Jody Rose v. PSA Airlines, Inc.

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                                                PUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                                 No. 21-2207


        JODY ROSE, as Administratrix of the Estate of Kyree Devon Holman,

                     Plaintiff - Appellant,

        v.

        PSA AIRLINES, INC.; PSA AIRLINES, INC. GROUP BENEFIT PLAN; UMR, INC.;
        QUANTUM HEALTH, INC., a/k/a MyQHealth by Quantum; MCMC, LLC,

                     Defendants - Appellees,

        and

        PSA AIRLINES GROUP INSURANCE PLAN; PSA AIRLINES GROUP HEALTH
        BENEFIT PLAN; PSA AIRLINES PLAN B EMPLOYEE BENEFIT PLAN; PSA
        AIRLINES SHARED SERVICES ORG.,

                   Defendants.


        Appeal from the United States District Court for the Western District of North Carolina, at
        Charlotte. Graham C. Mullen, Senior District Judge. (3:19-cv-00695-GCM-DCK)


        Argued: December 9, 2022                                     Decided: September 11, 2023


        Before RICHARDSON, QUATTLEBAUM, and HEYTENS, Circuit Judges.


        Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson
        wrote the opinion, in which Judge Quattlebaum joined. Judge Heytens wrote an opinion
        concurring in part and dissenting in part.
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        ARGUED: Norris Arden Adams, II, ESSEX & RICHARDS, P.A., Charlotte, North
        Carolina, for Appellant.      Edward Joseph Meehan, GROOM LAW GROUP,
        CHARTERED, Washington, D.C.; Brian D. Boone, ALSTON & BIRD LLP, Charlotte,
        North Carolina, for Appellees. ON BRIEF: Caitlin Hale Walton, ESSEX RICHARDS,
        P.A. Charlotte, North Carolina, for Appellant. Ross P. McSweeney, GROOM LAW
        GROUP, CHARTERED, Washington, D.C., for Appellees PSA Airlines, Inc. and PSA
        Airlines, Inc. Group Benefit Plan. Brandon C.E. Springer, ALSTON & BIRD LLP,
        Charlotte, North Carolina, for Appellee UMR, Inc. Rachel Ann Smoot, TAFT
        STETTINIUS & HOLLISTER, LLP, Columbus, Ohio, for Appellee Quantum Health, Inc.
        Victoria Therese Kepes, Alfred Victor Rawl, Jr., GORDON REES SCULLY
        MANSUKHANI LLP, Charleston, South Carolina, for Appellee MCMC, LLC.




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        RICHARDSON, Circuit Judge:

               The Employee Retirement Income Security Act’s § 502(a)(1)(B) allows a

        beneficiary to “recover benefits due to him under the terms of his plan.” And ERISA’s

        § 502(a)(3) allows a beneficiary to sue for “other appropriate equitable relief.” This case

        requires us to answer when—and under what conditions—a plaintiff may seek monetary

        relief under one of those provisions.

               Jody Rose’s son had a rare heart condition. He died at the age of twenty-seven,

        awaiting a heart transplant, which Rose says that Defendants—who administered her son’s

        employer-based health benefits program—wrongfully denied. So she sued on behalf of his

        estate, seeking monetary relief under both § 502(a)(1)(B) and § 502(a)(3). The district

        court dismissed both claims. As to Rose’s (a)(1)(B) claim, the court held that money was

        not one of the “benefits” that her son was owed “under the terms of his plan.” And, as to

        her (a)(3) claim, the court held that her requested monetary relief was too similar to money

        damages and was thus not “equitable.”

               We now affirm in part and vacate in part. The district court correctly held that

        money was not one of the “benefits” that Rose’s son was “due” “under the terms of his

        plan.” So it was right to dismiss her (a)(1)(B) claim. But we must vacate its complete

        dismissal of Rose’s (a)(3) claim.         While the district court correctly noted that

        compensatory, “make-whole” monetary relief is unavailable under § 502(a)(3), it did not

        consider whether Rose plausibly alleged facts that would support relief “typically”

        available in equity. Montanile v. Bd. of Trs., 

 (2016). We thus remand

        for the district court to decide in the first instance whether Rose can properly allege such a

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        theory based on a Defendant’s unjust enrichment, including whether an unjust gain can be

        followed to “specifically identified funds that remain in the defendant’s possession” or to

        “traceable items that the defendant purchased with the funds.” 

 at 144–45

        I.     Factual and Procedural Background

               It was Christmas Eve in 2018 when Rose’s son, Kyree Devon Holman, first found

        out that he had a heart condition called myocarditis. Less than two months later—and only

        a few short weeks after his twenty-seventh birthday—he was dead.

               At the time, Kyree was working as a flight attendant for PSA Airlines, Inc. Like

        many Americans, Kyree received health benefits through his employer. PSA Airlines runs

        a “health and welfare benefit plan” for its employees, governed by ERISA. J.A. 13. The

        Plan is “fully self-funded,” meaning that PSA Airlines “assumes the sole responsibility for

        funding the Plan benefits out of its general assets.” J.A. 13. PSA Airlines is the named

        “Plan Administrator” and “fiduciary” of the Plan. J.A. 14. But a smattering of other

        companies—including UMR, Inc., Quantum Health, Inc., and MCMC, LLC—help PSA

        Airlines provide administrative services, like reviewing benefits claims, for the Plan. 1

               When doctors discovered Kyree’s health condition, they determined that he needed

        a heart transplant to survive and prepared to proceed with surgery as soon as his benefits

        claim was approved. By the second week of January 2019, Kyree’s doctors had submitted

        the required information and had twice requested approval for the surgery. Yet, on January



               1
                The Plan’s terms are not themselves in the record. But because we are at the
        pleading stage, our characterization of the Plan’s terms—like all the facts that we recount
        here—are taken from Rose’s complaint, read in the light most favorable to her.
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        17, Defendants denied his request, asserting that the treatment that he sought was

        experimental. When Kyree pushed for a re-evaluation, his claim was once again denied,

        this time on the grounds that he did not meet certain alcohol-abuse criteria.

               The terms of Kyree’s plan, however, contained no such criteria. So Kyree’s doctors

        appealed once more, noting that Kyree would not survive without a heart transplant. But

        once more—despite realizing the life-or-death nature of the decision—Defendants denied

        Kyree’s request, based on these same supposed criteria.

               By now it was February 1, and time was running short. Kyree’s doctors thus sought

        an “expedited” external claim review, which was conducted by MCMC. Yet, although

        federal law requires “expedited” reviews to be completed within—at most—seventy-two

        hours, see 

(d)(3)(iv) (2019), MCMC treated Kyree’s review as a

        “standard” review to be completed within forty-five days. Kyree died a little over a week

        after submitting his external review application (five days after a decision should have been

        rendered). Ultimately, after completing its review on March 6, MCMC vindicated Kyree,

        overturning the previous claim denials. But it was too little, too late: By then, Kyree had

        been dead for almost a month.

