Full opinion text
McKEAGUE, J., delivered the opinion of the court in which BOGGS, BATCHELDER, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, and KETHLEDGE, JJ., joined, and WHITE, J., joined in part. GIBBONS, J. (pp. 376-78), delivered a separate concurring opinion in which BATCHELDER and COOK, JJ., joined. WHITE, J. (pp. 378-82), delivered a separate opinion concurring in part and dissenting in part. STRANCH, J. (pp. 382-95), delivered a separate dissenting opinion in which COLE, C.J., KEITH, MOORE, CLAY, and DONALD, JJ., joined, and WHITE, J., joined in part. OPINION McKEAGUE, Circuit Judge. This is the second time this case has been before the Sixth Circuit. The first time, we affirmed the district court’s determination that defendant Life Insurance Company of North America (“LINA”) acted arbitrarily and capriciously when it denied Daniel Rochow’s claim for long-term disability benefits under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). Rochow v. LINA, 482 F.3d 860 (6th Cir.2007) (“Rochow I ”). Our second review comes after the district court ordered that LINA disgorge profits flowing from its wrongful denial of benefits. A divided three-judge panel affirmed the district court’s order. Rochow v. LINA, 737 F.3d 415 (6th Cir.2013) (“Rochow II ”). We granted rehearing en banc, thereby vacating Rochow II, in order to reconsider as a full court whether the disgorgement award was proper. For the reasons that follow, we vacate the disgorgement award and remand the case to the district court to determine whether prejudgment interest is appropriate. I The facts of this case are adequately summarized in Rochow II and are reproduced here: In mid-2000, the late Daniel J. Rochow (“Rochow”), a principal of Universico Insurance Company (“Universico”), sold his interest in Universico to Arthur J. Gallagher & Co. (“Gallagher”) and became President of Gallagher. As an employee of Gallagher, Rochow was covered under Life Insurance Company of North America (“LINA”) policy number LK 30214. LINA’s policy provided for disability benefits if an employee gave “satisfactory proof’ that “solely because of Injury or Sickness [the employee is] unable to perform all material duties of [his or her] Regular Occupation or a Qualified Alternative^]” See Rochow v. LINA (“Rochow I”), 482 F.3d 860, 863-64 (6th Cir.2007). In 2001, Rochow began to experience short term memory loss, occasional chills, sporadic sweating, and stress at work. Id. In July 2001, Gallagher demoted Rochow from President to Sales Executive-Account Manager because Rochow could no longer perform his duties as President. Id. Rochow continued to have difficulties, and as a result of his inability to perform his job, Gallagher forced Rochow to resign effective January 2, 2002. Id. In February 2002, Rochow experienced periods of amnesia and was hospitalized. Id. During his February 2002 hospital stay, Rochow was diagnosed with HSV-Encephalitis, a rare and severely debilitating brain infection. Id. On or about December 31, 2002, Rochow filed a claim for long term disability benefits. LINA denied Rochow benefits stating that Rochow’s employment ended before his disability began. Rochow I, 482 F.3d at 864. Rochow appealed LINA’s denial and included medical records from 2001 that stated Rochow was suffering short-term memory loss during 2001. In denying Rochow’s appeal, LINA noted that Rochow experienced the effects of encephalitis during 2001 but denied coverage because Rochow continued to work and was not disabled until February 2002. Rochow I, 482 F.3d at 864. Rochow again appealed and included a report from Jack Tellerico, an area vice president for Gallagher, which identified the material duties of Rochow’s position with Gallagher and stated that during 2001, Rochow was not able to perform all the material duties of those jobs due to his lack of memory. LINA again denied Rochow’s claims stating, “[s]ince, Mr. Rochow’s long-term disability claim was not filed until after his termination date; his claim was denied because of, ‘not considered actively working at time of disability.’ It appears no additional documentation was provided which would support that Mr. Rochow was actively working when he became disabled.’ ” (Page ID 4056) (Joint App’x) (sic). Rochow appealed the denial a third time. LINA denied his claim for the final time stating Rochow had not presented any medical records to support his inability to work prior to the date he was terminated. On September 17, 2004, Rochow filed a complaint against Cigna Group Insurance, LINA’s parent company, in the United States District Court for the Eastern District of Michigan. Compl., ECF No. 1. The complaint states two claims under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3): one to recover full benefits due to the failure to pay benefits in violation of the terms of the plan and one to remedy the alleged breach of fiduciary duty in ERISA Section 404(a), 29 U.S.C. § 1104(a). Defendant moved for judgment on the record and Plaintiff moved for summary judgment. On June 24, 2005, Judge Tarnow of the United States District Court for the Eastern District of Michigan heard oral arguments on the parties’ motions. At the conclusion of oral argument, Judge Tarnow stated on the record that LINA acted arbitrarily and capriciously in finding Rochow was not disabled while still employed and that Rochow had prevailed. In a one page order which incorporated the reasoning stated on the record, the Court granted Rochow’s motion and denied LINA’s motion. The same day, the district court clerk filed a judgment which purported to dismiss the case and was signed by the district court clerk and Judge Tarnow. LINA appealed the June 24, 2005 Order denying Defendant’s motion and granting Plaintiffs motion. Rochow moved to enforce judgment or require Defendant to post a supersedeas bond pursuant to Federal Rule of Civil Procedure 62(d). Eventually this motion was withdrawn and Defendant deposited a supersedeas bond in the amount of $250,000. On April 3, 2007, a panel of this Court affirmed Judge Tarnow’s Order. Rochow I, 482 F.3d at 866. The Rochow I panel held the record supported the district court’s decision that LINA’s denial of Rochow’s claims was arbitrary and capricious, was not the result of a deliberate, principled reasoning process, and did not appear to have been made “ ‘solely in the interest of the participants and beneficiaries and [] for the exclusive purpose of [ ] providing benefits to participants and their beneficiaries’ as required by ERISA. 