                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-2237
CENTRAL STATES, SOUTHEAST AND SOUTHWEST
AREAS HEALTH AND WELFARE FUND,
an Employee Welfare Benefit Plan, by
ARTHUR H. BUNTE, JR., Trustee, in his
representative capacity,
                                      Plaintiffs-Appellants,

                                v.

AMERICAN INTERNATIONAL GROUP, INC., et al.,
                                     Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
               No. 14 C 5195 — John Z. Lee, Judge.
                    ____________________

  ARGUED DECEMBER 7, 2015 — DECIDED OCTOBER 24, 2016
                    ____________________

   Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. A self-funded ERISA plan has sued
several independent health insurers seeking reimbursement
for medical expenses it paid on behalf of beneficiaries who
were covered under both the plan and the insurers’ policies.
2                                                  No. 15-2237

We’re asked to decide whether a lawsuit like this one—a
“coordination of benefits” dispute—seeks “appropriate
equitable relief” under section 502(a)(3) of ERISA, 29 U.S.C.
§ 1132(a)(3). Six circuits have held that section 502(a)(3) does
not authorize suits of this type because the relief sought is
legal, not equitable. We join this consensus and affirm the
dismissal of the ERISA plan’s suit.
                        I. Background
    Central States, Southeast and Southwest Areas Health
and Welfare Fund (“Central States” or “the plan”) is a self-
funded ERISA plan that provides health coverage to partici-
pating Teamsters and their dependents. The plan’s trustee
filed suit on the plan’s behalf seeking a declaratory judg-
ment enforcing the plan’s terms and awarding restitution on
various theories. The defendants are insurance companies
that underwrite and administer insurance policies for
schools and youth sports leagues; their policies cover inju-
ries sustained by young athletes while participating in
athletic activities sponsored by these schools and leagues.
The case arises from injuries sustained by student athletes
who had medical coverage under both the Central States
plan and the independent insurers’ policies. The trustee
alleges that the plan paid the beneficiaries’ medical bills in
full, in the total amount of about $343,000, and the insurers
owe reimbursement.
   The plan and the insurers’ policies have competing coor-
dination-of-benefits clauses, and each side claims that its
respective provision makes the other primarily liable for the
beneficiaries’ medical expenses. Coordination-of-benefits
disputes like this one are often resolved in state court in a
declaratory-judgment action on an equitable-contribution
No. 15-2237                                                            3

theory. 1 See 16 LEE R. RUSS & THOMAS F. SEGALLA, C OUCH
ON INSURANCE § 232:71 (3d ed. 2000).

    But the trustee sued in federal court under section
502(a)(3) of ERISA (the Employee Retirement Income Securi-
ty Act of 1974), which provides in relevant part that a partic-
ipant, beneficiary, or fiduciary of an employee-benefits plan
may bring a civil action “to obtain … appropriate equitable
relief … to enforce any provisions of this subchapter or the
terms of the plan.” 29 U.S.C. § 1132(a)(3)(B) (emphasis
added). The trustee contends that the suit seeks “appropriate
equitable relief” to enforce the plan’s coordination-of-
benefits provision.
    More specifically, the trustee seeks: (1) a declaratory
judgment that the insurers are primarily liable for “current
unpaid and future medical expenses” incurred by athletes
who are covered by both the plan and one of the insurers;
(2) a declaratory judgment that the insurers are primarily
liable for medical expenses for injuries already incurred and
treated; (3) the imposition of an equitable lien on sums held
by the insurers in the amount of the benefits paid by the
plan; and (4) an order that the insurers must reimburse the
plan, variously justified on restitution, unjust enrichment,
and subrogation theories.




1 These suits also may be brought on equitable-subrogation or equitable-
indemnification theories. For a discussion of the distinction between
equitable contribution on the one hand and equitable subrogation or
equitable indemnification on the other, see Home Insurance Co. v. Cincin-
nati Insurance Co., 213 Ill. 2d 307 (Ill. 2004), and 15 L EE R. RUSS &
THOMAS F. SEGALLA, COUCH ON INSURANCE § 217:5 (3d ed. 1999).
4                                                 No. 15-2237

