SEREBOFF et ux. v. MID ATLANTIC MEDICAL SERVICES, INC.

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356 OCTOBER TERM, 2005
Syllabus
SEREBOFF et ux. v. MID ATLANTIC MEDICAL
SERVICES, INC.
certiorari to the united states court of appeals for
the fourth circuit
No. 05–260. Argued March 28, 2006—Decided May 15, 2006
Petitioner Sereboffs are beneficiaries under a health insurance plan admin
istered by respondent Mid Atlantic and covered by the Employee Re
tirement Income Security Act of 1974 (ERISA). The plan provides for
payment of covered medical expenses and has an “Acts of Third Parties”
provision. This provision requires a beneficiary who is injured as a
result of an act or omission of a third party to reimburse Mid Atlantic
for benefits it pays on account of those injuries, if the beneficiary recov
ers for those injuries from the third party. The Sereboffs were in
volved in an automobile accident and suffered injuries. The plan paid
the couple’s medical expenses. The Sereboffs sought compensatory
damages for the accident from third parties in state court. After the
Sereboffs settled their tort suit, Mid Atlantic filed suit in District Court
under § 502(a)(3) of ERISA, seeking to collect from the Sereboffs’ tort
recovery the medical expenses it had paid on the Sereboffs’ behalf. The
Sereboffs agreed to set aside from their tort recovery a sum equal to
the amount Mid Atlantic claimed, and preserve this sum in an invest
ment account pending the outcome of the suit. The court found in Mid
Atlantic’s favor and ordered the Sereboffs to turn over the amount set
aside. The Fourth Circuit affirmed in relevant part, and observed that
the Courts of Appeals are divided on the question whether § 502(a)(3)
authorizes recovery in these circumstances. This Court granted review
to resolve this disagreement.
Held: Mid Atlantic’s action properly sought “equitable relief ” under
§ 502(a)(3). Pp. 361–369.
(a) A fiduciary may bring a civil action under § 502(a)(3)(B) “to
obtain . . . appropriate equitable relief . . . to enforce . . . the terms of
the plan.” The only question here is whether the relief requested was
“equitable.” In Mertens v. Hewitt Associates, 508 U. S. 248, this Court
construed § 502(a)(3)(B) to authorize only “those categories of relief that
were typically available in equity,” and thus rejected a claim that this
Court found sought “nothing other than compensatory damages.” Id.,
at 256, 255. This Court elaborated on this construction of § 502(a)(3) in
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, which
involved a provision in an ERISA plan similar to the “Acts of Third

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Syllabus
Parties” provision in the Sereboffs’ plan. Relying on such a provision,
Great-West sought equitable restitution of benefits it had paid when
Knudson recovered in tort from a third party. In considering whether
§ 502(a)(3)(B) authorized such relief, this Court asked whether the resti
tutionary remedy Great-West sought would have been equitable in “the
days of the divided bench,” id., at 212. This Court found that it would
not have been equitable, because the funds Great-West sought were not
in Knudson’s possession but had been placed in a trust under California
law. That impediment is not present here. Mid Atlantic sought identi
fiable funds within the Sereboffs’ possession and control—that part of
the tort settlement due Mid Atlantic under the ERISA plan and set
aside in the investment account. Pp. 361–363.
(b) This Court’s case law from the days of the divided bench confirms
that Mid Atlantic’s claim is equitable. In Barnes v. Alexander, 232
U. S. 117, attorney Barnes promised two other attorneys “one-third of
the contingent fee” he expected in a case, id., at 119. Based on “the
familiar rul[e] of equity that a contract to convey a specific object even
before it is acquired will make the contractor a trustee as soon as he
gets a title to the thing,” id., at 121, the Court found that Barnes’ under
taking “create[d] a lien” upon the portion of the recovery due him from
the client, ibid., which the other attorneys could “follow . . . into
[Barnes’] hands” “as soon as [the fund] was identified,” id., at 123. The
“Acts of Third Parties” provision in the Sereboffs’ plan, like Barnes’
promise, specifically identified a particular fund distinct from the
Sereboffs’ general assets, and a particular share of that fund to which
Mid Atlantic was entitled. Thus, Mid Atlantic could rely on a “familiar
rul[e] of equity” to collect for the medical bills it had paid by following
a portion of the recovery “into the [Sereboffs’] hands” “as soon as [the
settlement fund] was identified,” and imposing on that portion a con
structive trust or equitable lien. Ibid.
The Sereboffs object that Mid Atlantic’s suit would not have satisfied
the strict tracing rules that they say accompanied equitable restitution
at common law. But Barnes confirms that no such tracing requirement
applies to equitable liens imposed by agreement or assignment, like that
in Barnes itself. And Knudson did not endorse application of all resti
tutionary conditions, like the tracing rules the Sereboffs identify, to
every action for an equitable lien under § 502(a)(3). Knudson simply
held that equitable restitution was unavailable because the funds Great-
West sought were not in Knudson’s possession.
The Sereboffs also argue that equitable relief is inappropriate, even
under Barnes, because at the time they agreed to the plan terms, no
fund existed in which they could grant Mid Atlantic an equitable inter
est. But Barnes explicitly disapproved of a rule requiring identification

