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No. 16-1264
 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

ROBERTO TRUJILLO, 

Plaintiff-Appellant, 

v. 

LANDMARK MEDIA ENTERPRISES, LLC, et al., 

Defendants-Appellees. 

On Appeal from the United States District Court 

for the Eastern District of Virginia 

BRIEF OF THE SECRETARY OF LABOR AS AMICUS CURIAE
 

IN SUPPORT OF PLAINTIFF-APPELLANT
 

FOR REVERSAL
 

M. PATRICIA SMITH THOMAS TSO 

Solicitor of Labor Counsel for Appellate 

and Special Litigation 

G. WILLIAM SCOTT STEPHEN A. SILVERMAN 

Associate Solicitor Trial Attorney 

For Plan Benefits Security U.S. Department of Labor 

200 Constitution Ave., N.W., N-4611 

Washington, D.C. 20210 

(202) 693-5623 
TABLE OF CONTENTS
 

TABLE OF AUTHORITIES .................................................................................... ii
 

QUESTION PRESENTED........................................................................................1
 

THE SECRETARY'S INTEREST.............................................................................1
 

STATEMENT OF THE CASE..................................................................................2
 

A. Factual Background...............................................................................2
 

B. Proceedings Below................................................................................6
 

SUMMARY OF ARGUMENT .................................................................................7
 

ARGUMENT .............................................................................................................8
 

ERISA Section 510 Protects Employees Who Give Information in an
 

ERISA Plan Audit.............................................................................................8
 

A. The District Court Misconstrued Trujillo's Pro Se Complaint............11
 

B. An ERISA Plan Audit is a Type of "Inquiry" under Section 510.......15
 

C. The Remedial Purposes of ERISA Warrant Including Plan Audits
 

Within the Scope of Section 510 Inquiries .........................................21
 

D. Other Circuits' Interpretations of Section 510 Are Consistent with
 

Including a Plan Audit Within the Scope of "Any Inquiry" ...............28
 

CONCLUSION .......................................................................................................30
 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE 
TABLE OF AUTHORITIES
 

Federal Cases: 

Boyer-Liberto v. Fontainebleau Corp.,
 

786 F.3d 264 (4th Cir. 2015)...............................................................................24
 

Burlington N. & Santa Fe Ry. Co. v. White,
 

548 U.S. 53 (2006) ..............................................................................................27
 

Conkright v. Frommert,
 

559 U.S. 506, 517 (2010) ............................................................................. 21 n.7
 

Conkwright v. Westinghouse Elec. Corp.,
 

933 F.2d 231 (4th Cir. 1991)...............................................................................22
 

Crawford v. Metro. Gov't of Nashville,
 

555 U.S. 271 (2009) ..................................................................................... 24, 27
 

Edwards v. A.H. Cornell & Son, Inc.
 

610 F.3d 217 (3d Cir. 2010) .................................................................................29
 

Erickson v. Pardus,
 

551 U.S. 89 (2007) ....................................................................................... 11, 15
 

Estelle v. Gamble,
 

429 U.S. 97 (1976) ..............................................................................................12
 

FCC v. AT&T, Inc.,
 

562 U.S. 397 (2011) ............................................................................................15
 

Fink v. National Sav. & Trust Co.,
 

772 F.2d 951 (D.C. Cir. 1985).............................................................................16
 

FDA v. Brown & Williamson Tobacco Corp.,
 

529 U.S. 120 (2000) ............................................................................................27
 

George v. Junior Achievement of Cent. Ind., Inc.,
 

694 F.3d 812 (7th Cir. 2012)............................................................ 15, 19, 29 n.8
 

ii
 
Federal Cases-(continued): 

Gobeille v. Liberty Mut. Ins. Co.,
 

136 S. Ct. 936 (2016) ..........................................................................................22
 

Grant Thornton, LLP v. FDIC,
 

435 F. App'x 188 (4th Cir. June 17, 2011)..........................................................19
 

Griggs v. E.I. DuPont de Nemours & Co.,
 

237 F.3d 371 (4th Cir. 2001)...............................................................................25
 

Ingersoll-Rand Co. v. McClendon,
 

498 U.S. 133 (1990) ........................................................................................9, 22
 

Jackson v. Lightsey,
 

775 F.3d 170 (4th Cir. 2004)...............................................................................11
 

Jehovah v. Clarke,
 

798 F.3d 169 (4th Cir. 2015)...............................................................................11
 

Kasten v. Saint-Gobain Performance Plastics Corp.,
 

563 U.S. 1 (2011) ................................................................................... 21, 26, 27
 

King v. Marriott Int'l, Inc., 

337 F.3d 421 (4th Cir. 2003)....................................................................... passim 

Mitchell v. Robert DeMario Jewelry, Inc.,
 

361 U.S. 288 (1960) ............................................................................................25
 

New York v. Cathedral Academy,
 

434 U.S. 125 (1977) ............................................................................................18
 

Nicolaou v. Horizon Media, Inc.,
 

402 F.3d 325 (2d Cir. 2005) ................................................................... 15, 25, 28
 

NLRB v. Scrivener,
 

405 U.S. 117 (1972) ............................................................................................26
 

Noble v. Barnett,
 

24 F.3d 582 (4th Cir. 1994).................................................................................11
 

iii
 
Federal Cases-(continued): 

Republic of Iraq v. Beaty,
 

556 U.S. 848 (2009) ............................................................................................21
 

SD3, LLC v. Black & Decker (U.S.) Inc.,
 

801 F.3d 412 (4th Cir. 2015)...............................................................................11
 

Sec'y of Labor v. Fitzsimmons,
 

805 F.2d 682 (7th Cir. 1986).................................................................................1
 

Sexton v. Panel Processing, Inc.,
 

754 F.3d 332 (6th Cir. 2014)............................................................ 15, 19 n.6, 29
 

Shaw v. Delta Air Lines, Inc.,
 

463 U.S. 85 (1983) ................................................................................................9
 

Teachers' Ret. Sys. of La. v. Hunter,
 

477 F.3d 162 (4th Cir. 2007)...............................................................................12
 

Teamsters Joint Council No. 83 v. Centra, Inc.,
 

947 F.2d 115 (4th Cir. 1991)...............................................................................22
 

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
 

551 U.S. 308 (2007) ............................................................................................12
 

Tobey v. Jones,
 

706 F.3d 379 (4th Cir. 2013)...............................................................................12
 

Tupper v. United States,
 

134 F.3d 444 (1st Cir. 1998) ...............................................................................19
 

United States v. Bisceglia,
 

420 U. S. 141 (1975) ...........................................................................................18
 

United States v. Blood,
 

806 F.2d 1218 (4th Cir. 1986).............................................................................23
 

United States v. Browney,
 

421 F.2d 48 (4th Cir. 1970).................................................................................19
 

iv
 
Federal Cases-(continued): 

