Mertens v. Hewitt Associates, 508 U.S. 248, 13 (1993)

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Opinion of the Court

The Secretary may waive or reduce this penalty if he believes that "the fiduciary or other person will [otherwise] not be able to restore all losses to the plan without severe financial hardship." 1132(l)(3)(B). "[A]pplicable recovery amount" is defined (in 502(l)(2)(B)) as "any amount . . . ordered by a court to be paid by such fiduciary or other person to a plan or its participants or beneficiaries in a judicial proceeding instituted by the Secretary under [ 502](a)(2) or (a)(5)." It will be recalled that the latter subsection, 502(a)(5), authorizes relief in actions by the Secretary on the same terms ("appropriate equitable relief") as in the private-party actions authorized by 502(a)(3). Petitioners argue that 502(l) confirms that 502(a)(5)—and hence, since it uses the same language, 502(a)(3)—allows actions for damages, since otherwise there could be no "applicable recovery amount" against some "other person" than the fiduciary, and the Secretary would have no occasion to worry about whether any such "other person" would be able to "restore all losses to the plan" without financial hardship.

We certainly agree with petitioners that language used in one portion of a statute ( 502(a)(3)) should be deemed to have the same meaning as the same language used elsewhere in the statute ( 502(a)(5)). Indeed, we are even more zealous advocates of that principle than petitioners, who stop short of applying it directly to the term "equitable relief." We cannot agree, however, that 502(l) establishes the existence of a damages remedy under 502(a)(5)—i. e., that it is otherwise so inexplicable that we must give the term "equitable relief" the expansive meaning "all relief available for breach of trust." For even in its more limited sense, the "equitable relief" awardable under 502(a)(5) includes restitution of ill-gotten plan assets or profits, providing an "applicable recovery amount" to use to calculate the penalty, which the Secretary may waive or reduce if paying it would prevent the restoration of those gains to the plan; and even assuming nonfiduciaries are not liable at all for knowing partic-

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