PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM J. ELMORE, Individually;
WAYNE COMER, Individually and as
representatives of a class of
Plaintiffs similarly situated,
Plaintiffs-Appellants,

v.

CONE MILLS CORPORATION,
Defendant-Appellee,                                                         No. 95-2901

and

DEWEY L. TROGDON; LACY G.
BAYNES; PAUL W. STEPHANZ; CONE
MILLS ACQUISITION CORPORATION;
WACHOVIA BANK AND TRUST
COMPANY, N.A.,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Joseph F. Anderson, Jr., District Judge.
(CA-88-3258-6-17)

Argued: October 31, 1996

Decided: August 20, 1999

Before WIDENER, Circuit Judge, HALL,* Senior Circuit Judge,
and THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.
_________________________________________________________________
*Senior Judge Hall heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Robinson Gilreath, Greenville, South Carolina, for
Appellants. John Robbins Wester, ROBINSON, BRADSHAW &
HINSON, P.A., Charlotte, North Carolina, for Appellee. ON BRIEF:
J. Kendall Few, Greenville, South Carolina; John P. Freeman, Colum-
bia, South Carolina, for Appellants. David C. Wright, III, ROBIN-
SON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina;
Robert O. King, Kristopher K. Strasser, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, L.L.P., Greenville, South Carolina;
Robert J. Lawing, Jane C. Jackson, ROBINSON, MAREADY, LAW-
ING & COMERFORD, Winston-Salem, North Carolina, for Appel-
lee.

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs William Elmore and Wayne Comer, individually and as
representatives of a class of employees of defendant Cone Mills,
appeal a decision of the district court in South Carolina entering judg-
ment for the defendant and denying the plaintiffs' claims to a pension
surplus governed by ERISA under federal common law theories of
equitable estoppel, third-party beneficiary of a contract, and unjust
enrichment. At issue is a $14.2 million portion of the surplus of an
Employee Retirement Plan (ERP) which Cone Mills over-funded.
Plaintiffs claim officers of Cone Mills represented Cone Mills' man-
agement would contribute the whole surplus to a new Employee
Stock Ownership Plan (ESOP) if management succeeded in its lever-
aged buy-out of the company. Plaintiffs assert that Cone Mills only
contributed about $54.8 million by 1985, and that under the foregoing
theory they are entitled to recovery of the remainder of a $69 million
surplus.

                    2
This is the third time this court has heard this case.1 As a divided
en banc court we vacated a panel decision and vacated an earlier dis-
trict court decision in favor of the plaintiffs on their claim that Cone
Mills had breached its fiduciary duty in contravention of the
Employee Retirement Income Security Act (ERISA), 29 U.S.C.
§§ 1001-1461. Elmore v. Cone Mills Corp. , 

(4th Cir.
1994) (en banc). However, by an evenly divided court, we upheld the
district court's determination that plaintiffs might be able to establish
equitable estoppel, subject to proof of detrimental reliance. 

. We did not reach the issue of breach of a third-party
beneficiary contract and we affirmed the district court's dismissal of
"all remaining ERISA and other claims." 

, 863.

On remand the district court permitted the plaintiffs to amend their
complaint to add a claim for unjust enrichment, premised on a federal
common-law theory under ERISA. The district court held that the
plaintiffs' failure to establish either reasonable reliance or detrimental
reliance, prerequisites for specific performance under notions of equi-
table estoppel or third-party beneficiary, required denial of those theo-
ries of recovery. Subsequently, the district court heard the unjust
enrichment claim and denied recovery, finding that Cone Mills was
not unjustly enriched where the pension plan and ERISA entitled
Cone Mills to the surplus pension funds at issue.

The plaintiffs now appeal, asserting that they established the reli-
ance necessary for their theories of equitable estoppel and third-party
beneficiary. They claim that the district court's decision for the defen-
dant on the issue of reliance is based on facts contrary to those found
in the initial trial and affirmed by this court en banc. Additionally,
they assert that reliance is not required for restitution under unjust
enrichment, and that the plaintiffs had a reasonable expectation that
the full pension reversion would be contributed to the surplus.

