Whether a plaintiff can seek equitable surcharge as a remedy under ERISA Section 1132(a)(3) when federal circuit courts are split on the availability of such relief

has produced a deep and persistent split among the federal courts of appeals. See, e.g., App. Exh. 1 at 23a (“In the years after Amara, several courts relied on that decision to conclude that ERISA plan participants may seek [surcharge] against ERISA fiduciaries under § 1132(a)(8).”). On one side, the Second, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits have held that surcharge is an available equitable remedy under § 1132(a)(3). See, e.g., Sullivan-Mestecky v. Verizon Commce’ns Inc., 961 F.3d 91, 99 (2d Cir. 2020) (holding that a plaintiff seeking surcharge “appropriately [sought] equitable relief” under § 1132(a)(8) and could proceed); Gearlds v. Entergy Services, Inc., 709 F.3d 448, 452 (5th Cir. 2013) (concluding that “Amara’s pronouncements about surcharge as a potential remedy under [§ 1132(a)(3)] should be followed”); Kenseth v. Dean Health Plan, Inc., 722 F.3d 869, 882 (7th Cir. 2013) (allowing a plaintiff to “seek make-whole money damages as an equitable remedy under section 1132(a)(3)” from a Silva v. Metro. Life Ins. Co., 762 F.3d 711, 722, 725 (8th Cir. 2014) (recognizing that surcharge was available under § 1132(a)(3) where the plaintiff alleged breach by a plan administrator); Gabriel v. Alaska Electric Pension Fund, 773 F.3d 945, 957 (9th Cir. 2014) (holding that “appropriate equitable relief .. . includes ‘surcharge”); Gimeno v. NCHMD, Inc., 38 F.4th 910, 912 (11th Cir. 2022) (allowing the plaintiff to seek relief under § 1132(a)(3) through the remedy of equitable surcharge). The Fourth and Sixth Circuits, on the other hand, have adopted a conflicting approach and held that surcharge is categorically unavailable under § 1132(a)(3). In Rose v. PSA Airlines, the Fourth Circuit noted that plaintiffs can obtain § 1132(a)(3) relief “only if such relief was ‘typically available in equity.” 80 F.4th 488, 500 (4th Cir. 2023) (quoting Montanile v. Bd. of Trs. of Nat'l Elevator Indus. Health Benefit Plan, 577 U.S. 136, 142 (2016)). But according to the Fourth Circuit, this Court has “consistently rejected trust-specific remedies” like surcharge because they were not “typically available in equity”; equity courts could only order them in trust or in other “exclusive jurisdiction” cases. Id. at 497-502. The decision below largely follows the Fourth Circuit’s lead, and describes Amaroa’s discussion to the contrary “as dicta that ‘was not essential” to the judgment. App. Exh. 1 at 23a. Moreover, unlike in Rose, where the Fourth Circuit remanded the matter so that the lower court could determine whether the plaintiffs could seek alternative equitable relief, the panel here determined that no other such relief was available, and dismissed this case with prejudice. 3. As to the second question presented, the Court has over the past decade granted review in several cases in order to delineate the scope and breadth of ERISA’s preemption provision. See, e.g., Rutledge v. Pharm. Care Mgmt. Ass’n, 141 S. Ct. 474 (2020); Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312 (2016). But it has not yet provided guidance as to how that preemption provision should apply to a top-hat plan, the sort of employee benefit plan at issue here. 4, In short, this case presents several substantial, important, and recurring questions, including one upon which the federal courts of appeals are explicitly divided. There is a reasonable prospect that this Court will grant the petition, such that it warrants additional time for these questions to be fully addressed and briefed. 5. The Uni