United States v. Eichholz, 

395 F. App'x 532 (11th Cir. Aug. 31, 2010) .......................................................26
 

United States v. Head,
 

641 F.2d 174 (4th Cir. 1981)...............................................................................18
 

United States v. Nolan,
 

136 F.3d 265 (2d Cir. 1998) ................................................................................22
 

United States v. Rosinsky,
 

547 F.2d 249 (4th Cir. 1977)...............................................................................18
 

United States v. Sarault,
 

840 F.2d 1479 (9th Cir. 1988).............................................................................22
 

United States v. Thorson,
 

633 F.3d 312 (4th Cir. 2011)...............................................................................18
 

United States v. Wiseman,
 

274 F.3d 1235 (9th Cir. 2001).............................................................................23
 

Federal Statutes:
 

Internal Revenue Code:
 

26 U.S.C. § 6058......................................................................................................19
 

26 U.S.C. § 6059......................................................................................................19
 

26 U.S.C. § 7601......................................................................................................18
 

26 U.S.C. § 7602......................................................................................................18
 

Employee Retirement Income Security Act of 1974,
 

as amended, 29 U.S.C. § 1001 et seq.:
 

Section 2(b), 29 U.S.C. § 1001(b) ..................................................................22
 

Section 103, 29 U.S.C. § 1023..................................................... 16, 19, 23, 29
 

v
 
Federal Statutes-(continued):
 

Section 103(a)(3)(A), 29 U.S.C. § 1023(a)(3)(A) ..........................................17
 

Section 103(b)(2), 29 U.S.C. § 1023(b)(2).....................................................17
 

Section 103(b)(3), 29 U.S.C. § 1023(b)(3).....................................................17
 

Section 104, 29 U.S.C. § 1024........................................................... 16, 23, 29
 

Section 104(a)(1), 29 U.S.C. § 1024(a)(1) .....................................................17
 

Section 104(b)(4), 29 U.S.C. § 1024(b)(4).....................................................17
 

Section 404, 29 U.S.C. § 1104........................................................................25
 

Section 501, 29 U.S.C. § 1131........................................................................23
 

Section 504, 29 U.S.C. § 1134..........................................................................1
 

Section 505, 29 U.S.C. § 1135..........................................................................1
 

Section 510, 29 U.S.C. § 1140................................................................ passim
 

Section 519, 29 U.S.C. § 1149........................................................................23
 

Section 4065, 29 U.S.C. § 1365......................................................................19
 

Federal Regulations: 

29 C.F.R. § 2520.104-46................................................................................... 16 n.5
 

Miscellaneous: 

Fed. R. App. P. 29(a) .................................................................................................2
 

S.Rep. No. 93-127 (1973), reprinted in, 1974 U.S.C.C.A.N. 4838 ....................9
 

Inquiry, Black's Law Dictionary (10th ed. 2014) ....................................................15
 

Audit, Black's Law Dictionary (10th ed. 2014) .......................................................18
 

vi 
Miscellaneous-(continued):
 

Inquiry, The Oxford English Dictionary (2d ed. 1987)...........................................15
 

Audit, Webster's Unabridged Dictionary (2d ed. 1987)...........................................18
 

2015 Form 5500 Annual Report of Employee Benefit Plan, U.S. Dep't of Labor 

Emp. Benefits Sec. Admin., https://www.dol.gov/ebsa/pdf/2015-5500.pdf 

(last visited May 5, 2016) ..............................................................................27 

Selecting An Auditor For Your Employee Benefit Plan, U.S. Dep't of Labor Emp. 

Benefits Sec. Admin., 

http://www.dol.gov/ebsa/publications/selectinganauditor.html (last visited 

May 5, 2016)...................................................................................................16 

Targeting and Limited Review, U.S. Dep't of Labor Emp. Benefits Sec. Admin., 

https://www.dol.gov/ebsa/oemanual/cha53.html (last visited May 5, 2016) 

.........................................................................................................................26 

vii 
QUESTION PRESENTED
 

Whether section 510 of the Employee Retirement Income Security Act of 

1974 ("ERISA"), 29 U.S.C. § 1140, prohibits retaliation against an employee who 

gives information regarding possible ERISA violations during the course of an 

independent ERISA plan audit required by law to be filed with the Department of 

Labor. 

STATEMENT OF INTEREST 

The Secretary of Labor has primary enforcement and regulatory authority 

for Title I of ERISA. 29 U.S.C. §§ 1134, 1135. The Secretary's interests include 

protecting beneficiaries, enforcing fiduciary standards, and ensuring the financial 

stability of employee benefit assets. See Sec'y of Labor v. Fitzsimmons, 805 F.2d 

682, 689-94 (7th Cir. 1986) (en banc). The Secretary achieves these goals by, 

among other things, reviewing the annual financial reports, including the opinions 

of independent auditors, that ERISA plans must submit to the Department of 

Labor, and investigating potential violations and other concerns that arise from 

those reports and audits. 29 U.S.C. § 1134. 

ERISA section 510, 29 U.S.C. § 1140, protects employees from retaliation 

for giving information in "any inquiry or proceeding" concerning potential ERISA 

violations. In this case, the district court dismissed plaintiff's claim that he was 

improperly discharged in retaliation for giving information in the course of two 
independent ERISA plan audits that were necessary for preparing the plans' annual
 

financial reports, in violation of section 510. The Secretary's participation in this 

appeal is important because the decision below, if upheld, will undermine the 

protection of employee benefit plans afforded by ERISA's mandatory reporting 

regime by inhibiting employees from giving information concerning ERISA 

violations during a plan's audit for fear of retaliation. In reaching its decision, the 

district court misread this Court's prior holding in King v. Marriott Int'l, Inc., 337 

F.3d 421 (4th Cir. 2003), to remove the protections afforded by ERISA section 510 

in the factual circumstances alleged here, which are distinguishable from those in 

King. While King rejected section 510 protection for unsolicited internal 

complaints to management, the decision did not foreclose protection where 

information is given during an ERISA-required plan audit. The Secretary therefore 

has a compelling interest in this Court's correction of the district court's error, and 

submits this brief pursuant to Federal Rule of Appellate Procedure 29(a). 

