Date: 06-20-2012

Case Style: Leah A. Bilyeu v. Morgan Stanley Long Term Disability Plan

Case Number: 10-16070

Judge: Raymond C. Fisher

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Arizona (Maricopa County)

Plaintiff's Attorney: Randolph G. Bachrach, Chandler, Arizona; Kevin Koelbel (argued), Chandler, Arizona, for the appellant.

Defendant's Attorney: Ann Martha Andrews, Kristina N. Holmstrom and Lawrence Kasten (argued), Lewis and Roca LLP, Phoenix, Arizona, for the appellee.

Description: Leah A. Bilyeu appeals the district court’s dismissal of her claim challenging the termination of her long-term disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132. Bilyeu also challenges the district court’s grant of summary judgment in favor of First Unum Life Insurance Company (Unum) on Unum’s counterclaim for restitution of overpaid benefits. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

We vacate the judgment in favor of Unum on Bilyeu’s claim for denial of benefits. We hold that the district court abused its discretion by dismissing this claim for failure to exhaust administrative remedies. The exhaustion requirement should have been excused because Bilyeu acted reasonably in light of Unum’s ambiguous communications and failure to engage in a meaningful dialogue.

We also vacate the judgment in favor of Unum on Unum’s counterclaim for reimbursement of overpaid long-term disability benefits. Unum has not shown that it is seeking equitable relief because it has not satisfied the elements for an equitable lien by agreement, which is the only form of equitable relief Unum has asserted. These elements are not satisfied because the particular fund subject to the lien, having been dissipated, is no longer in Bilyeu’s possession. Unum thus seeks only the imposition of personal liability against Bilyeu, to be paid out of her general assets. That is quintessentially legal, rather than equitable, relief.

I. BACKGROUND

Bilyeu was employed by Discover Financial Services from 1987 through April 2004. Compl. ¶ 8. Morgan Stanley Long- Term Disability Plan (the Plan) provides benefits for longterm disabilities to Discover employees. Id. ¶¶ 4-5. Unum is the Plan’s claim administrator, and also the insurer and payor of Plan benefits. Id. ¶¶ 6-7.

Alleging she suffered from several medical conditions that prevented her from materially performing the duties of any occupation, Bilyeu filed a long-term disability (LTD) claim with Unum in April 2004. Id. ¶¶ 9-10. These conditions included Behçet’s disease, fatigue and anxiety. Id. ¶¶ 12-18; Clerk’s Record 13-2 at 3. Unum approved the claim in October 2004. Compl. ¶ 11. Under the Plan, benefits for disabilities arising from mental illness are limited to 24 months. Id. ¶ 19. Unum concluded that Bilyeu’s disability was subject to the mental illness limitation. Id. Bilyeu disputed that conclusion. Id. ¶¶ 12-20.

Nearing the 24-month deadline, Dr. Sharon Hogan, a medical consultant for Unum, called Bilyeu’s treating physician, Dr. Kenneth Proefrock, to discuss her medical condition. Clerk’s Record 15.1 at 5-7. On December 6, 2006, Dr. Hogan sent a summary of the conversation to Dr. Proefrock, asking him to respond within 10 business days if he believed the letter inaccurately summarized their conversation. Id. at 6. The letter reflected disagreement between Dr. Hogan and Dr. Proefrock regarding the nature of Bilyeu’s limitations. Dr. Hogan believed “Bilyeu’s fatigue in large part arises from her anxiety and depression, since her Behçet’s is not very active.”

Id. at 6. It was Dr. Proefrock’s opinion, however, “that her fatigue is mainly physical.” Id. Dr. Hogan also believed that Bilyeu “should have full-time sedentary work capacity,” an assessment with which Dr. Proefrock disagreed. Id. at 5; Clerk’s Record 13-2 at 3.

On December 27, 2006, Unum sent Bilyeu a termination of benefits letter. Clerk’s Record 13-2. Unum terminated benefits under the Plan provision limiting disability benefits due to mental illness to 24 months. Id. at 3. The letter reported that, although “fatigue can result from Behcet’s, . . . your anxiety and depression are the more likely causes of your fatigue.” Id.