    The insurers moved to dismiss all claims. The district
judge granted the motion on two different grounds. To the
extent that the suit sought a declaratory judgment regarding
future medical expenses, the judge held that it did not raise a
controversy sufficient to invoke the court’s power to award
declaratory relief and dismissed that claim for lack of sub-
ject-matter jurisdiction. See FED. R. CIV. P. 12(b)(1). The
remaining claims were dismissed under Rule 12(b)(6) for
failure to state a claim. The judge reasoned that the relief
sought, though phrased in equitable terms, was not equita-
ble relief within the meaning of section 502(a)(3).
                        II. Discussion
A. Jurisdiction
    As always, our first question is subject-matter jurisdic-
tion. We’re satisfied that jurisdiction is secure over most of
this case. The Central States plan has clearly been injured by
the independent insurers’ failure to reimburse it for the
medical expenses it has paid, and its claim arises under a
federal statute, section 502(a)(3) of ERISA. But the request
for a declaratory judgment regarding the insurers’ liability
for “current unpaid and future medical expenses” is jurisdic-
tionally problematic. For starters, the trustee’s use of the
phrase “current unpaid and future medical expenses” is
odd. The amended complaint alleges that Central States paid
the injured students’ medical expenses in full. Accepting that
as true, there are no “current unpaid” medical expenses at
all. The trustee explains in his briefs that this request for
relief relates to “prospective claims”—that is, claims that
Teamsters’ dependents might make for injuries sustained in
the future.
No. 15-2237                                                              5

     This clearly raises ripeness concerns, as the district judge
recognized. 2 The Declaratory Judgment Act permits a feder-
al court to award a declaratory judgment only in “a case of
actual controversy.” 28 U.S.C. § 2201(a). This limitation is
equivalent to the Constitution’s general limitation on the
jurisdiction of the federal courts. U.S. CONST. art. III, § 2,
cl. 1; § 2201(a); Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S.
270, 272 (1941). Maryland Casualty remains the leading
statement on ripeness questions in the context of
declaratory-judgment actions: A suit is ripe when “the facts
alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” 312 U.S. at 273. The
question is “necessarily one of degree,” id., and it “must be
worked out on a case-by-case basis,” 10B CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2757 (3d ed. 1998).
    The trustee’s request for a declaratory judgment regard-
ing expenses the plan has already paid is plainly ripe for
adjudication; that claim involves a definite injury between
parties with adverse legal interests. The declaratory-
judgment request regarding future claims, however, is
unripe. That request for relief arises from hypothetical
benefits claims that have yet to be filed—indeed from inju-
ries that have not yet occurred—so the controversy between


2 The Supreme Court has held that ripeness is a jurisdictional question.
See, e.g, Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 265 n.13 (1991) (“[Ripeness] concerns our
jurisdiction under Article III, so we must consider the question on our
own initiative.”).
6                                                 No. 15-2237

the plan and the insurers is not of “sufficient immediacy” to
invoke a federal court’s jurisdiction.
    Our decision in Solo Cup Co. v. Federal Insurance Co.,
619 F.2d 1178 (7th Cir. 1980), is instructive on this point. In
Solo Cup we dismissed as unripe an employer’s request for a
declaration that its insurer must indemnify it for yet-to-be-
filed lawsuits. The employer had settled one plaintiff’s
discrimination claim and sought indemnification for the
settlement; that claim was clearly justiciable. Id. at 1183. In
the meantime, the federal government had issued a report
finding that the employer had discriminated against some
70 additional employees; the employer sought a judgment
declaring that any sums it might have to pay on these poten-
tial discrimination claims would be within the indemnity
coverage of the insurer’s policy. Id. at 1188–89. That claim
was unripe because “[t]he mere possibility that proceedings
might be commenced against an insured … is not sufficient
to create a controversy within the meaning of either the
Declaratory Judgment Act or Article III of the Constitution.”
Id. at 1189.
    The trustee’s request here—for a declaration regarding
payment of future claims—is even more remote. In Solo Cup
the prospective claims against the insured were identifiable
and had accrued but had not yet been filed. Here the trustee
wants a declaration regarding hypothetical future medical
claims arising from injuries that have not yet occurred. This
aspect of the trustee’s declaratory-judgment request is
clearly unripe.
No. 15-2237                                                     7

B. Section 502(a)(3) and “Equitable Relief”
   Turning now to the merits of the remaining claims, we
agree with the district judge that the relief sought is legal,
not equitable, so the trustee’s suit is not authorized under
ERISA section 502(a)(3).
    This is not the first time that Central States has sued in-
surers of schools and athletic leagues seeking reimburse-
ment for medical expenses it paid on behalf of its beneficiar-
ies. Six circuits have considered virtually identical claims by
the plan. All have reached the same conclusion: The suit is
not authorized under section 502(a)(3) because the relief
sought is legal, not equitable. Cent. States, Se. & Sw. Areas
Health & Welfare Fund v. Student Assurance Servs., Inc.,
797 F.3d 512 (8th Cir. 2015); Cent. States, Se. & Sw. Areas
Health & Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150 (2d
Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund
v. Bollinger, Inc., 573 F. App’x 197 (3d Cir. 2014); Cent. States,
Se. & Sw. Areas Health & Welfare Fund v. First Agency, Inc.,
756 F.3d 954 (6th Cir. 2014); Cent. States, Se. & Sw. Areas
Health & Welfare Fund v. Health Special Risk, Inc., 756 F.3d 356
(5th Cir. 2014).
    These circuits rest their decisions on a quartet of Supreme
Court cases interpreting the phrase “appropriate equitable
relief” in section 502(a)(3): Mertens v. Hewitt Associates,
508 U.S. 248 (1993); Great-West Life & Annuity Insurance Co. v.
Knudson, 534 U.S. 204 (2002); Sereboff v. Mid Atlantic Medical
Services, Inc., 547 U.S. 356 (2006); and US Airways, Inc. v.
McCutchen, 133 S. Ct. 1537 (2013). The quartet has since
become a quintet with the Court’s recent decision in
Montanile v. Board of Trustees of the National Elevator Industry
Health Benefit Plan, 136 S. Ct. 651 (2016).
8                                                  No. 15-2237

