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In re Unisys Corp. Retiree Medical Ben. ERISA Litigation

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: June 28, 1995.

IN RE: UNISYS CORP. RETIREE MEDICAL BENEFIT "ERISA" LITIGATION, UNISYS CORPORATION, APPELLANT

Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. MDL 969).

Before: Mansmann, Scirica and McKEE, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

We are asked to decide whether a claim for breach of fiduciary duty may be maintained under section 502(a)(3)(B) of ERISA, 29 U.S.C. § 1132(a)(3)(B), where, despite reservation clauses that the company retained the right to terminate the plans "at any time" and for "any reason," summary plan descriptions informed retired employees that the duration of their retiree medical benefits was for life, and company representatives misinformed employees that once they retired, their medical benefits would "be continued for the rest of your life." Because we hold that a breach of fiduciary claim may be maintained under these circumstances, we must also decide whether equitable relief is available under ERISA to individual plan participants. We hold that, assuming a breach of fiduciary duty can be proven, equitable relief is available to individual plan participants pursuant to 29 U.S.C. § 1132(a)(3)(B).

I.

This class action, filed on behalf of former employees of Sperry Corporation, arises out of the termination of post-retirement medical plans, sponsored by Unisys for retirees and disabled former employees of Unisys and its corporate predecessors, Sperry Corporation and Burroughs Corporation. The retirees sought to recover post-retirement medical benefits under the terms of their benefit plans and under ERISA's provisions for appropriate equitable relief.

In September of 1986, Sperry Corporation and Burroughs Corporation merged to form Unisys Corporation. Prior to the merger, Sperry consisted of a number of business units or divisions. Until 1984 each Sperry division maintained its own medical benefits program, with each described in a separate summary plan description. In 1984, in an attempt to streamline the medical benefits plans and in response to rising medical costs, Sperry implemented Medflex, a corporate-wide medical benefits plan that applied to the entire Sperry Corporation.*fn1 Medflex was applied to future retirees only; existing retirees continued to receive coverage under the pre-Medflex plans which applied when they retired.

Following the merger in 1986, Unisys continued the Medflex plan for active employees and those who retired after its implementation but prior to April 2, 1989. Unisys also continued all of the pre-Medflex plans for those who retired prior to Medflex's implementation. In 1989, Unisys effected the consolidation of its retiree medical benefit plans when it created the Unisys Post-Retirement and Extended Disability Medical Plan to cover all employees who retired after April 1, 1989, most of whom were former Sperry and Burroughs employees. On November 3, 1992, Unisys publicly announced that effective January 1, 1993, it was terminating all existing medical benefit plans and replacing all of the pre-existing medical plans with the new Unisys Post-Retirement and Extended Medical Disability Plan. Under the new plan, retirees would be responsible for increasing levels of contributions until January 1, 1995, when they would have to pay the full cost of their premiums. Thus, the new plan sharply contrasted with earlier plans, under the majority of which Unisys paid the entire premium for an individual's life and provided benefits for the individual's spouse as well.*fn2

The appellees in this appeal are former employees of Sperry corporation (and their eligible dependents) who retired between 1969 and April 1, 1989, from Sperry Corporation or Unisys, Sperry's successor. Following Unisys' termination of their post-retirement medical benefit plans in late 1992, the retirees sought relief based on three theories: breach of contract, equitable estoppel, and breach of fiduciary duty. The Sperry retirees argued that Unisys' termination of their respective medical plans violated ERISA. They argued first that Unisys had denied them "vested" benefits in violation of 29 U.S.C. § 1132(a)(1)(B) because the summary plan descriptions ("SPDs") explaining their medical benefits contained the term "lifetime" benefits. Regarding their contract claims, the retirees relied on the explicit lifetime language in the plans, e.g., "when you retire, your medical benefit will be continued for the rest of your life," and on statements to the same effect made by the company both orally and in writing.

