FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 JUAN CASTILLO,                                    No. 19-56093
                      Plaintiff-Appellant,
                                                     D.C. No.
                      v.                          2:18-cv-09067-
                                                    FMO-JEM
 METROPOLITAN LIFE INSURANCE
 COMPANY,
              Defendant-Appellee.                    OPINION

        Appeal from the United States District Court
           for the Central District of California
       Fernando M. Olguin, District Judge, Presiding

              Argued and Submitted July 7, 2020
                    Pasadena, California

                     Filed August 17, 2020

   Before: Richard A. Paez and Bridget S. Bade, Circuit
        Judges, and Jack Zouhary, * District Judge.

                     Opinion by Judge Bade




    *
      The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2         CASTILLO V. METROPOLITAN LIFE INS. CO.

                          SUMMARY **


        Employee Retirement Income Security Act

   Affirming the district court’s dismissal of an action
under the Employee Retirement Income Security Act, the
panel held that 29 U.S.C. § 1132(a)(3) does not authorize an
award of attorney’s fees incurred during the administrative
phase of the ERISA claims process.

    In administrative proceedings, plaintiff filed a successful
appeal from defendant’s reduction of his long-term disability
benefits to account for his rollover of his pension benefits
into an individual retirement account. Plaintiff subsequently
filed a civil action under § 1132(a)(3), alleging that
defendant, the administrator of the ERISA plan, breached its
fiduciary duties of prudence and loyalty by delaying its
determination of the effect of plaintiff’s rollover of his
pension benefits and failing to inform him that it was
considering an offset based on the rollover. Plaintiff sought
an order surcharging defendant for his losses, measured by
the amount of attorney’s fees he was forced to incur to get
defendant to reverse the reduction of his disability benefits.

    The panel held that the attorney’s fees incurred in an
administrative proceeding did not constitute “appropriate
equitable relief” under § 1132(a)(3). The panel reasoned
that allowing an award of such fees would contravene this
court’s decision in Cann v. Carpenters’ Pension Trust Fund
for Northern California, 

(9th Cir. 1993), which

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
         CASTILLO V. METROPOLITAN LIFE INS. CO.                 3

held that such awards would undermine ERISA’s purpose of
ensuring plan soundness and stability. The panel noted,
moreover, that ERISA’s express fee-shifting provision, 29
U.S.C. § 1132(g), authorizes an award of attorney’s fees
incurred in a civil action but is silent as to fees incurred in an
administrative proceeding. Under the expressio unius
canon, this silence gives rise to the inference that
§ 1132(a)(3) does not authorize such fees.


                          COUNSEL

Elizabeth Hopkins (argued), Kantor & Kantor LLP,
Northridge, California, for Plaintiff-Appellant.

Misty A. Murray (argued), Hinshaw & Culbertson LLP, Los
Angeles, California, for Defendant-Appellee.


                          OPINION

BADE, Circuit Judge:

    This appeal requires us to decide whether § 502(a)(3) of
the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1132(a)(3), authorizes an award of
attorney’s fees incurred during the administrative phase of
the ERISA claims process. We hold that § 1132(a)(3) does
not authorize an award of such fees and therefore affirm the
judgment of the district court.

                                I

   Plaintiff Juan Castillo was a participant in an employee
benefit group welfare plan governed by ERISA,
4        CASTILLO V. METROPOLITAN LIFE INS. CO.

administered by Defendant Metropolitan Life Insurance
Company (MetLife), and sponsored by his employer,
Verizon Communications (Verizon). In 2013, after he
became disabled, Castillo began collecting long-term
disability (LTD) benefits under the plan, retired from
Verizon, and rolled his pension benefits into an individual
retirement account (IRA).

    Four years later, in December 2017, MetLife informed
Castillo it would reduce his LTD benefits, effective
November 1, 2013, to account for the pension rollover.
MetLife withheld future benefits and sought to recover over
$50,000 in benefits paid between 2013 and 2017. Castillo
retained counsel and appealed MetLife’s decision
administratively. In July 2018, MetLife reversed its
determination, resumed LTD payments, and paid Castillo
over $8,500 in withheld benefits.

