bases for surcharge, it

does not identify them as exclusive, or opine that no other

retroactive make-whole relief is available under § 1132(a)(3). 

Indeed, Skinner notes that “[t]he beneficiary can pursue the

remedy that will put the beneficiary in the position he or she

would have attained but for the trustee’s breach,” 673 F.3d at

1167, echoing the broader view of surcharge-like relief

expressed in Amara.

The majority opinion thus seriously misunderstands the

reach of Amara and brings us needlessly into conflict with all

other circuits to have considered the scope of the equitable

remedies available after Amara. I therefore dissent from the

majority’s limitations on the make-whole equitable relief

available under § 1132(a)(3).

As the majority holds Gabriel not entitled to an

“appropriate equitable remedy” under § 1132(a)(3) as a

matter of law, it affirms the district court without considering

whether Gabriel has raised a triable issue of fact as to the

other elements of a breach of fiduciary duty claim. I would

conclude he has.

There can be little dispute that the fiduciary defendants

breached their duties to Gabriel by giving him incorrect

information about his rights under the plan. See, e.g., Bins v.

Exxon Co. U.S.A., 220 F.3d 1042, 1054 (9th Cir. 2000) (en

banc) (noting “an ERISA fiduciary’s duty . . . [to] giv[e]

complete and accurate answers to the employee’s questions”). 

Gabriel has also adduced sufficient evidence to raise a triable

issue as to whether that breach caused him harm by leading

him to retire when he was still healthy enough to work. That
44 GABRIEL V. ALASKA ELECTRICAL PENSION FUND

the “the misinformation [Gabriel] received in 1997 from a

plan representative did not prevent him from obtaining any

benefit under the Plan to which he otherwise would have

been entitled,” Maj. Op. at 32 (emphasis added), because it

was “eleven years too late for him to” accrue the required

additional years of service, as noted by the Fund’s Appeals

Committee, is not a pertinent consideration. Gabriel’s

complaint is not that he could have accrued additional years

of service had he been properly informed, but that he relied

on the representation that he had already accrued adequate

service, and on the resulting pension payments. As there are

triable issues of fact regarding whether Gabriel was harmed

by the defendants’ breach, and, if so, whether make-whole

relief would remedy that harm, I would reverse the district

court’s grant of summary judgment in favor of defendants

and remand for further proceedings.1

Because the panel misconstrues Amara and misapplies it

to this case, I respectfully dissent.

1

I recognize that the record could support the conclusion that Gabriel

knew or should have known he was not vested as early as 1979. As there

are triable issues of fact regarding Gabriel’s reliance on defendants’

misrepresentations, this case is not appropriate for summary judgment.