F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G R E G O R Y R. G A B R

I E L , Plaintiff-Appellant

,

v

.

A L A S K A E L E C T R

I C A L P E N S I O N F U N D ; T R U S T E E S O F T H E A L

A S K A E L E C T R I C A L P E N S I O N F U

N D ; P E N S I O N A D M I

N I S T R A T I V E C O M M I T T E E O F T H E A L A S K A E L E C T R I C A L P E N S I O N F U

N D ; A P P E A L S C O M M I T T E E O F T H E A L A S K A E L E C T R

I C A L P E N S I O N F U N D ; G R E G O R Y S T O K E S ; G A R Y B R O O K S ; S T E V E B O Y D ; J O H N G I U C H I C I ; C H E R

E S A M A C L E O D ; S C O T T B R

I N G M A N N ; D A V I D C A R

L E ; J I M F U L L F O R

D ; M A R Y T E S C H ; K N U T E A N D E R S O N ; M I K

E B A V A R D ; L A R R Y B E L L ; V I

N C E B E L T R

A M I , Defendants-Appellees

. N o. 12-35458

D.C. No. 3:06-cv-00192- TMB

OPI NI ON

A ppeal from the United States District Court

for the District of Alaska T imothy M. B urg ess, District J udg e, Presiding

Arg ued and Submitted Aug ust 14, 2013—Anchorag e, AlaskaG A B R I E L V

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F iled J une 6, 2014

B efore: Alex Koz inski, Chief J udg e, and Marsha S. B erz on

and Sandra S. I kuta, Circuit J udg es.

Opinion by

J udg e I k uta; Partial Concurrence and Partial Dissent by J udg e B erz on

SUMMARY *

Em ployee Retirem ent Incom e Security Act

The panel affirmed the district c ourt’s summary judg ment in favor of A laska E lectrical Pension F und an d other defendants o n c l aims (1) that the F und abused its discretion in deny ing the p l a intiff benefits under the Alaska Electrical Pension P lan and ( 2) that he was entitled to equitable relief under ERI SA.

F or over three y ears, the F und paid the plaintiff monthly pension benefits he had n ot e arned. W hen it rediscovered an earlier determination that the plaintiff had n ever met the Plan’s vesting requirements, it terminated his benefits.

The panel affirmed the district c ourt’s summary judg ment

on the plaintiff’s claim that the defendants violated their fiduci a r y d uties under ERI SA or the terms of the Plan a nd that he therefore was entitled to “appropriate equitable relief” under 29 U.S.C. § 1132(a)(3). The pan e l h e l d that the

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G A B R I E L V

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plaintiff was n ot entitled to an order equitably estopping the Fu nd from relying on its corrected records that showed h i s actual y ears of service because he f ailed to show that a letter in forming him that he would receive a pension was an interpretation of ambig uous lang uag e in the Plan, rather than

a mere mistake in assessing his entitlement to benefits, and he also failed to show that he was ig norant of the true facts. The panel h e l d t h a t the plaintiff w as not entitled to the equitable remedy of reformation based on mistake under trust o r contract law principles because h e failed to demonstrate that

a mistake of fact or law af f e c t e d the terms o f the Plan. He also was not entitled to reformation based o n fraud. The panel held tha t t h e p l aintiff w as not entitled to the equitable remedy of su r c harg e, to receive an a mount equal to the benefits he would have received if he had been a participant with the h ours erroneously reflected in th e Fund’s records when he applied for benefits, because he did not show that the defendants were unjustly enriched by their al leg ed breaches of fiduciary duty

. I n addition, the s u r c harg e remedy the
p l a i n t i f f soug ht would not restore the trust estate, but r ather would wrong fully d eplete it by pay ing be n efits h e was not elig ible to receive under the Plan.

The panel also affirmed the district court’s summary judg ment on the plaintiff’s claim that the defendants erred in deny ing h im benefits on the g r ou nd that he was non-vested. The panel rejected the plaintiff’s arg ument th at the F und waived this rationale for deny ing h im benefits by n ot timely raising it.

J udg e B erz on concurred and d issented. S he dissented from Part I I ( B )(3) o f the majo ri ty opinion because the plaintiff mig ht be entitled to an equitable remedy similar to surcharg e. She wrote that the majority disreg arded SupremeG A B R I E L V

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Court gu i d a n c e in CIGNA Corp. v. A m ara , 131 S. Ct. 1866 (2011), and created a conflict wit h r e c e nt decisions of the F ourth, F ifth, and Seventh Circuits reg a r ding the scope of the “surcharg e” r e medy

. J udg e B erz on concurred in the remainder of the majority opinion.

COUNSEL

J ennifer Mary Coug hlin, K& L Gates, L L P, Anchorag e , Alaska, for Plaintiff-Appellant.

Allen B ruce McKenz ie ( arg ued), and F rank J

. Morales, McKenz ie Rothwel l B arlow & Coug hran, P.S., Seattle, W a shing ton, for Defendants-Appellees.

OP INION

I KUTA, Circuit J udg e:

Greg ory R. Gabriel appeals the district court’s d ismissal of his claims ag ainst the Alaska Electrical Pension F und (the F und) a nd oth er defendants under the Employ ee Retirement I ncome Security Act of 1974 ( ERI SA), 29 U.S.C. §§ 1 001 et seq. B ecause Gabri e l f a i led to raise a g enuine issue o f material fact that the Fu n d a bused its discretion in deny ing him b enefits, or that he was entitled to “appropriate equitable relief” unde r 2 9 U.S.C. § 1132(a)(3), we affirm the district
court.G A B R I E L V

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I

F or over three y ear s , t h e F und paid Gabriel monthly pension benefits he had not earned. This case arises f rom the events that occurred after the F und discovered this error.

F rom Aug ust 196 8 throug h April 1 9 75, Gabriel participated in the Alaska Electrical Pension Plan (the Plan). The Plan is an “employ ee pension benefit plan” as defined in ERI SA, 29 U.S.C. § 1002(2)(A). I t covers e lectrical workers and c ontractors who work for e mploy ers that par t icipate in

one of several ele c t r ical industry collective barg aining
ag reements. The Plan is administered by the F und, which is

run by a board of trustees. T he Plan g ives the trustees “the

ex c lusive rig ht to co n s t r

ue the provisions of the Plan and to determine any a

nd all question s a rising thereunder or in connection with the administration thereof.”

U n d e r s e c tion 5.01 of the Plan, a p articipant who has completed ten or more “[ y ]ears o f service,” as defined in the Plan, is vested under the Plan and i s e l i gible to a pply for pension b enefits on retirement after reaching a specified a g e

. Section 8 .01 provides that a participant who fails to e arn a total of 500 h ours of service in a two-y e ar period, and is not

on a qualify i n g l e a v e of a b sence pursuant to section 8.02, is terminated from the Plan. A ter m i n ated participant may be reinsta t ed under section 8.04. U nder Section 8.03, a vested participant who is terminated is not devested; once vested, a participant remains vested.

Gabriel work e d until April 1 975 as an employ ee o f several different electr i c companies that participated in the Plan. I n 1975, he became the sole proprietor of Twin Cities Electric. F rom September 1975 throug h November 1978,G A B R I E L V

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Twin Ci t i es made contributions for both G abriel and its employ e es. Ba s e d on these c o ntributions, the F und initially credited G abriel with eleven y ears of service, e n o u gh to qualify Gabriel as a vested participant under section 5.01.

B u t in 1979, the F und de t e r m ined that Gabriel was an

owner o f Twin Cities, rather than a n employ ee, and therefore
not elig ible to p a r t i c i pate in the Plan. I n a letter dated November 20, 1979, the F und’s general counsel informed Gabriel a bout this error and told him that the F und owed him

a refund of $13,626 for the erroneous contributions made on his b e h al f from 1975 to 1978. F urther, the letter informed Gabriel that he was terminated from the Plan as of J anuary 1, 1978, p ursuant to section 8 .01, b ecause its r e c o r ds showed that by that time he had two consecutive y ears with less than 50 0 h o u r s o f service. A n attachment to the letter, entitled “B enefit Statement W ithout Hours Reported B y T w i n C ities,” stated that Gabriel had “8 y r s. Credited Serv i ce” from 1968
to 1975 w hen the improper hours for his time as an employ er at Twin Cities were ex cluded, and that the F und 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 employ e es, the F u nd w ould set off th e d e l inquent
amounts o wed to the F und (a total of $6,989.24) from the refund amount owed Gabriel, for a total refund to G abriel of $6,636.76.

On D ecember 3, 1979, the F u nd drafted a follow-up letter stating that Twin Cities actually owed more in deli nquent oblig ations than the F und o r ig inally had calculated. T o satisfy Twin Cities’ delinquent oblig ations for its employ ees,G A B R I E L V

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the F und intended to w i t h h old $12,982.69, instead o f $6,989.24. Therefore, the F und would g ive Gabriel a refund of only $643.31. The letter e nclosed a release ag r eement, which documented the terms of the setoff and refund. I t also informed Gabriel about t h e s t e p s he w ould have to take to become vested in the Plan. The record includes only an unsig n ed copy of th i s letter, which was found in the F und’s files. Gabriel asserts he never received this letter.

I n J a nuary 1980, G abriel sig ned the release ag r e ement, in wh i c h h e acknowledg ed that he w as receiving a refund o f $643.31 arising from “ the impro p er employ er contributions paid from the y ear 19 7 5 t h ro ug h 1978” made on his behalf when he w as the owner of Twin Cities, and that the remainder of the improper c o ntri b u t ions (amounting to $12,982.69) would be used to pay

delinquent oblig ations.

Gabriel did not meet any of the requirem e n t s under the Plan for reinstatement and so n e v er vested i n t he Plan. N e v ertheless, in late 1996, Gabriel a sked the F u nd for information about the amount of p ension b en e f its he would receive if he retired. I n a let t e r d a ted J anuary 6, 1 997, a pension representative for the F und stated that it h ad calculated Gabriel’s pension benefits based on his y ears o f service from 1968 to 1978, and d etermined that, if he retired, Gabriel woul d r e c eive p ension b enefits of $1,236 each month.

