Frank J. Crosby, individually and on behalf of all others similarly situated v. Bowater Incorporated Retirement Plan for Salaried Employees of Great Northern Paper Inc.

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0303P (6th Cir.)
File Name: 04a0303p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FRANK J. CROSBY,
individually and on behalf of
all others similarly situated,
Plaintiff-Appellee,
v.
BOWATER INCORPORATED
RETIREMENT PLAN FOR
SALARIED EMPLOYEES OF
GREAT NORTHERN PAPER INC.
and BOWATER,
INCORPORATED,
Defendants-Appellants.
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No. 03-1044
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 01-00683—Richard A. Enslen, District Judge.
Argued: April 20, 2004
Decided and Filed: September 9, 2004
Before: BOGGS, Chief Judge; NELSON and SUTTON,
Circuit Judges.
2 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
1F.W . Maitland, The Forms of Action at Common Law 2 (A.H.
Chaytor & W .J. Whittaker eds., 1948).
_________________
COUNSEL
ARGUED: Thomas J. Piskorski, SEYFARTH SHAW,
Chicago, Illinois, for Appellants. Eva T. Cantarella, HERTZ,
SCHRAM & SARETZKY, Bloomfield Hills, Michigan, for
Appellee. ON BRIEF: Ian H. Morrison, SEYFARTH
SHAW, Chicago, Illinois, for Appellants. Eva T. Cantarella,
Bradley J. Schram, Robert P. Geller, Bradford T. Yaker,
HERTZ, SCHRAM & SARETZKY, Bloomfield Hills,
Michigan, for Appellee.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. This appeal shows
that the distinction between law and equity can still have
consequences. (“The forms of action we have buried,”
Maitland observed in a very different context, “but they still
rule us from their graves.”1)
The plaintiff, a participant in a retirement plan governed by
the Employee Retirement Income Security Act of 1974
(ERISA), 88 Stat. 832, claimed that the plan administrator
had acted improperly in using a pre-retirement mortality
discount factor when calculating lump sum pre-retirement
benefits. As a result, the plaintiff asserted, he was paid a
benefit that fell $5,249.08 short of what he was entitled to
receive. Invoking § 502(a)(3) of ERISA, 29 U.S.C.

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
3
2As codified in Title 29 of the U.S. Code, ERISA § 502(a)(3)
provides as follows:
“A civil action m ay be b rought —
* * *
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any
act or practice w hich vio lates any p rovision of this subchapter or
the terms o f the plan, or (B) to obtain other ap propriate
equ itable relief (i) to redress such violations or (ii) to enforce
any provisions o f this subchapter or the terms of the plan.”
29 U.S.C. § 11 32(a)(3) (emphasis supplied).
A separate provision, § 502(a)(1)(B) of ERISA, 29 U.S.C.
§ 113 2(a)(1)(B ), authorizes a p articipant to bring suit “to recover benefits
due to him under the term s of his plan. . . .” The plaintiff in this case did
not invoke § 502(a)(1)(B).
§ 1132(a)(3),2 and purporting to act on behalf of a class of
approximately 350 plan participants said to be similarly
situated, the plaintiff brought suit against the plan and its
administrator for what he described as “equitable and
injunctive relief.” At the heart of the plaintiff’s prayer for
relief was a request for recovery of additional lump sum
benefits.
After a wave of motions had been filed, the district court
entered an order granting class certification, granting
summary judgment in favor of the plaintiff and the class,
ordering a recalculation of lump sum pre-retirement benefits
without the mortality discount, and requiring the defendants
“to immediately refund [the] under-payments . . . .”
For the district court to order the defendants to “refund”
(i.e. to pay) the difference between the amount calculated
without a mortality discount and the amount actually received
was to grant a form of relief not typically available in equity.
Such relief, we conclude, was thus not available under the
statutory provision on which the plaintiff elected to base his
action. See Great-West Life & Annuity Ins. Co. v. Knudson,
4 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
534 U.S. 204 (2002), and Mertens v. Hewitt Associates, 508
U.S. 248 (1993).
If we assume, for purposes of analysis, that the defendants
had no discretion to use the mortality discount factor in
making the benefit calculation, the fact remains that ERISA
§ 502(a)(3), which authorizes only suits for injunctive or
other equitable relief, does not, in most situations, authorize
an action for money claimed to be due and owing. An action
in which the plaintiff complains that the defendant owes him
money and has refused to pay the debt is, of course, the locus
classicus of an action at law; if we were to say that such an
action qualifies as a suit in equity, we should be giving the
words used by Congress in § 502(a)(3) a meaning that Great-
West and Mertens teach they will not bear. The challenged
judgment will therefore be reversed.
