K. Lewis v. PBGC [REISSUED OPINION] ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2017 Decided August 21, 2018
Reissued December 21, 2018
No. 17-5068
K. WENDELL LEWIS, ET AL.,
APPELLEES
v.
PENSION BENEFIT GUARANTY CORPORATION,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01328)
Charles L. Finke, Deputy Chief Counsel, pro hac vice,
argued the cause for appellant. With him on the briefs were
Judith R. Starr, General Counsel, Kenneth J. Cooper, Assistant
General Counsel, Paula J. Connelly, Assistant Chief Counsel,
and Mark R. Snyder, Attorney.
Anthony F. Shelley argued the cause for appellees. With
him on the brief were Timothy P. O’Toole and Michael N.
Khalil.
Before: GRIFFITH and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
Circuit Judge GRIFFITH: In this interlocutory appeal, we
reverse the district court’s decision allowing participants in a
pension plan to seek recovery of an increase in the value of plan
assets that took place after the plan had been terminated.
I
A
In 2005, Delta Airlines, Inc. (“Delta”) filed for bankruptcy
and stopped contributing to the pension plan it sponsored for
its pilots. That plan was called the Delta Pilots Retirement Plan
(the “Delta Plan”). The following year, Delta and the Pension
Benefit Guaranty Corporation (the “Corporation”) agreed to
terminate the Delta Plan because it had insufficient assets to
support the benefit payments it promised to the pilots.
Title IV of the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. §§ 1301-1461, created the Corporation “to
ensure that employees and their beneficiaries would not be
completely deprived of anticipated retirement benefits by the
termination of pension plans before sufficient funds have been
accumulated in the plans.” PBGC v. LTV Corp., 496 U.S. 633,
637 (1990) (internal quotation marks omitted). To that end, the
Corporation collects premiums from plan sponsors like Delta
and guarantees certain benefits to plan participants even if a
plan terminates without enough money to pay its ongoing
obligations. See 29 U.S.C. §§ 1306-1307, 1322, 1361; LTV
Corp., 496 U.S. at 636-38; Davis v. PBGC (“Davis II”), 734
F.3d 1161, 1164-65 (D.C. Cir. 2013). Importantly, guaranteed
benefits are subject to limitations outlined in Title IV. See 29
U.S.C. §§ 1322(b), 1361; LTV Corp., 496 U.S. at 638.
3
When a plan terminates without enough funding to provide
even the guaranteed benefits established by Title IV, a statutory
trustee collects the plan’s remaining assets and begins making
promised payments according to a list of statutory priorities.
See 29 U.S.C. §§ 1341(c)(iii)(B)(3), 1342(b)-(d), 1344; 29
C.F.R. pt. 4044. The Corporation then provides additional
money from its own funds to make up the difference between
those payments and the guaranteed benefits. See 29 U.S.C.
§ 1322; 29 C.F.R. pt. 4022; LTV Corp., 496 U.S. at 637-38;
Davis II, 734 F.3d at 1164-65. Although not required, the
Corporation is almost always appointed as the statutory trustee
who administers terminated plans, assuming this responsibility
in addition to its role as guarantor. See Boivin v. U.S. Airways,
Inc., 446 F.3d 148, 150 (D.C. Cir. 2006). When Delta and the
Corporation agreed to terminate the Delta Plan, they agreed the
Corporation would become the statutory trustee.
The Corporation determined the Delta Plan had a deficit of
over $2.5 billion in unfunded benefits when it terminated,
almost $800 million of which were guaranteed under Title IV.
Actuarial Case Memo for Delta Pilots Retirement Plan (Mar.
24, 2010), J.A. 201-03. Based on this information, the
Corporation began paying estimated post-termination benefits
to the pilots. It took six years, however, to finish making final
benefit determinations. Administrative appeals filed by the
pilots to challenge their benefit determinations concluded the
following year, in 2013. See 29 C.F.R. pt. 4003 (explaining the
process for determining post-termination benefits); Davis v.