29 U.S.C. § 1104(A)(1).” Id. The opinion noted, “there is no ‘logical incompatibility between working full time and being disabled from working full time’ ” and that the policy required only “satisfactory proof of disability, not medical evidence.” Id. (internal citations omitted). On the same day, the clerk for this Court entered judgment stating “the order of the district court is AFFIRMED.” The clerk of this Court issued the mandate on April 26, 2007, and it was filed May 3, 2007. On May 10, 2007, the parties filed a stipulation “to toll the time for all parties and counsel to bring any post remand motions,” and the district court entered an Order tolling the filing deadlines for post-remand motions until further order of the court. On April 3, 2008, the district court referred the remaining issues in dispute to United States Magistrate Judge Whalen. Over the next few months, Judge Whalen held several status conferences. On November 10, 2008, LINA filed a statement of resolved and unresolved issues and Plaintiff filed motions for attorneys’ fees and costs and equitable accounting. LINA’s statement of issues represented that the parties still disputed several issues, including whether Plaintiff was entitled to a disgorgement of profits. Plaintiff also filed a motion seeking an equitable accounting and a request for disgorgement. In that motion, Plaintiff argued Rochow’s estate was entitled to disgorgement of profits because LINA breached its fiduciary duties, and disgorgement was necessary to prevent LINA’s unjust enrichment resulting from profits it earned on the wrongfully retained benefits. Plaintiff supported the motion with the report of his expert, Dr. David C. Crosen. In calculating LINA’s “Return on (Average) Equity” (“ROE”), Dr. Crosen determined LINA used Rochow’s benefits to earn between 11 percent and 39 percent annually and, therefore, made approximately $2.8 million by retaining Rochow’s benefits. In June 2009, the district court granted Plaintiffs motion for an equitable accounting of profits and disgorgement of the same. LINA then moved to strike Croson’s report and to preclude him from testifying as an expert on the ground that his principles and methods were unreliable under Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 [113 S.Ct. 2786, 125 L.Ed.2d 469] (1993). The motion was referred to the magistrate judge, who issued a report recommending that the motion be denied, noting that the matter was being tried to the court rather than a jury and finding that many of LINA’s objections went to the weight of Croson’s opinions, not their admissibility. The district court adopted the magistrate judge’s recommendation over LINA’s objections. After the parties briefed the issue, the district court conducted an evidentiary hearing in November 2011 on the issue of calculation of profits for disgorgement. At the hearing, LINA offered the testimony of its expert, Timothy Holzli, who served as the Chief Accounting Officer for the group insurance division of Cigna. Holzli opined Rochow’s withheld benefits earned LINA profits of $32,732. He arrived at that figure by treating the withheld benefits as though they were earning interest as part of LINA’s investment assets. On cross examination, Holzli acknowledged, however, that the account was not a separate or segregated account. He also conceded that LINA payed [sic] its operating expenses and benefits from the account, and the money in the account formed a basis for LINA to write insurance coverage. Following additional briefing and oral argument, the district court issued its decision on calculation of profits for disgorgement in March 2012. The district court adopted Croson’s ROE metric as the basis for determining the profits LINA gained from the wrongfully withheld funds, and it rejected Holzli’s retained investment margin metric. It did so, in part, based upon its factual finding that the subject money was not placed in a separate investment account, but rather was available for LINA to use for any business purpose. In the last paragraph of its decision, the district court stated: Plaintiff will, within two weeks from this order, submit a final amount to be disgorged by Defendant based upon the Court’s rulings, above. Defendant may then submit a memorandum in response within seven days. This memorandum is limited only to any objections regarding the accuracy of Plaintiffs calculations based on this order, and is not an invitation to relitigate issues already decided by this Court. (Page ID 3576). On May 4, 2012, in its response brief to Plaintiffs final calculation of disgorgement, LINA argued for the first time that permitting disgorgement was outside the scope of the mandate in the first appeal. Nonetheless, on July 24, 2012, the district court ordered disgorgement of $3,797,867.92. The court noted, “Defendant has, in response to a proposed order submitted by Plaintiff, raised objections. To the extent that these objections do not simply repeat arguments already rejected by the Court, and raise new issues in Defendant’s argument concerning the ‘mandate rule,’ they are untimely and will not be considered.” (Page ID 3907). LINA timely appealed. Rochow II, 737 F.3d at 417-20 (alteration in original). On December 6, 2013, a panel of this court affirmed the disgorgement award, holding that disgorgement was properly ordered under ERISA § 502(a)(3) for LINA’s breach of fiduciary duty and that Rochow’s claim for such relief was not an impermissible repackaging of a claim for wrongful denial of benefits under § 502(a)(1)(B). Id. at 423. The Rochow II panel stated that the successful result obtained by Rochow on his claim for wrongful denial of benefits in Rochow I did not preclude additional relief on Rochow’s breach-of-fiduciary-duty claim. Id. at 422-23. LINA’s petition for en banc rehearing was granted on February 19, 2014, vacating the panel’s decision in Rochow II. II There is essentially one issue before us: Is Rochow entitled to recover under both ERISA § 502(a)(1)(B) and § 502(a)(3) for LINA’s arbitrary and capricious denial of long-term disability benefits? As a result of our ruling in Rochow 1, Rochow recovered all benefits that he had been wrongfully denied under § 502(a)(1)(B). We now decide whether Rochow may also recover under § 502(a)(3), which makes “appropriate equitable relief’ available to redress such violations as a breach of fiduciary duty. The district court held that Rochow could recover under both provisions because Rochow pleaded claims for two distinct kinds of relief, namely one claim to recover benefits arbitrarily and capriciously denied by LINA, and one claim for disgorgement of profits realized by LINA as a result of its breach of fiduciary duty consisting of the arbitrary and capricious denial of benefits. Contrary to Rochow’s arguments, Rochow is made whole under § 502(a)(1)(B) through recovery of his disability benefits and attorney’s fees, and potential recovery of prejudgment interest, discussed below. Allowing Rochow to recover disgorged profits under § 502(a)(3), in addition to his recovery under § 502(a)(1)(B), based on the claim that the wrongful denial of benefits also constituted a breach of fiduciary duty, would — absent a showing that the § 502(a)(1)(B) remedy is inadequate — result in an impermissible duplicative recovery, contrary to clear Supreme Coxirt and Sixth Circuit precedent. ERISA has six remedial provisions. The remedial provisions relevant to this action are § 502(a)(1)(B) and § 502(a)(3), which state: (a) Persons empowered to bring a civil action A civil action may be brought— (1) by a participant or beneficiary— (B) to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights under the terms of the plan; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this sub-chapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. 