Ga briel subsequently retired and a pplied for benefits, which he beg a n r e c e i v ing in March 1997. I n an affidavit submitted as part of this litig ation, Gabriel stated t h a t h e would not have retired in 1 997 if the p ension representative had informed him h e w as inelig ible to receive pension benefits.G A B R I E L V

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The sequence of e vents leading the F und to rediscover its

error and terminate Gabriel’s benefits beg an in May 2000. At that time, Gabri e l beg an working part-time as a n OSHA safety inspector for Udelhoven O i lfield Services to supplement his retirement income. I n 2001, the F und warned Gabriel that his work constituted prohibited post-re tirement employ ment in the industry

, w hich could lead to a suspension of benefits. Althoug h G abriel arg ued that his employ ment at Udelhoven was not in the s am e industry

, the F und nonetheless suspended his benefits on that basis in N ovember 2001.

Gabriel challeng ed this suspension of benefits throug h the administrative process e stablished in the Plan. F irst, Gabriel appealed the suspen s i o n to the Appeals Committee. The Committee denied his appeal, and Gabriel appealed ag ain to the nex t administrative level, which required arb i t ration o f the dispute. The arbitrator reversed the A p p eals Committee’s decision and remanded the issue for further fact finding

.

A t t he r emand hearing before the Appeals Committe e, Ga briel learned that the F und had not provided him with certain relevant Plan amendments. The Appeals Committee suspended th e h earing to g ive Gabriel an opportunity to review the amendments. Be f o r e the Appeals Committee ruled o n the dispute, Gabriel stopped working for Udelhoven, and the F und reinstated h is pen sion benefits as of J uly 1, 2004.

Gabriel nevertheless continu e d t o p ursue his claim ag ainst the F u nd, and demanded pay ment of the benefits that the Fu n d had withheld d

ue to his Udelhoven work, a s well a s attorney ’s fees and costs i n curred in the administrative appeals proces s

. The parties eng ag ed in settlementG A B R I E L V

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neg otiations, and the F und ag reed to reim b u rse Gabriel’s attorney ’s f

ees and c osts. After further neg otiations, the F und also o ffered to p a y Gabriel the w ithheld benefits, with interest.

Be f ore Gabriel could respond to this offer, however, the F und revoked it. Th e Fu n d rediscovered its earlier determina t i o n that Gabriel had been inelig ible to p articipate in the Plan betwe en September 1975 and November 1978, and therefore had never met the Plan’s vesting requirements. B ecause Gabriel h a d never become elig ible for retirement benefits, the F und terminated Gabriel’s benefits a nd threatened to seek reimbursement for the $81,033 in benefits Gabriel had previously

received. 1

I n r esponse, Gabriel broug ht an ERI SA action in district
court ag a inst the F und, the B oard of Trus t e e s , the Pension Administrative Committee (comprised of truste e s r e s p o n s i b le for deciding benefit claims), the Appea l s Committee, a nd various other individuals responsible f o r administering the F und. I n his complaint, Gabriel broug ht claims for r e covery of benefits and clarification of rig h ts to future benefits under 29 U.S.C. § 1 132(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 a lso alleg ed misrepresentation and estoppel b ased on w ritten an d o r a l representations, a s

1 T h e Fu n d in itially b ro u g h t a co u n terclaim f o r reim b u rsem en t o f th ese b en ef its ag ain st Gab r i el in th is l itig atio n , b u t later v olu n tarily d i s m issed it.

2 T h e co m p lain t also alleg ed claim s f o r b reach o f co

- f

i d u ciary d u ties set f o rth in 2 9 U.S.C. § 1 1 0 5 (a), u n der 2 9 U.S.C. § 1 1 32 (a)(3 ), b u t b ecau s e th ese claim s are d eriv a t iv e o f h is b reach o f f id u ciary d u ty claim s, w e d o

n o t d iscu ss th em

sep arately

.G A B R I E L V

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well a s other claims not relevant here. The defendants moved for summary

judg ment on all of Gabriel’s claims.

The d istrict court add r e ssed the defendants’ motion for
summary judg ment in a series of orders. I n its first order, the district court held that Gabriel had raised a g enuine is s ue o f material fact as to w hether he had satisfied the Plan’s vesting requirements, and therefore denied the defendants’ summary judg ment motion on Gabriel’s claims under § 1132(a)(1)(B ) for r etroactive reinstatement of his monthly pension benefits
to Nove mber 2001, and clarification of his rig hts to future benefits. The dis t rict court remanded this claim to the Appeals Committee so Gabriel c ould ex haust his administrative remedies. The district court rejected Gabriel’s claim that the defendants were equitably estopped to deny him future p ension benefits an d g r anted summary judg ment to the defendants on this claim.

On remand before the Appeals Committe e , G abriel no l o n ge r arg u ed that he had satisfied the Plan’s vesting requirements, but arg

ued that his pension benefits should be reinstated because he had r elied to his detriment on the 1997 determination by the pension representative that he was elig ible for those benefits. The Appeals Committee rejected this claim, finding that Gabriel was properly informed of the ten-y ear ves t i n g r equirement in the F u nd’s letters to him o f November 20 and December 3, 1979. I t also held that, even if Gabriel r el i ed to his detriment o n the pension representative’s statements, he was not entitled to h a ve those benefits reinstated in violation of the e x press term s o f the Plan.

I n its second order, the d i s t r i ct court rejected Gabriel’s claims under § 1132(a)(3)(B ) that he was entitled to equitableG A B R I E L V

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relief due to the F und’s breaches of f i duciary duty because part of the relief Gabriel soug ht (compensatory damag es in the form of benef

i t s ) w as not equitable, and he was not entitled to t h e equitable relief he soug ht (restitution or the imposition of a c onstructive t r u s t ) g iven his failure to show
any fraud by the F und.

I n its third order, the dis t r i c t court held that it would review the A ppeals Committee’s final denial o f benefits

u n der an abuse of discretion standard, because the P l a n provide d the trustees with broad discretion to construe the
terms of the Plan. The court rejected Gabriel’s claim that the F und had waived its ar g ument that he did not satisfy the Plan’s vesting requirement, a s well as Gabriel’s arg ument that the F und breached its o blig ation to inform h i m t h at he was non-vested in 1979. Under its deferential standard of review, the district c ourt concluded that th e Appeals Committee’s determination that Gabriel had been properly informed of the ten-y ear vesting requirement in the let t ers of November 20 and December 3, 1979, was not clearly erroneous. The court therefore g ranted summary judg ment in favor of the defendants on Gabriel’s benefits claim.

After the district court r esolved all his c l a i m s , Gabriel timely appealed. W e r eview a d istrict court’s g rant o f
summary judg ment de n ovo, and must d etermine, viewing the evidence in the lig ht most favorable to the non-moving party , whether there a

re a n y g enuine issues of material fact. Tremain v. Bell Indus., Inc.
, 196 F .3d 970, 975–76 (9th C i r. 1999). W e review de novo the d istrict court’s conclusion that

an ERI SA fiduciary did n ot abuse its discretion

. W i n ters v

. Costco W holesale Corp. , 49 F

. 3d 550, 552 (9th Cir. 1995).G A B R I E L V

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I I

W e beg in by conside ring Gabriel’s arg ument that the defendants violated their fiduciary duties under ERI SA or the
terms of the Plan, for wh i c h h e is entitled to “appropriate equitable relief” under § 1132(a)(3). 3

A

The civil enforcement p rovisions of ER I S A
, codified in § 1132(a), are “the e x clusi v e v e hicle for actions b y ERI SA-plan participant s a n d b eneficiaries asserting improper processing of a c l a i m f

o r benefits.” Pilot Life Ins. Co. v

. Dedeaux

, 481 U.S. 41, 52 (1987). Courts may not “infer [ additional] c auses of action in the ERI SA contex t, since that statute’s carefully crafted and detailed enforcemen t scheme provides ‘strong evidence that Cong r e s s did not intend to

a u t horiz e o ther remedies that it simply forg ot to incorporate

ex p ressly .’” Mertens v. Hewitt Assocs.
, 5 0 8 U.S. 248, 254 (1993) (quoting Mass. Mut. Life I ns. Co. v. Russell

, 473 U.S. 134, 146–147 (1985)). Under E RI S A
, t he issue is not

3 Sectio n 1 1 3 2 (a)(3 ) p ro v id es in

p ertin en t p art:

(a) P erso n s em

p o w ered to b rin g a civ il actio n

A civ il actio n

m ay b e b ro u g h t— . . .

(3 ) b y a p articip an t, b en ef iciary

, o r f

i d u ciary (A ) to

en j o in an y act o r p ractice w h i ch v io lates an y p ro v isio n

o f th is su b ch ap ter o r th e term s o f th e p lan

, o r ( B ) t o

o b tain o th er ap p r o p r i ate eq u itab le relief (i) to red ress

su ch v io latio n s or (ii) to en f

o rce an y p ro v isio n s o f

th is

su bch ap ter o r th e term s o f

th e p lan

. . . .

2 9 U.S.C. § 1 1 3 2 (a)(3 ).G A B R I E L V

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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 broug ht . . . (3) by

a participant, beneficiary , or fiduciary

. . . (B ) to o btain oth e r a p p r opriate equitable relief ( i) to redress [ any act or practice which v i o lates 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 v i o l a tion of ERI SA or the
terms of a plan, see Mertens
, 508 U.S. at 254; and (2) that the relief soug h t is “appropriate equitable rel ief,” 29 U .S.C. § 1132(a)(3)(B ). A c laim may fail if the plaintiff cannot establish the second prong , that the r e m edy soug ht is “appropriate equitable r e lief” under § 1132(a ) (3)(B ),
reg ardless whether “a remediable wrong h a s been alleg ed.” Mertens , 508 U.S. at 254.

