(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

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 Retirement 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 injuries 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 petitioner 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 protecting the “entire plan” reflects the

fact that the disability plan in Russell, as well as the typical pension

plan at that time, promised participants a fixed benefit. Misconduct 

by such a plan’s administrators will not affect an individual’s entitlement to a defined benefit unless it creates or enhances the risk of 
2 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Syllabus 

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 participants 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, Russell’s “entire 

plan” references, which accurately reflect §409’s operation in the defined benefit context, are beside the point in the defined contribution 

context. Pp. 4–8. 

450 F. 3d 570, vacated and remanded. 

STEVENS, J., delivered the opinion of the Court, in which SOUTER, 

GINSBURG, BREYER, and ALITO, JJ., joined. ROBERTS, C. J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. 
_________________ 

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Cite as: 552 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 06–856 

JAMES LARUE, PETITIONER v. DEWOLFF, BOBERG 

& ASSOCIATES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[February 20, 2008] 

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 recover consequential damages arising from 

delay in the processing of her claim. In this case we consider whether that statutory provision authorizes a participant in a defined contribution pension plan to sue a 

fiduciary whose alleged misconduct 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 

—————— 

1As its names imply, a “defined contribution plan” or “individual

account plan” promises the participant the value of an individual 

account at retirement, which is largely a function of the amounts 

contributed to that account 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), 29 U. S. C. §§1002(34)–(35); P. Schneider & B. Freedman,

ERISA: A Comprehensive Guide §3.02 (2d ed. 2003). 
2 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Opinion of the Court 

Fourth Circuit held that §502(a)(2) “provides remedies 

only for entire plans, not for individuals. . . . 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 rationale for 

Russell’s holding supports the opposite result in this case. 

I 

Petitioner filed this action in 2004 against his former 

employer, DeWolff, Boberg & Associates (DeWolff), and 

the ERISA-regulated 401(k) retirement savings plan

administered by DeWolff (Plan). The Plan permits participants to direct the investment of their contributions in 

accordance with specified procedures and requirements.

Petitioner alleged 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 fiduciary 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 monetary relief that is not recoverable under 

§502(a)(3). Petitioner 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 
Cite as: 552 U. S. ____ (2008) 3 

Opinion of the Court 

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 beached 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 nevertheless 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 language from our opinion in Russell suggesting that

that these provisions “protect the entire plan, rather than

the rights of an individual beneficiary.” 473 U. S., at 142. 

It then characterized the remedy sought by petitioner as 

“personal” because 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 

—————— 

2Section 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 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). 
4 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Opinion of the Court 

as accruing to the plan in the narrow sense that it

would be paid into plaintiff’s 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. ___ (2007), encompassed the 

§502(a)(3) issue, we do not address it because we conclude

that the Court of Appeals 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 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 respondents 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 

—————— 

3For 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. 
Cite as: 552 U. S. ____ (2008) 5 

Opinion of the Court 

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 authorized 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 “relat[e] 

to the plan’s financial integrity” and “reflec[t] a special

congressional concern about plan asset management”).

The misconduct alleged by the petitioner in this case falls

squarely within that category.4 

The misconduct alleged in Russell, by contrast, fell 

outside 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 

—————— 

4The record does not reveal whether the alleged $150,000 injury

represents 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 appropriate 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 because the trustee “fails to purchase specific 

property which it is his duty to purchase.” 1 Restatement (Second) 

Trusts §205, and Comment i, §211 (1957); see also 3 A. Scott, Law on

Trusts §§205, 211 (3d ed. 1967). 
6 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Opinion of the Court 

mismanagement 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 specifically address claims for benefits. See id., 

at 143–144 (discussing §§502(a)(1)(B) and 503). We therefore concluded: 

“A fair contextual reading of the statute makes it

abundantly clear that its draftsmen were primarily

concerned 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

employee benefit plans. That landscape has changed.

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 “significant reversal of historic patterns under which

the traditional 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; 

—————— 

5See, e.g., D. Rajnes, An Evolving Pension System: Trends in Defined 

Benefit and Defined Contribution Plans, Employee Benefit Research 

Institute (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. 
Cite as: 552 U. S. ____ (2008) 7 

Opinion of the Court 

it paid a fixed benefit based on a percentage of the employee’s salary. See Russell 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 premium payments to the

Pension Benefit Guaranty Corporation for plan termination insurance. See Zelinsky, 114 Yale L. J., at 475–478. 

