Orrin T. Skretvedt v. E.i. Dupont De Nemours, a Delaware corporation

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-3620 & 02-4283
ORRIN T. SKRETVEDT,
Appellant
v.
E.I. DUPONT DE NEMOURS, a
Delaware corporation; PENSION AND
RETIREMENT PLAN; HOSPITAL
AND MEDICAL-SURGICAL PLAN;
DENTAL ASSISTANCE PLAN;
NONCONTRIBUTORY GROUP LIFE
INSURANCE PLAN;
CONTRIBUTORY GROUP LIFE
INSURANCE PLAN; TOTAL AND
PERMANENT
DISABILITY INCOME PLAN;
SAVINGS INVESTMENT PLAN;
TAX REFORM
ACT STOCK OWNERSHIP PLAN;
SHORT TERM DISABILITY PLAN
On Appeal from the
United States District Court
for the District of Delaware
D.C. Civil Action No. 98-cv-00061
(Honorable Mary P. Thynge)
Argued September 16, 2003
Before: ALITO, AMBRO and
CHERTOFF, Circuit Judges
(Opinion filed: June 16, 2004)
John M. Stull, Esquire (Argued)
1300 North Market Street
P.O. Box 1947
Wilmington, DE 19899
Attorney for Appellant
Raymond M. Ripple, Esquire (Argued)
Donna L. Goodman, Esquire
Suite D-7012
E.I. DuPont de Nemours & Company
Legal Department
1007 Market Street
Wilmington, DE 19898
Attorneys for Appellee
OPINION OF THE COURT
AM BRO, Circuit Judge
Orrin T. Skretvedt seeks, inter alia,
interest on the delayed payment of benefits
due him under two plans governed by the
Employee Retirement Income Security Act
of 1974 (“ERISA”). Skretvedt received
benefits from one of those plans pursuant
to a court judgment, while his employer
voluntarily paid him benefits under the
other plan after that judgment was entered.
The Magistrate Judge denied Skretvedt’s
request for interest with respect to the
delayed payment of benefits under both
plans in light of the Supreme Court’s

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decision in Great-West Life & Annuity
Insurance Co. v. Knudson, 534 U.S. 204
(2002).
Based on Anthuis v. Colt Industries
Operating Corp., 971 F.2d 999 (3d Cir.
1992), we determine that an award of
prejudgment interest on a judgment
awarding benefits pursuant to ERISA
§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B),
follows the Supreme Court’s decisions in
Board of Commissioners of Jackson
County, Kansas v. United States, 308 U.S.
343, 352 (1939), and Rodgers v. United
States, 332 U.S. 371, 373 (1947),
providing that where “[t]he issue is
uncontrolled by any formal expression of
the will of Congress,” Board of
Commissioners, 308 U.S. at 349, “interest
is not recovered according to a rigid theory
of compensation for money withheld, but
is given in response to considerations of
fairness. It is denied when its exaction
would be inequitable.” Id. at 352.
Accordingly, we conclude that Great-
West, construing the scope of “appropriate
equitable relief” available to a litigant
under ERISA § 502(a)(3)(B), 29 U.S.C.
§ 1132(a)(3)(B), does not apply to a
request for prejudgment interest on a
j u d g m e n t a w a r d e d p u r s u a n t t o
§ 502(a)(1)(B).
With respect to Skretvedt’s request
for interest on the delayed payment of a
second type of benefits that his employer
voluntarily paid after much delay, the
Magistrate Judge acknowledged that our
prior holding in Fotta v. Trustees of the
United Mine Workers of America, 165
F.3d 209 (3d Cir. 1998) (“Fotta I”), would
a l l o w a c la im a n t , u n d er s o m e
circumstances, to seek interest on the
delayed payment of ERISA benefits as
“appropriate equitable relief” under §
502(a)(3)(B). However, the Magistrate
Judge concluded that such a claim for
“interest” would be one seeking “money
damages,” which Great-West has termed
“the classic form of legal relief,” Great-
West, 534 U.S. at 210 (emphasis in
original; internal quotation marks and
citations omitted), that is not available as
“appropriate equitable relief” under
§ 502(a)(3)(B).
While we agree that the Supreme
Court has bridled the scope of relief
available under § 502(a)(3)(B), we are
convinced that, looking more specifically
at the Court’s requirement that the relief
requested under § 502(a)(3)(B) have been
“typically available in equity,” Skretvedt’s
pursuit of interest on the wrongful or
delayed withholding of his benefits is not
a request for money damages, but rather a
request for restitution that typically would
have been available in equity. We
conclude that a constructive trust is the
appropriate device for such a request, and
that Skretvedt may seek interest on the
delayed payment of his ERISA benefits in
accordance with the principles discussed in
Fotta v. Trustees of United Mine Workers
of America, 319 F.3d 612, 617-18 (3d Cir.
2003) (“Fotta II”).

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I. Background
A. Facts1
Skretvedt was employed by E.I. du
Pont de Nemours and Company2 from June
28, 1974, until February 7, 1995. In early
1994, Skretvedt was working as a Senior
Research Environmental Engineer when
he began receiving treatments for work-
related anxiety from his family physician.
Skretvedt took a leave of absence from his
job on November 11, 1994, and did not
return to work at DuPont thereafter.
DuPont began investigating during this
period whether Skretvedt would qualify
for disability benefits. For reasons that the
parties dispute, DuPont terminated
Skretvedt on February 7, 1995.
Skretvedt filed a claim with the
E q u a l E m p l o y m e n t O p p o r t u n it y
Commission alleging that DuPont violated
the Americans with Disabilities Act by
discriminating against him because of his
anxiety disorder. The EEOC found no
violation based upon the information that
Skretvedt submitted, and issued a right-to-
sue letter. On September 29, 1995, acting
on advice of counsel, Skretvedt signed a
“Settlement Agreement and Release of All
Claims” with DuPont. We previously
noted that this agreement “released all of
[Skretvedt’s] employment-related claims
against DuPont except for his application
for disability benefits, which DuPont
agreed to review in a ‘neutral’ manner.”
Skretvedt I, 268 F.3d at 171.
F o l l o w i n g t h e s e t t l e m e n t
agreement, DuPont’s three-member Board
of Benefits and Pensions (“Benefits
Board”) reviewed Skretvedt’s application
for disability benefits, and determined that
he was ineligible because, the Board
claimed, he had failed to show that he was
“permanently incapable of performing the
duties of [his] job with the degree of
efficiency required by the Company, at the
time of [his] termination.” Skretvedt I, 268
F.3d at 172. Skretvedt was also advised
that, in order to succeed in appealing the
Board’s determination, he would have to
submit “additional objective evidence that
will indicate a total impairment of
function,” such as “MRI, X-ray reports and
complete medical evaluations.” Id.
Skretvedt contended, and DuPont denied,
that he and one of his doctors sent three
letters to the Board’s designated person for
appeals, requesting clarification with
respect to the types of “objective medical
evidence” he would need to perfect his
application on appeal in light of the fact
that his claimed disability is psychological.
After receiving no response, he claims, he
submitted a formal appeal to the Board on
May 16, 1997. Nonetheless, no further
1 As this appeal raises only issues of
law, we state undisputed facts that provide
background for our legal determinations.
A detailed statement of the facts
underlying the parties’ dispute can be
found in Skretvedt v. E.I. du Pont de
Nemours & Co., 268 F.3d 167, 170-73 (3d
Cir. 2001) (“Skretvedt I”).
2 We collectively refer to the defendant
ERISA plans and Skretvedt’s former
employer as “DuPont.”

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response was received.
B. Procedural Background
Skretvedt filed an eight count
complaint in the United States District
Court for the District of Delaware on
February 4, 1998.
Count I sought benefits from the
“Incapability Retirement” pension program
(“incapability benefits”), and alleged that
DuPont’s Benefits Board failed to inform
Skretvedt under ERISA § 503, 29 U.S.C.
§ 1133, of the reasons for denying him
benefits.
Count II claimed medical benefits
through a DuPont benefits program known
as MEDCAP and reimbursement for
expenses incurred as a result of MEDCAP
benefits not having been provided as of the
date of his termination.
Count III asserted a right to dental
benefits through a DuPont benefits
p r o g r a m k n o w n a s D A P a n d
reimbursement for expenses incurred as a
result of DAP benefits having been denied.
Count IV alleged that Skretvedt was
due a $3,000 payment under a DuPont
long-term life insurance plan known as the
“Noncontributory Plan” as a result of his
becoming disabled. Skretvedt also sought
declaratory relief that would deem him
eligible for participation in DuPont’s
“Contributory Plan” life insurance
program, and sought life insurance
benefits under its Noncontributory Plan.
Count V requested benefits from
the “Total and Permanent Disability
Income Plan” (“T&P benefits”).
Count VI alleged that Skretvedt was
eligible to participate in a DuPont tax-
deferred savings program known as SIP,
and sought damages with respect to his
contributions in SIP having been paid out
prematurely (in light of his having been, he
alleged, wrongfully denied the right to
participate in the program after his
termination).
Count VII claimed that Skretvedt
had been wrongfully denied further
participation in a DuPont stock ownership
plan known as TRASOP, and sought
reinstatement of TRASOP benefits and
certain damages resulting from the
premature termination of his participation
in the plan.
Count VIII contended that
Skretvedt was improperly denied benefits
under DuPont’s short term disability
(“STD”) plan.
Among other things, Skretvedt also
sought prejudgment interest, postjudgment
interest, and reasonable attorney’s fees
with respect to each claim.
Skretvedt moved for summary
judgment pursuant to Fed. R. Civ. P. 56,
arguing, inter alia, that there was no
genuine material dispute of fact as to the
Benefits Board having acted in an arbitrary
and capricious manner, or having abused
its discretion, and that he was entitled to
the award of benefits he requested.
DuPont also moved for summary
judgment, arguing, inter alia, that there
was no evidence to support a finding that