I
The individual plaintiff, Frank J. Crosby, was a participant
in an ERISA retirement plan administered by defendant
Bowater Incorporated, the parent corporation of Mr. Crosby’s
sometime employer, Great Northern Paper, Inc. Before he
reached his normal retirement age, but after his pension rights
had vested, Mr. Crosby lost his job as a result of Great
Northern’s having been sold to another company. The
termination of Mr. Crosby’s employment accelerated his right
to receive benefits under the retirement plan.
The Bowater plan was of the “cash balance” variety, a
species of the “defined benefit” genus. The plan gave Mr.
Crosby a hypothetical “Personal Account,” and his benefits
were to be a function of the balance in that account. The
balance reflected credits geared to Mr. Crosby’s monthly
compensation and a specified rate of interest. The Personal
Account was nothing more than a computational construct,
and benefits were to be paid from the plan’s general assets.

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
5
3Except where the context indicates otherwise, all references in this
opinion to “Bowater” should be read as mea ning Bowater in its plan-
adm inistrator capa city.
If Mr. Crosby had been able to retire from Great Northern
at age 65 — the “normal retirement age” specified in the plan
— a joint-and-survivor annuity would have been payable as
long as he or his wife continued living. The amount of the
annuity would have been determined by taking the balance in
Mr. Crosby’s Personal Account at age 65 and dividing it by
a prescribed annuity factor. And had Mr. Crosby died before
age 65 while still employed by Great Northern, a death
benefit would have been payable in an amount equal to the
then present value of his accrued retirement benefit.
When Mr. Crosby ceased to be an employee of Great
Northern, not having retired or died on the job, he became
eligible, under the terms of the plan, for a distribution of his
retirement benefit. Mr. Crosby, who was 43 years old at the
time, elected to take his distribution in a lump sum.
Bowater, as plan administrator,3 told Mr. Crosby that the
lump sum would be $48,732.14. That was the balance in
Crosby’s Personal Account. (Article XII of the plan provided
that a participant’s accrued benefit could only be distributed
in a form of payment selected by the participant from a list of
options incorporated in § 12.2 of the plan. The second option,
set forth in § 12.2(b), was “[a] single lump sum payment
equal to the amount credited to the Participant’s Personal
Account as of the end of the month preceding his Benefit
Commencement date.”)
Claiming that the relevant statutory law, as interpreted by
the Internal Revenue Service in IRS Notice 96-8 (IRB 1996-
6, Feb. 5, 1996), entitled him to receive more than the amount
credited to his Personal Account, Mr. Crosby asked Bowater
to recompute his lump sum by (1) projecting interest credits
6 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
to normal retirement age, (2) dividing the resultant age-65
account balance by the annuity factor prescribed in the plan,
and (3) discounting the age-65 annuity to its present value.
Bowater acceded to this request, notwithstanding that the
Internal Revenue Service had approved the plan provision
pegging the lump sum entitlement to the amount credited to
the participant’s Personal Account. Mr. Crosby was advised
that his claim for a larger benefit had been granted and that
his lump sum entitlement had been recalculated. The
resulting figure was $52,013.90. We presume that this
amount was paid in full.
In a detailed explanation of how it arrived at the
$52,013.90, Bowater told Mr. Crosby, among other things,
that it had used a pre-normal-retirement-age mortality
discount factor in its present-value calculation. When it
determined the present value of an age-65 annuity, in other
words, Bowater took into account the possibility that Mr.
Crosby might die before reaching the age at which he would
be entitled to start receiving annuity payments.
Mr. Crosby objected to the use of the mortality discount
factor, filing an appeal with Bowater in which he made the
following argument:
“This discount factor is not consistent with the
calculation method described in IRS Notice 96-8.
Further, I believe this discount reduces my accrued
benefit, and, thus, is not allowed under ERISA.”
Bowater’s Pension Administration Committee denied the
appeal, issuing a five-page explanation of its decision to do
so.
