PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES LARUE, 

Plaintiff-Appellant,

v.

DEWOLFF, BOBERG & ASSOCIATES,  No. 05-1756

INCORPORATED; DEWOLFF, BOBERG &

ASSOCIATES, INCORPORATED,

Employees’ Savings Plan,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CA-04-1747-2)

Argued: May 22, 2006

Decided: June 19, 2006

Before WILKINSON and TRAXLER, Circuit Judges,

and Richard L. WILLIAMS, Senior United States District Judge for

the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Traxler and Senior Judge Williams joined. 

COUNSEL

ARGUED: Robert Edward Hoskins, FOSTER LAW FIRM, L.L.P.,

Greenville, South Carolina, for Appellant. Thomas Peter Gies, CROVacated by Supreme Court, February 20, 2008
WELL & MORING, L.L.P., Washington, D.C., for Appellees. ON

BRIEF: Rebecca Lee, CROWELL & MORING, L.L.P., Washington,

D.C., for Appellees. 

OPINION

WILKINSON, Circuit Judge: 

The plaintiff in this case alleges that defendant fiduciaries breached

their duty to him by failing to implement the investment strategy he

had selected for his employee retirement account. Relying on two

separate provisions of the Employee Retirement Income Security Act

of 1974 (ERISA), 29 U.S.C. §§ 1132(a)(2) and 1132(a)(3) (2000), he

seeks recovery of the amount by which his account would have appreciated had defendants followed his instructions. The district court

concluded that his complaint did not request a form of relief available

under ERISA, and it therefore granted defendants’ motion for judgment on the pleadings. 

We affirm. Section 1132(a)(2) provides remedies only for entire

plans, not for individuals. And while § 1132(a)(3) does in some cases

furnish individualized remedies, the Supreme Court’s decisions in

Mertens v. Hewitt Associates, 508 U.S. 248 (1993), and Great-West

Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002), compel the conclusion that it does not supply one here. Plaintiff has

alleged no unjust enrichment, unlawful possession, or self-dealing on

the part of defendants, and the remedy he seeks falls outside the scope

of the "equitable relief" that § 1132(a)(3) authorizes. 

I.

DeWolff, Boberg & Associates, Inc. is a nationwide management

consulting firm organized under the laws of South Carolina. It administers, and is thus a fiduciary of, an ERISA-regulated 401(k) retirement savings plan in which its current and former employees

participate. The plan permits participants who so desire to manage

their own accounts by selecting from a menu of various investment

options. 

2 LARUE v. DEWOLFF, BOBERG & ASSOC.
Plaintiff James LaRue has participated in this 401(k) plan since

1993. He alleges that in 2001 and 2002, he directed DeWolff to make

certain changes to the investments in his plan account, but that these

directions were never carried out. In 2004, he brought suit against

DeWolff and the plan, claiming that this omission amounted to a

breach of fiduciary duty.* According to the complaint, his "interest in

the plan ha[d] been depleted approximately $150,000.00" as a result

of defendants’ failure to follow his instructions. To recover for this

loss, the complaint sought "appropriate ‘make whole’ or other equitable relief pursuant to [29 U.S.C. § 1132(a)(3)]." 

Defendants subsequently filed a Rule 12(c) motion for judgment on

the pleadings, contending that plaintiff’s requested remedy was not

available under § 1132(a)(3). The district court agreed, and thereafter

dismissed the case with prejudice. 

Plaintiff appeals. We review de novo a district court’s decision to

grant judgment on the pleadings. See Burbach Broad. Co. of Del. v.

Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002).

II.

In enacting ERISA, Congress sought to uniformly regulate the

wide universe of employee benefit plans. See Aetna Health Inc. v.

Davila, 542 U.S. 200, 208 (2004). A salient feature of this effort was

the careful delineation of civil remedies available to litigants seeking

to enforce their rights under such plans. See id. at 208-09. Congress

broadly preempted previously available state-law causes of action, see

29 U.S.C. § 1144(a), and set forth in a single section of ERISA the

exclusive list of civil actions available to parties aggrieved by a statutory violation, see id. § 1132(a); see also Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 144 (1990). 

Section 1132(a) stops short of providing ERISA complainants with

a full arsenal of relief. ERISA is "an enormously complex and

detailed statute that resolve[s] innumerable disputes between power-

*Accepting the allegations as pled, as we must, we shall assume without deciding that defendants’ alleged conduct amounted to a breach of

their fiduciary duties. 