               Rose, as administratrix of Kyree’s estate, sued PSA Airlines, the Plan, UMR,

        Quantum, and MCMC, seeking relief for a wrongful denial of benefits under ERISA

        § 502(a)(1)(B) or, alternatively, for a breach of fiduciary duty under § 502(a)(3). 2 She


               2
                 Subparagraph 502(a)(1)(B) and § 502(a)(3) of ERISA are codified at 

(a)(1)(B) and (a)(3), respectively. But, in keeping with the trend in this practice
        area, we refer to them and the other statutory provisions by their ERISA designation, not
        by their place in the U.S. Code.
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        sought declaratory and injunctive relief, monetary damages, and “appropriate equitable

        relief” including “surcharge, disgorgement, constructive trust, restitution, [and] equitable

        estoppel.” J.A. 40–41. But the district court granted Defendants’ motion to dismiss both

        claims under Rule 12(b)(6). Rose timely appealed that dismissal, which we review de

        novo. See Mays v. Sprinkle, 

 (4th Cir. 2021).

        II.    Background on ERISA

               ERISA governs “employee benefit plans” that cover employees’ retirement

        benefits, death benefits, and, as relevant for this case, health benefits. ERISA has a host

        of provisions, one of which imposes fiduciary duties on those who administer these plans.

        See Varity Corp. v. Howe, 

 (1996).

               If an ERISA fiduciary breaches their fiduciary duty, § 409 makes them liable to the

        plan. And § 502(a)(2) allows plan participants to bring a derivative action to enforce § 409

        and “to obtain recovery for losses sustained by the plan because of breaches of fiduciary

        duties.” In re Mut. Funds Inv. Litig., 

 (4th Cir. 2008).

               But recovery under § 502(a)(2) goes to the plan, not to the beneficiary bringing the

        action. Mass. Mut. Life Ins. Co. v. Russell, 

 (1985). Of course, the

        beneficiary might benefit indirectly by increasing their plan’s assets. Yet if the beneficiary

        wants to recover directly, like Rose does, then she would need to sue under a different

        provision of § 502’s enforcement scheme.

               There are two major provisions to pick from. Subparagraph 502(a)(1)(B) allows a

        “beneficiary” to bring suit “to recover benefits due to [her] under the terms of [her] plan,

        to enforce [her] rights under the terms of the plan, or to clarify [her] rights to future benefits

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        under the terms of the plan.” If that doesn’t provide the beneficiary with the relief that she

        seeks, then she can resort to § 502(a)(3), the enforcement scheme’s “catchall” provision,

        see Varity, 

, which allows a beneficiary to sue “to enjoin any act or practice

        which violates [ERISA] or the terms of the plan,” or “to obtain other appropriate equitable

        relief (i) to redress such violations or (ii) to enforce [ERISA] or the terms of the plan.”

               With that background in mind, we turn to Rose’s claims under § 502(a)(1)(B) and

        § 502(a)(3).

        III.   Subparagraph 502(a)(1)(B) Claim

               Rose’s § 502(a)(1)(B) claim must fail. Plaintiffs seeking relief under § 502(a)(1)(B)

        generally have two options: either (1) pay for the treatment yourself and seek

        reimbursement later, or (2) seek an injunction to force the plan provider to give you the

        treatment. See Aetna Health, Inc. v. Davila, 

 (2004). And these two

        choices are reflected in the statutory text, which says that a plaintiff may sue either “to

        recover benefits due to him under the terms of his plan” (i.e., seek reimbursement—

        “recovery”—of out-of-pocket expenses), or “to enforce his rights under the terms of the

        plan” (i.e., seek an injunction). 3 § 502(a)(1)(B) (emphasis added). But § 502(a)(1)(B) does

        not authorize a plaintiff to seek the monetary cost of a benefit that was never provided.

               The reason is that both provisions of § 502(a)(1)(B) are limited by “the terms of the

        plan.” That “statutory language speaks of ‘enforcing’ the ‘terms of the plan,’ not of


               3
                 Subparagraph 502(a)(1)(B) also allows a plaintiff to sue “to clarify his rights to
        future benefits under the terms of the plan.” 

(a)(1)(B). But because Kyree
        is dead, he has no rights to future health benefits. So the declaratory relief that this
        provision authorizes does not apply.
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        changing them.” CIGNA Corp. v. Amara, 

 (2011) (cleaned up). Though

        the terms of the Plan are not in the record—we are at the pleading stage, after all—Rose

        has not alleged in her complaint that the Plan’s terms contemplated paying money directly

        to Kyree. Instead, Rose alleges that Kyree’s doctors requested that the Plan approve

        coverage for Kyree’s surgery—meaning Kyree, through his doctors, filed a claim with the

        Plan which, if approved, would then pay the doctor to operate on Kyree. So the “benefit”

        that Kyree would be getting under the “terms of the plan” would be the surgery, not a direct

        monetary payment. Perhaps, if he had been able to pay for the costly surgery out-of-pocket,

        then the Plan would have been required to reimburse him. See Davila, 

.

        But that did not happen here.

               In short, Rose does not seek to recover a benefit under the terms of the Plan. She

        seeks to recover the monetary cost of the benefit that was never provided. But that is a

        remedy that § 502(a)(1)(B)—which requires us to enforce the Plan’s terms as written—

        does not allow. While Davila’s choice of remedies (pay now and seek reimbursement, or

        sue for an injunction and wait) may leave plan beneficiaries like Kyree in a bind, we must

        do what the statute commands. And that requires affirming the dismissal of Rose’s

        § 502(a)(1)(B) claim.

        IV.    Paragraph 502(a)(3) Claims

               Because Rose cannot prevail under § 502(a)(1)(B), we must consider whether she

        is entitled to relief under § 502(a)(3), the “catchall” provision of ERISA’s civil




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        enforcement scheme. Varity, 

. 4 That provision allows a plan beneficiary

        to seek an injunction or “other appropriate equitable relief” to either (1) “enforce” ERISA’s

        terms or “the terms of the plan,” or (2) “redress” a violation of those terms.

