author: Justice Thomas Justice Kennedy, Justice Breyer,

text:
    ALI v. FEDERAL BUREAU OF PRISONS et al.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
    No. 06-9130.
    Argued October 29, 2007
    Decided January 22, 2008

      Jean-Claude André, by appointment of the Court, 551 U. S. 1186, argued the cause for petitioner. With him on the briefs were Michael G. Smith, Peter K. Stris, Shaun P. Martin, and Brendan Maher.

      Kannon K. Shanmugam argued the cause for respondents. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, and Mark B. Stern.

   Justice Thomas

delivered the opinion of the Court.

This ease concerns the scope of 28 U. S. C. § 2680, which carves out certain exceptions to the United States’ waiver of sovereign immunity for torts committed by federal employees. Section 2680(c) provides that the waiver of sovereign immunity does not apply to claims arising from the detention of property by “any officer of customs or excise or any other law enforcement officer.” Petitioner contends that this clause applies only to law enforcement officers enforcing customs or excise laws, and thus does not affect the waiver of sovereign immunity for his property claim against officers of the Federal Bureau of Prisons (BOP). We conclude that the broad phrase “any other law enforcement officer” covers all law enforcement officers. Accordingly, we affirm the judgment of the Court of Appeals upholding the dismissal of petitioner’s claim.

I

Petitioner Abdus-Shahid M. S. Ali was a federal prisoner at the United States Penitentiary in Atlanta, Georgia, from 2001 to 2003. In December 2003, petitioner was scheduled to be transferred to the United States Penitentiary Big Sandy (USP Big Sandy) in Inez, Kentucky. Before being transferred, he left two duffle bags containing his personal property in the Atlanta prison’s Receiving and Discharge Unit to be inventoried, packaged, and shipped to USP Big Sandy. Petitioner was transferred, and his bags arrived some days later. Upon inspecting his property, he noticed that several items were missing. The staff at USP Big Sandy’s Receiving and Discharge Unit told him that he had been given everything that was sent, and that if things were missing he could file a claim. Many of the purportedly missing items were of religious and nostalgic significance, including two copies of the Qur’an, a prayer rug, and religious magazines. Petitioner estimated that the items were worth $177.

Petitioner filed an administrative tort claim. In denying relief, the agency noted that, by his signature on the receipt form, petitioner had certified the accuracy of the inventory listed thereon and had thereby relinquished any future claims relating to missing or damaged property. Petitioner then filed a complaint alleging, inter alia, violations of the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346, 2671 et seq. The BOP maintained that petitioner’s claim was barred by the exception in § 2680(c) for property claims against law enforcement officers. The District Court agreed and dismissed petitioner’s FTCA claim for lack of subject-matter jurisdiction. Petitioner appealed.

The Eleventh Circuit affirmed, agreeing with the District Court’s interpretation of § 2680(c). 204 Fed. Appx. 778, 779-780 (2006) (per curiam). In rejecting petitioner’s arguments, the Court of Appeals relied on this Court’s broad interpretation of §2680(c)’s “detention” clause in Kosak v. United States, 465 U. S. 848, 854-859 (1984), on decisions by other Courts of Appeals, and on its own decision in Schlaebitz v. United States Dept. of Justice, 924 F. 2d 193, 195 (1991) (per curiam) (holding that United States Marshals, who were allegedly negligent in releasing a parolee’s luggage to a third party, were “law enforcement officers” under § 2680(c)). See 204 Fed. Appx., at 779-780.

We granted certiorari, 550 U. S. 968 (2007), to resolve the disagreement among the Courts of Appeals as to the scope of § 2680(c).

II

In the FTCA, Congress waived the United States’ sovereign immunity for claims arising out of torts committed by federal employees. See 28 U. S. C. § 1346(b)(1). As relevant here, the FTCA authorizes “claims against the United States, for money damages ... for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” Ibid. The FTCA exempts from this waiver certain categories of claims. See §§ 2680(a)-(n). Relevant here is the exception in subsection (c), which provides that § 1346(b) shall not apply to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” § 2680(c).

This case turns on whether the BOP officers who allegedly lost petitioner’s property qualify as “other law enforcement officer[s]” within the meaning of § 2680(c). Petitioner argues that they do not because “any other law enforcement officer” includes only law enforcement officers acting in a customs or excise capacity. Noting that Congress referenced customs and excise activities in both the language at issue and the preceding clause in § 2680(c), petitioner argues that the entire subsection is focused on preserving the United States’ sovereign immunity only as to officers enforcing those laws.

Petitioner's argument is inconsistent with the statute’s language. The phrase “any other law enforcement officer” suggests a broad meaning. Ibid, (emphasis added). We have previously noted that “[r]ead naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520 U. S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). In Gonzales, we considered a provision that imposed an additional sentence for firearms used in federal drug trafficking crimes and provided that such additional sentence shall not be concurrent with “ ‘any other term of imprisonment.’” 520 U. S., at 4 (quoting 18 U. S. C. § 924(c)(1) (1994 ed.); emphasis deleted). Notwithstanding the subsection’s initial reference to federal drug trafficking crimes, we held that the expansive word “any” and the absence of restrictive language left “no basis in the text for limiting” the phrase “any other term of imprisonment” to federal sentences. 520 U. S., at 5. Similarly, in Harrison v. PPG Industries, Inc., 446 U. S. 578 (1980), the Court considered the phrase “any other final action” in amendments to the Clean Air Act. The Court explained that the amendments expanded a list of Environmental Protection Agency Administrator actions by adding two categories of actions: actions under a specifically enumerated statutory provision, and “any other final action” under the Clean Air Act. Id., at 584 (emphasis deleted). Focusing on Congress’ choice of the word “any,” the Court “discern[ed] no uncertainty in the meaning of the phrase, ‘any other final action,’ ” and emphasized that the statute’s “expansive language offer[ed] no indication whatever that Congress intended” to limit the phrase to final actions similar to those in the specifically enumerated sections. Id., at 588-589.

We think the reasoning of Gonzales and Harrison applies equally to the expansive language Congress employed in 28 U. S. C. § 2680(c). Congress’ use of “any” to modify “other law enforcement officer” is most naturally read to mean law enforcement officers of whatever kind. The word “any” is repeated four times in the relevant portion of § 2680(c), and two of those instances appear in the particular phrase at issue: “any officer of customs or excise or any other law enforcement officer.” (Emphasis added.) Congress inserted the word “any” immediately before “other law enforcement officer,” leaving no doubt that it modifies that phrase. To be sure, the text’s references to “tax or customs duty” and “officer[s] of customs or excise” indicate that Congress intended to preserve immunity for claims arising from an officer’s enforcement of tax and customs laws. The text also indicates, however, that Congress intended to preserve immunity for claims arising from the detention of property, and there is no indication that Congress intended immunity for those claims to turn on the type of law being enforced.