29 U.S.C. § 1132(a). Unfortunately for Rochow, Supreme Court precedent construing the interplay of these provisions dictates a result contrary to that reached by the district court. In Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the Supreme Court allowed a group of plaintiffs, who were unable to bring a claim under § 502(a)(1)(B), to bring suit for breach of fiduciary duty under § 502(a)(3). As the Court explained, § 502(a)(3) “functions as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy.” Id. at 513, 116 S.Ct. 1065. Importantly, however, the Varity Court limited this expansion of ERISA coverage by noting that “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be appropriate.” Id. at 515, 116 S.Ct. 1065 (emphasis added) (internal quotation marks omitted). The Varity Court thus emphasized that ERISA remedies are concerned with the adequacy of relief to redress the claimant’s injury, not the nature of the defendant’s wrongdoing. The district court’s use of equitable relief under § 502(a)(3) as the vehicle for its disgorgement award misses the mark. Instead of focusing on the relief available to make Rochow whole, the award reflects concern that LINA had wrongfully gained something, a consideration beyond the ken of ERISA make-whole remedies. Varity indicates that equitable relief is not ordinarily appropriate where Congress has elsewhere provided adequate means of redress for a claimant’s injury. In other words, a claimant cannot pursue a breach-of-fiduciary-duty claim under § 502(a)(3) based solely on an arbitrary and capricious denial of benefits where the § 502(a)(1)(B) remedy is .adequate to make the claimant whole. Here, there is no showing that the benefits recovered by Rochow, plus the attorney’s fees awarded, plus the prejudgment interest that may be awarded on remand, are inadequate to make Rochow whole. Absent such a showing, there is no trigger for “further equitable relief’ under Varity. If an arbitrary and capricious denial of benefits implicated a breach of fiduciary duty entitling the claimant to disgorgement of the defendant’s profits in addition to recovery of benefits, then equitable relief would be potentially available whenever a benefits denial is held to be arbitrary or capricious. This would be plainly beyond and inconsistent with ERISA’s purpose to make claimants whole. Tellingly, the appellate briefing contains citation to no case that allowed disgorgement of profits under § 502(a)(3) after the claimant recovered for wrongful denial of benefits under § 502(a)(1)(B). Here in the Sixth Circuit we have had occasion to apply Varity’s teaching on the relationship between § 502(a)(1)(B) and § 502(a)(3) in Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir.1998). In Wilkins, Wilkins applied for long-term disability benefits and, after the plan administrator denied his claim, sued for benefits under § 502(a)(1)(B) and for equitable relief under § 502(a)(3) based on breach of fiduciary duty. We denied relief under § 502(a)(3) stating: Because [§ 502(a)(1)(B) ] provides a remedy for Wilkins’s alleged injury that allows him to bring a lawsuit to challenge the Plan Administrator’s denial of benefits to which he believes he is entitled, he does not have a right to a cause of action for breach of fiduciary duty pursuant to [§ 502(a)(3) ]. Id. at 615. Just like the plaintiff in Wilkins, Rochow is not entitled to relief under the catchall provision: such relief is unnecessary and unavailable because he has an adequate remedy under § 502(a)(1)(B). LINA thus contends the district court’s disgorgement award contravenes Wilkins and allows a claimant to improperly repackage a claim for benefits wrongfully denied as a cause of action for breach of fiduciary duty. Rochow insists that Wilkins provided a way to ensure only that claimants do not attempt an “end run” around ERISA’s limitations by repackaging an unsuccessful claim for benefits as a claim for “appropriate relief’ based on an alleged breach of fiduciary duty. Rochow claims that Wilkins bars relief sought under § 502(a)(3) only if that same type of relief could have been obtained under § 502(a)(1)(B). Because he purportedly seeks a type of relief under § 502(a)(3) (i.e., disgorgement of LINA’s profits) different from and in addition to what is available to him under § 502(a)(1)(B), Rochow contends that Wilkins does not preclude his claim for this additional remedy to obtain complete relief. Rochow mischaracterizes Wilkins. A claimant can pursue a breach-of-fidueiary-duty claim under § 502(a)(3), irrespective of the degree of success obtained on a claim for recovery of benefits under § 502(a)(1)(B), only where the breach of fiduciary duty claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under § 502(a)(1)(B) is otherwise shown to be inadequate. See Gore v. El Paso Energy Corp. Long Term Disability Plan, 477 F.3d 833, 840-42 (6th Cir.2007). Wilkins simply affords no support for the argument that § 502(a)(3) equitable relief may be appropriate to further redress a wrongful denial of benefits adequately remediable under § 502(a)(1)(B). Rather, Wilkins makes clear that the availability of relief under § 502(a)(3) is contingent on a showing that the claimant could not avail himself or herself of an adequate remedy pursuant to § 502(a)(1)(B). Wilkins, 150 F.3d at 615. Rochow contends there is no legitimate concern about impermissible claim “repackaging” when a benefits-claimant prevails and seeks “other appropriate equitable relief.” We disagree. Impermissible repackaging is implicated whenever, in addition to the particular adequate remedy provided by Congress, a duplicative or redundant remedy is pursued to redress the same injury. Because Rochow was able to avail himself of an adequate remedy for LINA’s wrongful denial of benefits pursuant to § 502(a)(1)(B), he cannot obtain additional relief for that same injury under § 502(a)(3). In Hill v. Blue Cross and Blue Shield of Michigan, 409 F.3d 710 (6th Cir.2005), we further clarified the interplay of § 502(a)(1)(B) and § 502(a)(3). In Hill, the plaintiffs brought a class-action lawsuit seeking individual relief for wrongfully denied benefits under § 502(a)(1)(B) and for plan-wide injunctive relief under § 502(a)(3) based upon the defendant’s alleged breach of its fiduciary duty. The district court dismissed the § 502(a)(3) claim, finding that “these claims were merely repackaged claims for individual benefits and did not constitute actual fiduciary-duty claims.” Id. at 717. We reversed. Whereas Wilkins involved the rejection of fiduciary-duty claims on the basis that they were actually disguised individual-benefits claims, in Hill the need for relief under the catchall provision arose out of a defect in plan-wide claim handling procedures, implicating a different injury. “The award of benefits to a particular [plaintiff] based on an improperly denied claim for emergency-medical-treatment expenses will not change the fact that [defendant] is using an allegedly improper methodology for handling ... claims.” Id. at 718. To remedy this separate and distinct injury, we permitted injunctive relief under § 502(a)(3), not an additional award of monetary damages for the same denial of benefits. Thus, Hill recognized an exception to. Varity and Wilkins where “[o]nly injunctive relief of the type available under [§ 502(a)(3) would] provide the complete relief sought by Plaintiffs by requiring [Defendant] to alter the manner in which it administers all the Program’s claims____” Id. at 718 (emphasis added). In Hill, as in Varity, the primary purpose of ERISA was given effect — ensuring availability of an adequate remedy to make the plaintiffs whole. The