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358 SEREBOFF v. MID ATLANTIC MEDICAL
SERVICES, INC.
Syllabus
at the time a contract is made of the fund to which a lien specified in
the contract attached.
The Sereboffs also claim that the rule announced in Barnes applies
only to equitable liens claimed under an attorney’s contingency fee ar
rangement. But Barnes did not attach any particular significance to
the identity of the parties seeking recovery, and other cases of this
Court, not involving attorney’s contingency fees, have applied the same
“familiar rul[e] of equity” that Barnes did. See, e. g., Walker v. Brown,
165 U. S. 654. Pp. 363–368.
(c) The Sereboffs’ contention that the lower courts erred in allowing
enforcement of the “Acts of Third Parties” provision, without imposing
limitations that would apply to an equitable subrogation action, is re
jected. Mid Atlantic’s claim is not considered equitable because it is
a subrogation claim. Rather, it is considered equitable because it is
indistinguishable from an action to enforce an equitable lien established
by agreement, of the sort epitomized by Barnes. P. 368.
407 F. 3d 212, affirmed in relevant part.
Roberts, C. J., delivered the opinion for a unanimous Court.
Peter K. Stris argued the cause for petitioners. With him
on the briefs were Radha A. Pathak, John C. Stein, Shaun
P. Martin, William Delgado, and Jason H. Wilson.
Gregory S. Coleman argued the cause for respondent.
With him on the brief were Thomas F. Fitzgerald and Wil
liam F. Hanrahan.
James A. Feldman argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Solicitor General Clement, Deputy Solicitor General
Kneedler, Howard M. Radzely, Nathaniel I. Spiller, and Ed
ward D. Sieger.*
*Jeffrey Robert White and Kenneth M. Suggs filed a brief for the Associ
ation of Trial Lawyers of America as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for America’s Health
Insurance Plans, Inc., et al. by Waldemar J. Pflepsen, Jr., Stephanie W.
Kanwit, Stephen H. Goldberg, Jan S. Amundson, and Quentin Riegel; for
the Blue Cross Blue Shield Association by Anthony F. Shelley, Alan I.
Horowitz, and Laura G. Ferguson; for the Central States, Southeast and
Southwest Areas Health and Welfare Fund by William J. Nellis, Thomas
C. Nyhan, and James P. Condon; for the National Association of Subroga

