                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2004

Skretvedt v. EI DuPont de Nemours
Precedential or Non-Precedential: Precedential

Docket No. 02-3620




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Recommended Citation
"Skretvedt v. EI DuPont de Nemours" (2004). 2004 Decisions. Paper 552.
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                     PRECEDENTIAL          Before: ALITO, AMBRO and
                                            CHERTOFF, Circuit Judges
       UNITED STATES
      COURT OF APPEALS                    (Opinion filed: June 16, 2004)
    FOR THE THIRD CIRCUIT
                                     John M. Stull, Esquire (Argued)
                                     1300 North Market Street
      Nos. 02-3620 & 02-4283         P.O. Box 1947
                                     Wilmington, DE 19899

     ORRIN T. SKRETVEDT,                    Attorney for Appellant

                        Appellant    Raymond M. Ripple, Esquire (Argued)
                                     Donna L. Goodman, Esquire
                v.                   Suite D-7012
                                     E.I. DuPont de Nemours & Company
   E.I. DUPONT DE NEMOURS, a         Legal Department
Delaware corporation; PENSION AND    1007 Market Street
 RETIREMENT PLAN; HOSPITAL           Wilmington, DE 19898
AND MEDICAL-SURGICAL PLAN;
   DENTAL ASSISTANCE PLAN;                  Attorneys for Appellee
NONCONTRIBUTORY GROUP LIFE
         INSURANCE PLAN;
  CONTRIBUTORY GROUP LIFE
 INSURANCE PLAN; TOTAL AND                 OPINION OF THE COURT
            PERMANENT
   DISABILITY INCOME PLAN;
  SAVINGS INVESTMENT PLAN;
                                     AM BRO, Circuit Judge
           TAX REFORM
 ACT STOCK OWNERSHIP PLAN;                  Orrin T. Skretvedt seeks, inter alia,
 SHORT TERM DISABILITY PLAN          interest on the delayed payment of benefits
                                     due him under two plans governed by the
                                     Employee Retirement Income Security Act
        On Appeal from the           of 1974 (“ERISA”). Skretvedt received
    United States District Court     benefits from one of those plans pursuant
    for the District of Delaware     to a court judgment, while his employer
 D.C. Civil Action No. 98-cv-00061   voluntarily paid him benefits under the
   (Honorable Mary P. Thynge)        other plan after that judgment was entered.
                                     The Magistrate Judge denied Skretvedt’s
                                     request for interest with respect to the
    Argued September 16, 2003        delayed payment of benefits under both
                                     plans in light of the Supreme Court’s
decision in Great-West Life & Annuity              a l l o w a c la im a n t , u n d er s o m e
Insurance Co. v. Knudson, 534 U.S. 204             circumstances, to seek interest on the
(2002).                                            delayed payment of ERISA benefits as
                                                   “appropriate equitable relief” under §
        Based on Anthuis v. Colt Industries
                                                   502(a)(3)(B). However, the Magistrate
Operating Corp., 971 F.2d 999 (3d Cir.
                                                   Judge concluded that such a claim for
1992), we determine that an award of
                                                   “interest” would be one seeking “money
prejudgment interest on a judgment
                                                   damages,” which Great-West has termed
awarding benefits pursuant to ERISA
                                                   “the classic form of legal relief,” Great-
§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B),
                                                   West, 534 U.S. at 210 (emphasis in
follows the Supreme Court’s decisions in
                                                   original; internal quotation marks and
Board of Commissioners of Jackson
                                                   citations omitted), that is not available as
County, Kansas v. United States, 308 U.S.
                                                   “appropriate equitable relief” under
343, 352 (1939), and Rodgers v. United
                                                   § 502(a)(3)(B).
States, 332 U.S. 371, 373 (1947),
providing that where “[t]he issue is                      While we agree that the Supreme
uncontrolled by any formal expression of           Court has bridled the scope of relief
the will of Congress,” Board of                    available under § 502(a)(3)(B), we are
Commissioners, 308 U.S. at 349, “interest          convinced that, looking more specifically
is not recovered according to a rigid theory       at the Court’s requirement that the relief
of compensation for money withheld, but            requested under § 502(a)(3)(B) have been
is given in response to considerations of          “typically available in equity,” Skretvedt’s
fairness. It is denied when its exaction           pursuit of interest on the wrongful or
would be inequitable.”        Id. at 352.          delayed withholding of his benefits is not
Accordingly, we conclude that Great-               a request for money damages, but rather a
West, construing the scope of “appropriate         request for restitution that typically would
equitable relief” available to a litigant          have been available in equity.           We
under ERISA § 502(a)(3)(B), 29 U.S.C.              conclude that a constructive trust is the
§ 1132(a)(3)(B), does not apply to a               appropriate device for such a request, and
request for prejudgment interest on a              that Skretvedt may seek interest on the
judgment award ed pu rsuan t to                    delayed payment of his ERISA benefits in
§ 502(a)(1)(B).                                    accordance with the principles discussed in
                                                   Fotta v. Trustees of United Mine Workers
       With respect to Skretvedt’s request
                                                   of America, 319 F.3d 612, 617-18 (3d Cir.
for interest on the delayed payment of a
                                                   2003) (“Fotta II”).
second type of benefits that his employer
voluntarily paid after much delay, the
Magistrate Judge acknowledged that our
prior holding in Fotta v. Trustees of the
United Mine Workers of America, 165
F.3d 209 (3d Cir. 1998) (“Fotta I”), would

                                               2
                I. Background                            sue letter. On September 29, 1995, acting
                                                         on advice of counsel, Skretvedt signed a
A.        Facts 1
                                                         “Settlement Agreement and Release of All
        Skretvedt was employed by E.I. du                Claims” with DuPont. We previously
Pont de Nemours and Company2 from June                   noted that this agreement “released all of
28, 1974, until February 7, 1995. In early               [Skretvedt’s] employment-related claims
1994, Skretvedt was working as a Senior                  against DuPont except for his application
Research Environmental Engineer when                     for disability benefits, which DuPont
he began receiving treatments for work-                  agreed to review in a ‘neutral’ manner.”
related anxiety from his family physician.               Skretvedt I, 268 F.3d at 171.
Skretvedt took a leave of absence from his
                                                                  Following       the     sett l em ent
job on November 11, 1994, and did not
                                                         agreement, DuPont’s three-member Board
return to work at DuPont thereafter.
                                                         of Benefits and Pensions (“Benefits
DuPont began investigating during this
                                                         Board”) reviewed Skretvedt’s application
period whether Skretvedt would qualify
                                                         for disability benefits, and determined that
for disability benefits. For reasons that the
                                                         he was ineligible because, the Board
parties dispute, DuPont terminated
                                                         claimed, he had failed to show that he was
Skretvedt on February 7, 1995.
                                                         “permanently incapable of performing the
         Skretvedt filed a claim with the                duties of [his] job with the degree of
E q u a l E m p l o y m e n t O p p o r t u n it y       efficiency required by the Company, at the
Commission alleging that DuPont violated                 time of [his] termination.” Skretvedt I, 268
the Americans with Disabilities Act by                   F.3d at 172. Skretvedt was also advised
discriminating against him because of his                that, in order to succeed in appealing the
anxiety disorder. The EEOC found no                      Board’s determination, he would have to
violation based upon the information that                submit “additional objective evidence that
Skretvedt submitted, and issued a right-to-              will indicate a total impairment of
                                                         function,” such as “MRI, X-ray reports and
                                                         complete medical evaluations.”              Id.
      1
      As this appeal raises only issues of               Skretvedt contended, and DuPont denied,
law, we state undisputed facts that provide              that he and one of his doctors sent three
background for our legal determinations.                 letters to the Board’s designated person for
A detailed statement of the facts                        appeals, requesting clarification with
underlying the parties’ dispute can be                   respect to the types of “objective medical
found in Skretvedt v. E.I. du Pont de                    evidence” he would need to perfect his
Nemours & Co., 268 F.3d 167, 170-73 (3d                  application on appeal in light of the fact
Cir. 2001) (“Skretvedt I”).                              that his claimed disability is psychological.
                                                         After receiving no response, he claims, he
  2
   We collectively refer to the defendant                submitted a formal appeal to the Board on
ERISA plans and Skretvedt’s former                       May 16, 1997. Nonetheless, no further
employer as “DuPont.”

                                                     3
response was received.                             Income Plan” (“T&P benefits”).
B.     Procedural Background                               Count VI alleged that Skretvedt was
                                                   eligible to participate in a DuPont tax-
      Skretvedt filed an eight count
                                                   deferred savings program known as SIP,
complaint in the United States District
                                                   and sought damages with respect to his
Court for the District of Delaware on
                                                   contributions in SIP having been paid out
February 4, 1998.
                                                   prematurely (in light of his having been, he
       Count I sought benefits from the            alleged, wrongfully denied the right to
“Incapability Retirement” pension program          participate in the program after his
(“incapability benefits”), and alleged that        termination).
DuPont’s Benefits Board failed to inform
                                                          Count VII claimed that Skretvedt
Skretvedt under ERISA § 503, 29 U.S.C.
                                                   had been wrongfully denied further
§ 1133, of the reasons for denying him
                                                   participation in a DuPont stock ownership
benefits.
                                                   plan known as TRASOP, and sought
       Count II claimed medical benefits           reinstatement of TRASOP benefits and
through a DuPont benefits program known            certain damages resulting from the
as MEDCAP and reimbursement for                    premature termination of his participation
expenses incurred as a result of MEDCAP            in the plan.
benefits not having been provided as of the
                                                         Count VIII contended that
date of his termination.
                                                   Skretvedt was improperly denied benefits
        Count III asserted a right to dental       under DuPont’s short term disability
benefits through a DuPont benefits                 (“STD”) plan.
program known as DAP and
                                                           Among other things, Skretvedt also
reimbursement for expenses incurred as a
                                                   sought prejudgment interest, postjudgment
result of DAP benefits having been denied.
                                                   interest, and reasonable attorney’s fees
        Count IV alleged that Skretvedt was        with respect to each claim.
due a $3,000 payment under a DuPont
                                                           Skretvedt moved for summary
long-term life insurance plan known as the
                                                   judgment pursuant to Fed. R. Civ. P. 56,
“Noncontributory Plan” as a result of his
                                                   arguing, inter alia, that there was no
becoming disabled. Skretvedt also sought
                                                   genuine material dispute of fact as to the
declaratory relief that would deem him
                                                   Benefits Board having acted in an arbitrary
eligible for participation in DuPont’s
                                                   and capricious manner, or having abused
“Contributory Plan” life insurance
                                                   its discretion, and that he was entitled to
program, and sought life insurance
                                                   the award of benefits he requested.
benefits under its Noncontributory Plan.
                                                         DuPont also moved for summary
      Count V requested benefits from
                                                   judgment, arguing, inter alia, that there
the “Total and Permanent Disability
                                                   was no evidence to support a finding that