present case does not fall within the Hill exception to Varity and Wilkins. Hill distinguished between the denial of individual claims and plan-wide mishandling of claims as two distinct injuries. Section 502(a)(1)(B) provided relief for the denial of the Hill plaintiffs’ individual benefits, and § 502(a)(3) remedied the systemic plan-wide problems that posed a potential for future injury. Contrast Hill with the present case, where the only asserted injury to Rochow is the denial of benefits and withholding of the same benefits. These are not distinct injuries; they are one and the same injury. Because Rochow has an adequate and effective remedy for this injury under § 502(a)(1)(B), he is not also entitled to relief under § 502(a)(3). Rochow continues to claim that the disgorgement award (“equitable accounting”) remedies an injury entirely distinct from the injury remedied by recovery of his benefits, and that he has therefore suffered two distinct injuries. Rochow contends that he suffered his first injury when LINA improperly denied his benefits, and he suffered his second “injury” when LINA used the funds it owed him to generate $3.7 million in profits for its own account without remitting the profits to him. Yet, in an action for wrongful denial of benefits, like this one, the denial of benefits necessarily results in a continued withholding of benefits until the denial is either finalized or rectified. The denial is the injury and the withholding is simply ancillary thereto, the continuing effect of the same denial. Together they comprise a single injury. By withholding payment of benefits until the denial was either finalized or rectified, LINA did not violate a second, distinct duty owed to Rochow and did not inflict a second injury. Nor can it be said that Rochow suffered a second injury, or that his injury was exacerbated, as a result of any gain realized by LINA before it paid the wrongfully withheld benefits. Rochow’s loss remained exactly the same irrespective of the use made by LINA of the withheld benefits. Despite Rochow’s creative use of semantics, the reality remains clear: Rochow suffered one injury, the denial of his benefits. And neither Rochow nor the dissent has succeeded in identifying any way in which the remedy available under § 502(a)(1)(B) — i.e., recovery of benefits and attorney’s fees and, potentially, prejudgment interest — is inadequate to make Rochow whole. The remedy Congress chose to make available under § 502(a)(1)(B) having thus not been shown to be inadequate, it follows that permitting Rochow to obtain further equitable relief for the same injury under § 502(a)(3) would contravene the scheme established by Congress as well as the Supreme Court’s teaching in Varity. Rochow cites two cases to support his claim that he is entitled to equitable relief under § 502(a)(3). He contends that Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406 (3d Cir.2013), stands for the proposition that disgorgement of profits may be an appropriate remedy for breach of fiduciary duty even in the absence of a showing of financial loss by the claimant. The discussion in Edmonson on which Rochow relies is addressed solely to the question whether an ERISA claimant had standing to bring a claim for disgorgement of profits notwithstanding a lack of showing of financial loss. The court answered this question in the affirmative, based on trust law principles. Id. at 415-17. However, the court ultimately denied relief for lack of a showing of a breach of fiduciary duty and lack of a showing that any such breach proximately caused injury to the claimant. Id. at 423-26. There was no claim in Edmonson for benefits wrongfully denied, but only a stand-alone claim for breach of fiduciary duty. Hence, the Edmonson court did not have occasion to address the interplay of § 502(a)(1)(B) and § 502(a)(3) or to consider whether the availability of other remedies under ERISA rendered equitable relief under § 502(a)(3) inappropriate. Edmonson’s observations about standing, viewed in context,' are of limited significance to the issue before us. Rochow also relies on CIGNA Corp. v. Amara, — U.S. -, 131 S.Ct. 1866, 1881, 179 L.Ed.2d 843 (2011), to support his argument that the failure to show a second, distinct injury is not fatal to his disgorgement award under § 502(a)(3). In Amara, he contends, the Court recognized that in an action for equitable relief under § 502(a)(3), the requisite “actual harm” may consist simply of “the loss of a right protected by ERISA or its trust-law antecedents.” Id. at 1881. Again, the argument misses the point. There is no dispute that “appropriate equitable relief” may be obtained under § 502(a)(3) to redress an ERISA violation by a plan fiduciary. The point, as detailed above, is that Rochow did not suffer an injury remediable under § 502(a)(3) in this case. Rochow suffered the wrongful denial of his benefits, an injury adequately remedied under § 502(a)(1)(B). Despite Rochow’s insistence to the contrary, his breach-of-fiduciary-duty claim for disgorgement of profits is nothing but a repackaged claim for benefits wrongfully denied, a claim for which, per Varity, additional equitable relief is not appropriate because not necessary to make Rochow whole. Rochow’s reliance on Amara is to no avail. Rochow insists that Varity and Amara, read together, indicate that a plaintiff may obtain relief under both § 502(a)(1)(B) and § 502(a)(3) if “other appropriate equitable relief’ is necessary to make the plaintiff whole for injury caused by the wrongful denial of benefits. He argues that Varity made clear that “other appropriate equitable relief’ may be available under § 502(a)(3) when a party cannot obtain relief under § 502(a)(1)(B). Further, Amara identified a range of equitable remedies potentially available under § 502(a)(3), including surcharge. Reading Varity and Amara together thus supports the notion, Rochow contends, that disgorgement of profits is available in the instant case because recovery of benefits under § 502(a)(1)(B) did not make him whole for the injury caused by LINA’s breach of fiduciary duty. Rochow’s reading misses a logical step: “other appropriate equitable relief’ is not necessary to make him whole. While Varity certainly acknowledges the possibility of equitable relief, and Amara outlines the scope of potential equitable relief, when appropriate, the Supreme Court has never stated that recovery under both § 502(a)(3) and § 502(a)(1)(B) may be warranted for a single injury. Rochow claims two injuries — the arbitrary and capricious denial of benefits, and the breach of fiduciary duty consisting of the continued withholding of the wrongfully denied benefits. These “injuries,” however, as explained above, are indistinguishable. The Court in Varity made clear that equitable relief is not ordinarily appropriate where Congress has provided adequate relief for a claimant’s injury. The purpose behind ERISA continues to be remedial, and Rochow’s injury was remedied when he was awarded the wrongfully denied benefits and attorney’s fees — as potentially supplemented by award of prejudgment interest, still to be determined. Despite Rochow’s attempts to obtain equitable relief by repackaging the wrongful denial of benefits claim as a breach-of-fiduciary-duty claim, there is but one remediable injury and it is properly and adequately remedied under § 502(a)(1)(B). Rochow and our dissenting colleagues wholly fail to explain hoiv his § 502(a)(1)(B) remedies are inadequate to remedy his injury. Rochow’s final argument is that even if the disgorgement relief is not available under § 502(a)(3), he is entitled to prejudgment interest under § 502(a)(1)(B), a matter the district court failed to address. We acknowledge that prejudgment interest may be awarded in an appropriate case under ERISA. “Though ERISA does not address the propriety of awarding prejudgment interest, prejudgment interest may be awarded in the discretion of the district court. Awards of prejudgment interest are compensatory, not punitive, and a finding of wrongdoing by the defendant is not a prerequisite to such an award.” Tiemeyer v. Cmty. Mut. Ins. Co., 8 F.3d 1094, 1103 (6th Cir.