The Medflex SPD is illustrative. A Sperry employee who retired during the period January 1, 1984, through April 1, 1989, received medical benefits under this plan. The SPD for medical benefits is set forth in a booklet titled, "Your Company and You." Included in this plan was the following description of retiree medical benefit coverage:

If you're eligible, Medical Plan benefits continue without cost after you terminate active employment. Benefits also may continue on a contributory basis for your eligible dependents who are covered when your employment terminated. . . . Coverage continues for you for life and for your dependents while they remain eligible provided you don't stop the contributions for their coverage. After your death, your eligible dependents may continue coverage by making the require contributions. Their coverage continues until your spouse dies or remarries.

(A 2227)(emphasis added). Second, the retirees argued that even if Unisys had the legal right to terminate the plans (pursuant to the reservation of rights clause located in other sections of the plans), Unisys had breached its fiduciary duty by affirmatively misleading plan participants regarding the duration of their retiree medical benefits. Lastly, the retirees asserted claims based on equitable estoppel.*fn3

Unisys' response to these arguments was that it had reserved the right to terminate the retirees' medical plans due to a "reservation of rights clause" or "ROR" located in another section of the plan. Typical of these clauses is the one set forth in the SPD describing the Medflex plan. The Medflex SPD booklet, "Your Company and You," was distributed to all employees and contained the following reservation of rights clause:

Plan Continuation

The Company expects to continue the Plans, but reserves the right to change or end them at any time. The Company's decision to change or end the Plan may be due to changes in federal or state laws governing welfare or retirement benefits, the requirements of the IRS or ERISA, the provisions of a contract or policy involving an insurance company or any other reason. . . .

(A 2750) (emphasis added).

In addition to the provisions set forth in the SPDs, information about retiree medical benefits was also conveyed to the Sperry retirees through various informal oral and written communications. As in the SPDs, the duration of medical benefits was described as being "for life" or for the "lifetime" of the retiree and his or her spouse. Sperry did not include in these informal communications a reference to the reservation of rights clause.

Notwithstanding these communications, Unisys denied having created vested medical benefits through its use of the word "lifetime," and early in this litigation filed a motion for summary judgment seeking dismissal of all of the regular retirees' claims based on the unambiguous reservation of rights clauses in the plans.*fn4 On October 13, 1993, the district court granted summary judgment in favor of Unisys on the Sperry retirees' claim that Unisys had breached its fiduciary duties. In re Unisys, 837 F. Supp. 670, 679-80 (E.D. Pa. 1993).

At the trial conducted on their contract claim, the Sperry retirees moved for reconsideration of their breach of fiduciary duty claim in light of our decision, rendered during trial, in Bixler v. Central Pa. Teamsters Health and Welfare Fund, in which we held that a direct action for breach of fiduciary duty is available under section 1132(a)(3)(B).*fn5 Bixler, 12 F.3d 1292 (3d Cir. 1994). The retirees argued that "even if the reservation of rights clause in the SPDs were intended to apply to existing retirees [as opposed to active employees], Sperry and later Unisys, had a fiduciary duty to make this point clear." (A 2284). The district court observed:

This is not a case where one or two low level benefits counselors told a few retirees that their benefits would continue for life. The message that medical benefits would last for life was confirmed repeatedly and systematically throughout the Sperry organization, by all levels of management, in writing and verbally. In fact, as the Findings make clear, several high level corporate executives, as well as personnel managers, testified that they believed the [reservation of rights clause] was inapplicable to retirees and counseled individuals accordingly.

(A 2284). Although the district court also observed that the summary plan description is the controlling document upon which plan participants must rely and that informal communications cannot alter the terms of a written plan, the court discerned "a strong current in the Third Circuit that recognizes that an ERISA fiduciary may not 'affirmatively mislead' plan participants." Id. (citing Bixler, 12 F.3d 1292, and Fischer v. Phila. Elec. Co., 994 F.2d 130 (3d Cir.), cert. denied, 126 L. Ed. 2d 586, 114 S. Ct. 622 (1993)).

