Millsap v. McDonell Douglas Corp.

hand, Conclusion the other IV. On incompetent. he was de- performance he deficient argues her AFFIRM the order of Accordingly, we jury certain a trial where prived him of court. the district or, him exonerated would have defenses him least, enabled have very would per- penalty. We are avoid death incompetent to if Allen was

plexed because have been remanded plea he would enter a for treatment. See Ann. tit. Okla. Stat. permit- He not have been would 1175.6. MILLSAP; Ramon; Ca R. Jose James Perhaps Allen is proceed to trial.

ted to Wilson; thy Kirby; Lawrence Wanda he if and when recovered suggesting that Owens; Hunter; Kephart; Bob Rita he treatment would have after competency Bowlin; Cooper; Howard Jim may be the jury trial. Whatever elected Ray Peterson, for themselves and all argument, we take camouflaged logic of his similarly situated, Plaintiffs- others up claims. his Appellees, whether, Bau We evaluate absent the trial court of mann’s failure to advise incompetency, court would her client’s McDONELL DOUGLAS competent found him have nonetheless Defendant-Appellant. CORPORATION, the observations of plea. While enter Labor; Secretary valuable, “the con United States defense counsel are insufficient to of counsel alone Retired Peo cerns American Association of competen of a defendant’s establish doubt ple; Chamber of Com United States at 1202. In cy.” Bryson, 187 F.3d this merce, Amici Curiae. case, contains com the record as whole No. 03-5124.

pelling competence. evidence Allen’s testified at Every expert witness who Appeals, United States Court of trial, including Allen’s own competency Tenth Circuit. competent. he was expert, testified Ake May Furthermore, court conducted its own competency through evaluation of Allen’s

colloquy with him and observation his (“A trial court behavior. of the defen rely on its own observations sentencing, Al comportment.”). At dant’s plead wish articulately explained len his record, guilty. Based on we conclude the trial court Allen has not demonstrated entering prevented have him would if plea incompetency basis truthful his counsel had been with the his court in her estimation of mental state. Thus, misrep assuming trial counsel even competence to the trial resented Allen’s doing, in so no judge and was ineffective Allen prejudice fails his resulted claim of ineffective assistance of counsel. Labor,

of Timothy Hauser, D. Associate Solicitor, Hopkins, Elizabeth and Mark E. Papadopoulos of Depart- the United States Labor, ment Washington D.C., of on the brief) for amicus curiae United States Sec- retary of Labor in support of Plaintiffs- Appellees.

Mary Ellen Signorille and Melvin R. Radowitz, D.C., Washington for amicus cu- riae American of Association Retired Peo- ple support Plaintiffs-Appellees. Kilberg, Perry, William J. Mark A. Maher, Joseph Gibson, B. Dunn & LLP, Washington D.C.; Crutcher Stephen A. Bokat and Ellen Bryant Dunham Litigation Center, National Chamber D.C., Washington for amicus curiae United States Chamber of in support Commerce of Defendant-Appellant. LUCERO, BALDOCK,

Before

TYMKOVICH, Judges.* Circuit Meites, Mulder, Paul Mollica W. BALDOCK, Judge. Circuit (Thomas Mollica, Burger Chicago, IL & R. Employee Section 510 of the Retire- Meites, Mulder, M. Michael and Josie Rai- ment Act Security Income Meites, Mulder, Burger mond of & Molli- (ERISA), §§ proscribes U.S.C. 1001-1461 ca, IL; Farris, Joseph R. Chicago, Paula with a participant’s rights interference un- Quillan, J. R. Jody Nathan Feld- qualified plan. der a benefit Section man, Franden, Woodard, Farris & Bou- par- provides plan of ERISA dreaux, Tulsa, OK; Bill of Brum- Brumley ticipant with his exclusive remedies for a OK; ley Tulsa, Bishop, Christopher & 502(a)(3), 510 violation. Under Bell, Boyd Lloyd, G. Mackaronis of & (1) participant may bring a civil action briefs) D.C.,

Washington him with on the enjoin act any practice or which violates for Plaintiffs-Appellees. any provision of Title I of or the ERISA Cave, Bryan LLP, E. Thomas Wack of plan, ap- terms of the obtain other (Daniel Louis, St. MO S. Hoffman and propriate equitable relief to redress such Hoffman, Connelly Reilly, Sean Pozner any provisions violations or enforce of Title LLP, Denver, CO; & Williamson John W. I of plan. the terms of the McDonnell-Douglas Corpora- Walbran of 1132(a)(3). granted We Defen- tion, Louis, MO, brief) him St. on the dant Douglas Corporation’s pe- McDonnell for Defendant-Appellant. appeal tition interlocutory in this class Parry Robin Springberg of the United action controlling to decide a issue law Labor, Washington States Department involving See 28 U.S.C. (Howard 5(a). Radzely, 1292(b); D.C. P. Acting par- M. Solicitor Fed. R.App. * Douglas supplemental appendix granted. Corporation's Defendant McDonnell See 10th 30.2(B). unopposed October motion to file a Cir. R. alleging tion in 1994 violated district court Defendant stipulated and the