PBGC (“Davis I”), 571 F.3d 1288, 1291 (D.C. Cir. 2009)
(same); Boivin, 446 F.3d at 151 (same). If the Corporation
found that participants were entitled to larger benefit payments
than they were receiving under their initial estimates, the
Corporation reimbursed those pilots with interest for any
difference and adjusted their benefits going forward. See 29
C.F.R. § 4022.81-.83; Davis I, 571 F.3d at 1291.
4
B
Nearly 1,700 pilots in the Delta Plan or their beneficiaries
sued the Corporation to further challenge their benefit
determinations, assert violations of the Administrative
Procedure Act, 5 U.S.C. § 706, and request various forms of
injunctive and declaratory relief. The pilots also allege that the
Corporation breached its fiduciary duty as statutory trustee in
various ways, such as creating procedural obstacles for and
withholding necessary information from participants who were
trying to appeal their benefit determinations, improperly
denying those appeals for untimeliness, hiring incompetent
contractors to estimate the value of plan assets and leaving
them unsupervised, and misallocating pension funds to
younger participants who would not retire and collect the
money for many years. Am. Compl. ¶¶ 66-72, J.A. 300-03. All
of this, the pilots claim, allowed the Corporation to control
Delta Plan assets for a longer period and collect “massive
investment returns” rather than timely paying the pilots what
they were owed. Id. ¶ 72, J.A. 303. The pilots argue that 29
U.S.C. § 1303(f)(1) authorizes “appropriate equitable relief”
and so the Corporation “should be required to disgorge itself of
this unjust enrichment.” Am. Compl. ¶ 72, J.A. 303. And they
ask to recover this money individually instead of on behalf of
the Delta Plan.
The Corporation moved to dismiss the breach of fiduciary
duty claim on numerous grounds, including that 29 U.S.C.
§ 1344(c) prevents disgorgement in this case. Section 1344(c)
provides that “[a]ny increase or decrease in the value of the
assets of a single-employer plan occurring after the date on
which the plan is terminated shall be credited to, or suffered by,
the [C]orporation.” Disgorgement, the Corporation explained,
5
would impermissibly redirect to the pilots the post-termination
increase in the value of plan assets.
The district court denied the Corporation’s motion to
dismiss and its subsequent motion for reconsideration. Lewis v.
PBGC, 197 F. Supp. 3d 16 (D.D.C. 2016), reconsideration
denied, No. 15-cv-1328, 2017 WL 7047932 (D.D.C. Jan. 23,
2017). The district court explained that the pilots were trying
only to “recoup the alleged ill-gotten investment returns on
[Delta] Plan benefits that the plaintiffs claim should have been
distributed to them, not . . . divert from the Corporation any
gains (or losses) from assets properly held in the [Delta] Plan.”
Lewis, 197 F. Supp. 3d at 26 (citation omitted); accord Lewis,
2017 WL 7047932, at *3. Such a claim, it said, might not be
prohibited by § 1344(c). Lewis, 2017 WL 7047932, at *3.
However, the district court concluded that “the dearth of
controlling precedent that supports the Court’s determination
regarding the fiduciary breach claim, coupled with the
Corporation’s credible contention that . . . ERISA does not
permit the plaintiffs to pursue this claim, raise[s] a controlling
question of law as to which a substantial ground for difference
of opinion exists.” Id. The district court then certified for
interlocutory appeal its order denying the motion to dismiss,
and identified four “controlling questions of law” for us to
consider: First, can individuals bring a fiduciary breach claim
against the Corporation under § 1303(f) in addition to
requesting judicial review of the Corporation’s post-
termination benefit determinations? Second, can plan
participants in such a lawsuit recover more than their statutorily
defined benefits under Title IV of ERISA? Third, can plan
participants in such a lawsuit recover individual, as opposed to
plan-wide, relief for the alleged fiduciary breach? And fourth,
does § 1344(c) preclude the remedy of disgorgement of post-
termination investment gains derived as a result of the alleged
6
fiduciary breach? Order Certifying Interlocutory Appeal, J.A.
