Milgrim v. Orthopedic Assoc.

Filing

AMENDED OPINION, by GC, RCW, GEL, FILED.[481258] [10-1862]

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10-1862-cv
Milgram v. Orthopedic Associates et al.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2011
(Argued: September 12, 2011
Decided: November 29, 2011)
Amended: December 23, 2011
Docket Nos. 10-1862-cv (L), 10-1893 (CON)*

ROBERT W. MILGRAM, M.D.,
Plaintiff-Appellee,
— v.—
THE ORTHOPEDIC ASSOCIATES DEFINED CONTRIBUTION PENSION PLAN,
Defendant-Appellant,
— v.—
ORTHOPEDIC ASSOCIATES OF 65 PENNSYLVANIA AVENUE, BINGHAMTON, NEW YORK,
P.C., as plan administrator of the Orthopedic Associates Defined Contribution Pension
Plan; MICHAEL MCCLURE, M.D.; CHARLES W. CARPENTER, M.D.; KAMLESH S. DESAI,
M.D.; LAURENCE U. SCHENK, M.D.; DOUGLASS R. KERR, M.D.; ROBERT M. SEDOR, JR.,
CFP, RCF, Upstate Management Associates, Inc., D/B/A The Bay Ridge Group; NORAH
A. BREEN.
Defendants.

B e f o r e:
CALABRESI, WESLEY, and LYNCH, Circuit Judges.

*

The consolidated case was withdrawn by stipulation filed July 22, 2011.

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Plaintiff-appellee Robert Milgram filed suit under the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)-(3), seeking to recover funds
that were erroneously removed from his pension fund account and credited to that of his
former wife, Norah Breen. Following a bench trial, the United States District Court for
the Northern District of New York (Gary L. Sharpe, Judge) entered judgment against
defendant The Orthopedic Associates Defined Contribution Pension Plan (“the Plan”) in
the amount of $1,571,723.73, which included the principal amount, accumulated earnings
and pre-judgment interest. On appeal, the Plan argues that enforcement of the judgment
is prohibited by the terms of the pension agreement, ERISA’s anti-alienation provision,
ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1), and other provisions of federal and state law.
The Plan also argues that the district court’s award of accumulated earnings is
inconsistent with our decision in Dobson v. Hartford Financial Services Group, Inc., 389
F.3d 386 (2d Cir. 2004). Finding these arguments to be without merit, we AFFIRM the
judgment of the district court.

CARTER H. STRICKLAND, Mackenzie Hughes LLP, Syracuse, New York, for
Plaintiff-Appellee.
JAMES E. HUGHES, Hancock & Estabrook LLP, Syracuse, New York, for
Defendant-Appellant.

GERARD E. LYNCH, Circuit Judge:
This appeal requires us to consider what limitations, if any, the Employee
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Retirement Income Security Act (“ERISA”) imposes on the enforceability of a judgment
rendered against pension plan assets under Section 502(a)(1) of that statute, 29 U.S.C.
§ 1132(a)(1). Plaintiff Robert Milgram seeks to recover approximately $1.5 million in
pension assets and accrued earnings and interest from The Orthopedic Associates Defined
Contribution Pension Plan (“the Plan”), which in 1996 erroneously transferred half the
balance of Milgram’s pension account to his ex-wife, Norah Breen. Following a bench
trial in 2006, the United States District Court for the Northern District of New York (Gary
L. Sharpe, Judge) granted Milgram judgment against the Plan in that amount and granted
the Plan an equivalent judgment against Breen. The Plan now challenges the
enforceability of the judgment against it on the ground that requiring its payment before
the Plan has fully recovered from Breen would violate ERISA’s anti-alienation provision,
ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1), as well as other provisions of federal and
state law. The Plan also argues that the district court erred in interpreting the plan
document to afford compensation to Milgram for the lost use of his funds during the
fifteen year period since the erroneous distribution.
As the majority of the Plan’s claims assert legal errors in the district court’s
judgment, unless otherwise noted our standard of review is de novo. See Hobson v.
Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009). Applying the appropriate standards
of review, we find the Plan’s arguments to be without merit. Accordingly, we affirm the
judgment of the district court.

