United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2017 Decided August 21, 2018

Reissued December 21, 2018

No. 17-5068

K. WENDELL LEWIS, ET AL.,

APPELLEES

v.

PENSION BENEFIT GUARANTY CORPORATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01328)

Charles L. Finke, Deputy Chief Counsel, pro hac vice,

argued the cause for appellant. With him on the briefs were 

Judith R. Starr, General Counsel, Kenneth J. Cooper, Assistant 

General Counsel, Paula J. Connelly, Assistant Chief Counsel, 

and Mark R. Snyder, Attorney.

Anthony F. Shelley argued the cause for appellees. With 

him on the brief were Timothy P. O’Toole and Michael N. 

Khalil.

Before: GRIFFITH and PILLARD, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge GRIFFITH.

Circuit Judge GRIFFITH: In this interlocutory appeal, we 

reverse the district court’s decision allowing participants in a 

pension plan to seek recovery of an increase in the value of plan 

assets that took place after the plan had been terminated.

I

A

In 2005, Delta Airlines, Inc. (“Delta”) filed for bankruptcy 

and stopped contributing to the pension plan it sponsored for 

its pilots. That plan was called the Delta Pilots Retirement Plan

(the “Delta Plan”). The following year, Delta and the Pension 

Benefit Guaranty Corporation (the “Corporation”) agreed to 

terminate the Delta Plan because it had insufficient assets to 

support the benefit payments it promised to the pilots.

Title IV of the Employee Retirement Income Security Act 

(ERISA), 29 U.S.C. §§ 1301-1461, created the Corporation “to 

ensure that employees and their beneficiaries would not be 

completely deprived of anticipated retirement benefits by the 

termination of pension plans before sufficient funds have been 

accumulated in the plans.” PBGC v. LTV Corp., 496 U.S. 633, 

637 (1990) (internal quotation marks omitted). To that end, the 

Corporation collects premiums from plan sponsors like Delta 

and guarantees certain benefits to plan participants even if a

plan terminates without enough money to pay its ongoing

obligations. See 29 U.S.C. §§ 1306-1307, 1322, 1361; LTV 

Corp., 496 U.S. at 636-38; Davis v. PBGC (“Davis II”), 734 

F.3d 1161, 1164-65 (D.C. Cir. 2013). Importantly, guaranteed

benefits are subject to limitations outlined in Title IV. See 29 

U.S.C. §§ 1322(b), 1361; LTV Corp., 496 U.S. at 638.
3

When a plan terminates without enough funding to provide

even the guaranteed benefits established by Title IV, a statutory 

trustee collects the plan’s remaining assets and begins making 

promised payments according to a list of statutory priorities. 

See 29 U.S.C. §§ 1341(c)(iii)(B)(3), 1342(b)-(d), 1344; 29 

C.F.R. pt. 4044. The Corporation then provides additional

money from its own funds to make up the difference between 

those payments and the guaranteed benefits. See 29 U.S.C.

§ 1322; 29 C.F.R. pt. 4022; LTV Corp., 496 U.S. at 637-38; 

Davis II, 734 F.3d at 1164-65. Although not required, the 

Corporation is almost always appointed as the statutory trustee 

who administers terminated plans, assuming this responsibility 

in addition to its role as guarantor. See Boivin v. U.S. Airways, 

Inc., 446 F.3d 148, 150 (D.C. Cir. 2006). When Delta and the 

Corporation agreed to terminate the Delta Plan, they agreed the 

Corporation would become the statutory trustee. 

The Corporation determined the Delta Plan had a deficit of 

over $2.5 billion in unfunded benefits when it terminated, 

almost $800 million of which were guaranteed under Title IV. 

Actuarial Case Memo for Delta Pilots Retirement Plan (Mar.

24, 2010), J.A. 201-03. Based on this information, the 

Corporation began paying estimated post-termination benefits

to the pilots. It took six years, however, to finish making final

benefit determinations. Administrative appeals filed by the 

pilots to challenge their benefit determinations concluded the 

following year, in 2013. See 29 C.F.R. pt. 4003 (explaining the 

process for determining post-termination benefits); Davis v. 

