LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC., et al.

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248 OCTOBER TERM, 2007
Syllabus
LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.,
et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 06–856. Argued November 26, 2007—Decided February 20, 2008
Petitioner, a participant in a defined contribution pension plan, alleged
that the plan administrator’s failure to follow petitioner’s investment
directions “depleted” his interest in the plan by approximately $150,000
and amounted to a breach of fiduciary duty under the Employee Retire
ment Income Security Act of 1974 (ERISA). The District Court
granted respondents judgment on the pleadings, and the Fourth Circuit
affirmed. Relying on Massachusetts Mutual Life Ins. Co. v. Russell,
473 U. S. 134, the Circuit held that ERISA § 502(a)(2) provides remedies
only for entire plans, not for individuals.
Held: Although § 502(a)(2) does not provide a remedy for individual inju
ries distinct from plan injuries, it does authorize recovery for fiduciary
breaches that impair the value of plan assets in a participant’s individual
account. Section 502(a)(2) provides for suits to enforce the liability
creating provisions of § 409, concerning breaches of fiduciary duties that
harm plans. The principal statutory duties imposed by § 409 relate to
the proper management, administration, and investment of plan assets,
with an eye toward ensuring that the benefits authorized by the plan
are ultimately paid to plan participants. The misconduct that peti
tioner alleges falls squarely within that category, unlike the misconduct
in Russell. There, the plaintiff received all of the benefits to which she
was contractually entitled, but sought consequential damages arising
from a delay in the processing of her claim. Russell’s emphasis on pro
tecting the “entire plan” reflects the fact that the disability plan in Rus
sell, as well as the typical pension plan at that time, promised partici
pants a fixed benefit. Misconduct by such a plan’s administrators will
not affect an individual’s entitlement to a defined benefit unless it cre
ates or enhances the risk of default by the entire plan. For defined
contribution plans, however, fiduciary misconduct need not threaten the
entire plan’s solvency to reduce benefits below the amount that partici
pants would otherwise receive. Whether a fiduciary breach diminishes
plan assets payable to all participants or only to particular individuals,
it creates the kind of harms that concerned § 409’s draftsmen. Thus,

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249 Cite as: 552 U. S. 248 (2008)
Syllabus
Russell’s “entire plan” references, which accurately reflect § 409’s opera
tion in the defined benefit context, are beside the point in the defined
contribution context. Pp. 252–256.
450 F. 3d 570, vacated and remanded.
Stevens, J., delivered the opinion of the Court, in which Souter, Gins
burg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed an opinion
concurring in part and concurring in the judgment, in which Kennedy, J.,
joined, post, p. 257. Thomas, J., filed an opinion concurring in the judg
ment, in which Scalia, J., joined, post, p. 260.
Peter K. Stris argued the cause for petitioner. With him
on the briefs were Brendan S. Maher, Jean-Claude Andre´,
Robert E. Hoskins, and Shaun P. Martin.
Matthew D. Roberts argued the cause for the United
States as amicus curiae urging reversal. With him on
the brief were Solicitor General Clement, Deputy Solici
tor General Kneedler, Jonathan L. Snare, and Elizabeth
Hopkins.
Thomas P. Gies argued the cause for respondents. With
him on the brief were Clifton Elgarten and Ellen M.
Dwyer.*
*Briefs of amici curiae urging reversal were filed for AARP by Mary
Ellen Signorille, Jay E. Sushelsky, and Melvin R. Radowitz; for the Air
Line Pilots Association, International, by Jani K. Rachelson; for Eleven
Law Professors by Paul A. Montuori and Debra A. Davis; for the Pension
Rights Center by Marc I. Machiz and David S. Preminger; and for the
Self Insurance Institute of America, Inc., by John E. Barry, Thomas W.
Brunner, Lawrence H. Mirel, Bryan B. Davenport, and George J. Pantos.
Briefs of amici curiae urging affirmance were filed for the American
Council of Life Insurers by Peter J. Rusthoven, Bart A. Karwath, and
Carl B. Wilkerson; for the Chamber of Commerce of the United States of
America et al. by Mark A. Casciari, Robin S. Conrad, Shane Brennan,
Richard Whiting, Scott Talbott, and Diane Soubly; and for the ERISA
Industry Committee by John M. Vine, Robert A. Long, Jr., Jeffrey G.
Huvelle, and Thomas L. Cubbage III.
Jeffrey Greg Lewis and Terisa E. Chaw filed a brief for the National
Employment Lawyers Association as amicus curiae.

