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Gabriel v. Alaska Electrical Pension Fund

United States Court of Appeals, Ninth Circuit

June 6, 2014

GREGORY R. GABRIEL, Plaintiff-Appellant,
v.
ALASKA ELECTRICAL PENSION FUND; TRUSTEES OF THE ALASKA ELECTRICAL PENSION FUND; PENSION ADMINISTRATIVE COMMITTEE OF THE ALASKA ELECTRICAL PENSION FUND; APPEALS COMMITTEE OF THE ALASKA ELECTRICAL PENSION FUND; GREGORY STOKES; GARY BROOKS; STEVE BOYD; JOHN GIUCHICI; CHERESA MACLEOD; SCOTT BRINGMANN; DAVID CARLE; JIM FULLFORD; MARY TESCH; KNUTE ANDERSON; MIKE BAVARD; LARRY BELL; VINCE BELTRAMI, Defendants-Appellees

Argued and Submitted, Anchorage, Alaska: August 14, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Alaska. D.C. No. 3:06-cv-00192-TMB. Timothy M. Burgess, District Judge, Presiding.

Jennifer Mary Coughlin, K& L Gates, LLP, Anchorage, Alaska, for Plaintiff-Appellant.

Allen Bruce McKenzie (argued), and Frank J. Morales, McKenzie Rothwell Barlow & Coughran, P.S., Seattle, Washington, for Defendants-Appellees.

Before: Alex Kozinski, Chief Judge, and Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Berzon.

OPINION

Page 651

IKUTA, Circuit Judge:

Gregory R. Gabriel appeals the district court's dismissal of his claims against the Alaska Electrical Pension Fund (the Fund) and other defendants under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § § 1001 et seq. Because Gabriel failed to raise a genuine issue of material fact that the Fund abused its discretion in denying him benefits, or that he was entitled to " appropriate equitable relief" under 29 U.S.C. § 1132(a)(3), we affirm the district court.

I

For over three years, the Fund paid Gabriel monthly pension benefits he had not earned. This case arises from the events that occurred after the Fund discovered this error.

From August 1968 through April 1975, Gabriel participated in the Alaska Electrical Pension Plan (the Plan). The Plan is an " employee pension benefit plan" as defined in ERISA, 29 U.S.C. § 1002(2)(A). It covers electrical workers and contractors who work for employers that participate in one of several electrical industry collective bargaining agreements. The Plan is administered by the Fund, which is run by a board of trustees. The Plan gives the trustees " the exclusive right to construe the provisions of the Plan and to determine any and all questions arising thereunder or in connection with the administration thereof."

Under section 5.01 of the Plan, a participant who has completed ten or more " [y]ears of service," as defined in the Plan, is vested under the Plan and is eligible to apply for pension benefits on retirement after reaching a specified age. Section 8.01 provides that a participant who fails to

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earn a total of 500 hours of service in a two-year period, and is not on a qualifying leave of absence pursuant to section 8.02, is terminated from the Plan. A terminated participant may be reinstated under section 8.04. Under Section 8.03, a vested participant who is terminated is not devested; once vested, a participant remains vested.

Gabriel worked until April 1975 as an employee of several different electric companies that participated in the Plan. In 1975, he became the sole proprietor of Twin Cities Electric. From September 1975 through November 1978, Twin Cities made contributions for both Gabriel and its employees. Based on these contributions, the Fund initially credited Gabriel with eleven years of service, enough to qualify Gabriel as a vested participant under section 5.01.

But in 1979, the Fund determined that Gabriel was an owner of Twin Cities, rather than an employee, and therefore not eligible to participate in the Plan. In a letter dated November 20, 1979, the Fund's general counsel informed Gabriel about this error and told him that the Fund owed him a refund of $13,626 for the erroneous contributions made on his behalf from 1975 to 1978. Further, the letter informed Gabriel that he was terminated from the Plan as of January 1, 1978, pursuant to section 8.01, because its records showed that by that time he had two consecutive years with less than 500 hours of service. An attachment to the letter, entitled " Benefit Statement Without Hours Reported By Twin Cities," stated that Gabriel had " 8 yrs. Credited Service" from 1968 to 1975 when the improper hours for his time as an employer at Twin Cities were excluded, and that the Fund would update Gabriel's hours report to remove the improperly credited hours.

As a separate matter, the letter stated that, because Twin Cities had been delinquent in making contributions for its other employees, the Fund would set off the delinquent amounts owed to the Fund (a total of $6,989.24) from the refund amount owed Gabriel, for a total refund to Gabriel of $6,636.76.

On December 3, 1979, the Fund drafted a follow-up letter stating that Twin Cities actually owed more in delinquent obligations than the Fund originally had calculated. To satisfy Twin Cities' delinquent obligations for its employees, the Fund intended to withhold $12,982.69, instead of $6,989.24. Therefore, the Fund would give Gabriel a refund of only $643.31. The letter enclosed a release agreement, which documented the terms of the setoff and refund. It also informed Gabriel about the steps he would have to take to become vested in the Plan. The record includes only an unsigned copy of this letter, which was found in the Fund's files. Gabriel asserts he never received this letter.

In January 1980, Gabriel signed the release agreement, in which he acknowledged that he was receiving a refund of $643.31 arising from " the improper employer contributions paid from the year 1975 through 1978" made on his behalf when he was the owner of Twin Cities, and that the remainder of the improper contributions (amounting to $12,982.69) would be used to pay delinquent obligations.

Gabriel did not meet any of the requirements under the Plan for reinstatement and so never vested in the Plan. Nevertheless, in late 1996, Gabriel asked the Fund for information about the amount of pension benefits he would receive if he retired. In a letter dated January 6, 1997, a pension representative for the Fund stated that it had calculated Gabriel's ...


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