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the Board acted in an arbitrary and
capricious manner, thereby entitling them
to summary judgment. On September 6,
2000, the Magistrate Judge granted
summary judgment in favor of DuPont on
all claims, and denied Skretvedt’s motion
for summary judgment. She concluded,
inter alia, that “there is no genuine issue of
material fact upon which plaintiff could be
successful [in showing that the Board had
acted in an arbitrary and capricious
manner]” and that “a genuine issue does
not exist as to the propriety of the Board’s
action. . . .” Skretvedt v. E.I. du Pont de
Nemours & Co., 119 F. Supp. 2d 444, 453-
55 (D. Del. 2000).
Skretvedt appealed the grant of
summary judgment in favor of DuPont and
the denial of summary judgment in his
favor with respect to his claims for
incapability and T&P benefits only. We
held that “[b]ecause the medical evidence
that Skretvedt presented makes it clear that
he meets the eligibility standards for
incapability benefits, and the Board can
point to no conflicting medical evidence,
. . . the Board’s decision was arbitrary and
capricious because it was ‘without reason’
and it was ‘unsupported by substantial
evidence.’” Skretvedt I, 268 F.3d at 184.
Accordingly, we reversed the Magistrate
Judge’s summary judgment order “in favor
of DuPont and denying summary judgment
in favor of Skretvedt on the claim for
incapability benefits[,] . . . and . . .
remanded to the District Court with
directions to grant summary judgment in
favor of Skretvedt on the claim for
incapability benefits.” Id. We further
“vacate[d] the District Court’s order
granting summary judgment on the count
challenging the Board’s denial of
Skretvedt’s application for T& P benefits
and remand[ed] it to the District Court,”
assuming “that the District Court will
direct that DuPont’s [Benefits] Board
consider this claim in the first instance,
since even though Skretvedt is incapable
of performing the duties of his previous
position at DuPont, he may nevertheless be
ineligible for T&P benefits.” Id. at 185.3
In light of our opinion, on remand
the Magistrate Judge entered a judgment
on December 13, 2001, in favor of
Skretvedt “on his claim for incapability
benefits.” DuPont granted incapability
benefits on March 6, 2002, in response to
that judgment. On the same day, without
Skretvedt’s having to resort to further
judicial proceedings, DuPont granted T&P
benefits upon reevaluating Skretvedt’s
claim in light of our opinion.4
3 We also remanded Skretvedt’s request
that he be awarded attorney’s fees, noting
that such a request is one for the
Magistrate Judge to consider using her
discretion, guided by the five-factor
analysis set out in McPherson v.
Employees’ Pension Plan of American Re-
Insurance Co., 33 F.3d 253, 254 (3d Cir.
1994). See Skretvedt I, 268 F.3d at 185
n.10.
4 Skretvedt’s incapability and T&P
benefits were subsequently adjusted by
DuPont in his favor on April 15, 2002, and
again on April 16, 2002.

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On April 1, 2002, Skretvedt
submitted to the Magistrate Judge an
“Opening Brief in Support of Claims for
Short Term Disability Benefits, Interest on
Delayed Payment of Benefits and Related
Tax Reimbursement Claims (corrected)”
(the “Other Claims Brief”). Although he
had pursued only his claims in Counts I
and V for incapability and T&P benefits in
his appeal to our Court in Skretvedt I, and
although we remanded only with respect to
those claims, Skretvedt sought to raise
again claims for which the Magistrate
Judge had previously granted summary
judgment to DuPont, as discussed above.
The brie f req ues ted, inter alia ,
compensation with respect to DuPont’s
denial of medical benefits under Count II,
compensation for his having been
prematurely removed from the TRASOP
plan under Count VII, and an award of
STD benefits under Count VIII. The brief
also sought interest on the delayed
payment of all of his benefits and
c o m p e n s a t io n f o r a d v e r s e t a x
consequences Skretvedt faced for having
received back payments of benefits in the
same tax year. The brief did not specify
what action it was requesting the
Magistrate Judge to take, and did not
contain a formal motion, but instead in its
“ C o n c l u s i o n ” s e c t i o n s t a t e d :
“WHEREFORE, Skretvedt presents his
view of STD, interest on delayed payments
and raises germane issues needing to be
resolved in his favor.” Other Claims Brief
at 12. DuPont submitted a memorandum
opposing Skretvedt’s claims.
On August 21, 2002, the Magistrate
Judge, referring to Skretvedt’s Other
Claims Brief as a “Motion for Additional
Compensation,” addressed the merits of
each of the requests contained in the brief.
The Court concluded that Skretvedt was
not entitled as a matter of law to the
interest, tax-rela ted compensation,
TRASOP adjustments, and adjustments to
his incapability and T&P benefits that he
sought. Furthermore, STD benefits, the
Court held, were not available because: (1)
the relevant statute of limitations had
lapsed prior to Skretvedt’s request for
those benefits; (2) the settlement
agreement Skretvedt signed with DuPont
waived any claim to STD benefits; and (3)
employees with work-related injuries, such
as Skretvedt, were not eligible for STD
under the terms of the plan.
Skretvedt filed a motion for
reconsideration on September 4, 2002, and
then filed a notice of appeal of the August
21, 2002, order on September 20, 2002,
which was docketed at No. 02-3620. The
Magistrate Judge denied the motion for
reconsideration on November 12, 2002.
Skretvedt filed an amended notice of
appeal on November 14, 2002, seeking to
appeal the August 21, 2002, and
November 12, 2002, orders,5 which was
docketed at No. 02-428 3. W e
5 Skretvedt incorrectly reported the date
of the November 12, 2002, order in his
amended notice of appeal as November 13,
2002. As this order reaffirms the August
21, 2002, judgment, we refer hereafter
(unless the context requires otherwise) to
that judgment only.

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consolidated both timely appeals.6
II. Jurisdiction
The Magistrate Judge had subject
matter jurisdiction over this matter
pursuant to 29 U.S.C. § 1132(f) and 28
U.S.C. § 1331. Both parties assert that we
have final order jurisdiction under 28
U.S.C. § 1291 to review the Magistrate
J u d g e ’ s o r d e r ( a n d o r d e r o n
reconsideration) disposing of the relief
requested in Skretvedt’s Other Claims
Brief.7 “Although the parties do not
contest the issue of appellate jurisdiction,
we have the duty to raise the issue sua
sponte.” Commonwealth. of Pa. v.
Flaherty, 983 F.2d 1267, 1275 (3d Cir.
1993). We must, accordingly, determine
whether the orders were final under 28
U.S.C. § 1291.
In order to examine our current
jurisdiction, we first address our Court’s
decision and remand order in Skretvedt I.
Prior to that decision, the Magistrate Judge
granted summary judgment on all of
Skretvedt’s claims in favor of DuPont in
September 2000. As noted above, we
issued a limited remand with respect to the
claims for incapability and T&P benefits,
and directed the Magistrate Judge to
consider the attorney’s fees issue in her
discretion. The Magistrate Judge entered
a judgment, pursuant to our opinion and
order, that completely disposed of the
incapability benefits claim.8 DuPont
6 While these appeals were pending,
Skretvedt moved before the M agistrate
Judge for attorney’s fees and costs
pursuant to ERISA § 502(g), 29 U.S.C.
§ 1132(g). His motion was granted, but he
was awarded less than he requested.
Skretvedt appealed that award, which was
docketed at No. 03-2805 and has since
been decided by another panel of this
Court.
7 Where, as here, the parties have
consented under 28 U.S.C. § 636(c)(1) to
allowing a magistrate judge to “conduct
any or all proceedings in a jury or nonjury
civil matter and order the entry of
judgment in the case,” id., 28 U.S.C.
§ 636(c)(3) provides for an “appeal
directly to the appropriate United States
court of appeals from the judgment of the
magistrate judge in the same manner as an
appeal from any other judgment of a
district court.” Id.; see also Fed. R. Civ. P.
73(c). Accordingly, final order
jurisdiction to review such an order arises
from 28 U.S.C. § 636(c)(3) to the extent it
is final under 28 U.S.C. § 1291. See, e.g.,
Abrams v. Lightolier Inc., 50 F.3d 1204,
1209 n.1 (3d Cir. 1995).
8 The judgment entered by the
Magistrate Judge with respect to
incapability benefits reads in its entirety:
“Pursuant to the Order of the Third Circuit
Court of Appeals dated October 5, 2001,
Judgment is entered on behalf of the
plaintiff on his claim for incapability
benefits.” Ordinarily, “[w]here the order
appealed from finds liability and imposes
a monetary remedy, but does not reduce
that award to a specific figure, this court
will usually find the order interlocutory.”

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subsequently granted T&P benefits
without Skretvedt’s having to seek a
judgment. Neither party, however, sought
formally to dispose of the claim for T&P
benefits (e.g., by dismissing Count V
voluntarily to the extent that it sought T&P
benefits or moving for summary judgment
on mootness grounds because the benefits
had been paid voluntarily).
In disposing of Skretvedt’s Other
Claims Brief, the Magistrate Judge, as
noted already, addressed on the merits
Skretvedt’s arguments with respect to
various other benefits sought in other
counts of his complaint (e.g., Count VII
for TRASOP benefits, Count VIII for STD
benefits). This had no effect on the
finality of the August 21, 2002, order, but
with respect to the claim for T&P benefits
that remained pending, the August 21,
2002, opinion and order did not explicitly
dispose of that claim. While the order did
address Skretvedt’s additional request in
his complaint for interest on the delayed
payment of those benefits, the claim for
T&P benefits itself was not directly
Century Glove, Inc. v. First Am. Bank of
New York, 860 F.2d 94, 98-99 (3d Cir.
1988); see Prod. and Maint. Employees’
Local 504 v. Roadmaster Corp., 954 F.2d
1397, 1401 (7th Cir. 1992) (“A decision
awarding but not quantifying damages
normally is not final because it leaves a
question that is not collateral to the merits
to be resolved in the district court.”).
However, “even when a judgment fails to
fix the amount of damages, if the
determination of damages will be
mechanical and uncontroversial, so that
the issues the defendant wants to appeal
before that determination is made are very
unlikely to be mooted or altered by it—in
legal jargon, if only a ‘ministerial’ task
remains for the district court to perform—
then immediate appeal is allowed.” Id. at
1401.
While the Magistrate Judge did not
quantify the accrued incapability benefits
due to Skretvedt, DuPont applied a
“mechanic al” formu la under t he
incapability plan and awarded Skretvedt
back incapability benefits. Skretvedt’s
only issue with the application of that
formula was whether he should have been
credited for six additional months of
company service because, in his view, he
was entitled to six months of STD
benefits, and his length of service with
DuPont should have been extended by six
months. The Magistrate Judge addressed
this argument, and Skretvedt now raises it
on appeal.
Accordingly, because applying the
terms of the incapability benefits plan to
Skretvedt in calculating his award was
“mechanical” and Skretvedt only disputes
one aspect of that application (which was
fully disposed of by the Magistrate Judge),
we conclude that the Magistrate Judge’s
order (and order on reconsideration)
“end[ed] the litigation on the merits” with
respect to that claim and “le[ft] nothing for
the court to do but execute the judgment.”
Gerardi v. Pelullo, 16 F.3d 1363, 1369 (3d
Cir. 1994) (internal quotation marks and
citations omitted).

