No. 05-10235-BB

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

MARK POPOWSKI, as Fiduciary of the United Distributors, Inc.
Employee Health Benefit Plan, and THE COMMERCE GROUP,
Third Party Administrator of the United Distributors Inc.
Employee Health Benefit Plan,

Plaintiffs Appellants,
v.
DEBORAH PARROTT,
Defendant Appellee.

Appeal from the United States District Court
for the Northern District of Georgia

BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION
AS AMICUS CURIAE IN SUPPORT OF APPELLEE
AND IN SUPPORT OF AFFIRMANCE

CHARLES M. CORK, III
830 Mulberry Street
Suite 102
Macon, Georgia 31201
(478) 750-8905
Attorney for Amicus Curiae

Docket No. 05-10235-BB
Mark Popowski, et al. v. Deborah Parrott
Certificate of Interested Persons
The undersigned counsel for Amicus Curiae Georgia Trial Lawyers Association certifies that he is aware of no persons other than those listed by Appellants who have a direct interest in the outcome of this particular case.

Table of Contents
Certificate of Interested Persons C1 of C1
Table of Contents i
Table of Citations iii
Statement of the Issues 1
Summary of the Argument 1
Argument and Citations of Authority 3
I. ERISA disallows enforcement of reimbursement terms in an ERISA-governed plan by limiting remedies for plan fiduciaries to equitable relief. 3
A. The correct interpretation of Knudson: Since not all nominally equitable relief was “typically available in equity,” 29 U.S.C. § 1132(a)(3) does not permit equitable relief for garden variety breach of contract claims. 3
B. Why other interpretations of Knudson are wrong: Rephrasing the Knudson dissent and overlooking the basis of the suit. 10
II. Equitable relief generally, and constructive trusts specifically, were not “typically available” to enforce health plan reimbursement provisions when ERISA was enacted. 13
III. Relief under 29 U.S.C. § 1132(a)(3) must be “appropriate” in terms of the relief which Congress allowed, and disallowed, in ERISA. 15
Conclusion 19
Certificate of Service 21

Table of Citations
Federal Cases
Admin. Comm. of the Wal Mart Assocs. Health & Welfare Plan v. Willard,
393 F.3d 1119 (10th Cir. 2004) 12
Admin. Comm. of the Wal Mart Stores, Inc. v. Varco, 338 F.3d 680
(7th Cir. 2003) 12
Amos v. Blue Cross Blue Shield, 868 F.2d 430 (11th Cir. 1989) 17
Bishop v. Osborn Transp., Inc., 838 F.2d 1173 (11th Cir. 1988) 17
Bombardier Aero. Emple. Welfare Benefits Plan v. Ferrer, Poirot &
Wansbrough, P.C., 354 F.3d 348 (5th Cir. 2003) 12
Carpenters Health & Welfare Trust v. Vonderharr, 384 F.3d 667
(9th Cir. 2004) 4
Community Health Plan of Ohio v. Mosser, 347 F.3d 619 (6th Cir. 2003) 3
Community Ins. Co. v. Morgan, 54 Fed. Appx. 828 (6th Cir. 2002) 3
Coyne & Delany Co. v. Blue Cross & Blue Shield, 102 F.3d 712
(4th Cir. 1996) 16
Gerosa v. Savasta & Co., 329 F.3d 317 (2d Cir. 2003), cert. denied,
540 U.S. 967 and 540 U.S. 1074 (2003) 8
Great West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) 1, 3 13, 16, 17
Howard v. Parisian, Inc., 807 F.2d 1560 (11th Cir. 1987) 17
Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065 (11th Cir. 2004) 16
Local 109 Retirement Fund v. First Union Nat’l Bank, 57 Fed. Appx. 139
(4th Cir. 2003) 8
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985) 18
McRae v. Seafarers’ Welfare Plan, 920 F.2d 819 (11th Cir. 1991) 17
Mertens v. Hewitt Assoc., 508 U.S. 248 (1993) 4, 6, 8, 18, 19
Primax Recoveries, Inc. v. Young, 83 Fed. Appx. 523 (4th Cir. 2003) 12
Providence Health Plan v. McDowell, 361 F.3d 1243 (9th Cir. 2004) 4
Qualchoice, Inc. v. Rowland, 367 F.3d 638 (6th Cir. 2004) 3
Sheet Metal Local #24 Anderson, Trustee v. Newman, 35 Fed. Appx. 204
(6th Cir. 2002) 4
Unicare Life & Health Ins. Co. v. Saiter, 37 Fed. Appx. 171 (6th Cir. 2002) 4
Varity Corp. v. Howe, 516 U.S. 489 (1996) 15
Westaff(USA) Inc. v. Arce, 298 F.3d 1164 (9th Cir. 2002), cert. denied
537 U.S. 1111 (2003) 4