PBGC (“Davis I”), 571 F.3d 1288, 1291 (D.C. Cir. 2009) 

(same); Boivin, 446 F.3d at 151 (same). If the Corporation 

found that participants were entitled to larger benefit payments 

than they were receiving under their initial estimates, the 

Corporation reimbursed those pilots with interest for any

difference and adjusted their benefits going forward. See 29 

C.F.R. § 4022.81-.83; Davis I, 571 F.3d at 1291.
4

B

Nearly 1,700 pilots in the Delta Plan or their beneficiaries

sued the Corporation to further challenge their benefit 

determinations, assert violations of the Administrative 

Procedure Act, 5 U.S.C. § 706, and request various forms of 

injunctive and declaratory relief. The pilots also allege that the 

Corporation breached its fiduciary duty as statutory trustee in 

various ways, such as creating procedural obstacles for and 

withholding necessary information from participants who were 

trying to appeal their benefit determinations, improperly 

denying those appeals for untimeliness, hiring incompetent 

contractors to estimate the value of plan assets and leaving 

them unsupervised, and misallocating pension funds to

younger participants who would not retire and collect the 

money for many years. Am. Compl. ¶¶ 66-72, J.A. 300-03. All

of this, the pilots claim, allowed the Corporation to control 

Delta Plan assets for a longer period and collect “massive 

investment returns” rather than timely paying the pilots what 

they were owed. Id. ¶ 72, J.A. 303. The pilots argue that 29 

U.S.C. § 1303(f)(1) authorizes “appropriate equitable relief” 

and so the Corporation “should be required to disgorge itself of 

this unjust enrichment.” Am. Compl. ¶ 72, J.A. 303. And they 

ask to recover this money individually instead of on behalf of 

the Delta Plan.

The Corporation moved to dismiss the breach of fiduciary

duty claim on numerous grounds, including that 29 U.S.C. 

§ 1344(c) prevents disgorgement in this case. Section 1344(c)

provides that “[a]ny increase or decrease in the value of the 

assets of a single-employer plan occurring after the date on 

which the plan is terminated shall be credited to, or suffered by, 

the [C]orporation.” Disgorgement, the Corporation explained, 
5

would impermissibly redirect to the pilots the post-termination 

increase in the value of plan assets.

The district court denied the Corporation’s motion to 

dismiss and its subsequent motion for reconsideration. Lewis v. 

PBGC, 197 F. Supp. 3d 16 (D.D.C. 2016), reconsideration 

denied, No. 15-cv-1328, 2017 WL 7047932 (D.D.C. Jan. 23, 

2017). The district court explained that the pilots were trying 

only to “recoup the alleged ill-gotten investment returns on 

[Delta] Plan benefits that the plaintiffs claim should have been 

distributed to them, not . . . divert from the Corporation any 

gains (or losses) from assets properly held in the [Delta] Plan.”

Lewis, 197 F. Supp. 3d at 26 (citation omitted); accord Lewis,

2017 WL 7047932, at *3. Such a claim, it said, might not be 

prohibited by § 1344(c). Lewis, 2017 WL 7047932, at *3.

However, the district court concluded that “the dearth of 

controlling precedent that supports the Court’s determination 

regarding the fiduciary breach claim, coupled with the 

Corporation’s credible contention that . . . ERISA does not 

permit the plaintiffs to pursue this claim, raise[s] a controlling 

question of law as to which a substantial ground for difference 

of opinion exists.” Id. The district court then certified for 

interlocutory appeal its order denying the motion to dismiss,

and identified four “controlling questions of law” for us to 

consider: First, can individuals bring a fiduciary breach claim 

against the Corporation under § 1303(f) in addition to 

requesting judicial review of the Corporation’s posttermination benefit determinations? Second, can plan 

participants in such a lawsuit recover more than their statutorily

defined benefits under Title IV of ERISA? Third, can plan 

participants in such a lawsuit recover individual, as opposed to 

plan-wide, relief for the alleged fiduciary breach? And fourth, 

does § 1344(c) preclude the remedy of disgorgement of posttermination investment gains derived as a result of the alleged 
6

fiduciary breach? Order Certifying Interlocutory Appeal, J.A. 