    Castillo subsequently filed this civil action under
§ 1132(a)(3). He alleged MetLife breached its fiduciary
duties of prudence and loyalty by, among other things,
“repeatedly failing, for nearly four years after learning that
Mr. Castillo rolled over his pensions into an IRA, to
determine the effect of this rollover on Mr. Castillo’s LTD
benefits,” and “never informing Mr. Castillo during that
period that it was considering an offset based on the pension
rollover, and therefore that it might require him to repay a
great portion of the benefits he received over that period.”
The complaint sought “[a]n order surcharging MetLife for
the losses sustained by Mr. Castillo, . . . measured by the
amount of attorney’s fees that he was forced to incur to get
MetLife to reverse its arbitrary and unsupported reduction of
his LTD benefits and demand for repayment.”

    MetLife moved to dismiss the complaint, arguing that it
failed to state a claim for breach of fiduciary duty and, in the
         CASTILLO V. METROPOLITAN LIFE INS. CO.               5

alternative, that Castillo was not seeking “appropriate
equitable relief” under § 1132(a)(3). The district court
granted the motion to dismiss, rejecting MetLife’s first
argument but agreeing with MetLife that “attorney’s fee
awards are not ‘other appropriate equitable relief’” under
§ 1132(a)(3). Castillo timely appealed.

                              II

    “We review de novo the district court’s decision to grant
a motion to dismiss for failure to state a claim, as well as its
interpretation of ERISA.” Bassiri v. Xerox Corp., 

, 929 (9th Cir. 2006).

                              III

    To determine whether attorney’s fees incurred by an
ERISA plan participant or beneficiary in an administrative
appeal are recoverable as “appropriate equitable relief”
under § 1132(a)(3), we first consider the statutory structure.
As relevant here, ERISA provides for two types of actions:
a claim for denial of benefits under § 1132(a)(1)(B), and a
claim for breach of fiduciary duty under § 1132(a)(3).

                               A

    A claim for denial of benefits ordinarily begins with an
administrative review procedure. ERISA mandates an
opportunity for administrative review, see 29 U.S.C.
§ 1133(2); 29 C.F.R. § 2560.503-1(h)(1), and we have
treated completion of this administrative review as a
prudential exhaustion requirement, see Vaught v. Scottsdale
Healthcare Corp. Health Plan, 

, 626 (9th Cir.
2008) (“[A]n ERISA plaintiff claiming a denial of benefits
‘must avail himself or herself of a plan’s own internal review
procedures before bringing suit in federal court.’” (quoting
6        CASTILLO V. METROPOLITAN LIFE INS. CO.

Diaz v. United Agric. Emp. Welfare Benefit Plan & Tr.,

, 1483 (9th Cir. 1995))).

    If the administrative review affirms the denial of
benefits, the claimant may obtain judicial review under
§ 1132(a)(1)(B), which states that “[a] civil action may be
brought . . . by a participant or beneficiary . . . to recover
benefits due to him under the terms of his plan, to enforce
his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B).

    Furthermore, if the claimant achieves “some degree of
success on the merits” in the civil action, Hardt v. Reliance
Standard Life Ins. Co., 

, 245, 255 (2010)
(quoting Ruckelshaus v. Sierra Club, 

, 694
(1983)), “the court in its discretion may allow a reasonable
attorney’s fee and costs of action” to the claimant, 29 U.S.C.
§ 1132(g)(1). This fee award, however, applies solely to
fees incurred in the judicial proceeding; fees incurred during
“the administrative phase of the claims process” are not
recoverable under § 1132(g). Cann v. Carpenters’ Pension
Tr. Fund for N. Cal., 

, 314 (9th Cir. 1993);
accord McElwaine v. US West, Inc., 

, 1172 n.8
(9th Cir. 1999) (per curiam).