ties § 510 Section 510 provides for review: of ERISA. following issue certified the part: “It shall relevant be unlawful [Wjhether, 510 case this ERISA discharge to ... or person discriminate & as result of Great-West and a Life against participant beneficiary a ... for Knudson, Ins. Co. v. Annuity purpose interfering with the attain- to any right partici- ment of which such (2002), (and, result, any a as pant plan become entitled under upon backpay) damages based other Title I of 1140. [or ERISA.]” re “appropriate as According complaint, Defendant pursuant members lief’ the class plant prevent closed the Tulsa Plaintiffs 502(a)(3). eligibility from for under attaining benefits yes and denied The district court answered plans. their and pension health care seeking to preclude motion Defendant’s requested damages, Plaintiffs an order re- potential a for as quiring Defendant to make restitution Reviewing reso- the district court’s class. plans, any their benefit and other novo, de we question lution of the law or remedial relief.1 answer no and reverse. The district court the case bifurcated I. liability phases. into and remedial The undisputed. The facts are Defendant proceeded case to trial on the issue of military air- liability manufactured and assembled Defendant’s under ERISA 510. Tulsa, trial, De- plant craft at a in Oklahoma. After day a ten bench the district plant employees partici- fendant’s court concluded Defendant violated pated plans in care pension health The a thorough published court entered and/or 52(a) an- qualified under ERISA. Defendant pursuant order to Fed.R.Civ.P. recit- Tulsa closing plant nounced the ing findings Millsap its and conclusions. subsequently 1993. Defendant McDonnell-Douglas Corp., December v. (N.D.Okla.2001). plant. at the employees laid off all Tulsa We need F.Supp.2d 1,074 findings repeat The Plaintiff class consists of not all those and conclu- ac- purposes appeal, Plaintiffs filed this sions here.2 For of this employees. those Thus, sought legal damages primarily at the remained. n. 4. 1. Plaintiffs See infra litigation. litigation, specifically onset of this Plaintiffs onset focus Plain- complaint requested complaint recovery legal in their and tiffs’ on the Petroleum, complaint, damages. but did not mention rein- amended See Skinner v. Total Cir.1998) dis- (per statement. Plaintiffs moved for and the damage curiam) certified a class action (explaining trict court the court must consider 23(b)(3). pursuant Plaintiffs damages” to Fed.R.Civ.P. "in nature for class action Fed. did not move complaint plaintiff's when the focus of the 23(b)(2), permits R.Civ.P. class actions primarily recovery damages). on the (such declaratory injunctive for reinstatement). Prod., studied The district court found Defendant Amchem Inc. Windsor, closing plant the correlation between with a maximizing also more senior workforce and a sur- plus jury pension plans. plant § 510 its Tulsa moved on their ERISA The trial had, average, workforce claim. Plaintiffs abandoned their restitution most senior company. urged the court to within the Defendant learned it claim that motion (should gain pension $24.7 claim stood to million in handle reinstatement “ancillary coverage savings plant plant reopen) care if the Tulsa Tulsa as an matter.” health right argued they had the closed. Defendant thereafter closed Tulsa Plaintiffs therefore money plant. F.Supp.2d jury request Millsap, at 1267-73. court’s conclusion Defendant under ERISA the district The rea- court the Tulsa closing plant violated “equitable soned constituted resti- undisputed. or alternatively tution” could be awarded because Plaintiffs con- phase, Plaintiffs argued the remedial junction benefits, pension lost lost § 510 Defendant’s violation of entitled pay, insurance, vacation lost and reinstate- benefits, backpay, class to and rein- lost (or pay. ment or front lieu statement front of reinstate- ment), among things. Defendant parties into a subsequently entered disagreed preclude filed motions to “Stipulation of Settlement.” The settle- reinstatement, pay, award of front compensates ment Plaintiffs the amount The backpay under ERISA. district court of million for their lost pension and $36 denied Defendant’s motion the availabil- health care benefits. The stip- settlement ity backpay, granted of but Defendant’s requires judicial ulation of resolution the preclude motion to front reinstatement and availability under ERISA pay. v. Millsap Douglas McDonnell 502(a)(3). The district court approved 94-CV-633-H, Corp., 2002 WL No. settlement, 23(e), the see Fed.R.Civ.P. and (N.D.Okla. 2002) (un- Sept.25, controlling question certified the of law for published disposition). The court rea- 1292(b). appeal. See 28 U.S.C. We soned the circumstances this case made granted parties permission appeal in- impossible pay reinstatement and front on the narrow issue certified.3 appropriate because court not could conclude but for that Defendant’s discrimi- II. natory plant conduct the Tulsa would still held, however, regulates employee ERISA pension The and open. district court welfare benefit plans. Plaintiffs could recover See 29 U.S.C. 1002(l)-(2), 1003(a); “equitable §§ the award constituted relief’ Pilot Ins. Co. Life admitted preserved. parties’ Plaintiffs in their brief that back- reinstatement —were The Settlement,” however, pay and “Stipulation restoration of benefits are the conclu- (Aple’s sively remedies available in this case. atBr. demonstrates otherwise. settle- The 24). longer litigation is an provides Restoration benefits no ment terminated if parties' issue as a result of the we settlement. determine unless unavailable Supreme seeking injunction Plaintiffs are not or grants Court a writ of certiorari. 502(a)(3). 475-76). (Aplt's App. under mandamus Plaintiffs also The settlement fur- argument, conceded at oral provides made clear in that ther if we determine brief, case, they seeking remedy Supreme are either in the absent the certiorari, granting restitution writ case Additionally, proceedings Plaintiffs have not will be “remanded for further appealed holding district court's and a rein- determination amount back- pay inappropriate pay, any, may ap- statement and front are party if after either case, impossible peal judgment remedies in this nor does from the as to the amount of parties' “Stipulation provide of Settlement” other based on back- appeal Douglas for may appeal mechanism Plaintiffs to the district and McDonnell denying September (liability) court's order reinstatement and front the Orders dated pay. argument, September (backpay).” At oral Plaintiffs’ counsel {Id. 476) added). misrepresented pro- (emphasis and state record The does settlement ceedings ques- provide any procedure district court. When for panel regarding appeal holding tioned Plaintiffs' district court's that rein- appeal decision not ment, the denial of inappropriate reinstate- statement front Thus, responded 476-77). counsel that because this is remedies in this {Id. case. interlocutory appeal appeal only all decisions— this Plaintiffs' involves freestand- including denying ing backpay. the district court's order claim 41, 44, 107 Life, Pilot Dedeaux, v. (1987). 502(a) Congress designed to be the ex- “Congress

95 L.Ed.2d 39 intended the interests em promote “to ERISA rights guaranteed un- clusive employee their beneficiaries ployees and ERISA, including provided those der v. Ingersoll-Rand Co. plans.” benefit 144; Ingersoll-Rand, 498 U.S. at 510[.]” McClendon, 137, 111 S.Ct. Equip., v. Sloss see also Zimmerman (1990) (internal quo 112 L.Ed.2d 474 (10th Cir.1995). omitted). citation ERISA’s tations and repeatedly Court has em statutory scheme “complex and detailed” Congress’ care in phasized that deliberate disputes between innumerable “resolved drafting ERISA’s en comprehensively interests —not all powerful competing strong evi “provide[s] forcement scheme potential plaintiffs.” Mertens favor of Congress did not intend dence Assoc., 248, 262, 113 Hewitt simply authorize other remedies that Federal Russell, expressly.” forgot incorporate into must take interpreting courts 3085; see also interests, “such competing account those Great-West, 534 employees offer en Congress’ desire to Mertens, 254, 508 U.S. 113 S.Ct. benefits, their on the protection for hanced v. Savings Trust and Bank Salo Harris other, hand, and, on the its desire one 238, Barney, Smith 530 U.S. complex so that mon system create a that is to 2180, costs, litigation expenses, 247, 147 L.Ed.2d or administrative S.Ct. offering from unduly discourage employers 54, (2000); Life, 481 U.S. at S.Ct. Pilot place.” first plans welfare benefit equally been consis 1549. The Court has 489, Howe, Vanity v. 516 U.S. Corp. tamper reluctance to tent its with (1996); 1065, 134L.Ed.2d 130 see scheme because ERISA’s enforcement “ Spink, 517 Corp. Lockheed v. also presumption that a ‘[t]he 135 L.Ed.2d 153 from deliberately omitted a statute not require ERISA does (explaining a strongest Congress when has enacted employee benefit employers to establish legislative scheme includ comprehensive a plans a of benefits under or certain level system integrated procedures ing plan). ” Russell, enforcement.’ 473 U.S. scheme, 29 ERISA’s civil enforcement (quoting 105 S.Ct. 3085 Northwest Air carefully § of several consists lines, Workers, Transport Inc. v. Massachusetts integrated provisions. Russell, Mut. Ins. Co. Life 502(a)’s (1981)). exclusivity §of re The provisions medial consistent with explained: The Court legislative plain language ERISA’s provisions Under the civil enforcement 54-55, history. Life, Pilot 502(a), § or plan participant benefi- S.Ct. 1549. ciary sue to recover benefits due may partici- enforce the plan, under the to A. plan, clarify or to

pant’s rights under cases, in any “In ERISA case may Relief rights future to benefits. construction, statutory analysis begins our due, a take the of accrued benefits form language of the statute.” Harris to declaratory judgment entitlement Trust, 120 S.Ct. 2180 benefits, against plan injunction or an omitted). (internal quotations and brackets improper administrator’s refusal 502(a)(3) § provides: ERISA benefits. may brought

A ... civil action relief not at We all. will not read the (A) fiduciary or participant, beneficiary, statute to superflu- render modifier enjoin any act or practice which vio- ous. any provision lates I of [Title ERISA] (footnote 257-58, Id. at (B) plan, or the terms of the or to obtain omitted). Second, plain- the Court found (i) other appropriate equitable relief 502(a)(3) tiffs’ proposed interpretation §of (ii) redress such violations enforce inconsistent with ERISA’s overall statuto- I any provisions of [Title ERISA] scheme, ry which distinguished “equitable” the terms of the plan[.] from in 409(a), “remedial” relief and “eq- 1132(a)(3) added). (emphasis 29 U.S.C. “legal” uitable” Great-West, In Mertens and 502(g)(2)(E) provi- ERISA clear only made relief is sions, namely §§ 1024(a)(5)(C), 29 U.S.C. 502(a)(3). available The Court 1303(e)(1), 1451(a)(1). Id. at any suggestion laid to rest other relief The Court held plaintiffs could also be available under not recover under they Mertens, In plaintiff class sought legal damages, compensatory monetary relief under for loss- not typically equity. Id. at employee plan es their benefit as a 255-56, 263,113 result non-fiduciary of a defendant’s know- the Court again consid- ing fiduciary in a participation breach of type ered the typically available in duty. argued request There, equity. the defendant was bene- monetary “equitable relief constituted re- ficiary qualified plan. 502(a)(3) lief’ under because common defendant-beneficiary in injured was law of equity jurisdic- courts had exclusive plan automobile accident. The covered virtually tion over all actions beneficia- $411,157 of defendant-beneficiary’s medical ries for of also breach trust. Plaintiffs expenses. plaintiff-insurance The compa- pointed that equity out courts had the ny paid majority expenses the of those power money damages to award against pursuant to an agreement insurance the persons trustee third who know- Thereafter, plan. the the defendant-bene- ingly participated in the trustee’s breach. ficiary filed suit in court against state the Mertens, 255-56, car riding manufacturer of the she was in rejected plaintiffs’ argu- 2063. The Court at the time of ultimately the accident and ment for two reasons. $650,000. her settled claim Great- First, the Court interpreted phrase the West, U.S. at 708. S.Ct. 502(a)(3) “equitable §in relief’ as refer- defendant-beneficiary’s The includ- plan ring only categories “to those of relief that provision. ed a reim- reimbursement The (such were typically equity available in provision provided plan bursement the injunction, mandamus, restitution, but right with the pay- to recover benefit compensatory not damages).” Id. at party. ments recovered from third The explained: S.Ct. 2063. The Court provision personal liability also imposed on Since all relief available for breach of beneficiary up the the recovered to amount trust could be from of obtained a court party beneficiary from a third if the failed equity, limiting the sort relief obtain- 502(a)(3) plan assigned to reimburse The plan. “equitable able under to re- right in to enforce the lief’ the sense of “whatever reimbursement relief equity provision company. common-law court of to the insurance The pro- could in vide such case” would limit the suit company insurance filed under ERISA $411,157 traditionally applied, been 502(a)(3) phrase under the has recoup to they no than provision compensa- because since seek more plan’s reimbursement defendant-beneficiary resulting only allocated tion for loss defendant’s satisfy (emphasis add- $13,829 duty.” breach of the settlement ed, omit- pro- quotations claim under that internal and citation company’s insurance ted). vision. Id.- 502(a)(3) Thus, question the insurance under company held