Unisys argued that Bixler, supra, and Fischer, supra, were inapposite in a situation where the summary plan description itself informs the participants of the answer to their inquiry regarding benefits. After reviewing Fischer and Bixler , the district court concluded that the evidence supported a breach of fiduciary duty claim. The court stated, "First, it is clear that the highest levels of corporate management at Sperry, and later Unisys, recognized that employees might be under the mistaken belief that 'lifetime' meant forever."*fn6 The evidence suggested to the court that "by the mid-1980's, defendant understood the potential for confusion concerning the meaning of 'lifetime benefits.'" The court further observed that the "Defendant then exacerbated this potential [for confusion] with numerous informal communications that discussed lifetime benefits without explicit reference to the [reservation of rights clause]."*fn7 (A 2289).

The court found that the retirees had presented credible testimony that some individuals specifically asked if their benefits would continue for life and were told they would, without any mention of the reservation of rights clause. (A 2290). When faced with a specific inquiry as to the explanation of benefits, the district court held that "an employer cannot give vague or incorrect answers, especially on a repeated and pervasive basis." Id. Because the breach of fiduciary duty claim was not directly before the court at trial, it did not hold that a breach in fact occurred. In granting reconsideration of this issue though, the district court concluded that "based on the evidence and the law in this circuit, it seems possible that at least some plaintiffs will be able to sustain a breach of fiduciary duty claim."*fn8 (A 2291). Given the complexity of the legal question involved and its uncertainty of the contours of Bixler, the district court certified its decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On July 22, 1994, Unisys filed a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b). We granted Unisys' petition on August 8, 1994.*fn9

II.

Section 404(a)(1) of ERISA provides that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries . . . ." 29 U.S.C. § 1104(a)(1).*fn10 Recognizing this statutory obligation, we have held that in the exercise of these duties, the fiduciary "may not materially mislead those to whom the duties of loyalty and prudence . . . are owed." Fischer, 994 F.2d at 135; Bixler, 12 F.3d at 1300; Curcio v. John Hancock Mutual Life Insurance Co., 33 F.3d 226, 238 (3d Cir. 1994).

In Fischer, we held that a plan administrator may not make affirmative material misrepresentations to plan participants about changes to employee benefit plans. Fischer involved employees who retired shortly before their employer offered an early retirement plan or "retirement sweetener." Although the company had announced that it might offer such a plan, when employees inquired about its availability, they were told by benefits counselors that "no plan was being considered." Fischer, 994 F.2d at 132. The benefit counselors were technically telling the truth, since they had not been informed by the corporation that a retirement sweetener was under serious consideration. Nonetheless, we held that a material issue of fact existed as to whether the employer had breached its fiduciary duty to its employees by responding in a misleading fashion to their questions about the sweetener. Id. at 135. We held that, "Put simply, when a plan administrator speaks, it must speak truthfully." Id.

We affirmed this principle in Bixler in holding that a plan administrator has an affirmative duty to "speak when it knows that silence might be harmful." There the widow of a plan participant contacted her husband's employer while the COBRA election period was still open, to ask whether there was a death benefit to which she was entitled. We held that:

If [the employer's agent] knew that Mr. Bixler's death left Mrs. Bixler with substantial unpaid medical expenses and that she could receive reimbursement for those expenses under the Drivers' plan by signing and returning the COBRA notice that [he] had sent to her husband, we believe the failure to advise her of the available benefits might be found to be a breach of fiduciary duty despite the fact that her inquiry was limited to the availability of a death benefit.

