Solis Files Brief with US Court of Appeals in McCravy Case

June 10, 2011( - Secretary of Labor Hilda Solis has filed a brief asking for a rehearing and reversal of an appellate panel's ruling that a “surcharge” is not an available remedy under Section 502(a)(3) of the Employee Retirement Income Security Act (ERISA).

The amicus brief was filed with the U.S. Court of Appeals for the Fourth Circuit on May 31. In it Solis explained how the appellate panel relied on the Supreme Court’s decisions in Mertens v. Hewitt Associates and Great-West Life & Annuity Insurance Co. v. Knudson, and found that section 502(a)(3) of ERISA does not allow the court to surcharge Metropolitan Life Insurance Co. (MetLife) for the life insurance proceeds that Debbie McCravy would have received from MetLife if not for its alleged fiduciary breaches.

However, Solis pointed out, on the same day the panel issued its decision, the Supreme Court voted on CIGNA Corp. v. Amara. “Contrary to the panel’s decision holding that surcharge is unavailable, the Supreme Court’s decision in CIGNA states that surcharge is an available remedy under section 502(a)(3). The CIGNA opinion explains that surcharge, or monetary compensation by a fiduciary for loss resulting from the fiduciary’s breach of duty, was a ‘traditional equitable remedy’ and thus falls within the ‘category of traditionally equitable relief’.”

 “As CIGNA now makes clear,” Solis concluded, “appropriate equitable relief under ERISA Section 502(a)(3) includes relief that makes injured participants and beneficiaries whole and thus permits the court to surcharge MetLife for the insurance proceeds that McCravy would have received but for the alleged breaches of fiduciary duty.”

The full text of the brief is available here.


-Nicole Bliman