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250 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S.
134 (1985), we held that a participant in a disability plan that
paid a fixed level of benefits could not bring suit under
§ 502(a)(2) of the Employee Retirement Income Security Act
of 1974 (ERISA), 88 Stat. 891, 29 U. S. C. § 1132(a)(2), to re
cover consequential damages arising from delay in the proc
essing of her claim. In this case we consider whether that
statutory provision authorizes a participant in a defined con
tribution pension plan to sue a fiduciary whose alleged mis
conduct impaired the value of plan assets in the participant’s
individual account.1 Relying on our decision in Russell, the
Court of Appeals for the Fourth Circuit held that § 502(a)(2)
“provides remedies only for entire plans, not for individ
uals. . . . Recovery under this subsection must ‘inure[ ] to
the benefit of the plan as a whole,’ not to particular persons
with rights under the plan.” 450 F. 3d 570, 572–573 (2006)
(quoting Russell, 473 U. S., at 140). While language in our
Russell opinion is consistent with that conclusion, the ration
ale for Russell’s holding supports the opposite result in this
case.
I
Petitioner filed this action in 2004 against his former em
ployer, DeWolff, Boberg & Associates, Inc. (DeWolff), and
the ERISA-regulated 401(k) retirement savings plan admin
istered by DeWolff (Plan). The Plan permits participants to
direct the investment of their contributions in accordance
1 As its names imply, a “defined contribution plan” or “individual account
plan” promises the participant the value of an individual account at retire
ment, which is largely a function of the amounts contributed to that ac
count and the investment performance of those contributions. A “defined
benefit plan,” by contrast, generally promises the participant a fixed level
of retirement income, which is typically based on the employee’s years
of service and compensation. See §§ 3(34)–(35), 88 Stat. 838, 29 U. S. C.
§§ 1002(34)–(35); P. Schneider & B. Freedman, ERISA: A Comprehensive
Guide § 3.02 (2d ed. 2003).

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Opinion of the Court
with specified procedures and requirements. Petitioner al
leged that in 2001 and 2002 he directed DeWolff to make
certain changes to the investments in his individual account,
but DeWolff never carried out these directions. Petitioner
claimed that this omission “depleted” his interest in the Plan
by approximately $150,000, and amounted to a breach of fi
duciary duty under ERISA. The complaint sought “ ‘make
whole’ or other equitable relief as allowed by [§ 502(a)(3)],”
as well as “such other and further relief as the court deems
just and proper.” Civil Action No. 2:04–1747–18 (D. S. C.),
p. 4, 2 Record, Doc. 1.
Respondents filed a motion for judgment on the pleadings,
arguing that the complaint was essentially a claim for mone
tary relief that is not recoverable under § 502(a)(3). Peti
tioner countered that he “d[id] not wish for the court to
award him any money, but . . . simply want[ed] the plan to
properly reflect that which would be his interest in the plan,
but for the breach of fiduciary duty.” Reply to Defendants
Motion to Dismiss, p. 7, 3 id., Doc. 17. The District Court
concluded, however, that since respondents did not possess
any disputed funds that rightly belonged to petitioner, he
was seeking damages rather than equitable relief available
under § 502(a)(3). Assuming, arguendo, that respondents
had breached a fiduciary duty, the District Court nonetheless
granted their motion.
On appeal petitioner argued that he had a cognizable claim
for relief under §§ 502(a)(2) and 502(a)(3) of ERISA. The
Court of Appeals stated that petitioner had raised his
§ 502(a)(2) argument for the first time on appeal, but never
theless rejected it on the merits.
Section 502(a)(2) provides for suits to enforce the liability
creating provisions of § 409, concerning breaches of fiduciary
duties that harm plans.2 The Court of Appeals cited lan
2 Section 409(a) provides:
“Any person who is a fiduciary with respect to a plan who breaches any
of the responsibilities, obligations, or duties imposed upon fiduciaries by