               The key question that we must answer is whether the relief that Rose seeks—the

        monetary cost of the surgery that her son was wrongfully denied—qualifies as “equitable

        relief” under the statute. As the district court recognized, compensatory damages intended

        to provide “monetary relief for all losses . . . sustained as a result of the alleged breach of

        fiduciary duties” are legal, not equitable, relief. J.A. 85 (quoting Mertens v. Hewitt Assocs.,

        

 (1993)). So the district court was correct not to give her the cost of the

        surgery as compensation for Kyree’s death. But Rose also alleges the defendants have

        been unjustly enriched by keeping the money they should have paid Kyree’s doctors. 5


               4
                  Defendants contended in their briefing that Rose cannot proceed with her
        § 502(a)(3) claim because she also pursued a claim for denial of benefits under
        § 502(a)(1)(B). And it is true that “where Congress elsewhere provided adequate relief for
        a beneficiary’s injury,” the beneficiary cannot also obtain relief under § 502(a)(3) since
        such relief would not be “appropriate.” Varity, 

. But alternative “relief” is
        only “adequate” if the plaintiff’s “injury is redressable elsewhere in ERISA’s scheme.”
        Korotynska v. Metro. Life Ins. Co., 

 (4th Cir. 2006). Rose’s incorrect
        argument that her son’s injury was redressable under § 502(a)(1)(B) does not mean that it
        was. Plaintiffs are allowed to plead in the alternative, “so nothing would have prevented
        [Rose] from suing under both provisions,” § 502(a)(1)(B) and § 502(a)(3). Hayes v.
        Prudential Ins. Co. of Am., 

 (4th Cir. 2023).
               5
                Though Rose frames the relief that she requests under § 502(a)(3) in many ways—
        discussing “surcharge, disgorgement, constructive trust, [and] restitution,” J.A. 40–41—
        the Supreme Court has emphasized that the “labels” for such benefits-based relief are
        unimportant. See Liu v. SEC, 

, 1942–44 (2020) (“[E]quity practice long
        authorized courts to strip wrongdoers of their ill-gotten gains, with scholars and courts
        using various labels for the remedy,” including “accounting,” “restitution,”
        “disgorgement,” and “constructive trust.”). And “[n]o matter the label,” the Court has said,
        (Continued)
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        And—subject to certain limits—monetary relief based on a defendant’s unjust enrichment

        can be “equitable.”

               A.     When is monetary relief “equitable”?

               Courts must often determine whether a plaintiff’s requested relief is “equitable.”

        That is because many federal statutes authorize courts to award “equitable relief” or

        “equitable remedies” to plaintiffs suing under their terms. See Samuel L. Bray, The

        Supreme Court and the New Equity, 

, 1013 n.76 (2015) (listing some

        statutes). Over the past thirty years, the Supreme Court has taken an interest in deciding

        what relief counts as “equitable” under those statutes. The bulk of the Court’s cases, like

        this one, arose under § 502(a)(3) of ERISA. See Mertens v. Hewitt Assocs., 

        (1993); Great-West Life & Annuity Ins. Co. v. Knudson, 

 (2002); Sereboff v.

        Mid Atl. Med. Servs., Inc., 

 (2006); CIGNA Corp. v. Amara, 

        (2011); US Airways, Inc. v. McCutchen, 

 (2013); Montanile v. Bd. of Trs., 

 (2016). But the approach that it developed did not end there. Instead, the Court


        a “profit-based measure of unjust enrichment reflected a foundational principle: “It would
        be inequitable that a wrongdoer should make a profit out of his own wrong.” Id. at 1943
        (cleaned up) (quoting Root v. Railway Co., 

 (1881)). At base, Rose
        argues that it would be inequitable for defendants to benefit—i.e., retain the cost of the
        surgery—because they breached their fiduciary duty to Kyree. So unjust enrichment is the
        allegation we most closely analyze.
               To the extent that Rose seeks “equitable estoppel,” that remedy is plainly
        inapplicable to her case. Estoppel is not a monetary remedy at all. Instead, it is a remedy
        aimed at holding the defendant to their promises when those promises engender good faith
        reliance by the plaintiff. 3 John Norton Pomeroy, A Treatise on Equity Jurisprudence
        § 804, at 189 (Spencer W. Symons ed., 5th ed. 1941). But Rose does not contend that the
        plan’s terms were misrepresented to Kyree, thereby inducing him to give up something;
        instead, her argument is that the actual terms were not followed. So she does not actually
        seek anything resembling “estoppel.”
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        has extended that approach to other statutes too. See Liu v. SEC, 

        (2020) (citing Mertens, Great-West, Amara, and Montanile when considering the meaning

        of “equitable relief” under the Securities Act of 1933).

               The focus of these cases is often on whether a plaintiff’s plea for money is a request

        for an “equitable” remedy or a “legal” remedy. Our focus is the same. To answer that

        question, we first consider—more broadly—what distinguishes legal remedies from

        equitable ones. Then we investigate how to apply this distinction to Rose’s monetary

        claims.

                      1.     The distinction between “legal” and “equitable” remedies

               The term “equitable relief” references the Anglo-American tradition of “the divided

        bench.” Great-West, 

. That is, in both England and the United States, there

        were once separate “courts of law” and “courts of equity.” These courts used different

        procedures, had different substantive rules, and—most critically here—offered different

        remedies. Bray, The New Equity, supra, at 998–99. While the separate courts were

        gradually merged over the course of the nineteenth and twentieth centuries, the distinction

        between “legal” and “equitable” remedies remains salient. Id.

               Untangling the situations when equitable relief was appropriate from those in which

        legal relief was available is difficult. The remedies that courts of equity traditionally

        offered were complicated and nuanced because those courts’ jurisdiction was complicated

        and nuanced as well. But, as a baseline, equity existed only on the backdrop of the law; its

        role was to provide relief where the law was inadequate. See F.W. Maitland, Equity: A

        Course of Lectures 19 (John Brunyante ed., 2d ed. 1936).

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               Sometimes, that meant merely providing different remedies for a given cause of

        action. For instance, perhaps a party suing for breach of contract thought that money

        damages could not compensate them adequately for the breach. So—rather than sue in a

        court of law for money damages—the party could instead choose to sue in equity for

        specific performance. Thus, in a sense, courts of equity shared “concurrent jurisdiction”

        with courts of law over contract disputes. See id. at 18–20; Samuel L. Bray, Equity, Law,

        and the Seventh Amendment, 

, 470 (2022). And we might think that

        the critical distinction between “equitable” and “legal” remedies is that “equitable”

        remedies were offered by equitable courts—but not courts of law—in these concurrent-

        jurisdiction cases.

               Other times, suits were brought in equity because the courts of law didn’t recognize

        a cause of action for them at all. The canonical example is the “law” of trusts—i.e., the

        concept that one person could own legal title to property but be obligated to manage it as a

        fiduciary on behalf of someone else—which was developed in equity. 6 See Bray, Equity,

        Law, and the Seventh Amendment, supra, at 470. Courts of law refused to recognize the

        law of trusts. See R.H. Helmholz, The Early Enforcement of Uses, 

, 1503 & n.2, 1304 & n.5–6 (1979). So trust suits had to be brought in courts of equity,

        making them fall within equity’s “exclusive jurisdiction.” See Bray, Equity, Law, and the


               6
                  It bears stating clearly that the equitable remedy of the constructive trust and the
        more substantive “law” of trusts are quite different. “An express trust and a constructive
        trust are not divisions of the same fundamental concept. They are not species of the same
        genus. They are distinct concepts.” Restatement (First) of Restitution § 160 cmt. a. Our
        references to “trust-specific remedies” do not include constructive trusts but rather refer to
        the remedies, like surcharge, that are attendant and unique to the substantive law of trusts.
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        Seventh Amendment, supra, at 470. One could thus fairly characterize any remedy

        available in these exclusive-jurisdiction cases as an “equitable,” rather than “legal,” remedy

        since it was only available in an equity court.

