A panel of the Ninth Circuit withdrew its earlier opinion and has now joined other circuits in finding that the equitable remedy of surcharge is available for participants seeking recovery of personal losses as opposed to losses suffered by the plan. Gabriel v. Alaska Elec. Pension Fund, 2014 WL 7139686 (9th Cir. Dec. 16, 2014). Surcharge relief is one of three forms of equitable relief identified by the Supreme Court in its landmark Amara decision (along with equitable estoppel and reformation), which is available where a fiduciary breach causes a loss.  

In this case, the Court remanded to the trial court to determine whether the participant is entitled to surcharge for his claim that the plan breached its fiduciary duty by failing to inform him he was ineligible for a pension benefit because he had not satisfied the plan’s service requirements, thus causing him not to engage in additional service in order to qualify. The panel’s prior opinion had provoked considerable attention as discussed here.