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1371, 128 L.Ed.2d 48 (1993) (internal quotations and citations omitted); see also Wells v. U.S. Steel, 76 F.3d 731, 737 (6th Cir.1996) (holding that district court did not abuse its discretion in awarding prejudgment interest when pension fund wrongfully withheld benefits). Prejudgment interest cannot be awarded, however, at a rate so high that the award amounts to punitive damages: Although prejudgment interest is typically not punitive, an excessive prejudgment interest rate would overcompensate an ERISA plaintiff, thereby transforming the award of prejudgment interest from a compensatory damage award to a punitive one in contravention of ERISA’s remedial goal of simply placing the plaintiff in the position he or she would have occupied but for the defendant’s wrongdoing. Ford v. Uniroyal Pension Plan, 154 F.3d 613, 616 (6th Cir.1998). An interest award should “simply compensate a beneficiary for the lost interest value of money wrongfully withheld from him or her.” Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir.2000) (quoting Ford, 154 F.3d at 618). An excessive prejudgment interest rate would “contravene ERISA’s remedial goal of simply placing the plaintiff in the position he or she would have occupied but for the defendant’s wrongdoing.” Schumacher v. AK Steel Corp. Retirement Accumulation Pension Plan, 711 F.3d 675, 686 (6th Cir.2013). Conversely, an exceedingly low award would fail to make the plaintiff whole. Id. Rochow’s request for prejudgment interest appears to be a remedy the district court could have granted, though not at an excessive rate. In his initial complaint, Rochow requested various forms of relief, including an “[ojrder compelling Defendant to pay Plaintiff forthwith the full amount of employee benefits due him and to continue such payments for a period set forth in the Plan, including interest on all unpaid benefits.” R. 1, Compl. at 6, Page ID 6. Rochow also requested “[rjeasonable attorney fees and costs” and “[s]uch other relief as may be just and appropriate.” Id. When the case was remanded to the district court following Rochow I, the parties treated prejudgment interest as a live issue, fully briefing the issue in connection with the proceedings on equitable remedies. Yet when disgorgement of profits was ordered, the question of prejudgment interest was given no further consideration. Rochow thus prayed for such relief in his complaint and has preserved his request throughout the proceedings. The issue having been thus far been pretermitted through no fault of the parties, we remand the case once more to the district court for fresh consideration of Rochow’s entitlement to prejudgment interest. Ill For the reasons stated above, we VACATE the district court’s' disgorgement award under § 502(a)(3) and REMAND the case to the district court for consideration of whether and, if so, to what extent, award of prejudgment interest is warranted under § 502(a)(1)(B) to make Rochow whole. ■ . Rochow died on October 16, 2008, and the representative of his estate, Patrick Rochow, was substituted as plaintiff in this action. Later, Todd R. Rochow and John D. Rochow were substituted as administrators of Daniel Rochow’s estate and as plaintiffs in this case. For consistency, this opinion refers to all litigation actions taken on behalf of Rochow’s estate as actions by [Rochow]. . The district court’s decision is reported at Rochow v. LINA, 851 F.Supp.2d 1090 (E.D.Mich.2012). . We assume, for present purposes, that the district court made a finding that LINA breached a fiduciary duty owed to Rochow. However, the district court's various orders are devoid of any such express finding. When the case was before the district court on the issue of whether the plan administrator arbitrarily and capriciously denied benefits, the court ruled from the bench in granting summary judgment for Rochow. The transcript of the hearing reveals no express finding of a breach of fiduciary duty. R. 19, Hearing Tr. at 24, Page ID 4095. Further, the one-page order that memorialized the district court's ruling includes the finding simply that "the denial of Plaintiff's claim was arbitrary and capricious.” R. 16, Order at 1, Page ID 105. There is no mention of a breach of fiduciary duty. The judgment order that issued the same day, apart from granting Rochow's claim for benefits wrongfully denied, "dismissed” the case. That is, the district court appeared to have dismissed the breach-of-fiduciary-duty claim as a claim pled in the alternative and rendered moot by Rochow’s success on the principal claim. R. 17, Judgment, Page ID 106. In Rochow I, similarly, we did not address any claim for breach of fiduciary duty, or even use the terms "fiduciary,” "duty,” or "breach” in the opinion. Admittedly, one could infer from Rochow I that LINA’s fiduciary duty was alluded to in the observation that LINA's decision did not appear to have been made " 'solely in the interest of the participants and beneficiaries and [] for the exclusive purpose of [] providing benefits to participants and their beneficiaries’ as required by ERISA. 29 U.S.C. § 1104(a)(1).” See Rochow I, 482 F.3d at 866. However, no ruling on a breach-of-fiduciary-duty claim was before the court and the opinion contains no analysis of the point. After the district court's initial decision was affirmed and the district court took up the motion for equitable accounting, however, the court rejected LINA's argument that it had not made the requisite finding of a breach of fiduciary duty to trigger the availability of equitable relief. Citing Varity, the court stated, “an arbitrary or capricious denial of benefits can count as a breach of fiduciary duty.” R. 67, Order at 4, Page ID 935. Further, when the district court set the method of accounting for the disgorgement award, it stated "it has already been determined that Defendant owed Plaintiff a duty of loyalty and breached this duty through its arbitrary and capricious denial of disability benefits to Plaintiff.” R. 113, Order at 2, Page ID 3562. The district court thus treated its finding of an arbitrary and capricious denial of benefits, in and of itself, as a breach of fiduciary duty. The district court never identified any other grounds for finding a breach of a fiduciary duty. In the district court’s ruling, it was one and the same injury that made out two distinct ERISA violations and justified both remedies. Though we are aware of no persuasive authority for the proposition