United States v. 2005-08-17 | 03-57000 | PERALTA VHISPANIC BUSINESS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CARMEN PERALTA, No. 03-57000
Plaintiff-Appellant, D.C. No.
v.  CV-03-00540-CJC
HISPANIC BUSINESS, INC., OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
June 8, 2005—Pasadena, California
Filed August 18, 2005
Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Jane A. Restani,* Judge.
Opinion by Judge Restani
*The Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.
10895

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COUNSEL
Ester R. Sorkin, Ball & Yorke, Ventura, California, for the
plaintiff-appellant.
Stephen E. Ronk, Christopher E. Hawk, Gordon & Rees,
LLP, Los Angeles, California, for the defendant-appellee.
OPINION
RESTANI, Judge:
Carmen Peralta appeals the district court’s grant of sum-
mary judgment in favor of her former employer, Hispanic
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Business, Inc. (“HBI”). Peralta alleges that HBI breached its
fiduciary duty as an ERISA plan administrator by failing to
inform her in a timely manner that her ERISA benefit plan for
long-term disability insurance had been cancelled. The district
court found that any state law claims were preempted by
ERISA and that the remedy sought was not available under
ERISA. On appeal, Peralta asserts that subject matter jurisdic-
tion is lacking or, in the alternative, that an ERISA violation
occurred and a remedy exists. We conclude that we have
jurisdiction and affirm the grant of summary judgment in
favor of defendant.
FACTS
In October 1998, Carmen Peralta began work as a special
events manager for HBI, a publisher of business magazines.
As part of an effort to enhance its benefits package, HBI
introduced a new long-term disability insurance policy (“LTD
policy”), effective January 1, 1999, at no cost to its employ-
ees, which automatically covered “all regular employees who
work[ed] 30 or more hours per week.” Letter from HBI (Dec.
28, 1998), ER at 101. The LTD policy was an employee bene-
fits plan, as defined by ERISA, and Peralta was a beneficiary
of the plan. In July 2000, Maureen Girouard, the then-Human
Resources (“HR”) Manager at HBI, wrote to the LTD policy
carrier to cancel the policy.
On October 10, 2000, Peralta, while still employed at HBI,
was involved in an automobile accident and suffered serious
injuries. Believing that she was covered under HBI’s LTD
policy, Peralta attempted to make a claim for long-term dis-
ability benefits. But as the policy had already been cancelled,
no benefits were paid.
At the time of Peralta’s accident, June Wozny was HBI’s
HR manager. Wozny was in charge of the administration of
HBI’s employee benefits plan, and one of her projects was to
take “a good hard look at the current benefit plan” and try to
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improve the benefits package, in an attempt to reduce HBI’s
high employee turnover. Wozny Dep. (July 29, 2003), ER at
48. During Wozny’s investigation into the existing HBI bene-
fits, she discovered, based on “a file, a printed material . . .
E-mail or [something] in someone’s handwriting, that [some-
one] had cancelled this long-term disability [policy].”1 Id. at
50. As a result, Wozny sent out an email, on October 18,
2000, informing all HBI employees that the LTD policy had
been “cancelled inadvertently” in July 2000 “[b]ecause of
some communication errors.”2 Id. During her deposition,
Wozny admitted that prior to these discoveries, based on a
summary of HBI’s employee benefit plans, she was under the
assumption that HBI had an LTD in place. Peralta, who had
been in the hospital since October 10, 2000, was initially not
aware of Wozny’s email. By the time she left the hospital at
the end of October 2000, however, Peralta had learned of the
cancellation of the LTD policy, which she later verified with
the HR manager.
On October 4, 2002, Peralta filed suit in federal district
court, alleging breach of fiduciary duty by HBI under the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1001, et seq.3 Peralta claimed that
she had relied on HBI’s LTD policy and, believing that she
was already covered, did not purchase outside insurance. She
further claimed that HBI had a fiduciary duty to “provide
complete and accurate information about the status of the
1Despite the seemingly deliberate cancellation of the LTD policy, there
are questions regarding who, specifically, authorized the cancellation, and
whether it was for reasons of cost, lack of use, failure to make a payment,
or mistake.