               This dichotomy meant that courts of equity could offer broader relief within their

        exclusive jurisdiction because they did not have to worry about what relief was available

        in courts of law. Remember, equity steps in where the law runs out. If there is no law,

        then equity can do things that the law would normally cover. But if there is law, then equity

        is excluded from taking certain actions. So, in concurrent-jurisdiction cases, courts of law

        and courts of equity offered notably different relief. That was the whole point of the

        concurrent jurisdiction—to offer uniquely “equitable” remedies.            But in “exclusive

        jurisdiction” cases, like suits for breach of trust, only courts of equity could hear the case,

        and they offered a correspondingly wider range of remedies that often looked a lot like the

        remedies traditionally seen at law.

                      2. Adding money to the picture

               To this point, we have been speaking about historical “remedies” broadly. But it is

        now time to address what matters to these parties: money. While courts of law and equity

        created a dividing line between themselves for claims involving money, that division, like

        everything in this field, is nuanced.

               As first-year law students might learn in their Civil Procedure class, the

        quintessential legal remedy—both before and after the courts of law and equity merged—

        is compensatory damages: money “ordered to be paid to . . . a person as compensation for

        loss or injury.” Damages, Black’s Law Dictionary (11th ed. 2019). And the quintessential

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        equitable remedy is the injunction. (Students might also learn about the equitable remedy

        of specific performance in their Contracts class.) Those students might thus come to think

        that a “legal” remedy is just another term for monetary remedies, while an “equitable”

        remedy simply means non-monetary ones.

               The actual history is less simple. Money does not neatly divide, and never has neatly

        divided, law from equity. There were many non-monetary legal remedies. See Samuel L.

        Bray, The System of Equitable Remedies, 

, 558–62 (2016)

        (discussing, among others, the writs of mandamus, habeas corpus, replevin, and ejectment).

        And, likewise, there were many monetary equitable remedies.             See 

 at 554–55

        (discussing the constructive trust and the equitable lien). Moreover, the types of monetary

        relief available in equity differed depending on whether the suit was within equity’s

        exclusive or concurrent jurisdiction.

               The general proposition that equitable courts could offer broader remedies in

        exclusive-jurisdiction cases than in concurrent-jurisdiction cases carried through to

        monetary remedies. So courts of equity acting in exclusive-jurisdiction cases had a

        relatively free hand to award financial remedies.       At times, they could even order

        defendants to pay “equitable compensation”—in trust cases, called a “surcharge”—which

        is a remedy essentially equivalent to money damages.          Samuel L. Bray, Fiduciary

        Remedies, in The Oxford Handbook of Fiduciary Law 449, 456 (Evan J. Criddle et al. eds.,




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        2019). Like legal damages, “equitable compensation” or “surcharge” subjected the trustee

        to personal liability based on the plaintiff’s losses. 

 at 456–58. 7

               Courts of equity in concurrent-jurisdiction cases could sometimes provide monetary

        relief too, but they were more constrained. Most relevantly, a court of equity could use

        money to remedy “unjust enrichment.” See Bray, The System of Equitable Remedies,

        supra, at 553–56. Unjust enrichment is somewhat self-defining: “A person is unjustly

        enriched if the retention of [a] benefit would be unjust.” Restatement (First) of Restitution

        § 1 cmt. a (1937). Sometimes that benefit was money, and courts of equity could award

        equitable restitution by ordering the unjustly enriched to give that “wrongfully obtained”

        money to its rightful owner either via a constructive trust or an equitable lien. 8 See 1 Dan


               7
                 One “central” remedy in breach-of-trust cases was an “accounting for profits,” an
        “investigative process that culminates in an award to the plaintiff of the defendant
        fiduciary’s profits.” See Bray, Fiduciary Remedies, supra, at 456; see also Bray, Equity,
        Law, and the Seventh Amendment, supra, at 493–94 (describing fiduciary law as “an
        outgrowth of trust law . . . belonging to the exclusive jurisdiction” of equity). In other
        words, if the accounting discovered that the trustee had wrongfully profited off of trust
        property, then a beneficiary could sue him for the profits through the mechanism of an
        accounting. And, in contrast to most equitable monetary remedies, an accounting subjected
        the trustee to personal liability, as tracing the misappropriated property was not required.
        See Bray, Fiduciary Remedies, supra, at 454. But unlike legal damages, the accounting
        remedy turned on the trustee’s gain and not the plaintiff’s loss. See id.; see also Great-
        West, 

 n.2.
               8
                 “Rightful” owner does not necessarily mean “original” owner. At equity, plaintiffs
        could seek a defendant’s unjustly gained benefit rather than merely trying to recover their
        losses. See 1 Dobbs & Roberts, supra § 1.1, at 4 (explaining that equitable restitution,
        unlike legal damages, is “measured by defendant’s gains, not by plaintiff’s losses”);
        Restatement (First) of Restitution § 1 cmt. e; id. §1 cmt. b (noting that a “benefit” includes
        saving the defendant from an expense). Thus, if Tayloe steals ten dollars of Landry’s to
        invest in a company that goes on to cure cancer, a court of equity might award Landry all
        of Tayloe’s profits.
        (Continued)
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        B. Dobbs & Caprice L. Roberts, Law of Remedies § 1.1, at 4–5 (3d ed. 2018); Bray,

        Fiduciary Remedies, supra, at 553–56. Yet—unlike with exclusive-jurisdiction monetary

        remedies—the plaintiff had to identify the specific property (funds) that the defendant

        wrongfully possessed and that rightfully belonged to the plaintiff. See Great-West, 

 (“[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.”); see also Montanile, 

; McCutchen, 

; Sereboff, 547 U.S. at 362–63.

                      3. When can plaintiffs get money as “equitable relief” under ERISA?

               This set up naturally raises a question: Because courts of equity could provide a

        remedy that looked like money damages in breach-of-trust cases, does that mean that such

        a remedy is “equitable relief” under ERISA? See, e.g., John H. Langbein, What ERISA

        Means by Equitable, 

 (2003) (arguing that trust-law remedies

        should be available under ERISA). In other words, does “equitable relief” under ERISA




                And while the plaintiff had to suffer some type of harm at the hands of the unjustly
        enriched that made him the rightful owner of the enrichment, that harm did not have to be
        a tangible loss. See George E. Palmer, 1 Law of Restitution §2.11 (1978); Restatement
        (First) of Restitution § 1 cmt. e. Instead, the harm may be a wrongful interference with the
        plaintiff’s rights that caused the unjust gain. For instance, if a man uses another man’s egg
        washer without permission, he must give the owner the ill-gotten egg profits—even if he
        does not damage the machine—because he has interfered with the owner’s exclusive-use
        rights. See Olwell v. Nye & Nissen Co., 

, 285–86 (1946). Likewise, a
        fiduciary who profits by breaching his duty “is ordinarily accountable to his beneficiary
        for the profit, although the beneficiary suffered no loss.” Restatement (First) of Restitution
        § 1 cmt. e; Palmer, supra, §2.12.
                                                     16
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        include relief available in exclusive-jurisdiction cases rather than just the relief available

        in concurrent-jurisdiction cases?