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BACKGROUND
Until he retired from the practice of medicine in 1991, Milgram worked as an
orthopedic surgeon affiliated with the medical group Orthopedic Associates of 65
Pennsylvania Avenue, Binghamton, New York, P.C. (“Orthopedic”). By virtue of his
membership in the group, Milgram became the beneficiary of two separate ERISAgoverned pension plans. One was a defined contribution plan, the proceeds of which are
at issue in this litigation (“the Plan” or “the MPP”); the other was a profit-sharing plan
(“the PSP”). Under both plans, Orthopedic itself was formally designated as plan
administrator. In practice, however, Orthopedic employed an outside entity on a contract
basis to provide day-to-day administrative services. During the period relevant to this
lawsuit, those services were provided by the Bay Ridge Group, which was headed by
Robert Sedor.
In 1996 Milgram and his wife, Norah Breen, divorced. Their divorce settlement
entitled Breen to half the balance in Milgram’s PSP fund (a share valued at $326,082 at
the time of the settlement) and a fixed sum of $47,358 from Milgram’s MPP account plus
accumulated earnings. Due to a clerical error, however, Bay Ridge transferred half of
both accounts to a separate account created in Breen’s name. This resulted in Breen’s
receiving $763,847.93 more than she was entitled to receive under the settlement.
Milgram did not discover the error immediately. Shortly after the accounts were
segregated, he terminated his membership in the plans and rolled the remaining balances
over to an Individual Retirement Account. Breen withdrew the balance of her account in
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September 1998. It was only in June of 1999 that Milgram, at his lawyer’s insistence,
reviewed his plan account statements and discovered the overpayment to Breen. By that
time, none of the erroneously transferred funds remained in the Plan. In October 1999
Orthopedic, acting as plan administrator, demanded that Breen give back the excess
distribution. When she refused, Orthopedic sued Bay Ridge, Sedor, and Breen to recoup
the overpayment. Two years of litigation failed to result in a settlement or a dispositive
ruling by the district court. As a result, Milgram, who still had not recovered his money,
sued Orthopedic, the Plan, the trustees, Sedor, Bay Ridge, and Breen asserting both
contract and fiduciary duty claims under ERISA § 502(a)(1)-(3), 29 U.S.C. § 1132(a)(1)(3).
The district court consolidated the two cases and discovery proceeded for several
years thereafter. In October of 2005, Milgram moved for partial summary judgment
against Orthopedic and the Plan, relying on a theory of contractual liability under ERISA
§ 502(a)(1), 29 U.S.C. § 1132(a)(1). He sought a judgment for both the principal amount
that was erroneously transferred to Breen and for accumulated earnings. The Plan
opposed the motion, arguing, as relevant here, that the requested relief would be
inconsistent with the policies of ERISA, because an award against the Plan before it had
recovered from Breen would impair the interests of other Plan members. While
Milgram’s motion for summary judgment against the Plan was pending, Orthopedic
moved for summary judgment against Breen.

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In March 2006, soon after both motions were fully briefed, the district court
announced that it would postpone decision and instead hold a bench trial on Milgram’s
equitable claims. On the first day of trial, however, the judge announced that he would
grant Milgram’s motion for partial summary judgment against the Plan in the principal
amount. Though no summary judgment order had yet been entered, Milgram
relinquished his equitable claims against the other defendants, believing, with good
reason, that he had prevailed on his contract claim.1 After these actions, the only issues
remaining for trial were Breen’s equitable defenses; whether Sedor was a fiduciary such
that he could be held liable to the Plan and/or Orthopedic; and whether Milgram was
entitled to accumulated earnings and interest on the principal amount of the judgment.
The trial took place over several days in the summer of 2006. Shortly after it
concluded, the district court executed an order – the text of which was prepared jointly by
attorneys for Milgram and Orthopedic – granting Milgram summary judgment against the
Plan in the principal amount that was erroneously transferred to Breen ($763,847.93).
The court reserved decision as to whether Milgram was also entitled to accumulated
earnings and interest. In December 2006, Milgram moved to enforce the $763,847.93
judgment. The Plan opposed the motion, for the first time arguing that payment of the