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addressed.
Ordinarily, in the absence of a Fed.
R. Civ. P. 54(b) certification, “there is no
final order if claims remain unresolved and
their resolution is to occur in the district
court.” Aluminum Co. of Am. v. Beazer
East, Inc., 124 F.3d 551, 557 (3d Cir.
1997). We recognized in Beazer East,
however, that
to determine the effect of a
district court’s decision–and
therefore to determ ine
whether there is a final
ord er–it is so m e ti m es
necessary to look beyond
the pleadings. A final order
is not absent just because
the district court failed to
adjudicate all of the claims
that were at one time
p l e a d e d . I n s t e a d , a n
a p p e l l a t e c o ur t m u s t
determine whether, at the
time it is examining its
jurisdiction, there remain
unresolved issues to be
adjudicated in the district
court.
Id. at 560.9
With respect to Skretvedt’s claim
for the underlying award of T&P benefits,
he represented to the Magistrate Judge that
DuPont had paid those benefits. See Other
Claims Brief at 1 (“T&P Plan benefits
recently were granted by DuPont’s claims
agent, Aetna.”). Skretvedt did not argue
that DuPont in any way failed to award
T&P benefits or miscalculated the award
of T&P benefits, except as noted infra note
14. The Magistrate Judge also recognized
in her August 21, 2002, opinion that T&P
benefits had been awarded. See Magis.
Judge Op. at 2 (“[Subsequent to Skretvedt
I,] the DuPont Board of Benefits and
Pensions granted plaintiff [T&P] benefits,
and [i]ncapability benefits approving a
start date of February 8, 1995.”).
Accordingly, we determine that the claim
for T&P benefits was sufficiently resolved
in the August 21, 2002, opinion and order
where the Magistrate Judge recognized
that payment of T&P benefits was moot.
That order was therefore a final order10
9 See also Hindes v. F.D.I.C., 137 F.3d
148, 156 n.3 (3d Cir. 1998) (“We have
case law indicating that ‘[a]n order that
effectively ends the litigation on the merits
is an appealable final judgment even if the
district court does not formally include
judgment on a claim that has been
abandoned’ by a party. Lusardi v. Xerox
Corp., 975 F.2d 964, 970 n. 9 (3d
Cir.1992) (quoting Jones v. Celotex Corp.,
867 F.2d 1503, 1503-04 (5th Cir. 1989)
(per curiam)).”) (additional citation
omitted).
10 The August 21, 2002, order also met
the procedural requirements of Fed. R.
Civ. P. 58 for an order that begins the
running of the time for appeal. See Local
Union No. 1992 of the Int’l Bhd. of Elec.
Workers v. The Okonite Co., 358 F.3d 278,
285-86 (3d Cir. 2004) (order satisfies Rule

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within the meaning of 28 U.S.C. § 1291.11
III. Standard of Review
“[W]e must look to the course of
the proceedings in the district court and the
basis for its decision to determine the
standard of review.” Blasband v. Rales,
971 F.2d 1034, 1039 (3d Cir. 1992). The
relevant portions of the Magistrate Judge’s
August 21, 2002, decision on appeal
address purely legal issues in the context
of what is essentially a summary judgment
determination. “Inasmuch as we are
deciding this appeal by resolving questions
of law, we are exercising de novo [i.e.,
plenary] review.” Bowers v. Nat’l
Collegiate Athletic Ass’n, 346 F.3d 402,
410 (3d Cir. 2003).
The motion for reconsideration in
this case dealt with the Magistrate Judge’s
legal determinations. “The decision to
deny a Motion for Reconsideration is
within the discretion of the District Court,
but ‘if the court’s denial was based upon
the interpretation and application of a legal
precept, review is plenary.’” Le v. Univ. of
Pa., 321 F.3d 403, 405-06 (3d Cir. 2003)
(quoting Koshatka v. Pa. Newspapers,
Inc., 762 F.2d 329, 333 (3d Cir.1985)); see
McAlister v. Sentry Ins. Co., 958 F.2d 550,
552-53 (3d Cir. 1992) (same).
IV. Claims Litigated Other Than
Those Remanded by Skretvedt I
As noted, on remand from Skretvedt
I, Skretvedt raised various claims
regarding TRASOP benefits, medical
premiums, STD benefits, and other claims
asserted in various counts in his complaint
(the “ancillary claims”). Skretvedt now
appeals from the Magistrate Judge’s denial
of relief on remand with respect to those
claims. As discussed above, however,
Skretvedt did not pursue any of these
58’s separate document requirement where
it (1) is self-contained and separate from
the opinion, (2) sets forth the relief
granted, and (3) omits the District Court’s
reasons for disposing of the parties’
motions as it did).
11 The outstanding claim for statutory
attorney’s fees and costs under ERISA had
no effect on the finality of the Magistrate
Judge’s August 21, 2002, order on the
merits. See Gleason v. Norwest Mortgage,
Inc., 243 F.3d 130, 137 (3d Cir. 2001)
(“When an outstanding claim for
attorneys’ fees is by a statutory prevailing
party, the unresolved issue of those fees
does not prevent judgment on the merits
from being final.”) (citing Budinich v.
Becton Dickinson & Co., 486 U.S. 196,
202 (1988)); Napier v. Thirty or More
Unidentified Fed. Agents, 855 F.2d 1080,
1090 (3d Cir. 1988) (“In [Budinich], the
Supreme Court held that a determination
of liability and damages is final despite a
pending determination of costs and
attorney’s fees. The rationale of Budinich
is that the determination of costs and fees
following entry of judgment involves
considerations distinct from the underlying
merits of the action itself.”).

-- 10 of 33 --

11
claims in his prior appeal to our Court.12
We have held on numerous
occasions that “[a]n issue is waived unless
a party raises it in its opening brief, and for
those purposes a passing reference to an
issue will not suffice to bring that issue
before this court.” Laborers’ Int’l Union
v. Foster Wheeler Corp., 26 F.3d 375, 398
(3d Cir.1994); see, e.g., Kopec v. Tate, 361
F.3d 772, 775 n.5 (3d Cir. 2004); Tse v.
Ventana Med. Sys., Inc., 297 F.3d 210, 225
n.6 (3d Cir. 2002). Although he did not
challenge the Magistrate Judge’s grant of
summary judgment in favor of DuPont
with respect to these ancillary claims in his
first appeal to our Court and thus clearly
waived any arguments in favor of reversal
with respect to those claims, having
achieved success on the issues he did
appeal in Skretvedt I, Skretvedt now seeks
to litigate those abandoned ancillary
claims.
We have consistently rejected such
attempts to litigate on remand issues that
were not raised in a party’s prior appeal
and that were not explicitly or implicitly
remanded for further proceedings. “An
issue that is not addressed in an appellant’s
brief is deemed waived on appeal.
Appellants’ alternative theor[ies] of
recovery [were] not before this court in the
earlier appeal; a fortiori, [they] could not
be remanded to the district court.
Consequently, we cannot consider [them]
here [on appeal from the District Court’s
proceedings on remand].” Wisniewski v.
Johns-Manville Corp., 812 F.2d 81, 88 (3d
Cir. 1987) (citations omitted); see also
Frank v. Colt Indus., Inc., 910 F.2d 90,
100 (3d Cir. 1990) (party “waived . . .
argument by its failure to present it in the
proceedings prior to this appeal,”
including proceedings “when the case was
before us on the previous appeal”).
As we explained in Cowgill v.
Raymark Industries, Inc., 832 F.2d 798 (3d
Cir. 1987),
[a]dherence to the rule that a
party waives a “contention
that could have been but
12 Skretvedt’s opening brief from
Skretvedt I at one point averred generally
that he sought “to secure employee
benefits under related plans of the DuPont
company” after referencing incapability
benefits. Appellant’s Skretvedt I Opening
Brief at 3. Skretvedt additionally indicated
that he sought the “status of [a] retiree
under the “[incapability benefits] pension
plan and related plans.” Id. Of course,
“where important and complex issues of
law are presented, a . . . detailed exposition
of argument [in a party’s appellate brief] is
required to preserve an issue.” Frank v.
Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir.
1990). Skretvedt’s brief did not address
the merits of his claims with respect to
these “related plans” and was clear in its
conclusion section as to the only relief he
sought on appeal. There Skretvedt
“request[ed] the Court [to] reverse the
Order . . . granting Defendants summary
judgment and enter summary judgment for
the Appellant with an order to the District
Court to grant him his Incap and T&P
benefits.” Id. at 32 (emphasis added).

-- 11 of 33 --

12
was not raised on a prior
appeal,” Munoz v. County of
Imperial, 667 F.2d 811, 817
(9th Cir.), cert. denied, 459
U.S. 825, 103 S.Ct. 58, 74
L.Ed.2d 62 (1982), is, of
course, necessary to the
orderly conduct of litigation.
Failure to follow this rule
would lead to the bizarre
result, as stated admirably
by Judge Friendly, “that a
party who has chosen not to
argue a point on a first
appeal should stand better as
regards the law of the case
than one who had argued
and lost.” Fogel v.
Chestnutt, 668 F.2d 100,
109 (2d Cir.1981), cert.
denied, 459 U.S. 828, 103
S.Ct. 65, 74 L.Ed.2d 66
(1982). . . .
Id. at 802 n.2 (quoting Laffey v. Northwest
Airlines, Inc., 740 F.2d 1071, 1089-90
(D.C. Cir. 1984)) (alterations omitted).13
13 Our decision in Cowgill rested
primarily on collateral estoppel, which we
described as, at least in this context,
incorporating the same underlying
principle as the so-called “mandate rule.”
Under the mandate rule, a species of the
law of the case doctrine, “a trial court must
comply strictly with the mandate directed
to it by the reviewing court.” Ratay v.
Lincoln Nat. Life Ins. Co., 405 F.2d 286,
288 (3d Cir. 1968). Nonetheless, “[a]
district court may consider, as a matter of
first impression, those issues not expressly
or implicitly disposed of by the appellate
decision.” In re Chambers Dev. Co., Inc.,
148 F.3d 214, 225 (3d Cir. 1998) (internal
quotation marks omitted); see also, e.g.,
Casey v. Planned Parenthood of
Southeastern Pa., 14 F.3d 848, 857 (3d
Cir. 1994).
As we explained in Cowgill:
When a court of appeals
reverses a judgment and
r e m a n d s f o r f u r th e r
consideration of a particular
i s s u e , l e a v i n g o t h er
determinations of the trial
court intact, the unreversed
determinations of the trial
court normally continue to
work an estoppel. 1B J.
Moore, J. Lucas & T.
Currier, Moore’s Federal
Practice ¶ 30.416[2], p. 517
(3d ed. 1984). When the
estoppel is operative in
proceedings in the same
case on remand, courts
frequently speak in terms of
the law of the mandate or
the law of the case rather
than collateral estoppel but
the underlying principle is
the same. Todd & Co., Inc.
v. S.E.C., 637 F.2d 154 (3d
C i r . 1 9 8 0 ) ( w h e n a n
appellate court affirms in