The Supreme Court has made clear that “appropriate equitable r elief” refers t o a “remedy traditionally viewed a s ‘equitable.’” Id. at 255. B ecause “ERI SA abounds with the l a n g uag e and terminolog y o f trust law,” Firestone Tire & Rubb e r Co. v. Bruch

, 4 89 U.S. 101, 110 ( 1989), the Court relies heavily on trust law doctrine in interpreting E RI SA,

see, e.g. , Conkright v. F

romme r t , 559 U.S. 506, 5 12 (2010) (stating tha t , w h e n “ ERI SA’s tex t does not directly resolve the matter,” the Court has “looked to ‘principles of trust law’ for g uidance” (quoting Firestone
, 489 U.S. at 109)).

I n interpreting § 1132(a)(3), the Court has disting u i s h e d between equitable and leg al reli e f

. According to the Court,G A B R I E L V

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Cong r ess intended to limit the relief available und er § 1132(a)(3) to “those c ateg ories o f r elief that were typically available in equity (such as injunction, ma n d a m u s, a nd restitution, but not comp e n s atory damag e s),” Mertens
, 508 U.S. at 256, and d id not authoriz e any leg a l reme d i e s,

even thoug h an equity court was em p o w e red to g rant such relief, id. at 256–59. Ac c o rding ly

, in Mertens the Court rejected the plaintiffs’ ef f o rt s to seek money damag es to remedy alleg ed breaches of fiduciary duty

. Id. a t 2 55. F urther, t h e C o u rt held that p laintiffs may not d isg uise an attempt to o btain monetary r el ief as a traditional equitable remedy

. F o r ex ample, “an injunction to compel the pay ment of money past due under a contract, or specific performance of a past due monetary o blig ation, w as not ty pically available in equity ,” and thus is not availa b l e u n der § 1132(a)(3). Great-W . Life & Annuity Ins. Co. v. Knudson , 534 U.S. 204, 210–11 (2002). And althoug h restitution can be an equitable remedy

, “not a ll relief falling u nder the rubric of restitution is available in equity

. ” I d

. at 212. F or instance, a p laintiff “had a rig ht to restitution at law throug h a n a ction derived from the common-law writ o f assumpsit.” Id. at 213. B ut “a plaintiff could seek restitution in e quity ” only “where money

or property identified as belong ing in g ood conscience to the plaintiff c ould clearly be traced to p articular funds or property in the defendant’s possession.” Id.

W h ile ruling out leg al remedies a n d limiting the availabili t y o f injunction, mandamus, and restitution in Mertens and Great-W

est Life

, the Supr em e Court has identified three forms of traditional equitable relief that may be available under § 1132(a)(3).

F irst, “ appropriate equitable relief” may include “the reformation of the terms of the p l a n , i n order to remedy theG A B R I E L V

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false or misleading information” provided by a plan fiduciary

. CIGNA Corp. v. Amara
, 131 S. Ct. 1866, 1879 (2011). The
power to r eform contracts is av a ilable o nly in the event o f mistake or fraud. Id. ; see also Skinner v

. Northrop Grumman Ret. Plan B
, 673 F .3d 1162, 1166 (9th Cir. 2012). A p laintiff
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] i n s t r ument and if there is evidence of the settlor’s true intent”; or (2) “ if both parties [ to a c ontract] were mistaken a b o u t the content or effect o f the con t r a c t” and the contract must be r eformed “to capture the terms upon which the parties had a meeting of the minds.” Skinner

, 673 F .3d at 1 166. U nder a fraud theory

, a p laintiff
may obtai n r ef

ormation when either (1) “[ a trust] was procured by wrong fu l conduct, such as undue influence, duress, or fraud,” or (2) a “party ’s assent [ to a contract] was induced by the other party ’s misrepr esentations as to the
terms or e ffect of the contract” and h e “ w as justified in rely ing on the other party ’s misrepresentations.” Id.

Second, “appropriate equitable relief” may include the remedy of equitable estoppel, whi c h holds the f iduciary “to what it had promised” and “‘operates to place the p erson entitled to its benefit in the same position he would have been in had the r epresentations b een true.’” A mara , 131 S. Ct. at 1880 (quotin g J ames W

. Eaton, Handbook of E quity Jurispr u d e n ce § 62, p.176 (1901)). Under this theory o f relief:

“(1) the party to be estopped must kn o w the facts; (2) he must intend that h is c onduct shall b e a c ted on or must so act that the par t y asserting the estoppel has a rig ht to b elieve it is so intended; (3) the latter must be ig norantG A B R I E L V

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of the true facts; and (4) he must rely on th e 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. 1 985)); see also 1 J ohn Norton Pomeroy
, A Treatise on Equity Jurisprudence § 805, pp.190–98 (5th ed. 1941).

A plaint i ff seeking equitable estoppel in the ERI SA
contex t must meet additional r equirements. 4 F i r s t , w e have consistently held t h a t a party cannot maintain a federal equitable estoppel claim in the ERI SA contex t when r e covery

on the c laim w o uld contradict written plan provisions. Greany
, 973 F .2d at 8 2 2 (non-trust fund defendants); Davidian v

. S. Cal. Meat Cutters Union & Food E m ps. Benefit Fund

, 859 F .2d 134, 136 (9th Cir. 1988) ( t r u st fund defendant). This principle is derived from E RI SA’s requirement that “[ e] very employ ee bene f i t p lan shall be established and maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1). T he purpose of this requirement is to protect “the p lan’s actuarial soundn e s s by preventing p lan

4 A l th o u g h o u r cases h av e so m etim es discu ssed eq u i tab le esto pp el claim s as i f t

h ey w ere in d ep en d en t cau ses o f actio n , see, e.g

. , G rea n y , 9 7 3 F.2 d at 8 2 1
, th e Su

p rem e Co u rt h as n o w clarif ied th at co u rts m ay n o t

“ i n f er cau ses of actio n in th e ERISA co n t ex t” b ey o n d w h at is set f

o rth in th e statu te, an d h as in stru cted u s to an aly ze eq u i tab le esto p pel as a f o rm

o f “ ap p ro p riate eq u itab le relief ” u n der § 1 1 32 (a)(3 )(B ), Merten s , 5 0 8 U .S.
at 2 5 4

. B u t b ecau se o u r esto p p el p reced en t relied o n trad itio n al eq u itab le
p rin cip les, s ee Un ite d S t a tes v. Ga .-Pa c. C o

. , 4 2 1 F.2 d 9 2
, 9 6 (9 th Cir. 1 9 7 0 ) (citin g 3 P o m ero y , Eq u ity Ju risp ru d en ce § § 8 0 1

– 0 2, 8 04 ), an d L a v in v. Ma rsh

, 6 4 4 F .2 d 1 3 78
, 1 38 2 (9 th Cir. 1 9 8 1 )), it co n ti n u e s t o in f o rm o u r u n d erstan d in g o f w h a t co n stitu tes “ ap p ro p riate eq u itab le relief .”G A B R I E L V

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administrators from contracting to pay benefits to persons not entitled to them under the ex press t erms of the plan.” Rodrigue v. W

. & S. Life Ins. Co.
, 948 F .2d 969, 971 (5th Cir. 1991); see also Greany
, 9 7 3 F .2d a t 822 (citing R o drigue

, 9 4 8 F .2d at 971). According ly

, a plaintiff may not bring a n equitable e stoppel cla i m t h at “would result in a pay ment o f benefits that would be inconsistent with the written p lan,” o r would, as a practical matter, result in an amendment o r modif i c ation of a plan, b e c ause such a result “ would contradict the w r i t i ng and amendment requirements o f 29 U.S.C. §§ 1102(a)(1) and (b ) ( 3).” Greany
, 973 F .2d at 822. F or the same reason, “oral ag r eements or modifications
cannot be used to contradict or supersede the written terms o f

an ERI SA plan.” Richard s o n v. Pension Plan of B ethlehem Steel C o r p

. , 112 F .3d 982, 986 n .2 (9th Cir. 1997); see also Thurber v. W

. Conf. of Team s t e r

s Pension Plan

, 542 F .2d 1106, 1109 ( 9th Cir. 1976) (per cu r i a m ) (holding in an analog ous contex t that an employ ee’s reliance on advice from

a pension a dministrator did not estop the pension fund from deny ing benefits because “[ t] he r ig hts of other pensioners
must be considered, and the trust fun d m a y not be deflated because of the misrepresenta tion or misconduct of the Administrator of the f

u n d ”). The same rule applies to informal written interpretations of an ERI SA plan. See Nat’l C o s

. Health Benefit Plan v. St. Joseph’s Hosp.
, 9 29 F .2d 1558, 1 572 (11th Cir. 1998) (holding that “use of the law o f equitable estoppel to enforce informal written interpretations will not undermine the integ rity of ERI SA plans”), a brogated on other grounds by Geissal v. Moore Med. Corp.
, 524 U.S. 74 (1998). Neve r t h eless, we have disting uished “between oral statements that contradict or supersede th e t er m s of an ERI SA plan and oral interp re t a tions of a plan’s provisions that are not contrary to the plan’s written provisions,” a ndG A B R I E L V

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may g ive effect to in t e rpretations o f ambig uous p lan provisions. Richardson , 112 F .3d at 986 n.2.

Second, we have held that an ERI SA beneficiary seeking
to recover benefits under an equitable estoppel theory must establish “ ex traordinary circumstances.” Pisciotta v

. Teledyne Indus., Inc.
, 91 F .3d 1326, 1331 (9th Cir. 1 996) (per curiam). “The actuarial soundness of pension funds is, absent

ex traordinary circumstances, too important to permit trustees to oblig ate the fund to pay pensions to persons not entitled to them under the ex press terms o f the pension plan.” P hillips

v. Kennedy

, 5 42 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 ( 3 d C ir. 1981). Althoug h we have not defined “ ex traordinary circumstances” in this contex t, courts have held that making “ a promise th a t the defendant reasonably should have ex p ected to induce a ction o r forbearance on the plaintiff’s part,” Devlin v

. E m p ire Blue Cross & Blue Shield

, 274 F .3d 76, 86 (2d Cir. 2001), as w ell

as “conduct sug g esting that [ the employ e r] soug ht to profit at the e x pense of its e m p l o y ees,” a “showing of repeated misrepresentations o ver time,” or evidence “that plaintiffs a re particularly vulnerable,” Kurz v. Phila. Elec. Co.
, 96 F .3d 1544, 1553 (3 d C ir. 1996), can constitute ex traordinary circumstances.