1

In addition, as the district court noted during post-trial proceedings, there was also
some question at the time as to whether ERISA permits an individual plan member to bring
a breach of fiduciary duty claim against the administrator of a defined contribution plan. The
Supreme Court subsequently made clear that such claims are permissible. See LaRue v.
DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 256 (2008)
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judgment would violate a specific ERISA provision – the statute’s prohibition on
alienation of pension plan benefits. See ERISA § 206(d)(1), 29 U.S.C. § 1056(d)(1).
The district court did not act on the motion until March 2010, at which time it
issued the written opinion that is the subject of this appeal. The district court held that
Milgram was entitled to recover accumulated earnings and interest, as well as the
principal amount of his loss. It also recognized that its 2006 award of partial summary
judgment in favor of Milgram had been unenforceable because it had not been certified as
final pursuant to Federal Rule of Civil Procedure 54(b). Accordingly, the court vacated
the earlier award and entered a new judgment against the Plan in the amount of
$1,571,723.73 – the $763,847.93 principal sum, plus accumulated earnings and interest
on that amount. The court rejected the Plan’s argument that ERISA’s anti-alienation rule
precluded enforcement of this judgment. Addressing the other issues that had been left
unresolved following the 2006 trial, the court found that Sedor and Bay Ridge had no
fiduciary duty to the Plan or its participants and therefore dismissed all ERISA claims
against them. Finally, the district court ordered Breen to make restitution to the Plan in
the same amount that it awarded Milgram ($1,571,723.73). Breen was directed to make
the payment within thirty days or risk having a constructive trust placed on any funds in
her possession that could be traced to the erroneous transfer.
The Plan subsequently moved to prohibit enforcement of the district court’s award
in favor of Milgram, reasserting its claim that requiring payment of the award before the
Plan recovered from Breen would violate ERISA’s anti-alienation provisions. The Plan
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also argued, apparently for the first time, that it was entitled to relief from the judgement
under N.Y. C.P.L.R. 5239 and 5240 and Federal Rule of Civil Procedure 60(b)(6).
Milgram opposed the motion and cross-moved for the court to reinstate the equitable
claims he had released on the eve of the 2006 bench trial. The district court rejected both
motions and issued a writ of execution against the Plan in August 2010. The Plan appeals
both from that order and from the district court’s March 2010 decision.
DISCUSSION
I. Plan Liability and ERISA’s Anti-Alienation Provision
ERISA provides that “[a]n employee benefit plan may sue or be sued under this
subchapter as an entity” and that any resulting money judgment “shall be enforceable
only against the plan.” ERISA § 502(d)(1)-(2), 29 U.S.C. § 1132(d)(1)-(2). The Supreme
Court has recognized that this language “clearly contemplates the enforcement of money
judgments against benefit plans.” Mackey v. Lanier Collection Agency & Serv., Inc., 486
U.S. 825, 832 (1988). Although Mackey concerned a welfare benefit plan rather than a
defined contribution pension plan like the one at issue in this case, the plain language of
Section 502 does not distinguish between types of ERISA-governed plans. The text of
the statute thus appears to make clear that ERISA permits Milgram both to sue the Plan
for its misapplication of his funds and to seek enforcement of the resulting award against
plan assets.
Nonetheless, the Plan asks us to read an exception into the unqualified language of
Section 502. Although implicitly acknowledging that the “sue or be sued” language
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applies on its face to all ERISA-governed plans, the Plan argues that distinctions between
types of plans that are drawn in other sections of the statute operate to constrain the
remedial authority of the district court in proceedings under Section 502.
The starting point for this argument is ERISA’s so-called anti-alienation provision,
which applies only to pension plans. ERISA § 206(d)(1) mandates that a pension plan
governed by the statute “shall provide that benefits provided under the plan may not be
assigned or alienated.” 29 U.S.C. § 1056(d)(1). The Internal Revenue Code likewise
conditions preferential tax treatment on a pension plan’s prohibiting alienation and
assignment of participant benefits. See 26 U.S.C. § 401(a)(13)(A). In conformity with
these requirements, Section 9.3 of the plan at issue here provides:
Subject to the exceptions provided below, no benefit which
shall be payable to any person (including a Participant or his
Beneficiary) shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, or
charge . . . .
The Plan argues that, although Mackey’s unqualified assertion that money judgments may
be enforced against plan assets may have been a correct statement of the law with regard
to welfare benefit plans, when the plan being sued is a pension plan, limitations like those
in Section 9.3 and the provisions of federal law that mandate their inclusion in the
document require a more nuanced approach.
The Plan does not dispute that under certain circumstances a defined contribution
pension plan may be subject to a money judgment under Section 502. Rather it argues
that, in this particular case, the district court erred by requiring the Plan to make good on
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its debt to Milgram before it had recovered the equivalent funds from Breen. That is
because, in the Plan’s view, all of the assets currently held in the Plan constitute
“benefits” allocated to Plan participants other than Milgram or Breen. Therefore, the Plan
argues, the anti-alienation provisions of ERISA, the IRC, and the plan document prohibit