2The email also stated that HBI was obtaining bids from new carriers
for the open enrollment period, effective December 1, 2000, and “[a]t that
time this policy will be reinstated.” Wozny Email (Oct. 18, 2000), ER at
208. Counsel confirmed at oral argument, however, that the policy was not
reinstated.
3Peralta settled her claims in connection with the underlying accident
separately.
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employee benefits plan,” which included “providing notice of
the discontinuation or suspension of coverage.” Complaint
(Oct. 4, 2002), ER at 2. According to Peralta, HBI violated its
fiduciary duty to give adequate notice by intentionally con-
cealing the fact that it had cancelled the LTD policy. Peralta
sought either an order reinstating her LTD benefits, or, in the
alternative, other orders that would provide substantive relief
equivalent to the reinstatement of the LTD benefits.
On August 21, 2003, HBI moved for summary judgment on
numerous grounds, including that (1) HBI provided adequate
notice of the LTD policy cancellation, pursuant to ERISA’s
notice requirement, see 29 U.S.C. §§ 1022(a)-(b), 1024(b)(1)
(2000); (2) Peralta’s request for a reinstatement of LTD bene-
fits or substantive relief equivalent to the reinstatement of
benefits would be a compensatory monetary recovery not per-
mitted under Great-West Life & Annuity Insurance Co. v.
Knudson, 534 U.S. 204, 210-11 (2002), for a procedural
ERISA breach; and (3) even if monetary recovery for a proce-
dural ERISA breach were possible, it would not be available
to Peralta because HBI committed no egregious action.4
On October 16, 2003, the district court granted summary
judgment for HBI, concluding that no remedy was available.
The court stated that “[p]ursuant to Great-West . . . and its
progeny, Plaintiff may not use the equitable enforcement
mechanisms of ERISA to secure compensatory relief for
HBI’s alleged breach of fiduciary duty.” Order Granting
Def.’s Mot. For Summ. J. (Oct. 16, 2003), ER at 316. The
court reasoned that because the LTD policy had been cancel-
led and was no longer in effect, Peralta’s requested relief
“must be compensatory in nature, and thus, outside the scope
of the equitable enforcement mechanisms of ERISA 29
U.S.C. § 1132(a)(3).” Id. On October 29, 2003, the court
4Peralta’s claim for statutory damages of $100 per day for failure to pro-
vide a copy of the LTD policy was denied by the district court and not
appealed.
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ordered that the “Plaintiff take nothing and that the action be
dismissed on the merits.” Judgment (Oct. 29, 2003), ER at
319. Peralta now appeals.
DISCUSSION
I. Subject Matter Jurisdiction
The parties dispute whether subject matter jurisdiction
exists. Although this issue was first presented to the district
court at the hearing on the summary judgment motion, and
not addressed in the district court’s order, we must still deter-
mine whether federal jurisdiction exists. See Freeman v.
Jacques Orthopaedic & Joint Implant Surgery Med. Group,
Inc., 721 F.2d 654, 655 (9th Cir. 1983) (explaining that “it is
this court’s duty to see to it that the [d]istrict [c]ourt’s juris-
diction, defined and limited by statute, is not exceeded”). We
review the existence of subject matter jurisdiction de novo.
Millers Nat’l Ins. Co. v. Axel’s Express, Inc., 851 F.2d 267,
269 (9th Cir. 1988).
[1] In civil cases, subject matter jurisdiction is generally
conferred upon federal district courts either through diversity
jurisdiction, 28 U.S.C. § 1332, or federal question jurisdic-
tion, 28 U.S.C. § 1331. There is no diversity jurisdiction here
because Peralta and HBI are both California citizens. The sole
federal question in Peralta’s complaint arises from her disabil-
ity claims under ERISA, 29 U.S.C. § 1001, et seq., which pre-
empts state law claims that “relate to” an employee benefit
plan. See 29 U.S.C. § 1144(a).
[2] The complaint filed in the district court makes quite
clear that Peralta seeks remedies based on a breach of fidu-
ciary duty by an administrator of an ERISA plan. There is no
doubt, and the parties do not dispute, that the LTD policy at
issue was an ERISA welfare benefit plan.5 There is also no
doubt or dispute that HBI was an ERISA fiduciary.