                               B

    ERISA also provides a claim for breach of fiduciary
duty. Just as trust law imposes duties on trustees, ERISA
imposes duties on plan fiduciaries. A fiduciary, for instance,
must “discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . with the
care, skill, prudence, and diligence . . . [of] a prudent man.”
29 U.S.C. § 1104(a)(1).
            CASTILLO V. METROPOLITAN LIFE INS. CO.                         7

    A fiduciary who breaches these duties is subject to suit,
and a claim for breach of fiduciary duty may be brought
under § 1132(a)(3). 1 As the Supreme Court explained in
Varity Corp. v. Howe, 

, 492 (1996),
§ 1132(a)(3) “authorize[s] ERISA plan beneficiaries to bring
a lawsuit . . . that seeks relief for individual beneficiaries
harmed by an administrator’s breach of fiduciary
obligations.” 2

    An individual bringing a claim under § 1132(a)(3) may
seek “appropriate equitable relief,” which refers to “‘those
categories of relief’ that, traditionally speaking (i.e., prior to

    1
        Section 1132(a)(3) states:

           A civil action may be brought . . . by a participant,
           beneficiary, or fiduciary (A) to enjoin any act or
           practice which violates any provision of this
           subchapter or the terms of the plan, or (B) to obtain
           other appropriate equitable relief (i) to redress such
           violations or (ii) to enforce any provisions of this
           subchapter or the terms of the plan . . . .

29 U.S.C. § 1132(a)(3) (emphasis added).
    2
       Relying on Amalgamated Clothing & Textile Workers Union, AFL-
CIO v. Murdock, 

, 1414 (9th Cir. 1988), where we said
that “[a] fiduciary’s mishandling of an individual benefit claim does not
violate any of the fiduciary duties defined in ERISA,” MetLife contends
that an “alleged mishandling of claims does not breach any fiduciary
duty under ERISA” and that § 1132(a)(3) “does not apply to allegations
of wrongdoing in connection with the processing of individual benefit
claims.” Amalgamated Clothing, however, addressed claims under
§ 1109 and § 1132(a)(2), not claims under § 1132(a)(3). See

n.11. While § 1109(a) “gives a remedy for injuries to the ERISA plan as
a whole, but not for injuries suffered by individual participants as a result
of a fiduciary breach,” Wise v. Verizon Commc’ns, Inc., 

,
1189 (9th Cir. 2010), § 1132(a)(3) is “broad enough to cover individual
relief for breach of a fiduciary obligation,” 

.
8        CASTILLO V. METROPOLITAN LIFE INS. CO.

the merger of law and equity) ‘were typically available in
equity.’” CIGNA Corp. v. Amara, 

, 439 (2011)
(quoting Sereboff v. Mid Atl. Med. Servs., Inc., 

,
361 (2006)). This relief may include surcharge—the relief
Castillo seeks here. See Gabriel v. Alaska Elec. Pension
Fund, 

, 955–58 (9th Cir. 2014).

    Because § 1132(a)(3) “act[s] as a safety net, offering
appropriate equitable relief for injuries caused by violations
that § 502 does not elsewhere adequately remedy,” 

, relief is not available under § 1132(a)(3)
“where Congress elsewhere provided adequate relief for a
beneficiary’s injury,”

Thus, a claimant may not
bring a claim for denial of benefits under § 1132(a)(3) when
a claim under § 1132(a)(1)(B) will afford adequate relief.
Claims under § 1132(a)(1)(B) and § 1132(a)(3), however,
“may proceed simultaneously so long as there is no double
recovery.” Moyle v. Liberty Mut. Ret. Benefit Plan, 

, 961 (9th Cir. 2016) (as amended).

    Like a claimant asserting a denial-of-benefits claim
under § 1132(a)(1)(B), a claimant asserting a claim for
breach of fiduciary duty under § 1132(a)(3) may obtain an
award of attorney’s fees under § 1132(g). This award,
however, does not include fees incurred in an underlying
administrative proceeding. See 

n.8; 

–17.