According ly

, to main tain a federal equitable estoppel claim in the ERI SA contex t, the party asserting estoppel must not only meet the traditional equitable e stoppel requirements, but must also al l e ge : (1) ex traordinary circumstances; (2) “that the provisions o f the plan at issue w ere ambig uous

s u c h that reasonable persons could disag ree as to th ei r meaning or effect”; and (3) that the representations m a de

a bout the plan w ere a

n interpretation of the plan, no t a nG A B R I E L V

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amendment o r modific a t i on of the p lan. Spink v. Lockheed Corp.
, 125 F .3d 1 257, 1262 ( 9th Cir. 1997) (citing Pisciotta
, 9 1 F.3d at 1331); see a lso Greany
, 973 F .2d a t 822 n.9 ( “ A plaintiff must first establish that the plan provision in question is ambig uous and t he party to be estopped interpreted this ambig uity

. I f these requirements a re satisfied, the p laintiff may proceed with the equitable estoppel c laim b y satisfy ing ” traditional equitable estoppel requirements.).

Third, “ appropriate equitable r elief” also includes “surcha r g e , ” defined as “the power to p rovide relief in the form of monetary

‘compensation’ for a loss resulting from a trustee’s breach o f d u t y , or to prevent the trustee’s unjust enrichment.” Amara
, 131 S. Ct. at 1880 (citing Restatement (Third) of Trusts § 95 & cmt. a (Tent. D raft No. 5, Ma r

. 2, 2009)). Under t h e traditional equitable principles specified in A mara , id. at 1879–80, the surcharg e remedy w as available when a breach of trust committed by a fiduciary resulted in a loss to the trust estate or a llowed the fiduciary to profit at the

ex p ense of the trust. See Restatement ( S econd) 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 a ccrued to the trust estate,” a nd “any profit made by [ the trustee] ” ) ; see also Georg e Gleason B og ert et al., The Law of Trusts a n d T r u s t ees § 8 62 (2013) (defining the three primary meas u res of damag es for breach of trust to include “the loss in the value of t h e trust estate,” “any profit [ th e trustee] has made,” and “profit that would have accrued to the trust”); 4 A ustin W akeman Scott, W illiam F ranklin F ratche r , & M ark L

. Ascher, Scott and Ascher on Trusts § 24.9, pp.1686–87 (5th ed. 2 007) (same)

. U n der
t h e se circumstances, a surcharg e remedy can protect t h e beneficiaries of a trust by making the trust e state whole. “I f

a breach of trust causes a loss, including any f ailure to realiz eG A B R I E L V

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income, capital g ain, or appreciation that would have resulted from proper administration, the beneficiaries are en t itled to restitution and m a y h a v e the trustee surcharg ed for the
amount necessary to com p e n s ate fully for the consequences of the breach.” Restatement (Third) of Trusts § 95 & cmt. b (2012). However, “[ t] he trustee is n ot subject to s u r c h ar g e for a b reach of t r u s t t h a t r esults in no loss to the estate” o r profit to t h e trustee. 4 Scott and Ascher on Trusts § 24.9, p.1693; see a lso id. § 24.10
, pp.1707–08; Thomas L ewin, A Practical Treatise on the Law of Trusts and Trustees ch. 26, § 3, p.604 ( 2d ed. 1858) (“I n the event of a breach o f trust, the cestui q u e trust is entit l e d t o file a bill ag ainst the trustee

. . . to compel from h im personally a compens ation f o r the loss the trust estate has sustained.”).

Contrary to the dissent, Amara did not sug g est that the remedy of surcharg e is a vailable to p rovide any sort o f “[ m] ake-whole relief for b reach of fiduciary d u t y ag ainst a trustee” r eg ardless “whether o r not traditional trust law would have provided that r elief u nder the ‘surcharg e’ terminolog y

. ” Dissent a t 39. Rather, the Supreme C o u rt followed its prior interpretation of “appropriate eq u i table relief” as including only traditional equitable remedies. See Amara
, 131 S. Ct. at 1878 (observing tha t “ ap propriate equitable relief” r efers to “those categ ories of relief that

. . . were typically available in equit y ” (internal quotation marks and citation omitted)). I n this vein, the Cou rt carefully disting uished Mertens
, which ha d held that “appropriate equitable relief” did not include “‘compensator

y damag es’ ag a inst a n onfiduciary .” I d. at 1878 ( quoting Mertens
, 508 U.S. a t 2 55). The Court pointed
out that while Mertens disallowed a monetary remedy ag ainst

a n on-fiduciary under § 1132(a)(3), traditional equ itable principles a llowed surcharg e as a “monetary remedy ag ainst

a trustee ,” and “[ t] h us, i n s o far a s an award of make-wholeG A B R I E L V

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relief is c oncern e d

, the fact that the d efendant in [ Amara ],

u n like the defendant in Mertens
, is analog ous to a trust e e makes a critical difference.” Id. at 1880 (emphasis added). I n ex plaining the scope of traditional equitable r emed i es, including surcharg e, avai l a b l e ag ainst a trustee, the Court relied on standard trust treatises. See, e.g. , id. at 1881 (citing 4 Scott a nd Ascher on Trusts § 24.9, for the principle that “a
court o f equity would not surcharg e a trustee for a nonex istent harm”). As the very section of Scott and Ascher on Trusts cited in Amara ex plains, “[ t] he trustee is not subject to surcharg e f

o r a b r e a c h of trust that results in no loss to the trust estate.” 4 Scott and Ascher on Trusts § 24.9, p.1693. 5

W e follo wed the traditional e quitable principles a nd treatises relied on in Amara in our subsequ e n t d e cision in Skinner

, where we h eld that surcharg e is an appropriate form of equitable relief to redress losses of value or lost profits to the trust estate and t o r e q u ire a f iduciary to disg org e p rofits from unjust enrichment. 673 F .3d at 1 167. Specifically

, Skinner held that if a trustee b reaches a fiduciary duty : (1) the remedy of surcharg e is available ag a i n s t t he fiduciary “for benefits it g ained throug h unjust enrichment or f o r harm caused as the result of its breach”; and (2) the trustee “could be liable for loss of v a l u e 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 W h i le Ama ra m ad e th e im p o rtan t d eterm in atio n

th at su rch arg e w as a f o rm of “ ap p ro p riate e q u itab le relief ” p o ten tially av ailab le u n der § 11 3 2 (a)(3 ), th e Su

p rem e C o u rt co n clu d ed th at it “ n eed n o t d ecid e w h ich

rem ed ies are ap p ro priate o n t h e fa c t s o f th is case.” 1 31 S. Ct. at 1 8 8 0

. In d eed

, th e Su

p rem e Co u rt’ s an aly sis o f su rch arg e w as n ecessarily lim ited b ecau se n eith er t

h e d istrict co u

rt n o r th e S eco n d Circu it h ad ad d ressed th e ap p licab ility o f a su

rc h a r g e r e m ed y , see id

. at 1 8 8 2
, an d th e p arties h ad

n o t b rief ed th e issu e, see id

. at 1 8 8 5 & n .3 (Scalia, J ., co n cu rrin g ).G A B R I E L V

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would h a v e attained but f o r the trustee’s breach.” Id. S kinner ’s identification of the two circumstances in whi c h surcharg e may be available is consistent with the Re s t a t e ments of Trusts it cites, see id. (citing Restatement (Third) Trusts § 100(b) (2012), and Restatement (Second) o f Trusts § 205 (1959)), as well as with the treatises cited by the Supreme Court in Amara
, including Bog ert, The Law of Trusts and Trustees § 862, and 4 S cott and Ascher on Trusts § 24.9, see 131 S. Ct. at 1880–81.

Rely ing on McCravy v. Metropolitan Life Insurance Co.
, 690 F.3d 176 (4th Cir. 2012), Gabriel arg ues that surcharg e is available more broadly than these traditio n a l equitable
p r i n c iples sug g est, and claims that he is entitled to mak e

whole relief, e ven if it comes at the e x pense of the trust estate. We disag r ee. McCravy
, as well as subsequent similar decisions from the F ifth and Seventh Circuits, see Kenseth v

. Dean Health Plan, Inc.
, 722 F

. 3d 8 69 (7th Cir

. 2 0 1 3 ); Gearlds v. Entergy Servs., I nc. , 709 F .3d 448 (5th Cir. 2013), did not define the availability of surcharg e, o r even address whether the plaintiff was entitled to relief, see, e.g. , McCravy
, 690 F .3d at 181–82 ( “W hether McCravy ’ s breach of fiduciary duty claim will ultimately suc ce ed and whether surcharg e is

an appropriate remedy u n der Section 1132(a)(3) i n the circumstances of this case are questions appropriately resolved in t h e first instance before the d istrict c ourt.”). I nstead, these c ircuits merely c orrected distr ict courts’

erroneous inter

p r e tations of Mertens as precluding r e covery of any monetary relief a

n d remanded f

or the district courts to

assess the merits of the plaintiffs’ claims, along with the appropriateness of the surcharg e remedy

, in the f irst instance. S e e K enseth

, 7 22 F .3d at 883; Gearlds

, 709 F .3d at 4 5 2 ;G A B R I E L V

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M c C r avy , 690 F .3d at 181–82. 6 According ly

, none of thes e circuits has had the opportunity to review the traditional trust law doctrines on w h ich the Supreme Court r e lies a nd determine the sorts of surcharg e remedies that may be available u nder those d octrines. See Amara
, 131 S. C t

. at 1878 ( defining “appropriate equitable relief” in § 502(a)(3) a s “referring to ‘those categ ories of r elief’ that

, traditionally speaking

. . . ‘ were typically availab l e i n equity ’”) (quoting Sereboff v

. Mid Atl. Med. S e r vs

. , I nc. , 547 U.S. 356, 361 (2 0 0 6 )). W e are bound by o ur own precedent, which

co rr ectly identifies surcharg e as including only unjust enrichment and los s es to the trust estate. S ee Skinner

, 673 F .3d at 1167.

