|AETNA HEALTH INC. V. DAVILA (02-1845) 542 U.S. 200 (2004)
307 F.3d 298, reversed and remanded.
[ Thomas ]
[ Ginsburg ]
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 21, 2004]
Justice Ginsburg, with whom Justice Breyer joins, concurring.
The Court today holds that the claims respondents asserted under Texas law are totally preempted by §502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U.S.C. § 1132(a). That decision is consistent with our governing case law on ERISAs preemptive scope. I therefore join the Courts opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), I also join the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime. DiFelice v. AETNA U.S. Healthcare, 346 F.3d 442, 453 (CA3 2003) (Becker, J., concurring).
Because the Court has coupled an encompassing interpretation of ERISAs preemptive force with a cramped construction of the equitable relief allowable under §502(a)(3), a regulatory vacuum exists: [V]irtually all state law remedies are preempted but very few federal substitutes are provided. Id., at 456 (internal quotation marks omitted).
A series of the Courts
decisions has yielded a host of situations in which persons
adversely affected by ERISA-proscribed wrongdoing cannot gain
make-whole relief. First, in Massachusetts Mut. Life Ins.
Co. v. Russell, 473 U.S. 134 (1985),
the Court stated, in dicta: [T]here is a stark
absencein [ERISA] itself and in its legislative
historyof any reference to an intention to authorize the
recovery of extracontractual damages for consequential
injuries. Id., at 148. Then, in Mertens v.
Hewitt Associates, 508 U.S. 248 (1993),
the Court held that §502(a)(3)s term
As the array of lower court cases and
opinions documents, see, e.g., DiFelice;
Cicio v. Does, 321 F.3d 83 (CA2 2003), cert.
pending sub nom. Vytra Healthcare v.
Cicio, No. 0369, fresh consideration of the
availability of consequential damages under §502(a)(3) is
plainly in order. See 321 F.3d, at 106, 107 (Calabresi, J.,
dissenting in part) (gaping wound caused by the
breadth of preemption and limited remedies under ERISA, as
interpreted by this Court, will not be healed until the Court
start[s] over or Congress wipe[s] the slate
clean); DiFelice, 346 F.3d, at 467 (The
is that either Congress or the Court act
quickly, because the current situation is plainly
untenable.); Langbein, What ERISA Means by
Equitable: The Supreme Courts Trail of Error
in Russell, Mertens, and Great-West, 103
Colum. L. Rev. 1317, 1365 (2003) (hereinafter Langbein)
(The Supreme Court needs to
realign ERISA remedy
law with the trust remedial tradition that Congress intended
[when it provided in §502(a)(3) for] appropriate
The Government notes a potential amelioration. Recognizing that this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary, the Government suggests that the Act, as currently written and interpreted, may allo[w] at least some forms of make-whole relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench. Brief for United States as Amicus Curiae 2728, n. 13 (emphases added); cf. ante, at 19 (entity with discretionary authority over benefits determinations is a plan fiduciary); Tr. of Oral Arg. 13 (Aetna is [a fiduciary]and CIGNA is for purposes of claims processing.). As the Court points out, respondents here declined the opportunity to amend their complaints to state claims for relief under §502(a); the District Court, therefore, properly dismissed their suits with prejudice. See ante, at 20, n. 7. But the Governments suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue.
Congress intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief. Langbein 1319. I anticipate that Congress, or this Court, will one day so confirm.