US Airways, Inc. v. McCutchen

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3836

_____________

US AIRWAYS, INC., in its capacity as Fiduciary and Plan

Administrator of the US Airways, Inc. Employee Benefits

Plan

v.

JAMES E. MCCUTCHEN; ROSEN LOUIK & PERRY,

P.C.,

Appellants

_____________

On Appeal from the District Court

for the Western District of Pennsylvania

(No. 2-08-cv-01593)

District Judge: Honorable David Stewart Cercone

Argued July 11, 2011

Before: SLOVITER, FUENTES, and VANASKIE, Circuit

Judges

(Opinion Filed: November 16, 2011)

1

Leslie A. Brueckner, Esq.

Matthew W.H. Wessler, Esq. [ARGUED]

Public Justice

1825 K Street, N.W.

Suite 200

Washington, D.C. 20006

Paul Hilko, Esq.

Neil R. Rosen, Esq.

Rosen Louik & Perry

437 Grant Street

The Frick Building, Suite 200

Pittsburgh, PA 15219-6003

Counsel for Appellants

Noah G. Lipschultz, Esq. [ARGUED]

Littler Mendelson

80 South 8th Street

1300 IDS Center

Minneapolis, MN 55402

Shannon H. Paliotta, Esq.

Littler Mendelson

625 Liberty Avenue

Dominion Tower, 26th Floor

Pittsburgh, PA 15222

Counsel for Appellee

2

OPINION OF THE COURT

FUENTES, Circuit Judge:

After Appellant James McCutchen suffered a serious

automobile accident, a benefit plan administered by US

Airways paid $66,866 for his medical expenses. McCutchen

then recovered $110,000 from third parties, with the

assistance of counsel. Then US Airways, which had not

sought to enforce its subrogation rights, demanded

reimbursement of the entire $66,866 it had paid without

allowance for McCutchen’s legal costs, which had reduced

his net recovery to less than the amount it demanded. US

Airways filed this suit against McCutchen for “appropriate

equitable relief” pursuant to § 502(a)(3) of the Employee

Retirement Income Security Act of 1974, as amended

(“ERISA”), 29 U.S.C. § 1132(a)(3)(B). The issue before us is

whether McCutchen may assert certain equitable limitations,

such as unjust enrichment, on US Airways’ equitable claim.

We conclude that he may. We therefore vacate the District

Court’s order requiring McCutchen to pay US Airways the

entire $66,866 and remand the case for that Court to fashion

“appropriate equitable relief.”

I.

This case stems from a tragic car accident in which a

young driver lost control of her car, crossed the median of the

road, and struck a car driven by 51-year-old James

McCutchen. Then the truck traveling behind McCutchen also

3

slammed into his car. The accident killed one person and left

two others with severe brain injuries. McCutchen himself

was grievously injured and survived only after emergency

surgery. He spent several months in physical therapy and

ultimately underwent a complete hip replacement. Since the

accident, McCutchen, who had a history of back surgeries and

associated chronic pain, has also become unable to effectively

treat that pain with medication. The accident has rendered

him functionally disabled. McCutchen’s Health Benefit Plan

(the “Plan”), administered and self-financed by US Airways,

paid medical expenses in the amount of $66,866 on his

behalf.

After the accident, McCutchen, through his attorneys

at Rosen Louik & Perry, P.C., filed an action against the

driver of the car that caused the accident. Because she had

limited insurance coverage, and because three other people

were seriously injured or killed, McCutchen settled with the

other driver for only $10,000. However, with his lawyers’

assistance, he and his wife received another $100,000 in

underinsured motorist coverage for a total third-party

recovery of $110,000. After paying a 40% contingency

attorneys’ fee and expenses, his net recovery was less than

$66,000. US Airways demanded reimbursement for the

entire $66,866 that it had paid for McCutchen’s medical bills.

Soon after, Rosen Louik & Perry placed $41,500 in a trust

account, reasoning that any lien found to be valid would have

to be reduced by a proportional amount of legal costs. The

record on appeal does not establish what amount was

disbursed to McCutchen.