B

W e now turn to Gabriel’s claim un d er § 1132(a)(3) that there is a g enuine issue of material fact as to whether he is entitled to “appropriate equitable relief.” 7

6 F o r th is reaso n , it is m islead in g f o r t h e d issen t to state th at th ese cases

“ co n f irm th at u n d er Ama ra , su

rch arg e is n ot lim i ted to th e circu m stan ces in w h ich a tru stee p erso n ally b en ef i ts f ro m a b r e a c h o f d u ty or a p lan in cu rs a lo ss.” Dissen t at 4 1

.

7 W e m ay ad d ress th is issu e b ef

ore ask in g w

h eth er Gab riel h as created

a g en u in e issu e of m aterial f act th at t h e Fu n d v io lated t

h e f id u ciary d u ties
set f o rth in § 1 1 0 4 (a)(1 )(A ) an d (B )

. S e e Merten s , 50 8 U .S. at 2 5 4

– 5 5 ( e v alu atin g w

h eth er th e relief s o u g h t co n stitu ted “ ap p ro p riate eq u it a b l e relief ” an d reserv in g d e c i s i o n o n w h eth er “ a rem ed ial w

ro n g h as b een alleg ed ”).G A B R I E L V

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1

W e first c onsider Gabriel’s arg ument that he is e ntitled to

an order equitably esto p ping the F und from rely ing o n its corrected records that sh o w his actual y ears of service. 8 G abriel claims he meets the test for traditional equ i t a b l e estoppel because: (1) the defendants were aware that he was
not vested; (2) they nevertheless informed him in the J anuary 7, 1997 lette r t hat he would receive a monthly p ension, a nd Gabriel was entitled to r ely on t h i s l e tter; (3) Gabriel was ig norant of the true f

acts; an d ( 4) G abriel relied o n the misinformation in the J anuary 1997 letter to his detriment b y retiring at ag e 62 wh e n he could have continued working

. F urther, Gabriel as s erts that h e h as met the additional requirements set forth in Spink

, because the provisions of the Plan were ambig uous, the plan r e p r esentative provided an interpretation of the Plan, and t h er e were ex traordinary circumstances, including that the defendants o p e rated under

a conflict of interest and v iolated the procedural requirements of ERI SA.

W e need not determine w hether Ga briel has raised a g enuine issue of material fact as to every element of his equitable estoppel claim because we conclud e that Gabriel has failed to show that the p lan representative’s J anuary 1997 letter was a

n interpretation of ambig uous lan g uag e in the Plan, rather than a mere mi s t ake in assessing Gabriel’s

8 Gab riel’ s req u est f

o r relief h as ch an g ed o v er t h e c o u r s e o f th is litig atio n

. In h is co m

p l ain t, Gab riel asserted th at th e d ef en d an ts sh o u ld b e esto p ped f

ro m d en y in g t

h at h e q u alif

ied as a v ested p articip an t in t h e P lan

. B ecau se h e n o w co n ced es th at h e did n o t v est in th e P lan

, h e in stead
asserts th at th e d ef

en d an ts sh o u ld b e esto pp ed f ro m ref u sin g to ch an g e th e Fu n d ’ s reco rd s to sh o w

h im as v ested

.G A B R I E L V

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e n t i t lement to benefits. On its face, the letter does no t provide an interpretation of the Plan, but merely provides the

erroneous information that Gabriel is entitl e d to benefits o f $1,236 per month upon retirement

. Such an error in

c a l c u lating benefits is just the sort of mistake that w e repeatedly have held cann o t provide a basis for equitable estoppel. W e h ave made clear that “[ a] plaintiff c annot avail himself of a federal E RI SA estoppel claim base d u pon statements of a plan employ ee which would enlarg e his rig hts

a ga i nst the plan bey ond what he could recover under t h e unambig uous lang uag e o f the plan itself.” Greany
, 973 F .2d at 822; see also Renfro v. Funky Door Long Term Disability Plan

, 686 F .3d 1 044, 1 054 ( 9th Cir. 2012) ( ho l d i n g t hat “a beneficiary cannot obtain recovery on the basis o f estoppel ‘in the face o f contr ar y , w ritten plan provisions’”) (quoting Da v i d i an , 859 F .2d at 134)). “Our p recedent dictates that a trust fund can never be equitably e s t o pped where pay ment would conflict with the written ag reement.” Greany
, 973 F .2d at 8 2 2. Nor is this principle limited to tru s t f u nd defendants, because w e concluded in G r e any that “ no compelling r eason [ e x isted] to allow an estoppel claim to proceed solely because the individual or g roup to be estopped is other than a trust.” Id.

To counter the weig ht of this precedent, Gabriel relies on Spink

, and claims that the ty pe of misinformation he received from the plan representative, when considered in conjunction with various provisions in the Plan, makes certain provisions in the Plan ambigu o u s a s to him. To understand this
arg ument, w e must first take a n in-depth look a t Spink

. I n Spink

, L ockheed hired the p l a intiff, who was then 61 y ears old, away from a competitor. 125 F .3d at 1259. As part of its recruitment p rocess, L ockheed r eprese n t e d that the p laintiff could participate in L o ckheed’s pension plan. Id. F or theG A B R I E L V

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nex t four y ears, L ockheed sent the plaintiff written y e ar-end
statements n otify ing him of the amount of credited service he had accumulated as a plan participant. Id. Ev e n t u a lly

, L ockheed notified him he was n ot e lig ible to participate in the plan because h e was over 60 when hired. Id. at 1259– 60. Althoug h the district c ourt g ranted L ockheed’s motion to dismiss, id. at 1259, we reversed, rejecting L ockheed’s
arg ument that the pension plan unambig uously ex cluded the plaintiff from obtaining benefits, see id. at 1262–63.

I n r eaching tha t c onclusion, we r elied on two provisions of L ockheed’s ERI SA plan. The first provision s t a ted that “no Em p l o y e e may become a Member if he commences employ ment on or after December 25, 1976, and, a t the time of such commencement of employ ment, is six ty (60) y ears o f
age o r o l der.” Id. at 1262. The second provided that “once each y ear the Retirement Plan Commit t e e s hall notify e ach Member in writing of his total Credited Service, according to the Corporation’s records. Such Credit e d S e r vice shall be considered correct a

nd final unless the Member files an objection by F iling W ith the Committee w ithin thirty (30) calendared day s following such n otice.” I d. B ecause the plaintiff had received “ c orrect andfinal ” y ear-end statements indicating that he h a d ac crued credited service time, despite h a v i n g been older than 6 0 when hired, we concluded there

was sufficient ambig uity in the plan a s applied to the p laintiff
to allow the case to survive L o c k h e ed’s motion to dismiss. Id. at 1262–63.

Gabriel claims he is similarly situated to the employ ee in Spink

, and points to two di f fe rent provisions in the Plan. F irst, he identifies the “unambig uous statement in the AEPF plan that ten y ears of service are re quired.” This ten-y e arG A B R I E L V

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vesting requirement is reflected in both section 5.01, 9 which
sets the normal r etirement date, and section 8.03, 1 0 entitled “vesting

, ” which ex plains when a terminated participant will be considered to have vested. Second, section 14.02 states that participants in the Plan “shall be entitled to o btain periodic reports showing the number of hours credited to their
accounts at the administration office” and may show they a re entitled to a ddi t i o n a l hours by filing a claim and evidence with the a dministration office within one y ear after the end o f the disputed y ear. O therwise the “hours shall remain a s

9 Sectio n 5 .0 1 (a) p ro v id es in

relev an t p art:

T h e No rm al Retirem en t Date f o r a P articip an t sh all b e th e f irst d ay o f t

h e m on th co in cid en t w i th or im m ed iately f

o llo w in g h i s attain m en t o f ag e 6 2
, or on e y ear af ter h is Ef f ectiv e D ate of C o v erag e, w h ich ev er is later an d th e d ate h e h as:

(a) co m p l e t ed ten (1 0 ) Years o f Serv i ce, o f w h ich at least o n e y ear m

u st b e Cred ited Fu tu re Serv i ce . . . .

10 Sectio n 8 .0 3 p ro v id es in

relev an t p art:

A P articip an t w

h o p rio r to J an u ary 1
, 1 9 7 8
, f ails to earn

a to t al of at least 5 0 0 H o u r s o f Serv ice in a tw oco n s ecu tiv e P lan Year p erio d an d a P articip an t, w h o on

o r af ter J an u ary 1
, 1 9 7 8
, f

ails t o earn at least 5 0 0 Ho u rs

o f Serv ice in a P lan Year sh all b e d eem ed a T erm in ated Vested P articip an t p ro v id ed h e h as co m p leted ten (1 0)

o r m o re Years o f Serv i ce, of w h ich o n e y ear w as C r e d i t e d Fu t

u re Serv ice. On ce h e attain s ag e 5 5
, h e sh all b e elig i b le to ap p ly f o r a Retirem en t In co m e i n

acco rd an ce w ith t

h e ap p licab le p ro v i s i o n s o f A rticle VII[, w h ich sets th e am o u n t o f retirem en t in co m e].G A B R I E L V

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c r e dited.” 1 1 According to Gabriel, the F und g ave him a n unequivocal w ritten statement that he would be entitled to $1,236 per month if he retired in 1997, impl i c i tly indicating that he h ad enoug h hours of service to vest. Gabriel reasons tha t , because he did not challeng e the F und’s implicit indication that his service hours were sufficient for ve s t i n g, the “hours shall remain as credited” under section 14.02. Gabriel concludes that the clash b etween the F u nd’s implicit hours c alculation in the representative’s letter to him and the Plan’s statement that ten y ears are required for vesting creates an ambig uity

in the Plan’s provisions.

