Award Serv., Inc. v. N. California Retail Clerks Union & Food Employers Jt. Pension Trust Fund, a Trust Fund, 774 F.2d 1391 (9th Cir. 1985). · Go Syfert
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Award Serv., Inc. v. N. California Retail Clerks Union & Food Employers Jt. Pension Trust Fund, a Trust Fund, 774 F.2d 1391 (9th Cir. 1985). Cases Citing This Book View Copy Cite
9 citation events (1 in the last 25 years) across 6 distinct courts.
Strongest positive: Southwest Administrators, Inc. v. Rozay's Transfer, a California Corporation (ca9, 1986-08-28)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Southwest Administrators, Inc. v. Rozay's Transfer, a California Corporation
9th Cir. · 1986 · confidence medium
Award Service, Inc. v. Northern California Retail Clerks Union and Food Employers Joint Pension Trust Fund, 774 F.2d 1391, 1392 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 850 , 88 L.Ed.2d 890 (1986); see generally Note, An Employer’s Implied Cause of Action for Restitution Under Section kOS of ERISA, 54 Fordham L.Rev. 225 (1985).
cited Cited as authority (rule) Whitworth Bros. Storage Company v. Central States, Southeast and Southwest Areas Pension Fund, Defendants
6th Cir. · 1986 · confidence medium
There was a positive indication by Congress that mistakenly paid contributions could be returned to the contributor.” 774 F.2d 1391, 1392 (9th Cir.1985).
discussed Cited "see, e.g." McHugh v. TEAMSTERS PENSION TRUST FUND OF PHILA.
E.D. Pa. · 1986 · signal: see, e.g. · confidence low
See, e.g., Award Service, Inc. v. Northern California Retail Clerks Unions and Food Employers Joint Pension Trust Fund, 763 F.2d 1066 , motion to recall mandate denied, 774 F.2d 1391 (9th Cir. 1985), cert. denied, — U.S.-, 106 S.Ct. 850 , 88 L.Ed.2d 890 (1986); Chase , 753 F.2d 744 ; Peckham v. Board of Trustees, 719 F.2d 1063 , modified and reaffd, 724 F.2d 100 (10th Cir.1983).
discussed Cited "see, e.g." Dorothy Hancock v. Montgomery Ward Long Term Disability Trust, an Illinois Corporation
9th Cir. · 1986 · signal: see also · confidence medium
The language of section 1132(a)(3) providing for “equitable relief” to enforce the provisions of ERISA supports this view in that extra-contractual damages against a fiduciary are not an available form of “equitable relief.” See Powell v. Chesapeake & Potomac Telephone Co. of Virginia, 780 F.2d 419, 424 (4th Cir.1985) (holding independent of Russell that section 1132(a) does not provide for extracontractual or punitive damages); see also Award Service, Inc. v. Northern California Retail Clerks Union, 774 F.2d 1391, 1391 (9th Cir.1985) (stating in dicta that “ERISA provide[s] various …
Retrieving the full opinion text from the archive…
AWARD SERVICE, INC., Plaintiff/Appellant,
v.
NORTHERN CALIFORNIA RETAIL CLERKS UNION AND FOOD EMPLOYERS JOINT PENSION TRUST FUND, a Trust Fund, Defendant/Appellee
83-2625.
Court of Appeals for the Ninth Circuit.
Oct 24, 1985.
774 F.2d 1391
Spencer H. Hipp, Michael J. Hogan, Littler, Mendelson, Fastiff & Tichy, Fresno, Cal., for plaintiff/appellant., Richard G. McCracken, Davis, Cowell & Bowe, San Francisco, Cal., for defendant/appellee.
Tang, Canby, Beezer.
Cited by 8 opinions  |  Published

ORDER

Defendant-Appellee Northern California Retail Clerks Union and Food Employers Joint Pension Trust Fund (“Pension Trust”) moves this court to recall its mandate, issued pursuant to our decision in this case, reported at 763 F.2d 1066 (9th Cir.1985). Pension Trust contends that our decision is undermined by the subsequent decision of the Supreme Court of the United States in Massachusetts Mutual Life Ins. Co. v. Russell, — U.S. —, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). We reject the contention and deny Pension Trust’s motion.

In Massachusetts Mutual, the Supreme Court refused to imply a remedy in favor of a beneficiary of an employee benefit plan against a trustee of that plan for untimely processing of a benefit claim. In so doing, the Court indicated that it was reluctant to “fine-tune” the carefully crafted enforcement scheme of the Employee Retirement Income Security Act (ERISA). — U.S. at —, 105 S.Ct. at 3093. The Supreme Court’s language and ruling, however, was addressed to the situation before it, in which ERISA provided specifically for various kinds of recovery against a trustee, but only in favor of the plan. Id. at —, 105 S.Ct. at 3089. Similarly, ERISA provided various express remedies for a beneficiary, but compensatory and punitive damages against a trustee was not among them. Id. at —, 105 S.Ct. at 3093. Because the text of ERISA, the statutory structure, and the legislative history indicated that Congress intended the judiciary not to imply a cause of action against a[*1392] trastee for untimely processing of a beneficiary’s claim, the Supreme Court refused to imply one. Id.

Our case was quite different. The issue was whether a right of action was to be implied in favor of an employer who had mistakenly paid more than $167,000 into a pension fund. There was no complex and interrelated system of express remedies in ERISA that related to such a claim. There was a positive indication by Congress that mistakenly paid contributions could be returned to the contributor, because § 403(c)(2)(A)(ii) of ERISA, 29 U.S.C. § 1103(c)(2)(A)(ii), expressly permitted such payments. That remedy was clearly enacted for the benefit of employers who mistakenly made payments to a fund, but there existed no express remedy to effectuate that congressional purpose. See 763 F.2d at 1068. It was therefore appropriate, and not inconsistent with Massachusetts Mutual, to imply a remedy in favor of the employer under the doctrine of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

The motion to recall the mandate of this court is DENIED.