Mr. Crosby then sued the Bowater plan and Bowater
Incorporated in the United States District Court for the
Western District of Michigan. The complaint alleged, among
other things, (1) that “when Bowater discounted Crosby’s

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
7
4Section 203(a) sets forth rules on the extent to which accrued
benefits are nonforfeitable. As Mr. Crosb y subsequently reiterated in a
brief filed with the district co urt, “Cro sby’s claim is for violation of . . .
the anti-forfeiture rules unde r ER ISA § 20 3(a).”
5In his brief on appeal, Mr. Crosby tells us that he “could not bring
his claim und er ER ISA § 50 2(a)(1)(B) because the Plan ’s lump sum
provision contemplates paym ent of an amount equal to the particip ant’s
Personal Account . . ., the amo unt Bowater initially offered Crosby.
Consequently, if Crosby had brought his claim under § 502(a)(1)(B), he
would be entitled to no relief at all . . . .” We intimate no view as to
whether this propo sition is correct.
age-65 annuity to present value, it should not have used a
mortality discount for the period before normal retirement
age;” (2) that “[i]f Bowater had utilized the . . . mortality
discount factors for the period after normal retirement age
only, Crosby’s lump sum entitlement . . . would have been
$57,262.98” instead of the $52,013.90 produced by the
method Bowater in fact used; and (3) that “Bowater’s use of
a mortality discount for the period before normal retirement
age caused a partial forfeiture of Crosby’s accrued benefit,
thereby violating ERISA § 203(a), 29 U.S.C. § 1053(a).”4
The complaint stated that Mr. Crosby brought his claim
“under ERISA § 203(a), 29 U.S.C. § 1053(a), and the
enabling statute, ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).”
As noted above, Mr. Crosby did not bring his claim under
ERISA § 502(a)(1)(B) — the section that authorizes a party
to sue for “benefits due to him under the terms of his
plan. . . .” (Under the language of the plan, Mr. Crosby was
entitled to less than he had already been paid — a
circumstance that explains the decision not to invoke
§ 502(a)(1)(B).5)
The complaint alleged that approximately 350 plan
participants or beneficiaries were in the same boat as Mr.
Crosby — i.e., they were victims of Bowater’s insistence on
8 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
use of a mortality discount factor for the period before normal
retirement age. Joinder of such a large number of individuals
was said to be impracticable, and the complaint stated that
Mr. Crosby “seeks both equitable and injunctive relief for the
Class, as permitted under ERISA § 502(a)(3).”
The complaint’s prayer for relief asked the court to enter a
judgment ordering the defendants to “[r]e-compute any and
all lump sum benefits previously paid,” using the
methodology followed in the recomputation of Mr. Crosby’s
lump sum entitlement “but without any mortality discount for
the period before normal retirement age.” The court was
further asked to (1) order the defendants to “[p]ay all Plan
participants or their beneficiaries who previously received a
lump sum distribution . . . the difference between the amount
[so] computed . . . and the lump sum amount the participant
or beneficiary received from the Plan, plus pre-judgment and
post-judgment interest on this amount;” to (2) “[e]njoin
defendants from utilizing a mortality discount for the period
before normal retirement age when computing a lump sum
distribution from the Plan in the future;” and to (3) order the
defendants to “[p]ay . . . reasonable attorney’s fees and costs
. . . .” The prayer for relief also included a request that the
court “impose a constructive trust over the amount of plan
assets necessary to pay the amounts determined . . . and award
any other equitable relief this Court deems appropriate.”
The defendants responded to the complaint with a motion
to dismiss under Rule 12(b)(6), Fed. R. Civ. P. The first and
second numbered paragraphs of the defendants’ motion read
as follows:
“1. Crosby purports to bring this action under Section
502(a)(3) of the Employee Retirement Income Security
Act of 1974 (‘ERISA’), 29 U.S.C. § 1132(a)(3), and
styles it as an action to enforce Section 203(a)(2)(A) of
ERISA.

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
9
2. Crosby sues to recover an increased lump sum
distribution of his retirement benefit under the Plan, a
retirement benefit plan sponsored and administered by
Bowater. In particular, Crosby claims that in calculating
the present value of his retirement benefit, defendants
incorrectly used a mortality discount for the part of that
calculation dealing with the time before Crosby had
reached age 65.”
The brief accompanying the motion pointed out that the
statutory provision on which Mr. Crosby purported to sue did
not authorize a suit for the relief he was seeking:
“Although what he really seeks is an award of
additional benefits, a claim properly brought under
E R I S A § 5 0 2 ( a ) ( 1 ) ( B ) , 2 9 U . S . C .