The Court requested its action under case is Plaintiffs’ maintain this whether could not essence, “in sought, “typically equity.” relief was available Mertens, liability U.S. S.Ct. impose personal [defendant] Great-West, obligation mon- for a contractual Answering question requires us to typically not available ey that was —relief pro general types 708. As consider “the equity.” Id. at Mertens, again “rejected a equity.” vided courts law Court Chauffeurs, Helpers, that would extend Teamsters and Local reading statute n. Terry, obtainable No. 391 v. empow- equity relief a court whatever particular in the case at provide “[CJonsulting

ered to ... standard current works (which Corbin, include remedies Dobbs, Palmer, issue could and the such beyond scope Restatements, otherwise ordinarily] would make the [will authority).” Id. In court’s so equity answer clear.” adjust holding, refused 217, 122 S.Ct. 708.4 carefully crafted and detailed en- ERISA’s B. Id. at

forcement scheme. is a creature The Plaintiffs seek law; is, positive company’s claim insurance did not exist at common law. equity,” “typically thus Corp., NLRB v. & Steel Laughlin Jones Id. at actionable under 1, 48, 615, 301 57 81 L.Ed. 893 U.S. S.Ct. company only 122 708. The insurance S.Ct. (1937); 1,No. Alba Bertot v. School Dist. damages sought legal money —for relief — (10th 245, ny County, 613 F.2d 250 Cir. duty. Id. The defendant’s breach of Court (en 1979) banc). claims, however, Backpay invariably ... explained that “[a]lmost (whether remedially personal not differ from the judgment, in- “do seeking by suits declaration) the contract injury wages, claim for lost or junction, compel the de- 2 B. money past wages claim for Dan due[.]” sum of fendant a 6.10(5) (1993); Dobbs, damages,’ § Law plaintiff ‘money are suits for Remedies of suits, routinely merely to refer which the [to] also examine law' 'not Federal courts plaintiff's requested legal recognized among a relief is whether common law its old equitable in to determine the exis nature proceedings, but suits in which [to] settled right jury trial tence of the under rights legal to be deter were ascertained and See, e.g., Seventh Amendment. mined, Granfinanci to those where contradistinction era, 33, 42, Nordberg, 492 S.A. v. U.S. 109 recognized, rights alone were 26 The Sev were administered.’" remedies at provides "[i]n Suits enth Amendment Television, Inc., v. Pictures Feltner Columbia law, controversy where the value in common 140 118 dollars, right twenty shall exceed of trial (1998) (quoting 438 v. Bed L.Ed.2d Parsons by Supreme jury preserved[.]'' The shall be 433, 447, (1830)). ford, 732 3 Pet. 7 L.Ed. long 'Suits at Court has “understood common

1253 Palmer, George recognized 1 E. Law Resti “The Court has that compen see also of (describ (1978 Supp.2003) § 4.1 sation purpose ‘traditionally tution & is a associated ” personal City of services with relief.’ ing Monterey claim breach v. of Ltd., sounding quasi-contract contract as for Del Monte Dunes Monterey, at 526 687, 710-11, money damages). backpay A claim is re U.S. 143 personal injury Feltner, medially analogous to or L.Ed.2d (quoting 882 523 1279); breach of contract claims because U.S. at see also Dobbs, 6.10(5) employees for compensate § awards lost The Law Remedies at of wages Smith (“Backpay and benefits before trial.5 v. 227 n. 15 com is an element of Inc., Ford-Lincoln-Mercury, ... pensation 298 traditional function of Diffee law.”). Cir.2002); Henry damages F.3d H. backpay, An award of Jr., more, Perritt, Employee Dismissal Law and without is therefore the nature of (4th ed.1998); § compensatory Practice 9.46 Bel- damages.6 Robert See Terry, ton, Employment Discrimi (explaining Remedies U.S. 110 S.Ct. 1339 “the (1992); Dobbs, § Law remedy sought request nation 9.3 Law com is a of 6.10(5) Backpay pensatory damages Remedies at 227 n. 15. representing backpay benefits.”); compensatory because the is mea v. Waldrop award Southern Co. Serv., (11th Cir.1994) an employee’s sured loss than an rather F.3d Id.; Ford, employer’s gain. (noting “that has been the long general (noting “paying wages rule that back relief an backpay damages paying is like extra nature compensatory damages.”); of worker, 6.10(5) work”); Dobbs, never came to Albe who The Law Remedies Paper (noting backpay marle S.Ct. 226 dam ordinary claim). (Marshall, J., ages concurring) (explaining “Generally, an mon award of ey generally under Title VII is was the traditional form of computed determining the amount of in the offered courts law.” Wood compensation lost direct v. result dell Intern'l Brotherhood Elec. Work action). ers, discriminatory 93, 97, employer’s Local has described the com- an element of under 42 U.S.C. 10(c) pensatory integral part nature of 1983 when NLRA, 160(c), 706(g) equitable remedy 29 U.S.C. of reinstatement. Rights Bertot, VII of Title the Civil Act of F.2d at 250. the district court 2000e-5(g). Dodge We, Phelps Corp. ordered reinstatement. at 247. NLRB, course, express opinion no our whether (1941) (explaining L.Ed. 1271 the National factually under the classification (i.e., reinstatement) Labor Relations Board effectuates the remedi- backpay ordered with by ordering compen- al scheme of the 1983) NLRA (i.e., arising distinguish- legally under wages); Paper lost sation for Albemarle Co. v. light able is circumstances in Bertot correct in Moody, 422 U.S. 95 S.Ct. pro- Supreme subsequent Court's (1975) (explaining L.Ed.2d 280 faith bad is subject. nouncements on the backpay not an element of a VII award 708; Title 534 U.S. at 218 n. Del remedy punitive Dunes, lest the become would rather Monte 526 U.S. at compensatory); than Ford Co. v. Motor (classifying takings a claim under EEOC, 219, 230, legal). suggests we The dissent have turned (1982) (explaining secondary L.Ed.2d a 1263). (Dissent Op. our back on Bertot. purpose compensate employ- of Title VII tois simply contrary, Much see to the we do not injuries). ees for their legally utility relying factually on a distinguishable interpret case to Bertot, 502(a)(3) controlling Eighth we on In relied Circuit when interpreting backpay precedent VII case Title to hold is exists. (1991) simply seeking (emphasis add conclude Plaintiffs are com- L.Ed.2d Loether, ed); wages lost trial. pensation Curtis before (1974); Mer calculating Plaintiffs’ method of proposed tens, U.S. at backpay each indi- their award is based on course, are, of the clas (“Money damages loss rather than De- vidual class member’s relief.”); Pom- 1 John N. legal form sic gain. freestanding fendant’s Plaintiffs’ Equity Jurisprudence eroy, A Treatise on is nature of backpay claim for thus ed.1941) (explaining “[t]he § 237d law, damages. At compensatory common damages ... compensatory award mere compensatory damages was award belonging to the remedy peculiarly ais peculiarly province within law eourts[.]”) Thus, a the law province of backpay courts. Plaintiffs’ claim there- exemplar is “almost backpay claim for legal fore classified as relief. appropriately Dobbs, The Law claim at of a law.” Dunes, 710-11, 119 Del Monte 526 U.S. at 6.10(5) 226; see Col also Remedies Mertens, Misclassifying Monetary Murphy, P. leen S.Ct. 2063. Restitution, L.Rev. 55 SMU (“The remedy ap is more backpay III. damages characterized propriately remaining to relief.”).7 losses and thus plaintiffs compensatory damages repre- Plaintiffs is case, backpay Plaintiffs seek senting backpay. Plaintiffs nevertheless plant’s of the Tulsa closure date argue backpay “equitable” their claim is through pro- trial. Plaintiffs the date of First, argue for three reasons. Plaintiffs backpay their award pose calculate claim under “an on each individual compensation based money rule” general exception during have earned class member would constitute See Ter- relief. they argue Plaintiffs backpay period. 570-71, 110 ry, 494 U.S. at to make them are entitled Second, analogize wrongful termi- whole for Defendant’s § 706(g) argue Title a backpay VII on Plaintiffs’ own method nation. Based easily integral is an arguments, part we award of calculation guidance provided judge be tried to a a states "the alone would without 7. The dissent standing suggests jury is scant but the conclusion while a claim alone Dobbs plaintiffs respect jury that with class who be tried to if one is demanded. would wrongfully discharged, were single in a If both kinds relief are (Dissent 1262). Op. Queen equitable.” case, Dairy rule would seem to length quote We Dobbs at to let the Professor require jury trial all common issues readers draw their own conclusions: discharge fact —such as whether the discriminatory. But in fact the cases do job equita- appears Reinstatement in yield any single up to conclusion. essentially injunc- ble because such relief is Dobbs, 6.10(5) Law Remedies at 226 tive. seems on surface to But (footnotes omitted); see also n. 9. Profes- claim, ordinary damages almost an infra be an explains sor Dobbs then the different rules for Backpay exemplar of a claim at law. determining jury when trial attaches under remedially from the claims do differ statutory provisions. at 226-33. different Id. personal injury wages, or claim for lost (1) distinguishes due, Professor Dobbs between wages past for ex- contract claim for arising backpay VII is cases under Title where ample. clearly is So while reinstatement generally equitable, at considered id. injunctive as a form of 226-29, arising just clearly legal. cases under other backpay as seems to be ADEA, observations, statutory provisions, such as the where On it would the basis of such legal. standing backpay is considered Id. 229-33. seem that a reinstatement claim equitable remedy of reinstatement. The relevant exception provides a mone- Third, tary n. 16. Plaintiffs award incidental argue to or intertwined infra injunctive backpay “equitable” should be classified as be characterized Id. equitable.10 as purposes further Plaintiffs reliance on exception is of ERISA and make them whole. Because flawed. Supreme rejected Court has each of arguments, these we do the same. In Terry, 494 U.S. at 1339, the Court held the incidental to or

