One question that has troubled courts in recent years regarding ERISA's civil enforcement provision is the inter-relationship among § 502's six subsections, particularly whether a participant can bring simultaneously both a claim for "other appropriate equitable relief" under § 502(a)(3) along with a claim for benefits under § 502(a)(1)(B). The question dates back to the Supreme Court's ruling in Varity Corp. v. Howe, where the Court analyzed the "overall structure" of § 502, noting that four of § 502's six subsections "focus upon specific areas," like wrongful denial of benefits and information, specific kinds of fiduciary obligations, tax registration, and civil penalties.1 The Court distinguished the other two subsections (§ 502(a)(3) and (a)(5)), as "catchalls," designed to " act as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy."2 Thus, the implication was that a catchall claim for other appropriate equitable relief was not available in all cases.
A number of competing tests developed for evaluating the viability of § 502(a)(3) claims. Some courts interpreted
Then came the Eighth Circuit's 2014 decision in Silva v. Metro Life Insurance Company, where the court held that plaintiffs are entitled at the pleading stage to present alternative theories of liability under §§ 502(a)(3) and 502(a)(1)(B).6 In Silva, the Eighth Circuit noted that the Federal Rules of Civil Procedure explicitly provided for alternative pleading, and concluded that courts needed to guard against duplicative recoveries, rather than duplicative theories of recovery.7 The Eighth Circuit found further support for its holding in the Supreme Court's decision in Cigna v. Amara, observing that:
- In Amara, the plaintiffs sought relief under §  (a)(1)(B). After discussing § (a)(1)(B) and determining that plaintiffs could not obtain relief under that section of ERISA, the Court turned to § (a)(3) and stated that plaintiffs may be able to obtain equitable relief under that section. The Court addressed the issue in terms of available relief and did not say that plaintiffs would be barred from initially bringing a claim under the § (a)(3) catchall provision simply because they had already brought a claim under the more specific portion of the statute, § (a)(1)(B).8
Silva explicitly cautioned courts against dismissing § 502(a)(3) claims as duplicative at the pleading stage, noting that, "[a]t the motion to dismiss stage, it is difficult  for a court to discern the intricacies of the plaintiff's claims to determine if the claims are indeed duplicative, rather than alternative, and determine if one or both could provide adequate relief."
Following in the Eighth Circuit's footsteps, the Second Circuit issued a like-minded decision in 2015 in N.Y. State Psychiatric Ass'n v. UnitedHealth Grp., noting that "it is important to distinguish between a cause of action and a remedy under § 502(a)(3). '
Earlier this year, in Moyle v. Liberty Mut. Ret. Ben. Plan, the Ninth Circuit joined the Second and Eighth Circuits in upholding the availability of alternative pleading under § 502.11 Moyle expressly embraced the reasoning of Silva, saying that its approach, which permits plaintiffs to present § 502(a)(1)(B) and § 502(a)(3) as "alternative--rather than duplicative--theories of liability," provides an "accurate application of Amara in light of
To be sure, despite the recent trend of circuit courts allowing alternative pleading under § 502, there is still disagreement in the lower courts. In September, a district court in Louisiana dismissed a § 502(a)(3) claim, holding that "because Plaintiff also alleges a remedy under ERISA § 502(a)(1)(B), under
1Varity Corp. v. Howe, 516 U.S. 489, 512 (1996).
3Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284, 1287 (11th Cir. 2003) (citing Katz v. Comprehensive Plan of Grp. Ins., 197 F.3d 1084 (11th Cir. 1999)).
4See, e.g., Korotynska v. Metro. Life Ins. Co., 474 F.3d 101, 107-08 (4th Cir. 2006).
5Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065, 1073-74 (11th Cir. 2004).
6Silva v. Metro. Life Ins. Co., 762 F.3d 711, 726 (8th Cir. 2014).
8Id. at 726-27 (citing CIGNA Corp. v. Amara, 563 U.S. 421, 438 (2011)).
9N.Y. State Psychiatric Ass'n v. UnitedHealth Grp., 798 F.3d 125, 134 (2d Cir. 2015) (quoting Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 89-90 (2d Cir. 2001)) (emphasis and alterations in original).
11Moyle v. Liberty Mut. Ret. Ben. Plan, 823 F.3d 948 (9th Cir. 2016).
12Id. at 961.
13Manuel v. Turner Indus. Grp., LLC, No. 14-599-SDD-RLB, 2016 U.S. Dist. LEXIS 130391, at *6 (M.D. La. Sep. 23, 2016).
14Currier v. Entergy Corp. Emple. Benefits Comm., No. 16-2793, 2016 U.S. Dist. LEXIS 142471, at *11 (E.D. La. Oct. 14, 2016) (quoting Peterson v. Liberty Life Assurance Co. of Boston, No. 15-00204, 2016 U.S. Dist. LEXIS 91021, at *2 (N.D. Miss. July 13, 2016)).
15Faltermeier v. Aetna Life Ins. Co., No. 15–cv–2255–JAR–TJJ, 2015 U.S. Dist. LEXIS 68720 (D. Kan. May 28, 2015) (noting that if the court found in Defendant's favor based on the administrative record, then Plaintiff has a separate cause of action for breach of fiduciary duty arising out of Defendant's exclusion of relevant medical evidence from the record); Huang v. Life Ins. Co. of N. Am., 47 F. Supp. 3d 890 (E.D. Mo. 2014),