5ERISA governs two types of employee benefit plans: (1) “pension”
benefit plans and (2) “welfare” benefit plans. 29 U.S.C. § 1002(1)-(2).
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In previous cases, while we have found no ERISA preemp-
tion with respect to certain claims that are only loosely related
to ERISA, in none of those cases did an ERISA plan exist
under which the plaintiff sought benefits based on a breach of
fiduciary duty by the plan’s administrator, as is the case here.
For example, we have at times found insufficient relation to
the benefit plan for preemption to attach. See, e.g., Winter-
rowd v. Am. Gen. Annuity Ins. Co., 321 F.3d 933, 937-39 (9th
Cir. 2003) (no ERISA preemption because there was no
ERISA plan); Curtis v. Nevada Bonding Corp., 53 F.3d 1023,
1027-29 (9th Cir. 1995) (no ERISA preemption because
plaintiff never became eligible to receive benefits under the
plan); Harris v. Provident Life & Accident Ins. Co., 26 F.3d
930, 933 (9th Cir. 1994) (no ERISA jurisdiction because, at
the time of filing suit, the former employee, was not a partici-
pant in employer’s ERISA health care plan); Delaye v. Agri-
pac, Inc., 39 F.3d 235, 238 (9th Cir. 1994) (no ERISA
jurisdiction because employment contract is not a plan gov-
erned by ERISA); Scott v. Gulf Oil Corp., 754 F.2d 1499,
1505-06 (9th Cir. 1985) (no ERISA preemption of employ-
ees’ prospective benefits claim based on the employer’s fail-
ure to negotiate coverage with the successive employer,
which prevented the existence of a plan).
[3] Recently, in Providence Health Plan v. McDowell, 385
F.3d 1168 (9th Cir. 2004), cert. denied, 125 S. Ct. 1726, and
cert. denied, 125 S. Ct. 1735 (2005), we concluded that an
ERISA provider’s breach of contract claim against a partici-
pant for failure to reimburse it from a third-party settlement
was not preempted by ERISA. 385 F.3d at 1171-73. The
reimbursement claim in that case did not “relate to” the plan
because adjudication of the claim required no interpretation of
the plan, no distribution of benefits, and no dispute regarding
any benefits previously paid. Id. at 1172 (explaining that
when evaluating whether a claim “relates to” a plan governed
by ERISA, “the focus is whether the claim is premised on the
existence of an ERISA plan, and whether the existence of the
plan is essential to the claim’s survival”). We concluded that
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such reimbursement claims are merely state law claims for
contract damages, requiring no construction of plan terms and
for which no ERISA remedies exist. Id. McDowell, however,
has no factual similarity to the instant case, where interpreta-
tion of ERISA law lies at the heart of the dispute. Because,
as discussed infra, we conclude that ERISA imposes a fidu-
ciary duty of timely notification of plan cancellation, and that
breach of such a duty may give rise to equitable remedies, we
also conclude that ERISA preemption exists and that federal
question subject matter jurisdiction is present.
II. Duty of Timely Notification
It is indisputable that an employer has a right to eliminate
an ERISA-governed benefit plan. See Cunha v. Ward Foods,
Inc., 804 F.2d 1418, 1432-33 (9th Cir. 1986) (holding that ter-
mination of ERISA plan was not a breach of fiduciary duty)
(citation omitted). That is not the issue here. The issue is,
rather, whether an administrator has a fiduciary duty to notify
participants in a timely fashion of the total termination of their
coverage, and whether that duty is separate from the reporting
and disclosure duty under 29 U.S.C. § 1024(b)(1) to notify
participants of material changes and modifications.6
[4] In this case, because HBI’s notification of the LTD pol-
icy cancellation, per Wozny’s October email, occurred
approximately three months after Girouard’s July cancellation
letter, the § 1024(b)(1) requirement, that “a summary descrip-
6“[W]elfare plans are expressly exempted from [ERISA’s] detailed
minimum participation, vesting and benefit-accrual requirements and are
not subject to ERISA’s minimum-funding requirements.” Moore v. Metro.