W e disag ree. Section 14.02 refers only to “perio d i c reports show i n g t he number of hours credited” to a participant’s a ccount. Gabriel does not claim he received or relied on such periodic report s w h en deciding to retire. Therefore, even if section 14.02’s requirement that the hours in such a r eport “shall remain a s credited” c o u l d create an ambig uity when read in connection wit h the vesting requirements in secti ons 5.01 a nd 8.03 under some circumstances, no such conflict ex ists in this case.

11 Sectio n 1 4 .0 2 states in

p ertin en t p art:

P articip an ts sh all b e en titled to o b t ain p erio d ic rep o rts sh ow in g th e n

u m b er o f h ou se cred i ted to th eir acco u n ts at th e ad m in i stratio n o f

f ice. P articip an ts w

h o co n ten d th at th ey are en titled to b e c r e d ited w ith a g reater

n u m b er o f h ou rs fo r an y calen d ar y ear m u st f i le

ev id en ce in s u p p o r t o f su ch claim s w ith th e ad m i n istratio n o f

f i ce w ith in o n e y ear af

ter t h e en d of th e disp u ted y ear o r th e h o u rs sh all rem ain as cred ited

. T h e T ru stees sh all d eterm in e th e p ro p er n u m b er of h o u rs, if an y , to b e cred ited to su ch P articip an t s.G A B R I E L V

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B e cause section 14.02 is not applicable to Gabriel’s claims, we a

re left with his arg ument that the misinformation provided by the plan representative in 1997 c onflicts with the clear lang uag e of sections 5.01 and 8.03. This conflict does
not cast doubt on the meaning or effect of those sect i o n s, h o w ever, but merely establishes that the defendants made misrepresentation s , a necessary element o f traditional estoppel. Reasonable p ersons could not disag ree r e ga r d ing the e ffect of sections 5 .01 and 8.03. The plan representative’s mistaken r esponse to Gabriel’s inquiry therefore “ d o es not rise to the level of an interpretati on of the plan’s provisions justify ing application of the equitable estoppel doctrine.” Greany , 973 F .2d at 822.

Even if Gabriel could show that the Plan was ambig uous, he fails to satisfy another element necessary to qualify for

e q u i t a ble estoppel: that h e was ig norant of the true fac t s

. Gabriel does not dispute that he received the F u nd’s November 20, 1979 letter. This letter informed Gabriel that he had n ot been elig ible to participate while a proprietor o f Twin Cities between 1975 and 1978, that h i s 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 tha t a non-vested participant who, for any two consecutive p lan y ears, has less than 500 hours of service will be deemed a terminated non-vested participant, absent reinstatement or s o me other ex ception. Gabriel arg ues that this letter was insufficient to inform him he was no t v es t ed, because it did not ex pressly state that he was inelig ible to receive a p ension unless he met certai n c r i teria. The letterG A B R I E L V

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itself belies this claim. 1 2 Accordin gl y , the district court p r o p e rly concluded that Gabriel was n ot entitled to reli e f based on estoppel as a matter of law.

2

W e nex t turn to G abriel’s claim that he is entitled t o t h e equitable remedy of r eformation. To q ualify for reformation of the Pl a n b ased on mistake under trust o r contract law principles, Gabriel would need to d e monstrate that “a mistake of fact or law affected the t e r m s ” of the Plan, the relevant
trust instrument here, and introduce evidence o f the trust settlor’s (or contractual parties’) true inte nt. Skinner

, 673 F .3d at 1166. G abriel cannot m e e t t his standard as a matter o f law, because the Plan itself does n o t c o n tain an

error. Gabriel concedes that h e was a sole proprietor of Twin Cities f r o m 1975 to 1978 and inelig ible to participate in the Plan during that time, and therefore the F und’s current, corrected records accurately reflect th e a greement b etween Gabriel and the F und. I n stead, Gabriel wants to reform the Fu n d ’ s a d m i n i s t r a t i v e r e c o r d s t o c onfor m t o t h e misinformation g iven h im by the plan repr es e n t ative. B ut reformation does not ex tend so far. The administrative records are n ot p art of the Plan, s e e Amara
, 131 S. Ct. at 1877–78 (rejecting

the use of non-plan summary documents
to create new o r different p lan terms), an d the F und’s mistake n a d ministrative records did not reflect the parties’
true intent in entering into the Plan. According ly

, the remedy of reformation due to mistake is not applicable in this contex t.

12 B ecau se th e N o v em

b er 2 0
, 19 7 9 letter estab lish es th at Gab riel k n ew

o r sh o u l d h av e k

n o w n th at h e w as n o t v ested

, w e d o n o t n eed to reach h is
arg u m en t th at h e n ev er receiv ed th e Decem ber 3 , 1 9 7 9 letter.G A B R I E L V

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Nor has Gabriel demonstrated that he is enti t l e d to reformation based on f

r aud, becaus e h e d o e s n ot alleg e that the Plan “was procured b y wrong f ul conduct, such as undue influence, d

uress, or fraud” or that he “was justified in rely ing

on the [F und’s] misrepresentations.” Skinner

, 673 F

. 3 d at 1166. A ccording ly

, G abriel has not a d d uced evidence g iving rise to a g enuine i s s u e o f material fact that he is entitled to reformation.

Gabriel arg ues that our decision in Mathews v. Chevron Corp.
, 362 F .3d 1 1 72 (9th Cir. 2 0 04), supports his reformation claim. I n M athews

, C hevron manag ement adopted a prog ram to r e duce its workforce by offering an enhanced retirement benefit to any participant in Chevron ’s ERI SA p lan who was involuntarily terminated w ithout cause, including those employ ees who ex pressed an interest in such “involuntary ” termination. Id. at 1 1 7 6 –77. Despite this
prog r am, p lant g eneral manag ers at f irst continued to ex ercise sig nificant personnel discretion. The Richmond plant g eneral
manag er repeatedly informed his e mploy e e s t h a t he did not plan to adopt the enhanced benefit prog ram, and c ertain employ e es at the plant voluntarily r etired. Id. at 1177. W h en Chevron ultimately instituted the p r o g ram at Richmond, the retired e mploy ees sued for the enhanced ben e fits. Id. at 1177–78. I t was undisputed that all of the employ ees would have been selected for i n v oluntary termination had they

ex p ressed an interest. Id. at 1 1 8 6

. W e held that Chevron breached its fiduciary

duty to these employ ees once it beg an to seriously c o n s i d e r i m

p l e menting the prog ram in Richmond. Therefore, we affirmed the district court’s order that Chevron had to modify its records to sh o w that the retired plaintiffs h ad been involuntarily terminated and were elig ible f o r enhanced benefits. Id. at 1186–87. The remedy was “appropriate equitable relief” b ec a u s e it operated merely toG A B R I E L V

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p r o vide the participants with the benefits they would hav e b e e n r e ceived but for the breach. Id. (internal quotati o n marks omitted).

Mathews does n o t h elp Gabriel here. I n Mathews

, the employ e es had b een elig ible to participate in the en h a n c e d benefits prog ram, and woul d h a v e participated but for the fiduciary ’ s m i s information. I d. at 1186. Here, by contrast, Gabriel was not elig ible to participa te in the Plan, and the

m i s i nformation h e r eceived in 1997 from a pl a n representative did not prevent him from o btaining any benefit under the Plan to which he otherwise w o uld have been

e ntitled. Whereas the o rder in Mathews allowed t h e

e m p l oy ees to g et the benefit of the involuntary terminati o n prog r am, 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 inelig ible person to be elig ible f or pension benefits. Equitable remedies are not available where the claim “ would result in a pay

ment of benefits that would be inconsistent with the written plan.” Greany , 973 F .2d at 822.

3

F inally

, we turn to Gabriel’s cla i m t h a t he is entitled to the equitable remedy o f surcharg e, to receive an a mount equal
to the benefits he would have received if he had been a participant w ith the hours e rroneously r eflected in the F und’s records when he applied for benefits. This cl a i m a l so fails. W h ile a trust beneficiary may remedy unjust enrichment throug h surcharg e by requiring “ [a] trustee (or a f i duciary ) who g ains a benefit b y breaching his or he r duty [ to] return that benefit to the beneficiary ,” Ski n n e r , 673 F .3d at 1167, G a b r i el does not arg ue that any of the defendants here we r eG A B R I E L V

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unjustly enriched by their alleg ed breaches of fiduciary duty

. Nor cou l d he, because the defendants merely prevented Gabriel from r eceiving benefits that he was not entitled to receive under the Plan, and such actions appropria t ely discharg ed the fiduciaries’ duty to act “s o l e ly in the interest of the p articipants and beneficiaries,” the individuals elig ible
to rece i v e s u c h benefits from the F und. 29 U .S.C. § 1104(a)(1); see a lso id. § 1 002 ( 7 ), (8) (defining “part i cipant” and “beneficiary ” to require potential “elig ibil[ ity ] to receive a benefit” under a plan).