§ 1132(a)(1)(B)[footnote omitted], Crosby purports to
sue under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).
That provision only authorizes Crosby to bring an action
to ‘enjoin any act or practice which violates any
provision of [ERISA] or the terms of the plan.’”
Mr. Crosby filed a response to the 12(b)(6) motion in which
he admitted the substance of paragraphs 1 and 2 of the
motion:
“1. Crosby agrees that he brought this action under
§ 203(a)(2) and § 502(a)(3) of the Employee
Retirement Income Security Act (‘ERISA’).
29 U.S.C. § 1053(a)(2) and 29 U.S.C. § 1132(a)(3).
2. Crosby agrees that (a) he is suing to recover
additional lump sum benefits; (b) the Plan is
sponsored and administered by Bowater; and (c) he
claims that Bowater incorrectly utilized a mortality
discount for the period before age 65 when it
computed his lump sum.”
10 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
The response was accompanied with a cross motion for
summary judgment based on the complaint as filed; at no time
did Mr. Crosby seek leave to amend the complaint.
In due course, after Mr. Crosby had filed a motion for class
certification, the district court ordered briefing on the
appropriateness of the requested equitable remedies in the
event the plaintiff succeeded on his summary judgment
motion. In the brief filed pursuant to the court’s direction,
Mr. Crosby reiterated he had brought his claim under
§ 502(a)(3), “which authorizes ‘appropriate equitable relief.’”
Arguing that the relief he sought was “equitable” as well as
“appropriate,” Mr. Crosby cited Great-West Life & Annuity
Ins. Co. v. Knudson, 634 U.S. 204 (2002), as “suggest[ing]
that if the relief requested does not seek to impose liability for
a contractual monetary obligation, it is probably an
appropriate equitable remedy.” The district court was told that
“Crosby does not seek to impose liability on defendants for
any contractual obligation to pay money.”
After the completion of briefing, and having dispensed with
oral argument, the district court entered a final judgment in
which the court granted class certification; denied the
defendants’ motion to dismiss; granted the plaintiff’s
summary judgment motion; enjoined the defendants “to
recalculate the lump sum benefits of class members who had
previously received lump sum benefits, in accordance with
the Court’s Opinion, and to immediately refund under-
payments, plus pre-judgment and post-judgment interest;”
and to “calculate lump sum benefit payments for class
members who have not yet received any lump sum benefits in
accordance with the Court’s Opinion.”
The opinion itself — a comprehensive and well-crafted
analysis of a variety of issues, some of which are not in
contention on appeal — reasoned that because the plan
provided for payment of a pre-retirement death benefit in the
amount of the then-vested present value of the participant’s

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
11
accrued benefit, the death benefit was not “incidental” to the
participant’s accrued benefit and the plan administrator thus
lacked discretion to use a mortality discount factor in
reducing the projected age-65 annuity to its present value.
The bottom line, in the district court’s view, was that the
lump sum payment to which Mr. Crosby claimed to be
entitled — $57,262.98, as the court noted — should not have
undergone the mortality reduction that resulted in a lump sum
payout of only $52,013.90.
The defendants perfected a timely appeal. Much of the
argument they present to our court is a defense of the merits
of the plan administrator’s decision to take pre-retirement
mortality risk into account. The defendants argue further that
the decision should have been reviewed under an arbitrary-
and- capricious standard, and that the district court was
required to uphold the decision as reasonable. We do not
reach these issues, because — as the defendants also argue —
the primary relief sought by Mr. Crosby did not qualify as
“equitable relief” of the sort authorized by ERISA
§ 502(a)(3), 29 U.S.C. § 1132(a)(3).
II
The present opinion is not the place for a history lesson on
the development of the parallel systems of jurisprudence
known as “law” and “equity.” It will suffice, we trust, to
remind the reader that courts of law — in which the common
law of the English speaking peoples had its principal growth
— were for a number of centuries separate and distinct from
chancery courts (originally the court of an ecclesiastical
person appointed by the king to be his chancellor); that the
rules of decision followed in chancery courts were not
common law rules, but rules of equity; that chancery courts
(i.e. courts of equity) likewise had their own procedures —
procedures under which, for example, the chancellor
performed the fact-finding rôle that in courts of law would be
performed by a jury; and that the remedies typically available
12 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
6In England, for example, this has been true since 1875. See W.M.
Geldart, Elements of English Law (5th Ed. 1953) at p. 22. In some
American jurisdictions — New Jersey, for example — the fusion took
place within living memory. See N.J. Const., Art. 11, §4, ¶ 3 (1947).