384-85; see 28 U.S.C. § 1292(b). We granted the petition for
leave to file an interlocutory appeal. J.A. 653. Since that time,
the district court has resolved in favor of the Corporation all
other claims in this lawsuit. Lewis v. PBGC, No. 15-cv-1328,
2018 WL 2926157 (D.D.C. June 11, 2018).
The district court has jurisdiction over this case pursuant
to § 1303(f), and we have jurisdiction under 28 U.S.C.
§ 1292(b) to decide this interlocutory appeal. We review de
novo the district court’s decision on the motion to dismiss.
Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016). Because
we conclude that § 1344(c) prevents the pilots from recovering
any post-termination increase in the value of Delta Plan assets,
disgorgement is not an available remedy in this case and we do
not address the other questions.
II
A
We begin by examining the text of § 1344(c), which
provides in full:
Any increase or decrease in the value of the assets of a
single-employer plan occurring during the period
beginning on the later of (1) the date a trustee is appointed
under section 1342(b) of this title or (2) the date on which
the plan is terminated is to be allocated between the plan
and the [C]orporation in the manner determined by the
court (in the case of a court-appointed trustee) or as agreed
upon by the [C]orporation and the plan administrator in
any other case. Any increase or decrease in the value of
the assets of a single-employer plan occurring after the
7
date on which the plan is terminated shall be credited to,
or suffered by, the [C]orporation.
29 U.S.C. § 1344(c) (emphasis added).
The two halves of this subsection are in tension. The first
half of § 1344(c) explains that any change in the value of plan
assets occurring after “a trustee is appointed under § 1342(b)”
or “the plan is terminated,” whichever comes later, should be
allocated “in a manner determined by the court (in the case of
a court-appointed trustee) or as agreed upon by the
[C]orporation and the plan administrator.” This seems to
conflict with the second, italicized half of § 1344(c), which
clearly assigns all post-termination gains and losses to the
Corporation. See Kinek v. Paramount Commc’ns, Inc., 22 F.3d
503, 515 (2d Cir.), amended on denial of reh’g (June 13, 1994).
We need not resolve that conflict here. One of the two
events referenced in the first half of § 1344(c) is the
appointment of a pre-termination trustee under § 1342(b). See
29 U.S.C. § 1342(b)(1) (providing “for the appointment of a
trustee to administer the plan . . . pending the issuance of a
decree . . . ordering the termination of the plan”). There was no
such trustee in this case. Indeed, the Corporation became the
statutory trustee by an agreement with Delta only after the
parties terminated the Delta Plan. See id. § 1342(c) (providing
for appointment of a trustee when a plan terminates). And there
was no court determination—which is contingent on a court-
appointed trustee—nor agreement between the Corporation
and the plan administrator—previously Delta, now the
Corporation itself—to supply competing instructions as to the
allocation of any post-termination increase or decrease in the
value of plan assets. In short, the first half of § 1344(c) does
not apply in this case.
8
Moreover, although we do not decide the question, the
reference to § 1342(b) suggests the first half of § 1344(c) was
meant to govern changes in the value of assets pending plan
termination, while the second half allocates post-termination
gains and losses to the Corporation. The pilots acknowledge as
much, explaining that § 1344(c) “is properly treated as a
measure giving necessary guidance on the thorny issue of
whose accounts are to be ‘credited’ with the gains or losses
during the lengthy period when a plan is in the process of being
terminated . . . with the monies going to the Corporation’s
account (for the then-terminated plan) after termination.”
Pilots’ Br. 47-48. The increase in the value of plan assets at
issue in this case occurred after, not before, the plan terminated.