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359 Cite as: 547 U. S. 356 (2006)
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
In this case we consider again the circumstances in which
a fiduciary under the Employee Retirement Income Security
Act of 1974 (ERISA) may sue a beneficiary for reimburse
ment of medical expenses paid by the ERISA plan, when the
beneficiary has recovered for its injuries from a third party.
I
Marlene Sereboff ’s employer sponsors a health insurance
plan administered by respondent Mid Atlantic Medical Serv
ices, Inc., and covered by ERISA, 88 Stat. 829, as amended,
29 U. S. C. § 1001 et seq. (2000 ed. and Supp. III). Marlene
Sereboff and her husband Joel are beneficiaries under the
plan. The plan provides for payment of certain covered
medical expenses and contains an “Acts of Third Parties”
provision. This provision “applies when [a beneficiary is]
sick or injured as a result of the act or omission of another
person or party,” and requires a beneficiary who “receives
benefits” under the plan for such injuries to “reimburse [Mid
Atlantic]” for those benefits from “[a]ll recoveries from a
third party (whether by lawsuit, settlement, or otherwise).”
App. to Pet. for Cert. 38a. The provision states that “[Mid
Atlantic’s] share of the recovery will not be reduced because
[the beneficiary] has not received the full damages claimed,
unless [Mid Atlantic] agrees in writing to a reduction.”
Ibid.
tion Professionals by John D. Kolb, Daran P. Kiefer, and Thomas H. Law
rence III; for the National Coordinating Committee for Multiemployer
Plans by Donald J. Capuano and R. Richard Hopp; for the Southwest
Carpenters Health & Welfare Trust by Desmond C. Lee; for the Self-
Insurance Institute of America, Inc., by John E. Barry, Thomas W. Brun
ner, Lawrence H. Mirel, Bryan B. Davenport, and George J. Pantos; and
for the Society for Human Resource Management et al. by Te´rese M. Con
nerton, Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant.

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360 SEREBOFF v. MID ATLANTIC MEDICAL
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Opinion of the Court
The Sereboffs were involved in an automobile accident in
California and suffered injuries. Pursuant to the plan’s cov
erage provisions, the plan paid the couple’s medical expenses.
The Sereboffs filed a tort action in state court against several
third parties, seeking compensatory damages for injuries
suffered as a result of the accident. Soon after the suit was
commenced, Mid Atlantic sent the Sereboffs’ attorney a let
ter asserting a lien on the anticipated proceeds from the suit,
for the medical expenses Mid Atlantic paid on the Sereboffs’
behalf. App. 87–90. On several occasions over the next
two years, Mid Atlantic sent similar correspondence to the
attorney and to the Sereboffs, repeating its claim to a lien
on a portion of the Sereboffs’ recovery, and detailing the
medical expenses as they accrued and were paid by the plan.
The Sereboffs’ tort suit eventually settled for $750,000.
Neither the Sereboffs nor their attorney sent any money to
Mid Atlantic in satisfaction of its claimed lien which, after
Mid Atlantic completed its payments on the Sereboffs’ be
half, totaled $74,869.37.
Mid Atlantic filed suit in District Court under § 502(a)(3)
of ERISA, 29 U. S. C. § 1132(a)(3), seeking to collect from the
Sereboffs the medical expenses it had paid on their behalf.
Since the Sereboffs’ attorney had already distributed the
settlement proceeds to them, Mid Atlantic sought a tempo
rary restraining order and preliminary injunction requiring
the couple to retain and set aside at least $74,869.37 from the
proceeds. The District Court approved a stipulation by the
parties, under which the Sereboffs agreed to “preserve
$74,869.37 of the settlement funds” in an investment account,
“until the [District] Court rules on the merits of this case
and all appeals, if any, are exhausted.” App. 69.
On the merits, the District Court found in Mid Atlantic’s
favor and ordered the Sereboffs to pay Mid Atlantic the
$74,869.37, plus interest, with a deduction for Mid Atlantic’s
share of the attorney’s fees and court costs the Sereboffs
had incurred in state court. See 303 F. Supp. 2d 691, 316