7Geldart, id.
to a party who prevailed in a court of equity (injunctive relief,
e.g.) were far from identical to the remedies the prevailing
party could obtain in a court of law. Although, in most
jurisdictions, the same courts have long administered both
law and equity,6 the unified courts have been administering
what Professor Geldart described as “distinct bodies of law,
governed largely by different principles.”7
Against this background, we return to the text of ERISA
§ 502(a)(3), the statutory section under which plaintiff Crosby
brought his suit. Under § 502(a)(3), as codified at 29 U.S.C.
§ 1132(a)(3), Mr. Crosby could institute a proceeding “(A) to
enjoin any act or practice which violates [ERISA] 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 [ERISA] or the terms of the plan.” (Emphasis
supplied.) Section 502(a)(3) does not authorize a plan
participant to sue for recovery of benefits due to him under
the terms of the plan. That is the office of § 502(1)(B) — a
section with which Mr. Crosby has always insisted he will
have nothing to do.
But what if the benefits are not claimed to be due under
terms of the plan, strictly speaking, but under the terms of a
statute — in this case ERISA § 203(a), 29 U.S.C. § 1053(a)
— setting forth requirements that the plan must satisfy? The
answer, we believe, depends on whether the claim for benefits
allegedly due under the statutory requirements is or is not, at
bottom, a claim for injunctive or other equitable relief. No
matter how well founded it may be as a matter of substantive

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Retirement Plan, et al.
13
law, a claim for benefits is not cognizable under § 502(a)(3)
of ERISA unless it is a claim for “equitable relief.”
As used in § 502(a)(3), the Supreme Court has repeatedly
held, “equitable relief” refers to “those categories of relief that
were typically available in equity (such as injunction,
mandamus, and restitution, but not compensatory damages).”
Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993); cf.
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 210 (2002). And “[a]lmost invariably . . . suits seeking
(whether by judgment, injunction, or declaration) to compel
the defendant to pay a sum of money to the plaintiff are suits
for ‘money damages,’ as that phrase has traditionally been
applied, since they seek no more than compensation for loss
resulting from the defendant’s breach of legal duty.” Bowen
v. Massachusetts, 487 U.S. 879, 918-19 (1988) (Scalia, J.,
dissenting), as quoted with approval in Great-West, 534 U.S.
at 210. “And ‘[m]oney damages are, of course, the classic
form of legal relief.’” Id. (quoting Mertens, 508 U.S. at 255).
Mr. Crosby acknowledged in the court below that suits
seeking to compel the defendant to pay a sum of money to the
plaintiff are “almost invariably” excluded from the category
of suits seeking relief typically available in equity, according
to the Supreme Court. Citing Harris Trust and Savings Bank
v. Salomon Smith Barney Inc., 530 U.S. 238 (2000), however,
Crosby argued that “‘[a]lmost invariably’ does not mean
‘always’ . . . .” (Reply Brief in Support of Plaintiff’s Request
for Equitable Relief, at page 29.) Because he is seeking
imposition of a constructive trust (an equitable remedy) on
property that he says “truly and equitably” belongs to him,
see Harris Trust at 250-51, and because “restitution [another
equitable remedy] may be awarded for any ‘ill-gotten plan
assets or profits,’” see id. at 253, Mr. Crosby argued that his
individual claim for the wrongfully withheld $5,249.08 was
not a claim for legal relief, but a claim for the sort of
“equitable relief” spoken of in § 502(a)(3).
14 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
We do not find this line of argument persuasive. It is true
that Mr. Crosby requested the district court to impose a
constructive trust over the amount of plan assets necessary to
pay his claim — and over the separate assets of Bowater
Incorporated, if necessary — but we do not read Harris Trust
as suggesting that such a request for securitization of the debt
can transmogrify Mr. Crosby’s claim for a money judgment
into an essentially equitable claim. A glance at the facts of
Harris Trust explains why.
In Harris Trust a retirement plan had purchased certain
motel interests from a company that the plan had been using
as a stockbroker. Because the stockbroker was a “party in
interest,” as the Supreme Court assumed, the purchase of the
motel interests was prohibited under § 406(a)(1)(A) of
ERISA, 29 U.S.C. § 1106(a)(1)(A). Invoking the “equitable
relief” provision of ERISA § 502(a)(3), the trustee and the
administrator of the retirement plan sued the stockbroker for
rescission of the purchase of the motel interests; restitution of
the purchase price, with interest, from the stockbroker; and
disgorgement of any profits the stockbroker had made with
the purchase money.
