      COX, Circuit Judge, concurring in part and dissenting in part:

      I dissent from that part of the court’s opinion that holds that an action for
recovery of benefits under ERISA § 502(a)(1)(B) cannot be maintained solely against

an ERISA plan as an entity. I join the remainder of the court’s opinion, and, because

the holding from which I dissent is an alternative holding, I concur in the result

reached by the court.
      In my view, ERISA allows an action to recover benefits to be brought solely

against an ERISA plan as a entity, with appropriate relief including a money judgment
against the plan. The statute clearly states that “[a]n employee benefit plan may sue
or be sued under this subchapter as an entity.” 29 U.S.C. § 1132(d)(1). The statute

then describes the mechanics of suing the plan. See id. (“Service of summons,
subpoena, or other legal process of a court upon a trustee or an administrator of an

employee benefit plan in his capacity as such shall constitute service upon the
employee benefit plan.”). And finally, the statute provides that “[a]ny money

judgment under this subchapter against an employee benefit plan shall be enforceable
only against the plan as an entity. . . .” 29 U.S.C. § 1132(d)(2). Although in the form
of a money judgment, this relief is equitable relief. See Calamia v. Spivey, 632 F.2d

1235, 1236-37 (5th Cir. Unit A 1980). In Calamia, the court explained that “[s]ince
Congress has the power to entrust enforcement of new rights to courts sitting as in

equity, the first step in determining the legal or equitable nature of an action such as

[a claim for benefits] is to examine the intent of Congress.” Id. at 1237 (citation

omitted). Finding congressional intent to be unclear, the court looked at how similar


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actions were treated before the merger of law and equity. See id. In so doing, the

court concluded that--because the application of the arbitrary and capricious standard
has traditionally been performed by judges--an action to recover benefits is equitable

in nature. See id. See also Wardle v. Central States, et al., 627 F.2d 820, 828-30 (7th

Cir. 1980).
      Although our cases have not squarely addressed the issue, we have allowed

actions asserting claims for benefits under ERISA to proceed solely against ERISA

plans. See Springer v. Wal-Mart Associates’ Group Health Plan, 908 F.2d 897 (11th
Cir. 1990); Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.
1989). Decisions from other circuits have explicitly held that claimants may sue only

their ERISA plan. See Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324 (9th
Cir. 1985) (“ERISA permits suits to recover benefits only against the Plan as an

entity. . . .”); and Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993) (quoting

Gelardi).
      In short, the majority’s holding that one seeking to recover benefits under an

ERISA plan cannot proceed solely against his plan runs counter to the language of
ERISA and is not supported by our prior decisions. We have allowed such actions to

proceed against both the plan and the plan administrator, without explicitly addressing
the issue of who is the proper defendant. See Marecek v. BellSouth Telecomm., 49
F.3d 702 (11th Cir. 1995). We also have allowed such actions to proceed against the

administrator alone--again without explicitly addressing the issue. See Godfrey v.

BellSouth Telecomm., 89 F.3d 755 (11th Cir. 1996); Kirwan v. Marriott, 10 F.3d 784


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(11th Cir. 1994); Jett v. Blue Cross and Blue Shield of Alabama, 890 F.2d 1137 (11th

Cir. 1989). But whether an action for benefits may be maintained solely against the
administrator, or against both the plan and the administrator, are not issues presented

by this case.




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