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252 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Opinion of the Court
guage from our opinion in Russell suggesting that these pro
visions “protect the entire plan, rather than the rights of an
individual beneficiary.” 473 U. S., at 142. It then charac
terized the remedy sought by petitioner as “personal” be
cause he “desires recovery to be paid into his plan account,
an instrument that exists specifically for his benefit,” and
concluded:
“We are therefore skeptical that plaintiff ’s individual
remedial interest can serve as a legitimate proxy for the
plan in its entirety, as [§ 502(a)(2)] requires. To be sure,
the recovery plaintiff seeks could be seen as accruing to
the plan in the narrow sense that it would be paid into
plaintiff ’s personal plan account, which is part of the
plan. But such a view finds no license in the statutory
text, and threatens to undermine the careful limitations
Congress has placed on the scope of ERISA relief.” 450
F. 3d, at 574.
The Court of Appeals also rejected petitioner’s argument
that the make-whole relief he sought was “equitable” within
the meaning of § 502(a)(3). Although our grant of certiorari,
551 U. S. 1130 (2007), encompassed the § 502(a)(3) issue, we
do not address it because we conclude that the Court of Ap
peals misread § 502(a)(2).
II
As the case comes to us we must assume that respondents
breached fiduciary obligations defined in § 409(a), and that
this title shall be personally liable to make good to such plan any losses to
the plan resulting from each such breach, and to restore to such plan any
profits of such fiduciary which have been made through use of assets of
the plan by the fiduciary, and shall be subject to such other equitable or
remedial relief as the court may deem appropriate, including removal of
such fiduciary. A fiduciary may also be removed for a violation of section
411 of this Act.” 88 Stat. 886, 29 U. S. C. § 1109(a).

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253 Cite as: 552 U. S. 248 (2008)
Opinion of the Court
those breaches had an adverse impact on the value of the
Plan assets in petitioner’s individual account. Whether
petitioner can prove those allegations and whether respond
ents may have valid defenses to the claim are matters not
before us.3 Although the record does not reveal the relative
size of petitioner’s account, the legal issue under § 502(a)(2)
is the same whether his account includes 1% or 99% of the
total assets in the Plan.
As we explained in Russell, and in more detail in our later
opinion in Varity Corp. v. Howe, 516 U. S. 489, 508–512
(1996), § 502(a) of ERISA identifies six types of civil actions
that may be brought by various parties. The second, which
is at issue in this case, authorizes the Secretary of Labor as
well as plan participants, beneficiaries, and fiduciaries, to
bring actions on behalf of a plan to recover for violations of
the obligations defined in § 409(a). The principal statutory
duties imposed on fiduciaries by that section “relate to the
proper management, administration, and investment of fund
assets,” with an eye toward ensuring that “the benefits au
thorized by the plan” are ultimately paid to participants and
beneficiaries. Russell, 473 U. S., at 142; see also Varity, 516
U. S., at 511–512 (noting that § 409’s fiduciary obligations “re
lat[e] to the plan’s financial integrity” and “reflec[t] a special
congressional concern about plan asset management”). The
misconduct alleged by petitioner in this case falls squarely
within that category.4
3 For example, we do not decide whether petitioner made the alleged
investment directions in accordance with the requirements specified by
the Plan, whether he was required to exhaust remedies set forth in the
Plan before seeking relief in federal court pursuant to § 502(a)(2), or
whether he asserted his rights in a timely fashion.
4 The record does not reveal whether the alleged $150,000 injury repre
sents a decline in the value of assets that DeWolff should have sold or
an increase in the value of assets that DeWolff should have purchased.
Contrary to respondents’ argument, however, § 502(a)(2) encompasses ap