               No. Plaintiffs can get monetary relief under § 502(a)(3) only if such relief was

        “typically available in equity.” Montanile, 

 (quoting Mertens, 

). Exclusive-jurisdiction remedies—like the trust remedy of surcharge—were not

        “typically” available. Rather, as the Supreme Court has used the term, to be a “typically”

        available remedy, the relief must have been traditionally available in concurrent-

        jurisdiction cases.    And in concurrent-jurisdiction cases—as the Supreme Court has

        acknowledged and as we have explained—equitable courts could sometimes award

        monetary restitution for unjust enrichment, 9 but they could not award the broad, personal,

        and compensatory relief available in law and in exclusive-jurisdiction cases.

               In short: A plaintiff can recover money under § 502(a)(3) only if a court of equity

        could have awarded it in a concurrent-jurisdiction case, and a court of equity could award

        money when a plaintiff pointed to specific funds that he rightfully owned but that the

        defendant possessed as a result of unjust enrichment. See Montanile, 577 U.S. at 142–43.

        There’s a lot going on there. And a great deal went into building this framework. Its thus

        worth going over the steps the Supreme Court took to erect it.

               The Court laid its first bricks in Mertens v. Hewitt Associates, 

 (1993).

        Mertens announced that courts looking to see whether a sought remedy is “equitable” under


               9
                 To be clear, we are not saying that the only time a court of equity could award
        monetary relief in concurrent-jurisdiction cases was when remedying unjust enrichment.
        That question is not before us. But we focus on unjust enrichment because that is the only
        plausible path to recovery on Rose’s allegations.
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        ERISA may look only to “those categories of relief that were typically available in equity.”

        Mertens, 

 (focusing on the divided law-equity bench and its technical

        refinements). And “compensatory damages” were not typically available in equity. 10 

        Mertens eschewed remedies that courts of equity could award only in “exclusive

        jurisdiction” cases because it rejected a reading that would allow relief available only in

        breach-of-trust cases Mertens, 508 U.S. at 256–57. Trust law, Mertens held, cannot

        determine the outer bounds of “equitable relief” under ERISA since the remarkable

        remedies available in such excusive-jurisdiction cases were “purely legal” and ordinarily

        “beyond the scope” of an equity court’s authority. Mertens, 

 (quoting 1

        Pomeroy, supra, § 181, at 257). Real equitable remedies are those that were typically

        available, not those that were available only in specialized cases. 11

               About a decade after Mertens, the Supreme Court revisited the issue of what ERISA

        means by “equitable relief” in Great-West Life & Annuity Ins. Co. v. Knudson, 

 (2002). And Great-West reinforced the same approach used in Mertens: “the term


               10
                  One might say that the first brick was actually laid in Massachusetts Mutual Life
        Insurance Company v. Russell, 

 (1985), when the Court explained that
        “there is a stark absence—in [ERISA] itself and in its legislative history—of any reference
        to an intention to authorize the recovery of extracontractual damages.”
               11
                  The Court additionally reasoned that “equitable relief” could not include trust-
        specific remedies because that would make the modifier “equitable” superfluous. Mertens,
        508 U.S. at 257–58. In § 502(a)(3), the word “equitable” was intended to work as a
        limitation on what relief a court could provide. Yet if the word were taken to include “all
        relief available for breach of trust,” id. at 257, including relief akin to money damages, id.
        at 256, then the statute would mean the same thing whether the word “equitable” was
        included or not. That would “deprive of all meaning the distinction Congress drew
        between . . . ‘equitable’ and ‘legal’ relief” within § 502. Id. at 258 (citing 

(g)(2)(E)). That outcome, the Court stated, was “unacceptable.” 

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        ‘equitable relief’ in § 502(a)(3) must refer to ‘those categories of relief that were typically

        available in equity.” Id. at 219 (quoting Mertens, 

). The “special equity-

        court powers applicable to trusts [do not] define the reach of § 502(a)(3).” Id. Instead, the

        “trust remedies are simply inapposite” because they were special to trust cases, not typical

        of cases brought in equity more broadly. Id. To determine what relief was typically

        available in equity, we cannot look to equity’s exclusive domain.

               Great-West did not just confirm the Mertens approach: it added layers to it,

        explaining what that approach means for monetary remedies. The Court discussed the

        concept of equitable restitution—a remedy awarding money to the plaintiff “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.” Great-West, 

 (citing 1 Dobbs & Roberts, supra, § 4.3, at 587–88; see also Great-West, 

 (Ginsburg, J., dissenting). According to Great-West, however, not all restitutionary

        remedies count as “equitable.” See 

. Some, like the constructive trust and

        the equitable lien, certainly qualify. 

. But that label—“equitable” or “legal”—

        “depends on ‘the basis for the plaintiff’s claim’ and the nature of the underlying remedies

        sought.” 

 (cleaned up) (quoting Reich v. Cont’l Cas. Co., 

 (7th Cir.

        1994) (Posner, J.)). And, “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.” Great-West, 

.

               In other words, Great-West tells us that, to qualify as “equitable,” restitutionary

        relief imposed to remedy unjust enrichment must be proprietary, not personal: The

                                                      19
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        plaintiff cannot recover out of the defendant’s general assets. Instead, the plaintiff must

        (1) identify certain property or money “belonging in good conscience” to him, and (2) that

        property must “clearly be traced to particular funds or property in the defendant’s

        possession.” Great-West, 

; see also Bray, Fiduciary Remedies, supra, at

        455 (discussing the difference between “personal” and “proprietary” remedies). Only after

        performing this “tracing” could courts of equity “order a defendant to transfer title (in the

        case of the constructive trust) or to give a security interest (in the case of the equitable lien)

        to a plaintiff who was, in the eyes of equity, the true owner.” Great-West, 

.

               Montanile is the most recent Supreme Court case to take up this issue, and it follows

        the same line. Montanile reiterates that “equitable relief” in ERISA refers to “those

        categories of relief that were typically available in equity.” Montanile, 

        (quoting Mertens, 

). And it explains that “[e]quitable remedies are, as a

        general rule, directed against some specific thing; they give or enforce a right to or over

        some particular thing rather than a right to recover a sum of money generally out of the

        defendant’s assets.” Id. at 145 (cleaned up).