Nor is Gabriel seeking a monetary award to recoup losses
t h e F und suffered f

rom any fiduciary ’s breach. Under traditional trust principles, “[ a] trustee who breaches his o r her duty could be liable for loss of value to the trust or for any profits that the trust would have a c crued in the absence of the breach,” a

nd “[ t] he beneficiary can pursu e t h e remedy that will put the beneficiary in the position he or she would have attained but for the trustee’s breach.” S kinner

, 673 F. 3 d at 1167. I n short, the beneficiary is entitled to restoration of the
trust res, not to benefit at the ex pense of other beneficiaries. I ndeed, under traditional trust law principles, a b eneficiary could be oblig ed to repay any pay ments received in error from the trust. See B og e rt , T h e L a w o f Trusts and Trustees § 191 (“A co-beneficiary owes his fellow beneficiaries a duty
to restore t o the trust fund pay ments made to him from trust principal or income which were improperly made, either d ue to mistake or w illful breach of trust.”). B ecause the surcharg e

r e m e d y Gabriel seeks would not r estore the trust e state, b u t rather would wrong fully d eplete it by pay ing him benefits he is n ot e lig ible to receive under the Plan, unde r Skinner a nd
trust law principles, Gabriel is not entitled to surcharge a s a remedy under § 1132(a)(3) as a matter of law.G A B R I E L V

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B e cause Gabriel is n o t entitled to estoppel, r eformation,

or surcharg e, as a matter of law, we affirm the district court’s
g rant of summary judg ment in favor of the defendants on Gabriel’s breach of fiduciary and co-fiduciary duty cl aims under § 1132(a)(3). 1 3 The b asis for our decision obviates the need for us to reach the q u estion whether the defendants’ actions here b reached their fiduciary duty by violating ERI SA or the terms of the Plan. Mertens , 508 U.S. at 254–55.

I I I

W e n ow turn to Gabriel’s arg ument unde r § 1132(a)(1) that the defendants e r re d in deny ing him benefits on the
gr ound that h e was non-vested. Gabriel does not claim th at t h e F und erred in determining that he had not v ested i n t h e Pl a n

. Rather, he arg ues that the F und waived this rationale for deny ing him benefits because the F und did no t raise his non-vested s t a t us until 2004, three y ears after the F und first suspended benefits on the g round that G a b r i el was eng ag ed in improper post-retirement work in the industry

.

The F und did not abuse its discr e t i o n here. Under ERI SA, an employ ee be n e fit plan must “provide adequate notice in writing to any participant or ben eficiary whose claim for benefits under the plan has been denied” and must “afford a reasonable opportunity to a ny parti c i p a nt whose

c l a i m f o r benefits has b een denied for a full and fair revi e w by the appropriate named fiduciary of the d e cision deny ing the claim.” 29 U.S.C. § 11 33; see also 29 C.F .R.

1 3 Gab riel’ s breach o f co

- f id u ciary d u ty claim f

ails f o r th e sam e reaso n s as h is b reach o f f

id u ciary d u ty claim

. S ee 2 9 U.S.C. § 1 1 0 5 (a) (creatin g

co

- f id u ciary l iab i lity in certain circu m stan ces w h en t h ere is an u n d erly in g b reach o f an o th er f id u ciary ’ s d u ty ).G A B R I E L V

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§ 2560.503–1(g )(1), ( h)(2). G iven these statutory a nd
reg ulatory requirements, we have h e l d t hat an administrator
may not r a i s e a new reason for d eny ing benefits in its final decision, because that wo u ld effectively preclude the participant “from responding to that rationale for denial at the administra tive level,” and insulate the rationale from administrative review. Abatie v. Alta Health & Life I ns. Co.
, 458 F .3d 955, 974 (9th Cir 2006) (en banc); see also Saffon

v. W ells F a r g o & Co. Long Term Disability Plan

, 522 F .3d 863, 871 ( 9 t h Cir. 2008) (holding that a plan administrator
must provide a participant with the reasons f or a benefits deni a l a t a t ime when the participant “had a fair c hance to present evidence on this point,” an d should not add a new

reason in the adm i n i s t rator’s final denial). Where the administrator’s final denial conta i n s a new rationale for deny ing a claim, the participant may present e vidence o n that point t o t h e district court, which must consider it. Saffon

, 522 F

. 3 d at 8 72. F urther, the district court can take into
account the administrator’s violation of ERI SA’s procedural requirements in determining how much deference to g ive the administrator’s final decision. Id. at 873.

I n this case, the F und did not violate ERI SA’s procedural requirements because it not ified Gabriel reg arding his nonvested status while Gabr i e l’s administrative case w as still pending before the App e als Committee. The F und did not put a new rationale for deny ing benefits into a final decision i n a manner that would insulate the denial f r o m administrative review. Cf. Abatie

, 458 F .3d at 9 7 4

. The Appeals Committee had not y et ruled on Gabriel’s claim for benefits w hen it discovered his non-vested status, and nothing precluded G abriel f

rom further litig ating the F und’s decision
to deny him benefits throug h the F u nd’s administrative review p ro cess. I ndeed, Gabriel had the opportunity toG A B R I E L V

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present e vidence to the Appeals Committee on this very issue, because the d istrict court remanded his benefits claim to the Appeals Committee. As we noted in Saffon

, i f a p l an administrator f

ails to g ive timely notice, the pla i n t i f f is not entitled to an award of benefits, b ut only to the opportunity to present evidence to c halleng e the plan administrator ’ s new determination. See 522 F .3d at 872–74. Gabriel g ot just such

a reme d y i n t his c ase. According ly

, we reject Gabriel’s
arg uments that the F und failed to comply with ERI SA procedural r equirements, or that i t waived its determination that Gabriel never vested, and affirm the distr i c t court’s deference to the F und’s denial of benefits.

I V

B e cause Gabriel cannot demonstrate that he is entitled to any of the equitable remedies available under § 1132(a)(3), o r that the F und waived its arg ument that h e never vested, we affirm the district court’s g rant o f summary judg ment in favor of the defendant.

AF F IRMED.

B ERZ ON, Circuit J udg e , concurring and dissenting :

The majority opinion disreg ards Supreme Court g uidance in CIGNA Corp. v. Amara
, 131 S. C t

. 1 8 6 6 (2011), a nd
creates a conflict with recent decisions o f t h e F ourth, F ifth, and Sev en t h C ircuits. As Gabriel may be entitled to an equitable remedy similar to surcharg e, I d i ssent from Part I I (B )(3) of the majority opinion, but concur in the remainder.G A B R I E L V

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Gabriel seeks a “remedy that will put [ him] in the position he

. . . w o u l d have attained but for the trustee[ s] ’[ ] breach.” Skinner v. Northr o

p G r u m man Ret. Plan B
, 673 F .3d 1162, 11 6 7 (9th Cir. 2012). Amara described “this kind o f monetary r emedy ag ainst a trustee” as “‘ex c lu sively equitable.’” 131 S. Ct. at 1880 (citation omitted). Althoug h Amara identified suc h r elief a s “sometimes called a ‘surchar ge , ’ ” the focus was not on the particulars o f
tr a d i t i o nal surcharg e law. I d. (citation omitted). I nstead, Amara embraced the concept that where t h e d efendant is “analog ous to a trustee,” the “‘charg e [ ag ainst] the defendant,

as a trustee, [ is] for breach of trust,” and “award [ is] of makewhole relief,” then “the r e medies

. . . f all within the scope o f the term ‘appropriate equitable relief.’” I d. (citation omitted).

The majority unde rstands Amara otherwise — a s p roviding for make-whole relief ag a inst a trustee f or bre a c h of fiduciary duty only w hen the breach (1) “result[ s] in a loss
to the trust e state[ ;] ” or (2) “allow[ s] the fiduciary to profit at t h e ex pense of the trust.” Maj. Op. at 19; see also i d

. a t 3 3 (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 surcharg e as a matter of law. Id. at 32–34.

B u t the holding of Amara is n ot so limited. Amara noted that the “surcharg e remedy [ had] ex tended to a breach of trust committed b y a fiduciary encompassing any violation o f a duty impo s ed u p on that fiduciary .” 131 S. Ct. at 1880 (emphasis added); see also J

. Eaton, Handb o o k of Equity J urisp r u d e n c e § 212, at 439 (1901) (“A breach of trust by a trustee creates a pers o n a l o b l ig ation

. . . which may be enforced ag ainst the trustee or his e s t a t e in a proper proceeding

. ”). Ex plaini n g its reasoning

, Amara noted thatG A B R I E L V

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“ b e fore the merg er of law and equity ,” a beneficiary c oul d bring suit for breach of fiduciary duty “only in a court o f equity

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

developed “specially tailored remedies” such as surcharg e “to fit the nature of the rig ht they soug ht to protect because ‘[ e ] quity suffers not a rig ht to b e without a remedy .’” Kenseth v. Dean Health Pla n , I nc. , 722 F .3d 869, 878 (7th Cir. 2013) ( quoting A mara , 1 3 1 S

. Ct. at 1879) ( quotation marks and citation o mitted). The broad character of the remedies ide n t i fi ed in A m ara is clearly described in the portion of a treatise it quoted:

Equity is primarily res p onsible for the protection of rig h ts arising under trust, a nd will provide the be n e f

iciary with whatever remedy is ne c essary to protect him a nd
recompense h im for loss, in so far as this can be done without injustice to the t rustee o r third parties.

The court is not conf

i n e d to a limited list o f remedies but rather will mold the r elief to protect the rig hts of the beneficiary according to the situation involved.

G. B og ert & G. B og ert, Trusts and Trustees § 861 a t 3–4 (rev. 2d ed. 1995) (second sentence quoted in Amara
, 131 S. Ct. at 1881).

“T h u s , i nsofar a s an award of make-whole relief is concerned, the fa c t that the defendant

. . . is analog ous to a tru s t e e makes a critical difference.” Amara
, 131 S. Ct. at 1880 (disting u ishing prior case law concerning non-fiduciary defendants). B ey o nd that “critical difference,” id.

, Am araG A B R I E L V

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was c oncerned with whether relief soug ht under 29 U .S.C. § 1132(a)(3) “resembles

forms of traditional equitable relief,” id. at 1 879 (emp h a s i s added), not w hether the precise requirements for obtaining such r elief under the common law of trusts are met. Make-whole r e l i e f f or breach of fiduciary duty ag ainst a trustee conforms to that description, whether o r not traditional trust law would have provided that relief under the “surcharg e” terminolog y

.