Life Ins. Co., 856 F.2d 488, 491 (2d Cir. 1988). Notwithstanding these
exemptions, welfare benefit plans are governed by ERISA’s reporting and
disclosure requirements, see 29 U.S.C. §§ 1021-1031 (2000), and fidu-
ciary responsibility standards, see 29 U.S.C. §§ 1101-1114 (2000). See
also Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir. 1984), abro-
gation on other grounds recognized by Dytrt v. Mountain State Tel. & Tel.
Co., 921 F.2d 889, 894 n.4 (9th Cir. 1990).
10904 PERALTA v. HISPANIC BUSINESS

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tion of such modification or change shall be furnished not
later than 210 days [seven months] after the end of the plan
year in which the change is adopted,” would be satisfied.
Whether there is a more basic duty to provide timely notice
of plan cancellation, however, is an issue that few courts have
addressed, and for us is an issue of first impression. For the
reasons that follow, we conclude that, although the statute
does not expressly require timely notice of plan termination,
such a requirement is implicit in the purpose and structure of
ERISA.
A. The Fiduciary Purpose of ERISA
[5] “ERISA seeks ‘to safeguard the well-being and security
of working men and women and to apprise them of their
rights and obligations under any employee benefit plan.’ ”
Blau, 748 F.2d at 1356 (quoting Donovan v. Dillingham, 688
F.2d 1367, 1372 (11th Cir. 1982)). “[T]he evils against which
ERISA was enacted to guard [are] insecurity, lack of knowl-
edge, and inability to police plan administration . . . .” Id.
ERISA guards against these evils and protects employee ben-
efit plans by setting forth certain fiduciary duties applicable
to the management of both employee welfare and benefit plans.7
7When enacting ERISA, Congress invoked and incorporated the com-
mon law of trusts, which had governed most benefit plans before ERISA,
to broadly define the general scope of an ERISA administrator’s fiduciary
duty. See Cent. States, Se. & Sw. Area Pension Fund v. Cent. Transp.,
Inc., 472 U.S. 559, 570 (1985) (“[R]ather than explicitly enumerating all
of the powers and duties of trustees and other fiduciaries, Congress
invoked the common law of trusts to define the general scope of their
authority and responsibility.”); Varity Corp. v. Howe, 516 U.S. 489, 497
(1996) (“we believe that the law of trusts often will inform, but will not
necessarily determine the outcome of, an effort to interpret ERISA’s fidu-
ciary duties. In some instances, trust law will offer only a starting point,
after which courts must go on to ask whether, or to what extent, the lan-
guage of the statute, its structure, or its purposes require departing from
common-law trust requirements.”) (emphases added); Restatement (Sec-
ond) of Trusts § 170 (1992) (imposing a duty of loyalty on trustees to “ad-
minister the trust solely in the interest of the beneficiaries” and imposing
“a duty to deal fairly and to communicate to the beneficiary all material
facts the trustee knows or should know in connection with the transac-
tion”).
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See generally 29 U.S.C. §§ 1101-1104. The statute places a
core obligation on an ERISA fiduciary to “discharge [its]
duties with respect to a plan solely in the interest of the partic-
ipants and beneficiaries.” Id. § 1104(a)(1);8 see also Varity,
516 U.S. at 506; Bins v. Exxon Co. U.S.A., 220 F.3d 1042,
1048 (9th Cir. 2000) (en banc).
[6] Citing § 1104(a)(1), the Eleventh Circuit has concluded
that “[p]roviding notice of the discontinuation or suspension
of coverage is a fiduciary responsibility” and that “employees
are entitled to prompt notice of the suspension of their plan
coverage.” Willett v. Blue Cross & Blue Shield of Alabama,
953 F.2d 1335, 1340 (11th Cir. 1992); see id. at 1341-42
(holding that delegation of duty to notify individuals of sus-
pension of coverage does not relieve fiduciary of all liability
for breach of that duty); accord Presley v. Blue Cross-Blue
Shield of Alabama, 744 F. Supp. 1051, 1058 (N.D. Ala. 1990)
(recognizing that insurer could delegate fiduciary duty of noti-
fying plan participants of termination of coverage, but that its
liability for breach could still exist); see also Rucker v. Pacific
FM, Inc., 806 F. Supp. 1453, 1459 (N.D. Cal. 1992) (recog-
nizing duty of prompt notification of LTD policy cancellation).9
8Included directly in the statute are congressional findings and a decla-
ration of policy stressing the need to protect employee interests. See id.
