Crosby v. Bowater Inc. Retirement Plan , 382 F.3d 587 ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Crosby v. Bowater Incorporated No. 03-1044
ELECTRONIC CITATION: 2004 FED App. 0303P (6th Cir.) Retirement Plan, et al.
File Name: 04a0303p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ARGUED: Thomas J. Piskorski, SEYFARTH SHAW,
_________________ Chicago, Illinois, for Appellants. Eva T. Cantarella, HERTZ,
SCHRAM & SARETZKY, Bloomfield Hills, Michigan, for
FRANK J. CROSBY , X Appellee. ON BRIEF: Ian H. Morrison, SEYFARTH
individually and on behalf of - SHAW, Chicago, Illinois, for Appellants. Eva T. Cantarella,
all others similarly situated, - Bradley J. Schram, Robert P. Geller, Bradford T. Yaker,
- No. 03-1044 HERTZ, SCHRAM & SARETZKY, Bloomfield Hills,
Plaintiff-Appellee, - Michigan, for Appellee.
>
,
v. _________________
-
- OPINION
BOWATER INCORPORATED - _________________
RETIREMENT PLAN FOR -
SALARIED EMPLOY EES OF - DAVID A. NELSON, Circuit Judge. This appeal shows
GREAT NORTHERN PAPER INC. - that the distinction between law and equity can still have
- consequences. (“The forms of action we have buried,”
and BOWATER , - Maitland observed in a very different context, “but they still
INCORPORATED , - rule us from their graves.”1)
Defendants-Appellants. -
- The plaintiff, a participant in a retirement plan governed by
N the Employee Retirement Income Security Act of 1974
Appeal from the United States District Court (ERISA), 88 Stat. 832, claimed that the plan administrator
for the Western District of Michigan at Grand Rapids. had acted improperly in using a pre-retirement mortality
No. 01-00683—Richard A. Enslen, District Judge. discount factor when calculating lump sum pre-retirement
benefits. As a result, the plaintiff asserted, he was paid a
Argued: April 20, 2004 benefit that fell $5,249.08 short of what he was entitled to
receive. Invoking § 502(a)(3) of ERISA, 29 U.S.C.
Decided and Filed: September 9, 2004
Before: BOGGS, Chief Judge; NELSON and SUTTON,
Circuit Judges.
1
F.W . Maitland, The Forms of Action at Common Law 2 (A.H.
Chaytor & W .J. Whittaker eds., 1948).
1
No. 03-1044 Crosby v. Bowater Incorporated 3 4 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
§ 1132(a)(3),2 and purporting to act on behalf of a class of 534 U.S. 204 (2002), and Mertens v. Hewitt Associates, 508
approximately 350 plan participants said to be similarly U.S. 248 (1993).
situated, the plaintiff brought suit against the plan and its
administrator for what he described as “equitable and If we assume, for purposes of analysis, that the defendants
injunctive relief.” At the heart of the plaintiff’s prayer for had no discretion to use the mortality discount factor in
relief was a request for recovery of additional lump sum making the benefit calculation, the fact remains that ERISA
benefits. § 502(a)(3), which authorizes only suits for injunctive or
other equitable relief, does not, in most situations, authorize
After a wave of motions had been filed, the district court an action for money claimed to be due and owing. An action
entered an order granting class certification, granting in which the plaintiff complains that the defendant owes him
summary judgment in favor of the plaintiff and the class, money and has refused to pay the debt is, of course, the locus
ordering a recalculation of lump sum pre-retirement benefits classicus of an action at law; if we were to say that such an
without the mortality discount, and requiring the defendants action qualifies as a suit in equity, we should be giving the
“to immediately refund [the] under-payments . . . .” words used by Congress in § 502(a)(3) a meaning that Great-
West and Mertens teach they will not bear. The challenged
For the district court to order the defendants to “refund” judgment will therefore be reversed.