384-85; see 28 U.S.C. § 1292(b). We granted the petition for

leave to file an interlocutory appeal. J.A. 653. Since that time, 

the district court has resolved in favor of the Corporation all 

other claims in this lawsuit. Lewis v. PBGC, No. 15-cv-1328, 

2018 WL 2926157 (D.D.C. June 11, 2018).

The district court has jurisdiction over this case pursuant 

to § 1303(f), and we have jurisdiction under 28 U.S.C. 

§ 1292(b) to decide this interlocutory appeal. We review de 

novo the district court’s decision on the motion to dismiss.

Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016). Because 

we conclude that § 1344(c) prevents the pilots from recovering 

any post-termination increase in the value of Delta Plan assets, 

disgorgement is not an available remedy in this case and we do 

not address the other questions.

II

A

We begin by examining the text of § 1344(c), which

provides in full:

Any increase or decrease in the value of the assets of a 

single-employer plan occurring during the period 

beginning on the later of (1) the date a trustee is appointed 

under section 1342(b) of this title or (2) the date on which 

the plan is terminated is to be allocated between the plan 

and the [C]orporation in the manner determined by the 

court (in the case of a court-appointed trustee) or as agreed 

upon by the [C]orporation and the plan administrator in 

any other case. Any increase or decrease in the value of 

the assets of a single-employer plan occurring after the 
7

date on which the plan is terminated shall be credited to, 

or suffered by, the [C]orporation.

29 U.S.C. § 1344(c) (emphasis added).

The two halves of this subsection are in tension. The first 

half of § 1344(c) explains that any change in the value of plan 

assets occurring after “a trustee is appointed under § 1342(b)” 

or “the plan is terminated,” whichever comes later, should be 

allocated “in a manner determined by the court (in the case of 

a court-appointed trustee) or as agreed upon by the 

[C]orporation and the plan administrator.” This seems to

conflict with the second, italicized half of § 1344(c), which

clearly assigns all post-termination gains and losses to the 

Corporation. See Kinek v. Paramount Commc’ns, Inc., 22 F.3d 

503, 515 (2d Cir.), amended on denial of reh’g (June 13, 1994).

We need not resolve that conflict here. One of the two

events referenced in the first half of § 1344(c) is the 

appointment of a pre-termination trustee under § 1342(b). See 

29 U.S.C. § 1342(b)(1) (providing “for the appointment of a 

trustee to administer the plan . . . pending the issuance of a 

decree . . . ordering the termination of the plan”). There was no

such trustee in this case. Indeed, the Corporation became the 

statutory trustee by an agreement with Delta only after the 

parties terminated the Delta Plan. See id. § 1342(c) (providing 

for appointment of a trustee when a plan terminates). And there 

was no court determination—which is contingent on a courtappointed trustee—nor agreement between the Corporation 

and the plan administrator—previously Delta, now the 

Corporation itself—to supply competing instructions as to the 

allocation of any post-termination increase or decrease in the 

value of plan assets. In short, the first half of § 1344(c) does 

not apply in this case.
8

Moreover, although we do not decide the question, the 

reference to § 1342(b) suggests the first half of § 1344(c) was 

meant to govern changes in the value of assets pending plan 

termination, while the second half allocates post-termination 

gains and losses to the Corporation. The pilots acknowledge as 

much, explaining that § 1344(c) “is properly treated as a 

measure giving necessary guidance on the thorny issue of 

whose accounts are to be ‘credited’ with the gains or losses 

during the lengthy period when a plan is in the process of being 

terminated . . . with the monies going to the Corporation’s 

account (for the then-terminated plan) after termination.” 

Pilots’ Br. 47-48. The increase in the value of plan assets at 

issue in this case occurred after, not before, the plan terminated.