When McCutchen did not pay, US Airways, in its

capacity as administrator of the ERISA benefits plan, filed

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suit in the District Court under § 502(a)(3) of ERISA, seeking

“appropriate equitable relief” in the form of a constructive

trust or an equitable lien on the $41,500 held in trust and the

remaining $25,366 personally from McCutchen. The

Summary Plan Description describing the US Airways

benefits plan covering McCutchen contained the following

paragraph, entitled “Subrogation and Right of

Reimbursement”:

The purpose of the Plan is to provide coverage

for qualified expenses that are not covered by a

third party. If the Plan pays benefits for any

claim you incur as the result of negligence,

willful misconduct, or other actions of a third

party, the Plan will be subrogated to all your

rights of recovery. You will be required to

reimburse the Plan for amounts paid for claims

out of any monies recovered from a third party,

including, but not limited to, your own

insurance company as the result of judgment,

settlement, or otherwise. In addition you will

be required to assist the administrator of the

Plan in enforcing these rights and may not

negotiate any agreements with a third party that

would undermine the subrogation rights of the

Plan.

(App. 117) (emphasis added). Thus, under the Plan

Description, a beneficiary is required to reimburse the Plan

for any amounts it has paid out of any monies the beneficiary

recovers from a third party.

5

US Airways claims that this language permits it to

recoup the $66,866 it provided for McCutchen’s medical care

out of the $110,000 total that he recovered regardless of his

legal costs. It argues that “[t]he Plan language specifically

authorized reimbursement in the amount of benefits paid, out

of any recovery.” (Appellee’s Br. at 15-16).

McCutchen says that it would be unfair and

inequitable to reimburse US Airways in full when he has not

been fully compensated for his injuries, including pain and

suffering. He argues that US Airways, which made no

contribution to his attorneys’ fees and expenses, would be

unjustly enriched if it were now permitted to recover from

him without any allowance for those costs, in essence to reap

what McCutchen has sown. Indeed, if legal costs are not

taken into account, US Airways will effectively be reaching

into its beneficiary’s pocket, putting him in a worse position

than if he had not pursued a third-party recovery at all.

Citing the Plan’s use of the language “any monies

recovered,” as well as our previous decisions, the District

Court rejected McCutchen’s arguments and granted summary

judgment to US Airways. The Court required McCutchen to

sign over the $41,500 held in trust and to pay $25,366 from

his own funds. McCutchen appeals. 1

1

The District Court had jurisdiction over this matter

under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). We have

jurisdiction over McCutchen’s appeal under 28 U.S.C.

§ 1291. “We exercise plenary review over a district court’s

summary judgment ruling.” Disabled in Action of Pa. v. Se.

Pa. Transp. Auth., 635 F.3d 87, 92 (3d Cir. 2011) (quoting

Melrose Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir.

6

II.

A.

Congress designed ERISA to protect employee

pensions and benefits by providing pension insurance,

enumerating certain specific characteristics of pension and

benefit plans, and setting forth fiduciary duties for the

managers of both pension and nonpension plans. Varity

Corp. v. Howe, 516 U.S. 489, 496 (1996). The Supreme

Court has repeatedly observed that “ERISA is a

comprehensive and reticulated statute, the product of a decade

of congressional study of the Nation’s private employee

benefit system.” Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204, 209 (2002) (quoting Mertens v.

Hewitt Assocs., 508 U.S. 248, 251 (1993)) (internal quotation

marks omitted). Courts have therefore been reluctant to

tamper with its carefully crafted and detailed enforcement

scheme. Id. Under this scheme, Congress gave plan

beneficiaries greater rights than plan fiduciaries to enforce the

terms of a benefit plan. A beneficiary has a general right of

action “to enforce his rights under the terms of the plan.”

Knudson, 534 U.S. at 221 (quoting 29 U.S.C.

§ 1132(a)(1)(B)). By contrast, a fiduciary’s right to enforce

plan terms is governed by ERISA’s § 502(a)(3), which limits

the available relief to an injunction or “other appropriate

2010)). “Summary judgment is appropriate only where,

drawing all reasonable inferences in favor of the nonmoving

party, there is no genuine issue as to any material fact and . . .

the moving party is entitled to judgment as a matter of law.”

Id. (quoting Melrose Inc., 613 F.3d at 387)).

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equitable relief.” 29 U.S.C. § 1132(a)(3); Knudson, 534 U.S.

at 221; Sereboff v. Mid Atlantic Medical Servs., Inc., 547 U.S.