               To sum up, these cases teach the same lessons. First is a lesson about how to

        interpret “equitable relief.” We must ask what relief was “typically available in equity.”

        That means that we must look to equity’s traditional concurrent jurisdiction; pointing to its

        exclusive jurisdiction is not enough. 12 True, the Supreme Court did not use the term



               12
                 Indeed, in some cases, even pointing to concurrent jurisdiction may not be enough
        if the remedy was available only in a small sliver of concurrent-jurisdiction cases. See
        (Continued)
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        “concurrent.” But its application of the “typically available” test made it clear that is what

        it meant: The Court consistently rejected trust-specific remedies on the grounds that they

        were from the equity courts’ “exclusive jurisdiction.” Mertens, 

; see also

        Great-West, 

.

               That leads us to the second lesson: A plaintiff alleging unjust enrichment can get a

        monetary remedy under ERISA only if she seeks specific funds that are wrongfully in the

        defendant’s possession and rightfully belong to her. Courts cannot award her relief that

        amounts to personal liability paid from the defendant’s general assets to make the plaintiff

        whole. 13

               The Supreme Court has not, however, been perfectly consistent in its view. In

        between Great-West and Montanile, the Supreme Court decided CIGNA Corp. v. Amara,

        

 (2011). There, the Supreme Court suggested it might allow certain plaintiffs

        to pursue “make-whole,” loss-based, monetary relief under § 502(a)(3). Id. at 442. And it

        did so because such relief was analogous to “surcharge,” an “exclusively equitable” remedy

        under the law of trusts. Id. It thus broke with Mertens and Great-West’s explicit refusal




        Great-West, 534 U.S. at 211–12 (acknowledging that an injunction for past-due money was
        available in some breach-of-contract cases but was not “typically available in equity”).
               13
                  This should sound familiar. As we saw when we reviewed the history of equity,
        the decision to so limit restitution for unjust enrichment flows naturally from the choice to
        limit “equitable relief” under § 502(a)(3) to what was available in concurrent-jurisdiction
        cases. Another natural consequence of tying ERISA’s “equitable relief” to the relief
        historically available in concurrent-jurisdiction cases is that the funds sought need not have
        originated with the plaintiff. It is enough that the funds are an unjust benefit that rightfully
        belong to the plaintiff—either because they were stolen from him or because the defendant
        interfered with the plaintiff’s interests to get them. See supra note 8.
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        to look to trust-law remedies and their implicit distinction between exclusive and

        concurrent jurisdiction. 14

               As the Supreme Court has since acknowledged, this part of Amara was dicta. See

        Montanile, 

 n.3; see also McCravy v. Metropolitan Life Ins. Co., 

, 181 n.2 (4th Cir. 2012) (assuming Amara was dicta). And, as we have recognized,

        adopting it would be a “striking development” that “expanded the relief” available under

        §502(a)(3) to include “make-whole relief” such as “surcharge.” McCravy, 

               14
                  Amara ignored Mertens and Great-West’s refusal to look to trust-law remedies in
        defining § 502(a)(3)’s “appropriate equitable relief.” But Amara was not actually faced
        with interpreting § 502(a)(3). The plaintiff there had sued their employer for adopting a
        new plan. Amara, 

. The district court agreed that the employer had
        “violated its obligations under ERISA” and ordered the plan to be “reformed” and the
        employer “to pay benefits accordingly.” 

. It rooted its decision in § 502(a)(1)(B).
        As you may recall from above, that provision only allows a plaintiff to seek relief under
        “the terms of the plan.” And the plaintiff’s gripe in Amara was not that his employer had
        violated the terms of his plan but that the employer had violated ERISA by wrongfully
        changing those terms. So, the Supreme Court held, § 502(a)(1)(B) did not authorize the
        district court to reform the plaintiff’s plan and award benefits. See Amara, 563 U.S. at
        435–38. It thus vacated and remanded.
                You might think the opinion would stop there. But the Court continued to “identify
        equitable principles that the court might apply on remand.” Id. at 425 (emphasis added).
        The “equitable principles” that Amara then identified are inconsistent with Mertens and
        Great-West. Amara suggested that the plaintiff could seek “make-whole relief,” but only
        by reference to trust law: Because he alleged a “breach of trust,” the plaintiff could seek a
        “surcharge.” 

. In other words, “the fact that the defendant in this case,
        unlike the defendant in Mertens, is analogous to a trustee makes a critical difference.” 

                But any such distinction is not one that matters under the reasoning of Great-West
        and Mertens. Great-West and Mertens required looking to “those categories of relief that
        were typically available in equity.” Mertens, 

. Mertens rejected the idea
        that the statutory phrase “equitable relief” meant “whatever relief a court of equity [would
        be] empowered to provide in the particular case at issue.” 

 In other words, according
        to Mertens, whether a given remedy is “equitable” under the statute does not depend on the
        “particular case” that plaintiff brings, or on the identities of the plaintiff and the defendant.
        On this logic, it should not matter whether the defendant is analogous to a trustee because
        trust-specific remedies are “simply inapposite.” See Great-West, 

.
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        (citation omitted). Still, we followed Amara’s dicta shortly after it was decided, allowing,

        for the first time in our Circuit, plaintiffs to seek “make-whole relief” under § 502(a)(3)

        because it was available in courts of equity in trust cases. McCravy, 

        (citation omitted). 15 And we have adhered to that understanding, applying it just two years

        ago in Peters v. Aetna, Inc.. 

 (4th Cir. 2021) (“The Supreme Court has

        recognized surcharge as a form of ‘appropriate equitable relief’ available under

        § 502(a)(3).” (quoting Amara, 

, 441–42)).

               The problem is that the Supreme Court has since rejected the turn that it

        contemplated in Amara and therefore rejected the turn that we took in McCravy. In

        Montanile, the Court went beyond labeling Amara’s reasoning “dicta” and expressly

        declared that the “interpretation of ‘equitable relief’ in Mertens [and] Great-

        West . . . remains unchanged.” Montanile, 

 n.3 (emphasis added). And, as

        discussed, that interpretation is flatly inconsistent with Amara’s suggestions. Indeed, aside

        from these chidings, Montanile did not otherwise cite Amara. The implication was clear:

        Amara’s approach is antithetical to a proper § 502(a)(3) analysis.