                                               4
the Board acted in an arbitrary and                  “vacate[d] the District Court’s order
capricious manner, thereby entitling them            granting summary judgment on the count
to summary judgment. On September 6,                 challenging the Board’s denial of
2000, the Magistrate Judge granted                   Skretvedt’s application for T& P benefits
summary judgment in favor of DuPont on               and remand[ed] it to the District Court,”
all claims, and denied Skretvedt’s motion            assuming “that the District Court will
for summary judgment. She concluded,                 direct that DuPont’s [Benefits] Board
inter alia, that “there is no genuine issue of       consider this claim in the first instance,
material fact upon which plaintiff could be          since even though Skretvedt is incapable
successful [in showing that the Board had            of performing the duties of his previous
acted in an arbitrary and capricious                 position at DuPont, he may nevertheless be
manner]” and that “a genuine issue does              ineligible for T&P benefits.” Id. at 185.3
not exist as to the propriety of the Board’s
                                                            In light of our opinion, on remand
action. . . .” Skretvedt v. E.I. du Pont de
                                                     the Magistrate Judge entered a judgment
Nemours & Co., 119 F. Supp. 2d 444, 453-
                                                     on December 13, 2001, in favor of
55 (D. Del. 2000).
                                                     Skretvedt “on his claim for incapability
          Skretvedt appealed the grant of            benefits.” DuPont granted incapability
summary judgment in favor of DuPont and              benefits on March 6, 2002, in response to
the denial of summary judgment in his                that judgment. On the same day, without
favor with respect to his claims for                 Skretvedt’s having to resort to further
incapability and T&P benefits only. We               judicial proceedings, DuPont granted T&P
held that “[b]ecause the medical evidence            benefits upon reevaluating Skretvedt’s
that Skretvedt presented makes it clear that         claim in light of our opinion.4
he meets the eligibility standards for
incapability benefits, and the Board can
point to no conflicting medical evidence,              3
                                                         We also remanded Skretvedt’s request
 . . . the Board’s decision was arbitrary and        that he be awarded attorney’s fees, noting
capricious because it was ‘without reason’           that such a request is one for the
and it was ‘unsupported by substantial               Magistrate Judge to consider using her
evidence.’” Skretvedt I, 268 F.3d at 184.            discretion, guided by the five-factor
Accordingly, we reversed the Magistrate              analysis set out in McPherson v.
Judge’s summary judgment order “in favor             Employees’ Pension Plan of American Re-
of DuPont and denying summary judgment               Insurance Co., 33 F.3d 253, 254 (3d Cir.
in favor of Skretvedt on the claim for               1994). See Skretvedt I, 268 F.3d at 185
incapability benefits[,] . . . and . . .             n.10.
remanded to the District Court with
                                                           4
directions to grant summary judgment in                     Skretvedt’s incapability and T&P
favor of Skretvedt on the claim for                  benefits were subsequently adjusted by
incapability benefits.” Id. We further               DuPont in his favor on April 15, 2002, and
                                                     again on April 16, 2002.

                                                 5
        On April 1, 2002, Skretvedt                    Judge, referring to Skretvedt’s Other
submitted to the Magistrate Judge an                   Claims Brief as a “Motion for Additional
“Opening Brief in Support of Claims for                Compensation,” addressed the merits of
Short Term Disability Benefits, Interest on            each of the requests contained in the brief.
Delayed Payment of Benefits and Related                The Court concluded that Skretvedt was
Tax Reimbursement Claims (corrected)”                  not entitled as a matter of law to the
(the “Other Claims Brief”). Although he                interest, tax-rela ted compensation,
had pursued only his claims in Counts I                TRASOP adjustments, and adjustments to
and V for incapability and T&P benefits in             his incapability and T&P benefits that he
his appeal to our Court in Skretvedt I, and            sought. Furthermore, STD benefits, the
although we remanded only with respect to              Court held, were not available because: (1)
those claims, Skretvedt sought to raise                the relevant statute of limitations had
again claims for which the Magistrate                  lapsed prior to Skretvedt’s request for
Judge had previously granted summary                   those benefits; (2) the settlement
judgment to DuPont, as discussed above.                agreement Skretvedt signed with DuPont
The brie f req ues ted, inter alia ,                   waived any claim to STD benefits; and (3)
compensation with respect to DuPont’s                  employees with work-related injuries, such
denial of medical benefits under Count II,             as Skretvedt, were not eligible for STD
compensation for his having been                       under the terms of the plan.
prematurely removed from the TRASOP
                                                               Skretvedt filed a motion for
plan under Count VII, and an award of
                                                       reconsideration on September 4, 2002, and
STD benefits under Count VIII. The brief
                                                       then filed a notice of appeal of the August
also sought interest on the delayed
                                                       21, 2002, order on September 20, 2002,
payment of all of his benefits and
                                                       which was docketed at No. 02-3620. The
c o m p e n s a t io n f o r a d v e r s e ta x
                                                       Magistrate Judge denied the motion for
consequences Skretvedt faced for having
                                                       reconsideration on November 12, 2002.
received back payments of benefits in the
                                                       Skretvedt filed an amended notice of
same tax year. The brief did not specify
                                                       appeal on November 14, 2002, seeking to
what action it was requesting the
                                                       appeal the August 21, 2002, and
Magistrate Judge to take, and did not
                                                       November 12, 2002, orders,5 which was
contain a formal motion, but instead in its
                                                       docketed at No. 02-428 3.               We
“ C o n c lu s i o n ” s e c t io n s t a te d :
“WHEREFORE, Skretvedt presents his
view of STD, interest on delayed payments                5
                                                           Skretvedt incorrectly reported the date
and raises germane issues needing to be
                                                       of the November 12, 2002, order in his
resolved in his favor.” Other Claims Brief
                                                       amended notice of appeal as November 13,
at 12. DuPont submitted a memorandum
                                                       2002. As this order reaffirms the August
opposing Skretvedt’s claims.
                                                       21, 2002, judgment, we refer hereafter
       On August 21, 2002, the Magistrate              (unless the context requires otherwise) to
                                                       that judgment only.

                                                   6
consolidated both timely appeals.6                   contest the issue of appellate jurisdiction,
                                                     we have the duty to raise the issue sua
             II. Jurisdiction
                                                     sponte.”     Commonwealth. of Pa. v.
          The Magistrate Judge had subject           Flaherty, 983 F.2d 1267, 1275 (3d Cir.
matter jurisdiction over this matter                 1993). We must, accordingly, determine
pursuant to 29 U.S.C. § 1132(f) and 28               whether the orders were final under 28
U.S.C. § 1331. Both parties assert that we           U.S.C. § 1291.
have final order jurisdiction under 28
                                                             In order to examine our current
U.S.C. § 1291 to review the Magistrate
                                                     jurisdiction, we first address our Court’s
J u d g e ’ s o r d e r (a n d ord e r o n
                                                     decision and remand order in Skretvedt I.
reconsideration) disposing of the relief
                                                     Prior to that decision, the Magistrate Judge
requested in Skretvedt’s Other Claims
                                                     granted summary judgment on all of
Brief.7 “Although the parties do not
                                                     Skretvedt’s claims in favor of DuPont in
                                                     September 2000. As noted above, we
   6
     While these appeals were pending,               issued a limited remand with respect to the
Skretvedt moved before the M agistrate               claims for incapability and T&P benefits,
Judge for attorney’s fees and costs                  and directed the Magistrate Judge to
pursuant to ERISA § 502(g), 29 U.S.C.                consider the attorney’s fees issue in her
§ 1132(g). His motion was granted, but he            discretion. The Magistrate Judge entered
was awarded less than he requested.                  a judgment, pursuant to our opinion and
Skretvedt appealed that award, which was             order, that completely disposed of the
docketed at No. 03-2805 and has since                incapability benefits claim.8        DuPont
been decided by another panel of this
Court.
                                                     is final under 28 U.S.C. § 1291. See, e.g.,
       7
         Where, as here, the parties have            Abrams v. Lightolier Inc., 50 F.3d 1204,
consented under 28 U.S.C. § 636(c)(1) to             1209 n.1 (3d Cir. 1995).
allowing a magistrate judge to “conduct
                                                           8
any or all proceedings in a jury or nonjury                    The judgment entered by the
civil matter and order the entry of                  Magistrate Judge with respect to
judgment in the case,” id., 28 U.S.C.                incapability benefits reads in its entirety:
§ 636(c)(3) provides for an “appeal                  “Pursuant to the Order of the Third Circuit
directly to the appropriate United States            Court of Appeals dated October 5, 2001,
court of appeals from the judgment of the            Judgment is entered on behalf of the
magistrate judge in the same manner as an            plaintiff on his claim for incapability
appeal from any other judgment of a                  benefits.” Ordinarily, “[w]here the order
district court.” Id.; see also Fed. R. Civ. P.       appealed from finds liability and imposes
73(c).       Accordingly, final order                a monetary remedy, but does not reduce
jurisdiction to review such an order arises          that award to a specific figure, this court
from 28 U.S.C. § 636(c)(3) to the extent it          will usually find the order interlocutory.”

                                                 7
                                                    subsequently granted T&P benefits
                                                    without Skretvedt’s having to seek a
                                                    judgment. Neither party, however, sought
Century Glove, Inc. v. First Am. Bank of
                                                    formally to dispose of the claim for T&P
New York, 860 F.2d 94, 98-99 (3d Cir.
                                                    benefits (e.g., by dismissing Count V
1988); see Prod. and Maint. Employees’
                                                    voluntarily to the extent that it sought T&P
Local 504 v. Roadmaster Corp., 954 F.2d
                                                    benefits or moving for summary judgment
1397, 1401 (7th Cir. 1992) (“A decision
                                                    on mootness grounds because the benefits
awarding but not quantifying damages
                                                    had been paid voluntarily).
normally is not final because it leaves a
question that is not collateral to the merits               In disposing of Skretvedt’s Other
to be resolved in the district court.”).            Claims Brief, the Magistrate Judge, as
However, “even when a judgment fails to             noted already, addressed on the merits
fix the amount of damages, if the                   Skretvedt’s arguments with respect to
determination of damages w ill be                   various other benefits sought in other
mechanical and uncontroversial, so that             counts of his complaint (e.g., Count VII
the issues the defendant wants to appeal            for TRASOP benefits, Count VIII for STD
before that determination is made are very          benefits). This had no effect on the
unlikely to be mooted or altered by it—in           finality of the August 21, 2002, order, but
legal jargon, if only a ‘ministerial’ task          with respect to the claim for T&P benefits
remains for the district court to perform—          that remained pending, the August 21,
then immediate appeal is allowed.” Id. at           2002, opinion and order did not explicitly
1401.                                               dispose of that claim. While the order did
        While the Magistrate Judge did not          address Skretvedt’s additional request in
quantify the accrued incapability benefits          his complaint for interest on the delayed
due to Skretvedt, DuPont applied a                  payment of those benefits, the claim for
“mechanic al” formu la under t he                   T&P benefits itself was not directly
incapability plan and awarded Skretvedt
back incapability benefits. Skretvedt’s
only issue with the application of that             Skretvedt in calculating his award was
formula was whether he should have been             “mechanical” and Skretvedt only disputes
credited for six additional months of               one aspect of that application (which was
company service because, in his view, he            fully disposed of by the Magistrate Judge),
was entitled to six months of STD                   we conclude that the Magistrate Judge’s
benefits, and his length of service with            order (and order on reconsideration)
DuPont should have been extended by six             “end[ed] the litigation on the merits” with
months. The Magistrate Judge addressed              respect to that claim and “le[ft] nothing for
this argument, and Skretvedt now raises it          the court to do but execute the judgment.”
on appeal.                                          Gerardi v. Pelullo, 16 F.3d 1363, 1369 (3d
        Accordingly, because applying the           Cir. 1994) (internal quotation marks and
terms of the incapability benefits plan to          citations omitted).