STATEMENT OF THE CASE 

A. Factual Background1 

In January 2015, plaintiff Robert Trujillo was hired by defendant Dominion 

Enterprises, Inc. to work as the Director of Benefits & Safety. Trujillo v. 

1 This is an appeal from the district court's grant of defendants' motion to dismiss. 

The Factual Background is therefore based on the district court's March 9, 2016 

dismissal order and allegations from Trujillo's complaint. 

2
 
Landmark Media Enters., LLC, No. 2:15-cv-518-RAJ-RJK, at 1 (E.D. Va. March 

9, 2016) (order granting motion to dismiss) ("Order"). Dominion shares a 

headquarters with defendant Landmark Media Enterprises, LLC. Compl. ¶¶ 8-9. 

Dominion and Landmark also share a Chief Executive Officer, Chief Operating 

Officer, Chief Financial Officer ("Blevins"), and Vice President of Human 

Resources ("Blake"); Dominion has its own Vice President of Management 

Development, Training, Recruiting. Id. ¶¶ 11-15. Dominion, Landmark, and these 

various individuals are all co-defendants in this action. Order, at 1. Dominion and 

Landmark each sponsor ERISA-covered defined contribution pension plans 

("Plans") for their employees that are administered by Vanguard. Compl. ¶¶ 8-9, 

17. As part of his job, Trujillo became a fiduciary of the Plans with signatory 

authority over the Plans' assets, and he reported to defendants with respect to both 

Plans. Id. ¶¶ 17-18. 

In May 2015, the Plans began their annual audits. Id. ¶¶ 18, 20. KPMG was 

initially retained to conduct the independent audits, but on September 10, 2015 

(about one month before the audits were due) "the auditing task [was] removed 

from KPMG and given to the local firm of Wall, Einhorn & Chernitzer." Id. ¶ 21. 

Even though Wall Einhorn "had no prior working relationship" with defendants, it 

was "hired to handle the benefit plan audits on a trial basis" because the firm's 

"staff included a newly hired senior manager who was . . . a former executive" of 

3
 
Dominion and Landmark. Id. These audits provided the information necessary for 

completing the Plans' Form 5500, an annual report that must be filed with the 

Department of Labor ("DOL") and the Internal Revenue Service ("IRS"). See id. 

¶¶ 18, 21-22. 

In connection with the Landmark Plan's audit, Trujillo "and his staff held a 

meeting with Vanguard" and gave Vanguard the necessary reports (which were not 

previously provided) to verify whether participants worked the hours necessary to 

vest, at "which [point] it was determined that Vanguard was improperly vesting 

participants in the plan." Id. ¶ 18. The "various vesting-related errors in the 

[Landmark] retirement plan," Order, at 1, resulted in "participants who should have 

been vesting los[ing] their vested benefit of employer contribution matches to their 

plan accounts." Compl. ¶ 18 (funds were instead "unlawfully diverted" to 

Landmark). As the Landmark Plan's audit progressed, Trujillo communicated the 

nature and extent of the improper vesting to Blevins and Blake, who responded by 

"order[ing Trujillo] not to determine the extent of the errors that occurred prior to 

2009." Id. ¶ 19. In addition to the Landmark Plan's audit, Trujillo also "work[ed] 

on finalizing an audit" of the Dominion Plan. Id. ¶ 20. The Dominion Plan's audit 

revealed that Dominion's payroll department, managed by Blevins, "was not 

properly segregating plan participant employee contribution dollars in its 401(K) 

Plan." Order, at 1-2. 

4
 
As the audits proceeded, Trujillo "kept [Dominion and Landmark] updated 

on the status of these two issues," Compl. ¶ 21, by "submitt[ing] weekly reports 

about these issues to the Vice President of Human Resources, coordinat[ing] 

strategy meetings with the Chief Financial Officer's staff, and discuss[ing] the 

matter with Defendants' ERISA Counsel." Order, at 2. Trujillo's information led 

to further internal inquiries regarding the extent of ERISA breaches and violations. 

Id. at 5. Prior to completing these audits for each Plan's Form 5500, however, 

Blevins "forced the internal management of the benefit plan audits for the Form 

5500 audits away from the benefits department to her finance and accounting 

staff," Compl. ¶ 21, and then "threatened, with approximately one week left to file 

the Form 5500's, not to sign off on the financial statements required to complete 

the Form 5500 filings for the [Plans]," id. ¶ 22. 

In order to ensure timely completion of the audits and filing of each Form 

5500, as well as to fashion a proper remedy for the Plans, Trujillo scheduled and 

participated in an October 7, 2015 meeting with, among others, outside counsel 

and Landmark's Vice President of Tax and Audit; he also participated in a similar 

meeting on October 9, 2015. Id. ¶ 22. During the week of October 12, 2015, as 

Trujillo "was finalizing efforts to complete a timely filing of the Form 5500's," he 

further advised management that the "method of compensation for 401(k) 

5
 
contribution purposes" had "undercut[ ] participant contributions and should be
 

remedied." Id. ¶¶ 23-24. 

Dominion's chief accounting officer advised Trujillo that defendants would 

follow Trujillo's "recommended strategy for completing the Form 5500 filings." 

Id. ¶¶ 26-27. Each Form 5500 was "filed by the October 15, 2015 deadline 

following [Trujillo] working directly with Wall Einhorn," the outside auditing 

firm. Id. ¶¶ 26-27. Before signing each Form 5500 for submission, Trujillo "made 

edits to the Rep Letters" that were attached. Id. ¶ 27.2 Trujillo's edits were 

rejected, but each Form 5500 was submitted with his signature. Id. ¶¶ 27-28. 

Trujillo alleges that "Defendants gave [him] the impression that they would make 

the full and necessary corrections to the breaches in order to obtain [his] signature 

on the Rep Letters for the Form 5500 filings." Id. ¶ 28. Trujillo was terminated 

less than a week after each Form 5500 was filed. Id. ¶¶ 27-28. 

B. Proceedings Below 

In December 2015, Trujillo filed a pro se complaint alleging that he was 

terminated in retaliation for giving information to defendants regarding various 

ERISA violations during the course of the two plan audits described above, in 

violation of ERISA section 510, 29 U.S.C. § 1140. See Compl. ¶¶ 5, 16-28, 33. 

2 "Rep Letters" usually refers to the management representation letters that 

accompany the Form 5500 filing and confirm representations given to the 

independent auditor during the audit. 