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F. Supp. 2d 265 (Md. 2004). The Sereboffs appealed and the
Fourth Circuit affirmed in relevant part. 407 F. 3d 212
(2005). The Fourth Circuit observed that the Courts of Ap
peals are divided on the question whether § 502(a)(3) author
izes recovery in these circumstances. See id., at 219–220,
n. 7.1 We granted certiorari to resolve the disagreement.
546 U. S. 1030 (2005).
II
A
A fiduciary may bring a civil action under § 502(a)(3) of
ERISA “(A) to enjoin any act or practice which violates
any provision of this subchapter or the terms of the plan,
or (B) to obtain other appropriate equitable relief (i) to re
dress such violations or (ii) to enforce any provisions of
this subchapter or the terms of the plan.” 29 U. S. C.
§ 1132(a)(3). There is no dispute that Mid Atlantic is a fidu
ciary under ERISA and that its suit in District Court was
to “enforce . . . the terms of ” the “Acts of Third Parties”
provision in the Sereboffs’ plan. The only question is
whether the relief Mid Atlantic requested from the District
Court was “equitable” under § 502(a)(3)(B).
This is not the first time we have had occasion to clarify
the scope of the remedial power conferred on district courts
by § 502(a)(3)(B). In Mertens v. Hewitt Associates, 508 U. S.
248 (1993), we construed the provision to authorize only
“those categories of relief that were typically available in
equity,” and thus rejected a claim that we found sought
“nothing other than compensatory damages.” Id., at 256,
255. We elaborated on this construction of § 502(a)(3)(B) in
1 Compare Administrative Comm. of Wal-Mart Assoc. Health & Wel
fare Plan v. Willard, 393 F. 3d 1119 (CA10 2004), Bombardier Aerospace
Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354
F. 3d 348 (CA5 2003), and Administrative Comm. of Wal-Mart Stores, Inc.
Assoc. Health & Welfare Plan v. Varco, 338 F. 3d 680 (CA7 2003), with
Qualchoice, Inc. v. Rowland, 367 F. 3d 638 (CA6 2004), and Westaff (USA)
Inc. v. Arce, 298 F. 3d 1164 (CA9 2002).

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362 SEREBOFF v. MID ATLANTIC MEDICAL
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Opinion of the Court
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S.
204 (2002), which involved facts similar to those in this case.
Much like the “Acts of Third Parties” provision in the
Sereboffs’ plan, the plan in Knudson reserved “ ‘a first lien
upon any recovery, whether by settlement, judgment or oth
erwise,’ that the beneficiary receives from [a] third party.”
Id., at 207. After Knudson was involved in a car accident,
Great-West paid medical bills on her behalf and, when she
recovered in tort from a third party for her injuries, Great-
West sought to collect from her for the medical bills it had
paid. Id., at 207–209.
In response to the argument that Great-West’s claim in
Knudson was for “restitution” and thus equitable under
§ 502(a)(3)(B) and Mertens, we noted that “not all relief fall
ing under the rubric of restitution [was] available in equity.”
534 U. S., at 212. To decide whether the restitutionary relief
sought by Great-West was equitable or legal, we examined
cases and secondary legal materials to determine if the relief
would have been equitable “[i]n the days of the divided
bench.” Ibid. We explained that one feature of equitable
restitution was that it sought to impose a constructive trust
or equitable lien on “particular funds or property in the de
fendant’s possession.” Id., at 213. That requirement was
not met in Knudson, because “the funds to which petitioners
claim[ed] an entitlement” were not in Knudson’s possession,
but had instead been placed in a “Special Needs Trust” under
California law. Id., at 214, 207. The kind of relief Great-
West sought, therefore, was “not equitable—the imposition
of a constructive trust or equitable lien on particular prop
erty—but legal—the imposition of personal liability for the
benefits that [Great-West] conferred upon [Knudson].” Id.,
at 214. We accordingly determined that the suit could not
proceed under § 502(a)(3). Ibid.
That impediment to characterizing the relief in Knudson
as equitable is not present here. As the Fourth Circuit ex
plained below, in this case Mid Atlantic sought “specifically