It said, “because your claim is subject to a 24 month mental [illness] limitation and we have now provided 24 months of benefits, we will stop paying benefits on your claim as of December 03, 2006 and your claim will be closed at this time.” Id. at 4. The letter also recorded Unum’s conclusion that “you have full time sedentary work capacity” and thus “no longer meet the definition of disability from a physical perspective.” Id. The letter noted Dr. Proefrock’s contrary determination that Bilyeu was unable to return to work. Id. at

3.

The letter then advised Bilyeu:

If you have additional information to support your request for disability benefits, it must be sent to my attention for further review at the address noted on this letterhead, within 180 days of the date you receive this letter.

However, if you disagree with our determination and want to appeal this claim decision, you must submit a written appeal. This appeal must be received by us within 180 days of the date you receive this letter. Id. at 4. The “address noted on this letterhead” was:

First Unum Life Insurance Company

The Benefits Center

PO Box 100158

Columbia, SC 29202-3158

Phone: 1-800-858-8843

Fax: 1-800-447-2498

www.unumprovident.com

Id. at 1.

After receiving Unum’s termination of benefits letter, Bilyeu asked Dr. Proefrock to respond to the letter. Compl. ¶ 22. Dr. Proefrock did so, writing a letter to Unum on April 19, 2007. Id. ¶ 23. Dr. Proefrock’s letter was addressed “To Whom It May Concern” and, it appears, faxed to 1-800-447- 2498 — the number listed in the letterhead of Unum’s December 27, 2006 termination of benefits letter as the place to send “additional information to support your request for disability benefits.” Clerk’s Record 15-1 at 2-4.

Unum construed Dr. Proefrock’s letter as “new information,” but concluded that it did not “change [the] prior decision” to terminate benefits. Id. at 9. Unum, however, never communicated this conclusion to Bilyeu or, for that matter, contacted Bilyeu or Dr. Proefrock at all in response to the letter. Compl. ¶ 27.

In November 2008, Bilyeu filed a complaint against Unum, alleging that Unum wrongfully terminated benefits under the 24-month mental illness limitation because “[t]he substantial weight of the medical opinion contained in the claim file reasonably supports a finding that [her] disability is not due to ‘mental illness,’ rather, it is due to an autoimmune condition which was exacerbated by anxiety and mental/emotional stressors in [her] life.” Id. ¶ 20. The complaint sought a reinstatement of benefits under 29 U.S.C. § 1132(a)(1)(B). Id. at ¶ 44.

Unum filed an answer and a counterclaim. In its counterclaim, Unum sought reimbursement of overpaid long-term disability benefits. Unum alleged that it had paid Bilyeu LTD benefits subject to her promise to reimburse Unum for any overpayment arising from her receipt of disability benefits from any other source, including social security disability benefits. Answer and Counterclaim ¶¶ 5-10. Bilyeu subsequently received an award of social security benefits, resulting in an overpayment of LTD benefits in the amount of $36,597.82. Id. ¶¶ 11-12. Unum’s counterclaim sought to recover the overpayment from Bilyeu. Specifically, Unum asserted a claim for equitable relief under ERISA, 29 U.S.C. § 1132(a)(3), as well as a claim for breach of contract. Id. at 7-8.

Unum then moved to dismiss Bilyeu’s denial-of-benefits claim for failure to exhaust administrative remedies. Clerk’s Record 13. In that motion, Unum contended that the December 2006 termination of benefits letter required Bilyeu to file a written appeal within 180 days, which she failed to do. Id. Unum thus sought dismissal of Bilyeu’s claim. The district court granted the motion, concluding that Bilyeu failed to exhaust administrative remedies and dismissing Bilyeu’s claim with prejudice. Clerk’s Record 21 at 7.

Unum then filed a motion for summary judgment on its counterclaim for reimbursement of overpaid benefits. Clerk’s Record 28. Unum argued that it was entitled to relief under ERISA because it “has an equitable lien by agreement over the long-term disability benefits that it overpaid to Bilyeu.” Id. at 1. Bilyeu opposed the motion, arguing that Unum could not satisfy the requirements for an equitable lien by agreement because it could not establish that the overpaid LTD benefits remained in her possession. Clerk’s Record 30 at 2.