The Court of Appeals for the Seventh Circuit concluded
that as a non-fiduciary, the stockbroker could not be held
liable under § 502(a)(3) for participating in a transaction
prohibited by § 406. See Harris Trust and Savings Bank v.
Salomon Brothers Inc., 184 F.3d 646, 653 (7th Cir. 1999). The
Supreme Court reversed, holding that the stockbroker’s non-
fiduciary status did not insulate it from claims for equitable
relief under § 502(a)(3).
Referring to the law of trusts — one of the main branches
of equity jurisprudence — the Harris Trust court observed
that
“it has long been settled that when a trustee in breach of
his fiduciary duty to the beneficiaries transfers trust

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
15
property to a third person, the third person takes the
property subject to the trust, unless he has purchased the
property for value and without notice of the fiduciary’s
breach of duty. The trustee or beneficiaries may then
maintain an action 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.” Harris Trust, 530
U.S. at 250.
The Court went on to explain that
“[o]nly a transferee of ill-gotten trust assets may be held
liable, and then only when the transferee (assuming he
has purchased for value) knew or should have known of
the existence of the trust and the circumstances that
rendered the transfer in breach of the trust.” Id. at 251.
And — making an obvious point that has obvious
significance for us — the Supreme Court observed that a suit
against a transferee for tainted plan assets, in addition to
satisfying the “appropriateness” criterion,
“is also ‘equitable’ in nature. See Mertens, 508 U.S., at
260 (‘[T]he “equitable relief” awardable under
§ 502(a)(5) includes restitution of ill-gotten plan assets
or profits . . .’); ibid. (explaining that, in light of the
similarity of language in §§ 502(a)(3) and (5), that
language should be deemed to have the same meaning in
both subsections).” Id. at 253 (emphasis supplied).
In the case at bar, of course, Mr. Crosby is not seeking
restitution to the plan of assets wrongfully conveyed to a third
party. He is not seeking to have a constructive trust imposed
16 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
8Mr. Cro sby does ask for imposition of a constructive trust over
sufficient assets to assure that his claim will be paid, thereby putting him
in a better position than he would occupy as a general creditor. But
Crosby has no basis for obtaining such a priority, as far as we can see, and
he is clearly not asking for application of the principle applied in Ha rris
Trust — the principle tha t trust property transferred to a third party in
breach of the trustee’s fiduciary duty is impressed with a trust “unless [the
third party] has purchased the property for value and without notice of the
fiduciary’s breach of duty.” Harris Trust, 530 U.S. at 250.
9On its face, as we have seen, the language of the retireme nt plan’s
lump sum provision contemplates payment of an amount equal only to the
participant’s Personal Account — an amount less than Bowater has
already voluntarily paid . In add ition to pointing this out, Mr. Crosby
notes that among the plan’s miscellaneous provisions is the following:
“The adoption and maintenance of this Plan shall not be deemed to
constitute a contract, expressed or implied, between the Company and any
Employee or to be a consideration for, or inducement or condition of, the
employment of any person.” It thus seems clear that M r. Crosby wo uld
have had no claim for breach of contract absent ERISA, whatever the
situation may be in light of ERISA.
on assets so conveyed.8 And he is not seeking disgorgement
of profits made by a third party on ill-gotten assets. Harris
Trust, as we see it, is thus inapposite.
While Harris Trust is readily distinguishable from the case
now before us, Great-West, in our judgment, is not. It is true
that the plaintiffs in Great-West sought to impose personal
liability on the defendants for a contractual obligation to pay
money, whereas here the plaintiff insists that the asserted
liability is not contractual in nature.9 But if we accept, for
purposes of analysis, plaintiff Crosby’s representation that he,
unlike the plaintiffs in Great-West, has no claim for breach of
contract, we think that the distinction between the Great-West
case and this one is a distinction without a difference.
The statutory origin of Bowater’s asserted obligation to pay
Mr. Crosby an additional $5,249.08, with interest, does not
mean that a breach of the obligation to pay is redressable

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
17
through a suit in equity rather than an action at law.
Historically, an action in debt was no less an action at law
than an action in covenant. See F.W. Maitland, The Forms of
Action at Common Law 63, 64 (A.H. Chaytor & W. J.