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13
Accordingly, we shall not now
consider arguments with respect to the
ancillary claims Skretvedt waived in his
prior appeal. “The judicial system’s
interest in finality and in efficient
administration dictates that, absent
extraordinary circumstances, litigants
should not be permitted to relitigate issues
that they have already had a fair
opportunity to contest.” Cowgill, 832 F.2d
at 802 (quoting Todd & Co., Inc. v. S.E.C.,
637 F.2d 154, 156 (3d Cir.1980)) (internal
quotation marks omitted). Our limited
remand in Skretvedt I granted nearly all of
the relief requested. We will not now, in
this second appeal, given the absence of a
s h o w i n g o f a n y e x t r a o rd i n a r y
circumstances, address claims that
Skretvedt previously abandoned.1 4
Accordingly, we dismiss the portion of
Skretvedt’s current appeal addressing
claims asserted in his complaint other than
Counts I and V for incapability and T&P
benefits, respectively, and address herein
only relief requested with respect to those
counts.15
part and reverses in part, all
issues necessarily disposed
of in the affirmance become
law of the case even though
the case is remanded for
pro ce e d i n g s o n o t h er
issues).
Cowgill, 832 F.2d at 802.
In light of Skretvedt’s clear waiver
of the ancillary claims, we need not rely on
the mandate rule or law of the case in
reaching our determination. Skretvedt had
a full and fair opportunity to litigate the
ancillary claims in his prior appeal, and did
not do so. Thus we see no basis under the
facts of this case for applying any of the
exceptions to the law of the case doctrine.
See In re City of Phila. Litig., 158 F.3d
711, 718 (3d Cir. 1998) (discussing
exceptions to the law of the case doctrine).
14 With respect to STD benefits, we will
not now consider, for example, whether
Skretvedt is entitled to those benefits and
the effect of any award of them on the
calculation of his incapability and T&P
benefits.
15 Skretvedt has requested additionally
that damages (“tax compensation”) be
awarded with respect to the increased tax
liability he incurred because his accrued
ERISA benefits were paid in a single tax
year. Had DuPont properly approved his
benefits claim when it was submitted, he
suggests, his tax liability would have been
lower because benefit payments would
have been made monthly and he would not
have received one large payment of
accrued benefits in a single tax year.
Skretvedt argues that the Magistrate Judge
failed to apply Gelof v. Papineau, 829 F.2d
452, 455 n.2 (3d Cir. 1987), a case under
the Age Discrimination in Employment
Act. Putting aside that Gelof is not an
ERISA case, it also did “not address . . .
whether such an award should be made in
all back pay cases” because of the
defendant’s “concession that the judgment
should properly include the negative tax
impact of a lump sum payment as an

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14
V. Interest on the Delayed Payment of
Benefits
Skretvedt’s Other Claims Brief
sought, inter alia, interest on the delayed
payment of incapability and T&P benefits
under Counts I and V, respectively.16 The
Magistrate Judge analyzed Skretvedt’s
request for interest with respect to both
forms of benefits under our decision in
Fotta I, which held that a claimant whose
ERISA benefits were delayed but
ultimately paid voluntarily (without a court
judgment having been entered) could,
under some circumstances, assert a cause
element of damages. . . .” Id.
Skretvedt additionally suggests that
he would be entitled to tax compensation
as a matter of “contract,” but he has not
identified any term in any of his ERISA
plans that would provide for such a
remedy. He does argue, however, that tax
compensation is due him as a matter of
restitution, presumably under ERISA
§ 502(a)(3)(B). As the Court of Appeals
for the First Circuit has suggested under
analogous facts, “[t]his argument is highly
dubious; the tax payments at issue would
seem to be completely distinct from any
ill-gotten profits which might properly be
made subject to a viable restitution claim.”
Armstrong v. Jefferson Smurfit Corp., 30
F.3d 11, 13 n.5 (1st Cir. 1994).
Skretvedt’s claim for tax
compensation would seem to be no more
than an ordinary claim for money damages
as compensation for losses suffered.
Mertens v. Hewitt Associates, 508 U.S.
248, 255 (1993), makes clear that such
claims for money damages are not
permissible under § 502(a)(3)(B) because
they are “the classic form of legal relief”
and are therefore not within the scope of
“appropriate equitable relief” allowed
under § 502(a)(3)(B). Accordingly, we see
no basis for such a claim to be brought
under § 502(a)(3)(B). See Farr v. U.S.
West Communications, Inc., 151 F.3d 908,
916 (9th Cir. 1998) (citing Mertens and
holding that “binding precedent compels
us to conclude that Plaintiffs may not
recover their tax benefit losses under
§ 502(a)(3)”); Armstrong, 30 F.3d at 13
(Mertens “compels the conclusion that
plaintiffs are precluded from recovering
damages for the federal and state tax
liabilities they incurred on . . . lump sum
payments”); see also Harsch v. Eisenberg,
956 F.2d 651, 661 (7th Cir. 1992).
16 We do not read our mandate in
Skretvedt I as having precluded Skretvedt
from seeking interest with respect to the
claims for incapability and T&P benefits
that were on limited remand. The
Magistrate Judge clearly had authority to
conduct further proceedings with respect
to interest on those remanded claims, as
that “issue[] [was] not expressly or
implicitly disposed of by the appellate
decision.” In re Chambers Dev. Co., Inc.,
148 F.3d at 225 (internal quotation marks
omitted).

-- 14 of 33 --

15
of action under ERISA § 502(a)(3)(B)17
for interest on that delayed payment as a
form of “appropriate equitable relief.”
Fotta I, 165 F.3d at 214. The Magistrate
Judge concluded that “[a]lthough Fotta [I]
may support [a claim for interest], this
court cannot apply Fotta [I] in light of . . .
[Great-West Life & Annuity Insurance Co.
v. Knudson, 534 U.S. 204 (2002)].”
Magistrate Judge Op. at 9. Simply put, the
Magistrate Judge concluded that Fotta I
had been implicitly overruled by Great-
West. We enter this thicket as a matter of
first impression for our Court.
We conclude first that Great-West
does not apply to Skretvedt’s claim for
prejudgment interest with respect to
incapability benefits awarded pursuant to
a court judgm ent unde r ERIS A
§ 502(a)(1)(B). We then address
separately Skretvedt’s claims for interest
with respect to T&P benefits, which his
employer voluntarily paid after several
years of litigation, and conclude that
Great-West does not preclude a claim
under ERISA § 502(a)(3)(B) for restitution
by way of a constructive trust with respect
to interest earned on withheld benefits.
A. Prejudgment Interest on a
Judgment Procured Pursuant to
§ 502(a)(1)(B)
Skretvedt was awarded incapability
benefits pursuant to ERISA § 502(a)(1)(B)
by way of a court judgment. This
provision states:
A civil action may be
brought . . . by a participant
or beneficiary . . . to recover
benefits due to him under
the terms of his plan, to
enforce his rights under the
terms of the plan, or to
clarify his rights to future
benefits under the terms of
the plan. . . .
Id. Skretvedt’s request for interest with
respect to ERISA benefits he was awarded
p u r s u a n t t o a j u dg m e n t u n d e r
§ 502(a)(1)(B) is no more than an ordinary
request for prejudgment interest on a
judgment obtained pursuant to a federal
statute. Our Court in Anthuis v. Colt
Industries Operating Corp., 971 F.2d 999
(3d Cir. 1992), applied to the ERISA
context the long-standing rule that, in the
absence of an explicit statutory command
otherwise, district courts have broad
discretion to award prejudgment interest
on a judgment obtained pursuant to a
federal statute.
While it is true that
Congress did not mandate
p r e j u d g m e n t i n t e r e s t
17 Section 502(a)(3)(B) provides:
A civil action may be
brought . . . by a participant,
beneficiary, or fiduciary . . .
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. . . .
Id.

-- 15 of 33 --

16
payments for other than
delinquent contributions, we
have held generally that
“[i]n the absence of an
e x p l i c i t c o n g r e s s io n a l
directive, the awarding of
prejudgment interest under
federal law is committed to
the trial court’s broad
discretion.” Ambromovage
v. United Mine Workers,
726 F.2d 972, 981-82 (3d
Cir. 1984). Ambromovage
c i t e d B o a r d o f
Commissioners of Jackson
County, Kansas v. United
States, 308 U.S. 343, 352,
60 S.Ct. 285, 289, 84 L.Ed.
313 (1939), in which the
general federal rule was
announced that prejudgment
interest is to be “given in
response to considerations
of fairness [and] denied
when its exaction would be
inequitable.”
Id. at 1009 (alterations in original); see
also Schake v. Colt Indus. Operating Corp.
Severance Plan for Salaried, Nonunion
Employees, 960 F.2d 1187, 1190, 1192 n.4
(3d Cir. 1992) (where a judgment has been
entered in favor of a prevailing ERISA
plaintiff, “[i]t is undisputed that
prejudgment interest typically is granted to
make a plaintiff whole because the
defendant may wrongly benefit from use
of plaintiff’s money,” subject to the
District Court’s applying “the appropriate
standards in granting prejudgment
interest”).
Anthuis relied in part on the
Supreme Court’s determination in Board
of Commissioners of Jackson County,
Kansas v. United States, 308 U.S. 343, 352
(1939), that, where “[t]he issue is
uncontrolled by any formal expression of
the will of Congress,” id. at 349, “interest
is not recovered according to a rigid theory
of compensation for money withheld, but
is given in response to considerations of
fairness. It is denied when its exaction
would be inequitable.” Id. at 352. The
Supreme Court later explained in Rodgers
v. United States, 332 U.S. 371, 373 (1947),
that
the failure to mention
interest in statutes which
create obligations has not
been interpreted by this
Court as manifesting an
unequivocal congressional
purpose that the obligation
shall not bear interest.
Billings v. United States,
232 U.S. 261, 284-288, 34
S.Ct. 421, 425-427, 58
L.Ed. 596 [(1914)]. For in
t h e a b s e n c e o f a n
unequivocal prohibition of
interest on such obligations,
this Court has fashioned
rules which granted or
denied interest on particular
statutory obligations by an
a p p r a i s a l o f t h e
congressional purpose in
imposing them and in the