The parties stipulated that, by the time Bilyeu was awarded social security benefits, “she had dissipated at least a portion of her LTD benefits.” Joint Statement of Facts ¶ 15. The district court granted Unum’s motion, and it directed the clerk of court “to enter judgment in the amount of $36,597.82 in favor of [Unum].” Clerk’s Record 32 at 6.

The court entered judgment and Bilyeu timely appealed. Clerk’s Record 33, 35.

II. STANDARD OF REVIEW

The district court dismissed Bilyeu’s denial-of-benefits claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Both parties, however, have relied on matters outside the pleadings. Consistent with circuit practice addressing exhaustion, we construe Unum’s motion as an unenumerated motion to dismiss. In addressing that motion, a court may look beyond the pleadings and decide disputed issues of fact.

See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 881 (9th Cir. 2011) (en banc); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). We review for an abuse of discretion a district court’s refusal to grant an exception to ERISA’s exhaustion requirement. See Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073, 1076 (9th Cir. 2011). We review de novo the grant or denial of summary judgment. See Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1041 (9th Cir. 2011).

III. BILYEU’S DENIAL-OF-BENEFITS CLAIM: EXHAUSTION OF ADMINISTRATIVE REMEDIES

We hold that the district court abused its discretion by dismissing Bilyeu’s denial-of-benefits claim for a failure to exhaust administrative remedies.

[1] “ERISA itself does not require a participant or beneficiary to exhaust administrative remedies in order to bring an action under § 502 of ERISA, 29 U.S.C. § 1132.” Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008). We have, however, adopted a “prudential exhaustion requirement.” Id. Thus, “[a]s a general rule, an ERISA claimant must exhaust available administrative remedies before bringing a claim in federal court.” Barboza, 651 F.3d at 1076. “However, when an employee benefits plan fails to establish or follow ‘reasonable claims procedures’ consistent with the requirements of ERISA, a claimant need not exhaust because his claims will be deemed exhausted.” Id. (quoting 29 C.F.R. § 2560.503-1(l)). ERISA, moreover, requires “a meaningful dialogue between ERISA plan administrators and their beneficiaries.” Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997).

[2] Here, Unum’s December 27, 2006 termination of benefits letter advised Bilyeu of two courses of action, either of which she was required to undertake within 180 days: (a) providing “additional information to support your request for disability benefits” or (b) “if you disagree with our determination and want to appeal this claim decision, you must submit a written appeal.” After receiving Unum’s letter, Bilyeu asked her treating physician, Dr. Proefrock, to respond, and he did so, writing a letter to Unum on April 19, 2007 — well within the 180-day window required in Unum’s letter. Dr. Proefrock addressed his letter “To Whom It May Concern” and faxed it to 1-800-447-2498 — the number listed in the letterhead of Unum’s December 27, 2006 termination of benefits letter as the place to send “additional information to support your request for disability benefits.”

Unum construed Dr. Proefrock’s letter as “new information,” but concluded that it did not “change [the] prior decision” to terminate benefits. Unum, however, never communicated this conclusion to Bilyeu or, for that matter, contacted Bilyeu or Dr. Proefrock at all in response to the letter. Meanwhile, according to Unum, Bilyeu’s deadline to appeal expired sometime after June 25, 2007, 180 days after the termination of benefits letter.

Under the circumstances of this case, exhaustion must be excused. Bilyeu contends that she read the termination of benefits letter as presenting two options — she could either (a) submit additional information or (b) file a written appeal. The letter was ambiguous, so Bilyeu’s reading was not unreasonable.

On the contrary, given that it would have made no sense to appeal the adverse benefits decision while simultaneously submitting additional medical information from her physician, as she was invited to do by Unum, her reading of the letter was entirely appropriate.