12 F.3d at 1302. Although we did not decide whether a breach of fiduciary duty in fact occurred, we observed that the fiduciary's duty to inform "entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful." Id. at 1300. Significantly, we held that the employer's failure to advise Mrs. Bixler regarding her COBRA rights could constitute a breach of its fiduciary duty even though the employer had previously provided the information in a written COBRA notice*fn11 and even though the employer's omission in that case concerned facts about which Mrs. Bixler had not specifically inquired.

Similarly in Curcio v. John Hancock Mutual Life Insurance Co., 33 F.3d 226 (3d Cir. 1994), we held that an employer's misrepresentations regarding the existence of supplemental accidental death and dismemberment insurance, in representations made to employees during solicitations for enrollment in a new life insurance program which provided only for supplemental life insurance, established a breach of fiduciary claim. See also Smith v. Hartford Ins. Group, 6 F.3d 131 (3d Cir. 1993) (employer's erroneous representations that Smith would receive some level of coverage under new plan gives rise to a breach of fiduciary duty claim under ERISA); Taylor v. Peoples Natural Gas Co., 49 F.3d 982 (3d Cir. 1995) (a plan administrator may be liable for the material misrepresentations made by individuals who have been selected as non-fiduciary agents by the plan administrator to assist it in its fiduciary obligation to administer a plan).

Unisys argues that the district court's decision in this case is based on an unwarranted extension of our holding in Bixler. Unisys points to the fact that Sperry and later Unisys unambiguously advised employees in summary plan descriptions that the company had reserved the right to terminate its retiree medical benefit plans. Thus, Unisys contends that Bixler did not address the principal issue in this appeal which Unisys frames as "whether an employer has a fiduciary duty to remind its employees of its right to modify or terminate a benefit plan when it already disclosed that information in an SPD." Appellants' brief at p. 19. We reject Unisys' characterization of the fiduciary duty involved as "one to remind" and of the cases upon which Unisys relies.

Under ERISA, fiduciaries have certain duties which include "the disclosure of specified information." Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 142-45, 87 L. Ed. 2d 96, 105 S. Ct. 3085 (1985). A fiduciary's statutory disclosure obligations are set forth in ERISA, 29 U.S.C. §§ 1102, 1021 and 1022. Under 29 U.S.C. § 1102(a)(1), "every employee benefit plan shall be established and maintained pursuant to a written instrument . . . ." Under section 1022(a), "[a] summary plan description of employee benefit plan is to be furnished to plan participants" and the plan description "shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." 29 U.S.C. § 1022(a)(1). Further, ERISA requires that the summary plan description "explain the circumstances which may result in disqualification, ineligibility, or denial or loss of benefits," 29 U.S.C. § 1022(b), "in a manner that is calculated to be understood by the average plan participant." 29 U.S.C. § 1022(a)(1).*fn12 A summary plan description "must not have the effect [of] misleading, misinforming or failing to inform participants and beneficiaries." 29 C.F.R. § 2520-102-2(b) (1987).

Unisys argues that we should reject the notion that Bixler can be interpreted as imposing a broad duty to inform "upon a fiduciary that has satisfied its statutory disclosure obligations." Unisys is correct that we have held that a fiduciary may satisfy its statutory disclosure obligations regarding the terms of a plan by distributing a summary plan description that complies with ERISA. See, e.g., Stahl v. Tony's Bldg. Materials Inc., 875 F.2d 1404 (9th Cir. 1989) (holding employee trust fund did not breach its fiduciary duty to a union member by failing to warn him individually that his pension benefits could be drastically reduced where the rule that applied was adequately explained in the summary plan description); Allen v. Atlantic Richfield Retirement Plan, 480 F. Supp. 848 (E.D. Pa. 1979), aff'd, 633 F.2d 209 (3d Cir. 1980) ("Congress did not intend to impose a duty to provide the kind of individualized attention urged by plaintiff here, but rather envisioned that a fiduciary could discharge its obligations through the use of an explanatory booklet"); Shlomchik v. Retirement Plan of Amalgamated Ins. Fund, 502 F. Supp. 240 (E.D. Pa. 1980), aff'd , 671 F.2d 496 (3d Cir. 1981) ("no duty on the part of defendants to provide this particular employee with individualized attention . . . ."); Schiffer v. Equitable Assurance Sec. of the U.S., 838 F.2d 78 (3d Cir. 1988) (rejecting argument that a fiduciary owed an obligation to a beneficiary to explain the terms of a written plan). These cases, however, are inapplicable here. In each of them, breach of fiduciary duty claims were rejected because the plan documents clearly explained the benefits in question; none involved allegations that a breach of fiduciary duty had occurred because a plan administrator had affirmatively and materially misrepresented the terms of a plan. Furthermore, satisfaction by an employer as plan administrator of its statutory disclosure obligations under ERISA does not foreclose the possibility that the plan administrator may nonetheless breach its fiduciary duty owed plan participants to communicate candidly if the plan administrator simultaneously or subsequently makes material misrepresentations to those whom the duty of loyalty and prudence are owed.