-- 16 of 33 --

17
light of general principles
deemed relevant by the
Court. See, e.g., Royal
Indemnity Co. v. United
States, [313 U.S. 289,
295-97, 61 S.Ct. 995, 997,
998, 85 L.Ed. 1361 (1941)];
Board of Com’rs of Jackson
County in State of Kansas v.
United States, 308 U.S. 343,
60 S.Ct. 285, 84 L.Ed. 313
[(1939)].
Id.
Applying Board of Commissioners
or Rodgers, we have in the past
determined that prejudgment interest is
available with respect to judgments
obtained pursuant to several statutes that
are silent as to its exaction.18 Moreover, in
A n t h u i s , w e a p p l i e d B o a r d o f
Commissioners in determining that a
successful ERISA plaintiff could obtain
prejudgment interest as part of his or her
award of delayed ERISA benefits.19
18 See, e.g., Gov’t of V. I. v. Davis, 43
F.3d 41, 47 (3d Cir. 1994) (citing Rodgers
and holding that prejudgment interest “is
an aspect of the victim’s actual loss which
must be accounted for in the calculation of
restitution in order to effect full
compensation” under the Victim and
Witness Protection Act); Poleto v. Consol.
Rail Corp., 826 F.2d 1270, 1274-79 (3d
Cir. 1987) (applying Rodgers and, where
Congress was silent, “look[ing] to the
purposes behind [the] statute as a general
indication of Congressional purpose,” in
d e t e r m in i n g t h e a v a i l a b i l ity o f
prejudgment interest under the Federal
Employers’ Liability Act); Brock v.
Richardson, 812 F.2d 121, 126-27 (3d Cir.
1987) (citing Board of Commissioners and
Rodgers in determining that a “back pay
award under the Fair Labor Standards Act
should be presumed to carry . . .
pre-judgment interest unless the equities in
a particular case require otherwise”);
Ambromovage v. United Mine Workers of
Aa., 726 F.2d 972, 982 n.27 (3d Cir. 1984)
(applying Board of Commissioners and
Rodgers and determining that “[t]he
purposes of the provisions of the
Taft-Hartley Act under which this lawsuit
proceeded is the protection of pension
beneficiaries and union members. It would
not be inconsistent with these purposes to
award aggrieved members of those
protected classes interest on lost
income.”).
19 Anthuis and Schake are by no means
alone in concluding that a successful
ERISA plaintiff may be entitled to
prejudgment interest as part of his or her
benefits award. See, e.g., Cottrill v.
Sparrow, Johnson & Ursillo, Inc., et al.,
100 F.3d 220, 223 (1st Cir. 1996) (“district
court may grant prejudgment interest in its
discretion to prevailing fiduciaries,
beneficiaries, or plan participants” in
ERISA cases); Quesinberry v. Life Ins. Co.
of N. Am., 987 F.2d 1017, 1030 (4th Cir.
1993) (“ERISA does not specifically
provide for pre-judgment interest, and
absent a statutory mandate the award of
pre-judgment interest is discretionary with

-- 17 of 33 --

18
Although we wrote in the context of
benefits having been awarded pursuant to
§ 502(a)(1)(B), we did not make explicit in
Anthuis the statutory provision of ERISA
under which a plaintiff could obtain
prejudgment interest as part of her or his
benefits award. But we did not suggest
that it would be necessary for a prevailing
plaintiff to pursue such a claim as “other
appropriate equitable relief” under
§ 502(a)(3)(B).20 We now make explicit
the trial court.”) (en banc); Hansen v.
Cont’l Ins. Co., 940 F.2d 971, 984 n.11
(5th Cir. 1991) (“[T]o determine whether
an award of prejudgment interest is
appropriate, the court must determine
whether such an award is precluded by the
federal statute that gives rise to the cause
of action, and if such an award is not
precluded, whether it would further the
congressional policies embodied in the act.
ERISA does not preclude an award of
prejudgment interest. Furthermore, . . . we
have no doubt[] that an award of
prejudgment interest under ERISA furthers
the purposes of that statute by encouraging
plan providers to settle disputes quickly
and fairly, thereby avoiding the expense
and difficulty of federal litigation.”)
(internal citation omitted); Bricklayers’
Pension Trust Fund v. Taiariol, 671 F.2d
988, 989 (6th Cir. 1982) (“The general rule
is that in the absence of a statutory
provision the award of prejudgment
interest is in the discretion of the court.”);
Dishman v. UNUM Life Ins. Co. of Am.,
269 F.3d 974, 988 (9th Cir. 2001)
(allowing for prejudgment interest on an
ERISA award); Florence Nightingale
Nursing Serv., Inc. v. Blue Cross/Blue
Shield of Ala., 41 F.3d 1476, 1484 (11th
Cir. 1995) (“The award of an amount of
prejudgment interest in an ERISA case is
a matter committed to the sound discretion
of the trial court.”) (internal quotation
marks omitted).
20 We recognize that the panel in Fotta
II, in a case where there had been no
underlying judgment representing an
award of benefits under § 502(a)(1)(B),
construed Anthuis as allowing for an
award of prejudgment interest under
§ 502(a)(3)(B).
Fotta I . . . determined who
has a cause of action under
§ 502(a)(3)(B). Before Fotta
I , o n l y a n E R I S A
beneficiary who had brought
a legal action to recover
w r o n g f u l l y w i t h h e l d
benefits could sue for
i n t e r e s t u n d e r
[§ 502(a)(3)(B)]. See, e.g.,
Anthuis, 971 F.2d at 1010.
Fotta II, 319 F.3d at 617. But as noted,
Anthuis itself made no mention of a
successful ERISA plaintiff who received
benefits under § 502(a)(1)(B) having to
“sue for interest” under § 503(a)(3)(B).
Instead, it indicated that “in the district
court’s discretion, prejudgment interest
may be awarded for a denial of pension
benefits.” Anthuis, 971 F.2d at 1010
(emphasis added). Accordingly, a district
court under Anthuis could allow for
prejudgment interest as part of the benefits

-- 18 of 33 --

19
that, in accordance with Board of
Commissioners and Rodgers, an ERISA
plaintiff who prevails under § 502(a)(1)(B)
in seeking an award of benefits may
request prejudgment interest under that
section as part of his or her benefits award.
Accordingly, the Supreme Court’s
decision in Great-West, interpreting the
extent of “appropriate equitable relief”
available under ERISA § 502(a)(3)(B),
does not apply to the availability of
prejudgment interest on a benefits award
obtained under § 502(a)(1)(B). We
therefore reverse the Magistrate Judge’s
denial of prejudgment interest with respect
to the delayed payment of Skretvedt’s
incapability benefits so that the Court may
exercise its discretion in the first instance
in determining whether prejudgment
interest is appropriate. Under Anthuis,
[a]s a general rule ,
prejudgment interest is to be
awarded when the amount
of the underlying liability is
reaso nably capable of
ascertainment and the relief
granted would otherwise fall
short of making the claimant
whole because he or she has
been denied the use of the
money which was legally
due. Awarding prejudgment
interest is intended to serve
at least two purposes: to
c o m p e n sate prev ailin g
parties for the true costs of
money damages incurred,
and, where liability and the
amount of damages are
fairly certain, to promote
s e t tl e m e n t a n d d e t e r
attempts to benefit from the
inherent delays of litigation.
Thus prejudgment interest
should ordinarily be granted
unl e s s e xcep tional o r
unusual circumstances exist
making the award of interest
inequitable.
Anthuis, 971 F.2d at 1010 (quoting Stroh
Container Co. v. Delphi Indus., Inc., 783
F.2d 745, 752 (8th Cir. 1986) (internal
citations omitted)).
We recognize that we have “not . . .
offer[ed] extensive guidance for deciding
what rate of interest is appropriate in a
given case.” Holmes v. Pension Plan of
Bethlehem Steel Corp., 213 F.3d 124, 131-
32 (3d Cir. 2000). Instead, we reiterate
that “the awarding of prejudgment interest
under federal law is committed to the trial
court’s broad discretion.” Ambromovage,
726 F.2d at 981-82; see also Sun Ship, Inc.
award for an ERISA plaintiff who is
successful under § 502(a)(1)(B). To the
extent that Fotta II discusses a successful
ERISA plaintiff needing to use
§ 502(a)(3)(B) to “sue for interest,” in the
context of deciding whether a plaintiff
who had not received an underlying award
of benefits under § 502(a)(1)(B) could still
sue for interest on the delayed payment of
benefits under § 502(a)(3)(B), such
statements are dicta.

-- 19 of 33 --

20
v. Matson Navigation Co., 785 F.2d 59, 63
(3d Cir. 1986) (“In federal question cases,
the rate of prejudgment interest is
committed to the discretion of the district
court.”).
B. Interest on the Delayed Payment
of Benefits Under § 502(a)(3)(B)
In Fotta I, we faced a novel
question: can “a beneficiary who has been
able to receive his or her benefits due
under an ER ISA plan only after
considerable delay, but without resorting
to litigation to recover that payment[,
assert] a cause of action under ERISA.”
Fotta I, 165 F.3d at 211. While Anthuis
and Schake allowed for prejudgment
interest as part of an underlying judgment
awarding benefits under § 502(a)(1)(B),
Fotta I required us to determine whether
ERISA would support a separate cause of
action allowing for an award of interest21
on the delayed payment of benefits.
Appellants in Fotta I conceded that
prejudgment interest is available where
there is an underlying § 502(a)(1)(B)
claim, but argued that ERISA does not
allow for an independent cause of action to
be brought seeking interest alone where
there has been no underlying award of
benefits under § 502(a)(1)(B). Our Court
disagreed.
We believe the distinction is
unpersuasive. The principles
justifying p r e j u d g ment
interest also justify an award
of interest where benefits
are delayed but paid without
the beneficiary's having
obtained a judgment. The
concerns animating our
decisions in Schake and
Anthuis—viz., making the
c l a i m a n t w h o l e a n d
p r e v e n t i n g u n j u s t
e n r i c h m e n t — a r e n o t
diminished merely because
the plan has paid the
overdue benefits without the
claimant having resorted to
litigation to secure payment.
A late payment of benefits
effectively deprives the
beneficiary of the time value
of his or her money whether
or not the beneficiary
secured the overdue benefits
through a judgment as the
result of ERISA litigation.
U n j u s t e n r i c h m e n t
principles also apply with
equal force in this setting.
To hold that the absence of
a judgment deprives the
injured beneficiary of the
time value of his or her
money would create a
financial incentive for plans
to delay payment and thus
21 We refer to “interest” and not
“prejudgment interest” with respect to the
cause of action discussed in Fotta I, as a
plaintiff seeking to recover interest on the
delayed payment of benefits where there is
no underlying court judgment does not
seek “prejudgment” interest, but merely
“interest.”