LARUE v. DEWOLFF, BOBERG & ASSOC. 3
ful competing interests — not all in favor of potential plaintiffs."

Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993). Its civil enforcement provision in particular attempts to settle "a tension between the

primary ERISA goal of benefiting employees and the subsidiary goal

of containing pension costs." Id. at 262-63 (internal quotation marks

and alterations omitted). Congress has consequently made various

"policy choices" resulting in "the inclusion of certain remedies and

the exclusion of others." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

54 (1987). 

Interpretation of § 1132(a) is therefore no easy task. As the

Supreme Court’s ERISA decisions have repeatedly cautioned, "vague

notions of a statute’s ‘basic purpose’ are . . . inadequate to overcome

the words of its text regarding the specific issue under consideration."

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 220

(2002) (internal quotation marks omitted); Mertens, 508 U.S. at 261

(same). Section 1132(a) represents an "interlocking, interrelated, and

interdependent remedial scheme" that "provide[s] strong evidence that

Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." Mass. Mut. Life Ins. Co. v. Russell, 473

U.S. 134, 146 (1985). 

With these constraints in mind, we consider whether the statute’s

text provides the particular relief at issue here.

III.

Plaintiff first suggests that remuneration of his plan account finds

express authorization in the text of 29 U.S.C. § 1132(a)(2). That subsection allows for a civil action "by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title." Section

1109, in turn, provides that 

[a]ny person who is a fiduciary with respect to a plan who

breaches any of the responsibilities, obligations, or duties

imposed upon fiduciaries by this subchapter 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 sub4 LARUE v. DEWOLFF, BOBERG & ASSOC.
ject to such other equitable or remedial relief as the court

may deem appropriate . . . .

29 U.S.C. § 1109(a). 

Plaintiff’s argument regarding the applicability of § 1132(a)(2) is

made for the first time on appeal. Even if the argument were not

therefore waived, see, e.g., Jones v. Liberty Mut. Ins. Co. (In re Wallace & Gale Co.), 385 F.3d 820, 835 (4th Cir. 2004), he could not

succeed on the merits. Recovery under this subsection must "inure[]

to the benefit of the plan as a whole," not to particular persons with

rights under the plan. Russell, 473 U.S. at 140 (emphasis added); see

also Coyne & Delany Co. v. Blue Cross & Blue Shield of Va., Inc.,

102 F.3d 712, 714 (4th Cir. 1996). "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." Russell, 473 U.S. at 142 (footnote omitted).

It is difficult to characterize the remedy plaintiff seeks as anything

other than personal. He desires recovery to be paid into his plan

account, an instrument that exists specifically for his benefit. The

measure of that recovery is a loss suffered by him alone. And that loss

itself allegedly arose as the result of defendants’ failure to follow

plaintiff’s own particular instructions, thereby breaching a duty owed

solely to him. 

We are therefore skeptical that plaintiff’s individual remedial interest can serve as a legitimate proxy for the plan in its entirety, as

§ 1132(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. 

This case is much different from a § 1132(a)(2) action in which an

individual plaintiff sues on behalf of the plan itself or on behalf of a

class of similarly situated participants. See Smith v. Sydnor, 184 F.3d

356, 363 (4th Cir. 1999); see also In re Schering-Plough Corp. ERISA

LARUE v. DEWOLFF, BOBERG & ASSOC. 5
Litig., 420 F.3d 231, 233, 235 (3d Cir. 2005); Kuper v. Iovenko, 66

F.3d 1447, 1452-53 (6th Cir. 1995). In such a case, the "remedy will

undoubtedly benefit [the plaintiff] and other participants in the

[p]lan," but "it does not solely benefit the individual participants."

Smith, 184 F.3d at 363 (emphasis added); see also Roth v. SawyerCleator Lumber Co., 61 F.3d 599, 605 (8th Cir. 1995) (permitting

recovery for losses to the plan but not losses to the individual plaintiff

beneficiaries for defendants’ alleged breach of fiduciary duty). Here,

by contrast, plaintiff seeks to particularize the recovery to himself.

Section 1132(a)(2) is not a proper avenue for him to obtain such

relief.

IV.