356, 361 (2006). It is under this provision that US Airways

seeks to enforce the Plan’s subrogation and reimbursement

provision against McCutchen.

The Supreme Court has explained that the modifier

“appropriate equitable relief” is not superfluous. Mertens,

508 U.S. at 257-58. Rather, “Congress’s choice to limit the

relief available under § 502(a)(3) to ‘equitable relief’ requires

us to recognize the difference between legal and equitable

forms of restitution.” Knudson, 534 U.S. at 218. Thus, the

Supreme Court has “interpreted the term ‘appropriate

equitable relief’ in § 502(a)(3) as referring to those categories

of relief that, traditionally speaking (i.e., prior to the merger

of law and equity) were typically available in equity.” Cigna

Corp. v. Amara, 131 S. Ct. 1866, 1878 (2011) (quoting

Sereboff, 534 U.S. at 361) (internal quotation marks omitted).

The Supreme Court has twice considered what this

limitation means in the context of a fiduciary’s action for

reimbursement from a beneficiary under an ERISA plan. In

Great-West Life & Annuity Insurance Co. v. Knudson, the

Court first considered whether an ERISA plan administrator’s

claim for reimbursement was equitable in nature. See 534

U.S. at 210-12. To decide this question, the Court examined

cases and secondary legal materials to determine whether the

relief would have been equitable “[i]n the days of the divided

bench.” Id. at 212. As the Court explained, one feature of

equitable restitution was that it sought to impose a

constructive trust or equitable lien on “particular funds or

property in the defendant’s possession.” Id. at 213. The

Court held that this requirement was not met in Knudson

8

because the funds to which the plan claimed an entitlement

had been placed in a “Special Needs Trust” under California

law. Id. at 214.

In Sereboff v. Mid Atlantic Medical Services, Inc., the

Court again considered an ERISA plan administrator’s claim

for reimbursement under the terms of the plan and

§ 502(a)(3). See 547 U.S. at 359. This time the plan

administrator was able to overcome the initial hurdle of

identifying specific funds within the beneficiary’s possession

and control. Id. at 362-63. Accordingly, the Court proceeded

to consider whether there was a basis in equity for the

administrator’s reimbursement claim. See id. at 363-64. It

held that the claim could be based on an equitable lien by

agreement. Id. at 364-65 (citing Barnes v. Alexander, 232

U.S. 117 (1914)). Such a lien is not subject to the asset

tracing requirements imposed on liens sought as a matter of

equitable restitution. Id. at 365. Nor is it inherently subject

to the particular equitable defenses that accompany a

freestanding action for equitable subrogation, which may only

be asserted after a victim has been made whole for his

injuries. Id. at 368. Thus, the Court held that the plan

administrator in Sereboff properly sought “equitable relief”

under § 502(a)(3). Id. at 369. However, it expressly reserved

decision on whether the term “appropriate,” which modifies

“equitable relief” in § 502(a)(3), would make equitable

principles and defenses applicable to a claim under that

section. Id. at 368 n.2.

This case squarely presents the question that Sereboff

left open: whether § 502(a)(3)’s requirement that equitable

relief be “appropriate” means that a fiduciary like US

Airways is limited in its recovery from a beneficiary like

9

McCutchen by the equitable defenses and principles that were

“typically available in equity.”

B.

McCutchen argues that the phrase “appropriate

equitable relief” means more than just that the relief US

Airways seeks must be of an equitable type; courts must also

exercise their discretion to limit that relief to what is

“appropriate” under traditional equitable principles. In

particular, he argues that the principle of unjust enrichment

frames US Airways’ claim. We agree. 2

The Supreme Court reasoned in Knudson that

“‘equitable relief’ must mean something less than all relief.”

Knudson, 534 U.S. at 209 (quoting Mertens, 508 U.S. at 258

n.8) (emphasis in original). Therefore, a fund administrator

seeking to enforce a plan’s reimbursement provision must

2

Before the District Court, McCutchen also argued for

application of the “make-whole” doctrine, which is an

equitable doctrine, applied in many states, that provides that

“the insured is entitled to be made whole before the insurer

recovers on its subrogation claim.” 16 Lee R. Russ in

conjunction with Thomas F. Segalla, Couch on Insurance

§ 223:133 (3d ed. 2011); see, e.g., Swanson v. Hartford Ins.