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identifiable” funds that were “within the possession and con
trol of the Sereboffs”—that portion of the tort settlement
due Mid Atlantic under the terms of the ERISA plan, set
aside and “preserved [in the Sereboffs’] investment ac
counts.” 407 F. 3d, at 218. Unlike Great-West, Mid Atlan
tic did not simply seek “to impose personal liability . . . for
a contractual obligation to pay money.” Knudson, 534 U. S.,
at 210. It alleged breach of contract and sought money, to
be sure, but it sought its recovery through a constructive
trust or equitable lien on a specifically identified fund, not
from the Sereboffs’ assets generally, as would be the case
with a contract action at law. ERISA provides for equitable
remedies to enforce plan terms, so the fact that the action
involves a breach of contract can hardly be enough to prove
relief is not equitable; that would make § 502(a)(3)(B)(ii) an
empty promise. This Court in Knudson did not reject
Great-West’s suit out of hand because it alleged a breach of
contract and sought money, but because Great-West did not
seek to recover a particular fund from the defendant. Mid
Atlantic does.
B
While Mid Atlantic’s case for characterizing its relief as
equitable thus does not falter because of the nature of the
recovery it seeks, Mid Atlantic must still establish that the
basis for its claim is equitable. See id., at 213 (whether rem
edy “is legal or equitable depends on ‘the basis for [the plain
tiff ’s] claim’ and the nature of the underlying remedies
sought”). Our case law from the days of the divided bench
confirms that Mid Atlantic’s claim is equitable. In Barnes
v. Alexander, 232 U. S. 117 (1914), for instance, attorneys
Street and Alexander performed work for Barnes, another
attorney, who promised them “one-third of the contingent
fee” he expected in the case. Id., at 119. In upholding their
equitable claim to this portion of the fee, Justice Holmes re
cited “the familiar rul[e] of equity that a contract to convey
a specific object even before it is acquired will make the con

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tractor a trustee as soon as he gets a title to the thing.” Id.,
at 121. On the basis of this rule, he concluded that Barnes’
undertaking “create[d] a lien” upon the portion of the mone
tary recovery due Barnes from the client, ibid., which Street
and Alexander could “follow . . . into the hands of . . .
Barnes,” “as soon as [the fund] was identified,” id., at 123.
Much like Barnes’ promise to Street and Alexander, the
“Acts of Third Parties” provision in the Sereboffs’ plan spe
cifically identified a particular fund, distinct from the Sere
boffs’ general assets—“[a]ll recoveries from a third party
(whether by lawsuit, settlement, or otherwise)”—and a par
ticular share of that fund to which Mid Atlantic was enti
tled—“that portion of the total recovery which is due [Mid
Atlantic] for benefits paid.” App. to Pet. for Cert. 38a.
Like Street and Alexander in Barnes, therefore, Mid Atlantic
could rely on a “familiar rul[e] of equity” to collect for the
medical bills it had paid on the Sereboffs’ behalf. Barnes,
supra, at 121. This rule allowed them to “follow” a portion
of the recovery “into the [Sereboffs’] hands” “as soon as [the
settlement fund] was identified,” and impose on that portion
a constructive trust or equitable lien. 232 U. S., at 123.
The Sereboffs object that Mid Atlantic’s suit would not
have satisfied the conditions for “equitable restitution” at
common law, particularly the “strict tracing rules” that al
legedly accompanied this form of relief. Reply Brief for
Petitioners 8. When an equitable lien was imposed as resti
tutionary relief, it was often the case that an asset belonging
to the plaintiff had been improperly acquired by the defend
ant and exchanged by him for other property. A central
requirement of equitable relief in these circumstances, the
Sereboffs argue, was the plaintiff ’s ability to “ ‘trac[e]’ the
asset into its products or substitutes,” or “trace his money
or property to some particular funds or assets.” 1 D. Dobbs,
Law of Remedies § 4.3(2), pp. 591, n. 10, 592 (2d ed. 1993).
But as the Sereboffs themselves recognize, an equitable
lien sought as a matter of restitution, and an equitable lien