Our review is of these two issues, and we affirm the judgment of
the district court.
_________________________________________________________________
1 For the purposes of this appeal we permitted the use of the 17-volume
Joint Appendix from the previous appeal. For completeness we note that
the vacated panel decision is reported as 

(4th Cir. 1993).

                     3
I.

The district court in its first opinion set forth the underlying events,
and we found the operative facts from that narrative in our en banc
opinion. 

, 858-860. We confine our discussion
to the facts central to the issues before us, reliance and unjust enrich-
ment.

In order to fend off a hostile takeover bid announced on October
31, 1983, a group of senior management employees at Cone Mills
organized a leveraged buy-out (LBO) of the company, which became
final on March 27, 1984. At that time Dewey Trogdon was Cone
Mills' Chairman of the Board and Chief Executive Officer. During
the months preceding the LBO Trogdon engaged in regular communi-
cation with the employees of Cone Mills to keep them apprised of the
situation and to obtain their support for the LBO. Through letters,
office memoranda and video presentations Trogdon addressed
employee concerns, in particular those regarding the effect of the
LBO on their pensions.

Our en banc opinion focused on the contents of six of these pre-
LBO communications. They are summarized as follows.

A December 12, 1983 letter to all Cone Mills employees explained
that the LBO would include an Employee Stock Ownership Plan
(ESOP) which would not diminish their pensions. It provided that
"pension plans [would] be left in place with existing benefits guaran-
teed by the company" and that the combination of the new ESOP and
the ERP would ensure employees "receive no less than the full
amount" of their pre-LBO pension benefits. The letter further stated
that "[t]ogether, the ESOP and your pension plan are expected to pro-
vide greater financial security than your present retirement benefits."
(emphasis omitted). The letter "estimated" that the company could
contribute over $50 million in stock to the new ESOP, but Trogdon
made the express reservation that "[a]t this time I am not allowed to
legally guarantee that amount, nor will it be the same amount in
future years." A.J.A 3696.

A December 15, 1983 letter from Trogdon to salaried employees
further detailed the proposed LBO. The letter stated that the existing

                     4
ERP contained a surplus because the company had contributed more
funds than were necessary to pay for the accrued benefits. It referred
to the fact that under the terms of the ERP Cone Mills was entitled
to reclaim this pension surplus. However, the letter provided:

          [i]f the management and the bank proposal to buy the Com-
          pany is successful, there is agreement among management
          and the banks that we will contribute the surplus, or its
          equivalent in Company stock to the ESOP. When the trans-
          action is executed and the contribution is made you, I, and
          all other Cone employees will "take title" to a substantial
          asset in which we currently have no rights or ownership.

Trogdon qualified this statement with a disclaimer.

          As we get more time, we will answer your questions and
          publish information to the extent that it can be done on a
          legal and factual basis. We are, however, giving you infor-
          mation based on our present plans which are subject to revi-
          sion to meet changing situations.

A bulletin board notice followed the letters. It outlined how Cone
Mills' planned contributions to the ESOP would be 10% of salaries
paid in both 1983 and 1984, and 1% per annum thereafter. The notice
stressed the discretionary nature of any additional contributions.

A February 1984 video presentation referred to the expected contri-
bution as "over $50 million."

The question-and-answer booklet which accompanied the video
similarly estimated that

          if all goes according to plan, over $50 million of stock will
          be contributed to the ESOP for the years 1983 and 1984.
          After 1984 the company's contribution will be determined
          by the board of Directors based on business conditions and
          company profits.

Like all the prior communications the pamphlet contained a dis-
claimer, this time in bold-face type, stating that

                    5
          [t]he legal documents control, and if this material differs in
          any way from the legal documents, the correct source of the
          information is the legal documents.

A February 23, 1984 proxy statement provided to all salaried
employees as participants in the employee stock ownership plan
(PAYSOP) outlined that the mandatory ESOP obligation of Cone
Mills would follow the 10%/10%/1% formula.