We thus turn to plaintiff’s second theory of relief, which relies on

a different ERISA remedial provision, 29 U.S.C. § 1132(a)(3). That

section authorizes a civil action 

by a participant, beneficiary, or fiduciary (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 redress such violations or (ii) to

enforce any provisions of this subchapter or the terms of the

plan.

Plaintiff contends that the "make whole" relief he seeks constitutes

one of the forms of "other appropriate equitable relief" that the provision authorizes.

A.

In construing the scope of § 1132(a)(3), the Supreme Court has

stressed that the term "equitable" is one of limitation. In Mertens v.

Hewitt Associates, the Court held that the phrase "equitable relief"

refers only to "those categories of relief that were typically available

in equity" in the days of the divided bench. 508 U.S. at 256; see also

Sereboff v. Mid Atl. Med. Servs., Inc., 126 S. Ct. 1869, 1873 (2006).

The Court reasoned that other sections of ERISA expressly refer to

"equitable or remedial relief," 29 U.S.C. § 1109(a), and "legal or equi6 LARUE v. DEWOLFF, BOBERG & ASSOC.
table relief," e.g., id. § 1132(g)(2)(E), thereby demonstrating that "equitable relief" connotes only a subset of the full palliative spectrum.

See Mertens, 508 U.S. at 258. The Court refused to "read the statute

to render the modifier superfluous," id., a construction that would

undermine Congress’s exclusive remedial scheme by opening a back

door through which uninvited remedies might enter, id. at 257. 

The particular definition of "equitable" that the Court has adopted

finds support in a well-known principle of statutory construction.

"The maxim noscitur a sociis, that a word is known by the company

it keeps, while not an inescapable rule, is often wisely applied where

a word is capable of many meanings in order to avoid the giving of

unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle

& Co., 367 U.S. 303, 307 (1961). Section 1132(a)(3) expressly mentions the right to "enjoin" certain acts or practices "or . . . to obtain

other appropriate equitable relief" (emphasis added). The understanding of what "equitable" means in this context is necessarily informed

by its association with injunctive relief, the quintessential exemplar of

a remedy that equity alone would typically provide. 

Determining the applicability of § 1132(a)(3) therefore requires a

court to examine whether the form of relief a plaintiff seeks is, like

an injunction, historically one that a court of equity rather than a court

of law would have granted. See Sereboff, 126 S. Ct. at 1874. The

Supreme Court has, in addition to injunctions, listed mandamus and

restitution as examples of traditional equitable remedies. See Mertens,

508 U.S. at 256. Subsequent decisions of both the Supreme Court and

this court have been wary of expanding the list beyond these archetypes and their closely related kin. See, e.g. Varity Corp. v. Howe, 516

U.S. 489, 495, 515 (1996) (reinstatement to a plan); Griggs v. E.I.

Dupont de Nemours & Co., 385 F.3d 440, 449 (4th Cir. 2004) (rescission); Denny’s, Inc. v. Cake, 364 F.3d 521, 526 n.6 (4th Cir. 2004)

(declaratory relief incident to an injunction). 

B.

Mertens and its progeny compel the conclusion that the remedy

plaintiff desires falls outside the scope of § 1132(a)(3). As in Mertens,

although he "often dance[s] around the word," what plaintiff "in fact

seek[s] is nothing other than compensatory damages — monetary

LARUE v. DEWOLFF, BOBERG & ASSOC. 7
relief for all losses . . . sustained as a result of the alleged breach of

fiduciary duties." 508 U.S. at 255. "Money damages are, of course,

the classic form of legal relief," id., and have therefore remained conspicuously absent from the list of traditional equitable remedies available under § 1132(a)(3), id. at 256.

While that list does include "restitution," id., this form of recovery

is not so broad as to include the compensatory relief that plaintiff

seeks. As the Supreme Court explained in Great-West Life & Annuity

Insurance Co. v. Knudson, "not all relief falling under the rubric of

restitution is available in equity." 534 U.S. at 212. In particular, "for

restitution to lie in equity," as opposed to at law, "the action generally

must seek not to impose personal liability on the defendant, but to

restore to the plaintiff particular funds or property in the defendant’s

possession." Id. at 214; see also id. at 214 n.2 (noting a single "limited

exception" applicable to "an accounting of profits"). 