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“by agreement,” of the sort at issue in Barnes, were differ
ent species of relief. See Brief for Petitioners 24–25; Reply
Brief for Petitioners 11; see also 1 Dobbs, supra, § 4.3(3),
at 601; 1 G. Palmer, Law of Restitution § 1.5, p. 20 (1978).
Barnes confirms that no tracing requirement of the sort
asserted by the Sereboffs applies to equitable liens by agree
ment or assignment: The plaintiffs in Barnes could not iden
tify an asset they originally possessed, which was improp
erly acquired and converted into property the defendant
held, yet that did not preclude them from securing an equi
table lien. To the extent Mid Atlantic’s action is proper
under Barnes, therefore, its asserted inability to satisfy the
“strict tracing rules” for “equitable restitution” is of no con
sequence. Reply Brief for Petitioners 8.
The Sereboffs concede as much, stating that they “do not
contend—and have never suggested—that any tracing was
historically required when an equitable lien was imposed by
agreement.” Id., at 11. Their argument is that such trac
ing was required when an equitable lien was “predicated on
a theory of equitable restitution.” Ibid. The Sereboffs ap
pear to assume that Knudson endorsed application of all the
restitutionary conditions—including restitutionary tracing
rules—to every action for an equitable lien under § 502(a)(3).
This assumption is inaccurate. Knudson simply described
in general terms the conditions under which a fiduciary
might recover when it was seeking equitable restitution
under a provision like that at issue in this case. There was
no need in Knudson to catalog all the circumstances in which
equitable liens were available in equity; Great-West claimed
a right to recover in restitution, and the Court concluded
only that equitable restitution was unavailable because the
funds sought were not in Knudson’s possession. 534 U. S.,
at 214.
The Sereboffs argue that, even under Barnes, equitable
relief would not have been available to fiduciaries relying on
plan provisions like the one at issue here, because when the

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beneficiary agrees to such a provision “no third-party recov
ery” exists which the beneficiary can “place . . . beyond his
control and grant [the fiduciary] a complete and present right
therein.” Brief for Petitioners 26, 25 (internal quotation
marks omitted). It may be true that, in contract cases, eq
uity originally required identification at the time the con
tract was made of the fund to which a lien specified in the
contract attached. See, e. g., Trist v. Child, 21 Wall. 441, 447
(1875) (“[A] mere agreement to pay out of such fund is not
sufficient. Something more is necessary. There must be an
appropriation of the fund pro tanto”). But Barnes explicitly
disapproved of this rule, observing that Trist addressed the
issue only in dicta (since the contract containing the lien pro
vision in Trist was illegal), and treating the “question as at
large,” even in light of earlier opinions that had dealt with
it head on. Barnes, supra, at 120 (citing Trist, supra;
Christmas v. Russell, 14 Wall. 69 (1872); Wright v. Ellison,
1 Wall. 16 (1864)).
Apart from those cases, which Barnes discredited, the
Sereboffs offer little to undermine the plain indication in
Barnes that the fund over which a lien is asserted need not
be in existence when the contract containing the lien provi
sion is executed. See 4 S. Symons, Pomeroy’s Equity Juris
prudence § 1236, pp. 699–700 (5th ed. 1941) (“[A]n agreement
to charge, or to assign . . . property not yet in existence,”
although “creat[ing] no legal estate or interest in the things
when they afterwards come into existence . . . does consti
tute an equitable lien upon the property” just as would
“a lien upon specific things existing and owned by the con
tracting party at the date of the contract”); Peugh v. Porter,
112 U. S. 737, 742 (1885) (“[I]n contemplation of equity, [it]
is not material” that the “very fund now in dispute” was
“not . . . in existence” when an equitable lien over that fund
was created). Indeed, the most they can muster in this re
gard are several state cases predating Barnes and a single
decision that rests, contrary to the Sereboffs’ characteriza