6
 
In March 2016, the district court dismissed Trujillo's complaint for failure to
 

state a claim under ERISA section 510. Order, at 1-5. The district court held that 

Trujillo did "not allege that he testified (or was about to testify) in any 'inquiry or 

proceeding' or gave information in an 'inquiry or proceeding,'" as required by 

section 510. Id. at 5. The court found the outcome controlled by this Court's 

decision in King v. Marriott Int'l, Inc., 337 F.3d 421 (4th Cir. 2003), which held 

that ERISA section 510 does not provide a cause of action for employees who 

make unsolicited internal complaints to management concerning potential ERISA 

violations. Order, at 3-5. The district court construed Trujillo's complaint to allege 

only that he "provided information about ERISA violations to a number of 

individuals, who [then] initiated an 'internal inquiry'" not that he gave any 

information in an inquiry. See id. at 5. Accordingly, the court concluded that 

Trujillo only made unsolicited internal complaints and that King precluded 

Trujillo's cause of action.3 

SUMMARY OF ARGUMENT 

The district court improperly ignored the pro se plaintiff's allegations that 

defendants discharged him in retaliation for providing information about 

defendants' long-standing ERISA violations during two independent plan audits 

3 Trujillo also asserted a state law defamation claim. Order, at 1-2, 6. Upon 

dismissing the ERISA section 510 claim, the district court declined to exercise 

supplemental jurisdiction over this state law claim and ordered dismissal of the 

entire case. Id. at 6. 

7
 
that were required under ERISA. The plain language of ERISA's anti-retaliation
 

provision, contained in section 510, protects employees like Trujillo who provide 

information during the annual audit of an ERISA plan. Section 510 protects 

employees who provide information about ERISA violations in "any inquiry," and 

dictionary definitions and court decisions support reading "any inquiry" to include 

audits, such as the plan audits required by ERISA. This reading of section 510 not 

only protects ERISA plans by encouraging employees to identify and raise 

concerns during the plan's audit, but it also preserves the integrity of the audit, a 

statutory requirement necessary for the proper reporting and monitoring of ERISA 

plans. This reading also comports with ERISA's protective purposes and its 

emphasis on accurate plan reporting; absent such protection, employees like 

Trujillo cannot fulfill ERISA's mandate to provide accurate reporting about ERISA 

plans without risking their livelihoods. Based on the plain language and the 

purpose of section 510, plaintiff stated a claim that he was unlawfully terminated 

because he gave information in the course of independent plan audits required by 

ERISA. 

ARGUMENT 

ERISA Section 510 Protects Employees Who Give Information in an ERISA 

Plan Audit 

"ERISA is a comprehensive statute designed to promote the interests of 

employees and their beneficiaries in employee benefit plans." Shaw v. Delta Air 

8
 
Lines, Inc., 463 U.S. 85, 90 (1983). The statute's "closely integrated regulatory
 

system . . . included various safeguards to preclude abuse and 'to completely secure
 

the rights and expectations brought into being by this landmark reform
 

legislation.'" Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137 (1990)
 

(quoting S. Rep. No. 93-127, p. 36 (1973)). "[P]rominent among the[ ] safeguards"
 

included by Congress is ERISA section 510, id. at 137, the statute's anti-retaliation
 

provision, which reads, in relevant part:
 

It shall be unlawful for any person to discharge, fine, suspend, expel, 

discipline, or discriminate against any person because he has given 

information or has testified or is about to testify in any inquiry or 

proceeding relating to [ERISA]. 

29 U.S.C. § 1140 (emphasis added). 

This Court analyzed ERISA's anti-retaliation provision on one prior 

occasion in King v. Marriott. The employee in King alleged "that she was 

discharged for complaining about and for refusing to violate" ERISA when she 

objected to various proposed asset transfers involving Marriott's ERISA-covered 

medical plan. 337 F.3d at 423. The King Court considered whether ERISA 

section 510 provides a cause of action for an employee such as King who is 

terminated for making unsolicited "internal" complaints to management concerning 

potential ERISA violations. Id. at 426-28. 

In order to decide the issue, the Court examined the scope of the phrase 

"inquiry or proceeding" contained in section 510's anti-retaliation provision. Id. 

9
 
The Court first found that the term "proceeding" means "legal or administrative"
 

proceedings. Id. at 427-28. In support, the Court referenced its prior interpretation 

of the word "proceeding" in the Fair Labor Standards Act (FLSA), as well as the 

comparatively broader "equivalent anti-retaliation provisions in" other federal 

statutes, such as Title VII of the Civil Rights Act of 1964. Id. at 427 (citation 

omitted). The Court then held that the more expansive phrase "inquiry or 

proceeding" in ERISA section 510 encompassed "the legal or administrative, or at 

least something more formal than written or oral complaints made to a supervisor." 

Id. (emphasis added). 

Applying this definition, the Court held that King's claim could not proceed 

under section 510. Id. at 427-28. There were no allegations about a proceeding: 

"Nowhere in the complaint does there appear any allegation that King had testified 

[or was about to testify] in any proceeding (legal, administrative, or otherwise), . . . 

[n]or is there any allegation that she had given information in such a proceeding." 

Id. There was also nothing "more formal than written or oral complaints made to a 

supervisor," because King only alleged she had made "internal complaints [to] 

some of her co-workers, her supervisor, and some of Marriott's attorneys." Id. at 

428. King's complaints therefore "d[id] not bring her within the ambit of section 

510." Id. 

10
 
The King decision left unanswered what qualifies as "something more 

formal" than internal complaints to management – yet short of legal or 

administrative proceedings – for the purpose of establishing an "inquiry." This 

case presents an opportunity for this Court to decide that open question. As 

discussed below, Trujillo's allegations that he provided information concerning 

possible ERISA violations during an ERISA-required independent plan audit fall 

within the protective scope of section 510. 

A. The District Court Misconstrued Trujillo's Pro Se Complaint 

Dismissal of a complaint "is proper only if the plaintiff has failed 'to present 

factual allegations that state a claim to relief that is plausible on its face.'" Jehovah 

v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (quoting Jackson v. Lightsey, 775 

F.3d 170, 178 (4th Cir. 2004)). Thus, in reviewing a dismissal for failure to state a 

claim, this Court "must assume all well-pled facts to be true and draw all 

reasonable inferences in favor of the plaintiff." SD3, LLC v. Black & Decker 

(U.S.) Inc., 801 F.3d 412, 418 (4th Cir. 2015) (citation omitted). Where, as here, 

plaintiff proceeds pro se, any "document filed pro se 'is to be liberally construed' . . 

. and a 'pro se complaint, however inartfully pleaded, must be held to less stringent 

standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 

89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Noble v. 

Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). 