those funds from being used to satisfy the district court’s judgment. We disagree both
because undistributed funds held in trust for the members of a defined contribution
pension plan do not constitute “benefits” within the meaning of the anti-alienation
provisions, and because the anti-alienation rule does not prevent pension plan assets from
being used to satisfy a judicial judgment that has been entered against the plan itself.
As to the first point, the Plan takes its definition of “benefits” from Section 6.1 of
the plan document, which provides that, upon retirement, a plan participant is entitled to
collect “all amounts credited to such Participant’s Combined Account.” Elsewhere, the
Participant’s Combined Account is defined as “the account established and maintained by
the Administrator for each Participant with respect to his total interest under the Plan
resulting from the Employer’s contributions.” See Plan Document § 1.48. Reading these
provisions together, the Plan maintains that a participant’s inalienable “benefit” consists
of all assets held by the Plan that are attributed at any point to that participant, whether or
not the participant is currently entitled to collect them.
But the Plan’s argument proves too much. If it were true that, once credited to a
particular participant’s account, Plan funds become “benefits” whose alienation and
assignment is prohibited by ERISA, then the plan administrator would be prohibited from
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debiting participants’ accounts even to cover expenses that ERISA and the Plan
specifically contemplate they will bear. For example, in years in which the trust corpus
suffers an investment loss, Section 4.3(c) of the plan document requires the administrator
to debit each participant’s account “in the same proportion that each Participant’s and
Former Participant’s nonsegregated accounts bear to the total of all Participants’ and
Former Participants’ nonsegregated accounts.” Similarly, Section 4.3(d) provides that
“Participants’ Accounts shall be debited for any insurance or annuity premiums paid,”
and ERISA § 404(a)(1)(A)(ii) authorizes the plan administrator to use pension assets to
“defray[ ] reasonable expenses of administering the plan,” 29 U.S.C. § 1104(a)(1)(A)(ii);
Pension and Welfare Benefits Admin., Advisory Opinion 97-03A (Jan. 23, 1997).
Moreover, the Plan’s reading of the plan document is highly selective. Section
6.1, from which the Plan draws its definition of “benefits,” is entitled “Determination of
Benefits Upon Retirement” and clearly states that the relevant calculations are to be
performed “[u]pon [the plan participant’s] Normal Retirement Date or Early Retirement
Date.” Plan assets therefore become “benefits” only when they are finally distributed to
the participant at the time of retirement. Indeed, prior to that point, a participant cannot
truly be said to have a claim to any particular assets in the trust corpus. “A defined
contribution plan is not merely a collection of unrelated accounts.” La Rue, 552 U.S. at
262 (Thomas, J. concurring). Rather, all of the Plan’s undistributed assets are legally
owned by the trustee and managed for the benefit of all plan participants, with gains and
losses shared by them on a pro rata basis. A single participant’s “account” is merely a
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bookkeeping entry that is used at the time of his retirement to determine what benefits he
is entitled to receive. See id.; see also O’Toole v. Arlington Trust Co., 681 F.2d 94, 96
(1st Cir. 1982) (distinguishing between trust corpus and “benefits” to conclude that
ERISA’s anti-alienation provision does not prevent a creditor of the plan from garnishing
pension trust funds).
In this regard, it is significant that each of the cases that the Plan cites to support its
anti-alienation argument concerns an effort to levy against pension income already being
received by plan members. Thus, in Guidry v. Sheet Metal Workers National Pension
Fund, 493 U.S. 365 (1990), the Supreme Court cited ERISA’s anti-alienation provision in
refusing to allow a union that Guidry had defrauded to satisfy its judgment against him by
garnishing current pension income. And, in Kickham Hanley P.C. v. Kodak Retirement
Income Plan, this Court refused, on anti-alienation grounds, to permit the withholding of
attorney’s fees from pension plan benefit payments to which the “plan participants [were]
presently entitled.” 558 F.3d 204, 214 (2d Cir. 2009).
Nor do these cases support the Plan’s claim that if undistributed account funds
could be considered “benefits,” their use to satisfy a court-ordered judgment against the
Plan would be prohibited. Both Guidry and Kickham Hanley concerned a creditor’s
efforts to levy on pension assets to satisfy obligations that had allegedly been incurred –
directly or indirectly – by pensioners themselves. Neither case stands for the proposition
that ERISA’s anti-alienation provision would prevent the attachment of pension assets in
order to satisfy the debts of the plan. Indeed, the structure of the statute strongly suggests
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a distinction between using plan assets to satisfy the debts of the plan and using plan
assets to satisfy debts of plan participants. ERISA § 206(d) outlines several carefully
circumscribed exceptions to its general prohibition on the alienation or assignment of
pension benefits. See 29 U.S.C. § 1056(d). Each of these exceptions addresses
restrictions that the anti-alienation provision places on pension beneficiaries; no mention
is made of similar restraints on plan administrators. Cf. O’Toole, 681 F.2d at 96 (making
a similar point). Treasury Department regulations that interpret the corresponding
provisions of the Internal Revenue Code tell a similar story. See 26 C.F.R. § 1.401(a)13(c).2 In short, we find no authority – statutory or decisional – to support the argument
that ERISA’s prohibition on alienation impairs a plan’s ability to pay its own debts.3
2