(i.e. to pay) the difference between the amount calculated
without a mortality discount and the amount actually received I
was to grant a form of relief not typically available in equity.
Such relief, we conclude, was thus not available under the The individual plaintiff, Frank J. Crosby, was a participant
statutory provision on which the plaintiff elected to base his in an ERISA retirement plan administered by defendant
action. See Great-West Life & Annuity Ins. Co. v. Knudson, Bowater Incorporated, the parent corporation of Mr. Crosby’s
sometime employer, Great Northern Paper, Inc. Before he
reached his normal retirement age, but after his pension rights
2
had vested, Mr. Crosby lost his job as a result of Great
As codified in Title 29 of the U.S. Code, ERISA § 502(a)(3) Northern’s having been sold to another company. The
provides as follows: termination of Mr. Crosby’s employment accelerated his right
“A civil action m ay be b rought — to receive benefits under the retirement plan.
***
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any The Bowater plan was of the “cash balance” variety, a
act or practice w hich vio lates any p rovisio n of this subchapter or species of the “defined benefit” genus. The plan gave Mr.
the terms o f the plan, or (B) to obtain other ap propriate Crosby a hypothetical “Personal Account,” and his benefits
equ itable relief (i) to redress such violations or (ii) to enforce
any provisions o f this subchapter or the terms of the plan.”
were to be a function of the balance in that account. The
29 U.S.C. § 11 32(a)(3) (emphasis supplied). balance reflected credits geared to Mr. Crosby’s monthly
compensation and a specified rate of interest. The Personal
A separate provision, § 502(a)(1)(B) of ERISA, 29 U.S.C. Account was nothing more than a computational construct,
§ 113 2(a)(1)(B ), authorizes a p articipa nt to bring suit “to re cover benefits and benefits were to be paid from the plan’s general assets.
due to him under the term s of his plan. . . .” The plaintiff in this case did
not invoke § 502(a)(1)(B).
No. 03-1044 Crosby v. Bowater Incorporated 5 6 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
If Mr. Crosby had been able to retire from Great Northern to normal retirement age, (2) dividing the resultant age-65
at age 65 — the “normal retirement age” specified in the plan account balance by the annuity factor prescribed in the plan,
— a joint-and-survivor annuity would have been payable as and (3) discounting the age-65 annuity to its present value.
long as he or his wife continued living. The amount of the Bowater acceded to this request, notwithstanding that the
annuity would have been determined by taking the balance in Internal Revenue Service had approved the plan provision
Mr. Crosby’s Personal Account at age 65 and dividing it by pegging the lump sum entitlement to the amount credited to
a prescribed annuity factor. And had Mr. Crosby died before the participant’s Personal Account. Mr. Crosby was advised
age 65 while still employed by Great Northern, a death that his claim for a larger benefit had been granted and that
benefit would have been payable in an amount equal to the his lump sum entitlement had been recalculated. The
then present value of his accrued retirement benefit. resulting figure was $52,013.90. We presume that this
amount was paid in full.
When Mr. Crosby ceased to be an employee of Great
Northern, not having retired or died on the job, he became In a detailed explanation of how it arrived at the
eligible, under the terms of the plan, for a distribution of his $52,013.90, Bowater told Mr. Crosby, among other things,
retirement benefit. Mr. Crosby, who was 43 years old at the that it had used a pre-normal-retirement-age mortality
time, elected to take his distribution in a lump sum. discount factor in its present-value calculation. When it
determined the present value of an age-65 annuity, in other
Bowater, as plan administrator,3 told Mr. Crosby that the words, Bowater took into account the possibility that Mr.
lump sum would be $48,732.14. That was the balance in Crosby might die before reaching the age at which he would
Crosby’s Personal Account. (Article XII of the plan provided be entitled to start receiving annuity payments.
that a participant’s accrued benefit could only be distributed
in a form of payment selected by the participant from a list of Mr. Crosby objected to the use of the mortality discount
options incorporated in § 12.2 of the plan. The second option, factor, filing an appeal with Bowater in which he made the
set forth in § 12.2(b), was “[a] single lump sum payment following argument:
equal to the amount credited to the Participant’s Personal
Account as of the end of the month preceding his Benefit “This discount factor is not consistent with the
Commencement date.”) calculation method described in IRS Notice 96-8.