Contrary to Unisys' claim, this is not a case involving an employer's "duty to remind". Instead, this case is more accurately characterized as a dispute over an employer's duty, as an ERISA fiduciary, not to misinform employees through material misrepresentations and incomplete, inconsistent or contradictory disclosures. In the present context, a misrepresentation is material if there is a substantial likelihood that it would mislead a reasonable employee in making an adequately informed retirement decision. Fischer v. Philadelphia Elec. Co., 994 F.2d at 135. Here the district court found that Unisys affirmatively and systematically represented to its employees that once they retired, their medical benefits would continue for life -- even though as the district court concluded in rejecting the retirees' contract claim, the plans clearly permitted the company to terminate benefits.*fn13 We have no doubt that the conduct Unisys engaged in, based on the findings of the district court, would constitute a breach of fiduciary duty in its most basic form. Our decisions in Bixler, Fischer, Curcio and Smith firmly establish that when a plan administrator affirmatively misrepresents the terms of a plan or fails to provide information when it knows that its failure to do so might cause harm, the plan administrator has breached its fiduciary duty to individual plan participants and beneficiaries.

Imposing upon an employer a fiduciary duty in this case does not threaten or contradict our well-established policy disfavoring informal plan amendments.*fn14 We recently recognized in Curcio, supra, that our equitable theories of relief under ERISA (breach of fiduciary duty and estoppel) are "not to be construed as conflicting with our precedent precluding oral or informal amendments to ERISA benefit plans. 33 F.3d at 236 n.17.

The retirees here do not argue that Unisys' misrepresentations modified their retiree medical benefit plans. Rather, for purposes of their breach of fiduciary claim, they assume the plans did not contractually vest benefits, and claim instead that the company breached its fiduciary duty by leading employees to believe that the plans did. This claim is distinct from a claim for benefits under the terms of the plan because it requires different proof (proof of fiduciary status, misrepresentations, company knowledge of the confusion and resulting harm to the employees) than would be required for a contract claim that the plans had been modified.

In recognizing the retirees' breach of fiduciary claim here, we do not intend to "create a precedent for any beneficiary to make claims beyond those provided in a plan." See Haberern, 24 F.3d 1491, 1501 n.6 (3d Cir. 1994). However, the facts and circumstances in this case clearly warrant our recognition of a claim of a fiduciary breach. Here the district court found that virtually the entire company management had consistently misrepresented the plan, not just on one occasion or to one employee, but over a period of many years and both orally (in group meetings) and in writing (in newsletters) as well. Under these circumstances, we do not find a conflict with our policy against informal plan modification.*fn15

We turn now to the evidence adduced at trial on the breach of contract claim to see if sufficient evidence would support the other elements of the breach of fiduciary duty claim, specifically, Unisys' knowledge that its employees were mislead by Unisys' misrepresentations and Unisys' knowledge that its misrepresentations were material to the beneficiaries' circumstance because the misrepresentations influenced their decisions to retire.