The regulations interpret IRC § 401(a)(13)’s prohibition on assignment and
alienation of plan benefits to include “[a]ny arrangement providing for the payment to the
employer of plan benefits which otherwise would be due the participant under the plan,” and
“[a]ny direct or indirect arrangement . . . whereby a party acquires from a participant or
beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan
benefit payment.” 26 C.F.R. §§ 1.401(a)-13(c)(i)-(ii) (emphasis added). Like ERISA § 206,
both scenarios seem to contemplate attempts at assignment by plan beneficiaries. Certainly,
neither definition encompasses the Plan’s payment of a judgment that has been rendered
against it as an entity.
3

Subsequent to the original publication of this opinion, the Plan filed a petition for
rehearing in which it cited, for the first time, three out-of-circuit cases that the plan argues
are inconsistent with the holding we reach here. See Graden v. Conexant Systems Inc., 496
F.3d 291, 296-303 (3rd Cir. 2007); Evans v. Akers, 534 F.3d 65, 71-75 (1st Cir. 2008);
Harris v Amgen, 573 F.3d 728, 734-737 (9th Cir. 2009). The relevant passage, which
actually appears in only two of the cases, is pure dictum.
In Graden, a former participant in a defined contribution pension plan sued the plan
administrator for allegedly mismanaging plan assets and thus reducing the benefits that the
plaintiff had received. The plan administrator argued that the plaintiff lacked statutory
standing to bring a fiduciary duty action under ERISA § 502(a)(2), because he was not a
“former employee . . . who is or may become eligible to receive a benefit.” See 29 U.S.C.
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The Plan argues, however, that the absence of authority in support of its position
should not end our inquiry. It notes that the alienation issue it identifies is particular to
defined contribution pension plans, which, until relatively recently, were far less popular
(and therefore far less likely to be the subject of litigation) than defined benefit plans.
See LaRue, 552 U.S. at 255; see also Edward A. Zelinsky, The Defined Contribution
Paradigm, 114 Yale L.J. 451, 471 (2004) (discussing the “significant reversal of historic
patterns under which the traditional defined benefit plan was the dominant paradigm for
the provision of retirement income”). The Plan maintains that a close examination of the
distinctions between defined contribution and defined benefit plans compels the