We recognize that the letter is also susceptible to the reading proffered by Unum — that Bilyeu was required to file an appeal within 180 days even if she submitted additional medical information. But the letter could have been, and should have been, much clearer on this point. Bilyeu was not represented by counsel and, we presume, had no legal training. She should not be saddled with a loss of her legal rights because she misconstrued a confusingly worded communication from her plan’s claims administrator. Cf. Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 870 (9th Cir. 2008) (“[The insurer’s] communications with [the insured] and her doctors are hardly a model of clarity; they certainly do not explain ‘in a manner calculated to be understood by the claimant’ what [she] must do to perfect her claim.”); White v. Jacobs Eng’g Grp. Long Term Disability Benefit Plan, 896 F.2d 344, 350 (9th Cir. 1990) (“When a benefits termination notice fails to explain the proper steps for appeal, the plan’s time bar is not triggered.”). A communication from a claims administrator to a plan participant should clearly apprise her of her rights and obligations under the plan. Unum’s letter did not do so. Nor did Bilyeu receive timely notice that Unum considered her reading of the letter to be wrong, because Unum never responded to Dr. Proefrock’s timely letter.1 We hold that the district court abused its discretion by barring Bilyeu’s claim.

IV. UNUM’S COUNTERCLAIM

A. Bilyeu Waived Her Argument That Unum Lacks Statutory Standing as a Fiduciary

Bilyeu argues for the first time on appeal that Unum lacks standing to seek equitable restitution under ERISA because Unum is not a plan “fiduciary.” This is a challenge to Unum’s statutory standing. Cf. Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 971 (9th Cir. 2012) (“Whether [the plaintiff] is a participant for purposes of ERISA is a substantive element of his claim, not a prerequisite for subject matter jurisdiction.”); Harris v. Amgen, Inc., 573 F.3d 728, 732 n.3 (9th Cir. 2009) (same); Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009) (same); Parker v. Bain, 68 F.3d 1131, 1138 (9th Cir. 1995) (treating a plaintiff ’s status as a “fiduciary” under ERISA as a question of statutory standing).

Unlike constitutional standing, which is jurisdictional, we presume that statutory standing may be waived. See Leeson, 671 F.3d at 975 n.12; cf. Pershing Park Villas Homeowners Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000) (distinguishing constitutional standing from prudential standing, and holding that “a party waives objections to non-constitutional standing not properly raised before the district court”); Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 538 (9th Cir. 1995) (same). By failing to raise this argument before the district court, Bilyeu thus waived her challenge to Unum’s standing as a fiduciary under ERISA.

B. The District Court Improperly Awarded Legal Relief

Unum paid Bilyeu long-term disability benefits pursuant to Bilyeu’s agreement to reimburse Unum “any overpayment resulting from my receipt of benefits from other sources.” Joint Statement of Facts ¶ 12. The agreement stated in pertinent part:

Please pay me the disability benefit with no reduction for amounts received by other sources until a final determination of my eligibility to receive those benefits is made. I understand that this may result in an overpayment by the Insurer. I agree to notify the Insurer within 48 hours of receiving notice of any and all decisions, to supply the Insurer with a copy of the final decision, and to repay any overpayment incurred as a result of receiving any other benefits from those sources specified in the policy. . . . By selecting [this] Option . . . , I understand that the Insurer has agreed to pay me an unreduced benefit based upon my written promise herein to pay the Insurer any overpayment resulting from my receipt of benefits from other sources, as outlined in my policy.

I agree to reimburse the Insurer any such overpayment within thirty (30) days of my receipt of such funds.

If I fail to pay the Insurer the overpayment within the thirty (30) day period specified above, I understand that the Insurer may reduce future payments under the policy in order to recover the overpaid benefits.

I also understand that I shall be liable to the Insurer for the full amount of any such overpayment, plus applicable statutory interest, and for all reasonable costs (including attorney’s fees) of collection of the overpaid benefits.

Id. Bilyeu subsequently received social security disability benefits, but did not reimburse Unum. Id. ¶¶ 16-19. Unum filed a counterclaim for reimbursement of the overpaid benefits.

[3] Ordinarily, a contracting party in Unum’s position would file a claim for breach of contract and seek relief in the form of a judgment for money damages.2 Under ERISA, however, a plan fiduciary such as Unum can seek only “equitable relief” from a plan participant such as Bilyeu. 29 U.S.C. § 1132(a)(3)(B). Section 1132(a) provides:

A civil action may be brought . . . (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.

29 U.S.C. § 1132(a) (emphasis added). Unum therefore cannot sue for damages under ERISA; it must show that it is seeking equitable relief.