11
 
The district court failed to follow these principles, resulting in a misreading
 

of Trujillo's claims and erroneous dismissal of his case. Rather than liberally 

construe Trujillo's pro se allegations, the court focused on Trujillo's single 

allegation that he gave information that "led to an internal inquiry." Order, at 5. 

According to the district court, that lone allegation established that Trujillo merely 

triggered an inquiry, like the plaintiff in King, and did not give information or 

participate "in any inquiry" under section 510. Id. The court's reading of that 

allegation in isolation from the rest of the allegations is contrary to this Court's 

instruction that "[d]etermining whether the complaint satisfies th[e pleading] 

standard necessarily entails a case-by-case assessment of the complaint as a 

whole." Teachers' Ret. Sys. of La. v. Hunter, 477 F.3d 162, 174 (4th Cir. 2007) 

(emphasis added); see Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (same); 

cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007) 

("inquiry is whether all of the facts alleged, taken collectively, give rise [to a 

claim], not whether any individual allegation, scrutinized in isolation, meets that 

standard"). 

Consideration of the whole complaint belies the district court's narrow 

reading of Trujillo's claims. In particular, the court ignored Trujillo's allegations 

that he had participated and provided information in two formal plan audits by an 

outside, independent auditor. See, supra, at 2-6. For example, Trujillo alleges 

12
 
that he gave information during the course of the Dominion Plan audit that 

revealed improprieties with employee contributions to that 401(k) plan, and that he 

gave Vanguard the necessary information to determine that participants were not 

being properly vested in the Landmark Plan. Compl. ¶¶ 18, 22, 24. With respect 

to both Plans' audits, Trujillo provided information to the auditors, to defendants, 

and to outside counsel, and participated in strategy meetings with them, in order to 

keep them "updated on the status of these two issues" with the respective Plans. 

Id. ¶¶ 21, 22. Trujillo ultimately signed each Form 5500 submitted with the audits, 

though the attached Rep Letters did not include his edits detailing the errors 

concerning the Plans; shortly thereafter, Trujillo was terminated. Id. ¶¶ 21, 22, 27­

28. 

The court acknowledged that Trujillo met section 510's requirement to "give 

information." Order, at 2. In its factual recitation, the court acknowledged that 

Trujillo "g[ave] information" by: "submitt[ing] weekly reports about the [Plans'] 

issues to the Vice President of Human Resources, coordinat[ing] strategy meetings 

with the Chief Financial Officer's staff, and discuss[ing] the matter with 

Defendants' ERISA Counsel"; "advis[ing] the Defendants that numerous ERISA 

violations occurred for years"; and "attempting to coordinate a suitable remedy to 

protect the plan, participants, beneficiaries and the fiduciaries." Order, at 2. 

13
 
Construed liberally and read in its entirety, the complaint alleges that 

Trujillo was terminated in retaliation for participating and giving information to 

independent auditors and defendants during the Plans' audits regarding "numerous 

ERISA violations [that] occurred for years and [for purposes of] coordinat[ing] a 

suitable remedy." See Compl. ¶¶ 28, 33-24. Instead, the district court 

perfunctorily dismissed Trujillo's claims without even mentioning the Plans' audits, 

and ignored Trujillo's extensive alleged actions and his provision of information in 

the context of those audits. Order, at 5.4 

The district court's disregard of these allegations was error because, as 

discussed below, audits are a type of "inquiry" under section 510. These 

allegations distinguish the claims here from those in King. The district court is 

correct that Trujillo may have given information that led to an internal inquiry, but 

the complaint also alleges that Trujillo gave the information during the two formal, 

4 Trujillo advanced this reading of the complaint in his briefing below. In his 

response to defendants' dismissal motion, Trujillo stated: "For the Defendants' [sic] 

to claim that all of the formality in the Present Case's audit process and all the 

representatives involved in the Present Case's audit process, which included the 

Defendants' executive team, numerous department directors, two law firms, an 

outside auditing firm and the Defendants' acknowledging the audit's existence on a 

federal filing, does not meet the King threshold of: 'something more formal than 

written or oral complaints made to a supervisor' is hogwash." Pls.' Mem. Resp. in 

Supp. of Denying the Defs.' Mot. to Dismiss Pursuant to Rule 12(b)(6), at 6 (filed 

Feb. 26, 2016); see id. at 5 ("Complaint expressly establishes that the required 

level of formality was met through a formal audit review" of the Plans' errors, with 

"executives, directors and systemic administrators involved in the formal audit 

review [and a] review of the audit's status and remedy options . . . presented to the 

outside auditing firm"). 

14
 
independent audits and the internal inquiries, including information to "coordinate 

a suitable remedy to protect the plan." Order, at 2. Even if Trujillo's allegations 

were "inartfully pleaded," the district court and this Court have a heightened 

obligation to liberally construe a pro se litigant's allegations, see Erickson, 551 

U.S. at 94; the claims here describe a series of events and a context that are distinct 

from King and within the ambit of section 510's protection. 

B. An ERISA Plan Audit is a Type of "Inquiry" under Section 510 

ERISA does not define the term "inquiry," and "[w]hen a statute does not 

define a term, we typically give the phrase its ordinary meaning." FCC v. AT&T, 

Inc., 562 U.S. 397, 403 (2011) (internal quotations omitted). Dictionaries define 

an "inquiry" as "[a] request for information, either procedural or substantive." 

Black's Law Dictionary (10th ed. 2014); The Oxford English Dictionary (2d ed. 

1987) ("action of seeking, esp. (now always) for truth, knowledge, or information 

concerning something; search, research, investigation, examination"); see Sexton 

v. Panel Processing, Inc., 754 F.3d 332, 335 (6th Cir. 2014) (noting dictionary 

definition of "inquiry"); George v. Junior Achievement of Cent. Ind., Inc., 694 

F.3d 812, 815-16 (7th Cir. 2012) (same); Nicolaou v. Horizon Media, Inc., 402 

F.3d 325, 329 (2d Cir. 2005) (same). In King, this Court held that while an 

"inquiry" under section 510 need not be "legal or administrative," it must be 

15
 
"something more formal than written or oral complaints made to a supervisor."
 