Given its breadth, Amara h as rig htly been described as a “‘[ a] striking development,’” M c Cravy v. Metro. Life Ins. Co.
, 690 F .3d 176, 180 (4th Cir. 2012), “that sig nificantly altered the understanding of e quitable relief available u nder” § 1132(a)(3), Kenseth

, 722 F

. 3d a t 876, in cases alleg ing a breach o f fiduciary duty

. I ndeed, several other circuits have overruled their own precede n ts in its wake. S ee, e.g. , McCravy
, 690 F .3d at 180 (“B efore A ma r a , various lower courts, including this one, had ( mis)construed Supreme Court precedent to limit severely the remedies available to plaintiffs suing fiduciaries under [ §] 1 132(a)(3).”). The majority nonetheless treats Amara as a c ontinuation of prior case law, Maj. O p. at 2 0
, hardly citing it in t he 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 F o urth, F ifth, and Seventh Circuits confirm that the doctrine of surcharge is, a fter Amara
, not as narrow as the majority contends. I n McCravy
, for ex ample, the defendant accepted life insurance premiums from a plan part i c i p a nt on behalf of the participant’s dau gh ter, even thoug h the d aug hter was inelig ible for

c overag e. 690 F .3d at 1 78. W hen the participant fi l e d a

c l a im for benefits following her daug hter’s death, the plan “attemp t e d to refund multiple y ears’ worth of p remiums”G A B R I E L V

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r a t h e r than pay the claim. Id. The F ourth Circuit held t h at under the surcharg e doctrine, w hich it characteriz ed a s “make-whole relief,” the p articipant’s “potential recovery ” was “not limited

. . . to a premium refund.” Id. at 181. That

was so even thoug h pay ing the participant’s benefits w o u ld hold the f

iduciaries li a b l e neither for “ loss o f 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.
, 7 0 9 F. 3 d 448 (5th Cir. 2013), w aived medical benefits available under his wife’s retirement based on h is own plan’s “assurances” that he would be covered for life. The plan later determined that it had inaccurate ly “comput[ ed] Gearlds’s service time under the r eti r e m e n t p lan” and withdrew his medical c overag e

. Id. at 449–50. The F ifth Circuit h e ld that Gearlds stated a “plausible claim” for surcharg e relief, id. at 452, ag ain, notwithstanding that the medical benefits he
soug h t had nothing to do with unjust enrichment by a trustee or a loss to the trust.

F inally

, in Kenseth

, the Seventh Circuit construed Amara

as stating a similarly broad view of surcharg e — that “makewhole money damag e s” are an available “equitable remedy ” whenever a p lan participant demon s t rates (1) a breach of a fiduciary duty

, (2) causing damag es. 722 F. 3 d at 882. Kenseth h ad underg one surg ery b ased on the health plan’s

cu s t o m er service representative’s a ssurance that the surg ery would be covered, but the plan subsequently denied c overag e

. Id. at 87 1

– 7 2

. Noting that Amara “clarified that equitable rel i e f may come in the f orm of money damag es when the d e fendant is a trustee in b reach o f a fiduciary duty [ ,] ” i d

. at 878–79, the Seventh Circuit held “tha t i f K e nseth is able to demonstrat e a b r e a ch of fiduciary duty

. . . , a nd if she canG A B R I E L V

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show that the breach caused her damag es, s h e m a y seek an appropriate equitable remedy including make-whole relief in the form of money

damag es,” id. at 883.

McCravy
, Gearlds

, and Kenseth confirm that under Amara
, surcharg e is not limited to the circumstances in which

a trustee person a l l y benefits from a breach of duty or a p lan incurs a loss. I nstead, the r emedy is based on equity courts’ “power to provide relief i n t h e form of monetary ‘compensation’ for a loss resulting from a trustee’s b reach o f 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 surcharg e.” Maj. Op. at 22. I n the majority ’s view, these cases “merely corr ected district courts’ erroneous” conclusions that no monetary relief was available under § 1132(a)(3), and “remanded for the district c ourts to

assess

. . . the appropriateness of the surcharg e remedy

, in the first instance.” Id

. at 22. T h ese reasoned opinions from other circuits cannot be dispatched so easily

. Had they concluded, like the majority here, that sur charg e was limited to unjust enrichm e n t b y a trustee or a loss to the plan, McCravy
, Gearlds

, a

nd Kenseth would have each held their respective participant n o t entitled to surcharg e as a matter of law. I n each case, a participant soug ht benefits to which he was not entitle d under the terms o f the plan. There was neither claimed unjust enrichment b y t h e trustee nor a loss to the plan. There w a s simply an a lleg ed breach of fiduciary duty and a loss of benefits to the participant himself. A l t h o u gh each remanded to the district c ourt to d etermine whether the def e n d a n t “ breached its fiduciary duty ” and “[ i] f so,

. . . whether that breach

. . . harmed” the p articipant, the appellate
courts made clear that if these questions were answered in theG A B R I E L V

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affirma t ive, the participant could “ seek an appropriate equitable remedy including make-whole relief in the form o f
money damag es.” Kenseth , 722 F .3d at 890, 883.

I ndeed, the majority ’ s narrow v iew of Amara is unsupported by the facts of that case itself, which i n v o l v ed neither a loss to the trust estate nor unjust enrichment by the fiduciary

. The breach a lleg ed in A m a r a was not the underly ing decision to alter CI GNA’s retirement b e nefit offering s. I nstead, i t wa s the fiduciary ’s “fail[ ure] to g ive [ plan p articipants] proper notice of chang es to their benefits,” Amara
, 131 S. Ct. at 1 870, and instead sending “descriptions of its new plan [ which] were sign i f i c a ntly incomplete a

nd misle[ a ] d[ ing ] ,” id. a t 1872. Althoug h the fiduciary sav e d $10 million annually by cha n g ing the retirement benefits available to i t s employ ees, those saving s did not result from the alleg ed breach. There is n o indication that but-for t h e improper notice, CI GNA would not have instituted the p lan chang es a

nd obtained the resulting savi n gs

. I ndeed, the district court in Amara noted that participants may not “have received a larg er b enefit were the notices accurate,” acknowledg ing that the harm c aused by the i m p ro p er notice

was different from the harm caused by the c hang es t o the plan. Amara v. Cigna Corp.
, 534 F

. Supp. 2 d 2 8 8
, 3 53 (D. Conn. 2008), aff’d

, 348 F

. A pp’x 627 ( 2d Cir. 2009), vacated and remande d

, 131 S. Ct. 1866 (2011). Amara was not, therefo r e , a c a s e in which “a breach of trust committed by a fiduciary resulted in a loss to the tr u s t estate or allowed the fiduciary to profit at the ex p ense of the trust” — the o nly two circumstances in which the majority believes surcharg e to be available. Maj. Op. at 19.

N o r does our precedent in S kinner limit E RI SA makewhole equitable r elief for a breach o f fiduciary duty to “onlyG A B R I E L V

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

a r e “ b o u nd” to hold as the majority does. Maj. Op. at 2 3

. Althoug h Skinner describes only t w o b ases for surcharg e, it does n ot identify them as ex c l u s ive, o r opine that no other retroactive make-whole relief is available under § 1132(a)(3). I ndeed, Skinner notes that “[ t] he b eneficiary can p u r s ue the remedy that will put the beneficiary in the position he or she would have attained but for the trustee’s breach,” 6 73 F .3d at 1167, echoing the broader v iew of surcharg e-like relief

ex p ressed in A mara

.

T h e majority opinion thus seriously misunderstands t h e reach of A mara and bring s us needlessly into conflict with all other circui t s 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 G a b r i el n ot entitled to an

“ appropriate e quitable r emedy ” under § 1 132(a)(3) as a matter of law, it affirms the district court without considering whether Gabriel has raised a tri a b l e i s s u e of fact as to the other elements of a breach o f fi d u ciary duty claim. I would conclude he has.

There c an be little dispute that the f iduciar y d efendants breache d t h e ir duties to Gabriel by g iving h im incorrect information about his rig hts under the plan. See, e.g. , Bins v

. Exxon Co. U.S.A.
, 220 F .3d 1042, 1054 (9th Cir. 2 0 0 0 ) (en banc) (noting “an ERI SA fidu c iary ’s duty

. . . [ to] g iv[ e] complete and accurate answers to the employ ee’s q u e stions”). Gabriel has also a dduced sufficient evidence to raise a triable issue as to whether that breach caused him harm by leading him to retire when he was still h ealthy enoug h to w ork. ThatG A B R I E L V

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the “the misinformat i o n [ G abriel] received in 1997 from a p l a n representative did not prevent h im from obtaining a n y benefit under the P l an to which he otherwise would have been e ntitled,” Maj. Op. at 3 2 (emphasis added), because it

was “eleven y ears too late for h im to” accrue the req u i r e d additional y ears of se r v i ce, as noted by the F und’s Appeals Committee, is not a pertinent conside r a tion. Gabriel’s complaint is not that he c ould have accrue d additional y ears of service had he b e e n properly infor m e d

, but that he relied

on the representation that he h ad already accrued adequate service, and on the r esulting pension pay ments. As there a

re tria b l e issues of fact reg a rding whether Gabriel was harmed by the defendants’ breach, and, i f so, whether make-whole

r e l i e f would remedy that harm, I w ould reverse the distri ct court’s g rant o f summary ju d g m en t in favor of defendants and remand for further proceeding s. 1

B e cause the panel misconstrues Amara and misapplies it to this case, I

respectfully

dissent.

1 I reco g n ize th at th e reco rd co u l d su p p o rt th e co n clu sio n t h a t Gab riel k n ew o r sh o u ld h av e k

n o w n h e w as n o t v ested as early as 1 9 7 9

. A s th ere

are t riab l e issu e s o f f

act reg ard in g Gab riel’ s relian ce o n d ef en d an ts’

m isrep resen tatio n s, th i s case is n o t ap p ro p riate f

o r su m m ary j u d g m en t.