NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 16-1352


   NATIONAL ELEVATOR INDUSTRY HEALTH BENEFIT PLAN BOARD OF
                          TRUSTEES

                                          v.

                               BERNARD MCLAUGHLIN,
                                                Appellant



                  On Appeal from the United States District Court
                            for the District of New Jersey
                          (District Case No. 3-12-cv-04322)
                   District Judge: Honorable Anne E. Thompson


                             Argued September, 21 2016


          Before: McKEE*, HARDIMAN, and RENDELL, Circuit Judges

                           (Opinion filed: January 6, 2017)

Steven L. Kessel          (Argued)
Drazin & Warshaw
25 Reckless Place
P.O. Box 8909
Red Bank, NJ 07701

  Counsel for Appellant

      *
       Judge McKee was Chief Judge at the time this appeal was submitted. Judge
McKee completed his term as Chief Judge on September 30, 2016.
John D. Kolb                (Argued)
Gibson & Sharps
9420 Bunsen Parkway
Suite 250
Louisville, KY 40223

   Counsel for Appellee




                                       O P I N I O N*


RENDELL, Circuit Judge:

       Bernard McLaughlin appeals from the District Court’s order entering Judgment

against him in the amount of $45,347.89 in an action commenced by the National

Elevator Industry Health Benefit Plan Board of Trustees (“the Plan”). We will affirm.

       McLaughlin was injured in an all-terrain vehicle accident in January 2009. The

Plan extended him approximately $47,590.24 in benefits for his medical treatment costs.

McLaughlin also filed a claim against a third party and subsequently recovered monies

by way of settlement. He did not assert medical expenses as part of the claim against the

third party. The Plan then sought reimbursement from McLaughlin from the settlement

proceeds according to the following Plan provision:

       The Plan has a right to first reimbursement out of any recovery. Acceptance
       of benefits from the Plan for an injury or illness by a covered person,
       without any further action by the Plan and/or the covered person,
       constitutes an agreement that any amounts recovered from another party by
       award, judgment, settlement or otherwise, and regardless of how the

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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        proceeds are characterized, will promptly be applied first to reimburse the
        Plan in full for benefits advanced by the Plan due to the injury or illness.

A19a.

        The Plan subsequently brought suit in the United State District Court for the

District of New Jersey and sought “the imposition of a constructive trust and/or equitable

lien over identifiable funds in the possession and/or control of [McLaughlin]. No money

damages [were] sought . . . .” Complaint at 2, ¶4. McLaughlin urged that he was not

obligated to reimburse the Plan because he had not recovered money for medical bills in

the settlement. The District Judge granted summary judgment for the Plan on January 24,

2014 and opined that “[s]ince the Plan’s language is clear and the agreement controls,

Defendant must reimburse [the Plan] from the Settlement.” Bd. of Trs. of Nat’l Elevator

Indus. Health Benefit Plan v. McLaughlin, No. 12-4322, 

, at *4 (D.N.J.

Jan. 24, 2014).1

        Thereafter, in December 2015, the Plan sent a letter to the District Judge noting,

“We now wish to file a lien against the Defendant for the unpaid medical lien; however

the order and judgment from the District Court granting summary judgment in favor of

[the Plan] does not mention a sum certain.” A26a. It then goes on to state that the

“current claim amount is $45,347.89.” A26a. It also noted that it advised McLaughlin’s

counsel of the current amount by letter dated October 8, 2015 and had not received any




        1
        McLaughlin appealed from this order, and we affirmed in a non-precedential
opinion. See Bd. of Trs. of the Nat’l Elevator Indus. Health Benefit Plan v. McLaughlin,
590 F. App’x 154 (3d Cir. 2014), cert. denied, 

(2015).
                                              3
objection. A26a, A61a. On December 21, 2015, the District Court ordered that judgment

in that amount be entered in favor of the Plan.

       McLaughlin now makes several arguments in this appeal, but principally

challenges the District Court’s entry of a “new order for judgment” under Rule 60,

McLaughlin Br. 6, notwithstanding the previous “final order” of the District Court. He

also urges that ERISA does not authorize entry of a money judgment. Our analysis

depends in part on how we should characterize what occurred in the District Court and in

part on the state of the law at the time judgment was entered.

       It should be noted that McLaughlin originally argued in the District Court that

since the funds he received had been dissipated, i.e., spent by him, there could be no

enforceable lien. The District Court rejected that argument based on our opinion in Funk

v. Cigna, 

(3d Cir. 2011), in which we held that a lien-by-agreement can be

enforced notwithstanding the dissipation of the specific fund to which the lien attached.

See Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 

, at *2 n.2.

McLaughlin did not appeal that aspect of the original ruling in the District Court in his

earlier appeal. We note that Funk was clearly controlling at that time.

       Here, we must decide what the District Court was doing when it entered judgment

in the amount of $45,347.89 on December 21, 2015. McLaughlin asserts that it was

entering a personal judgment that is not a valid “equitable remedy” authorized by ERISA.

The Plan, on the other hand, contends that the District Court had granted equitable relief

as requested in its complaint and thus was simply monetizing the amount of the current

lien claim.

                                             4
       We think the Plan has the better argument. While it would seem that such a money

judgment would originally be deemed a legal judgment prohibited by ERISA, the District

Court was acting pursuant to our opinion in Funk which permitted it to enforce a lien-by-

agreement against property other than the res to which the lien attached. It follows

logically that the District Court needed to indicate the amount of the lien in order to do

so. That, together with the underlying equitable relief requested by the Plan, causes us to

view the judgment at issue here as one that merely monetizes the lien and does not run

afoul of ERISA.

       The parties acknowledge that our ruling in Funk has been abrogated by the

Supreme Court’s opinion in Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health

Benefit Plan, 

(2016), which clarified that in order to be equitable, the lien

must attach to a specific fund, and if that specific fund is dissipated, relief against the

debtor is no longer equitable. McLaughlin asked the District Court to vacate its order

under Rule 60(b) and apply Montanile, and on appeal before us he contends the District

Court erred in refusing to do so. We reject this argument and will affirm on this issue as

well. “[I]ntervening changes in the law rarely justify relief from a final judgment.” Cox v.

Horn, 

, 121 (3d Cir. 2014). Moreover, McLaughlin has not presented the

extraordinary circumstances that would warrant such relief.

       Accordingly, we will affirm the District Court’s order.




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