§ 1001(a) (declaring, among other things, that (1) “the continued well-
being and security of millions of employees and their dependants are
directly affected by these plans;” (2) due to the “lack of employee infor-
mation and adequate safeguards concerning their operation [employee
welfare and benefit plans], it is desirable in the interests of employees and
their beneficiaries . . . that disclosure be made and safeguards be provided
with respect to the establishment, operation, and administration of such
plans;” and (3) it was desirable “that minimum standards be provided
assuring the equitable character of such plans”).
9In dicta, the Third Circuit suggested that the only fiduciary duty
regarding termination notification is found in 29 U.S.C. § 1024(b)(1).
Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1168, n.15 (3rd Cir.
1990). The court also opined that Congress may have sought to minimize
disincentives to creating ERISA benefit plans by restricting liability for
reporting and disclosure violations. Id. at 1170. There is little burden,
however, in advising employees when a plan is terminated, and routine
reporting and disclosure requirements would seem to be of a different
nature from complete termination, as is discussed in the following section.
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[7] We agree with the Eleventh Circuit that the broad fidu-
ciary responsibilities imposed by ERISA require a plan
administrator to provide timely notification to employees of
termination of their benefits. To conclude otherwise would
conflict with ERISA’s purpose to safeguard the well-being of
employees and apprise them of their rights under an ERISA
plan.
B. The Structure of ERISA
[8] In addition to fiduciary duties, ERISA imposes report-
ing and disclosure obligations on a plan administrator. The
reporting and disclosure provisions, see 29 U.S.C. §§ 1021-
1031, are set forth separately from the fiduciary duty provi-
sions, see 29 U.S.C. §§ 1101-1114. This separation suggests
that an administrator’s satisfaction of specific reporting
requirements does not necessarily satisfy its fiduciary respon-
sibilities. Indeed, to say that compliance with Part One of
ERISA would also satisfy obligations under Part Four would
render the Act’s fiduciary protections a nullity, or at least sur-
plusage. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(quotations and citations omitted) (“It is a cardinal principle
of statutory construction that a statute ought, upon the whole,
to be so construed that, if it can be prevented, no clause, sen-
tence, or word shall be superfluous, void, or insignificant.”).
[9] Therefore, in order to give meaning and effect to
ERISA’s fiduciary purpose, more must be required of an
administrator than mere compliance with ERISA’s express
reporting and disclosure provisions. In other words, “[i]f the
fiduciary duty applied to nothing more than activities already
controlled by other specific legal duties, it would serve no
purpose.” Varity, 516 U.S. at 504.
[10] Moreover, although HBI’s notice—within approxi-
mately three months of the LTD policy cancellation—would
satisfy the reporting and disclosure requirements set forth in
§ 1024(b)(1), a termination is not the equivalent of a change
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or modification.10 See Black’s Law Dictionary 1155, 1641
(4th ed. 1957) (defining “modification” as “[a] change; an
alteration which introduces new elements into the details, or
cancels some of them, but leaves the general purpose and
effect of the subject-matter intact; and “terminate” as “[t]o put
an end to; to make to cease; to end”); see also MCI Tele-
comms. Corp. v. AT&T Co., 512 U.S. 218, 225, 228 (1994)
(defining “modify” as having a “connotation of increment or
limitation,” which is evidenced by the fact that nearly every
dictionary says “ ‘to modify’ means to change moderately or
in minor fashion,” and that “ ‘modify’ does not contemplate
fundamental changes”).
[11] Unlike a change or modification, the termination of a
plan leaves an employee without any coverage whatsoever.