    Mertens, the first in the series, involved a suit brought by
ERISA beneficiaries against a nonfiduciary who participated
in an alleged breach of fiduciary duty. The Court held that
“appropriate equitable relief” is limited to “those categories
of relief that were typically available in equity (such as
injunction, mandamus, and restitution, but not compensato-
ry damages).” Mertens, 508 U.S. at 256. The Court held that
the relief the ERISA beneficiaries sought was compensatory
damages, which is “the classic form of legal relief” and
therefore unavailable under section 502(a)(3). Id. at 255.
    The next four cases—Great-West, Sereboff, McCutchen, and
Montanile—all involved disputes between ERISA plans and
beneficiaries over the proceeds of auto-insurance settle-
ments. The ERISA beneficiaries suffered injuries in car
accidents; the ERISA plans paid for the medical care to treat
these injuries. When the beneficiaries settled with the drivers
who caused the accidents, the ERISA plans demanded
reimbursement from the settlement proceeds. The beneficiar-
ies refused, and the ERISA plans brought restitution claims
under section 502(a)(3) to enforce reimbursement provisions
in their plan documents.
    In Sereboff and McCutchen, the defendant beneficiaries
held the settlement proceeds in segregated accounts or
funds, and in each case the plans sought an equitable lien
against the specifically identified account or fund; the Court
held that this form of relief was properly regarded as equi-
table. In Great-West and Montanile, on the other hand, the
defendant beneficiaries did not possess the settlement pro-
ceeds; the relief sought was money damages from the bene-
ficiary’s general assets, a quintessentially legal remedy. More
specifically, in Great-West the proceeds of the settlement
No. 15-2237                                                             9

were allocated to a trust rather than directly to the benefi-
ciary, who was the defendant in the plan’s suit; in Montanile
the settlement proceeds were paid directly to the defendant
beneficiary, but the record suggested that the money may
have been dissipated before the ERISA plan filed suit. 3
    In each of these cases, the Court explained that whether a
remedy is available under section 502(a)(3) “depends on
(1) the basis for the plaintiff’s claim and (2) the nature of the
underlying remedies sought”; both must be equitable to
proceed under section 502(a)(3). Montanile, 136 S. Ct. at 657
(brackets and quotation marks omitted). The inquiry looks to
“standard treatises on equity, which establish the basic
contours of what equitable relief was typically available in
premerger equity courts.” Id. (internal quotation marks
omitted). 4



3 To be precise, in Montanile the lower courts had not had occasion to
determine whether the defendant beneficiary had fully depleted the
settlement fund on nontraceable assets. Applying its prior cases, the
Court held that a recovery against a beneficiary’s general assets is legal
rather than equitable relief, reversing the lower courts’ decisions to the
contrary, but remanded to permit the district court to determine whether
the beneficiary had dissipated the entire settlement fund or comingled
the fund with his general assets. Montanile v. Bd. of Trs. of the Nat’l
Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 661–62 (2016).
4  But see RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT § 4 cmt. a (AM. LAW INST. 2011) (Some federal statutes
“arguably necessitate[] an inquiry into the legal or equitable nature of
the relief sought … . Resolution of such problems turns on issues … that
are beyond the reach of legal history and outside the scope of this
Restatement.”); RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT ch. 7, topic 2, intro. note (AM. LAW INST. 2011) (“Lingering
effects of [the law/equity distinction] on the remedies available under
10                                                             No. 15-2237