that a wrongful denial of benefits in and of itself constitutes a breach of fiduciary duty remediable under both § 502(a)(1)(B) and § 502(a)(3), we assume, without deciding, that the district court permissibly found a breach of fiduciary duty based on the administrator's arbitrary and capricious denial of benefits. The dissenting opinion suggests other ways in which LINA might be deemed to have breached a fiduciary duty, but the district court’s judgment now under review clearly includes no such ruling. Careful review of the district court rulings cited in the dissent discloses that the asserted findings of other instances of misconduct by LINA were not identified by the district court as grounds for holding that LINA breached its fiduciary duty. . The statements made by the Supreme Court in Amara regarding the equitable remedies available to courts under § 502(a)(3) are merely dicta. The sole question before the Court in Amara was whether the district court applied the correct legal standard in determining whether CIGNA's failure to inform its employees of changes to the benefits plan caused its employees sufficient injury to warrant legal relief. Amara, 131 S.Ct. at 1871. The Court also discussed whether § 502(a)(1)(B) authorized the relief the district court awarded. In finding that § 502(a)(1)(B) was not the appropriate remedy, the Court went on to acknowledge that § 502(a)(3) authorizes forms of relief similar .to § 502(a)(1)(B). However, the Court did not decide what remedies were available, and did not conclusively decide which remedy was appropriate in the case before it. Id. at 1880.
JULIA SMITH GIBBONS, Circuit Judge, concurring. If one accepts the rather charitable assumptions made in footnote 1 of the majority opinion, its reasoning is entirely correct. For that reason I concur in it. I write separately to note, however, that if one does not make those assumptions, the district court’s disgorgement order cannot stand for purely procedural reasons. Rochow’s complaint stated two claims: He alleged that LINA wrongfully denied him benefits under 29 U.S.C. § 1132(a)(1)(B), and he alleged that in doing so, LINA breached its fiduciary duties under 29 U.S.C. § 1104(a). The second claim was styled as one arising under 29 U.S.C. § 1132(a)(3). In his prayer for relief, in addition to seeking an order compelling LINA to pay him the benefits he believed he was due, Rochow sought disgorgement of any profits that LINA had obtained as a result of its conduct. The parties filed cross-motions for summary judgment. LINA requested that the district court affirm its denial of Rochow’s claim for benefits. Rochow asserted only that LINA erroneously denied him benefits pursuant to § 1132(a)(1)(B). He styled his summary judgment motion as a motion for partial summary judgment, did not argue his breach-of-fiduciary-duty claim under § 1104(a) and § 1132(a)(3), and did not mention disgorgement. When the district court issued an order memorializing its from-the-bench grant of Rochow’s motion, it granted summary judgment in full and made no mention of Rochow’s second claim. Were there any doubt that Rochow’s § 1132(a)(3) claim no longer remained in the suit, the district court’s judgment ordered the case “DISMISSED.” This was a final judgment, conferring upon the Rochow I panel appellate jurisdiction pursuant to 28 U.S.C. § 1291. There was no other basis for appellate jurisdiction, as the district court did not issue an injunction triggering the application of 28 U.S.C. § 1292(a), nor did it certify the case for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Rochow raised no issue on appeal regarding the district court’s failure to address his breach of fiduciary duty claim. The Rochow I panel affirmed the district court’s grant of Rochow’s motion for summary judgment, thus ending the case. The district court had ordered the case dismissed. A panel of this court had affirmed. And the panel did not remand the case to the district court. Pursuant to the parties’ stipulation, however, the district court agreed to accept “post-remand” motions. But the case had never been remanded, and, of course, the parties could not stipulate to the district court’s retention of jurisdiction. Still, the district court permitted Rochow to resuscitate his abandoned disgorgement claim, after Rochow moved for the court “to supervise the equitable accounting granted with summary judgment.” This motion was highly problematic. For starters, the district court never granted equitable accounting as part of its summary judgment order. And to the extent Rochow mentioned “accounting” in his motion for summary judgment, he sought an accounting of the amount of benefits due so that he could ensure “that his benefits [we]re being paid in the proper amount,” not equitable accounting tantamount to disgorgement. LINA is not without fault either. It spent years litigating the case without bringing these procedural defects to the district court’s attention. When the district court finally granted Rochow’s motion for equitable accounting and ordered LINA to disgorge profits, it violated the mandate rule. The mandate rule is a multifaceted “rule” governing the relationship between the courts of appeals and the district courts. Its fundamental principle is straightforward: A district court may not contravene an appellate court’s mandate. United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999). For instance, if a case is remanded, the mandate rule “forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. O’Dell, 320 F.3d 674, 679 (6th Cir.2003) (internal quotation marks omitted). And “where an issue was ripe for review at the time of an initial appeal but was nonetheless foregone, the mandate rule generally prohibits the district court from reopening the issue on remand unless the mandate can reasonably be understood as permitting it to do so.” Id. Here, the Rochow I panel did not remand the case to the district court, so any “post-remand” litigation was contrary to this court’s mandate. See United States v. Hamilton, 440 F.3d 693, 697-98 (5th Cir.2006); Green v. Nevers, 196 F.3d 627, 632 (6th Cir.1999). Even if Rochow I could be read as remanding the case to the district court for the issuance of a remedy, a district court violates the mandate rule when it orders an additional remedy beyond that contemplated by the appellate panel’s opinion. See Briggs v. Pa. R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); Schake v. Colt Indus. Operating Corp. Severance Plan for Salaried Emps., 960 F.2d 1187, 1191 (3d Cir.1992); Stiller v. Squeez-A-Purse Corp., 296 F.2d 504, 506 (6th Cir.1961). Since Rochow had abandoned his claim for disgorgement under § 1132(a)(3) by not seeking its resolution in the district court after that court treated a motion for “partial” summary judgment as one warranting summary judgment on all issues and by not raising the district court’s failure to resolve the breach of fiduciary duty claim on appeal, the district court violated the mandate rule when it ordered disgorgement. Our mandate issued on May 3, 2007. Over seven years later this case is still being litigated. The majority’s charitable view of the ease’s procedural history allows that unfortunate history to continue with some legitimacy. In short, while I agree with the majority’s analysis if one accepts its accommodations in footnote 1 to reposition the case for en banc review, I am unable to refrain from presenting another take on the history of this case, one which would preclude the district court’s jurisdiction to order any further relief, except the prejudgment interest directed by the majority opinion. . Among the other relief he sought, Rochow requested "[a] full and accurate accounting by Defendant of all computations for Plaintiff's disability benefits in sufficient detail so that Plaintiff may ascertain that his benefits are being paid in the proper amount.”