A. intertwined with exception did not apply argue backpay Plaintiffs first their claim where plaintiffs sought only backpay monetary is because it is a award There, plaintiffs benefits. requested incidental to or intertwined with reinstate- reinstatement, but dismissed the claim In Terry, 570-71, ment.8 494 U.S. at remedy when the impossible became after Supreme recognized employer Id. bankruptcy.11 filed general two exceptions rule that a 110 S.Ct. 1339. The Court held monetary award constitutes relief.9 the exception did not apply notwithstand- 213-14, 218, remedy essentially 8. The of reinstatement see also Clair v. Dobbs, injunctive Bank, relief. Law Remedies Harris Trust and Sav. 190 F.3d 6.10(5) 1999); at 226. The Court has made Bank, "clear Ky., Cir. v. PNC Helfrich judgments compelling employment, rein- (6th Cir.2001) 482-83 statement, promotion equitable[.]” are (holding plaintiff who denominated his re Pons, Lorillard v. 583 n. quested relief under as "restitu (1978) (internal quo- L.Ed.2d 40 measuring tion” while that relief with refer Great-West, omitted); tations and citation ence to gain his losses rather than defendant's (noting U.S. at 211 n. 122 S.Ct. 708 precluded recovering money was injunction inherently equitable remedy). relief). as exception argue 9. The Plaintiffs did not on use the Plaintiffs terms “incidental” and appeal provides damages are when (See "integral” interchangeably. Aple’s Br. at they restitutionary. Terry, 494 U.S. at 12-13, 22, 30). argument, At oral Plaintiffs' 570, 110 S.Ct. 1339. The dissent nevertheless disclaimed reliance on the Court's restitutionary exception. finds solace in the exception. “incidental to or intertwined with” (Dissent 1263). Op. at As Professor Dobbs Instead, argued however, explained, a characterization of "integral” requested to their reinstatement. restitutionary "appears to be dou Dobbs, however, agree We with Professor bly wrong, since claim does not become 'integral' any meaning “if has different [from equitable by being restitutionary and since it is difficult to see 'incidental'] what it could restitutionary does not seem to fit the Dobbs, 6.10(5) be.” Law Remedies Dobbs, category event.” Law Reme 227 n. 11. 6.10(5) (footnotes omitted). dies at 227 A because, restitutionary claim is not attempt distinguish Terry 11. Plaintiffs above, explained the nature of the ground plaintiffs did not seek rein compensate prevent unjust and not to 18). (Aple's in that case. statement Br. at 6.10(5) enrichment. at 227 n. 15. The however, Terry, specifi The district court in money Plaintiffs seek is not the De cally requesting noted that addition to "[i]n withheld, rather, wrongfully fendant but relief[,] injunctive reinstatement wages they would have received absent their punitive damages Plaintiffs seek and other termination. "Such relief is not restitution- monetary wages relief for lost ary.” Terry, health ben 494 U.S. at 110 S.Ct. 1339. efits and for Simply characterizing backpay mental and emotional distress.” as restitution- award, Terry Chauffeurs, ary Helpers, is of no avail either Teamsters and because the best, (M.D.N.C. F.Supp. typically constitutes restitution not Local 1987) added). equity. (emphasis available in 1256 equity grant legal court of could remedies plaintiffs requested had reinstate-

ing that equity in a the court’s exclusive during pendency the case within ment at one time 571,110 jurisdiction). In or concurrent Plaintiffs’ at action.12 at S.Ct. 1339. the Id. tempt equity An ease, similarly court dis- fails. court at common the district this power legal due law did not have the to award reinstatement claim missed Plaintiffs’ here, where, admit relief as relief was was impossibility. “[i]t to Moreover, years unavailable. Id. 237d. even proceeding artifact of this case an if an the equity power provide left court had to beyond possible reinstatement legal relief, requested the Plaintiffs’ the Court backpay and restoration benefits as Mertens, 256-58, at (empha- Br. at 24 508 U.S. 113 S.Ct. (Aple’s remedies.” added)). Notwithstanding unfortu- the sis 708, rejected litigation, reading in modern a delays