§§ 1132(a)(2), 1109. The Third Circuit rejected this argument, noting that if the plaintiff
were successful in proving a breach of fiduciary duty, he would be entitled to the additional
funds that, absent the mismanagement, would have been in his account at the time he cashed
out of the plan. The court further observed that it was likely that the plaintiff also had a
contract claim under Section 502(a)(1)(B). It speculated, however, that he might have
chosen not to bring such a claim, because
[i]n individual account plans, all of the plan’s money is allocable
to plan participants. 29 U.S.C. § 1002(34). Using a [§
502(a)(1)(B)] suit to force the plan to use money already
allocated to others’ accounts to make good on [plaintiff’s] loss
would present a host of difficulties with which few sensible
plaintiffs would want to contend. Indeed, it may be that
ERISA’s fiduciary obligations prevent plans from paying
judgments out of funds allocable to other participants, in which
case the plan, though liable, would be judgment proof.
Graden, 496 F.3d at 301 (emphasis added). Faced with similar standing disputes, the First
Circuit in Evans followed the reasoning of Graden and quoted the above discussion, 534 F.3d
at 72-73, and the Ninth Circuit in Harris adopted the standing analysis without quoting or
endorsing that passage, 573 F.3d at 734-737.
The passages on which the Plan relies amount to dictum, of the most passing and
speculative nature. For the reasons stated at length in this opinion, we do not find them
persuasive.
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conclusion that enforcement of a judgment against the former poses anti-alienation
problems that enforcement against the latter does not. It suggests that our failure to
recognize those dangers in previous cases is not because they do not exist, but because the
historical dominance of defined benefit plans has prevented the issue from being litigated
previously. The argument is unpersuasive.
The Plan is correct that the two types of pension plans differ in important respects.
Defined benefit plans promise participants a specified, periodic benefit at retirement.
Although the investment pool from which those benefits are drawn may be funded in
various ways, the employer typically bears the risk associated with operating the plan and
must cover any shortfall. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439
(1999). In contrast, in a defined contribution plan, the employer contributes a fixed sum
on a periodic basis. The employee’s benefits on retirement are a function of the
contributions – his own and those of his employer – that have been credited to his
account, “and any income, expenses, gains and losses, and any forfeitures of accounts of
other participants which may be allocated to such participant’s account.” ERISA § 3(34);
29 U.S.C. § 1002(34). “Under such plans, by definition, there can never be an
insufficiency of funds in the plan to cover promised benefits, since each beneficiary is
entitled to whatever assets are dedicated to his individual account.” Hughes, 525 U.S. at
439 (internal citation, quotation marks and brackets omitted).

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A consequence of these distinctions is that, whereas satisfaction of a judgment
from the corpus of a defined benefit plan may not affect individual participant benefits,4
in the case of a defined contribution plan, it will almost certainly do so, since the
employer is under no ongoing obligation to fund the plan to maintain benefits at a set
level. The Plan argues that imposing these costs on pension beneficiaries undercuts
ERISA’s policy goals and violates the anti-alienation provision. Yet it is the distinctive
feature of defined contribution plans that they require the employee rather than the
employer to bear the pension risks associated with investment instability, underfunding,
beneficiary longevity and, indeed, litigation. See Zelinsky, supra, at 458-69. By design,
participants in a defined contribution plan bear the risk that the value of their accounts
will be reduced as a result of actions taken by the plan administrator; just as the antialienation provision does not protect participants against poor investment decisions by the
plan administrator,5 it does not protect them against the risk that poor management
decisions will expose the plan’s assets to liability.
Contrary to the Plan’s suggestion, then, the relative novelty of defined contribution
plans does not explain our failure heretofore to recognize limits on the litigation risk that
participants in such a plan can be required to bear on the plan’s behalf. Rather, it is the
4

Of course, a substantial judgment against a defined benefit plan that is already in
financial straits may well tip the plan into insolvency.
5