A March 15 memorandum, less than two weeks before the LBO
vote, cautioned that the company was not making any guarantees as
to its contributions to the ESOP after 1985, other than the minimum
required by the plan. Trogdon wrote "I do not believe it is prudent,
presently, to guarantee ESOP contributions above the 1% minimum
for years 1985 and forward. . . ." A.J.A at 4034.

The salaried employees who received these communications
owned a total of 1.3% of Cone Mill's common stock. The plaintiffs
assert that as a result of these communications the salaried employees
voted for the LBO, which was overwhelmingly adopted on March 26,
1984.

On April 2, 1984 the 1983 ESOP documents were executed. They
obligated the company to contribute cash, stock, or other property
equivalent in value to ten percent of each participating employee's
compensation in 1983 and 1984. Thereafter, according to the
10%/10%/1% formula, the documents required a contribution of one
percent of each covered employee's compensation. As the en banc
opinion noted, the documents "did not refer to the pension surplus but
did provide for discretionary contributions." 

.

Cone Mills received the pension surplus between May, 1985 and
December, 1985. During that time the surplus had increased to
approximately $69 million.2 It is undisputed that from the date of the
_________________________________________________________________
2 The increase over the estimated $50 million resulted

          [b]ecause the [pension] reversion created taxable income, [there-
          fore] Cone Mills deferred receipt until 1985 so that it could
          reclaim 1981 taxes paid in excess of $17 million. This inten-

                    6
LBO until September 1985 Cone Mills contributed stock to the ESOP
worth $54,796,638. Cone Mills' payments into the ESOP did not
coincide with the receipt by Cone Mills of the pension reversion and
exceeded the roughly $30 million dollars that the 10%/10%/1% for-
mula of the ESOP documents required over the first two years.

On these facts an evenly divided en banc court affirmed that the
plaintiffs could recover "based on the incorporation of equitable
estoppel principles into the federal common law of ERISA", provided
that on remand the plaintiffs could establish the final element, reli-
ance.

On remand the district court in its order of April 19, 1996 granted
summary judgment in favor of the defendant on the equitable estoppel
and third-party beneficiary claims. Based on its review of the law of
detrimental reliance and the evidence of the first trial the court found
that there was no genuine dispute of material fact as to the issue of
reliance. It further found that the record "disclosed that none of the
Plaintiffs can demonstrate that he or she expected to receive contribu-
tion of more of the surplus than Cone Mills actually contributed."

II. Detrimental Reliance

The Supreme Court has held that "[an] essential element of any
estoppel is detrimental reliance on the adverse party's misrepresenta-
tions." Lyng v. Payne, 

, 935 (1986). Similarly, this cir-
cuit has long held that detrimental reliance on a misrepresentation is
a prerequisite for restitution under a theory of equitable estoppel. See
Service & Training, Inc. v. Data General Corp., 

, 690
(4th Cir. 1992). The reliance must take the form of a definite and
identifiable action. Specifically, "[a]n estoppel arises when `one per-
son makes a definite misrepresentation of fact to another person hav-
ing reason to believe that the other will rely upon it and the other in
_________________________________________________________________

          tional delay in receiving the pension reversion surplus increased
          its value from the original estimate of $50 million to the $69 mil-
          lion [Cone Mills] received by December of 1985.

, n.4.

                    7
reasonable reliance does an act . . . .'" Sheppard & Enoch Pratt Hos-
pital, Inc. v. Travelers Ins. Co., 

, 127 (4th Cir. 1994)
(quoting Heckler v. Community Health Servs. of Crawford, 

, 59 (1984)).

Central to the district court's finding of an absence of reliance was
that all the parties to the litigation believed that the surplus referred
to in the communications had a value of roughly $50 million. The
court agreed with, and expressly relied upon, the concurring opinion
of Judge Wilkins in our en banc decision in which Judges Niemeyer
and Williams joined:

          The record is unassailable that Cone Mills and the Plaintiffs
          acted at all times with the mutual understanding that the sur-
          plus amounted to approximately $50 million. Because in the
          only information available to the Plaintiffs it was estimated
          that the amount of the surplus was approximately $50 mil-
          lion, Plaintiffs could not have relied upon receipt of a sub-
          stantially greater amount.