Recognizing that § 1342(b) governs the appointment of
pre-termination trustees also reveals a potential defect in the
first half of § 1344(c) itself. The first half of § 1344(c) applies
“on the later of” the appointment of a pre-termination trustee
or when the plan terminates. But a pre-termination, statutory
trustee will by definition be appointed before plan termination,
rendering meaningless the question of which event comes later.
This suggests the first half of § 1344(c) contains a drafting
error, as both parties agree. See Oral Arg. Tr. at 8-9, 20.1
1
Congress has considered amending § 1344(c). For example,
in 1994 the U.S. House of Representatives considered a
“clarification” to § 1344(c) as part of a larger bill, amending the
subsection to read: “Any increase or decrease in the value of the
assets of a single-employer plan occurring during the period
beginning on the later of (1) the date a trustee is appointed under
section 1342(b) of this title or (2) and ending on the date on which
the plan is terminated is to be shall be allocated between the plan and
the corporation in the manner determined by the court (in the case of
a court-appointed trustee) or as agreed upon by the corporation and
the plan administrator in any other case (in any other case). Any
increase or decrease in the value of the assets of a single-employer
9
We thus apply the second half of § 1344(c), which by its
express terms governs the allocation of post-termination gains
at issue in this case.
B
The Corporation argues that it is entitled under § 1344(c)
to any post-termination increase in the value of pension plan
assets. In other words, the Corporation reasons, Congress has
already decided who benefits or suffers the loss from a change
in the value of plan assets once that plan has been terminated.
Therefore, the Corporation concludes that the pilots cannot
recover that money as equitable relief for an alleged breach of
fiduciary duty. We agree.
The Corporation guarantees certain benefits to participants
in pension plans. See 29 U.S.C. § 1322. And, in exchange for
paying the difference between those benefits and the plan
assets once the plan terminates, as well as absorbing any
subsequent “decrease in the value of the assets of a . . . plan,”
Congress allocated any post-termination “increase” to the
Corporation. Id. § 1344(c); see Paulsen v. CNF Inc., 559 F.3d
1061, 1073 (9th Cir. 2009) (“ERISA . . . mandates that a post-
termination increase or decrease in the [plan] assets be credited
or suffered by [the Corporation].”). That money is not available
to plan participants.
The pilots argue that statutory trustees of terminated
pension plans have a fiduciary duty to plan participants, and
plan occurring after the date on which the plan is terminated shall be
credited to, or suffered by, the corporation.” H.R. Rep. No. 103-632,
at 204 (Aug. 26, 1994). But the House of Representatives never voted
on the proposed bill.
10
§ 1303(f)(1) authorizes “appropriate equitable relief” if that
duty is breached. The pilots explain that 29 U.S.C.
§ 1132(a)(3)(B) in Title I of ERISA, which governs ongoing
plans, provides for “appropriate equitable relief” as well. In
that context, they continue, the Supreme Court has defined
“equitable relief” as “those categories of relief that were
typically available in equity.” Mertens v. Hewitt Assocs., 508
U.S. 248, 256 (1993). The pilots insist that “[e]quity courts
possessed the power to provide monetary ‘compensation’ for a
loss resulting from a trustee’s breach of duty, or to prevent the
trustee’s unjust enrichment,” CIGNA Corp. v. Amara, 563 U.S.
421, 441 (2011), through a remedy such as disgorgement. And
they point out that other circuits have allowed claims for
disgorgement to proceed under Title I with regard to ongoing
plans. See, e.g., Pender v. Bank of Am. Corp., 788 F.3d 354,
364-65 (4th Cir. 2015); Edmonson v. Lincoln Nat’l Life Ins.
Co., 725 F.3d 406, 419-20 (3d Cir. 2013). But see Rochow v.
Life Ins. Co. of N. Am., 780 F.3d 364, 370-76 (6th Cir. 2015)
(en banc).