Further, I believe this discount reduces my accrued
Claiming that the relevant statutory law, as interpreted by benefit, and, thus, is not allowed under ERISA.”
the Internal Revenue Service in IRS Notice 96-8 (IRB 1996-
6, Feb. 5, 1996), entitled him to receive more than the amount Bowater’s Pension Administration Committee denied the
credited to his Personal Account, Mr. Crosby asked Bowater appeal, issuing a five-page explanation of its decision to do
to recompute his lump sum by (1) projecting interest credits so.
Mr. Crosby then sued the Bowater plan and Bowater
3
Incorporated in the United States District Court for the
Except where the context indica tes otherwise, all references in this Western District of Michigan. The complaint alleged, among
opinion to “Bowater” should be read as mea ning Bowater in its plan- other things, (1) that “when Bowater discounted Crosby’s
adm inistrator capa city.
No. 03-1044 Crosby v. Bowater Incorporated 7 8 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
age-65 annuity to present value, it should not have used a use of a mortality discount factor for the period before normal
mortality discount for the period before normal retirement retirement age. Joinder of such a large number of individuals
age;” (2) that “[i]f Bowater had utilized the . . . mortality was said to be impracticable, and the complaint stated that
discount factors for the period after normal retirement age Mr. Crosby “seeks both equitable and injunctive relief for the
only, Crosby’s lump sum entitlement . . . would have been Class, as permitted under ERISA § 502(a)(3).”
$57,262.98” instead of the $52,013.90 produced by the
method Bowater in fact used; and (3) that “Bowater’s use of The complaint’s prayer for relief asked the court to enter a
a mortality discount for the period before normal retirement judgment ordering the defendants to “[r]e-compute any and
age caused a partial forfeiture of Crosby’s accrued benefit, all lump sum benefits previously paid,” using the
thereby violating ERISA § 203(a), 29 U.S.C. § 1053(a).”4 methodology followed in the recomputation of Mr. Crosby’s
lump sum entitlement “but without any mortality discount for
The complaint stated that Mr. Crosby brought his claim the period before normal retirement age.” The court was
“under ERISA § 203(a), 29 U.S.C. § 1053(a), and the further asked to (1) order the defendants to “[p]ay all Plan
enabling statute, ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).” participants or their beneficiaries who previously received a
As noted above, Mr. Crosby did not bring his claim under lump sum distribution . . . the difference between the amount
ERISA § 502(a)(1)(B) — the section that authorizes a party [so] computed . . . and the lump sum amount the participant
to sue for “benefits due to him under the terms of his or beneficiary received from the Plan, plus pre-judgment and
plan. . . .” (Under the language of the plan, Mr. Crosby was post-judgment interest on this amount;” to (2) “[e]njoin
entitled to less than he had already been paid — a defendants from utilizing a mortality discount for the period
circumstance that explains the decision not to invoke before normal retirement age when computing a lump sum
§ 502(a)(1)(B).5) distribution from the Plan in the future;” and to (3) order the
defendants to “[p]ay . . . reasonable attorney’s fees and costs
The complaint alleged that approximately 350 plan . . . .” The prayer for relief also included a request that the
participants or beneficiaries were in the same boat as Mr. court “impose a constructive trust over the amount of plan
Crosby — i.e., they were victims of Bowater’s insistence on assets necessary to pay the amounts determined . . . and award
any other equitable relief this Court deems appropriate.”