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I write separately because I do not entirely agree or disagree with either the majority or dissenting opinion. I would vacate the judgment on the basis that the order of disgorgement is not adequately supported. I would, however, permit consideration of a refashioned disgorgement remedy on remand if properly supported. There is less light between the two opinions than might appear on the surface. The majority understands Roehow’s fiduciary-duty claim as a repackaging of his benefits-denial claim, for which it believes Rochow obtained adequate relief as a result of Rochow I, 482 F.3d 860 (6th Cir.2007), and a potential award of prejudgment interest on remand. Operating under this conclusion, the majority holds the district court erred when it ordered LINA to disgorge its profits because ERISA, in its view, precludes “a duplicative or redundant remedy ... to redress the same injury.” Maj. Op. 373. The majority opinion does not, however, appear to foreclose disgorgement as an appropriate equitable remedy under § 502(a)(3) in some cases. The dissent too interprets ERISA to authorize equitable relief, including disgorgement of profits, to remedy distinct injuries, such as a plan administrator’s breach of a fiduciary duty owed to plan participants and beneficiaries. Thus, all appear to agree disgorgement of profits is a potential remedy under ERISA. The two opinions part on whether Roehow’s fiduciary-duty claim is merely a repackaging of his benefits-denial claim. This, I believe, is a false dichotomy that imposes a requirement not found in ERISA. I do not agree that the dispositive inquiry governing the availability of equitable relief under § 502(a)(3) is whether the claim is a repackaging of a benefits-denial claim. Rather, the governing inquiry under ERISA is whether other equitable relief is appropriate under the circumstances, and the extent to which the equitable disgorgement claim duplicates the benefits-denial claim is one factor to be considered in making that determination. The statutory framework that authorizes “other appropriate equitable relief’ confides the determination whether and what equitable relief is appropriate to judges, who presumably are well equipped to determine when a particular set of circumstances warrants additional relief by focusing on ERISA’s objectives. This understanding of and respect for the discretionary role of the courts in evaluating claims for equitable relief is consistent with the Supreme Court’s statements in Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), which contemplate courts’ sound exercise of their discretion in fashioning appropriate equitable relief: We should expect that courts, in fashioning “appropriate” equitable relief, will keep in mind the special nature and purpose of employee benefit plans, and will respect the policy choices reflected in the inclusion of certain remedies and the exclusion of others. Thus, we should expect that where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be “appropriate.” Id. at 515, 116 S.Ct. 1065 (citations and internal quotation marks omitted). Varity does not require a showing of a “separate and distinct” injury. Maj. Op. 372; cf. id. at 371 (recognizing that Varity “emphasized that ERISA remedies are concerned with the adequacy of relief to redress the claimant’s injury”). Rather, it speaks of injury for which adequate relief has not been elsewhere provided, uses the qualifying terms “likely” and “normally,” and ultimately focuses on the governing word “appropriate.” We should, therefore, address whether additional equitable relief is appropriate here, even discuss the types of considerations that should guide the determinations whether and what equitable relief is appropriate, but we should not preemptively disallow equitable remedies in particular circumstances where ERISA has not done so. Nevertheless, the majority fashions a bifurcated standard, holding that a breach-of-fiduciary-duty claim is actionable under § 502(a)(3) where the claim is based on “an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under § 502(a)(1)(B) is otherwise shown to be inadequate.” Id. at 372 (second emphasis added). I find this standard both confusing and unnecessary. If the remedy afforded by Congress under § 502(a)(1)(B) is adequate, it should not matter that the beneficiary suffered an injury separate and distinct from the denial of benefits; I doubt the majority intends otherwise. Conversely, if the remedy afforded by Congress under § 502(a)(1)(B) is inadequate, it also should not matter whether the claimant suffered distinct injuries. Ultimately the question must rest on the majority’s second inquiry — whether the “remedy afforded by Congress under § 502(a)(1)(B) is otherwise shown to be inadequate.” I have no doubt that whether the beneficiary suffered multiple injuries is a factor that is relevant to the ultimate question whether § 502(a)(1)(B) provides adequate relief. But the majority’s focus on whether a fiduciary’s breach of its duties in denying benefits and then withholding them are “separate and distinct” injuries or a single injury seems irrelevant in light of its conclusion that Rochow failed to show that the relief already received together with the relief that might be awarded on remand is inadequate. The majority implicitly acknowledges the dispositive inquiry with its conclusion that Rochow made “no showing that the benefits [he] recovered ..., plus the attorney’s fees awarded, plus the prejudgment interest that may be awarded on remand, are inadequate to make [him] whole.” Id. at 371-72. Further undermining the separate-and-distinct-injury requirement for relief under § 502(a)(3) is the majority’s acknowledgement that a plaintiff who recovers benefits under § 502(a)(1)(B) can also obtain “other appropriate equitable relief’ under § 502(a)(3) in the form of prejudgment interest, an equitable remedy. The majority allows an interest award even as it asserts that Rochow suffered only one in- jury that was “adequately remedied under § 502(a)(1)(B),” and that he “did not suffer [a separate and distinct] injury remediable under § 502(a)(3).” Id. at 374-75. Clearly, Rochow was not made whole by the award of benefits and attorney’s fees. Nearly seven years elapsed between the time he sought benefits and when LINA finally paid all benefits that were due. Further equitable relief is necessary to compensate Rochow for LINA’s extraordinary delay in paying benefits. The majority concedes as much in its remand order directing the district court to consider the award of interest, although it leaves the ultimate determination to the district court. But, having acknowledged the possibility that delay in payment might require further appropriate equitable