After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

March 2, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SHAUNN NEGLEY,

Plaintiff-Appellant,

v.

BREADS OF THE WORLD

MEDICAL PLAN; BREADS OF THE

WORLD, L.L.C., doing business as

Panera Bread,

Defendants-Appellees.

No. 05-1415

(D.C. No. 02-cv-840-ZLW-PAC)

(D. Colo.)

ORDER AND JUDGMENT

*

Before HOLMES, McKAY, and BRORBY, Circuit Judges.

Shaunn Negley appeals the district court’s grant of judgment as a matter of

law in favor of Breads of the World Medical Plan (BOW Plan or Plan) and Breads

of the World, L.L.C. (BOW). We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and AFFIRM.
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I. Background

Mr. Negley began employment with BOW in June 2001. BOW told Mr.

Negley his eligibility date for health insurance through the BOW Plan was July 1,

2001. Benefits under the BOW Plan were fully insured by Medical Mutual of

Ohio (MMO). MMO is not a party to this action. BOW forwarded health plan

enrollment materials to Mr. Negley on several different occasions at various

addresses, but he did not receive the materials until September 28. After

submitting his enrollment form to MMO on October 8, Mr. Negley was enrolled

in the BOW Plan effective November 1, according to the terms of the Plan

documents. Based on that effective date, Mr. Negley was subject to a preexisting

condition exclusion under the Plan for a number of months and, as a result, he

incurred medical expenses that were not covered by his health insurance. 

Mr. Negley filed this lawsuit against BOW and the BOW Plan, seeking

damages for his lost medical benefits under § 502(a) of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a). He alleged that

BOW, as an ERISA fiduciary, violated its duties to properly transmit health plan

enrollment materials to him, to advise him of applicable deadlines for submitting

his enrollment materials, and to promptly enroll him in the BOW Plan by

submitting those materials to MMO within the deadlines. As a result of BOW’s

alleged breach of fiduciary duty, Mr. Negley sought damages, including but not

limited to medical and related expenses, as well as costs, attorneys’ fees,
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prejudgment interest, statutory penalties authorized by ERISA, and such other and

further relief as the district court deemed fit.

Mr. Negley’s case was tried to the court in April 2004. Defendants moved

for judgment as a matter of law after the close of plaintiff’s evidence and again

following the submission of all of the evidence. They argued, in relevant part,

that the money damages Mr. Negley sought were not recoverable on a breach of

fiduciary duty claim under ERISA § 502(a)(3), which provides only for

“appropriate equitable relief.” The district court initially denied the motions and

proceeded to make oral findings of fact and conclusions of law, concluding that

BOW had breached its fiduciary duty by failing to provide complete and accurate

information about when Mr. Negley’s benefits began under the BOW Plan and the

deadlines related to his enrollment. The district court asked the parties to confer

and agree on the amount of damages and a manner by which the money could be

disbursed directly to Mr. Negley’s medical providers, rather than paid to him. 

The court deferred entry of judgment pending resolution of the damages issues. 

While the post-trial briefing proceeded, defendants renewed their motions

for judgment as a matter of law and submitted supplemental authority, including a

Tenth Circuit decision that had issued since the conclusion of the trial: Callery v.

United States Life Insurance Co. in the City of New York, 392 F.3d 401 (10th Cir.

2004). Relying on Callery, the district court granted defendants’ motions for

judgment as a matter of law and Mr. Negley appealed.
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II. Discussion

In a trial to the court, a motion for judgment as a matter of law is governed

by Fed. R. Civ. P. 52(c). See Nieto v. Kapoor, 268 F.3d 1208, 1217 (10th Cir.

2001) (noting motion for judgment in bench trial is governed by Rule 52(c),

rather than Rule 50). On appeal of a Rule 52(c) motion, “[w]e review the district

court’s fact findings for clear error and its legal conclusions de novo.” Id.

A. Compensatory Damages

In Callery, we held that compensatory damages are not recoverable under

§ 502(a)(3). 392 F.3d at 404-06. The district court held that Callery precluded

the damages relief sought by Mr. Negley in his claim based upon that same

ERISA section. Mr. Negley contends that the district court failed to properly

construe § 502(a)(3) consistent with Congress’s primary intent to provide a set of

broad, flexible and comprehensive remedies–what Mr. Negley refers to as a safety

net that permits make-whole relief. Specifically, he argues that § 502(a)(3)

should be interpreted consistent with the principles of trust law, under which

equity courts traditionally could remedy a breach of fiduciary duty by ordering

the payment of money. Thus, Mr. Negley asserts that the district court erred by

failing to award damages for his lost medical benefits as appropriate equitable

relief under § 502(a)(3). As the district court noted, however, these arguments

were thoroughly addressed–and rejected–in this court’s opinion in Callery. We

will not revisit them here.
-5-

Nor do we believe the district erred by failing to find Callery factually

distinguishable from this case. Mr. Negley asserts that the relief the plaintiff

sought in Callery was not benefits under the policy, but money damages for the

lost opportunity to obtain other coverage. This is a distinction without a

difference for purposes of the district court’s ruling. 