nate inherent permit plaintiff legal at 102 that to obtain Ford Motor 458 U.S. would see an had simply equity fact remains this case because court the power only remedy sought provide such relief. Aside request “the damages representing points, these crucial Plaintiffs essen compensatory baek- tially typically Terry, concede was not pay[J” necessary equity by facts proceeding under Consequently, exception general that a mone support the incidental to intertwined rule “clearly tary constitutes An exception legal absent from the award relief. 1339; is, exception general to a defini see also rule case.” tion, Saunders, English F.3d 5 Dic Hopkins atypical. 977 See Oxford (2d ed.1989) Cir.1999) tionary (defining “excep (holding “[b]ecause the dis- as, grant [plaintiff] among “something tion” other things, trict court refused to rein- unusual”). injunctive abnormal or any statement other neither damage award was incidental request Even assuming for reinstate- relief.”). any to nor intertwined with other case, ment remained the incidental attempt “re-classify” to or intertwined with still would exception Plaintiffs also States, In Tull v. apply. as United 412, 414-15, court had equity power common law an (1987), relief as incident to L.Ed.2d 365 sued award Government Pomeroy, developer a real Equity seeking penal- relief. See Ju- estate civil (explaining injunctive §§ ties and relief under the Clean risprudence reinstatement, Skinner, Relying plain on 859 F.2d at because the focus suggests complaint recovery tiff's dissent we should characterize back- Skinner, damages. re Id. at 1444. as whenever award is Like (Dissent quested Op. considering with reinstatement. courts un nature 1265-1266). employment der statutes Such a characterization is cor outside the context Title cases. n. and the rect in VII and NLRA See Title VII NLRA have treated back- infra Gibson, Lorillard, legal. at 583- West v. as (Age Em Discrimination in Wooddell, incorrect, Act); ployment equally characterization is as ex Skinner, (Labor plained Management Reporting is claimed 112 S.Ct. 494 when statute, Act); anti-discrimination Disclosure another Diffee-Ford-Lincoln (Family Mercury, F.3d at Medical such as which does not 964-65 Skinner, Act); (Rehabil classify equitable. Waldrop, Leave 24 F.3d at 159 Aviation, event, Act); rejected F.2d at 1443-44. we itation Crocker v. Piedmont (D.C.Cir.1995) (Airline characterizing backpay at issue in Skinner Act). equitable, plaintiff's request Deregulation despite property Act. Defendant sold the Water such that [Plaintiffs’] demand for rein making injunctive impractical. issue statement does not transform [their] held the incidental to or inter- backpay The Court claim into equitable relief.”14 exception apply. did not twined Id. Waldrop, 24 F.3d at 159 n. 11. Plaintiffs’ 107 S.Ct. 1831. The Court rea- backpay claim cannot be considered “in soned the Government’s claim for mil- $22 tertwined” with their dismissed reinstate claims) penalties (legal lion civil could ment claim because Plaintiffs could only not be considered “incidental” to the mod- 502(a)(3). equitable seek § relief under (and impracticable) equitable est relief re- Great-West, 534 U.S. at quested. explained Id. The Court further 708; Tull, the Clean Water Act did not “intertwine” S.Ct. 1831.15 legal equitable relief because “the B. equitable

Government was free to seek an to, of, independent in addition argue next backpay Plaintiffs their claim legal relief.” Id. 107 S.Ct. 1831. equitable Congress treated in the claim NLRA and potentially Plaintiffs’ ex- Tull, Title VII. The NLRA and Title pro- ceeds million.13 Like in VII $90 agency vide an power or court with the potential backpay merely award is not reinstate an request employee “incidental” to Plaintiffs’ with or re- without Moreover, backpay.16 analogize instatement. does Plaintiffs intertwine relief with ERISA 510 claim to actions under the “[Rjeinstatement relief. are NLRA and Title VII. Plaintiffs then con- separate, independent kinds of clude Congress intended the remedies un- argument, dispute 13. At oral did acteristic is irrelevant pow- here because "the ques- Defendant’s calculations when er to exercise discretion occurs when the regarding tioned the incidental to or inter- equitable; case is discretionary found to be Rather, exception. twined with Plaintiffs dis- power trigger equity, does not it results from portion avowed on the reliance "incidental” Dobbs, equity.” 2.6(3) Law Remedies exception. 155 n. 1. Cyprus 14. Plaintiffs reliance on Adams 10(c) empowers 16."Section of the [NLRA] Amax Minerals 1161-62 Board, when finds that an unfair labor (10th Cir.1998) argue backpay and rein- committed, practice has been to issue an or- misplaced statement are intertwined is be- requiring der the violator to 'cease and desist cause and reinstatement are inde- Adams, from practice, such unfair labor and to take pendent types of relief. we held plaintiffs’ including claim for benefits such intertwined with affirmative action reinstate- There, plaintiffs only relief. had a employees backpay, ment of with or without claim for benefits if the court declared them policies' as will effectuate the of the NLRA.” eligible plan. beneficiaries under Sure-Tan, NLRB, Inc. v. contrast, backpay Id. In and reinstatement (1984) (quot- another, way dependent upon are in no one 160(c)). ing 706(g) 29 U.S.C. Section it, permitted Plaintiffs could if court, empowers Title VII when it finds obtain one without the other. employment practice an unlawful has been committed, "enjoin [employer] argue backpay 15. Plaintiffs also engaging employment prac- in such unlawful "quintessentially because the award is discre- tice, may and order such affirmative action as 26). tionary (Aple's relief.” Br. at Plaintiffs’ include, appropriate, but is not argument is off-mark because a federal court to, hiring employ- limited reinstatement or does not have discretion to award ees, backpay....” with or without 42 U.S.C. 2000e-5(g)(l). Thus, "[discretion while equity,” is indeed characteristic of such char- example, Terry, the For in 494 U.S. at to be same. Assum der each statute rejected § 110 S.Ct. an anal premise 510 the Court ing Plaintiffs’ ERISA —that § in part ogy 706(g) considering Title to Title significant in after VII modeled correct, of the backpay duty claim for breach provisions VII’s substantive —is representation brought under disagree Plaintiffs’ fair the La we with nevertheless Act. The Management bor Relations Court Plaintiffs’ conclusion flawed conclusion. rejected Congress provisions analogy ERISA the because did because the remedial issue, an backpay part equitable at in not make are those and Title VII duty differences exist. for breach of the of fair provisions significant Pons, representation. noted the inap 434 The Court See Lorillard U.S. propriateness analogy 40 of the Title VII be practice

cause the unfair labor remedying 1. differed Title remedial purpose. VII’s Likewise, consistently, has Id. at 1339. in Supreme Court The Curtis, GreatHWest, recently rejected in at the most rejected analogy Title to Title analogies provision VII’s remedial VTI § § 706(g) interpreted interpreting other federal anti-discrimi when Act, § Fair 3612. Housing that do contain similar U.S.C. The nation statutes rejected analogy reason such analo Court the because the language. primary § gies language Congress 706(g) used in unhelpful Congress are is because “con simple § § 706(g) sharply trasted] Title VII as 812’s au treated with part remedy. puni thorization of an action for actual and equitable of an Lorillard, 4, 122 In tive In damages.” at 218 n. S.Ct. 708. Id. U.S. “ 584-85, § ‘treated at the Court 706(g), Congress again rejected § equitable’ only analogy 706(g) ... in the narrow sense to Title VII Age § when it the interpreted it allowed be awarded Dis (in Act, together crimination in equitable Employment with Id. U.S.C. relief[.]” omitted). words, § In statutory language ternal brackets because § 706(g) provisions signif an award of to two remedial differed permits reinstatement; gether icantly. with and when action, the

court orders such affirmative equitable. be characterized as 2. 502(a)(3), analogies inappropriate, § Id. unlike Title VII Title VII hand, 10(c), § 706(g) Congress § the other when and NLRA did freestanding money specifically part claim simply make of an equitable remedy.17 Compare damages. U.S.C. 502(a)(3) history legislative help” § briefed the "is of little Plaintiffs’ amici his- (See tory Sec'y determining of Labor Br. of ERISA the remedies under that need, 2-8). provision). ambiguity AARP Br. at We find no The dissent finds however, 502(a)(3) provision delve into ERISA’s "voluminous because “does not Russell, legislative history,” any specific remedy[.]” authorize see 502(a)(3)'s (Dissent 1263). Op. premise, because From this 502(a)(3) plain language provides dissent reasons that because au- clear answer Trust, question presented. See thorizes Harris reinstatement —an reme- dy clearly preclude S.Ct. 2180. We further does not statute —the (Id.). place backpay. ambiguity doubt Court would We fail to see history legislative provision that emphasis much on ERISA's author- —a Russell, simply pro- izes as Plaintiffs’ amici. See relief— award, legislative (explaining S.Ct. 3085 vision allows an such as § 2000e-5(g) with 42 makes it abundantly clear that its drafts- 160(c); and 29 U.S.C. see also Great- primarily men were concerned with possi- West, n. S.Ct. 708. assets, misuse of plan ble and with reme- Further, provisions of Title remedial dies that protect would plan, entire sharply VII and NLRA contrast rights rather than with the of an individual 502(a)(3)’s simple equi § authorization of Russell, beneficiary.” 142, 473 U.S. at 105 Curtis, 197, 415 at table relief. See U.S. rejected S.Ct. 3085. We too have claims Although Congress may 94 S.Ct. 1005. complete for relief under ERISA because § after have modeled ERISA 510 Title purpose protect statute’s is to in- provisions, substantive this fact is VIPs participants terests of in employee benefit purposes interpreting irrelevant for Zimmerman, plans. 828; See 72 F.3d at different remedial schemes under each 1001(b). § 29 U.S.C. Consequently, we Lorillard, 584, statute. See 434 U.S. at 98 must conclude that “[w]hatever be the S.Ct. 866. ‘equitable’ merit of the characterization in

