US Airways, Inc. v. McCutchen - 11-1285 (2013)
SUPREME COURT OF THE UNITED STATES
US AIRWAYS, INC., in its capacity as fiduciary and plan administrator of the US AIRWAYS, INC. EMPLOYEE BENEFITS PLAN, PETITIONER v. JAMES E. McCUTCHEN et al.
on writ of certiorari to the united states court of appeals for the third circuit
[April 16, 2013]
Justice Scalia, with whom The Chief Justice, Jus-tice Thomas, and Justice Alito join, dissenting.
I agree with Parts I and II of the Court’s opinion, which conclude that equity cannot override the plain terms of the contract.
The Court goes on in Parts III and IV, however, to hold that the terms are not plain and to apply the “common-fund” doctrine to fill that “contractual gap,” ante, at 14. The problem with this is that we granted certiorari on a question that presumed the contract’s terms were unambiguous—namely, “where the plan’s terms give it an absolute right to full reimbursement.” Pet. for Cert. i. Re-spondents interpreted “full reimbursement” to mean what it plainly says—reimbursement of all the funds the Plan had expended. In their brief in opposition to the petition they conceded that, under the contract, “a beneficiary is required to reimburse the Plan for any amounts it has paid out of any monies the beneficiary recovers from a third-party, without any contribution to attorney’s fees and expenses.” Brief in Opposition 5 (emphasis added). All the parties, as well as the Solicitor General, have treated that concession as valid. See Brief for Petitioner 18, and n. 6; Brief for Respondents 29; Brief for United States as Amicus Curiae 21. The Court thus has no business deploying against petitioner an argument that was neither preserved, see Baldwin v. Reese, 541 U. S. 27, 34 (2004) , nor fairly included within the question presented, see Yee v. Escondido, 503 U. S. 519, 535 (1992) .
I would reverse the judgment of the Third Circuit.