In Callery we explicitly stated, “To the extent Ms. Callery seeks payment

of the policy proceeds, such relief is barred under § 502(a)(3).” 392 F.3d at 405. 

The fact that Mr. Negley’s measure of damages was the value of his lost benefits,

rather than the lost opportunity to obtain the same benefits elsewhere, does not

change the analysis. He, like the plaintiff in Callery, sought money damages

from defendants due to a breach of fiduciary duty. See Calhoon v. Trans World

Airlines, Inc., 400 F.3d 593, 598 (8 Cir. 2005) (applying the reasoning of th

Callery and concluding that plaintiffs, who sought “to recover the equivalent of

full plan coverage” due to an alleged breach of fiduciary duty, could not recover

under § 502(a)(3); they were not seeking “appropriate equitable relief”). 

Mr. Negley also argues that the district court erred in holding that monetary

relief is never available under § 502(a)(3). But the district court made no such

ruling, and in fact it specifically noted that restitution is one remedy a plaintiff

could pursue under that section. However, the district court recognized that

restitution was not available in this case because Mr. Negley did not seek return

of any amounts he had paid. Nor did he alternatively seek to recover particular
-6-

funds in defendants’ possession. See Callery, 392 F.3d at 406 (noting restitution

available under § 502(a)(3) through constructive trust or equitable lien where

money can be traced to particular funds in defendant’s possession).

We therefore affirm the district court’s conclusion that the compensatory

damages Mr. Negley sought are not recoverable under § 502(a)(3) for

substantially the reasons stated in the district court’s order and judgment of

dismissal dated August 17, 2005.

B. Alternative Equitable Remedies

Mr. Negley argues that even if the district court properly rejected his claim

for damages, it failed to consider and grant his proposed alternative equitable

remedies. He asserts that his claim was really for reinstatement in and/or

reformation of the BOW Plan, with the goal of returning him to his rightful

position in the Plan. He claims that he could recover money damages in

conjunction with an equitable order, relying on Adams v. Cyprus Amax Minerals

Co., 149 F.3d 1156, 1162 (10th Cir. 1998) (holding under ERISA § 502(a)(1) that

the remedy sought is equitable when a “claim for monetary relief is inextricably

intertwined with equitable relief”).

The district court did address the possibility of reinstatement in its order

and we find no error in its conclusion that reinstatement would not have provided

Mr. Negley with the ultimate relief he sought. Indeed, the evidence established

that he was enrolled in the Plan as of November 2001. The district court did not
-7-

expressly address Mr. Negley’s request for reformation of Plan documents in its

order. However, despite pressing for this relief in his opening brief, Mr. Negley

ultimately concedes in his reply brief that reformation of the BOW Plan would be

improper. See Reply Br. at 13. We agree.

Reformation is an equitable remedy used to reframe written contracts

to reflect accurately [the] real agreement between contracting parties

when, either through mutual mistake or unilateral mistake coupled

with actual or equitable fraud by the other party, the writing does not

embody the contract as actually made.

Fischer Imaging Corp. v. Gen. Elec. Co., 187 F.3d 1165, 1169-70 (10th Cir.

1999) (quotation omitted) (alteration in original). There has been no such

allegation or evidence in this case with respect to the BOW Plan. See Nechis v.

Oxford Health Plans, Inc., 421 F.3d 96, 103 (2d Cir. 2005) (finding no error in

district court’s failure to grant reformation under § 502(a)(3) where plaintiff did

not allege any proper basis, including fraud, mutual mistake or terms violative of

ERISA). 

Nonetheless, Mr. Negley asserts that the district court’s interpretation of

the remedies available under § 502(a)(3) still left open one equitable remedy that

the court should have granted: correction of his enrollment date in the Plan. The

district court did note that, to be eligible for benefits under the Plan, Mr. Negley

would need “an order requiring MMO to make Plaintiff’s enrollment date

retroactive.” Aplt. App. at 179 (emphasis added). Mr. Negley does not dispute

that the court could not order MMO to do anything, or otherwise take action
Defendants contend that the district court did not err in failing to grant this 1

relief because Mr. Negley never sought it or any other equitable remedy until

after the trial. But they do not assert that the proof at trial failed to support this

relief or that they would have offered other testimony or evidence had Mr. Negley

raised it earlier in the proceedings. See Fed. R. Civ. P. 54(c) (“[E]very final

judgment shall grant the relief to which the party in whose favor it is rendered is

entitled, even if the party has not demanded such relief in the party’s

pleadings.”); Reynolds v. Slaughter, 541 F.2d 254, 255-56 (10th Cir. 1976)

(rejecting defendant’s assertion that plaintiff elected irrevocably to sue only for

damages and specific performance and affirming district court’s grant of

restitution consistent with the proof under Rule 54(c)).