(Wilkins, J. concurring). Thus because the
plaintiffs were only aware of estimates approximating the surplus at
about $50 million ("approximately $50 million", "over $50 million",
"$50 million or more"), the district court found the plaintiffs were
precluded from claiming they reasonably expected more. Indeed, the
district court found as a matter of fact that there was no causal rela-
tion between the communications regarding the retirement benefits
and the buy-out - "Whatever action they [the plaintiffs] took in regard
to the LBO was not directly connected with the surplus." Rather, it
is apparent, as Judge Wilkins' concurrence reasoned, and the district
court found, the expectation concerned the amount of money paid to
the ESOP. Significantly, we note that the complaint, in its last
amended form, sues for $14.2 million, which is the difference
between the $54+ million paid to the ESOP Fund by Cone Mills
under the 10/10/1 formula and $69 million, the value of the stock in
the ERP Fund, created by Cone Mills' overpayment because of the
$17 million reclaim of 1981 taxes to the United States. The tax advan-
tage taken by Cone Mills is the root of this law suit.

An additional reason supporting our decision is that the overpay-
ment in the ERP Fund being the property of Cone Mills, we know of

                     8
no reason that Cone Mills should not have taken advantage of the tax
treatment. Since Cone Mills' payments into the ESOP Fund have
exceeded anything promised, even the plaintiffs have tacitly acknowl-
edged by their claim for damages of only $14.2 million that they are
not entitled both to all the ERP overpayment and to the 10%/10%/1%
payments. As the district court found, " . . . by the date Cone Mills'
plan tax return was due for plan year 1985, Cone had committed an
amount which exceeded the surplus funds returned to the company in
1985."

We find the district court's determinations of fact as to the respec-
tive states of mind of the parties are not clearly erroneous, and we
affirm its finding of an absence of detrimental reliance by the plain-
tiffs.

The plaintiffs' contention that the district court contradicted its ear-
lier fact finding by adopting Judge Wilkins' summary of the situation
is not well taken. Judge Wilkins expressly based his synopsis above
on the district court's observation in the first trial that "`I think every-
body thought [the surplus] was $50 million.'" 

.
In this same vein, the plaintiffs, in their briefs and at oral argument
seek to buttress their argument of reliance with the claim that the dis-
trict court initially found Cone Mills had promised the plaintiffs the
entire surplus, regardless of the amount. The en banc court, the plain-
tiffs assert, affirmed this finding. Their argument is that the affir-
mance precluded the district court on remand from finding, as it did,
that all the parties believed the surplus was $50 million and that there-
fore plaintiffs could not have relied on receiving more.

We are not convinced that these earlier findings of fact preclude or
render clearly erroneous the district court's subsequent findings of
fact. Consistent throughout is the fact that all the parties believed the
surplus was approximately $50 million, regardless of whether Cone
Mills represented it would contribute the surplus in its entirety. This
does not contradict the court's finding on remand that the plaintiffs
did not rely on receiving more if they had not even an inkling that the
surplus would in fact be a greater sum.

We also note that the district court, in both its April 19 order grant-
ing the summary judgment on the reliance issue and its final Septem-

                     9
ber 25 order denying the unjust enrichment claim, rejected several of
the plaintiffs' theories regarding how they had relied to their detri-
ment. We mention one of them.

The court rejected the plaintiffs' assertion that they relied to their
detriment by voting for the LBO and by supporting management in
its effort to persuade banks to participate in the LBO as lenders and
equity owners. The court noted that the plaintiffs did not suffer any
detriment either by voting for the LBO or by supporting the manage-
ment.

          The surplus funds in the existing pension account did not
          belong to the plaintiffs. If the Plaintiffs somehow mar-
          shalled their votes and those of others to defeat the LBO, or
          if the Plaintiffs had expressed their dissatisfaction with the
          LBO to the extent the banks declined to participate, the
          Plaintiffs may well have succeeded in killing the LBO, but
          they still would not have gained title to the surplus funds in
          the existing pension account.