Unum contends it has made this showing because it is seeking an equitable lien by agreement. Clerk’s Record 28 at 1, 6- 7; Answering Brief at 36. The Supreme Court has recognized an equitable lien by agreement as a form of “equitable relief” authorized by § 1132(a)(3)(B). See Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 364-65 (2006).3 The only question, therefore, is whether Unum has satisfied the requirements for an equitable lien by agreement in this case. We begin by summarizing Sereboff.

The Sereboffs were beneficiaries of a health insurance plan governed by ERISA and administered by Mid Atlantic. See id. at 359. The plan provided for payment of covered medical expenses, subject to an “Acts of Third Parties” provision requiring a beneficiary to reimburse Mid Atlantic in the event of recovery from a third-party tortfeasor. See id. This provision applied when a beneficiary was sick or injured as a result of the act or omission of another person or party, and required a beneficiary who received benefits under the plan for such injuries to reimburse Mid Atlantic for those benefits from all recoveries from a third party, whether by lawsuit, settlement or otherwise. See id. After the Sereboffs were injured in an automobile accident and the plan paid their medical expenses, the Sereboffs recovered a tort settlement from third parties. See id. at 360. Mid Atlantic filed suit under ERISA seeking to recover their medical payments from the Sereboffs’ tort recovery. See id. The Sereboffs agreed to set aside from the tort recovery a sum equal to the amount Mid Atlantic claimed, and to preserve that sum in a segregated investment account pending the outcome of the suit. See id.

The Supreme Court held that Mid Atlantic could enforce the terms of the Acts of Third Parties provision through an equitable lien by agreement — “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id. at 363-64 (alteration in original) (quoting Barnes v. Alexander, 232 U.S. 117, 121 (1914)) (internal quotation marks omitted). Sereboff’s promise to reimburse Mid Atlantic from any recovery from a third party created a lien upon that recovery as soon as it was created. See id. at 364. Mid Atlantic was allowed to follow a portion of the tort recovery into the Sereboffs’ hands, and to impose upon that portion an equitable lien. See id.

The Court also made clear that, to satisfy the requirements for an equitable lien by agreement, Mid Atlantic was not required to trace the funds in the Sereboffs’ tort recovery back to Mid Atlantic’s own possession. See id. at 364-65. The Sereboffs had argued that “strict tracing rules” applied to a claim for equitable restitution. See Reply Brief for Petitioners at 8- 11, Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356 (2006) (No. 05-260), 2006 WL 717048 at *8-11. They maintained that Mid Atlantic could not satisfy those tracing rules because its “claim is not for return of particular money that the Plan paid to the Sereboffs,” but rather was a claim to “recover new money paid out by third parties.” Id. at 9.

The Court declined to say whether a rule requiring the plaintiff to trace the fund or property back to the plaintiff’s own possession would apply to a claim for equitable restitution.

That question was beside the point, because Mid Atlantic was seeking an equitable lien by agreement, not equitable restitution. With regard to an equitable lien by agreement, the Court held that “no tracing requirement of the sort asserted by the Sereboffs applies.” Sereboff, 547 U.S. at 365 (emphasis added). The Court’s decision in Barnes confirmed that this was the case: “The plaintiffs in Barnes could not identify an asset they originally possessed, which was improperly acquired and converted into property the defendant held, yet that did not preclude them from securing an equitable lien” over a specifically identified fund. Id. The Court did not purport to do away with the long established principle that an equitable lien by agreement applies only to “particular funds or property in the defendant’s possession.” CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1879 (2011) (second emphasis added) (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002)) (internal quotation marks omitted).

[4] As relevant here, we read Sereboff as establishing at least three criteria for securing an equitable lien by agreement in an ERISA action. First, there must be a promise by the beneficiary to reimburse the fiduciary for benefits paid under the plan in the event of a recovery from a third party. Second, the reimbursement agreement must “specifically identif[y] a particular fund, distinct from the [beneficiary’s] general assets,” from which the fiduciary will be reimbursed. Id. at 364. Third, the funds specifically identified by the fiduciary must be “within the possession and control of the [beneficiary].”

Id. at 363.