Additionally, purposes cases, behind surely Title there VII no basis for 502(a)(3) 10(c), § § ERISA and the NLRA characterizing compensatory the award of § 706(g), and Title VII are not identical. ... here as relief.” The and Title seek to make a Curtis, NLRA VII 197, 415 U.S. at 94 S.Ct. 1005.18 plaintiff whole for defendant’s discrimina Co.,

tory action. Ford Motor 458 U.S. at C. 3057; 231 n. 102 Landgraf v. S.Ct. lastly argue ERISA Prod., 244, 252-53, Film 511 114 USI U.S. 502(a)(3) § authorizes (1994). In S.Ct. jobs, § 510 protects in addition to 502(a)(3) contrast,” §

“sharp seeks to “vin benefits, and the is therefore nec- goal[,]” Terry, dicate different see [a] essary aggrieved to make the worker 1339, namely, U.S. at whole and deter future violations of the equitably redress or practice act statute. While are not “[w]e I oblivious to plan. violates Title of ERISA or the Trust, policy the force of argu- [Plaintiffs’] Harris U.S. at ments[,]” Curtis, 2180; Great-West, 415 U.S. at at S.Ct. ERISA, persuaded 708. we are not that such con- S.Ct. unlike Title VII and NLRA, trump plain language is not a siderations make-whole statute. Mertens, 253, 261-62, § policy arguments Plaintiffs’ 2063. the Supreme explained, Congress. As are better addressed to fair reading “[a] contextual of the statute Festo v. Corp. Kogyo Shoketsu Kinzoku reinstatement, simultaneously preclud- Myers Colgate-Palmo- while table under ERISA. award, ing backpay. Co., such (10th. as Fed.Appx. live 862 n. 11 reading dissent’s renders the Cir.2002). Myers, a case filed the same Moreover, ’’equitable” superfluous. modifier Great-West, day as we mentioned in dicta that Supreme rejected Court has "strained in- 510 "confines relief to the reme- terpretation[s] order restitution, backpay, dies of and reinstate- ” purpose protect plan achieve the of ERISA to however, Myers, Id. did not ment.] include Mertens, participants and beneficiaries.” Rather, a claim for at all. we con- (internal quota- 113 S.Ct. 2063 appropriate sidered the statute of limitations omitted); (Dissent Op. tions see at 1263- pan- for claim. 863-64. The 1264). holding Myers, el’s did not have decision, bearing Relying unpublished benefit of no on the on an has Plain- 18. argue equi- disposition tiffs we have classified as of Plaintiffs' case. Ltd., 722, 733, means, such as a claim 535 U.S.

Kabushiki Age Employ- L.Ed.2d 944 Discrimination in Act, ment Plaintiffs to obtain above, First, explained the remedial they sought here. Se'e 502(a) not to make the purpose of 626(b); Great-West, Mertens, 508 aggrieved employee whole.19 however, ERISA, is clear. 253, 261-62, Rus U.S. at we, Court, like the “are And sell, tamper an enforcement reluctant Second, argument Plaintiffs’ scheme crafted with evident care “cheating such necessary to deter Russell, ERISA 510 the one ERISA.” violating employers” punish 502(a)(3), far. intended goes too Remedies 105 S.Ct. 3085. Section in courts wrongdoers terms, or deter were issued only relief. its allows for Tull, law, courts of 481 U.S. equity. Great-West, not 221, 534 122 S.Ct. 708. U.S. at Third, Plain 107 S.Ct. 1831. freestanding Plaintiffs’ claim for back- Corp., 516 U.S. Varity tiffs’ reliance accordingly precluded relief—is pay legal— 515, 1065, argue to S.Ct. 502(a)(3)’splain exceptions If terms. an award of relief has been permits made, are “it for to those terms to be rejected by the Great- Supreme Court. Guidry Congress to undertake that task.” West, 5, at 221 n. 122 S.Ct. 708. 534 U.S. v. Sheet Metal Workers Nat’l Pension dealing remaining arguments Fund, 493 U.S. S.Ct. pur notions ERISA’s basic vague (1990). L.Ed.2d 782 inadequate are to overcome pose ' ques- Consistent with our answer to the §in re Congress used words pursuant tion certified to 28 U.S.C. specific under consider garding the issue 1292(b), the district court’s order dated Mertens, 708; ation. Id. at September inso- is REVERSED 2063.20

far it denied motion for as Defendant’s IV. summary judgment on the issue of back- pay. to- Plaintiffs’ REMAND for unsympathetic are not We with instructions We grant- note have been district court to an order situation. We there enter covery currently decline invitation to are before us 19. We also Plaintiffs' violations not would, type "hypo- course, craft some "constructive" inappropriate and it to rule which would al- thetical” reinstatement remedy into Defen- read ERISA to sanction district to award low the court Russell, dant. employee thereby aggrieved restore (explaining judiciary should federal ante, quo finding equi- upon the status that statute, engraft no matter on a might have available at some table relief been salutary, Congress that did not intend to how during juncture pendency of the case. Instead, provide). 37 exists to Fed.R.Civ.P. contrary plain Such a would be to the rule Moreover, discovery curb al- violations. 502(a)(3), language only permits §of which though question, irrelevant to certified Great-West, an award of relief. support implica- record does not the dissent’s U.S. at 122 S.Ct. 708. litigation eight protracted tion that the alleged years course Defendant's in this case 20. The dissent submits the result Finally, of obstruction. Defendant has com- discovery violations rewards Defendant for pensated benefits. De- Plaintiffs for their lost allegedly court occurred in the district simply fendants are liable for extra-con- employ- out "carves method Russell, compensatory damages. spirit, yet tractual ers can violate ERISA in letter (Dissent consequences." Op. at U.S. at escape the 1264-1265). alleged dis- U.S. at S.Ct. 708. Defendant’s (N.D.Okla. 2002) II). summary judg- Sept.25, ing CMillsap Defendant’s motion backpay. However, ment on the issue the district court denied McDon- Douglas’ nell motion to preclude pay, back LUCERO, J., Judge, dissenting. Circuit determining plaintiffs’ claim for result, majority’s the class Under the back in nature. Id. at plaintiffs are entitled neither reinstate- *5. interlocutory appeal, On we are limited pay. ment nor back Not does following question: certified majority’s holding fail to deter ERISA vio- [Wjhether, this ERISA 510 case lations, encourages employers it also who and as a result of Great-West &Life delay proceedings violate ERISA to Knudson, Annuity Ins. Co. v. “lead[ing] strange long possible, 122 .... egregious result that the most offend- (2002), (and, result, back as a subject ers could be least sanctions.” upon pay) based back E.I. Pollard v. du Pont de Nemours & “appropriate available as equitable re- lief’ to the class pursuant members disagree L.Ed.2d 62 Because I ERISA Congress intended this result or that 1248.) (Maj. Op. at it, I precedent respectfully demands dis- 502(a)(3), under which class sent. plaintiffs relief, provides: seek Doug On December McDonnell A action brought civil by a — Corporation closing las announced it was (A) participant, beneficiary, fiduciary or Tulsa, facility. July its Oklahoma In enjoin any to practice act or which vio- years ago, almost ten Plaintiff R. James any provision subchapter lates of this Millsap this class The commenced action. (B) plan, the terms of the to obtain plaintiffs alleged class and the district (i) other appropriate equitable to Douglas court found that McDonnell vio (ii) redress such violations or to enforce § Employee lated 510 of the Retirement any provisions of subchapter or the Security Income Act of 29 U.S.C. plan. terms of the (“ERISA”), §§ proscribes 1001-1461 1132(a)(3) added). § (emphasis employer’s partici interference awith Supreme Two seminal Court cases have pant’s rights qualified plan. under a benefit interpreted the “appropriate eq- bounds of Millsap Douglas Corp., v. McDonnell uitable relief.” (N.D.Okla. F.Supp.2d 2001) I). plaintiffs sought (Millsap interpretations Class One of the first Court’s 502(a)(3) appropriate equitable all relief under appeared in Mertens v. Hew- 502(a)(3), benefits, including lost Assoc., back itt pay, pay and reinstatement or front in lieu majority L.Ed.2d 161 As the ex- reinstatement; Douglas McDonnell plains, brought Mertens involved an action sought preclude pay an award of back 502(a)(3) by employees former under ERISA alleged plan’s who their retirement actuary fiduciary duty; breached its Finding that passage eight years monetary damages Court denied spent litigation rendered reinstatement petitioners ground on the that the impossible pay and front inappropriate, compensa- than sought “nothing the district court denied reinstatement and tory damages,” remedy typically avail- pay plaintiffs. Millsap front to the class equity. McDonnell able at law and not Id. at Douglas Corp., No. 94-CV- 633-H, Outlining “appro- *6 S.Ct. the test for WL 2063. relief,” ... sult[ ] ex- standard current works such as