III.

In detailed and well-supported findings, the district court found that Unisys had knowledge that its employees believed the assurances of lifetime benefits they had been given and were making retirement decisions based on their understanding that when they retired, the benefits that they had at the time they retired would continue for life. Uncontroverted evidence established that Unisys' executives were aware that the lifetime medical benefit was an important consideration for employees who were considering when to retire. This evidence established that the company knew that employees accelerated their retirement plans because of the belief that by retiring at a certain point in time, they would "lock in" the lifetime coverage that they had under the current plan.*fn16 Further, the district court found that once Unisys was aware of the fact that retirees were electing to retire based on this understanding, Unisys failed to do anything to correct the misinformation, and instead reinforced the misunderstanding by continuing to repeat the same assurances that upon retirement a retiree's benefits would continue for life.

The district court found that the company, both actively and affirmatively, systematically misinformed its employees about the duration of their benefits by stating over and over again, without qualification, that their benefits would continue for life:

There is no question that the defendant routinely spoke of the medical benefits as continuing "for life". This message was conveyed time and time again throughout informal communications that were sent out to retirees, and by oral statements that were made to these individuals both at private exit interviews and in group retirement sessions.

(A 2281-82). In addition to these communications in individual correspondence and company newsletters, the district court also cited examples of evidence that Unisys consistently responded to specific inquiries about whether a retiree's benefits could change by telling employees that they could not. (A 2290).

Given these findings, we hold that the district court did not err as a matter of law in concluding that the duty to convey complete and accurate information that was material to its employees' circumstance arose from these facts since the trustees had to know that their silence might cause harm. The district court's findings that the company actively misinformed its employees by affirmatively representing to them that their medical benefits were guaranteed once they retired, when in fact the company knew this was not true and that employees were making important retirement decisions relying upon this information, clearly support a claim for breach of fiduciary duty under ERISA.

We turn now to the remaining issue in this appeal, whether relief is available to individual plan participants under ERISA.

IV.

In Bixler v. Central Pa. Teamsters Health-Welfare Fund, 12 F.3d 1292 (3d Cir. 1993), we held that where a fiduciary breach causes harm to a beneficiary, that beneficiary has a claim for equitable relief pursuant to section 502(a)(3) of ERISA, which authorizes suits by participants for "appropriate equitable relief" to redress violations of ERISA.*fn17 Relying on our decision in Bixler, the district court concluded that equitable relief was available to individual plan participants for breach of fiduciary duty under section 502(a)(3)(B).

In Bixler, we considered both the source and the scope of an ERISA fiduciary's duty to one of its beneficiaries and held that a direct action for breach of fiduciary duty exists in the "other appropriate equitable relief" clause of section 502(a)(3)(B) of ERISA, 29 U.S.C. § 1132(a)(3)(B). Recognizing that "undoubtedly there will be instances in which a fiduciary's actions harm an individual beneficiary, but do not harm the plan," we adopted the approach of Justice Brennan's concurrence in Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 87 L. Ed. 2d 96, 105 S. Ct. 3085 (1985) to hold that "section 502(a)(3) authorizes the award of 'appropriate equitable relief' directly to a participant or beneficiary to 'redress' any act or practice which violates any provision of this title including a breach of the statutorily created fiduciary duty of an administrator." Bixler, 12 F.3d at 1298 (citing Massachusetts Mutual, 473 U.S. at 153).*fn18 We held that the principles of section 404(a), which serve as the touchstone for understanding the scope and object of an ERISA fiduciary's duties, are given effect by section 502(a)(3) which, in the language of the statute, authorizes the award of "appropriate equitable relief" directly to a participant or beneficiary to redress any act or practice which violates the provision of ERISA. We observed, of course, that this relief is independent of that established in section 409, authorizing recovery for breach of fiduciary duty on behalf of the plan.