                                                8
addressed.                                                  With respect to Skretvedt’s claim
                                                    for the underlying award of T&P benefits,
        Ordinarily, in the absence of a Fed.
                                                    he represented to the Magistrate Judge that
R. Civ. P. 54(b) certification, “there is no
                                                    DuPont had paid those benefits. See Other
final order if claims remain unresolved and
                                                    Claims Brief at 1 (“T&P Plan benefits
their resolution is to occur in the district
                                                    recently were granted by DuPont’s claims
court.” Aluminum Co. of Am. v. Beazer
                                                    agent, Aetna.”). Skretvedt did not argue
East, Inc., 124 F.3d 551, 557 (3d Cir.
                                                    that DuPont in any way failed to award
1997). We recognized in Beazer East,
                                                    T&P benefits or miscalculated the award
however, that
                                                    of T&P benefits, except as noted infra note
       to determine the effect of a                 14. The Magistrate Judge also recognized
       district court’s decision–and                in her August 21, 2002, opinion that T&P
       therefore to determ ine                      benefits had been awarded. See Magis.
       whether there is a final                     Judge Op. at 2 (“[Subsequent to Skretvedt
       ord er–it is so m e ti m es                  I,] the DuPont Board of Benefits and
       necessary to look beyond                     Pensions granted plaintiff [T&P] benefits,
       the pleadings. A final order                 and [i]ncapability benefits approving a
       is not absent just because                   start date of February 8, 1995.”).
       the district court failed to                 Accordingly, we determine that the claim
       adjudicate all of the claims                 for T&P benefits was sufficiently resolved
       that were at one time                        in the August 21, 2002, opinion and order
       pleaded. Inste ad, a n                       where the Magistrate Judge recognized
       a p p e l l a t e c o ur t m u s t           that payment of T&P benefits was moot.
       determine whether, at the                    That order was therefore a final order10
       time it is examining its
       jurisdiction, there remain
       unresolved issues to be                      judgment on a claim that has been
       adjudicated in the district                  abandoned’ by a party. Lusardi v. Xerox
       court.                                       Corp., 975 F.2d 964, 970 n. 9 (3d
                                                    Cir.1992) (quoting Jones v. Celotex Corp.,
                                                    867 F.2d 1503, 1503-04 (5th Cir. 1989)
Id. at 560.9                                        (per curiam)).”) (additional citation
                                                    omitted).
                                                      10
                                                         The August 21, 2002, order also met
  9
     See also Hindes v. F.D.I.C., 137 F.3d          the procedural requirements of Fed. R.
148, 156 n.3 (3d Cir. 1998) (“We have               Civ. P. 58 for an order that begins the
case law indicating that ‘[a]n order that           running of the time for appeal. See Local
effectively ends the litigation on the merits       Union No. 1992 of the Int’l Bhd. of Elec.
is an appealable final judgment even if the         Workers v. The Okonite Co., 358 F.3d 278,
district court does not formally include            285-86 (3d Cir. 2004) (order satisfies Rule

                                                9
within the meaning of 28 U.S.C. § 1291.11            relevant portions of the Magistrate Judge’s
                                                     August 21, 2002, decision on appeal
                                                     address purely legal issues in the context
        III. Standard of Review
                                                     of what is essentially a summary judgment
       “[W]e must look to the course of              determination. “Inasmuch as we are
the proceedings in the district court and the        deciding this appeal by resolving questions
basis for its decision to determine the              of law, we are exercising de novo [i.e.,
standard of review.” Blasband v. Rales,              plenary] review.”         Bowers v. Nat’l
971 F.2d 1034, 1039 (3d Cir. 1992). The              Collegiate Athletic Ass’n, 346 F.3d 402,
                                                     410 (3d Cir. 2003).

58’s separate document requirement where                     The motion for reconsideration in
it (1) is self-contained and separate from           this case dealt with the Magistrate Judge’s
the opinion, (2) sets forth the relief               legal determinations. “The decision to
granted, and (3) omits the District Court’s          deny a Motion for Reconsideration is
reasons for disposing of the parties’                within the discretion of the District Court,
motions as it did).                                  but ‘if the court’s denial was based upon
                                                     the interpretation and application of a legal
   11
       The outstanding claim for statutory           precept, review is plenary.’” Le v. Univ. of
attorney’s fees and costs under ERISA had            Pa., 321 F.3d 403, 405-06 (3d Cir. 2003)
no effect on the finality of the Magistrate          (quoting Koshatka v. Pa. Newspapers,
Judge’s August 21, 2002, order on the                Inc., 762 F.2d 329, 333 (3d Cir.1985)); see
merits. See Gleason v. Norwest Mortgage,             McAlister v. Sentry Ins. Co., 958 F.2d 550,
Inc., 243 F.3d 130, 137 (3d Cir. 2001)               552-53 (3d Cir. 1992) (same).
(“When an outstanding claim for
                                                        IV. Claims Litigated Other Than
attorneys’ fees is by a statutory prevailing
                                                         Those Remanded by Skretvedt I
party, the unresolved issue of those fees
does not prevent judgment on the merits                      As noted, on remand from Skretvedt
from being final.”) (citing Budinich v.              I, Skretvedt raised various claims
Becton Dickinson & Co., 486 U.S. 196,                regarding TRASOP benefits, medical
202 (1988)); Napier v. Thirty or More                premiums, STD benefits, and other claims
Unidentified Fed. Agents, 855 F.2d 1080,             asserted in various counts in his complaint
1090 (3d Cir. 1988) (“In [Budinich], the             (the “ancillary claims”). Skretvedt now
Supreme Court held that a determination              appeals from the Magistrate Judge’s denial
of liability and damages is final despite a          of relief on remand with respect to those
pending determination of costs and                   claims. As discussed above, however,
attorney’s fees. The rationale of Budinich           Skretvedt did not pursue any of these
is that the determination of costs and fees
following entry of judgment involves
considerations distinct from the underlying
merits of the action itself.”).

                                                10
claims in his prior appeal to our Court. 12            challenge the Magistrate Judge’s grant of
                                                       summary judgment in favor of DuPont
        We have held on numerous
                                                       with respect to these ancillary claims in his
occasions that “[a]n issue is waived unless
                                                       first appeal to our Court and thus clearly
a party raises it in its opening brief, and for
                                                       waived any arguments in favor of reversal
those purposes a passing reference to an
                                                       with respect to those claims, having
issue will not suffice to bring that issue
                                                       achieved success on the issues he did
before this court.” Laborers’ Int’l Union
                                                       appeal in Skretvedt I, Skretvedt now seeks
v. Foster Wheeler Corp., 26 F.3d 375, 398
                                                       to litigate those abandoned ancillary
(3d Cir.1994); see, e.g., Kopec v. Tate, 361
                                                       claims.
F.3d 772, 775 n.5 (3d Cir. 2004); Tse v.
Ventana Med. Sys., Inc., 297 F.3d 210, 225                     We have consistently rejected such
n.6 (3d Cir. 2002). Although he did not                attempts to litigate on remand issues that
                                                       were not raised in a party’s prior appeal
                                                       and that were not explicitly or implicitly
     12
          Skretvedt’s opening brief from               remanded for further proceedings. “An
Skretvedt I at one point averred generally             issue that is not addressed in an appellant’s
that he sought “to secure employee                     brief is deemed waived on appeal.
benefits under related plans of the DuPont             Appellants’ alternative theor[ies] of
company” after referencing incapability                recovery [were] not before this court in the
benefits. Appellant’s Skretvedt I Opening              earlier appeal; a fortiori, [they] could not
Brief at 3. Skretvedt additionally indicated           be remanded to the district court.
that he sought the “status of [a] retiree              Consequently, we cannot consider [them]
under the “[incapability benefits] pension             here [on appeal from the District Court’s
plan and related plans.” Id. Of course,                proceedings on remand].” Wisniewski v.
“where important and complex issues of                 Johns-Manville Corp., 812 F.2d 81, 88 (3d
law are presented, a . . . detailed exposition         Cir. 1987) (citations omitted); see also
of argument [in a party’s appellate brief] is          Frank v. Colt Indus., Inc., 910 F.2d 90,
required to preserve an issue.” Frank v.               100 (3d Cir. 1990) (party “waived . . .
Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir.           argument by its failure to present it in the
1990). Skretvedt’s brief did not address               proceedings prior to this appeal,”
the merits of his claims with respect to               including proceedings “when the case was
these “related plans” and was clear in its             before us on the previous appeal”).
conclusion section as to the only relief he
                                                              As we explained in Cowgill v.
sought on appeal.           There Skretvedt
                                                       Raymark Industries, Inc., 832 F.2d 798 (3d
“request[ed] the Court [to] reverse the
                                                       Cir. 1987),
Order . . . granting Defendants summary
judgment and enter summary judgment for                       [a]dherence to the rule that a
the Appellant with an order to the District                   party waives a “contention
Court to grant him his Incap and T&P                          that could have been but
benefits.” Id. at 32 (emphasis added).

                                                  11
          was not raised on a prior
          appeal,” Munoz v. County of
          Imperial, 667 F.2d 811, 817
                                                     288 (3d Cir. 1968). Nonetheless, “[a]
          (9th Cir.), cert. denied, 459
                                                     district court may consider, as a matter of
          U.S. 825, 103 S.Ct. 58, 74
                                                     first impression, those issues not expressly
          L.Ed.2d 62 (1982), is, of
                                                     or implicitly disposed of by the appellate
          course, necessary to the
                                                     decision.” In re Chambers Dev. Co., Inc.,
          orderly conduct of litigation.
                                                     148 F.3d 214, 225 (3d Cir. 1998) (internal
          Failure to follow this rule
                                                     quotation marks omitted); see also, e.g.,
          would lead to the bizarre
                                                     Casey v. Planned Parenthood of
          result, as stated admirably
                                                     Southeastern Pa., 14 F.3d 848, 857 (3d
          by Judge Friendly, “that a
                                                     Cir. 1994).
          party who has chosen not to
                                                             As we explained in Cowgill:
          argue a point on a first
                                                             When a court of appeals
          appeal should stand better as
                                                             reverses a judgment and
          regards the law of the case
                                                             r e m a n d s f o r f u r th e r
          than one who had argued
                                                             consideration of a particular
          and lost.”         Fogel v.
                                                             i s s u e , l e a v i n g o t h er
          Chestnutt, 668 F.2d 100,
                                                             determinations of the trial
          109 (2d Cir.1981), cert.
                                                             court intact, the unreversed
          denied, 459 U.S. 828, 103
                                                             determinations of the trial
          S.Ct. 65, 74 L.Ed.2d 66
                                                             court normally continue to
          (1982). . . .
                                                             work an estoppel. 1B J.
                                                             Moore, J. Lucas & T.
                                                             Currier, Moore’s Federal
Id. at 802 n.2 (quoting Laffey v. Northwest
                                                             Practice ¶ 30.416[2], p. 517
Airlines, Inc., 740 F.2d 1071, 1089-90
                                                             (3d ed. 1984). When the
(D.C. Cir. 1984)) (alterations omitted).13
                                                             estoppel is operative in
                                                             proceedings in the same
                                                             case on remand, courts
     13
         Our decision in Cowgill rested                      frequently speak in terms of
primarily on collateral estoppel, which we                   the law of the mandate or
described as, at least in this context,                      the law of the case rather
incorporating the same underlying                            than collateral estoppel but
principle as the so-called “mandate rule.”                   the underlying principle is
Under the mandate rule, a species of the                     the same. Todd & Co., Inc.
law of the case doctrine, “a trial court must                v. S.E.C., 637 F.2d 154 (3d
comply strictly with the mandate directed                    Cir.1980) (when an
to it by the reviewing court.” Ratay v.                      appellate court affirms in
Lincoln Nat. Life Ins. Co., 405 F.2d 286,