               15
                  On the same day the Supreme Court handed down its decision in Amara, we had
        issued a panel decision in McCravy. In the original opinion, the McCravy panel rejected
        the claim that the special equity-court powers applicable to trusts defined ERISA’s reach.
        See McCravy v. Metropolitan Life Ins. Co., 

, 418–20 (4th Cir. 2011); see also
        LaRue v. DeWolff, Boberg & Assocs., 

, 575–77 (4th Cir. 2006) (reaching the
        same conclusion), vacated on other grounds, 

 (2008). But, recognizing that
        Amara advocated for a dramatically different rule from Mertens and Great-West about
        what relief was available under § 502(a)(3), we granted a panel rehearing, vacated that
        earlier decision, and replaced it with a new one. See McCravy, 

.
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               Since Montanile’s approach—which is really Mertens’s and Great-West’s

        approach—is inconsistent with Amara’s approach, it is also inconsistent with ours. We

        currently allow plaintiffs suing for breach of fiduciary duty to seek make-whole,

        compensatory relief under § 502(a)(3) on the logic that such relief was available for breach

        of trust. Even the name that we give such relief—“surcharge”—is a term specific to trust

        law. See Bray, Fiduciary Remedies, supra, at 456 (calling “surcharge” a name “redolent

        of trusts”). But Mertens and Great-West made plain that trust-law remedies do not count

        as “equitable” unless they were “typically available in equity.” Mertens, 

;

        Great-West, 

. And Montanile reinforced that test: “In many situations”—

        that is, in equity’s exclusive jurisdiction—“an equity court could establish purely legal

        rights and grant legal remedies which would otherwise be beyond the scope of its

        authority.” 

 (internal quotation marks omitted) (quoting Mertens, 

). Yet “these legal remedies were not relief ‘typically available in equity.’” 

 at

        147 (quoting Mertens, 

). “Typical” relief is defined by equity’s concurrent

        jurisdiction. So, while our Circuit’s resort to trust law might have made sense in the

        immediate aftermath of Amara, it no longer does. 16 Montanile revived Mertens and Great-

        West and put Amara’s discussion to rest.



               16
                  The Supreme Court’s recent decision in Liu v. SEC, 

 (2020),
        reinforces that trust-specific remedies do not qualify as remedies “typically available in
        equity.” When noting that an “accounting”—“an equitable remedy requiring disgorgement
        of ill-gotten profits”—qualified as a remedy “typically available in equity,” the Court
        showed that the remedy was not merely used in “cases involving a breach of trust or of
        fiduciary duty” and that courts of equity “authorized profits-based relief in patent-
        infringement actions where no trust or special relationship existed.” 

.
                                                    24
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               It is time that we did too. We have never considered Montanile’s effect on Amara.

        Peters conceptually followed McCravy’s lead, relying on both McCravy and Amara. It

        also sequentially followed Montanile. Yet it did not explain why we should stick with

        McCravy and Amara in Montanile’s wake. In fact, it did not so much as cite Montanile.

        See generally Peters, 

. Where “prior decisions” in our Circuit use “reasoning

        inconsistent with Supreme Court authority,” “we are not bound to follow them.” United

        States v. Banks, 

 (4th Cir. 2022). That is true even where some of the

        prior panel decisions “were decided after” the Supreme Court case rendered them

        untenable. 

 Absent an indication that Peters considered the viability of Amara’s rule

        after Montanile—and there is no such indication—it cannot bind us to a path inconsistent

        with the Supreme Court’s dictates.

               Accordingly, we return to the same rule that applied at the Supreme Court, and in

        this Circuit, before Amara:      Plaintiffs that seek “merely personal liability upon the

        defendants to pay a sum of money” ask for legal, not equitable, relief under § 502(a)(3).

        See LaRue, 

 (cleaned up) (quoting Great-West, 

). But

        plaintiffs that seek to strip away defendant’s unjust gains might have better luck. Their

        sought relief qualifies as “equitable,” so long as the plaintiff can trace those unjust gains to

        “specifically identified funds that remain in the defendant’s possession or against traceable

        items that the defendant purchased with the funds.” Montanile, 577 U.S. at 144–45.

               B.     Has Rose sought an “equitable” remedy?

               With those rules in mind, we agree with the district court that compensatory “make-

        whole” monetary relief is unavailable under § 502(a)(3). But the district court did not

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        consider whether Rose plausibly alleged facts that would support relief that was “typically”

        available in equity. Montanile, 

. As we have discussed, one such remedy

        is based on the defendant’s unjust enrichment. But the question remains whether Rose has

        plausibly alleged facts that would entitle her to such relief by alleging (1) that a defendant

        was unjustly enriched by interfering with Kyree’s rights 17 and (2) that the fruits of that

        unjust enrichment remain in the defendant’s possession or can be traced to other assets.

               Rather than determine for ourselves whether Rose properly alleged such a theory,

        we remand for the district court to decide in the first instance whether Rose has met this

        burden for each defendant. 18

                                        *             *             *

               Rose has not plausibly alleged facts that could entitle her to monetary relief on

        behalf of her son’s estate under § 502(a)(1)(B) because that provision only authorizes a

        beneficiary to sue to recover the benefits that they were due under the terms of their plan.

        Kyree’s health plan did not entitle him to money; only to the surgery, which he never

        received. So the district court was correct to dismiss Rose’s § 502(a)(1)(B) claim.

               Yet § 502(a)(3) authorizes Rose to seek “equitable relief.” And, while monetary

        relief awarded to compensate for a plaintiff’s loss does not qualify as “equitable” under the

        Supreme Court’s test, relief awarded under an unjust-enrichment theory may indeed


               17
                  Such as by breaching their fiduciary duties to him. See Restatement (First) of
        Restitution § 1 cmt. e; Palmer, supra, §2.12.

                Other questions may also remain. For example, if UMR, Quantum, or MCMC
               18

        were somehow unjustly enriched by the refusal to pay, then the district court may need to
        decide whether UMR, Quantum, or MCMC were “fiduciaries” under ERISA.
                                                     26
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        qualify. We thus remand for the district court to determine whether Rose has—or can—

        plausibly allege such a claim.

               Accordingly, the district court’s decision is

                                                                         AFFIRMED IN PART,
                                                                         VACATED IN PART,
                                                                         AND REMANDED.




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        TOBY HEYTENS, Circuit Judge, concurring in part and dissenting in part:

              I agree the district court correctly dismissed Rose’s 502(a)(1)(B) claim and that the

        502(a)(3) claim should be remanded for further proceedings. In my view, however, Rose

        need not show the fruits of a defendant’s wrongdoing are traceable to particular funds

        remaining in that defendant’s possession to state a claim under ERISA. Instead, I would

        hold Rose need only plead and prove the defendant was a fiduciary and that any money

        sought represents “make-whole relief ” for a “violation of a duty imposed upon that

        fiduciary.” CIGNA Corp. v. Amara, 

 (2011).

              The relevant statutory provision authorizes Rose to sue for an injunction or “other

        appropriate equitable relief.” 

(a)(3). This provision empowers district

        courts to provide “those categories of relief that were typically available in equity.”