According to the pilots, if disgorgement is available as
“appropriate equitable relief” under § 1132(a)(3) to prevent the
unjust enrichment of fiduciaries of ongoing plans, then the
presumption of consistent usage dictates that disgorgement is
also “appropriate equitable relief” under § 1303(f)(1) with
regard to terminated plans. See Envtl. Def. v. Duke Energy
Corp., 549 U.S. 561, 574 (2007) (recognizing the “natural
presumption that identical words used in different parts of the
same act are intended to have the same meaning” (quoting Atl.
Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932))).
In fact, ERISA even equates the fiduciary status of a post-
termination, statutory trustee with that of a fiduciary of an
ongoing plan. See 29 U.S.C. § 1342(d)(3) (“[A] trustee
appointed under this section [in Title IV] . . . shall be, with
respect to the plan, a fiduciary within the meaning of [Title
11
I].”). The pilots conclude that § 1344(c) says nothing about
available remedies if the Corporation breaches its fiduciary
duty and, as a result, should not limit the broad wording of
§ 1303(f)(1).
We are unpersuaded. Section 1344(c) does not apply to
ongoing plans so “the presumption of consistent usage ‘readily
yields’ to context.” Util. Air Regulatory Grp. v. EPA, 134 S. Ct.
2427, 2441 (2014) (quoting Envtl. Def., 549 U.S. at 574).
Ongoing plans are not subject to the same statutory instructions
as terminated plans when it comes to “[a]ny increase or
decrease in the value of the assets.” 29 U.S.C. § 1344(c).
In addition, ERISA repeatedly qualifies the fiduciary
status of post-termination trustees “to the extent that the
provisions of [Title IV] are inconsistent” with fiduciary
requirements. Id. § 1342(d)(3). Requiring the Corporation to
disgorge a post-termination increase in the value of plan assets
flatly contradicts § 1344(c). By statute, the pilots are entitled to
their guaranteed benefits, while Congress directed that any
post-termination increase or decrease in the value of plan assets
should go to the Corporation. The pilots cannot circumvent that
decision under the heading of equitable relief. In other words,
disgorgement would not be “appropriate” here. Id.
§ 1303(f)(1).
The pilots also claim that “duties imposed on the statutory
trustee do not fall by the wayside just because the
[Corporation], and not a private party, becomes the trustee.”
Wilmington Shipping Co. v. New Eng. Life Ins. Co., 496 F.3d
326, 337 (4th Cir. 2007). They reason that the Corporation
should not be able to escape the liability for its misdeeds that
would otherwise apply to a private trustee. Underlying this
argument is an assumption that the pilots would be entitled to
any post-termination increase in the value of plan assets if a
12
private party, and not the Corporation, were the trustee in this
case. But nothing in § 1344(c) suggests that the identity of the
statutory trustee affects who takes gains and losses after the
plan terminates. They all go to the Corporation. The pilots
cannot have the increase, and they presumably would not want
the decrease, regardless of who acts as statutory trustee of the
terminated Delta Plan.
The pilots’ request for post-termination investment gains
is fundamentally flawed. Because § 1344(c) does not depend
on whether the Corporation acts as statutory trustee of the
terminated plan, any post-termination change in the value of
plan assets must be “credited to, or suffered by” the
Corporation in its capacity as guarantor. 29 U.S.C. § 1344(c).
This makes sense: Each participant’s benefits are calculated at
the time of plan termination and shielded from additional loss
by the Corporation. If plan assets increase in value, the
Corporation is likewise credited with that gain. The
Corporation assumes this responsibility as guarantor of certain
plan benefits. But the pilots sue the Corporation for fiduciary
breach in its capacity as statutory trustee. See Am. Compl. ¶ 64,
J.A. 300; 29 U.S.C. § 1342(d)(3) (“Except to the extent
inconsistent with the provisions of [ERISA], . . . a trustee
appointed under this section shall be . . . a fiduciary . . . .”).