See Rucker, 806 F. Supp. at 1459 (stating that “a termination
of benefits affects a beneficiary’s rights to a much greater
degree than compared to a mere modification”). If the stat-
ute’s 210-day notification period were to apply, employees,
unknowingly, would be at risk of having no coverage for
seven months. A seven-month notification period hardly can
be considered the meaningful disclosure mandated by ERISA
or the “prompt” notification set forth in Willet, 953 F.2d at
1340.11
As we stated in Blau,
[t]he administrator of an employee welfare benefit
plan . . . has no discretion to secrete the plan, to flout
the reporting, disclosure and fiduciary obligations
imposed by ERISA, or to deny benefits in contraven-
tion of the plan’s plain terms. 29 U.S.C. §§ 1101-
10While the LTD plan may not be the only welfare benefit plan provided
by HBI, it was a separate plan.
11There is no principled reason to distinguish the suspension of an indi-
vidual’s coverage from suspension or termination of coverage for the
whole workforce. The same risk is simply multiplied.
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1114 (fiduciary responsibilities with respect to plan);
29 U.S.C. §§ 1021-1031 (reporting and disclosure
provisions); 29 U.S.C. § 1104(a)(1)(D) (plan must be
administered “in accordance with the documents and
instruments governing the plan insofar as such docu-
ments and instruments are consistent with the provi-
sions of [ERISA]”).
748 F.2d at 1353.
[12] HBI’s notification, three months after the plan’s can-
cellation, does not constitute timely notification. Timely noti-
fication may in some circumstances mean prompt notification
after a change has been effectuated. In other circumstances,
timely notification may require prior notice. For example,
timely notification of cancellation may require prior notice so
that employees may purchase replacement coverage or con-
sider alternative employment.12 See Hamilton v. Air Jamaica,
Ltd., 945 F.2d 74, 78 (3rd Cir. 1991) (noting that ERISA’s
reporting and disclosure requirements ensure that participants
know where they stand with respect to the plan, and permit
employees “to bargain further or seek other employment if
they are dissatisfied with their benefits”); Hozier, 908 F.2d at
1168 (“An employee who never receives information about
gaps in the coverage of his benefits package . . . is unable to
make fully informed decisions about whether to purchase
alternative insurance, or even to seek alternative employ-
ment.”).
12For example, the statute sets forth a 60-day deadline for notification
of material reductions in group health plans. See 29 U.S.C. § 1024(b)(1)
(amended by Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104-191, § 101(c), to state that for “a material reduction in
covered services or benefits provided under a group health plan . . . a sum-
mary description of such modification or change shall be furnished . . . not
later than 60 days after the date of the adoption of the modification or
change”). Obviously, some time is required to prepare a new summary
when coverages are changed. No time is needed to say “plan cancelled.”
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[13] In short, while there is no express statutory require-
ment to notify participants in a timely fashion of plan cancel-
lation, such a requirement is implicit in the structure and
purpose of ERISA, and is more vital than the ordinary techni-
cal reporting and disclosure requirements. Employees are
entitled to know if they have or do not have an ERISA plan.
Failure to so advise employees violates the obligation of a
fiduciary to discharge his duties in the interest of the partici-
pants with “care, skill, prudence, and diligence.” 29 U.S.C.
§ 1104(a)(1)(B).
III. Remedies
[14] The remaining issue is whether ERISA’s “civil
enforcement” provision provides a remedy. In this case, there
is no possibility that Peralta can recover any benefits under
the now-defunct plan pursuant to § 1132(a)(1)(B). Section
1132(a)(3), however, authorizes a participant “(A) to enjoin
any act or practice which violates . . . 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 . . . the
terms of the plan.” 29 U.S.C. § 1132(a)(3).
While Peralta ostensibly seeks reinstatement in the LTD
plan, and payment of benefits thereunder, such a plan no lon-
ger exists. The plan was cancelled in July 2000 and never
reinstated. See supra note 2. Thus, Peralta actually seeks a
monetary recovery from HBI equal to the LTD benefits that
would have been available had the plan not been cancelled.
Only § 1132(a)(3) might permit such a recovery.
There are two problems, however, with regard to this
potential remedy. The first concerns whether substantive rem-
edies, beyond the limited remedies expressly set forth in the
statute for technical procedural violations, are available for a
procedural violation that wreaks substantial havoc;13 the sec-
ond is what remedy, if any, is available here.