        Mertens v. Hewitt Assocs., 

 (1993). And in Amara, the Supreme Court

        told us that “the category of traditionally equitable relief ” includes “monetary

        ‘compensation’ for a loss resulting from a trustee’s breach of duty”—“sometimes called a

        ‘surcharge’ ”—and that remedy is available against “the plan administrator” of an ERISA

        plan. 563 U.S. at 441–42. Two previous published opinions of this Court have understood

        Amara in precisely this way. See Peters v. Aetna, Inc., 

 (4th Cir. 2021)

        (“The Supreme Court has recognized surcharge as a form of ‘appropriate equitable relief ’

        available under § 502(a)(3) because it was ‘typically available in equity[.]’ ” (quoting

        Amara, 

, 441–42)); McCravy v. Metropolitan Life Ins. Co., 

 (4th Cir. 2012) (describing Amara as “stand[ing] for the proposition that remedies
USCA4 Appeal: 21-2207      Doc: 69          Filed: 09/11/2023     Pg: 29 of 32




        traditionally available in courts of equity, expressly including . . . surcharge, are indeed

        available to plaintiffs suing fiduciaries under Section [502](a)(3)”).

               The Court’s opinion offers several potential justifications for departing from what

        Amara said and what Peters and McCravy held. I am unconvinced.

               For example, the opinion spends considerable time suggesting Amara

        misunderstood the relevant history and that its approach departed from the Supreme

        Court’s earlier decisions in Mertens v. Hewitt Associates, 

 (1993), and Great-

        West Life & Annuity Insurance Co. v. Knudson, 

 (2002). But we are bound by

        the Supreme Court’s formulation of the relevant principles even when we think the Court

        may have gotten those principles—or their application—wrong. This seems all-the-more-

        true here, where the relevant portion of the Supreme Court’s opinion in Amara extensively

        discussed both Mertens and Great-West. See Amara, 563 U.S. at 438–39.

               True, Amara’s discussion of Section 502(a)(3) was “not essential to resolving that

        case” and was thus arguably dicta. Montanile v. Board Trs. Nat’l Elevator Indus. Health

        Benefit Plan, 

, 148 n.3 (2016). But a previous panel of this Court has already

        considered that fact and decided it should follow Amara’s lead here anyway. See McCravy,

        

 n.2. And, under our well-settled procedures, “one panel cannot overrule

        another.” McMellon v. United States, 

 (4th Cir. 2004) (en banc).

               The issue that gives me the most pause is the Supreme Court’s treatment of Amara

        in its 2016 decision in Montanile. I agree, of course, that previous “panel precedent”—

        here, this Court’s decisions in Peters and McCravy—“is not binding if it subsequently

        proves untenable considering Supreme Court decisions.” Carrera v. E.M.D. Sales Inc., 75


                                                     29
USCA4 Appeal: 21-2207      Doc: 69         Filed: 09/11/2023      Pg: 30 of 

, 352 (4th Cir. 2023) (quotation marks omitted). “But that is a high standard, and

        I am not confident it is satisfied here.” United States v. Brown, 

 (4th Cir.

        2023) (Heytens, J., concurring in the judgment).

               To show the Supreme Court has rejected Amara’s blessing of surcharge as a proper

        remedy under Section 502(a)(3)—and thus has abrogated Peters and McCravy—the

        Court’s opinion relies on a footnote in Montanile. In that footnote, the Supreme Court noted

        the relevant discussion in Amara was “not essential to resolving that case” and stated that—

        notwithstanding Amara—the Court’s “interpretation of ‘equitable relief’ in Mertens,

        Great-West, and Sereboff v. Mid Atlantic Medical Services, Inc., 

 (2006),

        remains unchanged.” 

 n.3; see 

 (also referencing US Airways, Inc. v.

        McCutchen, 

 (2013)).

               To me, that is not enough to permit a panel of this Court to depart from our previous

        holdings in Peters and McCravy. Montanile did not say Amara had been inconsistent with

        the Court’s previous decisions. Nor did it say the Court was now adopting an approach

        contrary to Amara. Instead, Montanile rejected a litigant’s broad reading of Amara that

        would have “all but overrul[ed]” Mertens and Great-West, emphasizing that Amara

        “reaffirmed” the traditional equitable limitations covering “a lien or a constructive trust”

        that drove the Court’s decision in Montanile. See Montanile, 

 n.3.

               Viewed in this light, Amara’s explanation of why its discussion of surcharge was

        consistent with Mertens covers Great-West, Sereboff, McCutchen, and Montanile as well.

        As Amara noted, surcharge was not available against just anyone. Rather, surcharge only

        “extended to a breach of trust committed by a fiduciary encompassing any violation of a


                                                     30
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        duty imposed upon that fiduciary,” which is why “the fact that the defendant in [Amara],

        unlike the defendant in Mertens, [was] analogous to a trustee ma[de] a critical difference.”

        

 (emphasis added). Like the defendants in Great-West, Sereboff, and

        McCutchen, however, the defendant in Montanile was not a fiduciary. Instead, those cases

        all involved situations where a fiduciary (an ERISA plan administrator) was suing a non-

        fiduciary (the plan’s own beneficiaries) to claw back benefits that had been paid out.

        See Montanile, 

; Sereboff, 

; Great-West, 

;

        McCutchen, 

. *

               The fact that Amara can be reconciled with Montanile in this way means Peters and

        McCravy can too. I have no doubt one could have a robust debate about whether a fiduciary

        versus non-fiduciary line makes sense as a matter of history or first principles or if it was,

        in fact, consistent with Mertens and Great-West. But that distinction comes directly from

        the Supreme Court’s decision in Amara. It is reflected in this Court’s decisions in Peters

        and McCravy—both of which were premised on the defendants’ status as fiduciaries.

        See Peters, 

; McCravy, 

. And it is not “impossible to




               *
                 Montanile also quoted a leading treatise’s statement that “[e]quitable remedies are,
        as a general rule, directed against some specific thing . . . rather than a right to recover a
        sum of money generally.” 

 (quoting 4 S. Symons, Pomeroy’s Equity
        Jurisprudence § 1234, p. 694 (5th ed. 1941)). Saying something is generally true is different
        from saying it always is. Montanile also states that “all types of equitable liens must be
        enforced against a specifically identified fund in the defendant’s possession.” Id. at 146.
        But Rose does not seek an equitable lien—which, Montanile notes, “is simply a right of
        special nature over” a “specifically identified” thing. Id. at 145.


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        reconcile” with the Supreme Court’s terse footnote in Montanile. See Carrera, 75 F.4th. at

        352. To me, that should be the end of the matter.

                                               *       *    *

               This Court “do[es] not lightly presume that the law of the circuit has been overturned

        . . . or rendered no longer tenable.” Carrera, 75 F.4th at 352 (quotation marks omitted).

        Because I do not believe that high standard is satisfied here, I believe this panel remains

        bound by Peters and McCravy, and would conclude that Rose’s ability to obtain relief does

        not turn on an ability to show traceability.




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