The Court today holds that the claims respondents asserted under Texas law are totally preempted by §502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U. S. C. §1132(a). That decision is consistent with our governing case law on ERISA's preemptive scope. I therefore join the Court's opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), I also join "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime." DiFelice v. AETNA U. S. Healthcare, 346 F. 3d 442, 453 (CA3 2003) (Becker, J., concurring).Polygraph, Lie Detector Police Jobs Cheating Wife Internet Job Search Pitching Police Officer Police Academy Home Builder Start A Daycare

Because the Court has coupled an encompassing interpretation of ERISA's preemptive force with a cramped construction of the "equitable relief" allowable under §502(a)(3), a "regulatory vacuum" exists: "[V]irtually all state law remedies are preempted but very few federal substitutes are provided." Id., at 456 (internal quotation marks omitted).

A series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain make-whole relief. First, in Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), the Court stated, in dicta: "[T]here is a stark absence--in [ERISA] itself and in its legislative history--of any reference to an intention to authorize the recovery of extracontractual damages" for consequential injuries. Id., at 148. Then, in Mertens v. Hewitt Associates, 508 U. S. 248 (1993), the Court held that §502(a)(3)'s term " 'equitable relief ' ... refer[s] to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Id., at 256 (emphasis in original). Most recently, in Great-West, the Court ruled that, as "§502(a)(3), by its terms, only allows for equitable relief," the provision excludes "the imposition of personal liability ... for a contractual obligation to pay money." 534 U. S., at 221 (emphasis in original).

As the array of lower court cases and opinions documents, see, e.g., DiFelice; Cicio v. Does, 321 F. 3d 83 (CA2 2003), cert. pending sub nom. Vytra Healthcare v. Cicio, No. 03-69, fresh consideration of the availability of consequential damages under §502(a)(3) is plainly in order. See 321 F. 3d, at 106, 107 (Calabresi, J., dissenting in part) ("gaping wound" caused by the breadth of preemption and limited remedies under ERISA, as interpreted by this Court, will not be healed until the Court "start[s] over" or Congress "wipe[s] the slate clean"); DiFelice, 346 F. 3d, at 467 ("The vital thing ... is that either Congress or the Court act quickly, because the current situation is plainly untenable."); Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L. Rev. 1317, 1365 (2003) (hereinafter Langbein) ("The Supreme Court needs to ... realign ERISA remedy law with the trust remedial tradition that Congress intended [when it provided in §502(a)(3) for] 'appropriate equitable relief.' ").

The Government notes a potential amelioration. Recognizing that "this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary," the Government suggests that the Act, as currently written and interpreted, may "allo[w] at least some forms of 'make-whole' relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench." Brief for United States as Amicus Curiae 27-28, n. 13 (emphases added); cf. ante, at 19 ("entity with discretionary authority over benefits determinations" is a "plan fiduciary"); Tr. of Oral Arg. 13 ("Aetna is [a fiduciary]--and CIGNA is for purposes of claims processing."). As the Court points out, respondents here declined the opportunity to amend their complaints to state claims for relief under §502(a); the District Court, therefore, properly dismissed their suits with prejudice. See ante, at 20, n. 7. But the Government's suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue.

"Congress ... intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief." Langbein 1319. I anticipate that Congress, or this Court, will one day so confirm.

--------------------------------------------------------------------------------

FOOTNOTES

Footnote *

Together with No. 03-83, CIGNA HealthCare of Texas, Inc., dba CIGNA Corp. v. Calad et al., also on certiorari to the same court.

FOOTNOTES

Footnote 1

In this Court, petitioners do not claim or argue that respondents' causes of action fall under ERISA §502(a)(2). Because petitioners do not argue this point, and since we can resolve these cases entirely by reference to ERISA §502(a)(1)(B), we do not address ERISA §502(a)(2).

Footnote 2

Respondents also argue that the benefit due under their ERISA-regulated employee benefit plans is simply the membership in the respective HMOs, not coverage for the particular medical treatments that are delineated in the plan documents. See Brief for Respondents 28-30. Respondents did not identify this possible argument in their brief in opposition to the petitions for certiorari, and we deem it waived. See this Court's Rule 15.2.

Footnote 3

To take a clear example, if the terms of the health care plan specifically exclude from coverage the cost of an appendectomy, then any injuries caused by the refusal to cover the appendectomy are properly attributed to the terms of the plan itself, not the managed care entity that applied those terms.

Footnote 4

Respondents also argue that ERISA §502(a) completely pre-empts a state cause of action only if the cause of action would be pre-empted under ERISA §514(a); respondents then argue that their causes of action do not fall under the terms of §514(a). But a state cause of action that provides an alternative remedy to those provided by the ERISA civil enforcement mechanism conflicts with Congress' clear intent to make the ERISA mechanism exclusive. See Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990) (holding that "[e]ven if there were no express pre-emption [under ERISA §514(a)]" of the cause of action in that case, it "would be pre-empted because it conflict[ed] directly with an ERISA cause of action").

Footnote 5

ERISA §514(b)(2)(A), 29 U. S. C. §1144(b)(2)(A), reads, as relevant: "[N]othing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities."

Footnote 6

Both Pilot Life and Metropolitan Life support this understanding. The plaintiffs in Pilot Life and Metropolitan Life challenged disability determinations made by the insurers of their ERISA-regulated employee benefit plans. See Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 43 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 61 (1987). A disability determination often involves medical judgments. See, e.g., ibid. (plaintiff determined not to be disabled only after a medical examination undertaken by one of his employer's physicians). Yet, in both Pilot Life and Metropolitan Life, the Court held that the causes of action were pre-empted. Cf. Black & Decker Disability Plan v. Nord, 538 U. S. 822 (2003) (discussing "treating physician" rule in the context of disability determinations made by ERISA-regulated disability plans).

Footnote 7

The United States, as amicus, suggests that some individuals in respondents' positions could possibly receive some form of "make-whole" relief under ERISA §502(a)(3). Brief for United States as Amicus Curiae 27, n. 13. However, after their respective District Courts denied their motions for remand, respondents had the opportunity to amend their complaints to bring expressly a claim under ERISA §502(a). Respondents declined to do so; the District Courts therefore dismissed their complaints with prejudice. See App. 147-148; id., at 298; App. B to Pet. for Cert. in No. 02-1845, pp. 34a-35a; App. B to Pet. for Cert. in No. 03-83, p. 40a. Respondents have thus chosen not to pursue any ERISA claim, including any claim arising under ERISA §502(a)(3). The scope of this provision, then, is not before us, and we do not address it.