                                                12
                                                        circumstances, address claims that
                                                        Skretvedt previously abandoned. 1 4
         Accordingly, we shall not now
                                                        Accordingly, we dismiss the portion of
consider arguments with respect to the
                                                        Skretvedt’s current appeal addressing
ancillary claims Skretvedt waived in his
                                                        claims asserted in his complaint other than
prior appeal. “The judicial system’s
                                                        Counts I and V for incapability and T&P
interest in finality and in efficient
                                                        benefits, respectively, and address herein
administration dictates that, absent
                                                        only relief requested with respect to those
extraordinary circumstances, litigants
                                                        counts.15
should not be permitted to relitigate issues
that they have already had a fair
opportunity to contest.” Cowgill, 832 F.2d                14
                                                            With respect to STD benefits, we will
at 802 (quoting Todd & Co., Inc. v. S.E.C.,             not now consider, for example, whether
637 F.2d 154, 156 (3d Cir.1980)) (internal              Skretvedt is entitled to those benefits and
quotation marks omitted). Our limited                   the effect of any award of them on the
remand in Skretvedt I granted nearly all of             calculation of his incapability and T&P
the relief requested. We will not now, in               benefits.
this second appeal, given the absence of a
                                                          15
s h o w i n g o f a n y e x t r a o rd i n a r y              Skretvedt has requested additionally
                                                        that damages (“tax compensation”) be
                                                        awarded with respect to the increased tax
        part and reverses in part, all                  liability he incurred because his accrued
        issues necessarily disposed                     ERISA benefits were paid in a single tax
        of in the affirmance become                     year. Had DuPont properly approved his
        law of the case even though                     benefits claim when it was submitted, he
        the case is remanded for                        suggests, his tax liability would have been
        p r o ce e d i n g s o n o t h er               lower because benefit payments would
        issues).                                        have been made monthly and he would not
Cowgill, 832 F.2d at 802.                               have received one large payment of
        In light of Skretvedt’s clear waiver            accrued benefits in a single tax year.
of the ancillary claims, we need not rely on            Skretvedt argues that the Magistrate Judge
the mandate rule or law of the case in                  failed to apply Gelof v. Papineau, 829 F.2d
reaching our determination. Skretvedt had               452, 455 n.2 (3d Cir. 1987), a case under
a full and fair opportunity to litigate the             the Age Discrimination in Employment
ancillary claims in his prior appeal, and did           Act. Putting aside that Gelof is not an
not do so. Thus we see no basis under the               ERISA case, it also did “not address . . .
facts of this case for applying any of the              whether such an award should be made in
exceptions to the law of the case doctrine.             all back pay cases” because of the
See In re City of Phila. Litig., 158 F.3d               defendant’s “concession that the judgment
711, 718 (3d Cir. 1998) (discussing                     should properly include the negative tax
exceptions to the law of the case doctrine).            impact of a lump sum payment as an

                                                   13
                                                    V. Interest on the Delayed Payment of
                                                                   Benefits
element of damages. . . .” Id.                             Skretvedt’s Other Claims Brief
                                                    sought, inter alia, interest on the delayed
        Skretvedt additionally suggests that
                                                    payment of incapability and T&P benefits
he would be entitled to tax compensation
                                                    under Counts I and V, respectively. 16 The
as a matter of “contract,” but he has not
                                                    Magistrate Judge analyzed Skretvedt’s
identified any term in any of his ERISA
                                                    request for interest with respect to both
plans that would provide for such a
                                                    forms of benefits under our decision in
remedy. He does argue, however, that tax
                                                    Fotta I, which held that a claimant whose
compensation is due him as a matter of
                                                    ERISA benefits were delayed but
restitution, presumably under ERISA
                                                    ultimately paid voluntarily (without a court
§ 502(a)(3)(B). As the Court of Appeals
                                                    judgment having been entered) could,
for the First Circuit has suggested under
                                                    under some circumstances, assert a cause
analogous facts, “[t]his argument is highly
dubious; the tax payments at issue would
seem to be completely distinct from any
ill-gotten profits which might properly be
made subject to a viable restitution claim.”
Armstrong v. Jefferson Smurfit Corp., 30
F.3d 11, 13 n.5 (1st Cir. 1994).                    § 502(a)(3)”); Armstrong, 30 F.3d at 13
                                                    (Mertens “compels the conclusion that
       Skretvedt’s claim for ta x                   plaintiffs are precluded from recovering
compensation would seem to be no more               damages for the federal and state tax
than an ordinary claim for money damages            liabilities they incurred on . . . lump sum
as compensation for losses suffered.                payments”); see also Harsch v. Eisenberg,
Mertens v. Hewitt Associates, 508 U.S.              956 F.2d 651, 661 (7th Cir. 1992).
248, 255 (1993), makes clear that such
                                                        16
claims for money damages are not                             We do not read our mandate in
permissible under § 502(a)(3)(B) because            Skretvedt I as having precluded Skretvedt
they are “the classic form of legal relief”         from seeking interest with respect to the
and are therefore not within the scope of           claims for incapability and T&P benefits
“appropriate equitable relief” allowed              that were on limited remand.         The
under § 502(a)(3)(B). Accordingly, we see           Magistrate Judge clearly had authority to
no basis for such a claim to be brought             conduct further proceedings with respect
under § 502(a)(3)(B). See Farr v. U.S.              to interest on those remanded claims, as
West Communications, Inc., 151 F.3d 908,            that “issue[] [was] not expressly or
916 (9th Cir. 1998) (citing Mertens and             implicitly disposed of by the appellate
holding that “binding precedent compels             decision.” In re Chambers Dev. Co., Inc.,
us to conclude that Plaintiffs may not              148 F.3d at 225 (internal quotation marks
recover their tax benefit losses under              omitted).

                                               14
of action under ERISA § 502(a)(3)(B)17                to interest earned on withheld benefits.
for interest on that delayed payment as a
                                                      A.     Prejudgment Interest on a
form of “appropriate equitable relief.”
                                                             Judgment Procured Pursuant to
Fotta I, 165 F.3d at 214. The Magistrate
                                                             § 502(a)(1)(B)
Judge concluded that “[a]lthough Fotta [I]
may support [a claim for interest], this                     Skretvedt was awarded incapability
court cannot apply Fotta [I] in light of . . .        benefits pursuant to ERISA § 502(a)(1)(B)
[Great-West Life & Annuity Insurance Co.              by way of a court judgment.          This
v. Knudson, 534 U.S. 204 (2002)].”                    provision states:
Magistrate Judge Op. at 9. Simply put, the
                                                             A civil action may be
Magistrate Judge concluded that Fotta I
                                                             brought . . . by a participant
had been implicitly overruled by Great-
                                                             or beneficiary . . . to recover
West. We enter this thicket as a matter of
                                                             benefits due to him under
first impression for our Court.
                                                             the terms of his plan, to
       We conclude first that Great-West                     enforce his rights under the
does not apply to Skretvedt’s claim for                      terms of the plan, or to
prejudgment interest with respect to                         clarify his rights to future
incapability benefits awarded pursuant to                    benefits under the terms of
a court judgm ent unde r ERIS A                              the plan. . . .
§ 502(a)(1)(B).        We then address
separately Skretvedt’s claims for interest
with respect to T&P benefits, which his               Id. Skretvedt’s request for interest with
employer voluntarily paid after several               respect to ERISA benefits he was awarded
years of litigation, and conclude that                p u r s u a n t t o a j u dg m e n t u n d e r
Great-West does not preclude a claim                  § 502(a)(1)(B) is no more than an ordinary
under ERISA § 502(a)(3)(B) for restitution            request for prejudgment interest on a
by way of a constructive trust with respect           judgment obtained pursuant to a federal
                                                      statute. Our Court in Anthuis v. Colt
                                                      Industries Operating Corp., 971 F.2d 999
      17
             Section 502(a)(3)(B) provides:           (3d Cir. 1992), applied to the ERISA
           A civil action may be                      context the long-standing rule that, in the
           brought . . . by a participant,            absence of an explicit statutory command
           beneficiary, or fiduciary . . .            otherwise, district courts have broad
           to obtain other appropriate                discretion to award prejudgment interest
           equitable relief (i) to redress            on a judgment obtained pursuant to a
           such violations or (ii) to                 federal statute.
           enforce any provisions of
                                                             While it is true that
           this subchapter or the terms
                                                             Congress did not mandate
           of the plan. . . .
                                                             p r e j u d g m e nt i n t e re s t
Id.

                                                 15
       payments for other than                         standards     in   granting   prejudgment
       delinquent contributions, we                    interest”).
       have held generally that
                                                               Anthuis relied in part on the
       “[i]n the absence of an
                                                       Supreme Court’s determination in Board
       e x p l i c i t c o n g r e s s io n a l
                                                       of Commissioners of Jackson County,
       directive, the awarding of
                                                       Kansas v. United States, 308 U.S. 343, 352
       prejudgment interest under
                                                       (1939), that, where “[t]he issue is
       federal law is committed to
                                                       uncontrolled by any formal expression of
       the trial court’s broad
                                                       the will of Congress,” id. at 349, “interest
       discretion.” Ambromovage
                                                       is not recovered according to a rigid theory
       v. United Mine Workers,
                                                       of compensation for money withheld, but
       726 F.2d 972, 981-82 (3d
                                                       is given in response to considerations of
       Cir. 1984). Ambromovage
                                                       fairness. It is denied when its exaction
       cited           Board               of
                                                       would be inequitable.” Id. at 352. The
       Commissioners of Jackson
                                                       Supreme Court later explained in Rodgers
       County, Kansas v. United
                                                       v. United States, 332 U.S. 371, 373 (1947),
       States, 308 U.S. 343, 352,
                                                       that
       60 S.Ct. 285, 289, 84 L.Ed.
       313 (1939), in which the                               the failure to mention
       general federal rule was                               interest in statutes which
       announced that prejudgment                             create obligations has not
       interest is to be “given in                            been interpreted by this
       response to considerations                             Court as manifesting an
       of fairness [and] denied                               unequivocal congressional
       when its exaction would be                             purpose that the obligation
       inequitable.”                                          shall not bear interest.
                                                              Billings v. United States,
                                                              232 U.S. 261, 284-288, 34
Id. at 1009 (alterations in original); see                    S.Ct. 421, 425-427, 58
also Schake v. Colt Indus. Operating Corp.                    L.Ed. 596 [(1914)]. For in
Severance Plan for Salaried, Nonunion                         the absence of an
Employees, 960 F.2d 1187, 1190, 1192 n.4                      unequivocal prohibition of
(3d Cir. 1992) (where a judgment has been                     interest on such obligations,
entered in favor of a prevailing ERISA                        this Court has fashioned
plaintiff, “[i]t is undisputed that                           rules which granted or
prejudgment interest typically is granted to                  denied interest on particular
make a plaintiff whole because the                            statutory obligations by an
defendant may wrongly benefit from use                        appraisal         of     the
of plaintiff’s money,” subject to the                         congressional purpose in
District Court’s applying “the appropriate                    imposing them and in the