337 F.3d at 427. 

Trujillo alleges that he provided information in the course of independent 

plan audits conducted by Wall Einhorn and that its auditor's opinions were attached 

to the Form 5500 filed by the Plans on October 15, 2015. Compl. ¶¶ 21, 27. A 

plan audit is an examination of an ERISA plan's financial records that must be 

conducted before the plan files its Form 5500 annual financial report with the DOL 

and IRS. ERISA sections 103, 104, 29 U.S.C. §§ 1023, 24; see Fink v. National 

Sav. & Trust Co., 772 F.2d 951, 956 (D.C. Cir. 1985) (discussing annual filing 

requirements); see also Selecting An Auditor For Your Employee Benefit Plan, 

U.S. Dep't of Labor Emp. Benefits Sec. Admin., 

http://www.dol.gov/ebsa/publications/selectinganauditor.html (last visited May 5, 

2016) ("Federal law requires employee benefit plans with 100 or more participants 

to have an audit as part of their obligation to file an annual return/report (Form 

5500 series).").5 Preparation of the annual report therefore requires retention of 

"an independent qualified public accountant [IQPA], who shall conduct such an 

examination of the financial statements of the plan, and of other books and records 

of the plan, as the accountant may deem necessary [to determine] whether the 

financial statements and schedules [comply] with generally accepted accounting 

5 The reporting requirements are subject to certain waivers and exceptions not 

applicable here. See, e.g., 29 C.F.R. § 2520.104-46 (small plan waiver). 

16
 
principles." ERISA section 103(a)(3)(A), 29 U.S.C. § 1023(a)(3)(A); see also
 

ERISA section 103(b)(2), (3), 29 U.S.C. § 1023(b)(2), (3) (detailing information 

that "annual report . . . shall include in a financial statement"). The IQPA "shall 

also offer an opinion as to whether" the requisite information "present[s] fairly and 

in all material respects the information contained therein when considered in 

conjunction with the financial statements taken as a whole," and this opinion "shall 

be made a part of the annual report." ERISA section 103(a)(3)(A), 29 U.S.C. § 

1023(a)(3)(A). Once filed, the Secretary of Labor "shall make copies of such 

annual reports available for [public] inspection," ERISA section 104(a)(1), 29 

U.S.C. § 1024(a)(1), and the plan administrator must provide a copy to any 

participant or beneficiary upon written request, ERISA section 104(b)(4), 29 

U.S.C. § 1024(b)(4). This requirement to produce a report with an audit for the 

government is akin to a standing government "inquiry" into the plan, and Trujillo 

also provided information to the government in that "inquiry." 

With its specific and detailed statutory requirements, an ERISA-required 

plan audit has the requisite formality to qualify for section 510 protection under 

King's interpretation of section 510 and the dictionary definitions of "inquiry." 

Moreover, an ERISA plan's statutorily-required plan audit falls within the 

dictionary definition of an "audit," which is defined as an "official examination and 

verification of accounts and records, esp[ecially] of financial accounts." See 

17
 
Webster's Unabridged Dictionary (2d ed. 1987) (emphasis added); see also Black's
 

Law Dictionary (10th ed. 2014) (defining "audit" as "[a] formal examination of an 

individual's or organization's accounting records, financial situation, or compliance 

with some other set of standards") (emphasis added). These dictionary definitions 

of "audit" are consistent with the explicit formal nature of ERISA-required plan 

audits. 

Reading "audits" as a form of "inquiry" within the ambit of section 510 is 

also consistent with Supreme Court and this Court's decisions. Courts commonly 

refer to an "audit" as a type of "inquiry." See New York v. Cathedral Academy, 

434 U.S. 125, 132 (1977) (describing "audit" as one "sort of detailed inquiry"); 

United States v. Head, 641 F.2d 174, 180 (4th Cir. 1981) (using "audit" and 

"inquiries" interchangeably). Both the Supreme Court and the Fourth Circuit treat 

an audit as an example of an inquiry, especially with respect to investigations 

under the tax code. In United States v. Bisceglia, the Supreme Court explained 

that the Internal Revenue Code gives the IRS "a broad mandate to investigate and 

audit 'persons who may be liable for taxes,'" by summoning individuals to testify 

and examining records as may be "'relevant or material to such inquiry.'" 420 U.S. 

141, 145 (1975) (quoting 26 U.S.C. §§ 7601, 7602) (emphasis added); United 

States v. Rosinsky, 547 F.2d 249, 252 (4th Cir. 1977) (same); see United States v. 

Thorson, 633 F.3d 312, 333-34 (4th Cir. 2011) (Gregory, J., dissenting) 

18
 
(referencing the same IRS investigation as both an "official civil inquiry" and
 

"civil audit"); United States v. Browney, 421 F.2d 48, 52 (4th Cir. 1970) (Sobeloff, 

J., concurring) (making no distinction between a "tax audit" and "tax inquiry"). 

The Courts' use of "audit" and "inquiry" as substitutes in the tax context carries 

particular weight in this case, because Form 5500 reports are filed with both the 

DOL and the IRS in order to ensure compliance with ERISA and the tax code, 

respectively. See 29 U.S.C. § 1023; see also 26 U.S.C. §§ 6058, 6059, 29 U.S.C. § 

1365 (describing the information reported to IRS); Tupper v. United States, 134 

F.3d 444, 446 (1st Cir. 1998) (Form 5500 "must be filed annually with the IRS"). 

Just as the courts generally consider an audit to be one kind of inquiry, the term 

"inquiry" in section 510 is best read to encompass plan audits. See George, 694 

F.3d at 815-16 (analyzing whether the phrase at issue could be "substituted for 

'inquiry' in § 510"); Grant Thornton, LLP v. FDIC, 435 F. App'x 188, 207 (4th Cir. 

June 17, 2011) (noting, in support of proposed definition, that "[w]e could easily 

substitute those definitional words . . . and the statute would continue to mean" the 

same thing).6 

6 To be clear, while "inquiry" and "audit" can be substitutes, they are not synonyms 

because the former term is much broader than the latter. For example, the Sixth 

Circuit recognized that "any inquiry" may include a simple question, Sexton, 754 

F.3d at 340, but it is unlikely that a simple question would meet the relatively more 

formal requirements of an audit. 

19
 
This construction of "inquiry" is also consistent with this Court's prior
 

decision in King. As explained earlier, supra at 9-11, the King decision construed 

"proceeding" in section 510 as referring to "administrative or legal proceedings" 

and then construed the phrase "'inquir[ies] or proceeding[s]' referenced in section 

510 [a]s limited to the legal or administrative, or at least to something more formal 

than written or oral complaints made to a supervisor." (emphasis added). 