                              C

    In this case, Castillo won his claim for denial of benefits
at the administrative level. Accordingly, he does not assert
a claim for denial of benefits under § 1132(a)(1)(B). He
does, however, assert a claim for breach of fiduciary duty
under § 1132(a)(3), and the remedy he seeks is an order
        CASTILLO V. METROPOLITAN LIFE INS. CO.           9

surcharging MetLife for the attorney’s fees he incurred
during the administrative proceedings.

    Castillo contends this award of attorney’s fees is
“appropriate equitable relief” under § 1132(a)(3). This
contention rests, up to a point, on valid premises. First,
surcharge is an available remedy under § 1132(a)(3). As the
Supreme Court explained in Amara:

       Equity courts possessed the power to provide
       relief in the form of monetary
       “compensation” for a loss resulting from a
       trustee’s breach of duty, or to prevent the
       trustee’s unjust enrichment. Restatement
       (Third) of Trusts § 95, and Comment a (Tent.
       Draft No. 5, Mar. 2, 2009) . . . ; [J.] Eaton[,
       Handbook of Equity Jurisprudence] §§ 211–
       212, at 440 [(1901)]. Indeed, prior to the
       merger of law and equity this kind of
       monetary remedy against a trustee,
       sometimes called a “surcharge,” was
       “exclusively 

–42; see also 4 Spencer W. Symons, A
Treatise on Equity Jurisprudence § 1080, at 229–30 (5th ed.
1941); George Gleason Bogert & George Taylor Bogert, The
Law of Trusts & Trustees § 862, at 34–36, 49–50 (Rev. 2d
ed. 1995 and 2019 Cumulative Supp.). Through surcharge,
a beneficiary may seek “make-whole relief,” 

—“the remedy that will put the beneficiary
in the position he or she would have attained but for the
trustee’s breach.” Skinner v. Northrop Grumman Ret.
Plan B, 

, 1167 (9th Cir. 2012).
10        CASTILLO V. METROPOLITAN LIFE INS. CO.

    Second, the surcharge remedy may, in a court’s
discretion, include an award of attorney’s fees to a prevailing
beneficiary:

         The “make whole” objective . . . of recovery
         from a trustee [through surcharge] may
         include, in an appropriate case, the attorney
         fees and other litigation costs of a successful
         plaintiff . . . . This element of recovery,
         however, is a matter of judicial discretion and
         not a routine part of trustee liability for
         breach of trust . . . . Among the facts and
         circumstances courts consider in exercising
         their judgment in these matters are the nature
         and extent of trustee misconduct in
         committing the breach, the conduct of the
         trustee in presenting the accounting or
         defending the surcharge action, and the
         significance of imposing costs on the trustee
         as a deterrent to misconduct.

Restatement (Third) of Trusts § 100 cmt. b(2) (2012); see
also Dardovitch v. Haltzman, 

, 145–47 (3d Cir.
1999); Bogert, supra, § 871, at 184–96. 3


     3
       To obtain an award of attorney’s fees in a common law action for
breach of trust, a beneficiary need not show that the action benefitted the
trust estate generally, as MetLife contends. To be sure, such benefit may
support an award of fees. See Bogert, supra, § 871, at 187–91. In
exercising its discretion, however, “the court may consider other factors”
as well, “such as the nature and extent of the defendant’s wrongful
conduct, and whether there was good faith on the part of the defendant.”

(footnote omitted); see also 

–
47. Thus, at common law, fees may be awarded in cases falling outside
the common fund doctrine or the substantial benefit rule.
          CASTILLO V. METROPOLITAN LIFE INS. CO.                       11

    Third, because Ҥ 502 does not elsewhere adequately
remedy” Castillo’s injury, 

, he may
seek relief under § 1132(a)(3). MetLife contends, however,
that Castillo is precluded from proceeding under
§ 1132(a)(3) because he has adequate remedies under other
aspects of ERISA’s remedial scheme. Specifically, MetLife
argues that a claimant whose claim is grounded in the denial
of benefits may seek administrative review and, if that
process is unsuccessful, may file a claim for benefits under
§ 1132(a)(1)(B). These alternative remedies, however, are
not adequate under the circumstances of this case, because
they do not afford the “make-whole relief,” 

, Castillo seeks—reimbursement of the attorney’s fees
he incurred in the administrative proceeding. Castillo,
therefore, may proceed under § 1132(a)(3).