Petitioner would require Congress to clarify its intent to cover all law enforcement officers by. adding phrases such as “performing any official law enforcement function,” or “without limitation.” But Congress could not have chosen a more all-encompassing phrase than “any other law enforcement officer” to express that intent. We have no reason to demand that Congress write less economically and more repetitiously.

Recent amendments to § 2680(c) support the conclusion that “any other law enforcement officer” is not limited to officers acting in a customs or excise capacity. In the Civil Asset Forfeiture Reform Act of 2000, Congress added subsections (c)(l)-(c)(4) to 28 U.S.C. § 2680. §3(a), 114 Stat. 211. As amended, § 2680(c) provides that the § 1346(b) waiver of sovereign immunity, notwithstanding the exception at issue in this case, applies to:

“[A]ny claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if—
“(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
“(2) the interest of the claimant was not forfeited;
“(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
“(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.”

The amendment does not govern petitioner’s claim because his property was not “seized for the purpose of forfeiture,” as required by paragraph (1). Nonetheless, the amendment is relevant because our construction of “any other law enforcement officer” must, to the extent possible, ensure that the statutory scheme is coherent and consistent. See Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). The amendment canceled the exception - and thus restored the waiver of sovereign immunity - for certain seizures of property based on any federal forfeiture law. See 28 U. S. C. § 2680(c)(1) (excepting property claims if “the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property” (emphasis added)).

Under petitioner’s interpretation, only law enforcement officers enforcing customs or excise laws were immune under the prior version of § 2680(c). Thus, on petitioner’s reading, the amendment’s only effect was to restore the waiver for cases in which customs or excise officers, or officers acting in such a capacity, enforce forfeiture laws. This strikes us as an implausible interpretation of the statute. If that were Congress’ intent, it is not apparent why Congress would have restored the waiver with respect to the enforcement of all civil forfeiture laws instead of simply those related to customs or excise. Petitioner’s interpretation makes sense only if we assume that Congress went out of its way to restore the waiver for cases in which customs or excise officers, or officers acting in such a capacity, enforce forfeiture laws unrelated to customs or excise. But petitioner fails to demonstrate that customs or excise officers, or officers acting in such a capacity, ever enforce civil forfeiture laws unrelated to customs or excise, much less that they do so with such frequency that Congress is likely to have singled them out in the amendment. It seems far more likely that Congress restored the waiver for officers enforcing any civil forfeiture law because, in its view, all such officers were covered by the exception to the waiver prior to the amendment.

Against this textual and structural evidence that “any other law enforcement officer” does in fact mean any other law enforcement officer, petitioner invokes numerous canons of statutory construction. He relies primarily on ejusdem generis, or the principle that “when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.” Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117, 129 (1991). In petitioner’s view, “any officer of customs or excise or any other law enforcement officer” should be read as a three-item list, and the final, catchall phrase “any other law enforcement officer” should be limited to officers of the same nature as the preceding specific phrases.

Petitioner likens his case to two recent cases in which we found the canon useful. In Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 375 (2003), we considered the clause “execution, levy, attachment, garnishment, or other legal process” in 42 U. S. C. § 407(a). Applying ejusdem generis, we concluded that “other legal process” was limited to legal processes of the same nature as the specific items listed. 537 U. S., at 384-385. The department’s scheme for serving as a representative payee of the benefits due to children under its care, while a “legal process,” did not share the common attribute of the listed items, viz., “utilization of some judicial or quasi-judicial mechanism ... by which control over property passes from one person to another in order to discharge” a debt.. Id., at 385. Similarly, in Dolan v. Postal Service, 546 U. S. 481 (2006), the Court considered whether an exception to the FTCA’s waiver of sovereign immunity for claims arising out of the “ ‘loss, miscarriage, or negligent transmission of letters or postal matter’ ” barred a claim that mail negligently left on the petitioner’s porch caused her to slip and fall. Id., at 485 (quoting 28 U. S. C. § 2680(b)). Noting that “loss” and “miscarriage” both addressed “failings in the postal obligation to deliver mail in a timely manner to the right address,” 546 U. S., at 487, the Court concluded that “negligent transmission” must be similarly limited, id., at 486-489, and rejected the Government’s argument that the exception applied to “all torts committed in the course of mail delivery,” id., at 490.

Petitioner asserts that § 2680(c), like the clauses at issue in Keffeler and Dolan, “‘presents a textbook ejusdem generis scenario.’” Brief for Petitioner 15 (quoting Andrews v. United States, 441 F. 3d 220, 224 (CA4 2006)). We disagree.

The structure of the phrase “any officer of customs or excise or any other law enforcement officer” does not lend itself to application of the canon. The phrase is disjunctive, with one specific and one general category, not — like the clauses at issue in Keffeler and Dolan — a list of specific items separated by commas and followed by a general or collective term. The absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase. Cf. United States v. Aguilar, 515 U. S. 593, 615 (1995) (Scalia, J., concurring in part and dissenting in part) (rejecting the canon’s applicability to an omnibus clause that was “one of... several distinct and independent prohibitions” rather than “a general or collective term following a list of specific items to which a particular statutory command is applicable”).

Moreover, it is not apparent what common attribute connects the specific items in § 2680(c). Were we to use the canon to limit the meaning of “any other law enforcement officer,” we would be required to determine the relevant limiting characteristic of “officer of customs or excise.” In Jarecki v. G. D. Searle & Co., 367 U. S. 303 (1961), for example, the Court invoked noscitur a sociis in limiting the scope of the term “'discovery’” to the common characteristic it shared with '"exploration”’ and '"prospecting.”’ Id., at 307. The Court noted that all three words in conjunction “describe[d] income-producing activity in the oil and gas and mining industries.” Ibid. Here, by contrast, no relevant common attribute immediately appears from the phrase “officer of customs or excise.” Petitioner suggests that the common attribute is that both types of officers are charged with enforcing the customs and excise laws. But we see no reason why that should be the relevant characteristic as opposed to, for example, that officers of that type are commonly involved in the activities enumerated in the statute: the assessment and collection of taxes and customs duties and the detention of property.

Petitioner’s appeals to other interpretive principles are also unconvincing. Petitioner contends that his reading is supported by the canon noscitur a sociis, according to which “ ‘a word is known by the company it keeps.’ ” S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U. S. 370, 378 (2006). But the cases petitioner cites in support of applying noscitur a sociis involved statutes with stronger contextual cues. See Gutierrez v. Ada, 528 U. S. 250, 254-258 (2000) (applying the canon to narrow the relevant phrase, “any election,” where it was closely surrounded by six specific references to gubernatorial elections); Jarecki, supra, at 306-309 (applying the canon to narrow the term “discoveries” to discoveries of mineral resources where it was contained in a list of three words, all of which applied to the oil, gas, and mining industries and could not conceivably all apply to any other industry). Here, although customs and excise áre mentioned twice in § 2680(c), nothing in the overall statutory context suggests that customs and excise officers were the exclusive focus of the provision. The emphasis in subsection (c) on customs and excise is not inconsistent with the conclusion that “any other law enforcement officer” sweeps as broadly as its language suggests.