For defined contribution plans, however, fiduciary misconduct need not threaten the solvency of the entire plan 

to 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 creates 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 contribution 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 

provide a remedy for individual injuries distinct from 
8 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Opinion of the Court 

plan injuries, that provision does authorize recovery for 

fiduciary breaches that impair the value of plan assets

in a participant’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. 

—————— 

6After 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 colorable 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. ____ (2008) 1 

Opinion of ROBERTS, C. J. 

SUPREME COURT OF THE UNITED STATES 

No. 06–856 

JAMES LARUE, PETITIONER v. DEWOLFF, BOBERG 

& ASSOCIATES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[February 20, 2008] 

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

entirety,” 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 4, 7–8. I agree with the Court that the Fourth Circuit’s

analysis 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 7–8. 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 2. 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 provi-
2 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Opinion of ROBERTS, C. J. 

sion allows a plan participant or beneficiary “to recover

benefits 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 description 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 Machine Tool Corp., 423 F. 3d 653, 657 (CA7 

2005) (allegation made under §502(a)(1)(B) that a plan

administrator wrongfully denied instruction to move 

retirement funds from employer’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 provision, 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 construing the “same terms [to] have 

the same meaning in different 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 Guaranty Corporation, 446 

U. S. 359, 361 (1980)). In a variety of contexts, some 

Courts of Appeals have accordingly prevented 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., 
Cite as: 552 U. S. ____ (2008) 3 

Opinion of ROBERTS, C. J. 

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 picking 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 Mut. Ins. Co., 162 F. 3d 410, 

418, n. 4 (CA6 1998) (citing cases), that a participant 

exhaust the administrative remedies 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 

undertake the voluntary step of providing medical and 

retirement benefits to plan participants, see Aetna Health 

Inc. v. Davila, 542 U. S. 200, 215 (2004), and have no 

doubt engendered 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 

—————— 

*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 4, n. 3. 
4 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

Opinion of ROBERTS, C. J. 

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 Amicus 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. Mitchell, 451 U. S. 56, 60, n. 

2 (1981) (noting general reluctance to consider arguments 

raised only by an amicus and not considered by the courts 

below). In matters of statutory interpretation, 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). 
_________________ 

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Cite as: 552 U. S. ____ (2008) 1 

THOMAS, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 06–856 

JAMES LARUE, PETITIONER v. DEWOLFF, BOBERG 

& ASSOCIATES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[February 20, 2008] 

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring 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 7. 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 recovery 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 majority 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 4–8; 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 historical context of defined benefit plans, 

but that the subsequent proliferation of defined contribution plans has rendered Russell’s dictum inapplicable to 

most modern cases. Ante, at 6–7. In concluding that a 

loss suffered by a participant’s defined contribution plan 
2 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

THOMAS, J., concurring in judgment 

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 7–8. 

Although I agree with the majority’s holding, I write

separately because my reading of §§409 and 502(a)(2) is

not contingent 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 person 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 4 (noting that the natural reading of 

“any” is “one or some indiscriminately of whatever kind” 

(internal quotation marks omitted)). On their face, 

§§409(a) and 502(a)(2) permit recovery of all plan losses

caused by a fiduciary breach. 

The question presented here, then, is whether the losses 

to petitioner’s individual 401(k) account resulting from 
Cite as: 552 U. S. ____ (2008) 3 

THOMAS, J., concurring in judgment 

respondents’ 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 income, expenses, gains 

and losses, and any forfeitures of accounts 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 recovery of those losses would be allocated to one or more individual 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 contribution 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’ individual accounts. Because a defined 

contribution plan is essentially the sum of its parts, losses 

attributable to the account of an individual participant are 

necessarily “losses to the plan” for purposes of §409(a).

Accordingly, when a participant sustains losses to his 
4 LARUE v. DEWOLFF, BOBERG & ASSOCIATES, INC. 

THOMAS, J., concurring in judgment 

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 recovery must be paid to the plan.