Some plans allow the plan participant to control her individual exposure to risk by
choosing particular investments or classes of investments to which the earnings of her
pension account will be tied. Plans structured in such a fashion only make it more clear that
the employee rather than the fund manager bears the risk of investment decisions.
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fact that defined contribution plans eschew any such limitation that is, at least in part,
responsible for their increasing prevalence. See id.
II. The Plan’s Other Arguments Against Enforceability
In its attempt to avoid enforcement of the district court’s judgment, the Plan also
relies on several other provisions of the plan document, ERISA, and New York State law
that, it argues, prohibit Milgram from recovering from the Plan before the Plan has
recouped the funds that it erroneously disbursed to Breen. These arguments are no more
persuasive than the Plan’s anti-alienation argument.
For example, Section 9.7 of the plan document reads, “Except as provided below
and otherwise specifically permitted by law, it shall be impossible . . . for any part of the
corpus or income . . . to be used for, or diverted to, purposes other than the exclusive
benefit of Participants, Retired Participants, or their Beneficiaries.” The Plan suggests
that the use of plan funds to compensate Milgram for the Plan’s misapplication of funds
from his account would contravene this provision. That argument, however, ignores both
the fact that Milgram himself is a “Retired Participant” and that, under ERISA § 502(d),
the enforcement of a money judgment against plan assets is “specifically permitted by
law.” See Mackey, 486 U.S. at 832.
The Plan further objects that to permit enforcement of the judgment would require
Orthopedic, as plan administrator, to violate its fiduciary duties under the statute. ERISA
§ 404 requires the plan administrator to discharge its duties “solely in the interest of the
participants and beneficiaries,” but it defines “defraying reasonable expenses of
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administering the plan” to be a purpose consistent with that duty. See ERISA §
404(a)(1)(A)(ii), 29 U.S.C. § 1104(a)(1)(A)(ii). Although the Plan maintains that the cost
of compensating Milgram does not constitute a “reasonable expense” within the meaning
of the statute, the authority that it cites, an advisory opinion published by the Pension and
Welfare Benefits Administration, see Advisory Opinion 97-03A (Jan. 23, 1997),
addresses a situation entirely different from the one that we confront here. To the extent
that the opinion is relevant to this case as all, its assertion that “as a general rule,
reasonable expenses of administering a plan include direct expenses properly and actually
incurred in the performance of a fiduciary’s duties to the plan,” cuts against the Plan’s
argument. We have little trouble concluding that the payment of a judicial judgment that
the Plan is required by law to satisfy, in favor of a plan beneficiary whose rights have
been violated by the Plan, is an expense that the administrator would “properly and
actually incur[]” in the performance of its duties. Indeed, it could well be argued that it is
the failure to pay Milgram the money to which he is entitled as a plan participant that
would violate the administrator’s fiduciary duties.
This conclusion also answers the Plan’s claim that withdrawing plan assets to pay
the judgment would constitute a prohibited transaction under ERISA § 406(b)(1), 29
U.S.C. § 1106(b)(1). That section prohibits an ERISA fiduciary from “deal[ing] with the
assets of the plan in his own interest or for his own account.” The Plan argues that if
Orthopedic were to use plan assets to satisfy the judgment it would be acting in its “own
interest,” since Milgram also had a claim against Orthopedic for its misconduct as plan
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administrator. But, as we noted above, the Plan is under a legal duty to reimburse
Milgram. Orthopedic’s payment of the judgment is therefore a ministerial function, not a
discretionary one to which fiduciary liability might attach. See Harris Trust and Sav.
Bank. v. John Hancock Mut. Life Ins. Co., 302 F.3d 18, 29 (2d Cir. 2002).
The Plan also maintains that permitting recovery against plan assets would run
afoul of ERISA’s directive that a “money judgment . . . against an employee benefit
plan . . . shall not be enforceable against any other person unless liability against such
person is established in his individual capacity.” ERISA § 502(d)(2), 29 U.S.C.
§ 1132(d)(2). In the Plan’s view, the district court’s judgment is effectively a prohibited
judgment against plan members, because it is their individual retirement accounts that
will suffer. While enforcement of the judgment may cause current plan participants to
receive less generous pension benefits than they otherwise might have received, that does
not change the fact that, as a matter of law, Milgram seeks enforcement against the plan
rather than against any of the participants individually. Moreover, because each
participant’s potential loss on a judgment against the Plan is capped at the balance of his
individual account, suing the Plan is not the economic or legal equivalent to suing the
participants directly.
Finally, the Plan argues that the district court erred in refusing to suspend
enforcement of the judgment pursuant to either N.Y. C.P.L.R. 5239 and 5240 or Federal