                                                  16
           light of general principles                      Anth uis, w e applied Board of
           deemed relevant by the                           Commissioners in determining that a
           Court. See, e.g., Royal                          successful ERISA plaintiff could obtain
           Indemnity Co. v. United                          prejudgment interest as part of his or her
           States, [313 U.S. 289,                           award of delayed ERISA benefits.19
           295-97, 61 S.Ct. 995, 997,
           998, 85 L.Ed. 1361 (1941)];
           Board of Com’rs of Jackson                       Rodgers in determining that a “back pay
           County in State of Kansas v.                     award under the Fair Labor Standards Act
           United States, 308 U.S. 343,                     should be presumed to carry . . .
           60 S.Ct. 285, 84 L.Ed. 313                       pre-judgment interest unless the equities in
           [(1939)].                                        a particular case require otherwise”);
                                                            Ambromovage v. United Mine Workers of
Id.                                                         Aa., 726 F.2d 972, 982 n.27 (3d Cir. 1984)
        Applying Board of Commissioners                     (applying Board of Commissioners and
or Rodgers, we have in the past                             Rodgers and determining that “[t]he
determined that prejudgment interest is                     purposes of the provisions of the
available with respect to judgments                         Taft-Hartley Act under which this lawsuit
obtained pursuant to several statutes that                  proceeded is the protection of pension
are silent as to its exaction.18 Moreover, in               beneficiaries and union members. It would
                                                            not be inconsistent with these purposes to
                                                            award aggrieved members of those
                                                            protected classes interest on lost
      18
         See, e.g., Gov’t of V. I. v. Davis, 43             income.”).
F.3d 41, 47 (3d Cir. 1994) (citing Rodgers
                                                              19
and holding that prejudgment interest “is                        Anthuis and Schake are by no means
an aspect of the victim’s actual loss which                 alone in concluding that a successful
must be accounted for in the calculation of                 ERISA plaintiff may be entitled to
restitution in order to effect full                         prejudgment interest as part of his or her
compensation” under the Victim and                          benefits award. See, e.g., Cottrill v.
Witness Protection Act); Poleto v. Consol.                  Sparrow, Johnson & Ursillo, Inc., et al.,
Rail Corp., 826 F.2d 1270, 1274-79 (3d                      100 F.3d 220, 223 (1st Cir. 1996) (“district
Cir. 1987) (applying Rodgers and, where                     court may grant prejudgment interest in its
Congress was silent, “look[ing] to the                      discretion to prevailing fiduciaries,
purposes behind [the] statute as a general                  beneficiaries, or plan participants” in
indication of Congressional purpose,” in                    ERISA cases); Quesinberry v. Life Ins. Co.
d e t e r m in i n g t h e a v a i l a b i l ity o f        of N. Am., 987 F.2d 1017, 1030 (4th Cir.
prejudgment interest under the Federal                      1993) (“ERISA does not specifically
Employers’ Liability Act); Brock v.                         provide for pre-judgment interest, and
Richardson, 812 F.2d 121, 126-27 (3d Cir.                   absent a statutory mandate the award of
1987) (citing Board of Commissioners and                    pre-judgment interest is discretionary with

                                                       17
       Although we wrote in the context of            Anthuis the statutory provision of ERISA
benefits having been awarded pursuant to              under which a plaintiff could obtain
§ 502(a)(1)(B), we did not make explicit in           prejudgment interest as part of her or his
                                                      benefits award. But we did not suggest
                                                      that it would be necessary for a prevailing
                                                      plaintiff to pursue such a claim as “other
the trial court.”) (en banc); Hansen v.
                                                      appropriate equitable relief” under
Cont’l Ins. Co., 940 F.2d 971, 984 n.11
                                                      § 502(a)(3)(B).20 We now make explicit
(5th Cir. 1991) (“[T]o determine whether
an award of prejudgment interest is
appropriate, the court must determine
                                                        20
whether such an award is precluded by the                   We recognize that the panel in Fotta
federal statute that gives rise to the cause          II, in a case where there had been no
of action, and if such an award is not                underlying judgment representing an
precluded, whether it would further the               award of benefits under § 502(a)(1)(B),
congressional policies embodied in the act.           construed Anthuis as allowing for an
ERISA does not preclude an award of                   award of prejudgment interest under
prejudgment interest. Furthermore, . . . we           § 502(a)(3)(B).
have no doubt[] that an award of                             Fotta I . . . determined who
prejudgment interest under ERISA furthers                    has a cause of action under
the purposes of that statute by encouraging                  § 502(a)(3)(B). Before Fotta
plan providers to settle disputes quickly                    I, only an ER ISA
and fairly, thereby avoiding the expense                     beneficiary who had brought
and difficulty of federal litigation.”)                      a legal action to recover
(internal citation omitted); Bricklayers’                    w r o ngf ully w i t h h e ld
Pension Trust Fund v. Taiariol, 671 F.2d                     benefits could sue for
988, 989 (6th Cir. 1982) (“The general rule                  i n t e r e s t     u n d e r
is that in the absence of a statutory                        [§ 502(a)(3)(B)]. See, e.g.,
provision the award of prejudgment                           Anthuis, 971 F.2d at 1010.
interest is in the discretion of the court.”);        Fotta II, 319 F.3d at 617. But as noted,
Dishman v. UNUM Life Ins. Co. of Am.,                 Anthuis itself made no mention of a
269 F.3d 974, 988 (9th Cir. 2001)                     successful ERISA plaintiff who received
(allowing for prejudgment interest on an              benefits under § 502(a)(1)(B) having to
ERISA award); Florence Nightingale                    “sue for interest” under § 503(a)(3)(B).
Nursing Serv., Inc. v. Blue Cross/Blue                Instead, it indicated that “in the district
Shield of Ala., 41 F.3d 1476, 1484 (11th              court’s discretion, prejudgment interest
Cir. 1995) (“The award of an amount of                may be awarded for a denial of pension
prejudgment interest in an ERISA case is              benefits.” Anthuis, 971 F.2d at 1010
a matter committed to the sound discretion            (emphasis added). Accordingly, a district
of the trial court.”) (internal quotation             court under Anthuis could allow for
marks omitted).                                       prejudgment interest as part of the benefits

                                                 18
that, in accordance with Board of                           granted would otherwise fall
Commissioners and Rodgers, an ERISA                         short of making the claimant
plaintiff who prevails under § 502(a)(1)(B)                 whole because he or she has
in seeking an award of benefits may                         been denied the use of the
request prejudgment interest under that                     money which was legally
section as part of his or her benefits award.               due. Awarding prejudgment
                                                            interest is intended to serve
       Accordingly, the Supreme Court’s
                                                            at least two purposes: to
decision in Great-West, interpreting the
                                                            c o m p e n sate prev ailin g
extent of “appropriate equitable relief”
                                                            parties for the true costs of
available under ERISA § 502(a)(3)(B),
                                                            money damages incurred,
does not apply to the availability of
                                                            and, where liability and the
prejudgment interest on a benefits award
                                                            amount of damages are
obtained under § 502(a)(1)(B).            We
                                                            fairly certain, to promote
therefore reverse the M agistrate Judge’s
                                                            s e t tl e m e n t a n d d e t e r
denial of prejudgment interest with respect
                                                            attempts to benefit from the
to the delayed payment of Skretvedt’s
                                                            inherent delays of litigation.
incapability benefits so that the Court may
                                                            Thus prejudgment interest
exercise its discretion in the first instance
                                                            should ordinarily be granted
in determining whether prejudgment
                                                            unl e s s e xcep tional o r
interest is appropriate. Under Anthuis,
                                                            unusual circumstances exist
       [a]s a general rule ,                                making the award of interest
       prejudgment interest is to be                        inequitable.
       awarded when the amount
       of the underlying liability is
       reaso nably capable of                        Anthuis, 971 F.2d at 1010 (quoting Stroh
       ascertainment and the relief                  Container Co. v. Delphi Indus., Inc., 783
                                                     F.2d 745, 752 (8th Cir. 1986) (internal
                                                     citations omitted)).
award for an ERISA plaintiff who is                          We recognize that we have “not . . .
successful under § 502(a)(1)(B). To the              offer[ed] extensive guidance for deciding
extent that Fotta II discusses a successful          what rate of interest is appropriate in a
ERISA plaintiff needing to use                       given case.” Holmes v. Pension Plan of
§ 502(a)(3)(B) to “sue for interest,” in the         Bethlehem Steel Corp., 213 F.3d 124, 131-
context of deciding whether a plaintiff              32 (3d Cir. 2000). Instead, we reiterate
who had not received an underlying award             that “the awarding of prejudgment interest
of benefits under § 502(a)(1)(B) could still         under federal law is committed to the trial
sue for interest on the delayed payment of           court’s broad discretion.” Ambromovage,
benefits under § 502(a)(3)(B), such                  726 F.2d at 981-82; see also Sun Ship, Inc.
statements are dicta.

                                                19
v. Matson Navigation Co., 785 F.2d 59, 63           benefits under § 502(a)(1)(B). Our Court
(3d Cir. 1986) (“In federal question cases,         disagreed.
the rate of prejudgment interest is
                                                          We believe the distinction is
committed to the discretion of the district
                                                          unpersuasive. The principles
court.”).
                                                          justif ying p r e j u d g me nt
B.        Interest on the Delayed Payment                 interest also justify an award
          of Benefits Under § 502(a)(3)(B)                of interest where benefits
                                                          are delayed but paid without
        In Fotta I, we faced a novel
                                                          the beneficiary's having
question: can “a beneficiary who has been
                                                          obtained a judgment. The
able to receive his or her benefits due
                                                          concerns animating our
under an ER ISA plan only after
                                                          decisions in Schake and
considerable delay, but without resorting
                                                          Anthuis—viz., making the
to litigation to recover that payment[,
                                                          claimant whole and
assert] a cause of action under ERISA.”
                                                          preventing            unjust
Fotta I, 165 F.3d at 211. While Anthuis
                                                          enrichment— are not
and Schake allowed for prejudgment
                                                          diminished merely because
interest as part of an underlying judgment
                                                          the plan has paid the
awarding benefits under § 502(a)(1)(B),
                                                          overdue benefits without the
Fotta I required us to determine whether
                                                          claimant having resorted to
ERISA would support a separate cause of
                                                          litigation to secure payment.
action allowing for an award of interest 21
                                                          A late payment of benefits
on the delayed payment of benefits.
                                                          effectively deprives the
Appellants in Fotta I conceded that
                                                          beneficiary of the time value
prejudgment interest is available where
                                                          of his or her money whether
there is an underlying § 502(a)(1)(B)
                                                          or not the beneficiary
claim, but argued that ERISA does not
                                                          secured the overdue benefits
allow for an independent cause of action to
                                                          through a judgment as the
be brought seeking interest alone where
                                                          result of ERISA litigation.
there has been no underlying award of
                                                          Unjust       enrichment
                                                          principles also apply with
     21                                                   equal force in this setting.
          We refer to “interest” and not
                                                          To hold that the absence of
“prejudgment interest” with respect to the
                                                          a judgment deprives the
cause of action discussed in Fotta I, as a
                                                          injured beneficiary of the
plaintiff seeking to recover interest on the
                                                          time value of his or her
delayed payment of benefits where there is
                                                          money would create a
no underlying court judgment does not
                                                          financial incentive for plans
seek “prejudgment” interest, but merely
                                                          to delay payment and thus
“interest.”