Unisys suggests that our Conclusion in Bixler is called into question by the Supreme Court's decision in Mertens v. Hewitt Assoc., ___ U.S. ___, 124 L. Ed. 2d 161, 113 S. Ct. 2063 (1993), in which the Supreme Court held that money damages are not available under section 502(a)(3), which, by its very terms, authorizes only equitable relief. Although Unisys acknowledges that the Supreme Court in Mertens never addressed the question of whether, in the event of a breach of fiduciary duty, a plan participant could seek equitable relief on his own behalf (rather than on behalf of a plan), Unisys maintains that the Supreme Court in Mertens expressed an unwillingness to infer causes of action in the ERISA context. See 113 S. Ct. at 2067.*fn19

We do not read Mertens as precluding the retirees' claim for equitable relief. In a post-Mertens decision, the Court of Appeals for the Seventh Circuit reached the same Conclusion and reversed the district court's holding that individual relief was not available under section 502(a)(3), holding instead, based on Mertens, that section 502(a)(3) authorized such relief. Anweiler v. Amer. Elec. Power Serv. Corp., 3 F.3d 986, 993 (7th Cir. 1994).

In Mertens, the Court held that the "appropriate equitable relief" in section [502(a)(3)] included only typical remedies available in equity and not "legal remedies" like compensatory damages or monetary relief. The court limited its holding to the "narrow battleground" chosen by the parties and decided the issue of "what forms of relief are available" under section 1132(a)(3), not to whom the relief can go or whether a remedial wrong had even been alleged. Nevertheless, Mertens clearly indicates the importance and availability of equitable relief. Moreover, the Secretary of Labor in an amicus curiae brief argues [that] Mertens dictates the availability of relief to an individual under section 1132(a)(3) for a fiduciary's breach of duty. Therefore, in light of Mertens and in deference to the Secretary's interpretation of the law which he is authorized to enforce, we hold that an individual may seek equitable relief from a breach of fiduciary duty under Section 1132(a)(3).

Id. (citations omitted). The Court of Appeals for the Eighth Circuit reached the same result in Howe v. Varity Corp., 36 F.3d 746 (8th Cir. 1994), cert. granted, 115 S. Ct. 1792 (April 24, 1995).*fn20 Thus, our decision in Bixler is consistent with the decisions of the Courts of Appeal for the Seventh and Eighth Circuits.*fn21 Accordingly, we reaffirm our Conclusion in Bixler that equitable relief running to an individual falls within the scope both of section 1132(a)(3)'s language and of ERISA's broad remedial purpose. See 29 U.S.C. § 1001(b).

A question left unanswered by Bixler is the form of equitable relief available under section 502(a)(3). Both the district court and the Sperry retirees agree that the retirees are not entitled to money damages for a breach of fiduciary duty. Instead, the retirees seek an injunction ordering specific performance of the assurances Unisys made, restitutionary reimbursement for back benefits, and restoration of the status quo ante for the Sperry early retirees by rescinding their retirement agreements. These are remedies which are restitutionary in nature and thus equitable. See Curcio, 33 F.3d at 238-39 ("We hold that Mrs. Curcio's alternate argument [that Capital Health breached its fiduciary duty] provides additional support for our Conclusion that Capital Health is liable to Mrs. Curcio for the $150,000 in supplemental AD&D", representing full enforcement of the promise that had been made); Howe v. Varity Corp., 36 F.3d at 756 (award of monies plaintiffs would have received if they had remained members of the M-F plan could not properly be characterized as damages; rather, the payments were restitution). It will be for the district court to determine which of these remedies are appropriate under the circumstances of these individual claims.

V.

For the foregoing reasons, the order of the district court dated June 23, 1994, reinstating the retirees' claims for breach of fiduciary duty which was certified for appeal pursuant to 28 U.S.C. § 1292(b) by order entered July 12, 1994, will be affirmed. This cause is remanded to the district court for further proceedings.


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