Recognizing that § 1342(b) governs the appointment of 

pre-termination trustees also reveals a potential defect in the 

first half of § 1344(c) itself. The first half of § 1344(c) applies 

“on the later of” the appointment of a pre-termination trustee 

or when the plan terminates. But a pre-termination, statutory

trustee will by definition be appointed before plan termination,

rendering meaningless the question of which event comes later. 

This suggests the first half of § 1344(c) contains a drafting 

error, as both parties agree. See Oral Arg. Tr. at 8-9, 20.1

 

1 Congress has considered amending § 1344(c). For example, 

in 1994 the U.S. House of Representatives considered a 

“clarification” to § 1344(c) as part of a larger bill, amending the 

subsection to read: “Any increase or decrease in the value of the 

assets of a single-employer plan occurring during the period 

beginning on the later of (1) the date a trustee is appointed under 

section 1342(b) of this title or (2) and ending on the date on which 

the plan is terminated is to be shall be allocated between the plan and 

the corporation in the manner determined by the court (in the case of 

a court-appointed trustee) or as agreed upon by the corporation and 

the plan administrator in any other case (in any other case). Any 

increase or decrease in the value of the assets of a single-employer 
9

We thus apply the second half of § 1344(c), which by its 

express terms governs the allocation of post-termination gains 

at issue in this case.

B

The Corporation argues that it is entitled under § 1344(c)

to any post-termination increase in the value of pension plan

assets. In other words, the Corporation reasons, Congress has 

already decided who benefits or suffers the loss from a change 

in the value of plan assets once that plan has been terminated.

Therefore, the Corporation concludes that the pilots cannot 

recover that money as equitable relief for an alleged breach of 

fiduciary duty. We agree.

The Corporation guarantees certain benefits to participants 

in pension plans. See 29 U.S.C. § 1322. And, in exchange for

paying the difference between those benefits and the plan 

assets once the plan terminates, as well as absorbing any

subsequent “decrease in the value of the assets of a . . . plan,”

Congress allocated any post-termination “increase” to the 

Corporation. Id. § 1344(c); see Paulsen v. CNF Inc., 559 F.3d 

1061, 1073 (9th Cir. 2009) (“ERISA . . . mandates that a posttermination increase or decrease in the [plan] assets be credited 

or suffered by [the Corporation].”). That money is not available 

to plan participants.

The pilots argue that statutory trustees of terminated

pension plans have a fiduciary duty to plan participants, and

 

plan occurring after the date on which the plan is terminated shall be 

credited to, or suffered by, the corporation.” H.R. Rep. No. 103-632, 

at 204 (Aug. 26, 1994). But the House of Representatives never voted 

on the proposed bill.
10

§ 1303(f)(1) authorizes “appropriate equitable relief” if that 

duty is breached. The pilots explain that 29 U.S.C. 

§ 1132(a)(3)(B) in Title I of ERISA, which governs ongoing

plans, provides for “appropriate equitable relief” as well. In 

that context, they continue, the Supreme Court has defined 

“equitable relief” as “those categories of relief that were 

typically available in equity.” Mertens v. Hewitt Assocs., 508 

U.S. 248, 256 (1993). The pilots insist that “[e]quity courts 

possessed the power to provide monetary ‘compensation’ for a 

loss resulting from a trustee’s breach of duty, or to prevent the 

trustee’s unjust enrichment,” CIGNA Corp. v. Amara, 563 U.S. 

421, 441 (2011), through a remedy such as disgorgement. And 

they point out that other circuits have allowed claims for 

disgorgement to proceed under Title I with regard to ongoing 

plans. See, e.g., Pender v. Bank of Am. Corp., 788 F.3d 354, 

364-65 (4th Cir. 2015); Edmonson v. Lincoln Nat’l Life Ins. 

Co., 725 F.3d 406, 419-20 (3d Cir. 2013). But see Rochow v. 

Life Ins. Co. of N. Am., 780 F.3d 364, 370-76 (6th Cir. 2015)

(en banc).