-- 20 of 33 --

21
retain interest that rightfully
belongs to the beneficiary.
Fotta I, 165 F.3d at 212. At base, Fotta I
concluded, there is no persuasive
distinction between justifying prejudgment
interest where a judgment for unpaid
benefits has been obtained and justifying
an award of interest where benefits are
delayed but paid without the claimant
having received a judgment.
The facts of this case demonstrate
the wisdom of that conclusion. Skretvedt
first applied for benefits in 1995. He was
awarded incapability benefits by way of a
court judgment entered on remand from
our decision in Skretvedt I, thereby
allowing him to request that the Court
exercise its discretion to award him
prejudgment interest. While no judgment
was entered with respect to Skretvedt’s
T&P benefits, as our Court requested that
DuPont reconsider the denial of those
benefits in light of our opinion in Skretvedt
I, DuPont voluntarily awarded Skretvedt
those benefits shortly after Skretvedt I.
Fotta I wisely noted that making the
claimant whole and unjust enrichment are
concerns equally present with respect to
both of these scenarios (i.e., where
benefits have been awarded pursuant to a
judgment and where benefits have been
withheld but are ultimately awarded
without resort to a judgment).22
While not ruling out that
§ 502(a)(1)(B) might “provide[] a possible
statutory basis” for a claimant to bring a
suit seeking interest on the delayed
payment of benefits, id. at 213-14 n.1,
Fotta I concluded that “that section
502(a)(3)(B) of ERISA— allowing a
beneficiary to sue for ‘other appropriate
equitable relief . . . to enforce any
provisions of this subchapter or the terms
of the plan’—is the appropriate vehicle for
such a cause of action.” Id. at 213. An
award of interest on the delayed payment
of benefits under § 502(a)(3)(B) “ensures
full compensation [and] serves to prevent
unjust enrichment.” Id. We held that such
a claim under § 502(a)(3)(B) was one cast
in “[r]estitution–the traditional remedy for
unjust enrichment,” which “is widely, if
not universally, regarded as a tool of
equity.” Id. Therefore, a claimant could
seek interest on the delayed voluntary
payment of benefits as a form of restitution
authorized by § 502(a)(3)(B), allowing for
“other appropriate equitable relief.”23
22 Indeed, this case presents an even
more compelling example than Fotta I, as
Skretvedt did have to resort to litigation
and was only paid T&P benefits
voluntarily by DuPont in the late stages of
this litigation.
23 Other circuit courts have since
similarly held that a cause of action may
be maintained for interest on the delayed
payment of benefits as “appropriate
equitable relief” under § 502(a)(3)(B). See
Dunnigan v. Metro. Life Ins. Co., 277 F.3d
223, 229 (2d Cir. 2002) (“Where interest is
sought to make the plaintiff whole by
eliminating the effect of a defendant's
breach of a fiduciary duty, we see no
reason why such interest should not be

-- 21 of 33 --

22
1. Great-West and Equitable
Versus Legal Restitution
In Great-West the Supreme Court
reiterated its earlier holding in Mertens v.
Hewitt Associates, 508 U.S. 248 (1993),
that “the term ‘equitable relief’ in §
502(a)(3) must refer to ‘those categories of
relief that were typically available in
equity.’” Great-West, 534 U.S. at 210
(quoting Mertens, 508 U.S. at 256). The
Court then clarified that restitution, a
remedy Fotta I generally regarded as
equitable and therefore within the scope of
relief available under § 502(a)(3)(B), in
fact exists in two forms: legal restitution
and equitable restitution. Only the latter
form of restitution, the Supreme Court
held, is available under § 502(a)(3)(B). Id.
at 212-13 (“[N]ot all relief falling under
the rubric of restitution is available in
equity. . . . [R]estitution is a legal remedy
when ordered in a case at law and an
equitable remedy . . . when ordered in an
equity case, and whether it is legal or
equitable depends on the basis for the
plaintiff’s claim and the nature of the
underlying remedies sought.”) (internal
quotation marks and alterations omitted).
This distinction between legal
restitution and equitable restitution turns
on the following:
In cases in which the
plaintiff “could not assert
title or right to possession of
particular property, but in
which nevertheless he might
be able to show just grounds
for recovering money to pay
for some benefit the
defendant had received from
him,” the plaintiff had a
right to restitution at law
through an action derived
deemed ‘appropriate equitable relief’
within the scope of § 502(a)(3)(B).”); see
also Kerr v. Charles F. Vatterott & Co.,
184 F.3d 938, 946 (8th Cir. 1999)
(§ 502(a)(3) supports a claim for interest
on the delayed payment of benefits to
prevent unjust enrichment where “the
wrongdoer . . . use[d] the withheld benefits
or retain[ed] interest earned on the funds
during the time of the dispute”). The
Court of Appeals for the Seventh Circuit
has specifically suggested that such
restitutionary relief is available through a
constructive trust. See Clair v. Harris
Trust and Savings Bank, 190 F.3d 495,
498-99 (7th Cir. 1999) (“[P]laintiffs are
asking . . . that the court impress a
constructive trust on the interest that the
defendants earned on benefits withheld in
violation of the terms of the plan. A
constructive trust . . . is an equitable
remedy commonly sought and granted in
cases of unjust enrichment. . . . If A
wrongfully appropriates money or other
property belonging to B, the court can
order A to hold the property in trust for B.
That is the nature of the relief sought by
the plaintiffs in this case [and] Health Cost
Controls [v. Washington, 187 F.3d 703,
710 (7th Cir. 1999)] holds that such relief
is squarely within the scope of section
502(a)(3)(B).”).

-- 22 of 33 --

23
from the common-law writ
of assumpsit. 1 [Dan B.
Dobbs, Law of Remedies:
Damages–Equity–Restituti
on] § 4.2(1), at 571 [(2d ed.
1993)]. . . . In such cases,
the plaintiff’s claim was
considered legal because he
s o u gh t “ t o o b t ain a
judgment imposing a merely
personal liability upon the
defendant to pay a sum of
money.” Restatement of
Restitution § 160, Comment
a, pp. 641-642 (1936).
* * *
In contrast, a plaintiff could
seek restitution in equity,
ordinarily in the form of a
constructive trust or an
equitable lien, where money
or property identified as
b e l o n g i n g i n g o o d
conscience to the plaintiff
could clearly be traced to
particular funds or property
i n t h e d e f e n d a n t ’ s
possession. See 1 Dobbs §
4 . 3 ( 1 ) , a t 5 8 7 - 5 8 8 ;
Restatement of Restitution,
supra, § 160, Comment a, at
641-642; 1 G. Palmer, Law
of Restitution § 1.4, p. 17;
§ 3.7, p. 262 (1978). A
court of equity could then
order a defendant to transfer
title (in the case of the
constructive trust) or to give
a security interest (in the
case of the equitable lien) to
a plaintiff who was, in the
eyes of equity, the true
owner. But where “the
property [sought to be
recovered] or its proceeds
have been so dissipated so
that no product remains, [the
plaintiff’s] claim is only that
of a general creditor,” and
the plaintiff “cannot enforce
a constructive trust of or an
equitable lien upon other
property of the [defendant].”
Restatement of Restitution,
supra, § 215, Comment a, at
867. Thus, for restitution to
lie in equity, the action
generally must seek not to
impose personal liability on
the defendant, but to restore
to the plaintiff particular
funds or property in the
defendant’s possession.
Great-West, 534 U.S. at 213-14 (emphasis
and last three alterations in original). Put
simply, “equitable relief” under §
502(a)(3)(B) is to be construed by
reference to the types of relief typically
available in equity, and courts are to
analyze the underlying nature of the claim
and relief requested by a plaintiff in order
to determine whether that relief had been
typically available in equity.
Res titution in equity was
“ordinarily in the form of a constructive
trust or an equitable lien, where money or

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24
property identified as belonging in good
conscience to the plaintiff could clearly be
traced to particular funds or property in the
defendant’s possession.” Great-West, 534
U.S. at 213 (citing 1 Dan B. Dobbs, Law of
Remedies: Damages–Equity–Restitution §
4.3(1), at 587-88 (2d ed. 1993) (“Dobbs”);
Restatement of Restitution § 160 cmt. a, at
641-42 (1936); George E. Palmer, Law of
Restitution § 1.4, at 17 (1978) (“Palmer”);
id. § 3.7, at 262).24
Without examining the specific
forms of equitable restitution addressed in
Great-West, the Magistrate Judge in this
case concluded that “the [Supreme] Court
clearly indicated [in Great-West] that
claims for monetary damages, for the most
part, will be claims for legal relief. Here,
Skretvedt seeks money to compensate for
the lost interest caused by DuPont’s
delayed payment. Thus, the Great-West
decision compels this court to find that
Skretvedt seeks legal relief.” Magis.
Judge Op. at 9. The Magistrate Judge
perceived in Great-West a per se
pronouncement that where a plaintiff seeks
an award that ultimately involves money
(regardless whether that award consists of
a constructive trust over funds that “belong
in good conscience to the plaintiff” and
can “clearly be traced to particular funds in
the defendant’s possession”), such an
award is a claim for legal relief and is not
available under § 502(a)(3)(B).25
Our reading, however, is that
Great-West did not adopt such a rule.
Instead, the Supreme Court indicated that,
to determine whether a specific form of
underlying relief requested is available
under § 502(a)(3)(B), we must consider
whether that relief was typically available
at law or in equity and, in the case of
restitutionary relief, whether the relief
requested was in fact a form of equitable
restitution.
2. R e e x a m i n i n g a
Restitutionary Award of
I n t e r e s t U n d e r
§ 502(a)(3)(B)
Analyzing the propriety of an
24 The Court also noted that an
additional form of equitable restitution, an
accounting for profits, is outside the
general rule that an action sounding in
equitable restitution must not seek to
impose personal liability on the defendant.
“If, for example, a plaintiff is entitled to a
constructive trust on particular property
held by the defendant, he may also recover
profits produced by the defendant’s use of
that property, even if he cannot identify a
particular res containing the profits sought
to be recovered. See 1 Dobbs § 4.3(1), at
588; id., § 4.3(5), at 608.” Great-West,
534 U.S. at 214 n.2. We address this form
of restitution infra note 26.
25 Without deciding the issue, the Court
of Appeals for the Eleventh Circuit has
also suggested that Great-West “raises the
question whether § 502(a)(3) ever allows
an award of interest for delayed benefits or
whether such a claim is an impermissible
attempt to dress an essentially legal claim
in the language of equity.” Flint v. ABB,
Inc., 337 F.3d 1326, 1331 (11th Cir. 2003).

-- 24 of 33 --

25
interest award under § 502(a)(3)(B) again
in light of Great-West, we start with
whether a claim for interest on the late
payment of funds would generally be one
at law or one in equity. It is clear that a
claim for interest alone (i.e., where the
underlying obligation had already been
paid) on a late payment (e.g., an overdue
loan) was traditionally not permitted at
law. See Stuart v. Barnes, 153 U.S. 456,
462 (1894) (in an action for assumpsit,
“[w]hen he who has [the] right [to compel
payment] commences an action for its
enforcement, he at the same time acquires
a subordinate right, incident to the relief
which he may obtain, to demand and
receive interest. If, however, the principal
sum has been paid, so that, as to it, an
action brought cannot be maintained, the
opportunity to acquire a right to damages
is lost.”). However, an independent claim
for interest on wrongfully withheld funds
(where the underlying funds themselves
are no longer in dispute), as Fotta I
explains, would be cognizable under a
restitutionary theory. See Restatement of
Restitution § 190, at 780 (“Where a person
in a fiduciary relation to another acquires
property, and the acquisition or retention
of the property is in violation of his duty as
fiduciary, he holds it upon a constructive
trust for the other.”).
Given the Supreme Court’s
determination in Great-West that only
equitable restitution is available under §
502(a)(3)(B), we now determine whether
a claim for interest on wrongfully withheld
ERISA funds is equitable, as opposed to
legal, restitution. In making this
determination, Great-West indicated that
courts should “consult[], as we have done,
standard current works such as Dobbs,
Palmer, Corbin, and the Restatements,
which make the answers clear.” Great-
West, 534 U.S. at 217. Accordingly, we
inquire whether Skretvedt may seek
interest on the delayed payment of his
T & P benefits thro u g h e q u i t ab le
restitution–by way of a constructive trust,
equitable lien, or accounting for
profits–the three forms of restitution that
the Court determined are equitable.
Because a constructive trust may be
placed over “interest” actually earned by a
plan that has wrongfully delayed paying
benefits, we examine only the constructive
trust remedy.26
26 In a well-reasoned opinion, the
District Court in Dobson v. Hartford
Financial Services, et al., 196 F. Supp. 2d
152, 169-73 (D. Conn. 2002), determined
that both a constructive trust and/or
accounting for profits would allow for the
disgorging of a fiduciary’s ill-gotten gain
obtained by wrongfully withholding
disability benefits in violation of ERISA.
The Court of Appeals for the Eighth
Circuit very recently has determined that
an award of interest is still permissible
after Great-West using the accounting for
profits remedy. See Parke v. First
Reliance Standard Life Ins. Co., ___ F.3d
___, 2004 W L 1144787, at *3-*7 (8th Cir.
2004) (“an award of interest on wrongfully
delayed benefits remains permissible under
[§ 502](a)(3)(B) after [Great-West through
an accounting for profits] as a remedy for