    Importantly, the Court made it clear that simply phrasing
the request for relief in equitable terms—e.g., restitution,
unjust enrichment, an equitable lien—is not dispositive. The
remedy is properly regarded as equitable only if the plaintiff
seeks the return of “specifically identified funds that remain
in the defendant’s possession or … traceable items that the
defendant purchased with the funds (e.g., identifiable prop-
erty like a car).” Id. at 658. A section 502(a)(3) suit wasn’t
available in either Great-West or Montanile because the
plaintiffs hadn’t pointed to specifically identifiable funds in
the defendant’s possession to which an equitable lien could
attach.
    The trustee hasn’t done so here either, so he cannot pro-
ceed under section 502(a)(3) on any of the theories he styles
as “restitutionary.” He can’t point to specifically identifiable
funds in the insurers’ possession because the insurers never
received any funds at all. They may have avoided what the
trustee claims are their contractual obligations to the in-
sureds and in that sense realized a monetary benefit. But no
matter what the trustee calls his claim, he is seeking a recov-
ery from the insurers’ general assets. His request for declara-
tory relief seeks an order requiring the insurers to reimburse
the plan—in other words, he asks for money damages, the
epitome of legal relief. That kind of suit is unavailable under
section 502(a)(3). Great-West, 534 U.S. at 210 (“Almost invari-
ably … suits seeking (whether by judgment, injunction, or
declaration) to compel the defendant to pay a sum of money
to the plaintiff are suits for ‘money damages,’ … since they
seek no more than compensation for loss resulting from the

particular statutes or on the right to jury trial are outside the scope of this
Restatement.”).
No. 15-2237                                                  11

defendant’s breach of legal duty.”) (quotation marks omit-
ted).
    The trustee offers several arguments to avoid this conclu-
sion, but all fail. First, he invokes the equitable roots of his
various restitutionary theories. As we’ve noted, however,
the Supreme Court has repeatedly held that even if the basis
for a claim is equitable, the relief sought must be equitable as
well and that requires identifying specific funds in the
defendant’s possession. Montanile, 136 S. Ct. at 657. The
Court has given us no indication that this requirement
applies to some but not all of the three traditionally equita-
ble theories by which a plaintiff may obtain restitution:
equitable lien, constructive trust, and subrogation. See
RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT § 56 cmt. a (AM. LAW INST. 2011). And the
Restatement makes clear that all of these remedies “confer
either rights of ownership or a security interest in specifical-
ly identifiable property in the hands of the defendant.”
RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT ch. 7, topic 2, intro. note (AM. LAW INST. 2011).
Regardless of how the trustee characterizes his claims, the
relief he seeks isn’t equitable in nature, and a suit under
section 502(a)(3) is therefore unavailable.
    Second, the trustee argues that allowing his suit is con-
sistent with ERISA’s “underlying purpose[s]” of protecting
plan assets and enforcing plan terms. For support he relies
on the Supreme Court’s opinion in King v. Burwell, 135 S. Ct.
2480 (2015). But the Court has heard this argument before in
the context of section 502(a)(3) suits and has consistently
rejected it. Montanile, 136 S. Ct. at 661 (“[V]ague notions of a
statute’s ‘basic purpose’ are … inadequate to overcome the
12                                                No. 15-2237

words of its text regarding the specific issue under consider-
ation.” (quoting Mertens, 508 U.S. at 261)).
    Finally, the trustee relies on two cases from this court in
which we permitted ERISA plans to litigate coordination-of-
benefits disputes against other insurers: Winstead v. Indiana
Insurance Co., 855 F.2d 430 (7th Cir. 1988), and Winstead v.
J.C. Penney Co., 933 F.2d 576 (7th Cir. 1991). Both cases were
decided before Mertens, the Supreme Court’s first foray into
the question of appropriate equitable relief under section
502(a)(3). These two early cases in our circuit cannot be
reconciled with the Court’s consistent instructions in
Mertens, Great-West, Sereboff, McCutchen, and Montanile.
    In closing, we recognize the dilemma this outcome cre-
ates for the plan. An equitable-contribution suit under state
law is probably foreclosed by ERISA’s broad preemption
provision. See generally United of Omaha v. Bus. Men’s Assur-
ance Co. of Am., 104 F.3d 1034 (8th Cir. 1997) (holding that
ERISA preempts a state common-law subrogation claim in a
dispute between two insurance companies over which
company was responsible to pay for certain benefits). If
ERISA plans can’t bring section 502(a)(3) suits or state-law
claims to obtain reimbursement from other insurers with
overlapping coverage obligations, then they’re left with just
one way to ensure that they don’t pay claims for which other
insurers are primarily liable: refuse to provide coverage to
beneficiaries who have other insurance and sue for a declar-
atory judgment that the other insurer is primarily liable. This
approach leaves the ERISA beneficiary, “through no fault of
his own, … considerably worse off for having two policies
that coincidentally had conflicting language than he would
be if he had only one.” Gerber Life Ins. Co., 771 F.3d at 159.
No. 15-2237                                                   13

    The trustee asks us to resolve this regrettable dilemma in
the plan’s favor. But that option is not open to us. It would
directly contravene clear instructions from the Supreme
Court on the scope of section 502(a)(3) and create a circuit
split to boot. Accordingly, we now join our sister circuits and
hold that the trustee’s suit against the insurers to recoup
amounts it paid for the beneficiaries’ medical care seeks
legal relief, not equitable relief, and as such is not authorized
by section 502(a)(3).
                                                      AFFIRMED.