Co. of Midwest, 46 P.3d 584, 589 (Mont. 2002) (“[A]n

insured must be totally reimbursed for all losses as well as

costs, including attorney fees, involved in recovering those

losses before the insurer can exercise any right of

subrogation, regardless of any contract language providing to

the contrary.”) (internal quotation omitted). McCutchen does

not pursue this argument on appeal, and we do not address it.

10

demonstrate that its claim to relief is equitable. Sereboff, 547

U.S. at 363. By the same logic, “appropriate equitable relief”

must be something less than all equitable relief. See Mertens,

508 U.S. at 258 (“We will not read the statute to render the

modifier superfluous.”). The word “appropriate” means

“specially suitable,” “belonging peculiarly [to],” or “attached

as an accessory possession.” Webster’s Third New

International Dictionary 106 (1993). Remedies that

peculiarly belong to traditional categories of equitable relief

would typically have been defeated by equitable principles

and defenses.

Indeed, it would be strange for Congress to have

intended that relief under § 502(a)(3) be limited to traditional

equitable categories, but not limited by other equitable

doctrines and defenses that were traditionally applicable to

those categories. “[S]tatutory reference to [an equitable]

remedy must, absent other indication, be deemed to contain

the limitations upon its availability that equity typically

imposes.” Knudson, 534 U.S. at 211 n.1 (rejecting the

argument that a reimbursement claim framed as a claim for

injunctive relief could proceed under § 502(a)(3) without a

showing that the relief sought was typically available in

equity); see also Cigna, 131 S. Ct. at 1880 (“Section

502(a)(3) invokes the equitable powers of the District

Court.”). Accordingly, in light of the foregoing reasoning,

and in the absence of any indication in the language or

structure of § 502(a)(3) to the contrary, we find that Congress

intended to limit the equitable relief available under

§ 502(a)(3) through the application of equitable defenses and

principles that were typically available in equity.

11

To determine what types of relief were typically

available in equity, the Supreme Court endorsed consultation

of “standard current works such as Dobbs, Palmer, Corbin,

and the Restatements, which make the answer clear.”

Knudson, 534 U.S. at 217; see Sereboff, 547 U.S. at 368

(citing 4 George Palmer, Law of Restitution § 23.18 (1978)).

We consult the same works to determine whether that

equitable relief is “appropriate” in light of equitable

principles and defenses that were typically applied. These

sources all support McCutchen’s position that the principle of

unjust enrichment is broadly applicable to claims for

equitable relief. See 1 Dan Dobbs, Law of Remedies § 4.3(3),

at 602 (2d ed. 1993) (noting that equitable remedies such as

constructive trusts and equitable liens are all “invoked for the

same reason, to prevent unjust enrichment”); 1 Palmer, Law

of Restitution § 1.1, at 4 (“In equity the principal remedy is

constructive trust; but equitable lien, subrogation, and

accounting are techniques frequently used to prevent unjust

enrichment.”). This animating principle of equity clearly

applies to a trustee’s claim for reimbursement from its

beneficiary. “Equity courts possessed the power . . . to

prevent [a] trustee’s unjust enrichment.” Cigna, 131 S. Ct. at

1880 (citing Restatement (Third) of Trusts § 95, and

Comment a (Tent. Draft No. 5, Mar. 2, 2009)); see also 4

Palmer, Law of Restitution § 23.18 at 472-74 (“[T]he

principle of unjust enrichment . . . . should serve to limit the

effectiveness of contract provisions which in terms provide

for reimbursement out of the insured’s tort recovery without

regard to whether or the extent to which, that recovery

includes medical expense.”).

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C.

Against this conclusion, US Airways cites to prior

decisions of this Court in which we declined to fashion a

federal common law rule limiting an ERISA plan

administrator’s right to reimbursement under the plan’s terms.