    These valid premises, however, carry Castillo’s claim
only so far. His argument does not adequately account for
two factors that counsel against an award of attorney’s
fees—our decision in Cann and our obligation to read
§ 1132(a)(3) in conjunction with § 1132(g).

                                    1

    In Cann, 

, we held that attorney’s fees
incurred in an administrative proceeding are not recoverable
under § 1132(g), ERISA’s express fee-shifting provision. 4
We reached this conclusion for two reasons. First, this
provision authorizes the award of “a reasonable attorney’s
fee and costs of action,” and we noted that “[t]he word

    4
      Section 1132(g) states: “In any action under this subchapter (other
than an action described in paragraph (2)) by a participant, beneficiary,
or fiduciary, the court in its discretion may allow a reasonable attorney’s
fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1).
12       CASTILLO V. METROPOLITAN LIFE INS. CO.

‘action’ generally designates only proceedings in court, not
administrative proceedings.”

Second, we
concluded that an award of fees incurred in an administrative
proceeding would undermine ERISA’s purpose:

        [I]n the ERISA context, the congressional
        purpose emphasized promotion of “the
        soundness and stability of plans with respect
        to adequate funds to pay promised benefits.”
        29 U.S.C. § 1001(a). This purpose might be
        undermined by awards which, by
        encouraging plans to pay questionable claims
        in order to avoid liability for attorneys’ fees,
        could reduce their “soundness and stability.”
        Since the validity of a particular claim is not
        always immediately obvious, plans may need
        to challenge those which the trustee in good
        faith believes are invalid without expanding
        its risk by a double or nothing bet on
        attorneys’ fees. Also, some claimants and
        some plans may use informal internal review
        procedures, accomplished by nonlawyers,
        perhaps union or other employee
        representatives and plan representatives; a
        nonliteral reading of the statute which
        exposed the loser to the prevailing party’s
        attorneys’ fees might undermine such a
        process.

   The rule Castillo proposes is at odds with Cann in two
ways. First, Castillo would allow claimants to accomplish
under § 1132(a)(3) what Cann precludes them from
accomplishing under § 1132(g). Under Castillo’s proposed
          CASTILLO V. METROPOLITAN LIFE INS. CO.                     13

rule, the availability of attorney’s fees for the administrative
phase of a benefits dispute would turn on whether the
claimant could successfully recharacterize a denial-of-
benefits claim as a claim for breach of fiduciary duty. If a
denial of benefits could be characterized as a breach of
fiduciary duty, the claimant could recover attorney’s fees for
the administrative proceeding under § 1132(a)(3); if the
claimant could not characterize the benefits dispute as a
breach of fiduciary duty, those fees would be unavailable.
We are not persuaded that the availability of fees should turn
on the claimant’s characterization of the benefits dispute or
that ERISA should be interpreted in a way to incentive
claimants to characterize denial-of-benefits claims as
breach-of-fiduciary-duty claims.

    Second, in Cann we held that an award of attorney’s fees
incurred during the administrative phase of the claims
process would undermine ERISA’s purpose in promoting
plan soundness and stability. Although Cann addressed
attorney’s fees under § 1132(g) rather than § 1132(a)(3), its
reasoning extends, at least to some extent, to § 1132(a)(3). 5



     5
       We say “at least to some extent” to acknowledge that our reasoning
in Cann may not extend fully to § 1132(a)(3). Under § 1132(g), fees are
broadly available; a claimant need show only “some degree of success
on the merits.” 