In short, even if the plaintiffs could show they relied on the represen-
tations, they had nothing to lose.

Upon review of the record and the materials of the parties we are
convinced that these rulings by the district court on the plaintiffs'
alternative theories are consistent with our law on estoppel and detri-
mental reliance, as set forth by Service & Training, 

, and Sheppard & Enoch Pratt Hospital, Inc. , 32 F.3d at 120.

III. Unjust Enrichment

On April 19, 1995 the district court allowed plaintiffs to amend
their complaint to allege a claim for unjust enrichment. The district
court denied the defendant's motion to dismiss the claim and "ordered
the parties to appear . . . for the purpose of presenting whatever evi-
dence or argument either side wished to submit." Neither party sub-
mitted additional evidence, relying instead on the existing record. The
court then heard argument of the parties on the issue of unjust enrich-
ment and directed the parties to file proposed findings of fact and con-
clusions of law.

                     10
The court considered the testimony and the credibility of the wit-
nesses. It reviewed the briefs and exhibits, and based on the applica-
ble law made its September 25, 1995 Finding of Facts and
Conclusions of Law in which it denied plaintiffs' claim that Cone
Mills had been unjustly enriched by not contributing the $14.2 million
remainder of the pension surplus to the ESOP.

We agree with the district court that Provident Life & Acc. Ins. Co.
v. Waller, 

(4th Cir.), cert. denied, 

(1990),
plainly requires the dismissal of the unjust enrichment claim.

Waller involved a claim by an insurance company for the return of
medical expenses advanced to a defendant injured in an auto accident.
After receiving the advance the defendant also recovered damages
from a third party exceeding the amount of the advance. A clause in
the plan provided that where the insured was injured through no fault
of her own the insurer would advance her medical expenses, which
she would have to repay in full. Because the plaintiff insurer had not
required the insuree to sign the repayment provision the district court
ruled that such noncompliance with the terms of the plan barred
recovery by the plaintiff under the terms of the plan. 

.

However, we reversed and permitted recovery under a federal com-
mon law theory of unjust enrichment in part because the facts there
"fit the archetypal unjust enrichment scenario." 

. More importantly though, "the plan contract in the present
[Waller] case provided for repayment of the advanced monies" and
thus "the creation of a common law remedy here would further the
contract between the parties and effectuate the clear intent of [the
plan]." 

(emphasis in original).

Although the plaintiffs continue in their appeal to rely on Waller
which did permit an unjust enrichment claim in an ERISA action, we
unambiguously reaffirmed in Waller the general rule that federal
courts "must proceed cautiously in creating additional rights under the
rubric of federal common law" and do not "possess carte blanche
authority to `use state common law to re-write a federal statute.'"

. The use of a federal common law theory
claim of unjust enrichment in Waller was clearly the exception and

                    11
not the rule for ERISA cases. See 

(citing
Cummings By Techmeier v. Briggs & Stratton, 

, 390 (7th
Cir.), cert. denied, 

(1986), and Van Orman v. Ameri-
can Ins. Co., 

, 312 (3d Cir. 1982), as examples that cir-
cuits generally "decline to impose a federal common law of unjust
enrichment.").

We agree with the district court that where the original plan enti-
tled Cone Mills to the surplus, the facts in the instant case are closer
to Cummings By Techmeier, 

at 390 (plan explicitly
authorized the enrichment), and Van 

(plan
silent as to surplus). There is no express right in ERISA for unjust
enrichment and the plaintiffs here have not established "a particularly
strong affirmative indication that such a common law right would
effectuate a statutory policy" of ERISA on the facts of the case.

(internal quotes omitted). Accordingly we
affirm the district court's ruling that the plaintiffs' attempt to obtain
funds outside of the plan documents on a federal common law theory
of unjust enrichment must fail.

Finally, we would agree in the alternative with the district court
that even if recovery under a theory of unjust enrichment were per-
missible here, plaintiffs are unable to make a satisfactory showing of
the well-established elements of that cause of action. Quoting a sister
circuit, the district court aptly noted that Cone Mills cannot be
unjustly enriched where it put the surplus into the plan and where the
plan specifically entitled Cone Mills to recover those funds at the ter-
mination of the plan. Craig v. Bemus, 

, 684 (5th Cir.
1975) ("enrichment [is] not unjust where it is allowed by the express
terms of the Plan").