Defendants argued below that King limited the term "inquiry" to an "audit initiated 

by a government entity," and excluded "internal review[s] of one's [own] 

retirement plan . . . ." See Defs.' Reply Br. in Supp. of Their Mot. to Dismiss 

Pursuant to Rule 12(b)(6), at 2-3 (filed Mar. 3, 2016). Defendants mischaracterize 

Trujillo's claim. Trujillo provided information during independent audits of the 

plans. An audit is more than just an "internal review," it is a formal examination 

by an independent outside auditor (here, Wall Einhorn) that is specifically required 

by ERISA. More importantly, defendants provide no support for their cramped 

reading of King or the term "inquiry" in section 510 – nor could they – because the 

King decision contains no reference to the arbitrary line that defendants wish to 

draw.7 Instead, the King Court intentionally left open the possibility that anything 

7 Likewise, nothing in King suggests that "proceeding" must be governmental or 

external, and that, for example, a company's or a plan's internal administrative 

proceedings would not qualify for section 510 protection. 337 F.3d at 427-28. For 

example, the Supreme Court has called the plan's claim decision-making processes 

20
 
more formal than unsolicited internal complaints to a supervisor could be an 

"inquiry," 337 F.3d at 427, and a broad reading of "any inquiry" to include plan 

audits is more consistent with Congress' use of the statutory phrase "any inquiry" 

in section 510. See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 

1, 9-10 (2011) (FLSA's anti-retaliation provision's inclusion of "any" alongside a 

term "suggests a broad interpretation") (quoting Republic of Iraq v. Beaty, 556 

U.S. 848, 856 (2009) ("Of course the word 'any' . . . has an 'expansive meaning.'") 

(citation omitted)). 

Trujillo participated in the Plans' mandatory audits, supplied information 

during those audits, and signed the required public filings. He raised questions 

within the context of the audits about ERISA violations that led to further internal 

discussions with company management. These actions more than suffice, under 

ERISA section 510, as "giv[ing] information" in "any inquiry," and clear the bar 

set by King for "something more formal than written or oral complaints made to a 

supervisor." 

C. The Remedial Purposes of ERISA Warrant Including Plan Audits 

Within the Scope of Section 510 Inquiries 

Even apart from the plain language, basic principles of statutory construction 

support an interpretation of "any inquiry" that includes plan audits. As a remedial 

"internal administrative proceedings." Conkright v. Frommert, 559 U.S. 506, 517 

(2010). 

21 
statute, ERISA "should be liberally construed in favor of protecting the participants
 

in employee benefits plans," Teamsters Joint Council No. 83 v. Centra, Inc., 947 

F.2d 115, 123 (4th Cir. 1991), and this Court applied this interpretive principle in 

construing section 510. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 

231, 236-37 (4th Cir. 1991). ERISA's anti-retaliation provision is critical to 

achieving the protective purposes of the entire statutory scheme, as the Supreme 

Court has noted that section 510 was "prominent among the[ ] safeguards" that 

were included "to preclude abuse and 'to completely secure the rights and 

expectations'" that ERISA established. See Ingersoll-Rand, 498 U.S. at 137. 

Part of ERISA's protective regime is "seek[ing] to make the benefits 

promised by an employer more secure by mandating certain oversight systems and 

other standard procedures." Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943­

44 (2016). To that end, ERISA imposes "extensive . . . reporting, disclosure, and 

recordkeeping requirements" on ERISA-covered plans. Id. at 944. These 

requirements fulfill "[o]ne of the basic goals of ERISA," which is "the protection 

of interests of pension plan participants through mandatory disclosure of financial 

information." United States v. Nolan, 136 F.3d 265, 271 (2d Cir. 1998) (citing 29 

U.S.C. § 1001(b)); accord United States v. Sarault, 840 F.2d 1479, 1484 (9th Cir. 

1988) ("One of the forces behind the enactment of ERISA was the need to have 

more information available to plan beneficiaries so they can enforce their own 

22
 
rights."). To ensure compliance by ERISA plans with the statute's reporting, 

disclosure, and recordkeeping requirements, Congress chose to rely on annual 

Form 5500 reports and plan audits. See ERISA sections 103, 104, 29 U.S.C. §§ 

1023, 1024. The Form 5500 is so important that Congress made it a crime to 

purposefully fail to file the report, United States v. Blood, 806 F.2d 1218, 1219, 

1222 (4th Cir. 1986) (conviction for failure to file annual financial reports), or to 

make any false statement or knowingly concealing any material facts in such filing, 

United States v. Wiseman, 274 F.3d 1235, 1242-43 (9th Cir. 2001) (criminal 

liability for false Form 5500 statement, and citing similar cases); see ERISA 

sections 501, 519, 29 U.S.C. §§ 1131, 1149. 

Congress's objectives would go unrealized in several important respects if 

employees such as Trujillo could face retaliation for giving information concerning 

potential ERISA violations during the course of these statutorily-mandated plan 

audits. As an initial matter, protecting employees who participate and give 

information about potential ERISA violations in a statutorily-mandated plan audit 

should result in earlier detection and resolution of errors. As a result of 

information provided to Vanguard during the 2015 Landmark audit, for example, 

defendants learned that employees had been improperly vested since 2006, 

resulting in almost a decade of errors. Compl. ¶ 19. ERISA's primary objective of 

protecting participants' promised benefits would be better achieved if, as here, a 

23
 
plan's issues are discovered sooner rather than later through openly giving 

information during a plan audit without fear of termination. In order to protect the 

participants in employee benefits plans as Congress intended, section 510's "any 

inquiry" language should be "liberally construed" to encompass ERISA-required 

plan audits. 

In construing anti-retaliation provisions like ERISA section 510, this Court 

took a similar interpretative approach in defining the scope of Title VII's antiretaliation provision. In Crawford v. Metropolitan Government of Nashville, the 

Supreme Court favored a broad interpretation of Title VII's anti-retaliation 

protections in recognition that anti-retaliation provisions should be construed to 

achieve the "primary objective of avoiding harm to employees," because "fear of 

retaliation is the leading reason why people stay silent instead of voicing their 

concerns." 555 U.S. 271, 277-79 (2009) (internal quotations omitted). This Court, 

following Crawford, overturned circuit precedent that had construed Title VII's 

anti-retaliation provision in a manner that "deter[red] harassment victims from 

speaking up by depriving them of their statutory entitlement to protection from 

retaliation," finding that "[s]uch a lack of protection [from retaliation] is no 

inconsequential matter." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 283 

(4th Cir. 2015) (en banc) (citing Crawford, 555 U.S. at 279). 