The disconnect between suing the Corporation in its role as
statutory trustee, yet requesting a remedy that the Corporation
can supply only in its role as guarantor, further demonstrates
that disgorgement is inconsistent with the statutory scheme for
terminated pension plans and therefore not “appropriate
equitable relief.” See K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988) (“In ascertaining the plain meaning of the
statute, the court must look to the particular statutory language
at issue, as well as the language and design of the statute as a
whole.”).
13
Finally, the district court distinguished between assets
properly held by the statutory trustee and assets held in breach
of a fiduciary duty. Lewis, 197 F. Supp. 3d at 26; accord Lewis,
2017 WL 7047932, at *3. If the statutory trustee retains plan
assets improperly, the argument goes, § 1344(c) simply does
not apply and plan participants can recover any post-
termination increase. The pilots repeat that argument here,
suggesting it avoids any tension between the broad wording of
“appropriate equitable relief” in § 1303(f)(1) and the directive
in § 1344(c) that any post-termination increase or decrease in
the value of plan assets goes to the Corporation.
We do not see this distinction in § 1344(c). And “given the
express language of the statute” allocating post-termination
gains and losses to the Corporation, we decline to create an
“implied exception” to those unambiguous terms. Bennett v.
Arkansas, 485 U.S. 395, 397-98 (1988). Indeed, § 1344(c)
allocates to the Corporation “any” post-termination increase in
the value of plan assets. “[T]he expansive word ‘any’ and the
absence of restrictive language” promotes a sweeping
application of that provision. Ali v. Fed. Bureau of Prisons, 552
U.S. 214, 219 (2008). By contrast, we are reluctant to expand
the scope of “appropriate equitable relief” in a way that would
impose trustee liability on the Corporation in its role as
guarantor.
This does not mean the pilots lacked possible remedies for
their alleged injuries. Both parties agree that other forms of
equitable relief are generally available in cases of fiduciary
breach, including removal of the Corporation as statutory
trustee of the terminated plan. See, e.g., Pineiro v. PBGC, 318
F. Supp. 2d 67, 94 (S.D.N.Y. 2003); cf. 29 U.S.C. § 1109(a)
(allowing for removal of an ongoing-plan fiduciary). And the
pilots have been able to challenge their benefit determinations,
although the district court rejected those claims on the merits.
14
But recovering the post-termination increase in the value of
plan assets is not an available remedy where, as here, the
limitation of § 1344(c) applies.
III
We reverse the district court’s ruling that disgorgement is
an available remedy against the Corporation and we remand to
the district court for further proceedings consistent with this
opinion.2
So ordered.
2
In their petition asking that we amend the opinion, the pilots
assert that their amended complaint—specifically, the fiduciary
breach claim—seeks remedies in addition to disgorgement, which
the pilots hope to pursue on remand. See Pet. 6-11. The Corporation
responds that the fiduciary breach claim seeks only disgorgement,
the pilots have not pursued additional remedies throughout “multiple
years of litigation,” and the panel “should not resuscitate the
fiduciary breach claim” “for reasons [the pilots] did not advance in
the district court.” Resp. 2, 8. Our “normal rule” is to avoid passing
on an issue that the district court has not fully addressed, Liberty
Prop. Tr. v. Republic Props. Corp., 577 F.3d 335, 341 (D.C. Cir.
2009), and remand is particularly appropriate when the issue hinges
on the proper construction of the available remedies in litigation over
which the district court long presided, see Blessing v. Freestone, 520
U.S. 329, 345-46 (1997) (remanding because “the complaint is less
than clear” with regard to the rights asserted and the specific relief
sought, and that “defect is best addressed by sending the case back
for the District Court to construe the complaint in the first instance,
in order to determine exactly what rights, considered in their most
concrete, specific form, respondents are asserting”). Therefore, we
remand the matter to the district court for further proceedings
consistent with this opinion, and specifically to determine in the first
instance whether the amended complaint seeks remedies for the
alleged fiduciary breach in addition to disgorgement. Of course the
implications of the opinion’s statutory analysis remain unaltered.