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254 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Opinion of the Court
The misconduct alleged in Russell, by contrast, fell out
side this category. The plaintiff in Russell received all of
the benefits to which she was contractually entitled, but
sought consequential damages arising from a delay in the
processing of her claim. 473 U. S., at 136–137. In holding
that § 502(a)(2) does not provide a remedy for this type
of injury, we stressed that the text of § 409(a) characterizes
the relevant fiduciary relationship as one “with respect to a
plan,” and repeatedly identifies the “plan” as the victim of
any fiduciary breach and the recipient of any relief. See id.,
at 140. The legislative history likewise revealed that “the
crucible of congressional concern was misuse and misman
agement of plan assets by plan administrators.” Id., at 141,
n. 8. Finally, our review of ERISA as a whole confirmed
that §§ 502(a)(2) and 409 protect “the financial integrity of
the plan,” id., at 142, n. 9, whereas other provisions specifi
cally address claims for benefits, see id., at 143–144 (discuss
ing §§ 502(a)(1)(B) and 503). We therefore concluded:
“A fair contextual reading of the statute makes it abun
dantly clear that its draftsmen were primarily con
cerned with the possible misuse of plan assets, and with
remedies that would protect the entire plan, rather than
with the rights of an individual beneficiary.” Id., at 142.
Russell’s emphasis on protecting the “entire plan” from
fiduciary misconduct reflects the former landscape of em
ployee benefit plans. That landscape has changed.
propriate claims for “lost profits.” See Brief for Respondents 12–13.
Under the common law of trusts, which informs our interpretation of
ERISA’s fiduciary duties, see Varity, 516 U. S., at 496–497, trustees are
“chargeable with . . . any profit which would have accrued to the trust
estate if there had been no breach of trust,” including profits forgone be
cause the trustee “fails to purchase specific property which it is his duty
to purchase.” 1 Restatement (Second) of Trusts § 205, and Comment i
(1957); § 211; see also 3 A. Scott, Law on Trusts §§ 205, 211 (3d ed. 1967).

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Opinion of the Court
Defined contribution plans dominate the retirement plan
scene today.5 In contrast, when ERISA was enacted, and
when Russell was decided, “the [defined benefit] plan was
the norm of American pension practice.” J. Langbein,
S. Stabile, & B. Wolk, Pension and Employee Benefit Law 58
(4th ed. 2006); see also Zelinsky, The Defined Contribution
Paradigm, 114 Yale L. J. 451, 471 (2004) (discussing the “sig
nificant reversal of historic patterns under which the tradi
tional defined benefit plan was the dominant paradigm for
the provision of retirement income”). Unlike the defined
contribution plan in this case, the disability plan at issue in
Russell did not have individual accounts; it paid a fixed bene
fit based on a percentage of the employee’s salary. See Rus
sell v. Massachusetts Mut. Life Ins. Co., 722 F. 2d 482, 486
(CA9 1983).
The “entire plan” language in Russell speaks to the impact
of § 409 on plans that pay defined benefits. Misconduct by
the administrators of a defined benefit plan will not affect an
individual’s entitlement to a defined benefit unless it creates
or enhances the risk of default by the entire plan. It was
that default risk that prompted Congress to require defined
benefit plans (but not defined contribution plans) to satisfy
complex minimum funding requirements, and to make pre
mium payments to the Pension Benefit Guaranty Corpora
tion for plan termination insurance. See Zelinsky, 114 Yale
L. J., at 475–478.
For defined contribution plans, however, fiduciary miscon
duct need not threaten the solvency of the entire plan to
5 See, e. g., D. Rajnes, An Evolving Pension System: Trends in Defined
Benefit and Defined Contribution Plans, Employee Benefit Research Insti
tute (EBRI) Issue Brief No. 249 (Sept. 2002), http://www.ebri.org/pdf/
briefspdf/0902ib.pdf (all Internet materials as visited Jan. 28, 2008, and
available in Clerk of Court’s case file); Facts from EBRI: Retirement
Trends in the United States Over the Past Quarter-Century (June 2007),
http://www.ebri.org/pdf/publications/facts/0607fact.pdf.

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256 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Opinion of the Court
reduce benefits below the amount that participants would
otherwise receive. Whether a fiduciary breach diminishes
plan assets payable to all participants and beneficiaries, or
only to persons tied to particular individual accounts, it cre
ates the kind of harms that concerned the draftsmen of § 409.
Consequently, our references to the “entire plan” in Russell,
which accurately reflect the operation of § 409 in the defined
benefit context, are beside the point in the defined contribu
tion context.
Other sections of ERISA confirm that the “entire plan”
language from Russell, which appears nowhere in § 409 or
§ 502(a)(2), does not apply to defined contribution plans.
Most significant is § 404(c), which exempts fiduciaries from
liability for losses caused by participants’ exercise of control
over assets in their individual accounts. See also 29 CFR
§ 2550.404c–1 (2007). This provision would serve no real
purpose if, as respondents argue, fiduciaries never had any
liability for losses in an individual account.
We therefore hold that although § 502(a)(2) does not pro
vide a remedy for individual injuries distinct from plan inju
ries, that provision does authorize recovery for fiduciary
breaches that impair the value of plan assets in a partici
pant’s individual account. Accordingly, the judgment of the
Court of Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion.6
It is so ordered.
6 After our grant of certiorari respondents filed a motion to dismiss the
writ, contending that the case is moot because petitioner is no longer a
participant in the Plan. While his withdrawal of funds from the Plan
may have relevance to the proceedings on remand, we denied their motion
because the case is not moot. A plan “participant,” as defined by § 3(7) of
ERISA, 29 U. S. C. § 1002(7), may include a former employee with a color
able claim for benefits. See, e. g., Harzewski v. Guidant Corp., 489 F. 3d
799 (CA7 2007).