Rule of Civil Procedure 60(b)(6). But C.P.L.R. 5239 and 5240 are state procedural rules;
they provide no substantive rights and therefore have no relevance to this proceeding in
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federal court. In contrast, Rule 60(b)(6) is a federal rule that permits the district court to
relieve a party from a final judgment in the interests of justice. But the rule does not
require the district court to withhold enforcement of the judgment; it merely confers
discretion on the court, whose denial of relief under the rule may be overturned only if we
conclude that that discretion was abused. See Transaero, Inc. v. La Fuerza Aerea
Boliviana, 162 F.3d 724, 729 (2d Cir. 1998). We find no basis for reaching that
conclusion in this case. Not only does ERISA specifically authorize the judgment at issue
here, but also it seems likely that any harm done to the Plan or its participants will be
mitigated significantly by the Plan’s recovery of some or all of the funds from Breen.
The district court, therefore, did not abuse its discretion in concluding that the
enforcement of the judgment was consistent with the interests of justice.
In sum, we have considered all of the Plan’s arguments, and find that none of them
warrants reversal of the district court’s judgment that the Plan must pay Milgram what he
is due, whether or not it can succeed in recovering the funds that it, through no fault of
Milgram’s, erroneously paid to Breen.
III. Milgram’s Entitlement to Accumulated Earnings and Prejudgment Interest
In addition to contesting the enforceability of the judgment as a whole, the Plan
argues that the district court erred in awarding Milgram accumulated earnings and
prejudgment interest on the $763,847.93 principal amount. The parties agree that under
our decision in Dobson v. Hartford Financial Services Group, Inc., 389 F.3d 386 (2d Cir.
2004), Milgram’s right to be compensated for the time value of the misdirected funds is a
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question of contract interpretation to be decided under federal common law.
In concluding that accumulated earnings and prejudgment interest were available
in this case, the district court noted that the plan document specifically recognizes the
right of a beneficiary to recover accumulated earnings where a portion of his account has
been segregated for some time pursuant to a Qualified Domestic Relations Order (QDRO)
that is ultimately declared invalid. The existence of this provision, along with general
fairness considerations, led the court to conclude that “implicit in the Plan’s terms is the
commonly held notion that there is a time value to the extended period that Milgram has
been without money the Plan owed him.” We agree.
The Plan argues that the district court’s interpretation is unsustainable in light of
the fact that, unlike the plan in Dobson, it has not had control over the missing funds
during the period of delay and therefore has not able to profit from them. Yet the
decision in Dobson did not turn on equitable considerations but rather on the express and
implied terms of the plan document itself. In that regard, we noted that “[i]mplied
agreements to pay interest on delayed disbursements of owed money fit squarely within
[the] tradition of common law contract interpretation,” 389 F.3d at 399, and quoted at
length from a Supreme Court opinion suggesting that compensation for the time value of
money in breach of contract actions is dictated by “natural justice, and the law of every
civilized country,” id., quoting Spalding v. Mason, 161 U.S. 375, 396 (1896).
The Plan also maintains that in awarding accumulated earnings and interest under
a contract theory, the district court ignored the fact that Milgram contributed to the delay
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by failing to examine his plan statements until several years after the erroneous
distribution. Although this consideration might have supported discounting Milgram’s
recovery if he had been forced to bring his claim as one for “other equitable relief” under
ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), it is not relevant to his ability to recover in
contract, which turns entirely on the express and implied terms of the plan document. As
a matter of contract interpretation, the QDRO procedure relied upon by the district court
evinces a clear orientation in the plan document towards compensating beneficiaries for
the lost use of their funds – even when the loss may be partly of their own making.
The Plan’s other arguments, which largely rehash those it made regarding its
liability on the principal sum, are similarly unavailing. The interest and accumulated
earnings that Plan must pay to Milgram are expenses, like the principal sum, that the Plan
incurred due to its mismanagement of the trust fund. Plan members agreed to share such
expenses as a condition of their participation in the fund. In any event, the fact that the
Plan has a judgment against Breen, enforceable through a constructive trust, for the full
amount that it must restore to Milgram gives us some confidence that no innocent party
will suffer in the long run.
CONCLUSION
We have considered all of the Plan’s remaining arguments and find them to be
without merit. Accordingly, for the foregoing reasons, the judgment of the district court
is AFFIRMED.

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