State Cases
American Chain & Cable Co., Inc. v. Brunson, 157 Ga. App. 833,
278 S.E.2d 719 (1981) 15
Anderson v. Anderson, 12 Ga. App. 706, 78 S.E. 271 (1913) 14
Central R. & B. Co. v. Brunswick & W. R. Co., 87 Ga. 386, 13 S.E. 520
(1891) 14
Fouché v. Morris, 112 Ga. 143, 37 S.E. 182 (1900) 15
Southern General Ins. Co. v. Ezekiel, 213 Ga. App. 665, 445 S.E.2d 807
(1994) 15
Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306,
147 S.E.2d 860 (1966) 15

Federal Statutes
29 U.S.C. § 1132 1, 5, 6, 17, 18
29 U.S.C. § 1132(a)(1)(B) 16
29 U.S.C. § 1132(a)(3) 1 3, 5 7, 11, 15, 17, 19

State Statutes
OCGA § 13 8 2 (a) (2) 14
OCGA § 16 10 95 14
OCGA § 44-12-24 14

Other Authorities
Roger M. Baron, Public Policy Considerations Warranting Denial of Reimbursement to ERISA Plans, 55 MERCER L. REV. 595 (2004) 14

 Statement of the Issues
Whether, in 29 U.S.C. § 1132(a)(3), Congress intended to allow ERISA-governed welfare benefit plan fiduciaries to enforce reimbursement terms of the plans through the means of constructive trusts on the traceable proceeds of tort lawsuits when Congress forbade such plans from seeking any legal relief to enforce such terms.
Summary of the Argument
Two lines of authority have emerged concerning the ability of an ERISA-governed welfare benefit plan to seek reimbursement of its payments when a beneficiary recovers in a tort lawsuit. Correctly interpreting the Supreme Court’s decision in Great West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), the Sixth and Ninth Circuits hold that such suits seek essentially legal relief and that they are barred by 29 U.S.C. § 1132, which provides only equitable relief to plan fiduciaries. Incorrectly understanding dicta in Knudson, the other Circuits that have reached the issue agree that Congress does not allow ERISA plans to enforce such terms by a simple breach of contract suit, but they hold that Congress authorized plans to get reimbursement through the convoluted means of imposing constructive trusts on whatever traceable proceeds of the suit can be located.

The Sixth and Ninth Circuits correctly understand Knudson, which reaffirmed the Supreme Court’s earlier decisions and held that the sort of equitable relief provided by 29 U.S.C. § 1132(a)(3) is relief that was “typically available at equity.” This excludes not just legal relief, such as a judgment enforcing the reimbursement term of this plan, but apparently equitable relief (such as injunctions and constructive trusts) that was not provided by equity for enforcing contract terms such as the reimbursement term at issue here. The other Circuits erroneously overlook this consistent limitation on 29 U.S.C. § 1132(a)(3).
Neither the parties nor the other Circuits have found case authority showing that constructive trusts were “typically available at equity” to enforce contract provisions like the reimbursement term at issue here. This is because, until recently, health plans were not allowed to enforce reimbursement terms at all, by law or by equity. Indeed, the enforcement of such terms would constitute the common law crimes of champerty and maintenance.
Neither the parties nor the other Circuits have found any hint of legislative intent to authorize only a convoluted, often ineffectual, equitable remedy for plans seeking reimbursement of their payments. Instead, the limitation of 29 U.S.C. § 1132(a)(3) to “appropriate” equitable relief requires giving effect to the Congressional intent to deny plans any straightforward right to enforce reimbursement terms.

Argument and Citations of Authority
I. ERISA disallows enforcement of reimbursement terms in an ERISA-governed plan by limiting remedies for plan fiduciaries to equitable relief.