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Cite as: 552 U. S. 248 (2008) 257
Opinion of Roberts, C. J.
Chief Justice Roberts, with whom Justice Kennedy
joins, concurring in part and concurring in the judgment.
In the decision below, the Fourth Circuit concluded that
the loss to LaRue’s individual plan account did not permit
him to “serve as a legitimate proxy for the plan in its en
tirety,” thus barring him from relief under § 502(a)(2) of the
Employee Retirement Income Security Act of 1974 (ERISA),
29 U. S. C. § 1132(a)(2). 450 F. 3d 570, 574 (2006). The
Court today rejects that reasoning. See ante, at 252, 255–
256. I agree with the Court that the Fourth Circuit’s analy
sis was flawed, and join the Court’s opinion to that extent.
The Court, however, goes on to conclude that § 502(a)(2)
does authorize recovery in cases such as the present one.
See ante, at 255–256. It is not at all clear that this is true.
LaRue’s right to direct the investment of his contributions
was a right granted and governed by the plan. See ante,
at 250–251. In this action, he seeks the benefits that would
otherwise be due him if, as alleged, the plan carried out his
investment instruction. LaRue’s claim, therefore, is a claim
for benefits that turns on the application and interpretation
of the plan terms, specifically those governing investment
options and how to exercise them.
It is at least arguable that a claim of this nature properly
lies only under § 502(a)(1)(B) of ERISA. That provision
allows a plan participant or beneficiary “to recover bene
fits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” 29 U. S. C.
§ 1132(a)(1)(B). It is difficult to imagine a more accurate de
scription of LaRue’s claim. And in fact claimants have filed
suit under § 502(a)(1)(B) alleging similar benefit denials in
violation of plan terms. See, e. g., Hess v. Reg-Ellen Ma
chine Tool Corp., 423 F. 3d 653, 657 (CA7 2005) (allegation
made under § 502(a)(1)(B) that a plan administrator wrong

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258 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Opinion of Roberts, C. J.
fully denied instruction to move retirement funds from em
ployer’s stock to a diversified investment account).
If LaRue may bring his claim under § 502(a)(1)(B), it is not
clear that he may do so under § 502(a)(2) as well. Section
502(a)(2) provides for “appropriate” relief. Construing the
same term in a parallel ERISA provision, we have held that
relief is not “appropriate” under § 502(a)(3) if another provi
sion, such as § 502(a)(1)(B), offers an adequate remedy. See
Varity Corp. v. Howe, 516 U. S. 489, 515 (1996). Applying
the same rationale to an interpretation of “appropriate” in
§ 502(a)(2) would accord with our usual preference for con
struing the “same terms [to] have the same meaning in dif
ferent sections of the same statute,” Barnhill v. Johnson,
503 U. S. 393, 406 (1992), and with the view that ERISA in
particular is a “ ‘comprehensive and reticulated statute’ ”
with “carefully integrated civil enforcement provisions,”
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134,
146 (1985) (quoting Nachman Corp. v. Pension Benefit Guar
anty Corporation, 446 U. S. 359, 361 (1980)). In a variety of
contexts, some Courts of Appeals have accordingly pre
vented plaintiffs from recasting what are in essence plan
derived benefit claims that should be brought under
§ 502(a)(1)(B) as claims for fiduciary breaches under
§ 502(a)(2). See, e. g., Coyne & Delany Co. v. Blue Cross &
Blue Shield of Va., Inc., 102 F. 3d 712, 714 (CA4 1996).
Other Courts of Appeals have disagreed with this approach.
See, e. g., Graden v. Conexant Systems Inc., 496 F. 3d 291,
301 (CA3 2007).
The significance of the distinction between a § 502(a)(1)(B)
claim and one under § 502(a)(2) is not merely a matter of pick
ing the right provision to cite in the complaint. Allowing a
§ 502(a)(1)(B) action to be recast as one under § 502(a)(2)
might permit plaintiffs to circumvent safeguards for plan
administrators that have developed under § 502(a)(1)(B).
Among these safeguards is the requirement, recognized by
almost all the Courts of Appeals, see Fallick v. Nationwide