Similarly, the rule against superfluities lends petitioner sparse support. The construction we adopt today does not necessarily render “any officer of customs or excise” superfluous; Congress may have simply intended to remove any doubt that officers of customs or excise were included in “law enforcement officer[s].” See Fort Stewart Schools v. FLRA, 495 U. S. 641, 646 (1990) (noting that “technically unnecessary” examples may have been “inserted out of an abundance of caution”). Moreover, petitioner’s construction threatens to render “any other law enforcement officer” superfluous because it is not clear when, if ever, “other law enforcement officer[s]” act in a customs or excise capacity. In any event, we do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase. See Harrison, 446 U. S., at 589, n. 6 (rejecting an argument that ejusdem generis must apply when a broad interpretation of the clause could render the specific enumerations unnecessary).

In the end, we are unpersuaded by petitioner’s attempt to create ambiguity where the statute’s text and structure suggest none. Had Congress intended to limit §2680(c)’s reach as petitioner contends, it easily could have written “any other law enforcement officer acting in a customs or excise capacity.” Instead, it used the unmodified, all-encompassing phrase “any other law enforcement officer.” Nothing in the statutory context requires a narrowing construction — indeed, as we have explained, the statute is most consistent and coherent when “any other law enforcement officer” is read to mean what it literally says. See Norfolk & Western R. Co., 499 U. S., at 129 (noting that interpretive canons must yield “when the whole context dictates a different conclusion”). It bears emphasis, moreover, that § 2680(c), far from maintaining sovereign immunity for the entire universe of claims against law enforcement officers, does so only for claims “arising in respect of” the “detention” of property. We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable. Instead, we must give effect to the text Congress enacted: Section 2680(c) forecloses lawsuits against the United States for the unlawful detention of property by “any,” not just “some,” law enforcement officers.

III

For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is

Affirmed.

Justice Kennedy,

with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

Statutory interpretation, from beginning to end, requires respect for the text. The respect is not enhanced, however, by decisions that foreclose consideration of the text within the whole context of the statute as a guide to determining a legislature’s intent. To prevent textual analysis from becoming so rarefied that it departs from how a legislator most likely understood the words when he or she voted for the law, courts use certain interpretative rules to consider text within the statutory design. These canons do not demand wooden reliance and are not by themselves dispositive, but they do function as helpful guides in construing ambiguous statutory provisions. Two of these accepted rules are ejusdem generis and noscitur a sociis, which together instruct that words in a series should be interpreted in relation to one another.

Today the Court holds, if my understanding of its opinion is correct, that there is only one possible way to read the statute. Placing implicit reliance upon a comma at the beginning of a clause, the Court says that the two maxims noted, and indeed other helpful and recognized principles of statutory analysis, are not useful as interpretative aids in this case because the clause cannot be understood by what went before. In my respectful submission the Court’s approach is incorrect as a general rule and as applied to the statute now before us. Both the analytic framework and the specific interpretation the Court now employs become binding on the federal courts, which will confront other cases in which a series of words operate in a clause similar to the one we consider today. So this case is troubling not only for the result the Court reaches but also for the analysis it employs. My disagreements with the Court lead to this dissent.

I

A

The Federal Tort Claims Act (FTCA or Act) allows those who allege injury from governmental actions over a vast sphere to seek damages for tortious conduct. The enacting Congress enumerated 13 exceptions to the Act’s broad waiver of sovereign immunity, all of which shield the Government from suit in specific instances. These exceptions must be given careful consideration in order to prevent interference with the governmental operations described. As noted in Kosak v. United States, 465 U. S. 848, 853, n. 9 (1984), however, “unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute.”

As the Court states, at issue here is the extent of the exception for suits arising from the detention of goods in defined circumstances. The relevant provision excepts from the general waiver

“claim[s] arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U. S. C. § 2680(c).

Both on first reading and upon further, close consideration, the plain words of the statute indicate that the exception is concerned only with customs and taxes. The provision begins with a clause dealing exclusively with customs and tax duties. And the provision as a whole contains four express references to customs and tax, making revenue duties and customs and excise officers its most salient features. Cf. Gutierrez v. Ada, 528 U. S. 250, 254-255 (2000).

This is not to suggest that the Court’s reading is wholly impermissible or without some grammatical support. After all, detention of goods is not stated until the outset of the second clause and at the end of the same clause the words “any other law enforcement officer” appear; so it can be argued that the first and second clauses of the provision are so separate that all detentions by all law enforcement officers in whatever capacity they might act are covered. Still, this ought not be the preferred reading; for between the beginning of the second clause and its closing reference to “any other law enforcement officer” appears another reference to “officer[s] of customs or excise,” this time in the context of property detention. This is quite sufficient, in my view, to continue the limited scope of the exception. At the very least, the Court errs by adopting a rule which simply bars all consideration of the canons of ejusdem generis and nosci tur a sociis. And when those canons are consulted, together with other common principles of interpretation, the case for limiting the exception to customs and tax more than overcomes the position maintained by the Government and adopted by the Court.

The ejusdem generis canon provides that, where a seemingly broad clause constitutes a residual phrase, it must be controlled by, and defined with reference to, the “enumerated categories . . . which are recited just before it,” so that the clause encompasses only objects similar in nature. Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001). The words “any other law enforcement officer” immediately follow the statute’s reference to “officer[s] of customs or excise,” as well as the first clause’s reference to the assessment of tax and customs duties. 28 U. S. C. § 2680(c).

The Court counters that § 2680(c) “is disjunctive, with one specific and one general category,” rendering ejusdem generis inapplicable. Ante, at 225. The canon’s applicability, however, is not limited to those statutes that include a laundry list of items. See, e. g., Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117, 129 (1991) (“[WJhen a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration”). In addition, ejusdem generis is often invoked in conjunction with the interpretative canon noscitur a sociis, which provides that words are to be “ ‘known by their companions.’ ” Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 384 (2003) (quoting Gutierrez, supra, at 255). The general rule is that the “meaning of a word, and, consequently, the intention of the legislature,” should be “ascertained by reference to the context, and by considering whether the word in question and the surrounding words are, in fact, ejusdem generis, and referable to the same subject-matter.” Neal v. Clark, 95 U. S. 704, 709 (1878) (internal quotation marks omitted).