-- 25 of 33 --

26
According to Dobbs, a constructive
trust can be imposed “upon any
identifiable kind of property or entitlement
in the defendant’s hands if, in equity and
conscience, it belongs to the plaintiff.”
Dobbs § 4.3(2), at 589-90. A constructive
trust is “only used when the defendant has
a legally recognized right in a particular
asset [, which] may even be a fund of
money like a bank account.” Id. at 591.
The constructive trust has what Dobbs
calls the “important characteristic” of
allowing a plaintiff to “obtain, not merely
what he lost, but gains received by the
defendant from the property’s increase in
value, from its transfer, from its use in a
business operation.” Id. at 592.
Dobbs is consistent with the
Restatement of Restitution, which suggests
that a constructive trust arises “[w]here a
person holding title to property is subject
a breach of a fiduciary duty to a
beneficiary”); see also Dunnigan v. Metro.
Life Ins. Co., 214 F.R.D. 125, 134-35
(S.D.N.Y. 2003) (“Great-West has no
bearing on [an action for interest on the
delayed payment of benefits under
§ 502(a)(3)] because the relief [plaintiff]
seeks–an accounting of [the fiduciary’s]
profits made on withheld disability
benefits–is a form of relief ‘typically
available in equity’. . . .”).
With respect to the accounting for
profits remedy, however, the Supreme
Court in Dairy Queen, Inc. v. Wood, 369
U.S. 469 (1962), cautioned that
[t]he necessary prerequisite
to the right to maintain a
suit for an equitable
accounting, like all other
equitable remedies, is . . .
the absence of an adequate
r e m e d y a t l a w .
Consequently, in order to
maintain such a suit on a
cause of action cognizable
at law, as this one is, the
plaintiff must be able to
show that the ‘accounts
between the parties’ are of
such a ‘complicated nature’
that only a court of equity
can satisfactorily unravel
them. In view of the powers
given to District Courts by
Federal Rule of Civil
Procedure 53(b) to appoint
masters to assist the jury in
those exceptional cases
where the legal issues are
too complicated for the jury
adequately to handle alone,
the burden of such a
showing is considerably
increased and it will indeed
be a rare case in which it
can be met.
Id. at 478 (footnotes omitted). Dairy
Queen appears to cast some doubt on the
purely equitable nature of the accounting
for profits remedy. We proceed with the
constructive trust remedy because it is
clear that this remedy would have been
typically available in equity.

-- 26 of 33 --

27
to an equitable duty to convey it to another
on the ground that he would be unjustly
enriched if he were permitted to retain it. .
. .” Restatement of Restitution § 160, at
640-41; see also Palmer § 1.3, at 12 (“In
the cases as a whole, constructive trust is
accepted as a technique to be used in
working out solutions to problems of
unjust enrichment. . . .”). Generally, a
constructive trust is imposed “to restore to
the plaintiff property of which he has been
unjustly deprived and to take from the
defendant property the retention of which
by him would result in a corresponding
unjust enrichment of the defendant. . . .”
Restatement of Restitution § 160, cmt. d,
at 643. Even where the
plaintiff . . . has not suffered
a loss or . . . has not suffered
a loss as great as the benefit
received by the defendant[,]
. . . the defendant is
compelled to surrender the
benefit on the ground that he
would be unjustly enriched
if he were permitted to
retain it, even though that
enrichment is not at the
expense or wholly at the
expense of the plaintiff.
Thus, if the defendant has
made a profit through the
violation of a duty to the
plaintiff to whom he is in a
fiduciary relation, he can be
compelled to surrender the
profit to the plaintiff,
although the profit was not
made at the expense of the
plaintiff. . . .
Id. at 643-44. Dobbs, Palmer, and the
Restatement all make clear that the
constructive trust remedy typically would
allow Skretvedt, in equity, to force DuPont
to disgorge the gain it received on his
withheld benefits under a restitutionary
theory.
3. Specific Funds Traceable
to an ERISA Plan
We must still determine, however,
whether the restitution Skretvedt seeks is
with respect to “money or property
identified as belonging in good conscience
to the plaintiff [that can] clearly be traced
to particular funds or property in the
defendant’s possession.” Great-West, 534
U.S. at 204; see also Palmer § 3.7, at 262
(in “most of the restitution cases the
equitable relief sought by the plaintiff is
with respect to specific property, usually to
obtain either specific restitution or a lien
on the property”).
DuPont, seizing on this aspect of
Great-West, argues that Skretvedt seeks to
make it and the defendant ERISA plans
“personally liable” for “interest” on the
delayed payment of his ERISA benefits in
violation of Great-West. We disagree.
Skretvedt’s cause of action under
§ 502(a)(3)(B) is against the relevant
ERISA plans whereby he seeks restitution
by way of a constructive trust over the
actual funds wrongfully earned by those

-- 27 of 33 --

28
plans.27
In explaining the degree to which a
plaintiff must identify money or property
that is “clearly . . . trace[able] to particular
funds or property in the defendant’s
possession,” Great-West, 534 U.S. at 213,
the Supreme Court looked to Harris Trust
and Savings Bank v. Salomon Smith
Barney, Inc., 530 U.S. 238 (2000). There,
an ERISA pension plan fiduciary
purchased interests in several motel
properties for $21 million from a non-
fiduciary party in interest (the “transferee”
of the plan’s assets). The transaction, the
Court assumed, was prohibited by statute.
The Court allowed an action under §
502(a)(3)(B) against the transferee “for
restitution of the property (if not already
disposed of) or disgorgement of proceeds
(if already disposed of), and disgorgement
of the third person’s profits derived
therefrom,” id. at 250, where the transferee
“had actual or constructive knowledge of
the circumstances that rendered the
transaction unlawful.” Id. at 251.
In our case, we need not even look
to a third-party transferee to find the funds
Skretvedt alleges belong to him. Instead,
we need look no further than the ERISA
plans that withheld Skretvedt’s benefits for
several years and profited with respect to
the withholding of those benefits. As did
the fiduciaries in Harris Trust, Skretvedt
has sufficiently identified specific funds
traceable to the defendant ERISA plans
that belong in good conscience to him.28
4. Proceedings on Remand
In this context, we reverse the
Magistrate Judge’s determination that as a
matter of law Skretvedt cannot seek
interest on the delayed payment of his
T&P benefits under § 502(a)(3)(B). We
remand to the Magistrate Judge
Skretvedt’s claim for interest with respect
to the delayed payment of T&P benefits
for that Court to determine in the first
instance whether, under Fotta II, “those
27 As a record has not been developed
as to whether Skretvedt’s ERISA plans
have, in fact, profited with respect to the
withholding of Skretvedt’s benefits during
the relevant time period, or whether those
plans have retained funds from that period
(as opposed to having, at least
hypothetically speaking, transferred their
funds to a third party), we express no
opinion as to the entit(ies) that would
properly be the subject of a judgment
entered pursuant to § 502(a)(3)(B).
28 Indeed, as several circuit courts have
noted, the Senate Finance Committee, in
its report on ERISA , specifically
contemplated that “appropriate equitable
relief” under § 502(a)(3)(B) would
include, “[f]or example, . . . a constructive
trust [to] be imposed on the plan assets. . .
.” S. Rep. No. 93-383, reprinted in 1974
U.S.C.C.A.N. 4890, 4989; see Harsch v.
Eisenberg, 956 F.2d 651, 656 (7th Cir.
1992) (quoting the above language);
Novak v. Andersen Corp., 962 F.2d 757,
760 (8th Cir. 1992) (same); Sokol v.
Bernstein, 803 F.2d 532, 538 (9th Cir.
1986) (same).

-- 28 of 33 --

29
benefits were wrongfully withheld or
wrongfully delayed, that is, . . . withheld or
delayed in violation of ERISA or an
ERISA plan.” 319 F.3d at 617.29 If
benefits were wrongfully withheld,
“interest is presumptively appropriate . . .
u n l e s s e x c e p t i o n a l o r u n u s u a l
circumstances exist making the award of
interest inequitable [, such as] bad faith or
dilatoriness by the claimant.” Id. at 618
(internal quotation marks and citations
omitted).30
29 Our determination in Fotta II that a
district court must consider whether
benefits were wrongfully withheld or
wrongfully delayed was based on the fact
that § 502(a)(3)(B) “does not . . . authorize
appropriate equitable relief at large, but
only ‘appropriate equitable relief’ for the
purpose of ‘redress[ing any] violations or
enforc[ing] any provisions of ERISA or an
ERISA plan.” Fotta II, 319 F.3d at 616
(quoting Fotta I, 165 F.3d at 213 (citing
Mertens, 508 U.S. at 253)) (internal
quotation marks omitted; emphasis in
original).
Of course, to the extent that
Skretvedt seeks prejudgment interest on
his incapability benefits, which were
awarded by court judgment pursuant to
§ 502(a)(1)(B), wrongful withholding or
wrongful delay is not per se relevant, as
prejudgment interest in that context
derives from § 502(a)(1)(B) and the
District Court’s exercise of discretion in
awarding interest. See supra Section V-A.
30 Great-West may have changed the
nature of how “interest” is to be calculated
in an award for the delayed payment of
benefits under ERISA § 502(a)(3)(B) since
our prior holding in Holmes v. Pension
Plan of Bethlehem Steel Corp., 213 F.3d
124, 131-34 (3d Cir. 2000). In Holmes,
we held that a District Court did not abuse
its discretion in awarding interest on the
delayed payment of pension benefits under
the Treasury Bill yield rate as calculated in
28 U.S.C. § 1961 because, according to the
District Court in that case, requiring the
ERISA plan to disgorge its profits “would
be essentially punitive in nature, and . . .
punitive measures were inappropriate
where the delayed payment of benefits was
inadvertent rather than intentional.” Id. at
132 (internal quotation marks and citations
omitted).
To the extent that Skretvedt seeks
on remand a constructive trust to disgorge
the gain of his ERISA plans, it would
seem, in light of Great-West, that the
actual gain (if any) made on withheld
benefits would be an appropriate subject of
a constructive trust. See Dobbs § 4.3(2), at
592 (“The constructive trust has [an]
especially important characteristic[:] . . .
under the rules for following property or
money into its product, the plaintiff may
obtain . . . gains received by the defendant
from the property’s increase in value. . .
.”).
However, the Eighth Circuit in
Parke, applying the accounting for profits
remedy, has noted that
[a] defendant . . .
“gains” from the wrongful