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259 Cite as: 552 U. S. 248 (2008)
Opinion of Roberts, C. J.
Mut. Ins. Co., 162 F. 3d 410, 418, n. 4 (CA6 1998) (citing
cases), that a participant exhaust the administrative reme
dies mandated by ERISA § 503, 29 U. S. C. § 1133, before
filing suit under § 502(a)(1)(B).* Equally significant, this
Court has held that ERISA plans may grant administrators
and fiduciaries discretion in determining benefit eligibility
and the meaning of plan terms, decisions that courts may
review only for an abuse of discretion. Firestone Tire &
Rubber Co. v. Bruch, 489 U. S. 101, 115 (1989).
These safeguards encourage employers and others to un
dertake the voluntary step of providing medical and retire
ment benefits to plan participants, see Aetna Health Inc. v.
Davila, 542 U. S. 200, 215 (2004), and have no doubt engen
dered substantial reliance interests on the part of plans and
fiduciaries. Allowing what is really a claim for benefits
under a plan to be brought as a claim for breach of fiduciary
duty under § 502(a)(2), rather than as a claim for benefits due
“under the terms of the plan,” § 502(a)(1)(B), may result in
circumventing such plan terms.
I do not mean to suggest that these are settled questions.
They are not. Nor are we in a position to answer them.
LaRue did not rely on § 502(a)(1)(B) as a source of relief, and
the courts below had no occasion to address the argument,
raised by an amicus in this Court, that the availability of
relief under § 502(a)(1)(B) precludes LaRue’s fiduciary breach
claim. See Brief for ERISA Industry Committee as Ami
cus Curiae 13–30. I simply highlight the fact that the
Court’s determination that the present claim may be brought
under § 502(a)(2) is reached without considering whether the
possible availability of relief under § 502(a)(1)(B) alters that
conclusion. See, e. g., United Parcel Service, Inc. v. Mitch
ell, 451 U. S. 56, 60, n. 2 (1981) (noting general reluctance to
consider arguments raised only by an amicus and not consid
*Sensibly, the Court leaves open the question whether exhaustion may
be required of a claimant who seeks recovery for a breach of fiduciary duty
under § 502(a)(2). See ante, at 253, n. 3.

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260 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Thomas, J., concurring in judgment
ered by the courts below). In matters of statutory interpre
tation, where principles of stare decisis have their greatest
effect, it is important that we not seem to decide more than
we do. I see nothing in today’s opinion precluding the lower
courts on remand, if they determine that the argument is
properly before them, from considering the contention that
LaRue’s claim may proceed only under § 502(a)(1)(B). In
any event, other courts in other cases remain free to consider
what we have not—what effect the availability of relief
under § 502(a)(1)(B) may have on a plan participant’s ability
to proceed under § 502(a)(2).
Justice Thomas, with whom Justice Scalia joins, con
curring in the judgment.
I agree with the Court that petitioner alleges a cognizable
claim under § 502(a)(2) of the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U. S. C. § 1132(a)(2), but it
is ERISA’s text and not “the kind of harms that concerned
[ERISA’s] draftsmen” that compels my decision. Ante, at
256. In Massachusetts Mut. Life Ins. Co. v. Russell, 473
U. S. 134 (1985), the Court held that § 409 of ERISA, 29
U. S. C. § 1109, read together with § 502(a)(2), authorizes re
covery only by “the plan as an entity,” 473 U. S., at 140, and
does not permit individuals to bring suit when they do not
seek relief on behalf of the plan, id., at 139–144. The major
ity accepts Russell’s fundamental holding, but reins in the
Court’s further suggestion in Russell that suits under
§ 502(a)(2) are meant to “protect the entire plan,” rather than
“the rights of an individual beneficiary.” Ante, at 253–254
(internal quotation marks omitted); see Russell, supra, at
142. The majority states that emphasizing the “entire plan”
was a sensible application of §§ 409 and 502(a)(2) in the his
torical context of defined benefit plans, but that the subse
quent proliferation of defined contribution plans has ren
dered Russell’s dictum inapplicable to most modern cases.