This part of the brief will show that the Sixth Circuit and Ninth Circuit are correct in disallowing enforcement of reimbursement provisions in ERISA plans because they are consistent with the history of the Supreme Court’s interpretation of 29 U.S.C. § 1132(a)(3), whereas the other Circuits misread Knudson’s discussion by overlooking or ignoring the significantly narrow test for what counts as ‘equitable’ under Knudson.
A. The correct interpretation of Knudson: Since not all nominally equitable relief was “typically available in equity,” 29 U.S.C. § 1132(a)(3) does not permit equitable relief for garden variety breach of contract claims.

The Sixth Circuit has consistently held that reimbursement and subrogation claims are simply attempts to get legal relief in accordance with the plan and has denied that any can be sought for reasons outlined below. Qualchoice, Inc. v. Rowland, 367 F.3d 638, 648-50 (6th Cir. 2004) (any claim would be for legal restitution rather than equitable restitution because the source of the duty was a contract to pay money); Community Health Plan of Ohio v. Mosser, 347 F.3d 619 (6th Cir. 2003) (subrogation not available to recover payments from plan participant); Community Ins. Co. v. Morgan, 54 Fed. Appx. 828 (6th Cir. 2002) (reimbursement claim was for legal relief and thus invalid); Unicare Life & Health Ins. Co. v. Saiter, 37 Fed. Appx. 171 (6th Cir. 2002) (same); Sheet Metal Local #24 Anderson, Trustee v. Newman, 35 Fed. Appx. 204 (6th Cir. 2002) (same).
The same is true of the Ninth Circuit, the source of the decision affirmed in Knudson.
Actions by ERISA fiduciaries seeking to enforce an ERISA plan’s contractual reimbursement provisions do not fall within § 1132(a)(3). ... The remedies of restitution and the imposition of a constructive trust are available under § 1132(a)(3), but only as true equitable remedies and provided the traditional requirements of fraud or wrong doing are satisfied. ... The actions asserted by the [plan] are nothing more than garden variety legal claims for contractual restitution that are not cognizable under ERISA.

Carpenters Health & Welfare Trust v. Vonderharr, 384 F.3d 667, 672, 673 (9th Cir. 2004) (emphasis added); Providence Health Plan v. McDowell, 361 F.3d 1243, 1248 (9th Cir. 2004) (same); Westaff(USA) Inc. v. Arce, 298 F.3d 1164, 1166 (9th Cir. 2002), cert. denied 537 U.S. 1111 (2003) (“In determining whether an action for equitable relief is properly brought under ERISA, we look to the ‘substance of the remedy sought ...rather than the label placed on that remedy.’ [Cits.] [The plan] is seeking to enforce a contractual obligation for the payment of money, a classic action at law and not an equitable claim”).

These interpretations of Knudson are correct, as the following close look at Knudson will show. In short, Knudson reiterated the holding of Mertens v. Hewitt Assoc., 508 U.S. 248 (1993), that the label given to plaintiff’s relief was insignificant and that the real issue is whether the relief sought is truly equitable, meaning “typically available in equity.” The parts of the Knudson opinion relied upon by plaintiff here were written to show, by contrast, that the relief sought in Knudson was legal, not equitable. Those parts do not purport to show that a constructive trust would be relief “typically available in equity” for reimbursement of health payments on contracts like the present one.
In Knudson, as here, the plan sought nominally equitable relief, i.e., “injunctive and declaratory relief” and “restitution” to enforce the reimbursement clause of the plan, 534 U.S. at 208, 212. Such relief was denied by the Ninth Circuit because “judicially decreed reimbursement for payments made to a beneficiary of an insurance plan by a third party is not equitable relief and is therefore not authorized by § 502(a)(3),” id., 209, on which point the Supreme Court granted certiorari and affirmed.

Although the language of 29 U.S.C. § 1132(a)(3) would, at first blush, seem to authorize any nominally equitable relief, the Supreme Court has consistently held that its language, in the context of the rest of § 1132, should be read more narrowly “to contain the limitations upon its availability that equity typically imposes,” since “with lawyerly inventiveness,” any suit for legal relief could be phrased in terms of a suit for equitable relief. Knudson, 534 U.S. at 211, n.1. Therefore, the Court has “rejected a reading of the statute that would extend the relief obtainable under § 502(a)(3) to whatever relief a court of equity is empowered to provide in the particular case at issue (which could include legal remedies that would otherwise be beyond the scope of the equity court’s authority).” Knudson, at 210, citing Mertens v. Hewitt Assoc., 508 U.S. 248, 257-58 (1993). Instead, the Court has concluded that 29 U.S.C. § 1132(a)(3) is limited to “the categories of relief that were typically available at equity.” Knudson at id.; Mertens, 508 U.S. at 256 (original emphasis).
Therefore, even quintessentially equitable remedies such as injunctions are not necessarily available under 29 U.S.C. § 1132(a)(3). In particular, “an injunction to compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, was not typically available in equity.” Knudson, 534 U.S. at 210 211. Because a breach of contract suit typically provided an adequate remedy at law, equitable relief for contract obligations was available only in very narrow circumstances:

Those rare cases in which a court of equity would decree specific performance of a contract to transfer funds were suits that, unlike the present case, sought to prevent future losses that were either incalculable or would be greater than the sum awarded. ... Typically, however, specific performance of a contract to pay money was not available in equity.

Id., at 211. Specific performance of a contract debt is precisely the goal of the present suit, and it is not available under ERISA because it is not “typically available in equity.” For the same reasons that injunctions and specific performance were not available in equity to compel payment under a contract, a constructive trust is also unavailable.
The conclusion that must be drawn from this discussion is that, although 29 U.S.C. § 1132(a)(3) authorizes a plan to seek “other appropriate equitable relief” to enforce plan terms, a plan cannot seek injunctive relief or specific performance (both rejected in Knudson) or a constructive trust (here) in order to enforce a simple contractual duty to pay. Though such relief is nominally equitable, it is really only legal relief.
A claim for money due and owing under a contract is quintessentially an action at law. Almost invariably suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for money damages, as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant’s breach of legal duty. And money damages are, of course, the classic form of legal relief.

Id., 210 (punctuation and citations omitted); see also id., 220, calling this “the essentially legal relief” that the plan seeks). The label is insignificant.

Although they often dance around the word, what petitioners in fact seek is nothing other than compensatory damages monetary relief for all losses their plan sustained as a result of the alleged breach of fiduciary duties. Money damages are, of course, the classic form of legal relief. [Cits.]

Mertens, 508 U.S. at 255 (original emphasis). “In determining the propriety of a remedy, we must look to the real nature of the relief sought, not its label.” Gerosa v. Savasta & Co., 329 F.3d 317, 321 (2d Cir. 2003), cert. denied, 540 U.S. 967 and 540 U.S. 1074 (2003). “A plaintiff’s decision to label his claim as one seeking traditional forms of equitable relief is not dispositive.” Local 109 Retirement Fund v. First Union Nat’l Bank, 57 Fed. Appx. 139, 140 (4th Cir. 2003).
The requirement that relief be “typically available in equity” informs Knudson’s discussion of restitutionary relief. Id., 212-18. At the very outset of this discussion, and framing all the subsequent discussion, the Court distinguished between legal and equitable restitution claims and held that the difference “depends on the basis for the plaintiff’s claim and the nature of the underlying remedies sought.” Id., 213 (emphasis added, punctuation omitted). Therefore, a Court must determine what the real relief sought is (a contract debt to repay), as opposed to the label plaintiff used (constructive trust).

The reasons for finding the relief sought in Knudson to be legal restitution apply to the relief sought in the present case. Restitution at law applied where “the plaintiff could not assert title or right to possession of particular property, but ... nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him,” id., 213 (punctuation omitted). Legal restitution applies where, as here, the real basis of plaintiff’s claim is a mere contractual debt:
The basis for petitioners’ claim is not that respondents hold particular funds that, in good conscience, belong to petitioners, but that petitioners are contractually entitled to some funds for benefits that they conferred. The kind of restitution that petitioners seek, therefore, is not equitable the imposition of a constructive trust or equitable lien on particular property but legal the imposition of personal liability for the benefits that they conferred upon respondents.

Id., 214. The Court thus looked at the basis of the claim, which was a mere contract debt there as here, and looked at the underlying remedy sought, payment of that debt, and ignored the nominally equitable relief that the plan sought.
The same analysis applies here. The basis of claims such as the plan’s here is a simple debt created by the plan’s contractual language that requires reimbursement. The underlying remedy of the plan is simply enforcement of that debt, whether the nominal remedy is an action at law for breach of contract, an injunction to compel payment, specific performance, or constructive trust.
The Sixth and Ninth Circuits have faithfully followed the actual reasoning of Knudson. This Court should do likewise.