1. Here, the first criterion is clearly satisfied. Bilyeu does not dispute that she promised to reimburse Unum for an overpayment of long-term disability benefits arising from her receipt of benefits from other sources, including social security disability benefits.

2. It is less clear whether the second criterion is satisfied. Unum contends that the reimbursement agreement specifically identified the overpaid long-term disability benefits as the particular fund, distinct from Bilyeu’s general assets, from which it is to be reimbursed. In Unum’s view, once Bilyeu received her social security disability benefits, the specifically identified fund — the overpaid long-term disability benefits — came into existence, and Unum was allowed to impose a lien against that fund. This argument is plausible, but problematic. Unlike the third party tort recovery in Sereboff and the contingency fee in Barnes, the overpaid disability benefits are not a particular fund, but a specific amount of money encompassed within a particular fund — the long-term disability benefits Unum paid to Bilyeu. As an amount of money, the overpayment is specific. As property or as a fund, however, the overpayment is lacking in specificity because it is an undifferentiated component of a larger fund. The overpayment has never existed as a distinct object or fund. See 53 C.J.S. Liens § 19 (2012) (“In order that an equitable lien may arise by contract, the agreement of the parties must deal with some specific property, and it is also essential that the property or fund intended to be appropriated or charged should be identified or described with a reasonable degree of certainty.” (emphasis added) (footnote omitted)); 4 John Norton Pomeroy, A Treatise on Equity § 1235, p. 696 (5th ed. 1941) (explaining that an equitable lien applies to “some particular property, real or personal, or fund, therein described or identified” (emphasis added)); Sereboff, 547 U.S. at 364 (holding that the requirements for an equitable lien by agreement were satisfied because the “plan specifically identified a particular fund” (emphasis added)); Barnes, 232 U.S. at 121 (holding that “a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing” (emphasis added)).

Unum’s reimbursement agreement would have avoided these problems if, consistent with Sereboff, it had identified the third party recovery — here, Bilyeu’s social security dis- ability benefits — as the particular fund enlisted to serve as security for the overpayment of benefits. Of course, that would not have worked in this case: Under the Social Security Act, Bilyeu could not assign her social security benefits, and Unum could not attach them. See 42 U.S.C. § 407(a).4 “The purpose of the exemption created by Congress in 42 U.S.C. § 407 is to protect social security beneficiaries from creditors’ claims.” Dionne v. Bouley, 757 F.2d 1344, 1355 (1st Cir. 1985). By identifying the overpaid benefits as the particular fund, rather than the social security benefits, Unum attempts to circumvent the congressional prohibition on assignment and attachment of social security benefits.

[5] 3. Even assuming that Unum could satisfy the second criterion, Unum has not satisfied the third criterion — the requirement that the specifically identified fund be within Bilyeu’s “possession and control.” Sereboff, 547 U.S. at 363.

In Sereboff, Mid Atlantic sought to recover specifically identified funds that were “within the possession and control of the Sereboffs, . . . set aside and preserved in the Sereboffs’ investment accounts.” Id. (alteration and internal quotation marks omitted). That the funds were extant, and in the Sereboffs’ possession, was essential to the Court’s holding that Mid Atlantic was seeking equitable, rather than legal, relief. See

id. at 362-63.

Here, by contrast, Bilyeu asserts, and Unum has not refuted, that Bilyeu has spent the overpaid benefits.5 Unum, therefore, is not seeking to recover a specified fund that is preserved and in Bilyeu’s possession. Instead, Unum is seeking a judgment requiring Bilyeu to pay money out of her general assets. In Sereboff’s words, Unum is seeking “the imposition of personal liability,” rather than enforcement of an “equitable lien on particular property.” Id. at 362 (quoting Knudson, 534 U.S. at 214) (internal quotation marks omitted).

This is quintessentially legal, rather than equitable, relief. See Mertens v. Hewitt Assocs., 508 U.S. 248, 255 (1993) (“Money damages are, of course, the classic form of legal relief.”).