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Cite as: 552 U. S. 248 (2008) 261
Thomas, J., concurring in judgment
Ante, at 255–256. In concluding that a loss suffered by a
participant’s defined contribution plan account because of a
fiduciary breach “creates the kind of harms that concerned
the draftsmen of § 409,” the majority holds that § 502(a)(2)
authorizes recovery for plan participants such as petitioner.
Ante, at 256.
Although I agree with the majority’s holding, I write sepa
rately because my reading of §§ 409 and 502(a)(2) is not con
tingent on trends in the pension plan market. Nor does it
depend on the ostensible “concerns” of ERISA’s drafters.
Rather, my conclusion that petitioner has stated a cognizable
claim flows from the unambiguous text of §§ 409 and 502(a)(2)
as applied to defined contribution plans. Section 502(a)(2)
states that “[a] civil action may be brought” by a plan
“participant, beneficiary or fiduciary,” or by the Secretary
of Labor, to obtain “appropriate relief ” under § 409. 29
U. S. C. § 1132(a)(2). Section 409(a) provides that “[a]ny per
son who is a fiduciary with respect to a plan . . . shall be
personally liable to make good to such plan any losses to the
plan resulting from each [fiduciary] breach, and to restore to
such plan any profits of such fiduciary which have been made
through use of assets of the plan by the fiduciary . . . .” 29
U. S. C. § 1109(a) (emphasis added).
The plain text of § 409(a), which uses the term “plan” five
times, leaves no doubt that § 502(a)(2) authorizes recovery
only for the plan. Likewise, Congress’ repeated use of the
word “any” in § 409(a) clarifies that the key factor is whether
the alleged losses can be said to be losses “to the plan,” not
whether they are otherwise of a particular nature or kind.
See, e. g., Ali v. Federal Bureau of Prisons, ante, at 219 (not
ing that the natural reading of “any” is “one or some indis
criminately of whatever kind” (internal quotation marks
omitted)). On their face, §§ 409(a) and 502(a)(2) permit re
covery of all plan losses caused by a fiduciary breach.

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262 LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC.
Thomas, J., concurring in judgment
The question presented here, then, is whether the losses
to petitioner’s individual 401(k) account resulting from re
spondents’ alleged breach of their fiduciary duties were
losses “to the plan.” In my view they were, because the
assets allocated to petitioner’s individual account were plan
assets. ERISA requires the assets of a defined contribution
plan (including “gains and losses” and legal recoveries) to
be allocated for bookkeeping purposes to individual accounts
within the plan for the beneficial interest of the participants,
whose benefits in turn depend on the allocated amounts.
See 29 U. S. C. § 1002(34) (defining a “defined contribution
plan” as a “plan which provides for an individual account for
each participant and for benefits based solely upon the
amount contributed to the participant’s account, and any in
come, expenses, gains and losses, and any forfeitures of ac
counts of other participants which may be allocated to such
participant’s account”). Thus, when a defined contribution
plan sustains losses, those losses are reflected in the balances
in the plan accounts of the affected participants, and a recov
ery of those losses would be allocated to one or more individ
ual accounts.
The allocation of a plan’s assets to individual accounts for
bookkeeping purposes does not change the fact that all the
assets in the plan remain plan assets. A defined contribu
tion plan is not merely a collection of unrelated accounts.
Rather, ERISA requires a plan’s combined assets to be held
in trust and legally owned by the plan trustees. See 29
U. S. C. § 1103(a) (providing that “all assets of an employee
benefit plan shall be held in trust by one or more trustees”).
In short, the assets of a defined contribution plan under
ERISA constitute, at the very least, the sum of all the assets
allocated for bookkeeping purposes to the participants’ indi
vidual accounts. Because a defined contribution plan is es
sentially the sum of its parts, losses attributable to the ac
count of an individual participant are necessarily “losses to

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263 Cite as: 552 U. S. 248 (2008)
Thomas, J., concurring in judgment
the plan” for purposes of § 409(a). Accordingly, when a par
ticipant sustains losses to his individual account as a result
of a fiduciary breach, the plan’s aggregate assets are likewise
diminished by the same amount, and § 502(a)(2) permits that
participant to recover such losses on behalf of the plan.*
*Of course, a participant suing to recover benefits on behalf of the plan
is not entitled to monetary relief payable directly to him; rather, any re
covery must be paid to the plan.