1329 U.S.C. § 1132(a)(1)(A) and (c) provide modest daily penalties for
failure to provide information when requested, failure to file annual
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With regard to the first problem, as we stated in Blau,
“[w]hile it is . . . clear that violations of ERISA’s procedural
requirements — reporting, disclosure and claims procedures
— may amount to arbitrary and capricious conduct, the rem-
edy to which this entitles the victimized employees has often
been less than satisfactory.” 748 F.2d at 1353.
[15] Various sister circuits have stated that substantive rem-
edies are not available for technical reporting and disclosure
procedural violations. In some of those cases, however, where
plaintiffs sought substantive relief under 29 U.S.C.
§ 1132(a)(1)(B) (recovery of plan benefits), courts have
awarded relief based on other procedural defects. See Hozier,
908 F.2d at 1163 (concluding that severance benefits provi-
sions of earlier, unamended plan applied because the amend-
ment was never reduced to writing); Wolfe v. J.C. Penney Co.,
Inc., 710 F.2d 388, 393 (7th Cir. 1983) (holding that failure
to advise claimant of requirements to resolve the benefit plan
claim necessitated remand to the fiduciary for a new claim
determination); cf. Caffey v. UNUM Life Ins. Co., 302 F.3d
576, 583 (6th Cir. 2002) (denying equitable relief under
§ 1132(a)(3) because, although the plaintiff asserted that
defendant’s non-payments caused her to lose insurance bene-
fits, the claim was based on consequential losses she experi-
enced due to defendant’s failure to perform under the plan).
[16] In Blau, however, we explicitly recognized that some
procedural violations are so egregious that “they alter the sub-
stantive relationship between employer and employee that
[ERISA’s] disclosure, reporting and fiduciary duties [seek] to
balance somewhat more equally.” 748 F.2d at 1354. In those
situations, procedural violations may “work a substantive
reports, and similar violations. These penalties range from up to $100 per
day for violations against a beneficiary, as would be available here, and
penalties of up to $1,000 per day for most violations against the Secretary
of Labor. Id. § 1132(c).
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harm” and be equivalent to the arbitrary and capricious denial
of benefits that entitles the claimant to substantive remedies
under ERISA, i.e., payment of benefits. See id. (“[A] court
must consider continuing procedural violations in determining
whether the decision to deny benefits in a particular case was
arbitrary and capricious.”).14
It is certainly a continuing procedural violation for an
employer to fail to give employees notice of the complete ter-
mination of their LTD coverage for three months. Further-
more, in Varity, the Supreme Court concluded that
reinstatement into the former employer’s plan (which had
continued to provide benefits to other employees) was an
appropriate equitable remedy under 29 U.S.C. § 1132(a)(3)
where employees were deprived of ERISA benefits through
trickery. 516 U.S. at 515. In that case, employees were per-
suaded by the corporate entity to transfer to a new and insol-
vent subsidiary and plan. Id. at 492-95. They were assured by
fiduciaries that their benefits would remain unchanged despite
the fiduciaries’ knowledge of the subsidiary’s insolvency and,
in fact, lost their non-pension benefits, as was to be expected.
Id. Varity and Blau both recognize that the manner in which
benefits are secured or removed may cause substantive harm
and, thus may be remediable under § 1132(a)(1) if plan bene-
fits are available, or under § 1132(a)(3) if they are not.
This brings us to the second problem: What remedy, if any,
is available here? There seems to be little problem in provid-
ing an avenue for the payment of benefits if serious proce-
dural errors result in the denial of benefits; and in a case such
as Varity, where fraud is involved, the courts will go to great
14Under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989), decided after Blau, the terms of an ERISA contract are generally
construed de novo. The arbitrary and capricious standard continues to
apply to review of benefit denials when the plan retains discretionary
authority to determine eligibility. Id. Issues as to the standard of plan
review do not affect the rule of Blau, which recognizes substantive relief
for some procedural breaches.
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lengths to find a vehicle for reinstatement of benefits via a
§ 1132(a)(3) equitable remedy. There is a limit, however.