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tion, on the simple conclusion that a contractual provision
purporting to secure an equitable lien did not properly do so.
See Brief for Petitioners 26; Reply Brief for Petitioners 12;
Taylor v. Wharton, 43 App. D. C. 104 (1915).
The Sereboffs finally fall back on the argument that
Barnes announced a special rule for attorneys claiming an
equitable lien over funds promised under a contingency fee
arrangement. Outside of this context, they say, the “typi
cal rules regarding equitable liens by assignment” persisted
and would have prevented recovery here. Reply Brief for
Petitioners 13.
But Barnes did not attach any particular significance to
the identity of the parties seeking recovery. See 232 U. S.,
at 119. And as Barnes itself makes clear, other cases of this
Court—not involving attorney’s contingency fees—apply the
same “familiar rul[e] of equity that a contract to convey a
specific object even before it is acquired will make the con
tractor a trustee as soon as he gets a title to the thing.” Id.,
at 121. In Walker v. Brown, 165 U. S. 654 (1897), for in
stance, the Court approved an equitable lien over municipal
bonds transferred to a company to facilitate its business.
When a supplier of the company suspended shipments be
cause of delinquent debts, the individual who had transferred
the bonds assured the supplier that “ ‘any indebtedness that
they may be owing you at any time, shall be paid before the
return to me of these bonds . . . and that these bonds . . . are
at the risk of the business of [the company], so far as any
claim you may have against [it].’ ” Id., at 663. The Court
found that this undertaking created an equitable lien on the
bonds, which the supplier could enforce against the individ
ual after the bonds had been returned to him when the com
pany became insolvent. Id., at 666. As in Barnes, the
Court resolved the case by applying general equitable princi
ples, stating that “[t]o dedicate property to a particular pur
pose, to provide that a specified creditor and that creditor
alone shall be authorized to seek payment of his debt from

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the property or its value, is unmistakably to create an equi
table lien.” 165 U. S., at 666.
C
Shifting gears, the Sereboffs contend that the lower courts
erred in allowing enforcement of the “Acts of Third Parties”
provision, without imposing various limitations that they say
would apply to “truly equitable relief grounded in principles
of subrogation.” Reply Brief for Petitioners 5. According
to the Sereboffs, they would in an equitable subrogation ac
tion be able to assert certain equitable defenses, such as the
defense that subrogation may be pursued only after a victim
had been made whole for his injuries. Id., at 5–6. Such
defenses should be available against Mid Atlantic’s action,
the Sereboffs claim, despite the plan provision that “[Mid
Atlantic’s] share of the recovery will not be reduced because
[the beneficiary] has not received the full damages claimed,
unless [Mid Atlantic] agrees in writing to a reduction.”
App. to Pet. for Cert. 38a.
But Mid Atlantic’s claim is not considered equitable be
cause it is a subrogation claim. As explained, Mid Atlantic’s
action to enforce the “Acts of Third Parties” provision quali
fies as an equitable remedy because it is indistinguishable
from an action to enforce an equitable lien established by
agreement, of the sort epitomized by our decision in Barnes.
See 4 Palmer, Law of Restitution § 23.18(d), at 470 (A subro
gation lien “is not an express lien based on agreement, but
instead is an equitable lien impressed on moneys on the
ground that they ought to go to the insurer”). Mid Atlantic
need not characterize its claim as a freestanding action for
equitable subrogation. Accordingly, the parcel of equitable
defenses the Sereboffs claim accompany any such action are
beside the point.2
2 The Sereboffs argue that, even if the relief Mid Atlantic sought was
“equitable” under § 502(a)(3), it was not “appropriate” under that provision
in that it contravened principles like the make-whole doctrine. Neither

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369 Cite as: 547 U. S. 356 (2006)
Opinion of the Court
* * *
Under the teaching of Barnes and similar cases, Mid At
lantic’s action in the District Court properly sought “equi
table relief ” under § 502(a)(3); the judgment of the Fourth
Circuit is affirmed in relevant part.
It is so ordered.
the District Court nor the Court of Appeals considered the argument that
Mid Atlantic’s claim was not “appropriate” apart from the contention that
it was not “equitable,” and from our examination of the record it does not
appear that the Sereboffs raised this distinct assertion below. We decline
to consider it for the first time here. See National Collegiate Athletic
Assn. v. Smith, 525 U. S. 459, 470 (1999).