                                               20
        retain interest that rightfully                      While not ruling out that
        belongs to the beneficiary.                  § 502(a)(1)(B) might “provide[] a possible
                                                     statutory basis” for a claimant to bring a
Fotta I, 165 F.3d at 212. At base, Fotta I
                                                     suit seeking interest on the delayed
concluded, there is no persuasive
                                                     payment of benefits, id. at 213-14 n.1,
distinction between justifying prejudgment
                                                     Fotta I concluded that “that section
interest where a judgment for unpaid
                                                     502(a)(3)(B) of ERISA— allowing a
benefits has been obtained and justifying
                                                     beneficiary to sue for ‘other appropriate
an award of interest where benefits are
                                                     equitable relief . . . to enforce any
delayed but paid without the claimant
                                                     provisions of this subchapter or the terms
having received a judgment.
                                                     of the plan’—is the appropriate vehicle for
        The facts of this case demonstrate           such a cause of action.” Id. at 213. An
the wisdom of that conclusion. Skretvedt             award of interest on the delayed payment
first applied for benefits in 1995. He was           of benefits under § 502(a)(3)(B) “ensures
awarded incapability benefits by way of a            full compensation [and] serves to prevent
court judgment entered on remand from                unjust enrichment.” Id. We held that such
our decision in Skretvedt I, thereby                 a claim under § 502(a)(3)(B) was one cast
allowing him to request that the Court               in “[r]estitution–the traditional remedy for
exercise its discretion to award him                 unjust enrichment,” which “is widely, if
prejudgment interest. While no judgment              not universally, regarded as a tool of
was entered with respect to Skretvedt’s              equity.” Id. Therefore, a claimant could
T&P benefits, as our Court requested that            seek interest on the delayed voluntary
DuPont reconsider the denial of those                payment of benefits as a form of restitution
benefits in light of our opinion in Skretvedt        authorized by § 502(a)(3)(B), allowing for
I, DuPont voluntarily awarded Skretvedt              “other appropriate equitable relief.” 23
those benefits shortly after Skretvedt I.
Fotta I wisely noted that making the
claimant whole and unjust enrichment are             voluntarily by DuPont in the late stages of
concerns equally present with respect to             this litigation.
both of these scenarios (i.e., where                      23
                                                              Other circuit courts have since
benefits have been awarded pursuant to a
                                                     similarly held that a cause of action may
judgment and where benefits have been
                                                     be maintained for interest on the delayed
withheld but are ultimately awarded
                                                     payment of benefits as “appropriate
without resort to a judgment).22
                                                     equitable relief” under § 502(a)(3)(B). See
                                                     Dunnigan v. Metro. Life Ins. Co., 277 F.3d
                                                     223, 229 (2d Cir. 2002) (“Where interest is
   22
      Indeed, this case presents an even             sought to make the plaintiff whole by
more compelling example than Fotta I, as             eliminating the effect of a defendant's
Skretvedt did have to resort to litigation           breach of a fiduciary duty, we see no
and was only paid T&P benefits                       reason why such interest should not be

                                                21
                                                     Hewitt Associates, 508 U.S. 248 (1993),
                                                     that “the term ‘equitable relief’ in §
       1.     Great-West and Equitable
                                                     502(a)(3) must refer to ‘those categories of
              Versus Legal Restitution
                                                     relief that were typically available in
        In Great-West the Supreme Court              equity.’” Great-West, 534 U.S. at 210
reiterated its earlier holding in Mertens v.         (quoting Mertens, 508 U.S. at 256). The
                                                     Court then clarified that restitution, a
                                                     remedy Fotta I generally regarded as
                                                     equitable and therefore within the scope of
deemed ‘appropriate equitable relief’
                                                     relief available under § 502(a)(3)(B), in
within the scope of § 502(a)(3)(B).”); see
                                                     fact exists in two forms: legal restitution
also Kerr v. Charles F. Vatterott & Co.,
                                                     and equitable restitution. Only the latter
184 F.3d 938, 946 (8th Cir. 1999)
                                                     form of restitution, the Supreme Court
(§ 502(a)(3) supports a claim for interest
                                                     held, is available under § 502(a)(3)(B). Id.
on the delayed payment of benefits to
                                                     at 212-13 (“[N]ot all relief falling under
prevent unjust enrichment where “the
                                                     the rubric of restitution is available in
wrongdoer . . . use[d] the withheld benefits
                                                     equity. . . . [R]estitution is a legal remedy
or retain[ed] interest earned on the funds
                                                     when ordered in a case at law and an
during the time of the dispute”). The
                                                     equitable remedy . . . when ordered in an
Court of Appeals for the Seventh Circuit
                                                     equity case, and whether it is legal or
has specifically suggested that such
                                                     equitable depends on the basis for the
restitutionary relief is available through a
                                                     plaintiff’s claim and the nature of the
constructive trust. See Clair v. Harris
                                                     underlying remedies sought.”) (internal
Trust and Savings Bank, 190 F.3d 495,
                                                     quotation marks and alterations omitted).
498-99 (7th Cir. 1999) (“[P]laintiffs are
asking . . . that the court impress a                        This distinction between legal
constructive trust on the interest that the          restitution and equitable restitution turns
defendants earned on benefits withheld in            on the following:
violation of the terms of the plan. A
                                                            In cases in which the
constructive trust . . . is an equitable
                                                            plaintiff “could not assert
remedy commonly sought and granted in
                                                            title or right to possession of
cases of unjust enrichment. . . . If A
                                                            particular property, but in
wrongfully appropriates money or other
                                                            which nevertheless he might
property belonging to B, the court can
                                                            be able to show just grounds
order A to hold the property in trust for B.
                                                            for recovering money to pay
That is the nature of the relief sought by
                                                            for some benefit the
the plaintiffs in this case [and] Health Cost
                                                            defendant had received from
Controls [v. Washington, 187 F.3d 703,
                                                            him,” the plaintiff had a
710 (7th Cir. 1999)] holds that such relief
                                                            right to restitution at law
is squarely within the scope of section
                                                            through an action derived
502(a)(3)(B).”).

                                                22
from the common-law writ                     case of the equitable lien) to
of assumpsit. 1 [Dan B.                      a plaintiff who was, in the
Dobbs, Law of Remedies:                      eyes of equity, the true
Damages–Equity–Restituti                     owner.      But where “the
on] § 4.2(1), at 571 [(2d ed.                property [sought to be
1993)]. . . . In such cases,                 recovered] or its proceeds
the plaintiff’s claim was                    have been so dissipated so
considered legal because he                  that no product remains, [the
s o u g h t “ t o o b t ai n a               plaintiff’s] claim is only that
judgment imposing a merely                   of a general creditor,” and
personal liability upon the                  the plaintiff “cannot enforce
defendant to pay a sum of                    a constructive trust of or an
money.” Restatement of                       equitable lien upon other
Restitution § 160, Comment                   property of the [defendant].”
a, pp. 641-642 (1936).                       Restatement of Restitution,
                                             supra, § 215, Comment a, at
           ***
                                             867. Thus, for restitution to
In contrast, a plaintiff could               lie in equity, the action
seek restitution in equity,                  generally must seek not to
ordinarily in the form of a                  impose personal liability on
constructive trust or an                     the defendant, but to restore
equitable lien, where money                  to the plaintiff particular
or property identified as                    funds or property in the
belonging in good                            defendant’s possession.
conscience to the plaintiff
could clearly be traced to
particular funds or property          Great-West, 534 U.S. at 213-14 (emphasis
in the defendant’s                    and last three alterations in original). Put
possession. See 1 Dobbs §             simply, “equitable relief” under §
4.3(1), at 587-588;                   502(a)(3)(B) is to be construed by
Restatement of Restitution,           reference to the types of relief typically
supra, § 160, Comment a, at           available in equity, and courts are to
641-642; 1 G. Palmer, Law             analyze the underlying nature of the claim
of Restitution § 1.4, p. 17;          and relief requested by a plaintiff in order
§ 3.7, p. 262 (1978). A               to determine whether that relief had been
court of equity could then            typically available in equity.
order a defendant to transfer
                                              Res titution in e quity w as
title (in the case of the
                                      “ordinarily in the form of a constructive
constructive trust) or to give
                                      trust or an equitable lien, where money or
a security interest (in the

                                 23
property identified as belonging in good              Skretvedt seeks legal relief.” Magis.
conscience to the plaintiff could clearly be          Judge Op. at 9. The Magistrate Judge
traced to particular funds or property in the         perceived in Great-West a per se
defendant’s possession.” Great-West, 534              pronouncement that where a plaintiff seeks
U.S. at 213 (citing 1 Dan B. Dobbs, Law of            an award that ultimately involves money
Remedies: Damages–Equity–Restitution §                (regardless whether that award consists of
4.3(1), at 587-88 (2d ed. 1993) (“Dobbs”);            a constructive trust over funds that “belong
Restatement of Restitution § 160 cmt. a, at           in good conscience to the plaintiff” and
641-42 (1936); George E. Palmer, Law of               can “clearly be traced to particular funds in
Restitution § 1.4, at 17 (1978) (“Palmer”);           the defendant’s possession”), such an
id. § 3.7, at 262). 24                                award is a claim for legal relief and is not
                                                      available under § 502(a)(3)(B). 25
       Without examining the specific
forms of equitable restitution addressed in                   Our reading, however, is that
Great-West, the Magistrate Judge in this              Great-West did not adopt such a rule.
case concluded that “the [Supreme] Court              Instead, the Supreme Court indicated that,
clearly indicated [in Great-West] that                to determine whether a specific form of
claims for monetary damages, for the most             underlying relief requested is available
part, will be claims for legal relief. Here,          under § 502(a)(3)(B), we must consider
Skretvedt seeks money to compensate for               whether that relief was typically available
the lost interest caused by DuPont’s                  at law or in equity and, in the case of
delayed payment. Thus, the Great-West                 restitutionary relief, whether the relief
decision compels this court to find that              requested was in fact a form of equitable
                                                      restitution.

     24                                                      2.     Reexamining           a
           The Court also noted that an
                                                                    Restitutionary Award of
additional form of equitable restitution, an
                                                                    Interest        Under
accounting for profits, is outside the
                                                                    § 502(a)(3)(B)
general rule that an action sounding in
equitable restitution must not seek to                       Analyzing the propriety of an
impose personal liability on the defendant.
“If, for example, a plaintiff is entitled to a
                                                        25
constructive trust on particular property                   Without deciding the issue, the Court
held by the defendant, he may also recover            of Appeals for the Eleventh Circuit has
profits produced by the defendant’s use of            also suggested that Great-West “raises the
that property, even if he cannot identify a           question whether § 502(a)(3) ever allows
particular res containing the profits sought          an award of interest for delayed benefits or
to be recovered. See 1 Dobbs § 4.3(1), at             whether such a claim is an impermissible
588; id., § 4.3(5), at 608.” Great-West,              attempt to dress an essentially legal claim
534 U.S. at 214 n.2. We address this form             in the language of equity.” Flint v. ABB,
of restitution infra note 26.                         Inc., 337 F.3d 1326, 1331 (11th Cir. 2003).