See Ryan ex rel. Capria-Ryan v. Fed. Express, 78 F.3d 123

(3d Cir. 1996); Bollman Hat Co. v. Root, 112 F.3d 113 (3d

Cir. 1997); see also Bill Gray Enterprise v. Gourley, 248 F.3d

206, 220 n.13 (3d Cir. 2001). While we recognize that the

District Court may have considered itself bound by these

cases, each came before the Supreme Court’s decisions in

Knudson and Sereboff, which clarified the meaning of

“appropriate equitable relief” in § 502(a)(3), specified its

central importance to fiduciaries’ reimbursement suits under

ERISA, and thereby undermined the reasoning and holdings

of our prior decisions. Our prior opinions in Ryan, Bollman

Hat, and Gourley did not consider whether the phrase

“appropriate equitable relief” in § 502(a)(3) limits a

fiduciary’s right to relief. In fact, none of these cases even

referenced § 502(a)(3). These cases are therefore inapposite

in light of the Supreme Court’s intervening decisions. See In

re Krebs, 527 F.3d 82, 84 (3d Cir. 2008) (“A panel of this

Court may reevaluate the holding of a prior panel which

conflicts with intervening Supreme Court precedent.”); see

also Gately v. Mass., 2 F.3d 1221, 1226 (1st Cir. 1993)

(noting that under “[t]he essential principles of stare

decisis . . . if an issue is not argued, or though argued is

ignored by the court . . . the decision does not constitute a

precedent to be followed”). 3

3

Even under our prior cases, US Airways’ claim to

reimbursement from McCutchen’s pocket is unprecedented.

13

US Airways next cites cases from other Courts of

Appeals, some of which were decided after Sereboff, to

support its position that equitable doctrines that might limit its

reimbursement recovery are not applicable under § 502(a)(3).

See Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232 (11th Cir.

2010); Admin. Comm. of Wal-Mart Stores, Inc. Assoc. Health

& Welfare Plan v. Shank, 500 F.3d 834 (8th Cir. 2007);

Bombardier Aerospace Employee Welfare Benefits Plan v.

Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003);

Admin. Comm. of the Wal-Mart Stores, Inc. Assocs.’ Health

& Welfare Plan v. Varco, 338 F.3d 680 (7th Cir. 2003). Like

our pre-Sereboff decisions, these cases frame the question of

whether equitable principles limit the scope of an

administrator’s right to reimbursement as a question of

whether federal common law can override the express

language of benefit plans. See, e.g., O’Hara, 604 F.3d at

1237 (“Applying federal common law to override the Plan’s

controlling language, which expressly provides for

reimbursement regardless of whether [insured] was made

whole . . . would frustrate, rather than effectuate ERISA’s . . .

We declined to pass on the permissibility of such a claim in

Bollman Hat, where amicus contended that mechanically

enforcing a plan’s reimbursement terms “will lead to

inequitable results where a plan participant’s third party

recovery is less than the plan’s subrogation claim plus

attorney’s fees.” 112 F.3d at 117. Because the participant’s

third party settlement fully financed his attorney’s fees and

the reimbursement claim in that case, we declined to address

“hypothetical scenarios.” Id.; see also Ryan, 78 F.3d at 124-

25 (noting that plan’s terms limited reimbursement to a

beneficiary’s net recovery after legal expenses).

14

purpose to protect contractually defined benefits”) (internal

quotation marks omitted); Shank, 500 F.3d at 837 (“We are

not persuaded that the Committee’s full recovery according to

the terms of the plan is not ‘appropriate’ relief within the

meaning of ERISA” because “we generally adopt new rules

of federal common law only if they are necessary to fill gaps

left by the express provisions of ERISA and to effectuate the

purposes of the statute.”); cf. Ryan, 78 F.3d at 127 (refusing

to recognize a new federal “common law right” under

ERISA). Because “[a]mong the primary purposes of ERISA

is to ensure the integrity of written plans,” these courts

refused to “apply common law theories to alter the express

terms of a written plan.” Shank, 500 F.3d at 838.

We disagree with those circuits that have held that it

would be pioneering federal common law to apply equitable

limitations on an equitable claim. Congress purposefully

limited the relief available to fiduciaries under § 503(a)(3) to

“appropriate equitable relief.” See Knudson, 534 U.S. at 209.

While our sister circuits pay homage to this language, they

appear to reason that its requirement has been met so long as

the suit can be properly characterized as an equitable action,

without also asking whether the relief sought in the action is

“appropriate” under traditional equitable principles and

doctrines. But the Supreme Court has rejected a permissive

reading of this language that would mean “all relief available

for breach of trust at common law” because “[t]he authority

of courts to develop a ‘federal common law’ under ERISA is

not the authority to revise the text of the statute.” Mertens,

508 U.S. at 258-59 (citation omitted). By categorically

excluding the equitable limitations that § 502(a)(3)’s

reference to equitable remedies necessarily contains, the

15

Shank and O’Hara courts depart from the text of ERISA. See

Knudson, 534 U.S. at 211 n.1.

