Case: 12-60461   Document: 00512147849     Page: 1   Date Filed: 02/19/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                               February 19, 2013

                                 No. 12-60461                    Lyle W. Cayce
                                                                      Clerk

AARON GEARLDS, JR.,

                                           Plaintiff-Appellant
v.

ENTERGY SERVICES, INCORPORATED; ENTERGY MISSISSIPPI,
INCORPORATED,

                                           Defendants-Appellees



                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
REAVLEY, Circuit Judge:
      Plaintiff Aaron Gearlds, Jr. appeals from the district court’s dismissal of
his suit alleging claims of equitable estoppel and breach of fiduciary duties
pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”).
The district court dismissed the suit under Federal Rule of Civil Procedure
12(b)(6). Because we conclude that Gearlds stated a claim for relief that is
cognizable under ERISA, we REVERSE the district court’s judgment for Entergy
Services, Inc.
    Case: 12-60461    Document: 00512147849     Page: 2   Date Filed: 02/19/2013



                                 No. 12-60461

                                       I.
      According to the complaint, the facts of which we accept as true, Gearlds
was employed by Defendant Entergy Mississippi and participated as a
beneficiary of an ERISA plan administered by Defendant Entergy Services, Inc.
(henceforth only “Entergy”). Gearlds worked for Entergy Mississippi from 1976
until 1994 when he began collecting long term disability benefits. Those benefits
ended in 2002 because he was deemed no longer disabled. Although Gearlds’s
employment was not terminated, Entergy Mississippi did not pay Gearlds from
that point on. In 2005, Gearlds took early retirement at the age of 55, receiving
a reduced pension and full medical, dental, and vision benefits. Gearlds alleged
in his complaint that he agreed to retire early because the defendants told him
orally and in writing that he was covered by Entergy’s Medical Benefits Plus
Plan and would continue to receive medical benefits. At some point, Gearlds
waived medical benefits available under his wife’s retirement plan when she
retired from her employment because of the assurances he had received from
Entergy.
      In 2010, however, Entergy notified Gearlds that it was discontinuing his
medical benefits. Apparently, when Entergy determined the benefits to which
Gearlds was entitled upon retirement in 2005, it believed that Gearlds was still
receiving long term disability benefits, which had actually ended three years
earlier, and it therefore included the time from 2002 to 2005 when computing
Gearlds’s service time under the retirement plan. This error caused Entergy to
determine that Gearlds was eligible for medical coverage and that his monthly
retirement benefit would be $800.65. Entergy informed Gearlds that he was
actually not entitled to medical benefits and that his monthly benefit should
have been $305.68. Entergy did not seek reimbursement of any over payments,
and it further stated that it would allow Gearlds to continue to receive the same



                                       2
    Case: 12-60461      Document: 00512147849      Page: 3    Date Filed: 02/19/2013



                                   No. 12-60461

$800.65 monthly benefit. It indicated, however, that Gearlds’s medical coverage
would cease.
      Gearlds filed the instant suit, alleging that Entergy negligently induced
him to take early retirement insofar as it promised him health care benefits. He
asserted claims for (1) breach of fiduciary duty pursuant to ERISA § 502(a)(3),
now codified as 29 U.S.C. § 1132(a)(3), and (2) equitable estoppel. Gearlds
sought as damages past and future medical expenses, interest, attorneys fees,
costs, and any other damages, equitable or otherwise, to which he may be
entitled.
      Upon motion by Entergy, the district court dismissed the complaint for
failure to state a claim. The district court reasoned that Gearlds sought only
compensatory money damages, which was not an available equitable remedy
under § 502(a)(3). The court further held that Gearlds’s claim for equitable
estoppel failed because Gearlds had not alleged the kind of extraordinary
circumstances necessary under our precedent. Gearlds now appeals.
                                         II.
      The district court’s dismissal for failure to state a claim is reviewed de
novo. Turner v. Pleasant, 

, 775 (5th Cir. 2011).           “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

, 667, 

, 1949 (2009) (internal quotation marks and
citation omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 

must
provide more than conclusions, but it need not contain detailed factual
allegations.” 

(internal quotation marks and citation
omitted).



                                          3
    Case: 12-60461     Document: 00512147849     Page: 4   Date Filed: 02/19/2013



                                  No. 12-60461

      As relevant to the instant case, § 502(a)(3) permits a plan beneficiary to
bring a civil action to obtain “other appropriate equitable relief” for ERISA
violations. 29 U.S.C. § 1132(a)(3). Until recently, it was accepted in this and
other circuits that “other appropriate equitable relief” was limited to the kinds
of remedies typically available at equity, such as injunctions, mandamus, or
restitution, and that so-called “make-whole” monetary damages were not within
the scope of the statute. See Amschwand v. Spherion Corp., 

, 343
(5th Cir. 2007); see also McCravy v. Metro. Life Ins. Co., 

, 180 (4th
Cir. 2012). In Amschwand, for example, a plan beneficiary sought make-whole
damages for breach of fiduciary duty in the form of lost policy proceeds. 