                                                 24
interest award under § 502(a)(3)(B) again             determination, Great-West indicated that
in light of Great-West, we start with                 courts should “consult[], as we have done,
whether a claim for interest on the late              standard current works such as Dobbs,
payment of funds would generally be one               Palmer, Corbin, and the Restatements,
at law or one in equity. It is clear that a           which make the answers clear.” Great-
claim for interest alone (i.e., where the             West, 534 U.S. at 217. Accordingly, we
underlying obligation had already been                inquire whether Skretvedt may seek
paid) on a late payment (e.g., an overdue             interest on the delayed payment of his
loan) was traditionally not permitted at              T & P be ne f its thro u g h e q u i t ab le
law. See Stuart v. Barnes, 153 U.S. 456,              restitution–by way of a constructive trust,
462 (1894) (in an action for assumpsit,               equita ble lien, or accounting for
“[w]hen he who has [the] right [to compel             profits–the three forms of restitution that
payment] commences an action for its                  the Court determined are equitable.
enforcement, he at the same time acquires
                                                              Because a constructive trust may be
a subordinate right, incident to the relief
                                                      placed over “interest” actually earned by a
which he may obtain, to demand and
                                                      plan that has wrongfully delayed paying
receive interest. If, however, the principal
                                                      benefits, we examine only the constructive
sum has been paid, so that, as to it, an
                                                      trust remedy.26
action brought cannot be maintained, the
opportunity to acquire a right to damages
is lost.”). However, an independent claim                 26
                                                               In a well-reasoned opinion, the
for interest on wrongfully withheld funds
                                                      District Court in Dobson v. Hartford
(where the underlying funds themselves
                                                      Financial Services, et al., 196 F. Supp. 2d
are no longer in dispute), as Fotta I
                                                      152, 169-73 (D. Conn. 2002), determined
explains, would be cognizable under a
                                                      that both a constructive trust and/or
restitutionary theory. See Restatement of
                                                      accounting for profits would allow for the
Restitution § 190, at 780 (“Where a person
                                                      disgorging of a fiduciary’s ill-gotten gain
in a fiduciary relation to another acquires
                                                      obtained by wrongfully withholding
property, and the acquisition or retention
                                                      disability benefits in violation of ERISA.
of the property is in violation of his duty as
                                                      The Court of Appeals for the Eighth
fiduciary, he holds it upon a constructive
                                                      Circuit very recently has determined that
trust for the other.”).
                                                      an award of interest is still permissible
       Given the Supreme Court’s                      after Great-West using the accounting for
determination in Great-West that only                 profits remedy.       See Parke v. First
equitable restitution is available under §            Reliance Standard Life Ins. Co., ___ F.3d
502(a)(3)(B), we now determine whether                ___, 2004 W L 1144787, at *3-*7 (8th Cir.
a claim for interest on wrongfully withheld           2004) (“an award of interest on wrongfully
ERISA funds is equitable, as opposed to               delayed benefits remains permissible under
legal, restitution.       In making this              [§ 502](a)(3)(B) after [Great-West through
                                                      an accounting for profits] as a remedy for

                                                 25
                                                            According to Dobbs, a constructive
a breach of a fiduciary duty to a                  trust can be imposed “upon any
beneficiary”); see also Dunnigan v. Metro.         identifiable kind of property or entitlement
Life Ins. Co., 214 F.R.D. 125, 134-35              in the defendant’s hands if, in equity and
(S.D.N.Y. 2003) (“Great-West has no                conscience, it belongs to the plaintiff.”
bearing on [an action for interest on the          Dobbs § 4.3(2), at 589-90. A constructive
delayed payment of benefits under                  trust is “only used when the defendant has
§ 502(a)(3)] because the relief [plaintiff]        a legally recognized right in a particular
seeks–an accounting of [the fiduciary’s]           asset [, which] may even be a fund of
profits made on withheld disability                money like a bank account.” Id. at 591.
benefits–is a form of relief ‘typically            The constructive trust has what Dobbs
available in equity’. . . .”).                     calls the “important characteristic” of
       With respect to the accounting for          allowing a plaintiff to “obtain, not merely
profits remedy, however, the Supreme               what he lost, but gains received by the
Court in Dairy Queen, Inc. v. Wood, 369            defendant from the property’s increase in
U.S. 469 (1962), cautioned that                    value, from its transfer, from its use in a
       [t]he necessary prerequisite                business operation.” Id. at 592.
       to the right to maintain a
                                                           Dobbs is consistent with the
       suit for an equitable
                                                   Restatement of Restitution, which suggests
       accounting, like all other
                                                   that a constructive trust arises “[w]here a
       equitable remedies, is . . .
                                                   person holding title to property is subject
       the absence of an adequate
       remedy           at     law.
       Consequently, in order to
       maintain such a suit on a                          where the legal issues are
       cause of action cognizable                         too complicated for the jury
       at law, as this one is, the                        adequately to handle alone,
       plaintiff must be able to                          the burden of such a
       show that the ‘accounts                            showing is considerably
       between the parties’ are of                        increased and it will indeed
       such a ‘complicated nature’                        be a rare case in which it
       that only a court of equity                        can be met.
       can satisfactorily unravel                  Id. at 478 (footnotes omitted). Dairy
       them. In view of the powers                 Queen appears to cast some doubt on the
       given to District Courts by                 purely equitable nature of the accounting
       Federal Rule of Civil                       for profits remedy. We proceed with the
       Procedure 53(b) to appoint                  constructive trust remedy because it is
       masters to assist the jury in               clear that this remedy would have been
       those exceptional cases                     typically available in equity.

                                              26
to an equitable duty to convey it to another                plaintiff. . . .
on the ground that he would be unjustly
                                                     Id. at 643-44. Dobbs, Palmer, and the
enriched if he were permitted to retain it. .
                                                     Restatement all make clear that the
. .” Restatement of Restitution § 160, at
                                                     constructive trust remedy typically would
640-41; see also Palmer § 1.3, at 12 (“In
                                                     allow Skretvedt, in equity, to force DuPont
the cases as a whole, constructive trust is
                                                     to disgorge the gain it received on his
accepted as a technique to be used in
                                                     withheld benefits under a restitutionary
working out solutions to problems of
                                                     theory.
unjust enrichment. . . .”). Generally, a
constructive trust is imposed “to restore to                3.       Specific Funds Traceable
the plaintiff property of which he has been                          to an ERISA Plan
unjustly deprived and to take from the
                                                             We must still determine, however,
defendant property the retention of which
                                                     whether the restitution Skretvedt seeks is
by him would result in a corresponding
                                                     with respect to “money or property
unjust enrichment of the defendant. . . .”
                                                     identified as belonging in good conscience
Restatement of Restitution § 160, cmt. d,
                                                     to the plaintiff [that can] clearly be traced
at 643. Even where the
                                                     to particular funds or property in the
       plaintiff . . . has not suffered              defendant’s possession.” Great-West, 534
       a loss or . . . has not suffered              U.S. at 204; see also Palmer § 3.7, at 262
       a loss as great as the benefit                (in “most of the restitution cases the
       received by the defendant[,]                  equitable relief sought by the plaintiff is
       . . . the defendant is                        with respect to specific property, usually to
       compelled to surrender the                    obtain either specific restitution or a lien
       benefit on the ground that he                 on the property”).
       would be unjustly enriched
                                                            DuPont, seizing on this aspect of
       if he were permitted to
                                                     Great-West, argues that Skretvedt seeks to
       retain it, even though that
                                                     make it and the defendant ERISA plans
       enrichment is not at the
                                                     “personally liable” for “interest” on the
       expense or wholly at the
                                                     delayed payment of his ERISA benefits in
       expense of the plaintiff.
                                                     violation of Great-West. We disagree.
       Thus, if the defendant has
                                                     Skretvedt’s cause of action under
       made a profit through the
                                                     § 502(a)(3)(B) is against the relevant
       violation of a duty to the
                                                     ERISA plans whereby he seeks restitution
       plaintiff to whom he is in a
                                                     by way of a constructive trust over the
       fiduciary relation, he can be
                                                     actual funds wrongfully earned by those
       compelled to surrender the
       profit to the plaintiff,
       although the profit was not
       made at the expense of the


                                                27
plans.27                                                        In our case, we need not even look
                                                        to a third-party transferee to find the funds
        In explaining the degree to which a
                                                        Skretvedt alleges belong to him. Instead,
plaintiff must identify money or property
                                                        we need look no further than the ERISA
that is “clearly . . . trace[able] to particular
                                                        plans that withheld Skretvedt’s benefits for
funds or property in the defendant’s
                                                        several years and profited with respect to
possession,” Great-West, 534 U.S. at 213,
                                                        the withholding of those benefits. As did
the Supreme Court looked to Harris Trust
                                                        the fiduciaries in Harris Trust, Skretvedt
and Savings Bank v. Salomon Smith
                                                        has sufficiently identified specific funds
Barney, Inc., 530 U.S. 238 (2000). There,
                                                        traceable to the defendant ERISA plans
an ERISA pension plan fiduciary
                                                        that belong in good conscience to him.28
purchased interests in several motel
properties for $21 million from a non-                         4.     Proceedings on Remand
fiduciary party in interest (the “transferee”
                                                               In this context, we reverse the
of the plan’s assets). The transaction, the
                                                        Magistrate Judge’s determination that as a
Court assumed, was prohibited by statute.
                                                        matter of law Skretvedt cannot seek
The Court allowed an action under §
                                                        interest on the delayed payment of his
502(a)(3)(B) against the transferee “for
                                                        T&P benefits under § 502(a)(3)(B). We
restitution of the property (if not already
                                                        remand to the Magistrate Judge
disposed of) or disgorgement of proceeds
                                                        Skretvedt’s claim for interest with respect
(if already disposed of), and disgorgement
                                                        to the delayed payment of T&P benefits
of the third person’s profits derived
                                                        for that Court to determine in the first
therefrom,” id. at 250, where the transferee
                                                        instance whether, under Fotta II, “those
“had actual or constructive knowledge of
the circumstances that rendered the
transaction unlawful.” Id. at 251.
                                                          28
                                                              Indeed, as several circuit courts have
                                                        noted, the Senate Finance Committee, in
                                                        its report on ERISA , specifically
   27
      As a record has not been developed                contemplated that “appropriate equitable
as to whether Skretvedt’s ERISA plans                   relief” under § 502(a)(3)(B) would
have, in fact, profited with respect to the             include, “[f]or example, . . . a constructive
withholding of Skretvedt’s benefits during              trust [to] be imposed on the plan assets. . .
the relevant time period, or whether those              .” S. Rep. No. 93-383, reprinted in 1974
plans have retained funds from that period              U.S.C.C.A.N. 4890, 4989; see Harsch v.
(as opposed to having, at least                         Eisenberg, 956 F.2d 651, 656 (7th Cir.
hypothetically speaking, transferred their              1992) (quoting the above language);
funds to a third party), we express no                  Novak v. Andersen Corp., 962 F.2d 757,
opinion as to the entit(ies) that would                 760 (8th Cir. 1992) (same); Sokol v.
properly be the subject of a judgment                   Bernstein, 803 F.2d 532, 538 (9th Cir.
entered pursuant to § 502(a)(3)(B).                     1986) (same).

                                                   28
benefits were wrongfully withheld or
wrongfully delayed, that is, . . . withheld or
delayed in violation of ERISA or an
                                                      in an award for the delayed payment of
ERISA plan.” 319 F.3d at 617.29 If
                                                      benefits under ERISA § 502(a)(3)(B) since
benefits were wrongfully withheld,
                                                      our prior holding in Holmes v. Pension
“interest is presumptively appropriate . . .
                                                      Plan of Bethlehem Steel Corp., 213 F.3d
unless exceptional or unusual
                                                      124, 131-34 (3d Cir. 2000). In Holmes,
circumstances exist making the award of
                                                      we held that a District Court did not abuse
interest inequitable [, such as] bad faith or
                                                      its discretion in awarding interest on the
dilatoriness by the claimant.” Id. at 618
                                                      delayed payment of pension benefits under
(internal quotation marks and citations
                                                      the Treasury Bill yield rate as calculated in
omitted). 30
                                                      28 U.S.C. § 1961 because, according to the
                                                      District Court in that case, requiring the
   29
       Our determination in Fotta II that a           ERISA plan to disgorge its profits “would
district court must consider whether                  be essentially punitive in nature, and . . .
benefits were wrongfully withheld or                  punitive measures were inappropriate
wrongfully delayed was based on the fact              where the delayed payment of benefits was
that § 502(a)(3)(B) “does not . . . authorize         inadvertent rather than intentional.” Id. at
appropriate equitable relief at large, but            132 (internal quotation marks and citations
only ‘appropriate equitable relief’ for the           omitted).
purpose of ‘redress[ing any] violations or                    To the extent that Skretvedt seeks
enforc[ing] any provisions of ERISA or an             on remand a constructive trust to disgorge
ERISA plan.” Fotta II, 319 F.3d at 616                the gain of his ERISA plans, it would
(quoting Fotta I, 165 F.3d at 213 (citing             seem, in light of Great-West, that the
Mertens, 508 U.S. at 253)) (internal                  actual gain (if any) made on withheld
quotation marks omitted; emphasis in                  benefits would be an appropriate subject of
original).                                            a constructive trust. See Dobbs § 4.3(2), at
        Of course, to the extent that                 592 (“The constructive trust has [an]
Skretvedt seeks prejudgment interest on               especially important characteristic[:] . . .
his incapability benefits, which were                 under the rules for following property or
awarded by court judgment pursuant to                 money into its product, the plaintiff may
§ 502(a)(1)(B), wrongful withholding or               obtain . . . gains received by the defendant
wrongful delay is not per se relevant, as             from the property’s increase in value. . .
prejudgment interest in that context                  .”).
derives from § 502(a)(1)(B) and the                           However, the Eighth Circuit in
District Court’s exercise of discretion in            Parke, applying the accounting for profits
awarding interest. See supra Section V-A.             remedy, has noted that
                                                              [a] defendant . . .
   30
      Great-West may have changed the                         “gains” from the wrongful
nature of how “interest” is to be calculated