A proper reading of § 2680(c) thus attributes to the last phrase (“any other law enforcement officer”) the discrete characteristic shared by the preceding phrases (“officer[s] of customs or excise” and “assessment or collection of any tax or customs duty”). See also Norton v. Southern Utah Wilderness Alliance, 542 U. S. 55, 62-63 (2004) (applying ejusdem generis to conclude that “‘failure to act’” means “failure to take an agency action” (emphasis in original)); Washington State Dept. of Social and Health Servs., supra, at 384-385 (holding that the phrase “other legal process” in 42 U. S. C. § 407(a) refers only to the utilization of a judicial or quasi-judicial mechanism, the common attribute shared by the phrase and the statutory enumeration preceding it). Had Congress intended otherwise, in all likelihood it would have drafted the section to apply to “any law enforcement officer, including officers of customs and excise,” rather than tacking “any other law enforcement officer” on the end of the enumerated categories as it did here.

The common attribute of officers of customs and excise and other law enforcement officers is the performance of functions most often assigned to revenue officers, including, inter alia, the enforcement of the United States’ revenue laws and the conduct of border searches. Although officers of customs and officers of excise are in most instances the only full-time staff charged with this duty, officers of other federal agencies and general law enforcement officers often will be called upon to act in the traditional capacity of a revenue officer. For example, Drug Enforcement Administration (DEA) or Federal Bureau of Investigation (FBI) agents frequently assist customs officials in the execution of border searches. See, e. g., United States v. Gurr, 471 F. 3d 144, 147-149 (CADC 2006) (FBI involved in search of financial documents at border); United States v. Boumelhem, 339 F. 3d 414, 424 (CA6 2003) (“FBI had been cooperating with Customs as a part of a joint task force”); Formula One Motors, Ltd. v. United States, 777 F. 2d 822, 824 (CA2 1985) (DEA agents were performing functions traditionally carried out by customs officials where they seized and searched an automobile that had been shipped from abroad and was still in its shipping container). Cf. United States v. Schoor, 597 F. 2d 1303,1305-1306 (CA9 1979) (upholding constitutionality of cooperation among federal agencies in border searches). Similarly, 14 U. S. C. § 89(a) grants the Coast Guard plenary authority to stop and board American vessels to inspect for obvious customs violations. See, e.g., United States v. Gil-Carmona, 497 F. 3d 52 (CA1 2007) (Coast Guard assisted an Immigration and Customs Enforcement patrol aircraft in interdicting a vessel off the coast of Puerto Rico). To the extent they detain goods whose possession violates customs laws, the Coast Guard officers — while not “officer[s] of customs or excise,” 28 U. S. C. § 2680(c) — are without doubt engaging in the enforcement of the United States’ revenue laws.

The same is true in the tax context. Under 26 U. S. C. §6321, a delinquent taxpayer’s property is subject to forfeiture, see Glass City Bank v. United States, 326 U. S. 265 (1945), and may be seized by any federal agent assisting the Internal Revenue Service (IRS) in executing the forfeiture, cf. United States v. $515,060.42 in United States Currency, 152 F. 3d 491, 495 (CA6 1998) (IRS and FBI jointly seized currency). Thus, the final phrase “any other law enforcement officer” has work to do and makes considerable sense when the statute is limited in this way.

B

The Court reaches its contrary conclusion by concentrating on the word “any” before the phrase “other law enforcement officer.” 28 U. S. C. § 2680(c). It takes this single last phrase to extend the statute so that it covers all detentions of property by any law enforcement officer in whatever capacity he or she acts. There are fundamental problems with this approach, in addition to the ones already mentioned.

First, the Court’s analysis cannot be squared with the longstanding recognition that a single word must not be read in isolation but instead defined by reference to its statutory context. See King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991) (“[T]he meaning of statutory language, plain or not, depends on context”); Dolan v. Postal Service, 546 U. S. 481, 486 (2006) (“A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis”). This is true even of facially broad modifiers. The word “any” can mean “different things depending upon the setting,” Nixon v. Missouri Municipal League, 541 U. S. 125, 132 (2004); see also Small v. United States, 544 U. S. 385, 388 (2005) (citing cases), and must be limited in its application “to those objects to which the legisláture intended to apply them,” United States v. Palmer, 3 Wheat. 610, 631 (1818).

In Gutierrez, 528 U. S., at 254-255, for example, we held that the phrase “in any election” in the Organic Act of Guam, 48 U. S. C. § 1422, does not refer broadly to all elections but only to the election of Guam’s Governor and Lieutenant Governor. The Court explained that the reference to “any election” is preceded by two references to gubernatorial elections and followed by four more references. In the context of such “relentless repetition,” the Court concluded that the phrase must be “known by [its] companions.” 528 U. S., at 255. Likewise, in United States v. Alvarez-Sanchez, 511 U. S. 350, 357 (1994), the Court addressed a phrase similar to the statutory provision we interpret today. The Court noted that the respondent erred in “placing dispositive weight on the broad statutory reference to ‘any’ law enforcement officer or agency without considering the rest of the statute,” and consulted instead “ ‘the context in which [the phrase] is used.’” Id., at 357, 358 (quoting Deal v. United States, 508 U. S. 129,132 (1993); alteration in original).

As already mentioned, the context of § 2680(c) suggests that, in accordance with these precedents, the statutory provision should be interpreted narrowly to apply only to customs and revenue duties. Its first clause deals exclusively with customs and tax duties and, between the first and second clauses, it refers two more times to customs and tax. See Gutierrez, supra, at 254-255; A-Mark, Inc. v. United States Secret Serv. Dept. of Treasury, 593 F. 2d 849, 851 (CA9 1978) (Tang, J., concurring) (“The clauses both dwell exclusively on customs and taxes, except for the final reference to other law-enforcement officers”).

Further, § 2680(c) provides that there will be immunity only where there has been a “detention” of goods, merchandise, or property. “[Detention” is defined by legal and nonlegal dictionaries alike as a “compulsory,” “forced,” or “punitive” containment. Black’s Law Dictionary 459 (7th ed. 1999) (compulsory); American Heritage Dictionary 494 (4th ed. 2000) (forced or punitive). The issue whether petitioner’s property was “detained” within the meaning of the statute was not raised in this case; and so the Court leaves for another day the exception’s applicability to these facts. See ante, at 218, n. 2. It is important, however, to bear in mind that, in the context of detention of goods by customs and tax agents, it will be the rare case when property is voluntarily turned over, rather than forcibly appropriated; indeed, customs and tax agents are in the regular business of seizing and forfeiting property, as are law enforcement agents acting in the capacity of revenue enforcement. See Dept, of Homeland Security, U. S. Customs and Border Protection and U. S. Immigration and Customs Enforcement, Mid-Year FY2007— Top IPR Commodities Seized (May 2007), online at http://www. cbp.gov/linkhandler/cgov/import/commercial_enforcement/ipr/ seizure/07_midyr_seizures.ctt/07_midyr_seizures.pdf (all Internet materials as visited Jan. 10, 2008, and available in Clerk of Court’s case file) (by midyear 2007, customs officials had executed 7,245 commodity seizures, worth a total of $110,198,350); GAO, Border Security: Despite Progress, Weaknesses in Traveler Inspections Exist at Our Nation’s Ports of Entry 17 (GAO-08-219, Nov. 2007), online at http:// www.gao.gov/new.items/d08219.pdf (“According to [U. S. Customs and Border Protection (CBP)], in fiscal year 2006, CBP officers ... seized more than 644,000 pounds of illegal drugs, intercepted nearly 1.7 million prohibited agricultural items, and seized over $155 million in illegal commercial merchandise, such as counterfeit footwear and handbags” (footnote omitted)).