Moreover, as the Supreme Court recently

demonstrated in Cigna, the importance of the written benefit

plan is not inviolable, but is subject—based upon equitable

doctrines and principles—to modification and, indeed, even

equitable reformation under § 502(a)(3). 131 S. Ct. at 1879

(finding that the District Court’s “reformation of the terms of

the plan, in order to remedy the false or misleading

information CIGNA provided . . . . [was within] a traditional

power of an equity court”). While the basis for the

reformation in Cigna was intentional misrepresentations by

the employer and fiduciary, the broader and more relevant

point is that when courts were sitting in equity in the days of

the divided bench (or even when they apply equitable

principles today) contractual language was not as sacrosanct

as it is normally considered to be when applying breach of

contract principles at common law. We do not suggest that

US Airways’ conduct was fraudulent or dishonest in the way

that Cigna’s was, but equitable principles can apply even

where no one has committed a wrong.

Thus, we agree that one of Congress’s purposes in

enacting ERISA was to “ensure the integrity of written,

bargained-for benefit plans.’” O’Hara, 604 F.3d at 1236.

But, as demonstrated by the language of § 502(a)(3) and now

Cigna, Congress expressly tempered that purpose by limiting

fiduciaries to “appropriate equitable relief,” thus invoking

principles that it surely knew are sometimes less deferential to

absolute freedom of contract. In other words, “vague notions

of a statute’s ‘basic purpose’ are . . . inadequate to overcome

the words of its text regarding the specific issue under

16

consideration.” Knudson, 534 U.S. at 220 (quoting Mertens,

508 U.S. at 261) (emphasis in original).

Finally, US Airways raises a practical concern that the

application of equitable principles will increase plan costs and

premiums. This concern does not address the statutory

language and is, in any event, unsubstantiated by the

circumstances of this case. US Airways cannot plausibly

claim it charged lower premiums because it anticipated a

windfall.

D.

Applying the traditional equitable principle of unjust

enrichment, we conclude that the judgment requiring

McCutchen to provide full reimbursement to US Airways

constitutes inappropriate and inequitable relief. Because the

amount of the judgment exceeds the net amount of

McCutchen’s third-party recovery, it leaves him with less

than full payment for his emergency medical bills, thus

undermining the entire purpose of the Plan. At the same time,

it amounts to a windfall for US Airways, which did not

exercise its subrogation rights or contribute to the cost of

obtaining the third-party recovery. Equity abhors a windfall.

See Prudential Ins. Co. of America v. S.S. American Lancer,

870 F.2d 867, 871 (2d Cir. 1989).

Therefore, we will vacate the District Court’s final

judgment. We do not decide on appeal what would constitute

appropriate equitable relief for US Airways because “equity

calls for full factual findings rather than our speculation.”

Nat’l City Mortg. Co. v. Stephen, 647 F.3d 78, 87 n.8 (3d Cir.

2011); see also, e.g., Hecht Co. v. Bowles, 321 U.S. 321, 329

17

(1944) (“The essence of equity jurisdiction has been the

power of the Chancellor to do equity and to mould each

decree to the necessities of the particular case.”); see

generally Holland v. Florida, 130 S. Ct. 2549, 2563 (2010)

(discussing the bounded flexibility of courts of equity).

Instead, we will remand for the District Court to “exercise its

discretion under § 502(a)(3).” Cigna, 131 S. Ct. at 1880.

On remand, the District Court should engage in any

additional fact-finding it finds necessary. In addition to the

considerations discussed above, factors such as the

distribution of the third-party recovery between McCutchen

and his attorneys at Rosen Louik & Perry, the nature of their

agreement, the work performed, and the allocation of costs

and risks between the parties to this suit may inform the

Court’s exercise of its discretion to fashion “appropriate

equitable relief.”

III.

Because we conclude that US Airways’ claim for

reimbursement under § 502(a)(3) of ERISA is subject to

equitable limitations, we will vacate the District Court’s final

judgment and remand for further proceedings consistent with

this opinion.

18