-8-

purporting to bind MMO, because it was never a party to this action. It appears

Mr. Negley believes the district court should have simply entered something in

the nature of a nunc pro tunc order deeming his enrollment to have occurred on

July 1, 2001, several months earlier than it actually did. He contends that such an

order would give him grounds to attempt to persuade MMO to reconsider its

denial of his claims for medical benefits. He cites no case in which such a

remedy has been granted under similar (or any) circumstances. See Phillips v.

Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (noting party must support its

argument with legal authority).1

We conclude that the district court did not err in failing to grant this relief

because it had no authority to do so. First, Mr. Negley lacked standing to seek it. 

It is appropriate for this court to consider a standing issue sua sponte because it

directly implicates our Article III jurisdiction. See United States v. Parker, 362

F.3d 1279, 1284 (10th Cir. 2004). Under the redressibility requirement of
-9-

standing, a plaintiff must demonstrate “a substantial likelihood that the relief

requested will redress its injury in fact.” Nova Health Sys. v. Gandy, 416 F.3d

1149, 1158 (10th Cir. 2005). In Nova Health Systems this court held that it was

“entirely speculative” whether a judgment against the defendants would redress

the plaintiff’s injury by deterring non-parties from taking similar action. Id. at

1159. “More fundamentally, it overlooks the principle that it must be the effect

of the court’s judgment on the defendant that redresses the plaintiff’s injury,

whether directly or indirectly.” Id. (emphasis added). Mr. Negley’s requested

remedy would be similarly speculative in terms of its ability to provide redress

for his injury. Such a remedy also would run afoul of the limitation that the

district court could only enter an order directed to affecting the behavior of BOW

and the Plan, the only defendants before it. Thus, Mr. Negley had no standing to

seek, and the district court had no authority to enter, such an order, the purpose of

which was to assist Mr. Negley in possibly gaining redress for his injury from a

non-party.

In any event, the district court had no authority to enter an order which

would have amounted to a rewriting of history. See Patton v. Denver Post Corp.,

326 F.3d 1148, 1153 (10th Cir. 2003) (holding that nunc pro tunc state court order

was qualified domestic relations order under ERISA because, among other

reasons, it did not “attempt to rewrite historical facts”); W.N.J. v. Yocom,

257 F.3d 1171, 1172 (10th Cir. 2001) (holding that nunc pro tunc order “cannot
Mr. Negley maintains in his reply brief that his case differs from Callery 2

because the BOW Plan is a defendant. He asserts that the district court should

have ordered the BOW Plan to pay him his lost benefits, in conjunction with

revision of his enrollment date, and that the court should then have further

ordered BOW to reimburse the Plan pursuant to 29 U.S.C. § 1109(a). We decline

to address these arguments made for the first time in his reply brief. See Stump v.

Gates, 211 F.3d 527, 533 (10th Cir. 2000) (refusing to consider issue raised

initially in reply brief). 

-10-

be used to rewrite history”) (quotation omitted); see also In re Di Franco,

339 F. Supp. 414, 414-15 (S.D.N.Y. 1972) (denying petitioner’s motion to

antedate the actual occurrence of his naturalization). As the court stated in

Di Franco, “it is not the function of a nunc pro tunc order to antedate the actual

performance of an act, to supply facts which never existed, or to embody a fiction

that something which never happened did actually occur.” 339 F. Supp. at 414. 

Therefore, we hold that the district court did not err in failing to grant Mr.

Negley’s request to “correct” his enrollment date in the Plan.2

C. Prejudgment Interest, Attorneys’ Fees and Costs

Mr. Negley also contends that the district court should have granted his

requests for prejudgment interest, attorneys’ fees, and costs, despite the fact that

he was not awarded any damages and judgment was entered against him. 

Defendants are correct that Mr. Negley never made this argument in the district

court. He did file post-trial motions for attorneys’ fees and costs, after the district

court indicated its intention to enter judgment in his favor. Defendants assert that

Mr. Negley actually waived his claim for interest at trial. Regardless of Mr.
-11-

Negley’s initial arguments to the district court on all of these issues, it is clear

that once the district court changed course and entered judgment against him, he

never sought this relief again before the district court as a non-prevailing party, or

as he argues on appeal, a partially-prevailing party. Therefore, we decline to

consider his arguments with respect to prejudgment interest, attorneys’ fees, and

costs that he raises for the first time on appeal. See Tele-Commc’ns, Inc. v.

Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997) (“[A]n issue must be presented to,

considered and decided by the trial court before it can be raised on appeal.”)

(quotations and brackets omitted).

III. Conclusion

The judgment of the district court is AFFIRMED. Mr. Negley’s motion to

supplement the appendix is GRANTED; and defendants’ motion to file a surreply

brief is DENIED as moot.

Entered for the Court

Jerome A. Holmes

Circuit Judge