In other contexts, however, the word “detention” may or may not accurately describe the nature of the Government action. A prisoner’s voluntary decision to deliver property for transfer to another facility, for example, bears a greater similarity to a “bailment” — the delivery of personal property after being held by the prison in trust, see American Heritage Dictionary, supra, at 134 — than to a “detention.”

Not a single federal statute mentions the Federal Bureau of Prisons (BOP) in the context of property detention. On the other hand, the majority of the nine federal statutes other than § 2680(c) containing a reference to the detention of goods, merchandise, or other property are specific to customs and excise. Compare 19 U. S. C. § 1499(a) (authorizing customs agents to examine and detain imported merchandise); §1595a(c)(3) (authorizing customs officials to detain merchandise introduced contrary to law); 26 U. S. C. § 5311 (authorizing internal revenue officers to detain containers containing distilled spirits, wines, or beer where there is reason to believe applicable taxes have not been paid); 50 U. S. C. App. § 2411(a)(2)(A) (authorizing customs officials to seize and detain goods at ports of entry in the enforcement of war and national defense); 22 U. S. C. § 464 (authorizing customs agents to detain armed vessels and any property found thereon), with 18 U. S. C. § 981(e) (“ . .. The Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be, shall ensure the equitable transfer pursuant to paragraph (2) of any forfeited property to the appropriate State or local law enforcement agency .... The United States shall not be liable in any action arising out of the seizure, detention, and transfer of seized property to State or local officials”); 28 U. S. C. § 524(c)(1) (2000 ed. and Supp. V) (appropriating a special fund for the purpose of property detention under any law enforced or administered by the Department of Justice); 31 U. S. C. § 9703(a)(1)(A) (establishing a Department of Treasury Forfeiture Fund to pay the expenses of property detention); 16 U. S. C. §§ 1540(e)(3), 3375(b) (authorizing the detention of goods and packages for inspection where there is reason to believe there has been a violation of laws governing fish, wildlife, and plants).

This would seem to indicate that Congress contemplated that the statutory provision considered here would apply only in those narrow circumstances where the officer is in the regular business of forfeiting property, namely, revenue enforcement. At the very least, it demonstrates that “detention” will be a difficult concept to apply case by case under the majority’s interpretation of the statute — a problem alleviated by limiting the statute to customs and tax.

Second, the Court’s construction of the phrase “any other law enforcement officer” runs contrary to “ ‘our duty “to give effect, if possible, to every clause and word of a statute.”’” Duncan v. Walker, 533 U. S. 167, 174 (2001) (quoting United States v. Menasche, 348 U. S. 528, 538-539 (1955)). The Court’s reading renders “officer[s] of customs or excise” mere surplusage, as there would have been no need for Congress to have specified that officers of customs and officers of excise were immune if they indeed were subsumed within the allegedly all-encompassing “any” officer clause. See Circuit City Stores, 532 U. S., at 114.

Third, though the final reference to “any other law enforcement officer” does result in some ambiguity, the legislative history, by virtue of its exclusive reference to customs and excise, confirms that Congress did not shift its attention from the context of revenue enforcement when it used these words at the end of the statute. See, e. g., S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946) (in discussing 28 U. S. C. § 2680(c) referring only to “the detention of goods by customs officers”); A. Holtzoff, Report on Proposed Federal Tort Claims Bill 16 (1931) (noting that the property-detention exception was added to the legislation to “include immunity from liability in respect of loss in connection with the detention of goods or merchandise by any officer of customs or excise”).

Indeed, the Court’s construction reads the exception to defeat the central purpose of the statute, an interpretative danger the Court has warned against in explicit terms. See Kosak, 465 U. S., at 854, n. 9 (the Court must identify only “ ‘those circumstances which are within the words and reason of the exception’ — no less and no more” (quoting Dalehite v. United States, 346 U. S. 15, 31 (1953))). It is difficult to conceive that the FTCA, which was enacted by Congress to make the tort liability of the United States “the same as that of a private person under like circumstaneefs],” S. Rep. No. 1400, at 32, would allow any officer under any circumstance to detain property without being accountable under the Act to those injured by his or her tortious conduct. If Congress wanted to say that all law enforcement officers may detain property without liability in tort, including when they perform general law enforcement tasks, it would have done so in more express terms; one would expect at least a reference to law enforcement officers outside the customs or excise context either in the text of the statute or in the legislative history. In the absence of that reference, the Court ought not presume that the liberties of the person who owns the property would be so lightly dismissed and disregarded.

II

A

The 2000 amendments do not require a contrary conclusion. The Civil Asset Forfeiture Reform Act of 2000 (CAFRA), as applicable here, limits the operation of §2680(c)’s exception. See § 3(a), 114 Stat. 211. The limitation (i. e., the exception to the exception) applies where there has been an injury or loss of goods and “the property was seized for the purpose of forfeiture under any provision of Federal law.” 28 U. S. C. § 2680(c)(1). In my view the amendment establishes that officers of customs and excise, and law enforcement officials performing functions traditionally reserved for revenue officers, shall be liable in tort for damage to the property when the owner’s interest in the goods in the end is not forfeited (and when other conditions apply). And this is so regardless of whether the officer acted under the revenue laws of the United States or, alternatively, another civil or criminal forfeiture provision.

The majority’s reading of CAFRA for a contrary proposition is premised on the assumption that there is no circumstance in which a customs or excise officer, or an officer acting in such a capacity, would “enforce [civil] forfeiture laws unrelated to customs or excise.” Ante, at 222. But customs and tax officials, along with law enforcement officers performing customs and tax duties, routinely do just that. See, e. g., Customs and Border Protection, Seizures and Penalties Links, http://www.cbp.gov/xp/cgov/toolbox/legal/ authority_enforce/seizures_penalties.xml (CBP has “full authority to ... seize merchandise for violation of CBP laws or those of other federal agencies that are enforced by CBP”). Indeed, the customs laws expressly contemplate forfeitures and seizures of property under nonrevenue provisions. See, e. g., 19 U. S. C. § 1600 (“The procedures [governing seizures of property] set forth in [§§ 1602-1619] shall apply to seizures of any property effected by customs officers under any law enforced or administered by the Customs Service unless such law specifies different procedures”).

