This section contains the nature of the case and procedural background.

P filed this action in 2004 against D, and the ERISA-regulated 401(k) retirement savings plan administered by D. The Plan permits participants to direct the investment of their contributions in accordance with specified procedures and requirements. P alleged that in 2001 and 2002 he directed D to make certain changes to the investments in his individual account, but D never carried out these directions. P claimed that this omission 'depleted' his interest in the Plan by approximately $150,000, and amounted to a breach of fiduciary duty under ERISA. P 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.' D 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). P 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.' The District Court concluded that since D did not possess any disputed funds that rightly belonged to P, he was seeking damages rather than equitable relief available under § 502(a)(3). The District Court nonetheless granted D's motion. The Court of Appeals stated that P 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. The Court of Appeals cited Russell suggesting that these provisions 'protect the entire plan, rather than the rights of an individual beneficiary.' P appealed.

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