-- 29 of 33 --

30
C. Postjudgment Interest
28 U.S.C. § 1961 provides that
“[i]nterest shall be allowed on any money
judgment in a civil case recovered in a
district court.” Id. Skretvedt seeks
postjudgment interest, presumably on any
award of interest and prejudgment interest
he receives on remand from this opinion
and to the extent DuPont delayed in paying
incapability benefits after the Magistrate
Judge’s December 13, 2001, judgment.31
With respect to Skretvedt’s
w i t h h o l d in g o f t h e
plaintiff’s benefits even if
the plaintiff does not prove
specific financial profit. In
particular, the defendant
receives a benefit from
having control over the
money. See [Dobbs]
§ 3.6(2), at 344 n.22
(“[U]ntil the plaintiff is
paid, the defendant has the
use of funds that ought to go
to the discharge of his
obligation of the plaintiff.
That is a benefit. The
defendant may [choose] not
[to] use the funds or collect
i n t e r e s t o n t h e m .
Nevertheless, he has a
benefit found in his power
to do so.”).
Parke, ___ F.3d at ___, 2004 WL
1144787, at *7 (third alteration in
original). Thus, while Parke suggested
that it may be possible to disgorge a
defendant’s actual gain if “specific
financial profit” can be shown, the Court
concluded that “[i]n the particular context
of withheld benefits under ERISA, . . .
[i]nterest is, in many respects, the only
way to account for this gain and therefore
is an appropriate measure of the extent to
which [a defendant] was unjustly
enriched.” Id. In reaching that
conclusion, Parke relied on a section of
Dobbs suggesting that interest, as opposed
to a defendant’s actual gain, is available as
restitution where the defendant “has had
the use of money . . . to which the plaintiff
was entitled” but “did not actually reap
interest or profits.” Dobbs § 3.6(2), at
344. This treatise indicates that the
“clearest case for [such interest] liability
for unrealized gains occu rs with
fiduciaries who are under a duty to invest
funds for the benefit of the plaintiff but
fail[] to do so.” Id. at 345.
We need not, and cannot, address
today whether interest or actual gain is to
be awarded to Skretvedt under §
502(a)(3)(B), however, as the Magistrate
Judge could determine that Skretvedt is
not entitled to such an award under Fotta
II and a record has not been developed as
to the actual gain, if any, made by the
relevant ERISA plans.
31 As noted supra, no judgment exists
with r e s p ec t to T & P bene fits .
Accordingly, there is no basis for an award
of postjudgment interest under § 1961 with
respect to these benefits.

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underlying incapability benefits award,
there was a delay between the Magistrate
Judge’s December 13, 2001, judgment
awarding incapability benefits and DuPont
having paid those benefits on March 6,
2002, with further adjustments made on
April 15 and 16, 2002. Several circuit
courts have held that an award of
postjudgment interest on benefits awarded
pursuant to ERISA § 502(a)(1)(B) is
mandatory under 28 U.S.C. § 1961 if
requested.32 The Supreme Court has
determined that postjudgment interest
under § 1961 “properly runs from the date
of the entry of judgment.” Kaiser
Aluminum & Chem. Corp. v. Bonjorno,
494 U.S. 827, 835 (1990). The fact that
the December 13, 2001, judgment was not
a final order for purposes of appeal would
not otherwise prevent postjudgment
interest from running under § 1961
pursuant to a timely request from
Skretvedt. We stated in In re Lower Lake
Erie Iron Ore Antitrust Litigation, 998
F.2d 1144, 1177-78 (3d Cir. 1993), that
§ 1961 “does not, by its terms, mandate
that the judgment from which interest is
calculated must be a final judgment. Our
view is consistent with the statute’s
philosophy of providing compensation
from a point at which the loss-causing
defendant’s liability is entered on record.”
32 See, e.g., Cottrill v. Sparrow,
Johnson & Ursillo, Inc., 100 F.3d 220, 224
(1st Cir. 1996) (“ERISA provides for
postjudgment interest to be calculated at
the federal rate, 28 U.S.C. § 1961(a)
(1994)”); Quesinberry v. Life Ins. Co. of
North Am., 987 F.2d 1017, 1031 (4th Cir.
1993) (en banc) (“In contrast to the district
court’s discretion in the awarding of
pre-judgment interest, federa l law
mandates the awarding of post-judgment
interest. 28 U.S.C. § 1961 (1988). While
ERISA does not specifically address
post-judgment interest, it does provide that
the statute is not to be construed to ‘alter,
amend, modify, invalidate, impair, or
supersede any law of the United States.’
29 U.S.C. § 1144(d) (1988). Therefore,
the federal post-judgment interest statute,
28 U.S.C. § 1961 (1988), is applicable in
ERISA cases.”); Caffey v. UNUM Life Ins.
Co., 302 F.3d 576, 586 (6th Cir. 2002)
(“The statute mandates the imposition of
post-judgment interest, thus removing the
award of such interest from the discretion
of the District Court. The federal
postjudgment interest statute allows
interest on “all money judgments,”
including those in ERISA cases.”)
(internal citations and quotation marks
omitted); Mansker v. TMG Life Ins. Co.,
54 F.3d 1322, 1331 (8th Cir. 1995) (“28
U.S.C. § 1961 provides the proper measure
for determining rates of both prejudgment
and postjudgment interest” in ERISA
cases); Carriers Container Council, Inc. v.
Mobile S.S. Ass’n, Inc. et al., 948 F.2d
1219, 1226 (11th Cir. 1991) (upholding
application of § 1961 to an ERISA award);
I.A.M. Nat. Pension Fund, Plan A, A
Benefits v. Slyman Indus., Inc., 901 F.2d
127, 130 (D.C. Cir. 1990) (same).

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32
Id.33
However, while postjudgment
interest can begin to accrue on a non-final
judgment under Iron Ore, the phrase “any
money judgment” in § 1961(a) “requires
that the judgment at issue award a fixed
amount of fees to the prevailing party in
order to trigger the post-judgment interest
period.” Eaves v. County of Cape May,
239 F.3d 527, 534 (3d Cir. 2001). As we
have noted, however, the judgment entered
with respect to incapability benefits on
December 13, 2001, did not quantify a
mon etary amou nt. Ac cord ingly,
postjudgment interest under § 1961 did not
begin to accrue on that date because no
“money judgment” had been entered.
Absent the existence of a “money
judgment,” Skretvedt is, therefore, unable
to pursue postjudgment interest with
respect to DuPont’s four month delay in
paying incapability benefits.
With respect to postjudgment
interest on the Magistrate Judge’s award of
any prejudgment interest for incapability
benefits, postjudgment interest should be
calculated based upon the underlying
judgment and award of prejudgment
interest. See Sun Ship, Inc. v. Matson
Navigation Co., 785 F.2d 59, 63 (3d Cir.
1986); see generally Caffey v. UNUM Life
Ins. Co., 302 F.3d 576, 586 (6th Cir. 2002)
(“postjudgment interest should be awarded
on the entire amount of the judgment,
including any prejudgment interest”)
(noting agreement among the Fourth,
Ninth, Tenth, and Eleventh Circuit
Courts). Accordingly, Skretvedt could
receive postjudgment interest on any
award of prejudgment interest under
ERISA § 502(a)(1)(B) with respect to
incapability benefits, should the Magistrate
Judge award prejudgment interest in
exercising her discretion, as discussed
above in Section V-A.
There is some question, however, as
to whether § 1961 applies to a judgment
obtained pursuant to an equitable
remedy,34 which would affect the
33 A circuit split has developed on this
issue, however. The Ninth Circuit,
looking to “practical considerations,” has
determined that postjudgment interest
under § 1961 begins to run only where a
final, appealable judgment has been
entered. See Dishman v. UNUM Life Ins.
Co. of Am., 269 F.3d 974, 990-91 (9th Cir.
2001) (“‘judgment’ within the meaning of
28 U.S.C. § 1961 means ‘final, appealable
order’”). The Sixth Circuit, implicitly
agreeing with Iron Ore, has determined
that “the better rule is for plaintiffs to be
entitled to post-judgment interest from the
date of entry of the initial, partial judgment
. . . , even though that judgment was not
yet appealable.” Skalka v. Fernald Envtl.
Restoration Mgmt. Corp., 178 F.3d 414,
429 (6th Cir. 1999).
34 We expressed this concern in Brock
v. Richardson, 812 F.2d 121 (3d Cir.
1987):
In Perkins v. Fourniquet, 55
U.S. (14 How.) 328, 330, 14
L.Ed. 441 (1853), the

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availability of post-judgment interest on an
award of interest for the delayed payment
o f T&P benefits under ER IS A
§ 502(a)(3)(B). We need not address this
issue today, as the Magistrate Judge might
determine that Skretvedt is not entitled to
a constructive trust for interest under Fotta
II because there was not a wrongful
withholding of or delay in paying T&P
benefits.
Conclusion
We reverse the Magistrate Judge’s
August 21, 2002, and November 12, 2002,
orders only with respect to their denial of:
(1) prejudgment interest on the award of
incapability benefits; (2) interest on the
delayed payment of T&P benefits; and (3)
postjudgment interest on both of those
awards. We remand for the M agistrate
Judge to reconsider in the first instance
whether Skretvedt is entitled in light of
this opinion to prejudgment interest on the
award of incapability benefits and/or
interest on the delayed payment of T&P
benefits, without prejudice to Skretvedt’s
ability to file a timely motion for
postjudgment interest on any resulting
award of prejudgment interest (with
respect to incapability benefits) or interest
(with respect to T&P benefits). The
appeal is dismissed otherwise to the extent
it seeks to address claims raised in the
complaint other than Counts I and V for
i n c a p a b i l i t y a n d T & P b e n e f i t s ,
respectively.
Supreme Court held that the
pre decessor statute to
section 1961[] did not apply
to equitable decrees, relying
on the use of the word
“ j u d g m e n t ” , a s
distinguished from “decree”,
the equitable counterpart.
C h i e f J u s t i c e T a n e y
explained that, “[the statute]
is confined, in plain terms,
to judgments at law.” Id.
Id. at 125-26 (noting a “hesitancy” to
interpret § 19 61 as man dati ng
postjudgment interest on back-pay awards
under the Fair Labor Standards Act when
those awards are procured under a section
of that Act arguably providing for relief
that is equitable in nature, but nonetheless
allowing for postjudgment interest on
other grounds) (footnote omitted).

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