4 The defendants responded to the complaint with a motion
Section 203(a) sets forth rules on the extent to which accrued to dismiss under Rule 12(b)(6), Fed. R. Civ. P. The first and
benefits are nonforfeitable. As Mr. Crosb y subsequently reiterated in a
brief filed with the district co urt, “Cro sby’s claim is for violation of . . .
second numbered paragraphs of the defendants’ motion read
the anti-forfeiture rules unde r ER ISA § 20 3(a).” as follows:
5
In his brief on appeal, Mr. Crosby tells us that he “could not bring “1. Crosby purports to bring this action under Section
his claim und er ER ISA § 50 2(a)(1)(B) because the Plan ’s lump sum 502(a)(3) of the Employee Retirement Income Security
provision contempla tes paym ent of an amo unt equal to the particip ant’s Act of 1974 (‘ERISA’), 29 U.S.C. § 1132(a)(3), and
Personal Acco unt . . ., the amo unt Bowater initially offered Crosby. styles it as an action to enforce Section 203(a)(2)(A) of
Consequently, if Crosby had brought his claim under § 502(a)(1)(B), he ERISA.
would be entitled to no relief at all . . . .” W e intimate no view as to
whether this propo sition is correct.
No. 03-1044 Crosby v. Bowater Incorporated 9 10 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
2. Crosby sues to recover an increased lump sum The response was accompanied with a cross motion for
distribution of his retirement benefit under the Plan, a summary judgment based on the complaint as filed; at no time
retirement benefit plan sponsored and administered by did Mr. Crosby seek leave to amend the complaint.
Bowater. In particular, Crosby claims that in calculating
the present value of his retirement benefit, defendants In due course, after Mr. Crosby had filed a motion for class
incorrectly used a mortality discount for the part of that certification, the district court ordered briefing on the
calculation dealing with the time before Crosby had appropriateness of the requested equitable remedies in the
reached age 65.” event the plaintiff succeeded on his summary judgment
motion. In the brief filed pursuant to the court’s direction,
The brief accompanying the motion pointed out that the Mr. Crosby reiterated he had brought his claim under
statutory provision on which Mr. Crosby purported to sue did § 502(a)(3), “which authorizes ‘appropriate equitable relief.’”
not authorize a suit for the relief he was seeking: Arguing that the relief he sought was “equitable” as well as
“appropriate,” Mr. Crosby cited Great-West Life & Annuity
“Although what he really seeks is an award of Ins. Co. v. Knudson, 634 U.S. 204 (2002), as “suggest[ing]
additional benefits, a claim properly brought under that if the relief requested does not seek to impose liability for
ERISA § 502(a)(1)(B), 29 U.S.C. a contractual monetary obligation, it is probably an
§ 1132(a)(1)(B)[footnote omitted], Crosby purports to appropriate equitable remedy.” The district court was told that
sue under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). “Crosby does not seek to impose liability on defendants for
That provision only authorizes Crosby to bring an action any contractual obligation to pay money.”
to ‘enjoin any act or practice which violates any
provision of [ERISA] or the terms of the plan.’” After the completion of briefing, and having dispensed with
oral argument, the district court entered a final judgment in
Mr. Crosby filed a response to the 12(b)(6) motion in which which the court granted class certification; denied the
he admitted the substance of paragraphs 1 and 2 of the defendants’ motion to dismiss; granted the plaintiff’s
motion: summary judgment motion; enjoined the defendants “to
recalculate the lump sum benefits of class members who had
“1. Crosby agrees that he brought this action under previously received lump sum benefits, in accordance with
§ 203(a)(2) and § 502(a)(3) of the Employee the Court’s Opinion, and to immediately refund under-
Retirement Income Security Act (‘ERISA’). payments, plus pre-judgment and post-judgment interest;”
