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 appellantcalled equitable surchargewas 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 Circuit's earlier cases, and in fact had triggered a circuit split on the issue of equitable surcharge.
On July 21, 2014, the appellant filed with the court a request for a rehearing or a rehearing en banc. A joint amicus briefsubmitted on behalf of the National Employment Lawyers Association and the AARPwas filed on the same day, supporting...