relief, the majority does not explain why one equitable remedy (interest) may be appropriate in a benefits-denial case, but another equitable remedy (disgorgement) is never appropriate in such a case, except to say that there is only one injury. There is a valid distinction between the two equitable remedies that has nothing to do with whether there is an injury separate and distinct from the denial of benefits: Interest is generally compensatory, while disgorgement is generally geared toward deterring future misconduct. See Drennan v. Gen. Motors Corp., 977 F.2d 246, 253 (6th Cir.1992); The Law of Trusts and Trustees § 484. I share the majority’s concern that Congress did not intend to turn the routine denial of benefits into the basis for a recovery of benefits and also an array of equitable relief, but I would direct that concern to the question whether, in light of the historic distinction between the two equitable remedies, disgorgement constitutes “other appropriate equitable relief’ under the facts of a particular case, and would refrain from announcing what appears to be a blanket rule that bars equitable relief in a benefits-denial case. Turning to the instant case, the district court did not find that disgorgement of profits is necessary to make Rochow whole, or that Rochow could have earned the same rate of return had he been paid his benefits on time. Rather, the court’s primary basis for awarding further equitable relief was LINA’s unjust enrichment, Order, R. 67 at 5-6, and the disgorgement of profits was largely based on the finding that LINA did not segregate Rochow’s wrongfully withheld benefits and instead left the amount in its general fund to be used for general operating expenses, Rochow v. Life Ins. Co. of N. Am., 851 F.Supp.2d 1090, 1097-98 (E.D.Mich.2012). The district court reasoned that LINA earned a rate of return on Rochow’s benefits that it would not have earned had it segregated the funds in an investment account, and that because Rochow’s money was inseparable from LINA’s money, he is entitled to a percentage of LINA’s return on its investments during this period. However, the district court did not find that either the Plan or ERISA required that Rochow’s disputed benefits be segregated pending resolution of the claim. Nor is it apparent on what basis the dissent concludes that LINA engaged in prohibited self-dealing under 29 U.S.C. § 1106(b). There has been no finding that Roehow’s disputed benefits constituted “plan assets,” or that LINA’s actions in failing to segregate the disputed benefits and leaving them in the general fund constituted self-dealing under ERISA. Without such findings or further explanation, I cannot agree that disgorgement is justified based only on the maxim emphasized by the district court — “if you take my money and make money with it, your profit belongs to me.” Rochow, 851 F.Supp.2d at 1094 (internal quotation marks omitted). In the absence of such justifications, disgorgement as an equitable remedy in a denial-of-benefits case should be premised on a finding that the decision to deny benefits was not only arbitrary and capricious but also based on impermissible considerations that call for an equitable judicial response geared toward deterring similar decision making in the future, as, for example, where the denial of benefits is not the product of particular claims evaluators’ misguided evaluations, but rather, an organizational policy to delay paying valid claims for as long as possible; or where repeated wrongful denials lead to the conclusion that disgorgement is necessary to assure proper claims processing in the future. See Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 718 (6th Cir.2005); Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999, 1008 (8th Cir.2004) (quoting 1 Dobbs § 4.3(5), at 611 n.16); Restatement (Third) of Restitution and Unjust Enrichment § 51 (2011). Further, even when these types of considerations support disgorgement, the court should consider the effect of disgorgement on innocent participants in the plan and tailor the remedy accordingly. To be clear, a finding that disgorgement is an appropriate remedy in such circumstances would be based on the totality of the circumstances of the denial, as well as the consequences of disgorgement, and would not depend on a finding of a separate and independent injury, which, although relevant, may or may not be present. In .sum, to the extent the majority’s bifurcated rule identifies two circumstances or considerations that might justify an award of additional equitable relief, I agree that those circumstances or considerations are relevant; however, to the extent the majority intends to announce a rule that either dictates an award of additional equitable relief where either of those circumstances is present or prohibits such an award where neither is present, I disagree. Ultimately, the governing inquiry is whether additional equitable relief is appropriate, a decision normally left to the sound discretion of the district courts, to be exercised according to the totality of the circumstances surrounding the denial, and subject to review for abuse of discretion. See Tiemeyer v. Cmty. Mut. Ins. Co., 8 F.3d 1094, 1103 (6th Cir.1993). Addressing that question, I conclude that the record as it stands does not support the district court’s exercise of its discretion in awarding the disgorgement ordered here. Thus, I agree that the order should be vacated. I would, however, permit the district court to address on remand the concerns raised here and in the majority opinion, and would not foreclose a disgorgement remedy as “other appropriate equitable relief’ if properly supported on remand. . This is not to say that such a remedy would be appropriate, only that it might be and that I would not foreclose it at this point. . The circumstances might, however, support a' finding that interest at the actual market rates during the period of delay would be inadequate compensation for the delay.
STRANCH, Circuit Judge, dissenting. The issue before us arises under a remedial statute, fashioned on the precepts of equity, which empowers a plan participant to bring a civil action to “recover benefits due” and “to obtain other appropriate equitable relief.” 29 U.S.C. §§ 1132(a)(1)(B) & (a)(3). In the parlance of ERISA and equity jurisprudence, the remedy is to “make whole” the injured. Here, Rochow — a company president whose mental capacity was destroyed over time by a brain infection — sought disability benefits from LINA starting in 2002. Over five years later, in October 2007, he received his first benefit payment (a lump sum of over $300,000), and monthly benefits began. In June 2009, almost seven years after the disability date and eight months after Rochow died in October 2008, LINA paid a second lump sum for underpayment of benefits approximating $420,000. Rochow sought, and the district court awarded, a make-whole remedy for two ERISA violations committed by LINA, failure to pay benefits due and breach of fiduciary duty. Based on evidence presented, the district court found that LINA engaged in deliberate and willful wrongful acts, created non-existent insurance policy requirements, concocted a knowingly false rationale for its second denial of benefits, closed the administrative record without medical input or evidence,