                                                 29
                                                      C.        Postjudgment Interest
        w i t h h o l d in g   of   the
                                                              28 U.S.C. § 1961 provides that
        plaintiff’s benefits even if
                                                      “[i]nterest shall be allowed on any money
        the plaintiff does not prove
                                                      judgment in a civil case recovered in a
        specific financial profit. In
                                                      district court.” Id. Skretvedt seeks
        particular, the defendant
                                                      postjudgment interest, presumably on any
        receives a benefit from
                                                      award of interest and prejudgment interest
        having control over the
                                                      he receives on remand from this opinion
        money.            See [Dobbs]
                                                      and to the extent DuPont delayed in paying
        § 3.6(2), at 344 n.22
                                                      incapability benefits after the Magistrate
        (“[U]ntil the plaintiff is
                                                      Judge’s December 13, 2001, judgment.31
        paid, the defendant has the
        use of funds that ought to go                           With   respect   to   Skretvedt’s
        to the discharge of his
        obligation of the plaintiff.
        That is a benefit.         The                the use of money . . . to which the plaintiff
        defendant may [choose] not                    was entitled” but “did not actually reap
        [to] use the funds or collect                 interest or profits.” Dobbs § 3.6(2), at
        interest on              them.                344. This treatise indicates that the
        Nevertheless, he has a                        “clearest case for [such interest] liability
        benefit found in his power                    for unrealized gains occu rs with
        to do so.”).                                  fiduciaries who are under a duty to invest
Parke, ___ F.3d at ___, 2004 WL                       funds for the benefit of the plaintiff but
1144787, at *7 (third alteration in                   fail[] to do so.” Id. at 345.
original). Thus, while Parke suggested                        We need not, and cannot, address
that it may be possible to disgorge a                 today whether interest or actual gain is to
defendant’s actual gain if           “specific        be awarded to Skretvedt under §
financial profit” can be shown, the Court             502(a)(3)(B), however, as the Magistrate
concluded that “[i]n the particular context           Judge could determine that Skretvedt is
of withheld benefits under ERISA, . . .               not entitled to such an award under Fotta
[i]nterest is, in many respects, the only             II and a record has not been developed as
way to account for this gain and therefore            to the actual gain, if any, made by the
is an appropriate measure of the extent to            relevant ERISA plans.
which [a defendant] was unjustly
                                                           31
enriched.”        Id.        In reaching that               As noted supra, no judgment exists
conclusion, Parke relied on a section of              with r e s p ec t to T & P bene fits .
Dobbs suggesting that interest, as opposed            Accordingly, there is no basis for an award
to a defendant’s actual gain, is available as         of postjudgment interest under § 1961 with
restitution where the defendant “has had              respect to these benefits.

                                                 30
underlying incapability benefits award,              determined that postjudgment interest
there was a delay between the Magistrate             under § 1961 “properly runs from the date
Judge’s December 13, 2001, judgment                  of the entry of judgment.”            Kaiser
awarding incapability benefits and DuPont            Aluminum & Chem. Corp. v. Bonjorno,
having paid those benefits on March 6,               494 U.S. 827, 835 (1990). The fact that
2002, with further adjustments made on               the December 13, 2001, judgment was not
April 15 and 16, 2002. Several circuit               a final order for purposes of appeal would
courts have held that an award of                    not otherwise prevent postjudgment
postjudgment interest on benefits awarded            interest from running under § 1961
pursuant to ERISA § 502(a)(1)(B) is                  pursuant to a timely request from
mandatory under 28 U.S.C. § 1961 if                  Skretvedt. We stated in In re Lower Lake
requested.32 The Supreme Court has                   Erie Iron Ore Antitrust Litigation, 998
                                                     F.2d 1144, 1177-78 (3d Cir. 1993), that
                                                     § 1961 “does not, by its terms, mandate
     32                                              that the judgment from which interest is
          See, e.g., Cottrill v. Sparrow,
                                                     calculated must be a final judgment. Our
Johnson & Ursillo, Inc., 100 F.3d 220, 224
                                                     view is consistent with the statute’s
(1st Cir. 1996) (“ERISA provides for
                                                     philosophy of providing compensation
postjudgment interest to be calculated at
                                                     from a point at which the loss-causing
the federal rate, 28 U.S.C. § 1961(a)
                                                     defendant’s liability is entered on record.”
(1994)”); Quesinberry v. Life Ins. Co. of
North Am., 987 F.2d 1017, 1031 (4th Cir.
1993) (en banc) (“In contrast to the district
court’s discretion in the awarding of
pre-judgment interest, federa l law
mandates the awarding of post-judgment               postjudgment interest statute allows
interest. 28 U.S.C. § 1961 (1988). While             interest on “all money judgments,”
ERISA does not specifically address                  including those in ERISA cases.”)
post-judgment interest, it does provide that         (internal citations and quotation marks
the statute is not to be construed to ‘alter,        omitted); Mansker v. TMG Life Ins. Co.,
amend, modify, invalidate, impair, or                54 F.3d 1322, 1331 (8th Cir. 1995) (“28
supersede any law of the United States.’             U.S.C. § 1961 provides the proper measure
29 U.S.C. § 1144(d) (1988). Therefore,               for determining rates of both prejudgment
the federal post-judgment interest statute,          and postjudgment interest” in ERISA
28 U.S.C. § 1961 (1988), is applicable in            cases); Carriers Container Council, Inc. v.
ERISA cases.”); Caffey v. UNUM Life Ins.             Mobile S.S. Ass’n, Inc. et al., 948 F.2d
Co., 302 F.3d 576, 586 (6th Cir. 2002)               1219, 1226 (11th Cir. 1991) (upholding
(“The statute mandates the imposition of             application of § 1961 to an ERISA award);
post-judgment interest, thus removing the            I.A.M. Nat. Pension Fund, Plan A, A
award of such interest from the discretion           Benefits v. Slyman Indus., Inc., 901 F.2d
of the District Court.         The federal           127, 130 (D.C. Cir. 1990) (same).

                                                31
Id.33                                                 to pursue postjudgment interest with
                                                      respect to DuPont’s four month delay in
       However, while postjudgment
                                                      paying incapability benefits.
interest can begin to accrue on a non-final
judgment under Iron Ore, the phrase “any                      With respect to postjudgment
money judgment” in § 1961(a) “requires                interest on the Magistrate Judge’s award of
that the judgment at issue award a fixed              any prejudgment interest for incapability
amount of fees to the prevailing party in             benefits, postjudgment interest should be
order to trigger the post-judgment interest           calculated based upon the underlying
period.” Eaves v. County of Cape May,                 judgment and award of prejudgment
239 F.3d 527, 534 (3d Cir. 2001). As we               interest. See Sun Ship, Inc. v. Matson
have noted, however, the judgment entered             Navigation Co., 785 F.2d 59, 63 (3d Cir.
with respect to incapability benefits on              1986); see generally Caffey v. UNUM Life
December 13, 2001, did not quantify a                 Ins. Co., 302 F.3d 576, 586 (6th Cir. 2002)
mon etary amou nt.           Ac cord ingly,           (“postjudgment interest should be awarded
postjudgment interest under § 1961 did not            on the entire amount of the judgment,
begin to accrue on that date because no               including any prejudgment interest”)
“money judgment” had been entered.                    (noting agreement among the Fourth,
Absent the existence of a “money                      Ninth, Tenth, and Eleventh Circuit
judgment,” Skretvedt is, therefore, unable            Courts). Accordingly, Skretvedt could
                                                      receive postjudgment interest on any
                                                      award of prejudgment interest under
   33
        A circuit split has developed on this         ERISA § 502(a)(1)(B) with respect to
issue, however.          The Ninth Circuit,           incapability benefits, should the Magistrate
looking to “practical considerations,” has            Judge award prejudgment interest in
determined that postjudgment interest                 exercising her discretion, as discussed
under § 1961 begins to run only where a               above in Section V-A.
final, appealable judgment has been
                                                            There is some question, however, as
entered. See Dishman v. UNUM Life Ins.
                                                      to whether § 1961 applies to a judgment
Co. of Am., 269 F.3d 974, 990-91 (9th Cir.
                                                      obtained pursuant to an equitable
2001) (“‘judgment’ within the meaning of
                                                      remedy,34 which would affect the
28 U.S.C. § 1961 means ‘final, appealable
order’”). The Sixth Circuit, implicitly
agreeing with Iron Ore, has determined
                                                        34
that “the better rule is for plaintiffs to be              We expressed this concern in Brock
entitled to post-judgment interest from the           v. Richardson, 812 F.2d 121 (3d Cir.
date of entry of the initial, partial judgment        1987):
. . . , even though that judgment was not                    In Perkins v. Fourniquet, 55
yet appealable.” Skalka v. Fernald Envtl.                    U.S. (14 How.) 328, 330, 14
Restoration Mgmt. Corp., 178 F.3d 414,                       L.Ed. 441 (1853), the
429 (6th Cir. 1999).

                                                 32
availability of post-judgment interest on an         delayed payment of T&P benefits; and (3)
award of interest for the delayed payment            postjudgment interest on both of those
o f T & P benefits under E R I S A                   awards. We remand for the M agistrate
§ 502(a)(3)(B). We need not address this             Judge to reconsider in the first instance
issue today, as the Magistrate Judge might           whether Skretvedt is entitled in light of
determine that Skretvedt is not entitled to          this opinion to prejudgment interest on the
a constructive trust for interest under Fotta        award of incapability benefits and/or
II because there was not a wrongful                  interest on the delayed payment of T&P
withholding of or delay in paying T&P                benefits, without prejudice to Skretvedt’s
benefits.                                            ability to file a timely motion for
                                                     postjudgment interest on any resulting
                Conclusion
                                                     award of prejudgment interest (with
       We reverse the Magistrate Judge’s             respect to incapability benefits) or interest
August 21, 2002, and November 12, 2002,              (with respect to T&P benefits). The
orders only with respect to their denial of:         appeal is dismissed otherwise to the extent
(1) prejudgment interest on the award of             it seeks to address claims raised in the
incapability benefits; (2) interest on the           complaint other than Counts I and V for
                                                     incap ability and T &P bene fits,
                                                     respectively.
        Supreme Court held that the
        pre decessor statute to
        section 1961[] did not apply
        to equitable decrees, relying
        on the use of the word
        “judg m e n t”,            as
        distinguished from “decree”,
        the equitable counterpart.
        Chief Justice Taney
        explained that, “[the statute]
        is confined, in plain terms,
        to judgments at law.” Id.
Id. at 125-26 (noting a “hesitancy” to
interpre t § 19 61 as man dati ng
postjudgment interest on back-pay awards
under the Fair Labor Standards Act when
those awards are procured under a section
of that Act arguably providing for relief
that is equitable in nature, but nonetheless
allowing for postjudgment interest on
other grounds) (footnote omitted).

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