We recognize that a number of circuits have interpreted Sereboff’s discussion of tracing rules as a signal that a fiduciary can assert an equitable lien — presumably against a beneficiary’s general assets — even if the beneficiary no longer possesses the specifically identified funds. See Funk v. CIGNA Grp. Ins., 648 F.3d 182, 194 n.14 (3d Cir. 2011) (opining that Sereboff “strongly implies that . . . the defendant need not possess the property at the time relief is sought in order for the relief to be equitable — any post-agreement possession will suffice”); Cusson v. Liberty Life Assurance Co. of Boston, 592 F.3d 215, 231 (1st Cir. 2010) (holding that the insurer’s claim was for equitable relief under § 1132(a)(3), even though the insurer “has not identified a specific account in which the funds are kept or proven that they are still in [the participant’s] possession,” because “the contract between [the participant] and [the insurer] put [the participant] on notice that she would be required to reimburse [the insurer] for an amount equal to what she might get from Social Security”); Longaberger Co. v. Kolt, 586 F.3d 459, 466 (6th Cir. 2009) (under ERISA, “an equitable lien by agreement does not require tracing or maintenance of a fund in order for equity to allow repayment”); Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614, 621 (7th Cir. 2008) (allowing a claim under “29 U.S.C. § 1132(a)(3) even if the benefits it paid [the beneficiary] are not specifically traceable to [the beneficiary’s] current assets because of commingling or dissipation”); Gilchrest v. Unum Life Ins. Co. of Am., 255 F. App’x 38, 44-45 (6th Cir. 2007) (unpublished) (holding that the participant’s “undisputed averment that the overpayments had been dissipated would seem to be of no avail,” because Sereboff “clarified that to establish an equitable lien by agreement, strict tracing of funds is not required”). But see Epolito v. Prudential Ins. Co. of Am., 737 F. Supp. 2d 1364, 1380 (M.D. Fla. 2010) (“[T]his Court is not convinced that Sereboff’s holding eliminates the requirement that the insurer identify an intact, identifiable res, in the possession of the insured, on which it seeks to impose the equitable lien.”); cf. Amschwand v. Spherion Corp., 505 F.3d 342, 346 (5th Cir. 2007) (“[T]he sine qua non of restitutionary recovery available under § 502(a)(3) is a defendant’s possession of the disputed res.”); id. at 347 (“[P]ossession is the key to awarding equitable restitution in the form of a constructive trust or equitable lien.”).

We are unpersuaded by the view of those other circuits.

The tracing issue in Sereboff was whether Mid Atlantic could obtain an equitable lien against specifically identified funds when Mid Atlantic had never possessed those funds itself — an issue that has no relevance here. See Sereboff, 547 U.S. at 364-65. Nothing in Sereboff suggests that a fiduciary can enforce an equitable lien against a beneficiary’s general assets when specifically identified funds are no longer in a beneficiary’s possession.

This conclusion — that the fiduciary must recover from specifically identified funds in the beneficiary’s possession, rather than from general assets — is consistent not only with Sereboff but also with the Supreme Court’s decisions in Knudson and CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011).

In Knudson, the Court said, “where the property sought to be recovered or its proceeds have been dissipated so that no product remains, the plaintiff’s claim is only that of a general creditor, and the plaintiff cannot enforce a constructive trust of or an equitable lien upon other property of the defendant.” 534 U.S. at 213-14 (alterations and internal quotation marks omitted) (quoting Restatement (First) of Restitution § 215 cmt. a, p. 867 (1936)). In Amara, decided just last Term, the Court once again underscored that, “traditionally speaking, relief that sought a lien or a constructive trust was legal relief, not equitable relief, unless the funds in question were ‘particular funds or property in the defendant’s possession.’ ” 131 S. Ct. at 1879 (second emphasis added) (quoting Knudson, 534 U.S. at 213). Here, Unum has arguably identified a particular fund — the overpaid benefits — but that fund is no longer in Bilyeu’s possession.