. We held that such a remedy was “not equitable in derivation” and
was instead “akin to the legal remedies of extracontractual or compensatory
damages.” 

remedy sought “was not typically available in pre-
fusion courts of equity,” we denied relief. 

precedent, Gearlds’s
claim for monetary damages is inappropriate under § 502(a)(3). Because of
recent Supreme Court precedent, however, we must reevaluate that conclusion.
      The Supreme Court recently stated an expansion of the kind of relief
available under § 502(a)(3) when the plaintiff is suing a plan fiduciary and the
relief sought makes the plaintiff whole for losses caused by the defendant’s
breach of a fiduciary duty. See CIGNA Corp. v. Amara, 

, 1878–80
(2011). In Amara, a class of plaintiffs sued an employer and a pension plan
because the employer misled the plaintiffs about the conversion of a defined
benefit retirement plan into a cash balance plan and provided less generous
benefits.   

  The district court found that the defendant had
intentionally misled the employees, and it reformed the terms of the new plan.

The district court, inter alia, “require[d] the plan administrator
to pay to already retired beneficiaries money owed them under the plan as
reformed.” 

                                        4
    Case: 12-60461     Document: 00512147849      Page: 5    Date Filed: 02/19/2013



                                  No. 12-60461

      As legal authority for the relief, the district court relied on ERISA
§ 502(a)(1)(B), which allows plan participants or beneficiaries to bring suit for
recovery of benefits under ERISA plans.          See 

29 U.S.C.
§ 1132(a)(1)(B). The Supreme Court held that § 502(a)(1)(B) did not authorize
the relief because that section did not permit the district court to change or
reform the terms of the plan as they previously existed. 

–77. The Court then went on, however, to order on remand a remedy might
be available under § 502(a)(3)’s provision for “other appropriate equitable relief.”
The Court concluded that the district court’s allowance of monetary damages
could fall within the scope of the statute. 

      Although the district court’s remedy was in the form of money, the
Supreme Court reasoned that it was not beyond the scope of traditional
equitable relief because “[e]quity courts possessed the power to provide relief in
the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach
of duty, or to prevent the trustee’s unjust enrichment.” 

This form
of relief was commonly known as “surcharge.” 

believed it
“critical” that the Amara defendant’s position as a fiduciary was analogous to a
trustee, and it concluded that “an award of make-whole relief” in the form of
surcharge was within the scope of “appropriate equitable relief” for purposes of
§ 502(a)(3). 

instant case, Gearlds argues that Amara is controlling.            He
contends that Entergy breached its fiduciary duty by representing that he was
eligible for plan benefits for the remainder of his life by opting for early
retirement, and that he detrimentally relied on the misrepresentations. Gearlds
argues that he continued paying premiums for his benefits and lost the
opportunity to obtain alternate benefits through his wife’s retirement plan. He
seeks to recover the amount of insurance benefits that he has lost as a result of
the defendants’ alleged breach and misrepresentations.

                                         5
    Case: 12-60461     Document: 00512147849       Page: 6   Date Filed: 02/19/2013



                                   No. 12-60461

      In McCravy, the Fourth Circuit addressed a somewhat similar case.
There, the plaintiff paid life insurance premiums for several years for her
dependent child only to learn upon the child’s death that the child had been
ineligible for dependent coverage. 

. The plan denied
the plaintiff’s claim for benefits and sought to reimburse the plaintiff only for the
premiums that she had paid. 

suit for breach of fiduciary duty, the
plaintiff alleged that the defendant had represented to her that her child was
covered by dependent life insurance, and that as a result she did not obtain
different insurance. 

sought the amount of life insurance
proceeds lost because of the defendant’s alleged breach. 

The Fourth
Circuit concluded based on Amara that because a monetary make-whole remedy
could be available under § 502(a)(3), the plaintiff was not limited to recovering
the premiums she had paid. 

remanded for the district court to
determine in the first instance whether the breach of fiduciary duty claim would
succeed on the merits and whether surcharge was an appropriate remedy under
the circumstances of the case. 