29 U.S.C. § 1053(a)(2) and 29 U.S.C. § 1132(a)(3). and to “calculate lump sum benefit payments for class
members who have not yet received any lump sum benefits in
2. Crosby agrees that (a) he is suing to recover accordance with the Court’s Opinion.”
additional lump sum benefits; (b) the Plan is
sponsored and administered by Bowater; and (c) he The opinion itself — a comprehensive and well-crafted
claims that Bowater incorrectly utilized a mortality analysis of a variety of issues, some of which are not in
discount for the period before age 65 when it contention on appeal — reasoned that because the plan
computed his lump sum.” provided for payment of a pre-retirement death benefit in the
amount of the then-vested present value of the participant’s
No. 03-1044 Crosby v. Bowater Incorporated 11 12 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
accrued benefit, the death benefit was not “incidental” to the to a party who prevailed in a court of equity (injunctive relief,
participant’s accrued benefit and the plan administrator thus e.g.) were far from identical to the remedies the prevailing
lacked discretion to use a mortality discount factor in party could obtain in a court of law. Although, in most
reducing the projected age-65 annuity to its present value. jurisdictions, the same courts have long administered both
The bottom line, in the district court’s view, was that the law and equity,6 the unified courts have been administering
lump sum payment to which Mr. Crosby claimed to be what Professor Geldart described as “distinct bodies of law,
entitled — $57,262.98, as the court noted — should not have governed largely by different principles.”7
undergone the mortality reduction that resulted in a lump sum
payout of only $52,013.90. Against this background, we return to the text of ERISA
§ 502(a)(3), the statutory section under which plaintiff Crosby
The defendants perfected a timely appeal. Much of the brought his suit. Under § 502(a)(3), as codified at 29 U.S.C.
argument they present to our court is a defense of the merits § 1132(a)(3), Mr. Crosby could institute a proceeding “(A) to
of the plan administrator’s decision to take pre-retirement enjoin any act or practice which violates [ERISA] or the
mortality risk into account. The defendants argue further that terms of the plan, or (B) to obtain other appropriate equitable
the decision should have been reviewed under an arbitrary- relief (i) to redress such violations or (ii) to enforce any
and- capricious standard, and that the district court was provisions of [ERISA] or the terms of the plan.” (Emphasis
required to uphold the decision as reasonable. We do not supplied.) Section 502(a)(3) does not authorize a plan
reach these issues, because — as the defendants also argue — participant to sue for recovery of benefits due to him under
the primary relief sought by Mr. Crosby did not qualify as the terms of the plan. That is the office of § 502(1)(B) — a
“equitable relief” of the sort authorized by ERISA section with which Mr. Crosby has always insisted he will
§ 502(a)(3), 29 U.S.C. § 1132(a)(3). have nothing to do.
II But what if the benefits are not claimed to be due under
terms of the plan, strictly speaking, but under the terms of a
The present opinion is not the place for a history lesson on statute — in this case ERISA § 203(a), 29 U.S.C. § 1053(a)
the development of the parallel systems of jurisprudence — setting forth requirements that the plan must satisfy? The
known as “law” and “equity.” It will suffice, we trust, to answer, we believe, depends on whether the claim for benefits
remind the reader that courts of law — in which the common allegedly due under the statutory requirements is or is not, at
law of the English speaking peoples had its principal growth bottom, a claim for injunctive or other equitable relief. No
— were for a number of centuries separate and distinct from matter how well founded it may be as a matter of substantive
chancery courts (originally the court of an ecclesiastical
person appointed by the king to be his chancellor); that the
rules of decision followed in chancery courts were not 6
common law rules, but rules of equity; that chancery courts In England, for example, this has been true since 1875. See W.M.
(i.e. courts of equity) likewise had their own procedures — Geldart, Elements of English Law (5th Ed. 1953) at p. 22. In some
American jurisdictions — New Jersey, for example — the fusion took
procedures under which, for example, the chancellor place within living memory. See N.J. Const., Art. 11, §4, ¶ 3 (1947).
performed the fact-finding rôle that in courts of law would be
performed by a jury; and that the remedies typically available 7
Geldart, id.
