An Update On the Availability of Alternative Pleading under ERISA § 502(a)(1)(B) and § 502(a)(3)

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.

Following Varity, courts routinely held that where a plaintiff had an available remedy under another subsection of § 502, additional relief under § 502(a)(3) would not be "appropriate." For example, the Eleventh Circuit held both that "an ERISA plaintiff who has an adequate remedy under Section 502(a)(1)(B) cannot alternatively plead and proceed under Section 502(a)(3)," and that "an ERISA plaintiff that had an adequate remedy under Section 502(a)(1)(B) cannot assert a Section 502(a)(3) claim after his Section 502(a)(1)(B) claim has been lost."³

A number of competing tests developed for evaluating the viability of § 502(a)(3) claims. Some courts interpreted Varity to impose a test upon § 502(a)(3) claims that was remedy-focused, essentially asking whether a 502(a)(3) claim would result in a duplicative remedy.⁴ However, other courts held that a test on a § 502(a)(3) claim's sufficiency that focused on a plaintiff's request for relief was inconsistent with Varity. Indeed, the Eleventh Circuit noted that Varity did not countenance any test that would deny an ERISA participant of any remedy for fiduciary breach, and the test that ultimately developed in that court was "whether the allegations supporting the Section 502(a)(3) claim [are] also sufficient to state a cause of action under Section 502(a)(1)(B), regardless of the relief sought, and irrespective of the [plaintiffs'] allegations supporting their other claims."⁵ Regardless of the test imposed, it was clear that courts were at least skeptical of simultaneous claims under § 502(a)(1)(B) and § 502(a)(3).

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 § [502] (a)(1)(B). After discussing § [502](a)(1)(B) and determining that plaintiffs could not obtain relief under that section of ERISA, the Court turned to § [502](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 § [502](a)(3) catchall provision simply because they had already brought a claim under the more specific portion of the statute, § [502](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). 'Varity Corp. did not eliminate a private cause of action for breach of fiduciary duty when another potential remedy is available.' Instead, . . . if a plaintiff 'succeed[s] on both claims . . . the district court's remedy is limited to such equitable relief as is considered appropriate.'"⁹ The Second Circuit went on to reverse the district court's dismissal of the plaintiff's § 502(a)(3) claims for breach of fiduciary duty as duplicative, holding that because the plaintiff "has not yet succeeded on his § 502(a)(1)(B) claim, and it is not clear at the motion-to-dismiss stage of the litigation that monetary benefits under § 502(a)(1)(B) alone will provide him a sufficient remedy[,] . . . it is too early to tell if his claims under § 502(a)(3) are in effect repackaged claims under § 502(a)(1)(B)."¹⁰

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 Varity because it allows plaintiffs to plead alternate theories of relief without obtaining double recoveries."¹²

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 Varity, Plaintiff does not have a plausible breach of fiduciary duty claim against Prudential under ERISA § 502(a)(3) as a matter of law."¹³ The next month, another Louisiana district court came to the contrary conclusion, holding that "a plaintiff can simultaneously plead claims under several subsections of Section 502(a) and 'have time to develop [her] trial strategy and preserve alternative grounds for relief until a later stage in the litigation.'"¹⁴ Overall, the pendulum seems to be swinging toward a more lenient view of the of the availability of § 502(a)(3) claims, at least during the pleading stage. Other district courts have permitted a plaintiff to pursue simultaneous claims where a flaw in the claims process could support a separate breach of fiduciary duty.¹⁵

¹Varity Corp. v. Howe, 516 U.S. 489, 512 (1996).

²Id.

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).

⁷Id.

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).

¹⁰Id.

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), aff'd sub nom. Yafei Huang v. Life Ins. Co. of N. Am., 801 F.3d 892 (8th Cir. 2015) (permitting both claims where alleged breach of fiduciary duty caused the plaintiff an injury separate from the denial of benefits:  the loss of coverage under a different insurance policy).  But see, Gluc v. Prudential Ins. Co. of Am., No. 3:14-CV-519-DJH-DW, 2015 U.S. Dist. LEXIS 143628 (W.D. Ky. Oct. 22, 2015) (where the only injury a plaintiff alleges is a loss of benefits in an individual claims process, that alleged injury can be remedied through § 502(a)(1)(B)).