      Here, we follow a similar path. The district court cited Amara but it did
not consider whether surcharge was an appropriate remedy. The district court
instead dismissed the suit because Gearlds sought only money damages, which
is ordinarily a legal remedy. After Amara, however, that is not the end of the
inquiry into equity. Gearlds’s complaint is viable in light of Amara.
      Entergy characterizes Amara’s discussion of § 502(a)(3) as dictum. Even
assuming it is dictum, however, we give serious consideration to this recent and
detailed discussion of the law by a majority of the Supreme Court. See 

n.2 (stating about Amara that the court “cannot simply override
a legal pronouncement endorsed just last year by a majority of the Supreme
Court”); Reich v. Continental Cas. Co., 

, 757 (7th Cir. 1994) (holding
that the Supreme Court’s “recent dictum . . . provides the best, though not

                                         6
      Case: 12-60461    Document: 00512147849     Page: 7    Date Filed: 02/19/2013



                                   No. 12-60461

infallible, guide to what the law is”); see also United States v. Becton, 

, 1296 n.3 (5th Cir. 1980) (noting that, as compared with other dicta, “[d]icta
of the Supreme Court are, of course, another matter”). Based on the depth of the
Court’s treatment of the issue, we are persuaded to join the Fourth Circuit in
concluding that Amara’s pronouncements about surcharge as a potential remedy
under § 502(a)(3) should be followed. We also conclude, therefore, that our
circuit’s contrary prior decisions, such as Amschwand, have been implicitly
overruled. Cf. United States v. Short, 

, 624 (5th Cir. 1999) (“[T]his
panel is bound by the precedent of previous panels absent an intervening
Supreme Court case explicitly or implicitly overruling that prior precedent
. . . .”).
         To be sure, Gearlds did not expressly plead or argue “surcharge,” but he
did argue that he should be made whole in the form of compensation for lost
benefits, and his complaint specifically asked for “[a]ny and all other damages
and/or relief, equitable or otherwise, to which [he] may be entitled under federal
law.” Courts must focus on the substance of the relief sought and the allegations
pleaded, not on the label used. See Edwards v. City of Houston, 

, 995
(5th Cir. 1996) (en banc) (“[W]e have oft stated that ‘the relief sought, that to be
granted, or within the power of the Court to grant, should be determined by
substance, not a label.’” (citation omitted)). We conclude that Gearlds has at
least stated a plausible claim for relief, and therefore further proceedings are
required. We leave to the district court the determination whether Gearlds’s
breach of fiduciary duty claim may prevail on the merits and whether the




                                         7
     Case: 12-60461       Document: 00512147849          Page: 8     Date Filed: 02/19/2013



                                       No. 12-60461

circumstances of the case warrant the relief of surcharge.1 See 

–82.
       Gearlds also sought a remedy based on equitable estoppel. The district
court dismissed that claim because “extraordinary circumstances” were not
constituted by the allegations. See High v. E-Systems, Inc., 

(5th
Cir. 2006). Because relief is available under the surcharge doctrine under
Amara, we do not address the equitable estoppel claim. The district court is free
to consider that claim on remand.
       Finally, Gearlds challenges the district court’s dismissal of Defendant
Entergy Mississippi. The district court dismissed Entergy Mississippi because
Gearlds did not allege that Entergy Mississippi was a proper defendant. Gearlds
argues that Entergy Mississippi was a proper and necessary defendant only
because he was employed by Entergy Mississippi and his plan benefits accrued
through his employment.            Gearlds did not allege, however, that Entergy
Mississippi sponsored or administered the plan, or made any decisions with
respect to his benefits; therefore, the district court did not err. See Musmeci v.
Schwegmann Giant Super Markets, Inc., 

, 349–50 (5th Cir. 2003)
(holding that employer was a proper defendant, in addition to the pension plan,




       1
         Entergy also argues that Gearlds’s breach of fiduciary duty claim fails because
Gearlds did not plausibly allege that it acted in a discretionary, rather than a ministerial,
manner. See Reich v. Lancaster, 

, 1049 (5th Cir. 1995). The district court did not
address this issue because it determined that the remedy Gearlds sought was not available
under § 502(a)(3), which we have concluded was incorrect. We need not decide at this point
whether Entergy’s conduct was discretionary or ministerial, but Gearlds’s allegations of
affirmative misrepresentations at least plausibly alleged a breach of fiduciary duty. See In re
Unisys Corp. Retiree Med. Benefit “ERISA” Litig., 

, 1264 (3d Cir. 1995) (“[W]hen
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.”). It bears
emphasis that we consider this case at the pleading stage; Entergy’s actual conduct will
require further development and consideration by the district court.

                                              8
    Case: 12-60461   Document: 00512147849      Page: 9   Date Filed: 02/19/2013



                                No. 12-60461

because the employer was both the plan administrator and sponsor, and the
employer made the decision to deny benefits).
     AFFIRMED IN PART AS TO ENTERGY MISSISSIPPI, REVERSED AND
REMANDED AS TO ENTERGY SERVICES, INC.




                                     9