priate the Court Dobbs, Corbin, Palmer, permits the award Restate plained that ments, for “those ... make the answer only categories clear.” [to] remedies Great-West, equi- typically were available relief that (such mandamus, ty injunction, and res- sources, I Consulting find that these titution, compensatory damages).” but not none that back explicitly pay conclude 257-58,113 Id. at To the contrary, in nature. language majority in a cited its Mertens source

Applying Dobbs, alleging speaks directly pay, case breach of con to back is less tract, than first Although further defined the bounds clear. Dobbs states the Court that back the surface “seems on to be claim, ordinary damages 151 L.Ed.2d 635. almost an ex- law,” There, again emplar char claim at it ends with the the Court denied recognition acterizing the reimbursement relief that “in fact the cases do not personal liability yield upon impose single as an “to such conclusion.” effort Remedies, 6.10(1) Dobbs, contractual Dan B. obligation for a Law [defendant] (2d ed.1993). pay money typically respect wrong- was not at 226 With —relief job 122 ful equity.” discharge U.S. at discrimination available claims, acknowledges that S.Ct. 708. Dobbs “back pay and remedies are reinstatement usual- majority relies on these authorities (em- ly considered equitable.” its conclusion that back support added). sum, phasis guidance pro- appropriate re suggests vided Dobbs is scant but However, the majority lief. reads too respect conclusion that with class holdings; much into Court’s plaintiffs wrongfully discharged, who were nor expressly neither Mertens Great-West pay the remedy equitable.' back is preclude pay remedy back as Instead, majority’s under ERISA.1 the Court left conclusion that back pay precise in legal unresolved the issue before us to is nature is rooted in its analogy day pay appro back constitutes common compensation. Although law the —-whether priate majority relief under recognizes that “reinstatement with Mertens and the employee payment Consistent for time lost our turns on inquiry whether the relief remedies not known to the common statute,” sought here, pay back law but NLRB typically created v. W. — —was Ky. in In order equity. available to refine this Coal Cir. 1940) (Arant, J., inquiry, dissenting part), directs courts to “con it Greatr-West Although explicitly pay inherently equitable did ed Great-West in- back as an reme- question pay, dy, Congress explaining the of back did volve the Court that considered back pay pay "equitable awards consider back under Title VII in in Title VII narrow pay footnote four. 534 U.S. 218 n. sense that allowed back to be it awarded There, (citation pay together the Court relief.” Id. discussed back with omitted). Thus, response point simply awards in raised Jus- the Court concluded dissent, VII, Ginsburg’s explicitly tice which Justice Gins- that Title which inter- reinstatement, burg argued pay Congress pay that because treated twines back back Moreover, pay equitable remedy equitable. recog- back as an under Title is the Court VII, restitutionary nothing West nized that VII has in Great "Title do with case," id., equitable. inquiring should also be considered Id. at and refrained from Disagreeing, remedy pay typically 122 S.Ct. 708. ma- whether of back jority Congress regard- equity. contended never in courts pay, compel nonetheless concludes back which the result that all seeking suits relief, monetary necessarily monetary involves relief are in nature. De- compensation. compen- spite majority’s as Because same conclusion to the con- trary, claims sounded under the the case respect sation law law with to this law, majority argues, point money common it fol- latter damages prescribes — — type lows that the of relief here is no clear answer. Thus we look to the language also nature. for instruction. Harris Trust & Sav. Bank v. Salomon proposition This turns its on our back Barney, 238, 254, Smith precedent. previ- own en banc have We (2000) (“In ously recognized that award of “[a]n back cases, in any case of statutory pay integral part ... is an of the equitable construction, analysis begins our with the compa- of reinstatement and is not statute.”). language of the rable to in a common action.” law 1, Albany Bertot v. School District No. looking plain language (10th Cir.1979) statute, County, 613 F.2d majority states that “Congress (en banc) omitted). (quotation compari- A did not intend to authorize other remedies by analogy particu- son to common law it simply forgot to incorporate ex 1250) larly inappropriate employee pressly,” (Maj. rein- Op. (quotation remedies, omitted), statement and back and therefore that pay, back be were created in latter half of the twen- cause it is not explicitly mentioned in 502(a)(3), century, displaced tieth “the traditional is not a recognized form of However, ... employee rule that an ‘at will’ could be relief. plain language of the discharged any time and for rea- statute is not unambiguous majority as the 6.10(1), son.” Dobbs at 190. contrary, would have it. To the the es dispute sence of this is over proper conclusion, Contrary majority’s interpretation of the “equitable” word is not sufficient to state that because back used in the Although statute. monetary involves it is neces- any specific does not authorize sarily legal Chauffeurs, in nature. Team- remedy, reinstatement indisputably consti sters, Helpers, Terry, Local No. 391 v. “appropriate equitable tutes relief’ to rem edy West, violations of 510. Great L.Ed.2d 519 all monetary “[N]ot 4, 708; Mertens, at 211 n. 122 U.S. damages,” “[ejquity relief is and some- 256, Griggs v. relief, monetary times awards Co., E.I. DuPont de & Nemours 237 F.3d equivalent.” v. Clair Harris Trust & Sav. (4th Cir.2001). Contrary 384 to the Bank, (7th Cir.1999) 190 F.3d 498 conclusion, majority’s plain language of (concluding that “restitution a legal is both similarly does not clearly pre equitable remedy and an monetary that is pay clude back appropriate equitable yet damages”); is distinct from Allison v. relief. One-Denver, Bank 289 F.3d 1243 (10th Cir.2002) in (holding an ERISA case Because there ambiguity is as to what relief, monetary decided after Great-West I constitutes would look to in prejudgment legislative the form of interest history purpose and of nature). ERISA, in statutory Even Great- for the art of interpreta- West, which stated that seeking promote Congressional suits mon- tion is to intent etary invariably relief are “almost ... avoiding counterproductive while results. [le- Pollard, gal] money damages,” 852-54, suits for e.g., 534 U.S. at See 121 omitted), 122 (quotation S.Ct. 708 Congress’s does S.Ct. 1946. intentions are 1264 Id. at 111 478. policy; of it ised benefits.” in ERISA’s statement

clear proscribes employ- of in partici- changes interests “Section 510 protect “the upon ment based motiva- plans in and their status benefit employee benefit pants tions,” Walker, v. by providing appro- ... Garratt beneficiaries (10th (en Cir.1998) banc), remedies, sanctions, “helps ready ac- 1255 and priate [employer’s] promises [of benefits] courts.” ERISA make cess to the Federal 1001(b). 2(b), Employees This Inter-Modal purpose credible.” Rail 29 U.S.C. Atchison, Ry. legislative Topeka in the histo- Ass’n v. Santa Fe equally apparent & is 510, 516, ERISA, 137 Congress expressed ry of wherein (1997) omitted). improve (quotation 763 “strengthen L.Ed.2d its intent Here, Douglas participants and interests of McDonnell terminated its protections pension employees to avoid employee paying benefits. This and beneficiaries 93-127, precisely Congress No. factual plans,” S.Rep. scenario welfare benefit (1973), Cong. it prevent 1 & Ad- intended to when enacted U.S.Code Nonetheless, majority ERISA. and stated that carves min.News is the out which can vio- purpose protec- employers of the bill method “primary escape rights,” H.R.Rep. spirit, yet late ERISA letter and pension tion of individual (1973), 1 Cong. consequences. U.S.Code & No.