According to the pilots, if disgorgement is available as 

“appropriate equitable relief” under § 1132(a)(3) to prevent the 

unjust enrichment of fiduciaries of ongoing plans, then the 

presumption of consistent usage dictates that disgorgement is

also “appropriate equitable relief” under § 1303(f)(1) with

regard to terminated plans. See Envtl. Def. v. Duke Energy 

Corp., 549 U.S. 561, 574 (2007) (recognizing the “natural 

presumption that identical words used in different parts of the 

same act are intended to have the same meaning” (quoting Atl. 

Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932))). 

In fact, ERISA even equates the fiduciary status of a posttermination, statutory trustee with that of a fiduciary of an 

ongoing plan. See 29 U.S.C. § 1342(d)(3) (“[A] trustee 

appointed under this section [in Title IV] . . . shall be, with 

respect to the plan, a fiduciary within the meaning of [Title 
11

I].”). The pilots conclude that § 1344(c) says nothing about 

available remedies if the Corporation breaches its fiduciary 

duty and, as a result, should not limit the broad wording of 

§ 1303(f)(1).

We are unpersuaded. Section 1344(c) does not apply to 

ongoing plans so “the presumption of consistent usage ‘readily 

yields’ to context.” Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 

2427, 2441 (2014) (quoting Envtl. Def., 549 U.S. at 574).

Ongoing plans are not subject to the same statutory instructions 

as terminated plans when it comes to “[a]ny increase or 

decrease in the value of the assets.” 29 U.S.C. § 1344(c).

In addition, ERISA repeatedly qualifies the fiduciary 

status of post-termination trustees “to the extent that the 

provisions of [Title IV] are inconsistent” with fiduciary

requirements. Id. § 1342(d)(3). Requiring the Corporation to 

disgorge a post-termination increase in the value of plan assets 

flatly contradicts § 1344(c). By statute, the pilots are entitled to 

their guaranteed benefits, while Congress directed that any 

post-termination increase or decrease in the value of plan assets

should go to the Corporation. The pilots cannot circumvent that 

decision under the heading of equitable relief. In other words, 

disgorgement would not be “appropriate” here. Id.

§ 1303(f)(1).

The pilots also claim that “duties imposed on the statutory 

trustee do not fall by the wayside just because the 

[Corporation], and not a private party, becomes the trustee.” 

Wilmington Shipping Co. v. New Eng. Life Ins. Co., 496 F.3d 

326, 337 (4th Cir. 2007). They reason that the Corporation 

should not be able to escape the liability for its misdeeds that 

would otherwise apply to a private trustee. Underlying this 

argument is an assumption that the pilots would be entitled to 

any post-termination increase in the value of plan assets if a 
12

private party, and not the Corporation, were the trustee in this 

case. But nothing in § 1344(c) suggests that the identity of the

statutory trustee affects who takes gains and losses after the 

plan terminates. They all go to the Corporation. The pilots 

cannot have the increase, and they presumably would not want 

the decrease, regardless of who acts as statutory trustee of the 

terminated Delta Plan.

The pilots’ request for post-termination investment gains 

is fundamentally flawed. Because § 1344(c) does not depend 

on whether the Corporation acts as statutory trustee of the 

terminated plan, any post-termination change in the value of 

plan assets must be “credited to, or suffered by” the

Corporation in its capacity as guarantor. 29 U.S.C. § 1344(c).

This makes sense: Each participant’s benefits are calculated at 

the time of plan termination and shielded from additional loss 

by the Corporation. If plan assets increase in value, the 

Corporation is likewise credited with that gain. The 

Corporation assumes this responsibility as guarantor of certain 

plan benefits. But the pilots sue the Corporation for fiduciary 

breach in its capacity as statutory trustee. See Am. Compl. ¶ 64, 

J.A. 300; 29 U.S.C. § 1342(d)(3) (“Except to the extent 

inconsistent with the provisions of [ERISA], . . . a trustee 

appointed under this section shall be . . . a fiduciary . . . .”). 

The disconnect between suing the Corporation in its role as 

statutory trustee, yet requesting a remedy that the Corporation

can supply only in its role as guarantor, further demonstrates 

that disgorgement is inconsistent with the statutory scheme for 

terminated pension plans and therefore not “appropriate 

equitable relief.” See K Mart Corp. v. Cartier, Inc., 486 U.S. 