By way of example, a customs or excise official might effect a civil forfeiture of currency or monetary instruments under the Bank Secrecy Act, 31 U. S. C. § 5317(c) (2000 ed., Supp. V); or of counterfeit instruments, illegal music recordings, or firearms under the Contraband Act, 49 U. S. C. § 80302 et seq. (2000 ed. and Supp. IV). Similarly, a DEA agent assisting a customs official in a border search (and thus acting in a customs capacity) might effect a civil forfeiture of vehicles or goods associated with the drug trade under federal drug laws. See 21 U. S. C. § 881 (2000 ed. and Supp. V); see also, e. g., Formula One Motors, 777 F. 2d, at 822-823. Though acting pursuant to a civil forfeiture law that is not specific to customs and taxes, the DEA agent would be covered by § 2680(c)’s exception to the exception because he or she would be acting in a traditional revenue capacity - that of conducting a routine search of persons and effects of persons crossing an international boundary.

The Court counters that the Bank Secrecy Act, 31 U. S. C. § 5317(c), is not “unrelated to customs or excise” because it cross-references a requirement for exporting and importing monetary instruments, § 5316. See ante, at 223, n. 5. But § 5316, despite being “[r]elated” to customs duties, is part of the federal Currency and Foreign Transactions Reporting Act, see § 5311 et seq. (2000 ed. and Supp. IV), not the United States’ customs laws.

The Court also notes that customs agents have the authority to seize contraband under the customs laws, particularly 19 U. S. C. § 1595a(c)(l). I do not dispute that customs agents often act under customs laws when seizing property. My point, which goes unrefuted by the Court, is that it was reasonable for Congress to have specified that customs and excise officers would be covered by the exception to the exception even when acting pursuant to federal laws more generally. For instance, § 1595a(c)(l) applies only where “[m]er-

chandise... is introduced... into the United States contrary to law,” which appears to target the importation of property subject to duty or entry restrictions. Title 28 U. S. C. § 2680(c), by contrast, was amended in 2000 to encompass not only the detention of “goods or merchandise” but the detention of all “property.” § 3(a), 114 Stat. 211. In circumstances not involving imported “merchandise,” then, the customs official would be acting pursuant to law enforcement authority derived not from the customs laws but, inter alia, the Contraband and Bank Secrecy Acts. The same is true of noncustoms officers acting in a customs capacity.

At the very least this renders the Court’s reliance on the views of a subsequent Congress suspect. We have said “subsequent acts can shape or focus” the meaning of a statute. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 143 (2000). There is no indication, however, that by adding a forfeiture exception to the exception, Congress intended to broaden the scope of the original immunity. Cf. SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 199-200 (1963).

B

Though the Court does not much rely on the point, perhaps it has concerns respecting suits like the one now before us. Petitioner sues for lost property valued at about $177. Law enforcement officers in the federal prison system must take inventory of the property they store, and with just under 200,000 persons in the federal prison population, see Federal Bureau of Prisons, Weekly Population Report, online at http://www.bop.gov/news/weekly_report.jsp (reporting 199,342 federal inmates as of January 7, 2008), the burden on the Government to account for missing items of little value could be a substantial one.

There are sound reasons, though, for rejecting this concern in interpreting the statute. To begin with, as already discussed, if it were a congressional objective to give a comprehensive exception to all officers who detain property, Congress most likely would have written a specific provision to address the point, quite apart from the special concerns it had with customs and revenue. The exception as the Court now interprets it extends not only to trivial detentions, not only to prison officials, not only to those in custody, but to all detentions of property of whatever value held by all law enforcement officials, a reading that simply does not comport with the plain text and context of the statute.

Second, as the Court observed when interpreting another exception that raised the concern of numerous frivolous claims, liability for negligent transmission “is a risk shared by any business [involved in management of detention facilities],” including the Government. Dolan, 546 U. S., at 491.

Third, there are already in place administrative procedures that must be exhausted before the suit is allowed, diminishing the number of frivolous suits that would be heard in federal court. See 42 U. S. C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”). Under 28 CFR § 543.31(a) (2007), the “owner of the damaged or lost property” first must file an FTCA claim with the BOP regional office; the BOP, in turn, is authorized by statute to settle administrative claims for not more than $1,000, see 31 U. S. C. § 3723(a), which likely encompasses most claims brought by federal prisoners. Only if the prisoner is “dissatisfied with the final agency action” may he or she file suit in an “appropriate U. S. District Court.” 28 CFR § 543.32(g).

If Congress had intended to give sweeping immunity to all federal law enforcement officials from liability for the detention of property, it would not have dropped this phrase onto the end of the statutory clause so as to appear there as something of an afterthought. The seizure of property by an offleer raises serious concerns for the liberty of our people and the Act should not be read to permit appropriation of property without a remedy in tort by language so obscure and indirect.

For these reasons, in my view, the judgment of the Court of Appeals ought to be reversed.

Justice Breyer,

with whom Justice Stevens joins, dissenting.

I agree with Justice Kennedy that context makes clear that Congress intended the phrase “any other law enforcement officer” to apply only to officers carrying out customs or excise duties. See 28 U. S. C. § 2680(c). But I write separately to emphasize, as Justice Kennedy’s dissent itself makes clear, that the relevant context-extends well beyond Latin canons and other such purely textual devices.

As with many questions of statutory interpretation, the issue here is not the meaning of the words. The dictionary meaning of each word is well known. Rather, the issue is the statute’s scope. What boundaries did Congress intend to set? To what circumstances did Congress intend the phrase, as used in this statutory provision, to apply? The majority answers this question by referring to an amendment that creates an exception for certain forfeitures and by emphasizing the statutory word “any.” As to the amendment, I find Justice Kennedy’s counterargument convincing. See ante, at 239-241 (dissenting opinion). And, in my view, the word “any” provides no help whatsoever.