B. Why other interpretations of Knudson are wrong: Rephrasing the Knudson dissent and overlooking the basis of the suit.

The dictum in Knudson on which the plan here relies, and which misled several Circuits to approve limited constructive trust relief to ERISA plans seeking reimbursement, is this:
[A] plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession. ... Thus, for restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.

Id., 213, 214 (emphasis added). These other Circuits have erred in supposing that a plan could convert a claim to enforce a contract debt that Congress disallows into a valid claim for equitable restitution simply by declining to seek personal liability and requesting only in rem relief.

The quoted passage, correctly understood, highlights the vast difference between the legal restitution claims made in Knudson (and here) and the narrow class of allowable equitable restitution claims seeking recovery of “particular” or “specific” property in the defendant’s possession. Id., 213, 215. The key point is that plaintiff’s equitable right to this particular property, the reason it “belongs in good conscience to the plaintiff,” must be based on something more than a mere contract debt because Knudson defined this equitable kind of restitution as “[i]n contrast” with legal restitution and held it inapplicable when “the plaintiff’s claim is only that of a general creditor” (as here), in which case “the plaintiff cannot enforce a constructive trust of or an equitable lien upon other property of the defendant.” Id., 213-14. Contract debt, which is the sole basis of the plaintiff’s claim here, is not sufficient to warrant equitable restitution. Equitable restitution was not “typically available in equity” for repayment of contract debts.

The Circuits that have misread this text as authorizing constructive trust relief have either overlooked or insufficiently appreciated the Supreme Court’s repeated rejection of the notion that the requested relief (as opposed to the real or underlying relief) is significant. The effect of those rulings is that, by simply declining legal relief and requesting only a “constructive trust or equitable lien,” the plaintiffs in such cases can get relief that Congress has otherwise denied under other remedial theories. Those Circuits thus commit the error that the Knudson majority found that the dissenting opinions committed. Id., 216. The majority rejected Justice Ginsburg’s method of “distinguishing legal from equitable relief [in terms of] the ‘substance of the relief requested,’” because it failed to look “to the conditions that equity attached to its provision.” Id. The majority found that both dissenting opinions would lead to the “same untenable conclusion,” namely that “§ 502(a)(3)(A)’s explicit authorization of injunction, which it identifies as a form of equitable relief, permits (what equity would never permit) an injunction against failure to pay a simple indebtedness.” Id. Since, historically, equity would never permit an injunction or other equitable relief against “failure to pay a simple indebtedness,” ERISA simply does not allow equitable relief of any sort to coerce reimbursement, there or here.

The core error of the Fourth Circuit in Primax Recoveries, Inc. v. Young, 83 Fed. Appx. 523, 525 (4th Cir. 2003), the Seventh Circuit in Admin. Comm. of the Wal Mart Stores, Inc. v. Varco, 338 F.3d 680, 687 (7th Cir. 2003), the Fifth Circuit in Bombardier Aero. Emple. Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, P.C., 354 F.3d 348, 356 (5th Cir. 2003), and the Tenth Circuit in Admin. Comm. of the Wal Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1122 (10th Cir. 2004), is that they leap to the conclusion that tort recoveries belong “in good conscience” to the plan simply because the plan calls for reimbursement from the recovery. Without any warrant from Knudson or any other independent argumentation, those Circuits thereby liken payments made by or on behalf of tortfeasors, in discharge of their liabilities under state law, to the class of cases for which traditionally constructive trusts are proper, e.g., overpayments by the plan of its own money, embezzlement or fraud in obtaining the plan’s money, and similar transfers. They do not explain how the equitable conscience can wear blinders and so overlook the fact that the tort payments belong in good conscience and law to the victim as compensation for the victim’s losses – otherwise the victim would not have standing to recover them. None of them add new analysis that would prove that constructive trusts were typically available in equity to enforce reimbursement provisions or to explain how their positions differed from the dissent in Knudson.

II. Equitable relief generally, and constructive trusts specifically, were not “typically available” to enforce health plan reimbursement provisions when ERISA was enacted.

There are substantial reasons why equity did not, historically or typically, grant relief to require insured persons to reimburse their health insurance plans upon receiving recoveries from tortfeasors.
When a decade long congressional study (which preceded the adoption of ERISA in 1974) was undertaken, the concept of “reimbursement” for medical expense claims was virtually nonexistent. This is because subrogation itself on personal injury claims had been disallowed by all courts until only recently. Some jurisdictions have never permitted subrogation or reimbursement for medical expense claims. Even today, some jurisdictions, which initially decided to permit subrogation on medical expense claims, have since reconsidered the appropriateness of doing so. These jurisdictions have come to conclude, either by judicial decision or by statute, that subrogation and reimbursement on medical expense claims is inappropriate and should not be allowed.