Whittaker eds., 1948). And an action of assumpsit (a form of
trespass on the case) to redress the breach of a statutory
obligation to pay a sum certain was likewise an action at law.
See G.C. Cheshire and C.H.S. Fifoot, Law of Contract 15 (3rd
ed. 1952); Marley v. Bankers’ Indemnity Insurance Co., 166
A. 350, 351 (R.I. 1933) (holding that trespass on the case is
the appropriate action to enforce a statutory right).
If it be argued that Mr. Crosby’s position should be likened
to that of a beneficiary of a trust, who could invoke the
jurisdiction of an equity court to enforce a right to receive
money from the trust, the short answer is that just such an
argument has been explicitly rejected by the United States
Supreme Court. See Great-West, 353 U.S. at 219:
“These trust remedies are simply inapposite. In Mertens,
we rejected the claim that the special equity-court powers
applicable to trusts define the reach of § 502(a)(3).”
It remains to be mentioned that Mr. Crosby does request a
form of equitable relief in asking that the defendants be
ordered to recompute — without any mortality discount for
the period before normal retirement age — “any and all lump
sum benefits previously paid to Plan participants,” including
Mr. Crosby. As far as Crosby’s individual claim is
concerned, however, such a recomputation by the defendants
is unnecessary; Mr. Crosby or his advisors have already
performed the recomputation themselves, and Crosby’s
complaint specifies the amount claimed to be due him down
to the last penny. Equity, as the pertinent equitable maxim
tells us, does not require the doing of a vain act.
Mr. Crosby’s complaint also asks for equitable relief in the
form of injunction against use of a pre-normal-retirement-age
18 Crosby v. Bowater Incorporated
Retirement Plan, et al.
No. 03-1044
mortality discount factor in computing future lump sum
distributions. Assuming that such relief might be beneficial
to someone, however, it could only benefit members of the
class other than Mr. Crosby. In the next (and concluding) part
of this opinion we address the question whether Mr. Crosby
can maintain the present suit on behalf of other class members
who might arguably receive some benefit from the equitable
relief sought for them.
III
The Supreme Court has held that a class action may
proceed despite the dismissal of the named plaintiff’s claim,
if the class has been certified and at least one class member
has a live claim. See County of Riverside v. McLaughlin, 500
U.S. 44, 51-52 (1991), and Sosna v. Iowa, 419 U.S. 393, 399-
403 (1975). But these decisions in no way detract from the
principle that the judicial power of Article III courts extends
only to the “cases and controversies” specified in that article.
If the class action is to be maintained, therefore, there must be
“a named plaintiff who has such a case or controversy at the
time the complaint is filed and at the time the class action is
certified.” Sosna, 419 U.S. at 402. Where the named
plaintiff’s claim is one over which “federal jurisdiction never
attached,” there can be no class action. See Walters v. Edgar,
163 F.3d 430, 432-33 (7th Cir. 1998), cert. denied, 526 U.S.
1146 (1999).
For reasons already explained, we do not believe that Mr.
Crosby ever had a justiciable claim under ERISA § 502(a)(3),
the particular statutory provision on which he elected to sue.
Our caselaw teaches — perhaps surprisingly — that federal
subject matter jurisdiction is lacking in such a situation. Thus
in QualChoice, Inc. v. Rowland, 367 F.3d 638, 650 (6th Cir.
2004), we affirmed the dismissal, on jurisdictional grounds,
of an action that sought essentially legal relief under
§ 502(a)(3). In Community Health Plan of Ohio v. Mosser,
347 F.3d 619, 624 (6th Cir. 2003), similarly, we held that an

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No. 03-1044 Crosby v. Bowater Incorporated
Retirement Plan, et al.
19
action seeking legal relief under § 502(a)(3) must be
dismissed for lack of subject matter jurisdiction. Community
Insurance Co. v. Morgan, 54 Fed. Appx. 828, 831-33 (6th
Cir. 2002), and Sheet Metal Local #24 v. Newman, 35 Fed.
Appx. 204, 207 (6th Cir. 2002), are in accordance with that
holding. If these decisions mean what they say, federal
jurisdiction never attached to Mr. Crosby’s claim in the case
at bar. It follows that there is no class action. See Walters,
163 F.3d at 432-33.
The judgment entered by the district court is VACATED
and the case is REMANDED with instructions to DISMISS
Mr. Crosby’s complaint for lack of subject matter jurisdiction.

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