In a previous
ASAP article, we discussed the Ninth Circuit's June 6, 2014
decision in Gabriel v. Alaska Elec. Pension Fund, 755 F.3d
647 (9th Cir. 2014). In the initial opinion issued by the court,
the panel split 2-1 in affirming a district court's ruling that
the appellant was not entitled to ongoing retirement benefits, even
though the relevant pension fund had provided those benefits for
three years prior to the parties becoming involved in litigation.
The court initially held that the remedy sought by the
appellant—called equitable surcharge—was unavailable to
him under ERISA. See 11 U.S.C. § 1132(a)(3); ERISA
§ 502(a)(3). Pursuing that relief, the initial opinion stated,
was contrary to the limited equitable relief regime set forth in
the remedial provisions in the statute. In a strenuous partial
dissent, Judge Marsha Berzon wrote that the panel had misconstrued
the Supreme Court's decision in CIGNA Corp. v. Amara,
131 S. Ct. 1866 (2011), misread the Ninth