The Supreme Court’s most recent § 1132(a)(3) decisions demonstrate how the absence of unjust possession is fatal to an equitable restitution claim. In Knudson, the Court denied a restitutionary remedy

under § 1132(a)(3) where "‘the funds to which petitioners claimed an

entitlement’ were not in Knudson’s possession, but had instead been

placed in a ‘Special Needs Trust’ under California law." Sereboff, 126

S. Ct. at 1874 (quoting Knudson, 534 U.S. at 207, 214) (internal alterations omitted). More recently in Sereboff v. Mid Atlantic Medical

Services, Inc., the Court allowed a claim for equitable restitution to

proceed where "Mid Atlantic sought specifically identifiable funds

that were within the possession and control of the Sereboffs." Id.

(internal quotation marks omitted). The Court in Sereboff reaffirmed

the possession requirement it had announced in Knudson, but found

that the "impediment to characterizing the relief in Knudson as equitable [was] not present" in the Sereboffs’ case. Id.

The impediment is, however, present in this case, and it precludes

plaintiff from recovering under an equitable restitution theory. Plaintiff does not allege that funds owed to him are in defendants’ possession, but instead that these funds never materialized at all. He

therefore gauges his recovery not by the value of defendants’ nonexistent gain, but by the value of his own loss — a measure that is traditionally legal, not equitable. See, e.g., Kerr v. Charles F. Vatterott &

8 LARUE v. DEWOLFF, BOBERG & ASSOC.
Co., 184 F.3d 938, 944 (8th Cir. 1999); see also Sereboff, 126 S. Ct.

at 1874 (claim may be characterized as legal if plaintiff does not

"seek to recover a particular fund from the defendant"). Thus, at core,

he seeks "to obtain a judgment imposing a merely personal liability

upon the defendant[s] to pay a sum of money." Knudson, 534 U.S. at

213 (internal quotation marks omitted). As Knudson explained, historically "[s]uch claims were viewed essentially as actions at law," and

they are therefore unavailable under § 1132(a)(3). Id.

C.

Plaintiff attempts to avoid this conclusion by arguing that his

requested "make whole" relief represents something entirely different

from the types of remedies that we or the Supreme Court have heretofore considered in the context of § 1132(a)(3). In particular, he

emphasizes that this case involves a situation where a participant or

beneficiary is suing a fiduciary for a breach of fiduciary duty. In his

view, the scope of "equitable" remedies available in such a case is

broader than when a fiduciary sues a beneficiary (as was the case in

Knudson and Sereboff) or when a beneficiary sues a non-fiduciary (as

was the case in Mertens). Unlike either of those scenarios, the argument goes, this case can be analogized to a common law breach-oftrust action by a beneficiary seeking to recover lost trust profits, a

remedy that trust treatises have labeled "equitable." See Restatement

(Second) of Trusts §§ 197, 205(c) (1959); see also George Gleason

Bogert & George Taylor Bogert, The Law of Trusts & Trustees § 861

(rev. 2d ed. 1995). 

The governing precedent, however, does not point as plaintiff suggests. In fact, Mertens squarely "rejected the claim that the special

equity-court powers applicable to trusts define the reach of

[§ 1132(a)(3)]." Knudson, 534 U.S. at 219; see Mertens, 508 U.S. at

256-57. While the generally exclusive jurisdiction of equity courts

over breach-of-trust suits renders all remedies in such cases "equitable" in the sense that a court of equity has power to grant them, "equitable" in the context of § 1132(a)(3) has a narrower meaning.

Mertens, 508 U.S. at 256. Under Mertens, "the relevant question is

. . . whether a given type of relief was available in equity courts as

a general rule," Rego v. Westvaco Corp., 319 F.3d 140, 145 (4th Cir.

2003) (emphasis added), rather than merely in the context of "the parLARUE v. DEWOLFF, BOBERG & ASSOC. 9
ticular case at issue," Mertens, 508 U.S. at 256. "Equitable relief"

therefore does not encompass the "many situations — not limited to

those involving enforcement of a trust — in which an equity court

could," by virtue of its jurisdiction over the claim at issue, "grant legal

remedies which would otherwise be beyond the scope of its authority." Id. (internal quotation marks omitted). 