281, 291 (1988) (“In ascertaining the plain meaning of the 

statute, the court must look to the particular statutory language 

at issue, as well as the language and design of the statute as a 

whole.”).
13

Finally, the district court distinguished between assets 

properly held by the statutory trustee and assets held in breach 

of a fiduciary duty. Lewis, 197 F. Supp. 3d at 26; accord Lewis, 

2017 WL 7047932, at *3. If the statutory trustee retains plan 

assets improperly, the argument goes, § 1344(c) simply does 

not apply and plan participants can recover any posttermination increase. The pilots repeat that argument here, 

suggesting it avoids any tension between the broad wording of 

“appropriate equitable relief” in § 1303(f)(1) and the directive 

in § 1344(c) that any post-termination increase or decrease in 

the value of plan assets goes to the Corporation.

We do not see this distinction in § 1344(c). And “given the 

express language of the statute” allocating post-termination 

gains and losses to the Corporation, we decline to create an 

“implied exception” to those unambiguous terms. Bennett v. 

Arkansas, 485 U.S. 395, 397-98 (1988). Indeed, § 1344(c) 

allocates to the Corporation “any” post-termination increase in 

the value of plan assets. “[T]he expansive word ‘any’ and the 

absence of restrictive language” promotes a sweeping 

application of that provision. Ali v. Fed. Bureau of Prisons, 552 

U.S. 214, 219 (2008). By contrast, we are reluctant to expand 

the scope of “appropriate equitable relief” in a way that would 

impose trustee liability on the Corporation in its role as 

guarantor.

This does not mean the pilots lacked possible remedies for 

their alleged injuries. Both parties agree that other forms of 

equitable relief are generally available in cases of fiduciary 

breach, including removal of the Corporation as statutory

trustee of the terminated plan. See, e.g., Pineiro v. PBGC, 318 

F. Supp. 2d 67, 94 (S.D.N.Y. 2003); cf. 29 U.S.C. § 1109(a)

(allowing for removal of an ongoing-plan fiduciary). And the 

pilots have been able to challenge their benefit determinations, 

although the district court rejected those claims on the merits.
14

But recovering the post-termination increase in the value of 

plan assets is not an available remedy where, as here, the 

limitation of § 1344(c) applies.

III

We reverse the district court’s ruling that disgorgement is 

an available remedy against the Corporation and we remand to 

the district court for further proceedings consistent with this 

opinion.2

So ordered.

 

2

In their petition asking that we amend the opinion, the pilots 

assert that their amended complaint—specifically, the fiduciary 

breach claim—seeks remedies in addition to disgorgement, which 

the pilots hope to pursue on remand. See Pet. 6-11. The Corporation

responds that the fiduciary breach claim seeks only disgorgement, 

the pilots have not pursued additional remedies throughout “multiple 

years of litigation,” and the panel “should not resuscitate the 

fiduciary breach claim” “for reasons [the pilots] did not advance in 

the district court.” Resp. 2, 8. Our “normal rule” is to avoid passing 

on an issue that the district court has not fully addressed, Liberty 

Prop. Tr. v. Republic Props. Corp., 577 F.3d 335, 341 (D.C. Cir. 

2009), and remand is particularly appropriate when the issue hinges 

on the proper construction of the available remedies in litigation over 

which the district court long presided, see Blessing v. Freestone, 520 

U.S. 329, 345-46 (1997) (remanding because “the complaint is less 

than clear” with regard to the rights asserted and the specific relief 

sought, and that “defect is best addressed by sending the case back 

for the District Court to construe the complaint in the first instance, 

in order to determine exactly what rights, considered in their most 

concrete, specific form, respondents are asserting”). Therefore, we 

remand the matter to the district court for further proceedings 

consistent with this opinion, and specifically to determine in the first 

instance whether the amended complaint seeks remedies for the 

alleged fiduciary breach in addition to disgorgement. Of course the 

implications of the opinion’s statutory analysis remain unaltered.