On January 22, 2018, the U.S. Supreme Court requested the Solicitor General’s opinion on whether a plaintiff can simultaneously bring a claim for benefits and a claim for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA). A request for the view of the Solicitor Generally typically indicates the court’s interest in hearing a case.

The issue arises from a case from the U.S. Court of Appeals for the Sixth Circuit. In Strang v. Ford Motor Company, 693 F. App’x 400, 405 (6th Cir. 2017), a widow sought nearly $500,000 in extra benefits from Ford’s pension plan. She filed both a claim for benefits and a claim for breach of fiduciary duty seeking the same recovery. The Sixth Circuit affirmed the district court’s dismissal of the breach of fiduciary duty claim even though the court also affirmed the denial of her benefits claim. In so doing, the Sixth Circuit reaffirmed its holding that a plaintiff can pursue a breach of fiduciary duty claim “only where the breach of fiduciary duty claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under [§ 1132(a)(1)(B)] is otherwise shown to be inadequate.” Strang, 693 F. App’x at 405 quoting Rochow v. Life Insurance Co., 780 F.3d 364, 372 (6th Cir. 2015) (en banc).

Strang claims the Supreme Court should resolve the circuit split on the issue. Just days before the Sixth Circuit decision, the Eighth Circuit re-examined and affirmed its earlier analysis of the simultaneous pleading, holding that a plaintiff can simultaneously bring a claim for benefits and breach of fiduciary duty when the “two counts seek functionally identical relief” so long as the claims “allege distinct theories of liability.” Jones v. Aetna Life Ins. Co., 856 F.3d 541, 547 (8th Cir. 2017) citing Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th Circ. 2014). Strang argues that the Second and Ninth Circuit also follow this approach. Ford, however, characterizes the split as illusory, claiming that all the circuits allow plaintiffs to bring both claims when they are alternative rather than duplicative theories.

The Supreme Court is likely to defer to the government’s opinion as to whether to hear the case, such as it did two years ago when denying review of an ERISA forum-selection clause case.