Admin.News with the purposes Consistent ERISA result, recognized consistently contrary majority’s have our Courts previous affords protections employ- ERISA cases have considered the broad comprehensive pay employment nature of ees. “ERISA a statute back is, fact, promote pay the interests of em- contexts have held back designed Bertot, employee equitable. F.2d at ployees and beneficiaries Cf. employ- v. that in a plans.” Ingersoll-Rand (concluding public benefit Co. McClendon, case, pay ee “an is an award back relief’); (quotations DeVargas element of v. L.Ed.2d omitted). “By Mason protects Hanger-Silas its terms & Mason Co. Cir.1990) n. plan participants from termination moti- F.2d (citation omitted) (“the prevent recovery employer’s desire bar on vated ‘money vesting. Congress damages’ viewed contained in 5 U.S.C. pension part equitable backpay, as a crucial does not include this section it, because, employers without would be is a form damages”).2 un- provision prom- monetary Similarly, to circumvent the able LLP, Marwick, considering Sandberg courts the nature of back v. KPMG Peat Other (2d employment Cir.1997) (remedies discrimination contexts F.3d avail equitable. have also classified back able for violations Section 510 include See, Gibson, e.g., West reinstatement”); pay, “back restitution and 1906, (1999) (Title 196 119 S.Ct. Inc., Equip., F.Supp. Zimmerman v. Sloss 835 Sch., VII); County v. Franklin Gwinnett Pub. 1283, (D.Kan.1993) (finding pay 1293 back 60, 75, 1028, U.S. S.Ct. 117 503 112 L.Ed.2d equitable remedy Pegg purposes); for 510 v. (Title IX); (1992) Corp. 208 Consol. Rail v. 284, Corp., F.Supp. Gen. 793 Motors 287 630, 10, Darrone, 624, n. 465 U.S. (D.Kan. 1992); but see Oliver-Pullins v. Asso 1248, (1984) (Rehabili 79 L.Ed.2d 568 Indus., Handling ciated Inc. Material No. EEOC, Act); tation Ford Co. v. Motor 1:03-cv-0099-JDT-WTL, 21696207, WL 219, 8, 3057, 73 226 n. 102 S.Ct. L.Ed.2d 721 20, (S.D.Ind. 2003) (section May at *3 (1982) (Title VII); Paper Co. v. Albemarle legal equitable pay claim for back and not 405, 11, Moody, 422 U.S. 419 n. Great-West). 2362, (Title VII); 45 L.Ed.2d 280 injunction ordering that an disputed Despite precedent clear pay back employee’s return to work—reinstate equitable nature when integrated with equitable reinstatement, ment —is relief under ERISA the majority concludes that 502(a)(3), Mertens, 508 U.S. pay back is not equitable under the pres- Griggs, 237 F.3d at and ent circumstances because pay back and rule, general pay that as a back is consid restoration of benefits are the reme- equitable remedy ered an when it is inter dies (Maj. this case. Op. at injunctive twined with relief or made an 3.) However, 1249 n. “[t]he characteriza- integral part of an overall reme tion of back pay legal or equitable has dy. Terry, 494 110 S.Ct. 1339 been by determined whether plaintiff (“a monetary award incidental to inter requested has pay adjunct back as an injunctive equi twined with reinstatement, remedy of nature) omitted); (quotation table” in Tull which case has been characterized as States, 412, 424, v. United 481 U.S. 107 equitable.” Skinner v. Total Petroleum (1987); 95 L.Ed.2d 365 Curtis (10th Cir.1988). 859 F.2d Loether, 189, 197, v. present plaintiffs class sought both (1974); 39 L.Ed.2d 260 see also Adams v. reinstatement and back pay.3 Cyprus Amax Minerals 149 F.3d “[Ajccording view, to the prevailing (10th Cir.1998). In the context where aggrieved party shows entitle- violations, of 510 au relief, ment to equitable grant but a ap- thorizes what has been termed in other pears impossible to be or impracticable, statutory contexts as the “conventional the court may proceed nevertheless remedy” of pay. reinstatement with back case, Sure-Tan, issues, NLRB, disputed determine Inc. v. adjust rights and obligations of the parties, equitable remedy awarding damages money This or a is consistent with labor-protective legislation judgment” requested lieu of the dating equita- back to Deal, remedy. the New NLRB v. ble 27A Am.Jur.2d Laughlin Equity Jones & 1, 48-49, (2003); Andrus, Corp., Apache Steel Jicarilla Tribe (1937), Cir.1982); L.Ed. and is consistent with Schwartz, (“Front primary ERISA’s purposes. 45 F.3d at 1023 pay is Skinner, Applying majority Following September liability also states present that back order, under the facts September parties plaintiffs sought primarily legal because the discussed, Report filed a Joint Status litigation. (Maj. Op. relief at the onset of this alia, inter what kinds of relief would be avail- 12.) However, at 1248 n. 1256 n. in their There, plaintiffs able to the class. the class Complaint Complaint, and First Amended reiterated their intention to seek restoration plaintiffs requested "damages class in an appropriate equitable of benefits and amount determined to have been sustained reinstatement, specifically requesting front ... each member of the Plaintiff class [and] pay. language and back Based on the plans resulting ... restitution to the for losses Complaint Complaint, I Amended from the breach plaintiffs cannot conclude that the class appropriate remedial deemed sought primarily legal damages at the onset of Court, together with interest and costs of litigation. contrary, (MDC To the the class 90-94.) App. (emphasis suit.” added.) trial, plaintiffs sought both re- The case was bifurcated for bench, liability phase was tried to the pay and the Complaint, sought lief in back their Douglas district court held that McDonnell adjunct equitable remedy as an to the of rein- II, Millsap had violated ERISA 510. Report. statement in the Joint Status F.Supp.2d at 1310. Kearns-Tribune, LLC; Medianews preferred ... when the awarded Inc.; Corp., Group, reinstatement, equitable an indisputably Kearns-Tribune feasible.”). Parties in remedy, appropriate Real Interest. involving pay, front inquiry In a similar No. 03-4269. that to explained has Appeals, United States Court of where reinstate-

deny pay front the case Tenth Circuit. award it in the was unavailable and ment eventually plaintiff case where May strange re- “would to the reinstated lead egregious .... that the offend- sult most subject least sanctions.”

ers could be Pollard, similarly majority’s discon- result is Here, have

certing. would reinstatement remedy had appropriate equitable been Douglas delayed pro- McDonnell not so impos- ceedings as make reinstatement own, Thus, through no fault of sible. devoid plaintiffs find themselves class undeniably appropriate pay, Back remedy of reinstatement. integral to the relief which was litigation, at the onset of this plaintiffs alterna- appropriate equitable provides tive.

I conclude the district court would for back power provide was within its “other relief’ appropriate here, where, remedy of Be- longer reinstatement is no feasible. appropri- I cause conclude that back contemplated relief as ate present cir- cumstances, respectfully I DISSENT. McCARTHEY; Philip In re Thomas G. McCarthey; McCarthey; K. Sarah J. McCarthey; P. P. Maureen Shaun McCarthey, Petitioners.

Case Details

Case Name: Millsap v. McDonell Douglas Corp.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 21, 2004

Citation: 368 F.3d 1246

Docket Number: 03-5124

Court Abbreviation: 10th Cir.