No. 03-1044 Crosby v. Bowater Incorporated 13 14 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
law, a claim for benefits is not cognizable under § 502(a)(3) We do not find this line of argument persuasive. It is true
of ERISA unless it is a claim for “equitable relief.” that Mr. Crosby requested the district court to impose a
constructive trust over the amount of plan assets necessary to
As used in § 502(a)(3), the Supreme Court has repeatedly pay his claim — and over the separate assets of Bowater
held, “equitable relief” refers to “those categories of relief that Incorporated, if necessary — but we do not read Harris Trust
were typically available in equity (such as injunction, as suggesting that such a request for securitization of the debt
mandamus, and restitution, but not compensatory damages).” can transmogrify Mr. Crosby’s claim for a money judgment
Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993); cf. into an essentially equitable claim. A glance at the facts of
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. Harris Trust explains why.
204, 210 (2002). And “[a]lmost invariably . . . suits seeking
(whether by judgment, injunction, or declaration) to compel In Harris Trust a retirement plan had purchased certain
the defendant to pay a sum of money to the plaintiff are suits motel interests from a company that the plan had been using
for ‘money damages,’ as that phrase has traditionally been as a stockbroker. Because the stockbroker was a “party in
applied, since they seek no more than compensation for loss interest,” as the Supreme Court assumed, the purchase of the
resulting from the defendant’s breach of legal duty.” Bowen motel interests was prohibited under § 406(a)(1)(A) of
v. Massachusetts, 487 U.S. 879, 918-19 (1988) (Scalia, J., ERISA, 29 U.S.C. § 1106(a)(1)(A). Invoking the “equitable
dissenting), as quoted with approval in Great-West, 534 U.S. relief” provision of ERISA § 502(a)(3), the trustee and the
at 210. “And ‘[m]oney damages are, of course, the classic administrator of the retirement plan sued the stockbroker for
form of legal relief.’” Id. (quoting Mertens, 508 U.S. at 255). rescission of the purchase of the motel interests; restitution of
the purchase price, with interest, from the stockbroker; and
Mr. Crosby acknowledged in the court below that suits disgorgement of any profits the stockbroker had made with
seeking to compel the defendant to pay a sum of money to the the purchase money.
plaintiff are “almost invariably” excluded from the category
of suits seeking relief typically available in equity, according The Court of Appeals for the Seventh Circuit concluded
to the Supreme Court. Citing Harris Trust and Savings Bank that as a non-fiduciary, the stockbroker could not be held
v. Salomon Smith Barney Inc., 530 U.S. 238 (2000), however, liable under § 502(a)(3) for participating in a transaction
Crosby argued that “‘[a]lmost invariably’ does not mean prohibited by § 406. See Harris Trust and Savings Bank v.
‘always’ . . . .” (Reply Brief in Support of Plaintiff’s Request Salomon Brothers Inc., 184 F.3d 646, 653 (7th Cir. 1999). The
for Equitable Relief, at page 29.) Because he is seeking Supreme Court reversed, holding that the stockbroker’s non-
imposition of a constructive trust (an equitable remedy) on fiduciary status did not insulate it from claims for equitable
property that he says “truly and equitably” belongs to him, relief under § 502(a)(3).
see Harris Trust at 250-51, and because “restitution [another
equitable remedy] may be awarded for any ‘ill-gotten plan Referring to the law of trusts — one of the main branches
assets or profits,’” see id. at 253, Mr. Crosby argued that his of equity jurisprudence — the Harris Trust court observed
individual claim for the wrongfully withheld $5,249.08 was that
not a claim for legal relief, but a claim for the sort of
“equitable relief” spoken of in § 502(a)(3). “it has long been settled that when a trustee in breach of
his fiduciary duty to the beneficiaries transfers trust
No. 03-1044 Crosby v. Bowater Incorporated 15 16 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
property to a third person, the third person takes the on assets so conveyed.8 And he is not seeking disgorgement
property subject to the trust, unless he has purchased the of profits made by a third party on ill-gotten assets. Harris
property for value and without notice of the fiduciary’s Trust, as we see it, is thus inapposite.