In Great-West, the Supreme Court addressed a suit by an
insurer, which sought to enforce the reimbursement provision
of an ERISA plan against a plan participant by means of the
equitable enforcement mechanisms of § 1132(a)(3). 534 U.S.
at 208-09. In rejecting the insurer’s attempt to use injunctive
relief as an equitable means to secure a monetary award, the
Court explained that “[a]lmost invariably . . . suits seeking
(whether by judgment, injunction, or declaration) to compel
the defendant to pay a sum of money to the plaintiff are suits
for ‘money damages’ . . . since they seek no more than com-
pensation for loss resulting from the defendant’s breach of
legal duty.” Id. at 210 (quoting Bowen v. Massachusetts, 487
U.S. 879, 918-19 (1988) (Scalia, J., dissenting)). Moreover,
the Court distinguished between equitable claims that seek to
prevent future losses, which are permissible under ERISA,
and those that seek past due sums, which are not. See id. at
211-12.
The Great-West Court also rejected the insurer’s argument
that plaintiff’s suit was authorized under § 1132(a)(3) as a
claim for restitution. See id. at 212-18. In Mertens v. Hewitt
Associates, the Court seemed to leave restitution as a possible
equitable remedy, where available. See 508 U.S. 248, 255
(1993) (no § 1132(a)(3) relief against non-fiduciary). In
Great-West, however, the Court observed that “not all relief
falling under the rubric of restitution is available in equity.”
See 534 U.S. at 212. In doing so, the Court admitted that “our
cases have not previously drawn this fine distinction between
restitution at law and restitution at equity, but neither have
they involved an issue to which the distinction was relevant.”
Id. at 214-15. The Court also concluded that equitable restitu-
tion does not impose personal liability on the defendant, but
instead restores to the plaintiff particular funds or property in
the defendant’s possession. See id. at 214; see also Harris
Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S.
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238, 250 (2000) (allowing equitable restitution seeking resto-
ration of specific property not already disposed of). Thus, the
Court determined that Great-West Life could not use the equi-
table remedies of ERISA to recover a monetary damages
award. See 534 U.S. at 210.
[17] Individual substantive relief under ERISA is available
where an employer actively and deliberately misleads its
employees to their detriment.15 In such cases, wrongs will be
undone and means found to make benefits available, as in
Varity, Blau and Hozier. Even where benefits are not avail-
able under the applicable plan, “appropriate” equitable relief
may be awarded. See, e.g., Varity, 516 U.S. at 515. Here,
however, there is no evidence of such egregious behavior.
Despite the lack of clarity regarding the original reason for
cancellation, and HBI’s policy of promptly notifying its
employees in advance of benefit changes, there is no evidence
of a scheme either to hide the fact of cancellation or to affir-
matively misrepresent the facts. The uncontroverted evidence
is that the HR manager, upon learning of the earlier cancella-
tion, gave immediate notice of the cancellation to HBI
employees. There was no evidence of any intentional mislead-
ing or trickery, or of any active concealment, as in Blau. The
evidence is simply of negligently inadequate communications
about a policy cancellation. While the effect on Peralta may
be the same, whether the cause is deceit or merely a break-
down in the channels of communication, the culpability is not.
Equity often involves the weighing of wrongdoing as well as
of harm. Here, the wrongful conduct did not even approach
the upper end of the scale.
15Cf. Watson v. Deaconess Waltham Hosp., 298 F.3d 102, 113-14 (1st
Cir. 2002) (holding that administrator’s technical violation of ERISA’s
notice provision did not give rise to substantive remedies because there
were no extraordinary circumstances, such as bad faith, active conceal-
ment, or fraud); accord Panaras v. Liquid Carbonics Indus. Corp., 74
F.3d 786, 789 (7th Cir. 1996).
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[18] Furthermore, as indicated by the facts of this case, the
only remedy sought is money damages for past harm. That
remedy, however, as per Great-West is simply not available
in equity, nor would it be “appropriate.” Likewise, remand for
further proceedings, to establish whether Peralta would have
procured other coverage if notified in a timely fashion of the
termination, cannot result in an appropriate equitable remedy
under these facts. While the ERISA fiduciary had an obliga-
tion to provide timely notification to the participants of the
termination of coverage, no remedy is available here. It is for
Congress to provide a remedy where merely negligent admin-
istration results in the termination of coverage without timely
notice, and no plan exists under which benefits may be paid.
The judgment of the district court is AFFIRMED.
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