The word “any” is of no help because all speakers (including writers and legislators) who use general words such as “all,” “any,” “never,” and “none” normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work. And with the possible exception of the assertion of a universal truth, say, by a mathematician, scientist, philosopher, or theologian, such limits almost always exist.' When I call out to my wife, “There isn’t any butter,” I do not mean, “There isn’t any butter in town.” The context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circumstance within which words such as “any” will apply. See United States v. Palmer, 3 Wheat. 610, 631 (1818) (Marshall, C. J.) (“[G]eneral words,” such as the word “ ‘any’,” must “be limited” in their application “to those objects to which the legislature intended to apply them”); Small v. United States, 544 U. S. 385, 388 (2005) (“The word ‘any’ considered alone cannot answer” the question “whether the statutory reference ‘convicted in any court’ includes a conviction entered in a foreign court”); Nixon v. Missouri Municipal League, 541 U. S. 125, 132 (2004) (“ ‘[A]ny’ ” means “different things depending upon the setting”); United States v. Alvarez-Sanchez, 511 U. S. 350, 357 (1994) (“[Respondent errs in placing dispositive weight on the broad statutory reference to ‘any’ law enforcement officer or agency without considering the rest of the statute”).

Context, of course, includes the words immediately surrounding the phrase in question. And canons such as ejusdem generis and noscitur a sociis offer help in evaluating the significance of those surrounding words. Yet that help is limited. That is because other contextual features can show that Congress intended a phrase to apply more broadly than the immediately surrounding words by themselves suggest. See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 138-140 (2001) (Souter, J., dissenting) (finding “good reasons” not to apply ejusdem generis because the statute’s history and purposes make clear that the words “any other class of workers” in the phrase “seamen, railroad employees, or any other class of workers” refer, not just to other transportation workers, but to workers of all kinds including retail store clerks). It is because canons of construction are not “conclusive” and “are often countered ... by some maxim pointing in a different direction.” Id., at 115 (majority opinion). And it is because these particular canons simply crystallize what English speakers already know, namely, that lists often (but not always) group together items with similar characteristics. That is why we cannot, without comic effect, yoke radically different nouns to a single verb, e. g., “He caught three salmon, two trout, and a cold.”

In this case, not only the immediately surrounding words but also every other contextual feature supports Justice Kennedy’s conclusion. The textual context includes the location of the phrase within a provision that otherwise exclusively concerns customs and revenue duties. And the nontextual context includes several features that, taken together, indicate that Congress intended a narrow tort-liability exception related to customs and excise.

First, drafting history shows that the relevant portion of the bill that became the Federal Tort Claims Act concerned only customs and excise. Initially, the relevant provision of the bill exempted only claims “arising in respect of the assessment or collection of any tax or customs duty.” See, e.g., S. 4377, 71st Cong., 2d Sess., 4 (1930). In 1931, a Special Assistant to the Attorney General, Alexander Holtzoff, wrote additional draft language, namely, “or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer.” Bill Draft, p. 2, reprinted in Report on Proposed Federal Tort Claims Bill p. 2 (1931) (emphasis added). Holtzoff, in a report to a congressional agency, said that the expanded language sought “to include immunity from liability in respect of loss in connection with the detention of goods or merchandise by any officer of customs or excise.” Id., at 16. Holtzoff explained that the language was suggested by a similar British bill that mentioned only customs and excise officials. Ibid, (referring to the bill proposed in the Crown Proceedings Committee Report § ll(5)(c), pp. 17-18 (Apr. 1927) (Cmd. 2842) (“No proceedings shall lie under this section ... for or in respect of the loss of or any deterioration or damage occasioned to, or any delay in the release of, any goods or merchandise by reason of anything done or omitted to be done by any officer of customs and excise acting as such”)); see Kosak v. United States, 465 U. S. 848, 857, n. 13 (1984) (While “the ideas expressed [in Holtzoff’s report] should not be given great weight in determining the intent of the Legislature,” at least in some circumstances, “it seems to us senseless to ignore entirely the views of [the provision’s] draftsman”). And Members of Congress repeatedly referred to the exception as encompassing claims involving customs and excise functions. See, e. g., H. R. Rep. No. 2428, 76th Cong., 3d Sess., 5 (1940); S. Rep. No. 1196, 77th Cong., 2d Sess., 7 (1942); H. R. Rep. No. 2245, 77th Cong., 2d Sess., 10 (1942); H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945); S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946).

Second, insofar as Congress sought, through the Act’s exceptions, to preclude tort suits against the Government where “adequate remedies were already available,” Kosak, supra, at 858; see S. Rep. No. 1400, at 33; H. R. Rep. No. 1287, at 6 (setting forth that purpose), a limited exception makes sense; a broad exception does not. Other statutes already provided recovery for plaintiffs harmed by federal officers enforcing customs and tax laws but not for plaintiffs harmed by all other federal officers enforcing most other laws. See Bazuaye v. United States, 83 F. 3d 482, 485-486 (CADC 1996) (detailing history).

Third, the practical difference between a limited and a broad interpretation is considerable, magnifying the importance of the congressional silence to which Justice Kennedy points, see ante, at 238. A limited interpretation of the phrase “any other law enforcement officer” would likely encompass only those law enforcement officers working, say, at borders and helping to enforce customs and excise laws. The majority instead interprets this provision to include the tens of thousands of officers performing unrelated tasks.

The Justice Department estimates that there are more than 100,000 law enforcement officers, not including members of the armed services. See, e. g., Dept, of Justice, Bureau of Justice Statistics Bulletin, B. Reaves, Federal Law Enforcement Officers, 2004, p. 1 (July 2006). And although the law’s history contains much that indicates the provision’s scope is limited to customs and excise, it contains nothing at all suggesting an intent to apply the provision more broadly, indeed, to multiply the number of officers to whom it applies by what is likely one or more orders of magnitude. It is thus not the Latin canons, ejusdem generis and noscitur a sociis, that shed light on the application of the statutory phrase but Justice Scalia’s more pertinent and easily remembered English-language observation that Congress “does not . . . hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001).

For these reasons, I dissent and I join Justice Kennedy’s dissent.

       The Eleventh Circuit joined five other Courts of Appeals in construing § 2680(c) to encompass all law enforcement officers. See Bramwell v. Bureau of Prisons, 348 F. 3d 804, 806-807 (CA9 2003); Chapa v. United States Dept. of Justice, 339 F. 3d 388, 390 (CA5 2003) (per curiam); Hatten v. White, 275 F. 3d 1208, 1210 (CA10 2002); Cheney v. United States, 972 F. 2d 247, 248 (CA8 1992) (per curiam); Ysasi v. Rivkind, 856 F. 2d 1520, 1525 (CA Fed. 1988). Five other Courts of Appeals reached the contrary conclusion, interpreting the clause as limited to officers performing customs or excise functions. See ABC v. DEF, 500 F. 3d 103, 107 (CA2 2007); Dahler v. United States, 473 F. 3d 769, 771-772 (CA7 2007) (per curiam); Andrews v. United States, 441 F. 3d 220, 227 (CA4 2006); Bazuaye v. United States, 83 F. 3d 482, 486 (CADC 1996); Kurinsky v. United States, 33 F. 3d 594, 598 (CA6 1994).