(quoting 

). Common law trust principles, by contrast, appear to require
something more for an award of fees, such as misconduct or bad faith on
the part of the trustee. See Bogert, supra, § 871, at 193–94; Restatement
(Third) of Trusts § 100 cmt. b(2) (2012). Thus, good faith denials of
benefits of the kind we highlighted in Cann might not result in an award
of attorney’s fees under § 1132(a)(3) if § 1132(a)(3) follows the common
law standard. Even if this is the case, however, Cann’s reasoning applies
at least to some extent to § 1132(a)(3). At oral argument, moreover,
Castillo’s counsel suggested that the Hardt standard would govern an
14        CASTILLO V. METROPOLITAN LIFE INS. CO.

                                    2

    Castillo’s interpretation of § 1132(a)(3) also fails to
accord sufficient weight to § 1132(g).           “[S]tatutory
interpretation must account for both ‘the specific context in
which . . . language is used’ and ‘the broader context of the
statute as a whole.’” Util. Air Reg. Grp. v. EPA, 

, 321 (2014) (second alteration in original) (quoting
Robinson v. Shell Oil Co., 

, 341 (1997)).
Therefore, our interpretation of § 1132(a)(3) must account
for § 1132(g). On its face, nothing in § 1132(g) defeats
Castillo’s contention that attorney’s fees incurred in an
administrative proceeding are recoverable under
§ 1132(a)(3); instead, § 1132(g) authorizes an award of fees
incurred in a civil action but does not expressly prohibit an
award of fees incurred in connection with an administrative
proceeding. 6

    We consider it significant, however, that § 1132(g)
expressly addresses the subject of attorney’s fees,
affirmatively authorizing an award of fees in civil actions,
while making no mention of fees incurred in the
administrative proceedings mandated by the statute. “Under
the maxim of expressio unius est exclusio alterius, there is a
presumption ‘that when a statute designates certain persons,

award of fees under § 1132(a)(3), in which case Cann’s reasoning would
extend fully to the circumstances of this case.
     6
      For this reason, MetLife’s reliance on the general/specific canon is
misplaced. Under that canon, “[i]f there is a conflict between a general
provision and a specific provision, the specific provision prevails.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 183 (2012). Because the general and specific provisions at
issue here—§ 1132(a)(3) and § 1132(g)—do not conflict, this canon
does not apply.
         CASTILLO V. METROPOLITAN LIFE INS. CO.              15

things, or manners of operation, all omissions should be
understood as exclusions.’” Copeland v. Ryan, 

, 907 (9th Cir. 2017) (quoting Boudette v. Barnette,

, 757 (9th Cir. 1991)).

    “The force of any negative implication, however,
depends on context.” NLRB v. SW Gen., Inc., 

,
940 (2017) (quoting Marx v. Gen. Revenue Corp., 

, 381 (2013)). “The expressio unius canon applies only
when ‘circumstances support[ ] a sensible inference that the
term left out must have been meant to be excluded.’”

(quoting Chevron U.S.A. Inc. v.
Echazabal, 

, 81 (2002)).                 Here, the
circumstances support such an inference. Under the rules
governing attorney’s fees, “Congress must provide a
sufficiently ‘specific and explicit’ indication of its intent to
overcome the American Rule’s presumption against fee
shifting.” Peter v. Nantkwest, Inc., 

, 372
(2019) (quoting Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 

, 260 (1975)). Legislating against the
backdrop of these rules, Congress expressly addressed the
question of attorney’s fees under ERISA but omitted any
reference to fees incurred in the administrative proceedings
mandated by the statute. The circumstances therefore
support the inference that Congress did not authorize an
award of fees incurred in such proceedings. This inference,
considered alongside Cann, persuades us that § 1132(a)(3)
does not authorize an award of attorney’s fees incurred
during the administrative phase of the ERISA claims
process.

                              IV

    Because § 1132(a)(3) does not authorize the award of
attorney’s fees Castillo seeks, the district court properly
dismissed the complaint. We affirm on this ground and so
16       CASTILLO V. METROPOLITAN LIFE INS. CO.

we need not address MetLife’s contention that Castillo’s
complaint failed to state a claim for breach of fiduciary duty.

   The judgment of the district court is AFFIRMED.
MetLife’s motion for judicial notice (Dkt. 15) is DENIED.
Each party shall bear its own costs on appeal.