breach of duty. The trustee or beneficiaries may then
maintain an action for restitution of the property (if not While Harris Trust is readily distinguishable from the case
already disposed of) or disgorgement of proceeds (if now before us, Great-West, in our judgment, is not. It is true
already disposed of), and disgorgement of the third that the plaintiffs in Great-West sought to impose personal
person’s profits derived therefrom.” Harris Trust, 530 liability on the defendants for a contractual obligation to pay
U.S. at 250. money, whereas here the plaintiff insists that the asserted
liability is not contractual in nature.9 But if we accept, for
The Court went on to explain that purposes of analysis, plaintiff Crosby’s representation that he,
unlike the plaintiffs in Great-West, has no claim for breach of
“[o]nly a transferee of ill-gotten trust assets may be held contract, we think that the distinction between the Great-West
liable, and then only when the transferee (assuming he case and this one is a distinction without a difference.
has purchased for value) knew or should have known of
the existence of the trust and the circumstances that The statutory origin of Bowater’s asserted obligation to pay
rendered the transfer in breach of the trust.” Id. at 251. Mr. Crosby an additional $5,249.08, with interest, does not
mean that a breach of the obligation to pay is redressable
And — making an obvious point that has obvious
significance for us — the Supreme Court observed that a suit
against a transferee for tainted plan assets, in addition to 8
M r. Cro sby does ask for imposition of a constructive trust over
satisfying the “appropriateness” criterion, sufficient assets to assure that his claim will be paid, thereby putting him
in a better position than he wo uld occupy as a general credito r. But
“is also ‘equitable’ in nature. See Mertens, 508 U.S., at Crosby has no basis for obtaining such a priority, as far as we can see, and
260 (‘[T]he “equitable relief” awardable under he is clearly not asking for application of the principle applied in Ha rris
Trust — the principle tha t trust property transferred to a third party in
§ 502(a)(5) includes restitution of ill-gotten plan assets breach of the trustee’s fiduciary duty is impressed with a trust “unless [the
or profits . . .’); ibid. (explaining that, in light of the third party] has purchased the property for value and without notice of the
similarity of language in §§ 502(a)(3) and (5), that fiduciary’s breach of duty.” Harris Trust, 530 U.S. at 250.
language should be deemed to have the same meaning in
9
both subsections).” Id. at 253 (emphasis supplied). On its face, as we have seen, the language of the retireme nt plan’s
lump sum provision contemplates payment of an amount equal only to the
In the case at bar, of course, Mr. Crosby is not seeking participant’s Personal Account — an amount less than Bowater has
restitution to the plan of assets wrongfully conveyed to a third already voluntarily paid . In add ition to p ointing this out, Mr. Crosby
notes that among the plan’s miscellaneous provisions is the following:
party. He is not seeking to have a constructive trust imposed “The adoption and maintenance of this Plan shall not be deemed to
constitute a contract, expressed or implied, between the Company and any
Employee or to be a consideration for, or inducement or condition of, the
employment of any person .” It thus seems clear that M r. Cro sby wo uld
have had no claim for breach of contract absent ERISA, whatever the
situation may be in light of ERISA.
No. 03-1044 Crosby v. Bowater Incorporated 17 18 Crosby v. Bowater Incorporated No. 03-1044
Retirement Plan, et al. Retirement Plan, et al.
through a suit in equity rather than an action at law. mortality discount factor in computing future lump sum
Historically, an action in debt was no less an action at law distributions. Assuming that such relief might be beneficial
than an action in covenant. See F.W. Maitland, The Forms of to someone, however, it could only benefit members of the
Action at Common Law 63, 64 (A.H. Chaytor & W. J. class other than Mr. Crosby. In the next (and concluding) part
Whittaker eds., 1948). And an action of assumpsit (a form of of this opinion we address the question whether Mr. Crosby
trespass on the case) to redress the breach of a statutory can maintain the present suit on behalf of other class members
obligation to pay a sum certain was likewise an action at law. who might arguably receive some benefit from the equitable
See G.C. Cheshire and C.H.S. Fifoot, Law of Contract 15 (3rd relief sought for them.
ed. 1952); Marley v. Bankers’ Indemnity Insurance Co., 166
A. 350, 351 (R.I. 1933) (holding that trespass on the case is III
the appropriate action to enforce a statutory right).