... A long history of subrogation exists in connection with property insurance and property damage claims, but at common law, subrogation was not permitted on personal injury claims. A personal injury claim could not be “assigned” at common law and, therefore, efforts to have subrogation on personal injury claims ran afoul of this principle.

The effort to seek subrogation on personal injury claims also violated the common law prohibition against splitting a cause of action.

Roger M. Baron, Public Policy Considerations Warranting Denial of Reimbursement to ERISA Plans, 55 MERCER L. REV. 595, 603, 613 (2004) (footnotes omitted).

This historical analysis is true of Georgia as well. Until the mid 1980s, Georgia had a strong statutory policy that prohibited any assignment of personal injury claims. OCGA § 44-12-24. This statute codified common law prohibitions against barratry, champerty, and maintenance, i.e., against encouraging the victim to sue, buying the victim’s right to sue, and financing the victim’s suit in order to take a share of the proceeds. Accordingly, courts invalidated attempts of strangers to finance litigation in order to receive a share, Anderson v. Anderson, 12 Ga. App. 706, 712, 78 S.E. 271 (1913), a defendant’s paying a sum to the plaintiff which was to be reimbursed from a recovery against a joint tortfeasor, American Chain & Cable Co., Inc. v. Brunson, 157 Ga. App. 833, 834, 278 S.E.2d 719 (1981), a plaintiff’s assignment of the proceeds of a lawsuit, Fouché v. Morris, 112 Ga. 143, 37 S.E. 182 (1900), and most pertinently, an insurance policy provision that granted an insurer the right to subrogate to the plaintiff’s rights of recovery for medical expenses. Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306, 147 S.E.2d 860 (1966); and Southern General Ins. Co. v. Ezekiel, 213 Ga. App. 665, 445 S.E.2d 807 (1994).
Since equity did not typically provide relief to compel reimbursement of health expenses from tort recoveries, 29 U.S.C. § 1132(a)(3) provides no basis for doing so.

III. Relief under 29 U.S.C. § 1132(a)(3) must be “appropriate” in terms of the relief which Congress allowed, and disallowed, in ERISA.

The Supreme Court has also found that the word “appropriate” in 29 U.S.C. § 1132(a)(3)’s “other appropriate equitable relief” is a limitation. Whether equitable relief is “appropriate” depends on the ERISA context. As equity follows the law in other contexts, what counts as “other appropriate equitable relief” must “respect the ‘policy choices reflected in the inclusion of certain remedies and the exclusion of others.’” Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) (emphasis added).

Of particular relevance, then, is 29 U.S.C. § 1132(a)(1)(B), which gives the right to recover debts under the contractual terms of the plan only to participants or beneficiaries, not to fiduciaries, most likely for historical reasons developed in the previous section of this brief. The rights given under this section “are akin to common law breach of contract causes of action,” Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065, 1069 (11th Cir. 2004), and Congress did not intend for fiduciaries to have similar rights to enforce contract terms of the plan. Coyne & Delany Co. v. Blue Cross & Blue Shield, 102 F.3d 712, 714 (4th Cir. 1996) (“If Congress had wanted to enable fiduciaries to recover benefits on behalf of participants and beneficiaries, it could have done so easily by including them in section 502(a)(1)(B)”). Likewise, if Congress had wanted to enable fiduciaries to recover the repayment of benefits under the terms of such plans, it could have easily written this provision to allow such a recovery. The granting of a right to enforce plan terms for legal or equitable relief to beneficiaries under § 1132(a)(1)(B), but not to fiduciaries, shows that nominally “equitable” relief is not “appropriate” if it would have the effect of granting legal relief that Congress chose to deny to fiduciaries. The Supreme Court in Knudson used precisely this reasoning to reject the plan’s effort to construe 29 U.S.C. § 1132(a)(3) to allow it to obtain relief “without reference to whether the relief sought is legal or equitable.” 534 U.S. at 220-221 & n. 5. Relief is therefore “appropriate” only if it is truly equitable. The relief sought in this case is really legal relief, and is not “appropriate.”