Unum’s argument that an equitable lien can be enforced against general assets when the specifically identified property has been dissipated finds no support in the traditional doctrine governing equitable liens by agreement. See 4 Pomeroy, A Treatise on Equity § 1235, p. 696 (5th ed. 1941) (explaining that an equitable lien may be enforced when the specifically identified property is in the hands of the contractor — or in the hands of a subsequent possessor with notice of the lien, a qualification not relevant to Bilyeu’s case). If the property or fund subject to the lien (or proceeds to which the property or fund can be traced), are no longer in the defendant’s possession, then there is no res against which the equitable lien can be enforced. See 53 C.J.S. Liens § 46 (2012) (“[A] lien that is not satisfied voluntarily may be enforced by an action to foreclose, in which a court may order the property securing the debt or obligation to be sold and its proceeds applied on the demand of the creditor in whose favor the lien exists.” (footnote omitted)); Restatement (First) of Restitution § 161 cmt. e (1937) (“An equitable lien can be established and enforced only if there is some property which is subject to the lien. Where property is subject to an equitable lien and the owner of the property disposes of it and acquires other property in exchange, he holds the property so acquired subject to the lien . . . . So also, where the property which is subject to the lien is mingled with other property in one indistinguishable mass, the lien can be enforced against the mingled mass . . . . Where, however, the property subject to the equitable lien can no longer be traced, the equitable lien cannot be enforced . . . .” (emphasis added)); id. § 215(1) (“[W]here a person wrongfully disposes of the property of another but the property cannot be traced into any product, the other has merely a personal claim against the wrongdoer and cannot enforce a constructive trust or lien upon any part of the wrongdoer’s property.”); id. § 215 cmt. a (“[I]f it is shown that the property or its proceeds have been dissipated so that no product remains, . . . the claimant cannot enforce . . . an equitable lien upon other property of the wrongdoer, and has only a personal claim against the wrongdoer.”); Restatement (Third) of Restitution § 58 cmt. c (2011) (“To obtain a property interest in something other than the original asset, and not merely restitution of its value in money, the claimant must normally show that the property claimed is the traceable product of the original asset.”); id. § 60(3) (“A claimant who is entitled to restitution but who is unable to identify specific property from which restitution is available has a remedy via money judgment that ranks equally with the claims of general creditors.”).

In sum, although the district court’s decision may have produced an equitable result, the court erred because Unum has not shown that it is seeking equitable relief. We remand, affording Unum the opportunity to establish that it has identified a particular fund (the second criterion) and that the overpaid long-term disability benefits, or assets to which the overpaid benefits can be traced, remain in Bilyeu’s possession (the third criterion). See 53 C.J.S. Liens § 24 (2012) (“An equitable lien for advances may exist where advancements of money or funds are made on the faith of certain property, real or personal, under an agreement or circumstances showing that it was the intention of the parties to pledge such property as security for the advancements, provided the specific property or its proceeds on which the advancements were invested can be traced or identified.” (emphasis added) (footnote omitted)); 2 Dan B. Dobbs, Law of Remedies § 6.1(4) (2d ed. 1993) (discussing enforcement of an equitable lien in the case of commingled funds).6

There is much to be said for maintaining uniformity among the federal circuits, and we should strive to do so when we can. See Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002). ERISA, however, provides only for “equitable relief,” 29 U.S.C. § 1132(a)(3)(B), and Unum has not shown that the relief granted here — “judgment in the amount of $36,597.82 in favor of First Unum Life Insurance Company,” to be paid out of Bilyeu’s general assets — falls into that category. The district court did not identify a particular fund and impose upon it an equitable lien. Instead, the district court’s order reads like a money judgment, which is what it is. As we explained in Bonneville Power Administration v. Washington Public Power Supply System, 956 F.2d 1497 (9th Cir. 1992),

“An equitable lien can be established and enforced only if there is some property which is subject to the lien.” In this case there is no “identifiable res” on which a lien can be imposed, because the allegedly misallocated funds have been disbursed. Therefore the court erred in granting . . . a lien on funds.

Id. at 1507 (citation omitted) (quoting Restatement (First) of Restitution § 161 cmt. e (1937)).7 We are bound to adhere to that principle today.


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See: http://www.ca9.uscourts.gov/datastore/opinions/2012/06/20/10-16070.pdf

Outcome: The district court abused its discretion by dismissing Bilyeu’s denial-of-benefits claim for a failure to exhaust administrative remedies. The court also erred when it concluded that Unum had satisfied the requirements for an equitable lien by agreement. The judgment of the district court is therefore vacated and the case is remanded for further proceedings. VACATED AND REMANDED. Costs of appeal are awarded to Bilyeu.

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