The Supreme Court has held that a class action may
If it be argued that Mr. Crosby’s position should be likened proceed despite the dismissal of the named plaintiff’s claim,
to that of a beneficiary of a trust, who could invoke the if the class has been certified and at least one class member
jurisdiction of an equity court to enforce a right to receive has a live claim. See County of Riverside v. McLaughlin, 500
money from the trust, the short answer is that just such an U.S. 44, 51-52 (1991), and Sosna v. Iowa, 419 U.S. 393, 399-
argument has been explicitly rejected by the United States 403 (1975). But these decisions in no way detract from the
Supreme Court. See Great-West, 353 U.S. at 219: principle that the judicial power of Article III courts extends
only to the “cases and controversies” specified in that article.
“These trust remedies are simply inapposite. In Mertens, If the class action is to be maintained, therefore, there must be
we rejected the claim that the special equity-court powers “a named plaintiff who has such a case or controversy at the
applicable to trusts define the reach of § 502(a)(3).” time the complaint is filed and at the time the class action is
certified.” Sosna, 419 U.S. at 402. Where the named
It remains to be mentioned that Mr. Crosby does request a plaintiff’s claim is one over which “federal jurisdiction never
form of equitable relief in asking that the defendants be attached,” there can be no class action. See Walters v. Edgar,
ordered to recompute — without any mortality discount for 163 F.3d 430, 432-33 (7th Cir. 1998), cert. denied, 526 U.S.
the period before normal retirement age — “any and all lump 1146 (1999).
sum benefits previously paid to Plan participants,” including
Mr. Crosby. As far as Crosby’s individual claim is For reasons already explained, we do not believe that Mr.
concerned, however, such a recomputation by the defendants Crosby ever had a justiciable claim under ERISA § 502(a)(3),
is unnecessary; Mr. Crosby or his advisors have already the particular statutory provision on which he elected to sue.
performed the recomputation themselves, and Crosby’s Our caselaw teaches — perhaps surprisingly — that federal
complaint specifies the amount claimed to be due him down subject matter jurisdiction is lacking in such a situation. Thus
to the last penny. Equity, as the pertinent equitable maxim in QualChoice, Inc. v. Rowland, 367 F.3d 638, 650 (6th Cir.
tells us, does not require the doing of a vain act. 2004), we affirmed the dismissal, on jurisdictional grounds,
of an action that sought essentially legal relief under
Mr. Crosby’s complaint also asks for equitable relief in the § 502(a)(3). In Community Health Plan of Ohio v. Mosser,
form of injunction against use of a pre-normal-retirement-age 347 F.3d 619, 624 (6th Cir. 2003), similarly, we held that an
No. 03-1044 Crosby v. Bowater Incorporated 19
Retirement Plan, et al.
action seeking legal relief under § 502(a)(3) must be
dismissed for lack of subject matter jurisdiction. Community
Insurance Co. v. Morgan, 54 Fed. Appx. 828, 831-33 (6th
Cir. 2002), and Sheet Metal Local #24 v. Newman, 35 Fed.
Appx. 204, 207 (6th Cir. 2002), are in accordance with that
holding. If these decisions mean what they say, federal
jurisdiction never attached to Mr. Crosby’s claim in the case
at bar. It follows that there is no class action. See Walters,
163 F.3d at 432-33.
The judgment entered by the district court is VACATED
and the case is REMANDED with instructions to DISMISS
Mr. Crosby’s complaint for lack of subject matter jurisdiction.