That plaintiff can analogize this suit to a common law breach of

trust action therefore proves of no avail in characterizing the relief he

seeks as equitable. Plaintiff admits that he lacks support for the notion

that "make whole" relief was available in equity outside the context

of trusts. It is therefore impossible for us to conclude that such relief

"was available in equity courts as a general rule," Rego, 319 F.3d at

145.

The Sixth Circuit has reached a similar conclusion in a case presenting facts nearly identical to those before us here. In Helfrich v.

PNC Bank, Kentucky, Inc., 267 F.3d 477 (6th Cir. 2001), a beneficiary of an employee 401(k) plan sued a plan fiduciary for failing to

comply with written directions to roll over his assets into a specific

set of mutual funds. Id. at 479-80. The plaintiff asserted an entitlement to the difference between the "amount he would have earned"

had the fiduciary followed his instructions and "the amount he in fact

earned" as a result of the fiduciary’s alleged breach of duty. Id. at

480. The court concluded that his requested remedy was unavailable

under § 1132(a)(3). Id. at 481-83. It found that the plaintiff could not

style his relief as "restitution" when he was measuring recovery by his

own losses rather than the defendant’s gains, id. at 482-83, and it

rejected a strict congruence between § 1132(a)(3) and the common

law of trusts, id. at 482 (citing Mertens, 508 U.S. at 256). It therefore

dismissed the suit because "ERISA does not permit plan beneficiaries

to claim money damages from plan fiduciaries." Id. at 482. 

As Helfrich shows, the fact that a plaintiff happens to be a participant or beneficiary suing a fiduciary is entirely beside the point in the

§ 1132(a)(3) inquiry; the status of the parties does not determine the

nature of the relief. Many other circuits, both before and after Knudson, have likewise rejected the notion that whether a particular form

of relief is "equitable" depends on the identity of the parties. See Pereira v. Farace, 413 F.3d 330, 340 (2d Cir. 2005); Calhoon v. Trans

10 LARUE v. DEWOLFF, BOBERG & ASSOC.
World Airlines, Inc., 400 F.3d 593, 598 (8th Cir. 2005); Callery v.

U.S. Life Ins. Co. in the City of N.Y., 392 F.3d 401, 409 (10th Cir.

2004); McLeod v. Oregon Lithoprint Inc., 102 F.3d 376, 378 (9th Cir.

1996); Armstrong v. Jefferson Smurfit Corp., 30 F.3d 11, 13 (1st Cir.

1994); see also Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459,

466 (7th Cir. 2005) (noting that compensatory damages are unavailable under § 1132(a)(3) in suit for breach of fiduciary duty); D’Amico

v. CBS Corp., 297 F.3d 287, 289, 292 n.5 (3d Cir. 2002) (same). The

teachings of Mertens and Knudson obligate us to agree, and plaintiff’s

contrary argument therefore fails to cast doubt upon our conclusion

that the compensatory relief he seeks is legal, not equitable. 

V.

Though Congress may one day take the remedial step plaintiff

desires, it has not yet done so. It is not difficult to imagine why. In

crafting ERISA, Congress sought a careful balance between the goals

of "ensuring fair and prompt enforcement of rights under a plan" on

the one hand and "encourag[ing] . . . the creation of such plans" on

the other. Aetna Health, 542 U.S. at 215 (internal quotation marks

omitted). It would certainly be reasonable for Congress to have concluded that imposing personal financial liability on fiduciaries under

circumstances such as this — where there was no unjust enrichment,

unlawful possession, or self-dealing — would seriously deter plan

formation and the service of qualified individuals and institutions as

fiduciaries. Compare, e.g., Mertens, 508 U.S. 262-63 (discussing negative effects of expansive ERISA liability). 

Congress’s decision to omit such liability hardly leaves a plan participant or beneficiary in plaintiff’s position without recourse. He

could, for example, seek an injunction compelling compliance with

his investment instructions, see 29 U.S.C. § 1132(a)(3), or, under

appropriate circumstances, bring suit on the plan’s behalf to remove

the fiduciary, see 29 U.S.C. § 1109(a). In Congress’s view, such alternative remedies are sufficient to keep fiduciaries from breaches of

fiduciary duty that result in no benefit whatsoever to themselves. We

possess no authority "to adjust the balance . . . that the text adopted

by Congress has struck." Mertens, 508 U.S. at 263. Accordingly, we

affirm the judgment.

AFFIRMED

LARUE v. DEWOLFF, BOBERG & ASSOC. 11