IV. Varity Corporation v. Howe

In their briefs and at oral argument plaintiffs relied on the recent
decision of Varity Corporation v. Howe, 

(1996),
announced after the district court issued its opinion in the instant case.
In Varity the plaintiffs were employees of Massey-Ferguson, Inc., a
wholly-owned subsidiary of Varity Corporation. As such the plaintiffs
were participants in Massey Ferguson's self-funded welfare benefit
plan, which fell within the scope of ERISA. Varity, 

. To

                     12
Varity's consternation certain divisions of Massey-Ferguson were los-
ing large amounts of money. As a result, Varity faced the prospect of
having to honor out of the pockets of Massey-Ferguson's profitable
divisions the obligations of those failing divisions arising from the
commitments of Massey-Ferguson's benefit plan commitment to pay
medical and other nonpension benefits to employees. 

. The Court found that rather than face the repercussions of ter-
minating those benefits, Varity reorganized according to what it mis-
leadingly gave the optimistic label "Project Sunshine," pursuant to
which it put all its "money-losing eggs in one financially rickety bas-
ket" named Massey-Combines. 

. Varity then
persuaded its employees through literature and videos to switch over
to the new benefits plan. While guaranteeing the same benefits, the
new plan had as its underpinning only the dubious financial resources
of the doomed divisions. The new Massey Combines lost $88 million
in its first year and finished its second in receivership, thereby deny-
ing the employees their nonpension benefits.

The employees sued under ERISA seeking the benefits they would
have received under the previous Massey-Ferguson plan. The Court
found that Varity and Massey-Ferguson in their capacity as ERISA
fiduciaries through deliberate deception had harmed the plan's benefi-
ciaries, thereby violating the corporations' duties as plan fiduciaries
under ERISA § 404. 

. Where there was a
breach by the fiduciaries, the Court found that ERISA § 502(a)(3)
permits lawsuits for equitable relief. Varity , 516 U.S. at 507-15.

Varity is consistent with our decision. Plaintiffs claim that after
Varity ERISA § 502(a)(3) "provides a right of recovery on behalf of
plan beneficiaries seeking appropriate equitable relief (unjust enrich-
ment) due to an employer's having enriched itself by misleading
employees." Varity, unlike here, involved the violation of a specific
ERISA provision (ERISA § 404), and based on that allowed recovery
as equitable relief under ERISA § 502(a)(3) where otherwise there
would not have been a remedy. 

. In the
instant case we found en banc that Cone Mills as the manager of the
ERISA protected plan did not breach its fiduciary duties to the
employee plaintiffs. 

. Significantly, ERISA
§ 502(a)(3) does not authorize a general form of "appropriate relief",
but instead more narrowly circumscribes the availability of the rem-

                    13
edy to situations involving the violation of an ERISA provision or the
enforcement of the terms of an ERISA protected plan. Mertens v.
Hewitt Associates, 

, 253 (1993). The Court has noted
that ERISA § 502(a)(3)

          does not, after all, authorize "appropriate relief" at large, but
          only "appropriate relief" for the purpose of"redress[ing any]
          violations or . . . enforc[ing] any provisions" of ERISA or
          an ERISA plan.

(emphasis in original). Thus the absence
here of a violation of the plan administrator's fiduciary duty puts this
case on a different legal and factual footing than Varity.

Further, we find the claim in Varity to be rooted in a wholly dis-
tinct factual scenario. In Varity the Court found that Varity had
engaged in "deception" by "knowingly and significantly . . . deceiving
a plan's beneficiary in order to save the employer money at the bene-
ficiaries expense". 

. Again in contrast, in the
present appeal the district court dismissed the fraud claim, and it is
not disputed that Cone Mills exceeded its contribution commitment
under the ESOP formula of 10%/10%/1%.

The judgment of the district court is accordingly

AFFIRMED.

                     14