Eric RUBIN-SCHNEIDERMAN, Plaintiff-Appellant, v. MERIT BEHAVIORAL CARE CORPORATION, Sati Ahluwalia, Empire Blue Cross and Blue Shield, Defendants-Appellees, 193 F. App'x 70

SUMMARY ORDER The plaintiff, Eric Rubin-Schneiderman, brought suit against the defendants—Empire Blue Cross and Blue Shield (“Empire”), his health insurance company; Merit Behavioral Care Corporation (“Merit”), the company that performs utilization review of mental health services for Empire; and Sati Ahluwalia, an employee of Merit—under

section 502(a)(3) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(3). He alleged that the defendants negligently failed to authorize his hospitalization in a psychiatric facility and that, as a result of this negligence, he suffered permanent injury from a failed suicide attempt. The district court granted the defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the ground that, under recent Supreme Court precedents beginning with Mertens v.

Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993), the monetary damages RubinSchneiderman sought were unavailable under ERISA § 502(a)(3). [SPA 3-6] Rubin-Schneiderman’s primary argument on appeal is that Mertens was wrongly decided and we should not follow it. But “[w]e cannot overrule the Supreme Court.” Bach v. Pataki 408 F.3d 75, 86 (2d Cir.2005); see also Rodriguez de Quijos v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Cicio v.

Does, 321 F.3d 83, 106-07 (2d Cir.2003) (Calabresi, J., dissenting in part), vacated and remanded, 542 U.S. 933, 124 S.Ct. 2902, 159 L.Ed.2d 808 (2004). Mertens and its progeny are binding on us and we are obliged to follow those decisions. See, e.g., Coan v. Kaufman, 457 F.3d 250, 262-63 (2d Cir.2006). Rubin-Schneiderman also urges us to adopt Justice Ginsburg’s suggestion in Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004), that monetary relief under

section 502(a)(3) may be more widely available in suits against ERISA fiduciaries than against non-fiduciaries. See id. at 223-24, 124 S.Ct. 2488 (Ginsburg, J., concurring). As we recently concluded, however, the fact that a defendant is a fiduciary does not change the requirement of

section 502(a)(3) that the relief sought be “equitable.” See Coan, at 263-64; Sereboff v. Mid Atlantic Med. Servs., Inc., - U.S. -, 126 S.Ct. 1869, 1874, 164 L.Ed.2d 612 (2006). Because Rubin-Schneiderman is seeking compensatory monetary damages, a legal remedy, he cannot proceed under ERISA § 502(a)(3). For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.