This is especially significant because the fiduciaries argue that the Sixth Circuit’s interpretation of Knudson would render ERISA “meaningless” because it would provide “no equitable relief for a plan.” Appellant Br., 29. Although the fiduciaries’ concern is understandable, the fiduciaries are on the same footing with numerous beneficiaries who have attempted to use 29 U.S.C. § 1132(a)(3) as a means of providing a remedy that Congress denied them in the rest of 29 U.S.C. § 1132. See, e.g., McRae v. Seafarers’ Welfare Plan, 920 F.2d 819, 821 (11th Cir. 1991) (29 U.S.C. § 1132(a)(3) does not provide for extra-contractual damages); Bishop v. Osborn Transp., Inc., 838 F.2d 1173 (11th Cir. 1988) (29 U.S.C. § 1132(a)(3) does not authorize punitive damages against plan fiduciary who purposefully altered employee’s records to defeat entitlement to benefits); Amos v. Blue Cross Blue Shield, 868 F.2d 430, 433 (11th Cir. 1989) (denial of punitive relief by ERISA removes an historical disincentive to insurance company misbehavior, but any change must come from Congress); Howard v. Parisian, Inc., 807 F.2d 1560, 1565 (11th Cir. 1987) (the gap created by ERISA’s denial of relief and preemption of state law claim was for Congress to fill).
The reason for these results, and for affirming the judgment below, is that Supreme Court interprets 29 U.S.C. § 1132 as a listing of all possible remedies for ERISA-related claims and as a rejection of any other possible causes of action, such as the reimbursement claim in this case. The “six carefully integrated civil enforcement provisions ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) (original emphasis) (construing Congress’s failure to provide for extracontractual damages for fiduciary violations as a deliberate omission); Mertens v. Hewitt Assoc., 508 U.S. 248, 254 (1993) (ERISA permits no suits for money damages against nonfiduciaries, even those who knowingly participate in the fiduciary’s breach of fiduciary duty). The negotiations leading to the enactment of ERISA “resolved innumerable disputes between powerful competing interests – not all in favor of potential plaintiffs.” Id, 508 U.S. at 262. Therefore, if the plaintiff’s claim does not fit within 29 U.S.C. § 1132, Congress has rejected it. Id., 255 n. 5 (ERISA must authorize the suit; it is irrelevant that ERISA does not bar it).

There is no evidence in the text of 29 U.S.C. § 1132 that Congress authorized any right of reimbursement by welfare benefit plans, let alone a right of reimbursement through such a convoluted and limited remedial vehicle as a constructive trust on assets that would have to be traced to tort settlement proceeds. The historical reasons why such a right would not have crossed Congress’s mind in 1974 are addressed in the previous section of this brief. Because Congress did not provide for this right, it rejected it. Mertens, 508 U.S. at 255 n. 5
Conclusion
For the foregoing reasons, the Court should hold that 29 U.S.C. § 1132(a)(3) does not allow any nominally equitable relief unless it passes the Supreme Court’s test: whether the sort of relief was traditionally available in equity for the particular type of claim in issue and, accordingly, that constructive trusts are not available to enforce the reimbursement provisions of any ERISA-governed welfare benefit plan.
Respectfully submitted, this March 30, 2005.

CHARLES M. CORK, III
Ga. Bar No. 187915
830 Mulberry Street
Suite 102
Macon, Georgia 31201
(478) 750-8905
(478) 750-8906 (Facsimile)

Certificate of Compliance
Pursuant to FRAP 32(a)(7)(c), I hereby certify that this brief complied with the type-volume limitation of FRAP 32(a)(7)(B)(i). The brief is printed in 14 point Times New Roman font, a proportionately spaced font, and contains 5,904 words.

 CHARLES M. CORK, III

Certificate of Service
Pursuant to FRAP 25(d) and 11th Cir. R. 28-2(m), the undersigned hereby certifies that the foregoing brief has been served this day upon the following persons at the following addresses:
R. Krannert Riddle, Esq.
Callaway, Braun, Riddle & Hughes
P. O. Box 9150
Savannah, Georgia 31401

Jason R. Schultz, Esq.
34 Peachtree Street, N.W.
Suite 2570
Atlanta, Georgia 30303

CHARLES M. CORK, III
Ga. Bar No. 187915
830 Mulberry Street
Suite 102
Macon, Georgia 31201
(478) 750-8905
(478) 750-8906 (Facsimile)