       We assume, without deciding, that the BOP officers “detained” Ali’s property and thus satisfy § 2680(c)’s “arising in respect of. . . detention” requirement. The Court of Appeals held that the “detention” clause was satisfied, and petitioner expressly declined to raise the issue on certiorari. See 204 Fed. Appx. 778, 779-780 (CA11 2006) (per curiam); Brief for Petitioner 10-11, n. 9.

       We consider this question for the first time in this ease. Petitioner argues that this Court concluded in Kosak v. United States, 465 U. S. 848 (1984), that the phrase “any other law enforcement officer” is ambiguous. Reply Brief for Petitioner 4. In that case, the Court construed a portion of the same clause at issue here, but the decision had no bearing on the meaning of “any other law enforcement officer.” 465 U. S., at 853-862 (holding that “detention” encompasses claims resulting from negligent handling or storage). Indeed, the Court expressly declined to reach the issue. Id., at 852, n. 6 (“We have no occasion in this ease to decide what kinds of ‘law-enforcement officer[s],’ other than customs officials, are covered by the exception” (alteration in original)). Petitioner’s reliance on the footnote as concluding that the phrase is ambiguous reads too much into the Court’s reservation of a question that was not then before it.

       Of course, other circumstances may counteract the effect of expansive modifiers. For example, we have construed an “any” phrase narrowly when it included a term of art that compelled that result. See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115-116 (2001) (construing “any other class of workers engaged in . .. commerce,” 9 U. S. C. § 1, narrowly based on the Court’s previous interpretation of “in commerce” as a term of art with a narrower meaning). We also have construed such phrases narrowly when another term in the provision made sense only under a narrow reading, see United States v. Alvarez-Sanchez, 511 U. S. 350, 357-358 (1994) (limiting “any law-enforcement officer” to federal officers because the statute’s reference to “delay” made sense only with respect to federal officers), and when a broad reading would have implicated sovereignty concerns, see Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 541-542 (2002) (applying the “clear statement rule” applicable to waivers of sovereign immunity to construe the phrase “all civil actions” to exclude a category of claims, “even though nothing in the statute expressly exclude[d]” them). None of the circumstances that motivated our decisions in these cases is present here.

       Justice Kennedy’s dissent (hereinafter the dissent) argues that, during border searches, customs and excise officers “routinely” enforce civil forfeiture laws unrelated to customs or excise. Post, at 239-240. But the examples the dissent provides do not support that assertion. The dissent maintains that a customs officer who seizes material defined as contraband under 49 U. S. C. § 80302 et seq. is one such example. Post, at 240. But a customs officer’s authority to effect a forfeiture of such contraband derives from a specific customs law. See 19 U. S. C. § 1595a(c)(l)(C). Similarly, the dissent suggests that a Drug Enforcement Administration (DEA) agent “assisting a customs official” in a border search who seizes drug-related contraband under 21 U. S. C. § 881 is acting in a “traditional revenue capacity.” Post, at 240. But that argument is based on the assumption that an officer who assists in conducting a border search acts in a customs capacity even if he is not a customs officer and is not enforcing a customs law. That assumption, far from self-evident, only underscores the difficulty that would attend any attempt to define the contours of the implied limitation on § 2680(c)’s reach proposed by petitioner and embraced by the dissent. “Acting in a customs or excise capacity” is not a self-defining concept, and not having included such a limitation in the statute’s language, Congress of course did not provide a definition. Finally, the dissent points out that a customs or excise officer might effect a forfeiture of currency or monetary instruments under 31 U. S. C. § 5317(c). Post, at 240. But § 5317(e) is hardly a civil forfeiture law unrelated to customs or excise. See § 5317(c)(2) (2000 ed., Supp. V) (authorizing forfeiture of property involved in a violation of, inter alia, § 5316 (2000 ed.), which sets forth reporting requirements for exporting and importing monetary instruments).

       As an example of “other law enforcement officer[s]” acting in an excise or customs capacity, petitioner cites Formula One Motors, Ltd. v. United States, 777 F. 2d 822, 823-824 (CA2 1985) (holding that the seizure of a vehicle still in transit from overseas by DEA agents who searched it for drugs was “sufficiently akin to the functions carried out by Customs officials to place the agents’ conduct within the scope of section 2680(c)”). But it is not clear that the agents in that case were acting in an excise or customs capacity rather than in their ordinary capacity as law enforcement agents. It seems to us that DEA agents searching a car for drugs are acting in their capacity as officers charged with enforcing the Nation’s drug laws, not the customs or excise laws.
      Similarly, the dissent notes that 14 U. S. C. § 89(a) authorizes Coast Guard officers to enforce customs laws. Post, at 233. But the very next subsection of §89 provides that Coast Guard officers effectively are customs officers when they enforce customs laws. See § 89(b)(1) (providing that Coast Guard officers “insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall... be deemed to be acting as agents of the particular executive department . . . charged with the administration of the particular law”). As a result, a Coast Guard officer enforcing a customs law is a customs officer, not some “other law enforcement officer.”

       Congress, we note, did provide an administrative remedy for lost property claimants like petitioner. Federal agencies have authority under 31 U. S. C. § 3723(a)(1) to settle certain “claim[s] for not more than $1,000 for damage to, or loss of, privately owned property that... is caused by the negligence of an officer or employee of the United States Government acting within the scope of employment.” The BOP has settled more than 1,100 such claims in the last three years. Brief for Respondents 41, n. 17.


source: Caselaw Access Project

author: Justice Stevens Justice Thomas,

license: Public Domain

text:
    LaRUE v. DeWOLFF, BOBERG & ASSOCIATES, INC., et al.
    CERTIOARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
    No. 06-856.
    Argued November 26, 2007
    Decided February 20, 2008

      Peter K. Stris argued the cause for petitioner. With him on the briefs were Brendan S. Maher, Jean-Claude André, 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 Solicitor 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.

   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 bénefits 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. 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 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, Inc. (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 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 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 language from our opinion in Russell suggesting 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 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 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. 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 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 “re-latte] to the plan’s financial integrity” and “reflee[t] a special congressional concern about plan asset management”). The misconduct alleged by petitioner in this case falls squarely within that category.

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 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. 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; 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-l (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 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.

It is so ordered.

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 252, 255-256. 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 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 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., 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 fiduciáries 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 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).

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 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 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 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 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 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 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 219 (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 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 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.

       As 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), 88 Stat. 838, 29 U. S. C. §§ 1002(34) — (35); R Schneider & B. Freedman, ERISA: A Comprehensive Guide § 3.02 (2d ed. 2003).

       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

        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).

       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.

       The 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) of Trusts § 205, and Comment i (1957); § 211; see also 3 A. Scott, Law on Trusts §§ 205, 211 (3d ed. 1967).

       See, 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://wrvw.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/publieations/facts/0607fact.pdf.

       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).

      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.

      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.