24
 
Likewise, employees giving information concerning ERISA violations 

during a plan audit would be forced between a rock and hard place if they are 

unprotected from retaliation. See, e.g., Mitchell v. Robert DeMario Jewelry, Inc., 

361 U.S. 288, 292 (1960) ("For it needs no argument to show that fear of economic 

retaliation might often operate to induce aggrieved employees to quietly accept 

[unlawfulness]."). Employees would be in a particular bind here because of the 

potential criminal liability for filing false reports as well as the likelihood that the 

individual with information about ERISA violations is a fiduciary with a 

heightened obligation to report issues and file accurate reports with respect to his 

employee benefit plan. See Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 

371, 379-81 (4th Cir. 2001) (recognizing fiduciary's affirmative duty to inform 

participants about material issues concerning benefits); see also Nicolaou, 402 F.3d 

at 330-32 (Pooler, J., concurring) (noting the importance of protecting fiduciary 

actions under section 510 because they are obligated to protect the plan); ERISA § 

404, 29 U.S.C. § 1104 (fiduciary duties of loyalty and prudence). Trujillo, as an 

employee-fiduciary who signed the filings, was caught in such a bind. Section 510 

should not be construed to force an employee like Trujillo to choose between 

fulfilling his statutory obligations and losing his job, on the one hand, and keeping 

his job and facing civil and criminal liability, on the other. 

25
 
Moreover, the annual Form 5500 is a critical component of the Department
 

of Labor's oversight over ERISA plans and enforcement of Title I's directives. See 

Targeting And Limited Review, U.S. Dep't of Labor Emp. Benefits Sec. Admin., 

https://www.dol.gov/ebsa/oemanual/cha53.html (last visited May 5, 2016) 

(discussing enforcement program's targeting approach, including through "detailed 

review and analysis of annual reports [and] supporting financial statements"); cf. 

United States v. Eichholz, 395 F. App'x 532, 534 (11th Cir. Aug. 31, 2010) (DOL 

began civil investigation based on Form 5500 filings). In many cases, the 

Secretary learns of ERISA violations from the filing of a Form 5500, because these 

forms and accompanying audits provide a quick means of evaluating an ERISA 

plan's financial condition and transactions during the year. As the Supreme Court 

observed in examining the FLSA's anti-retaliation provision, "[w]hy would 

Congress want to limit the enforcement scheme's effectiveness by inhibiting use 

of" a means of learning about statutory violations? See Kasten, 563 U.S. at 11-12. 

Congress would not, and here it mandated those means – i.e., the annual reports 

and audits. Cf. NLRB v. Scrivener, 405 U.S. 117, 122 (1972) (adopting 

interpretation of NLRA that would "prevent [NLRB's] channels of information 

from being dried up"). Moreover, viewing the annual report like a standing 

"inquiry" by DOL aligns with dictionary definitions of "inquiry," and the signature 

under penalty of perjury (like Trujillo's signature in this case) resembles the type of 

26
 
"testi[mony]" that triggers section 510 protection. See 2015 Form 5500 Annual
 

Report of Employee Benefit Plan, U.S. Dep't of Labor Emp. Benefits Sec. Admin., 

https://www.dol.gov/ebsa/pdf/2015-5500.pdf (last visited May 5, 2016) (plan 

administrator signs under penalty of perjury). ERISA's remedial scheme and its 

protection of participants would be undermined if individuals who participate and 

give information in the preparation of annual Form 5500 reports and audits are not 

protected from retaliation, because the threat of retaliation makes it less likely that 

the Form 5500 will be complete and accurate. See Kasten, 563 U.S. at 11-12 

(FLSA's "antiretaliation provision makes [its] enforcement scheme effective by 

preventing 'fear of economic retaliation'"). 

"It is a 'fundamental canon of statutory construction that the words of a 

statute must be read in their context and with a view to their place in the overall 

statutory scheme.' . . . A court must therefore interpret the statute 'as a 

symmetrical and coherent regulatory scheme,' . . . and 'fit, if possible, all parts into 

an harmonious whole.'" FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 132-33 (2000) (citations omitted). Narrowly construing section 510 to 

exclude information given in an audit undermines the purpose and operation of 

both ERISA's anti-retaliation provision and its formal reporting regime. See 

Crawford, 555 U.S. at 277-78; see also Burlington N. & Santa Fe Ry. Co. v. White, 

548 U.S. 53, 67 (2006) (anti-retaliation provision must be interpreted "to provide 

27
 
broad protection from retaliation" because statute "depends for its enforcement
 

upon the cooperation of employees"). Therefore, section 510's "any inquiry" 

requirement must be read in harmony with ERISA's formal reporting requirements. 

This Court should refuse to endorse an interpretation of section 510 that fails to 

protect employees such as Trujillo who participate and give information during a 

plan audit, because doing so would be inconsistent with ERISA's protective goals, 

such as ensuring the effectiveness of the statute's reporting regime. 

D. Other Circuits' Interpretations of Section 510 Are Consistent 

With Including a Plan Audit Within the Scope of "Any Inquiry" 

While other circuits have not addressed this precise scenario involving 

retaliation for participation in a plan audit, their analyses of King and section 510 

support the Secretary's position. In Nicolaou, the Second Circuit held that an 

employee's participation in a meeting with the company president, initiated by the 

company's attorney, in order to discuss the employee's findings of ERISA 

violations would be an "inquiry" protected under section 510. 402 F.3d at 330. In 

reaching this conclusion, the Nicolaou court considered King and determined that 

there was no conflict between the two decisions, because the meeting in Nicolaou 

would qualify as "something more formal than written or oral complaints made to a 

supervisor" under King. Id. at 330 & n.3 (quoting King, 337 F.3d at 427). Here, 

information was provided as part of statutorily-mandated plan audits, which 

require a specific examination of the plan before reporting to the government. 29 

28
 
U.S.C. §§ 1023-24. There is little doubt that the Second Circuit would find that the
 

plan audit here is a more formal inquiry than a single internal meeting about the 

plan with the company president initiated by the corporate counsel and, therefore, 

that it would qualify as an "inquiry" under King's analysis of section 510. 

Circuits that follow King have also left open the possibility that something 

more formal than internal complaints, like plan audits, can trigger section 510 

protection. The Third Circuit stated that "'inquiry or proceeding' is limited to more 

formal actions" including "[a]t the very least . . . information given in legal and 

administrative proceedings," but otherwise "decline[d] to elaborate on the level of 

formality required for protection under Section 510." Edwards v. A.H. Cornell & 

Son, Inc. 610 F.3d 217, 223 (3d Cir. 2010). The Sixth Circuit interpreted section 

510 consistent with this Court's view in King when it rejected protection for 

unsolicited internal complaints. Sexton, 754 F.3d at 340 (citing King, 337 F.3d at 

427). The Sixth Circuit, however, acknowledged that the phrase "any inquiry" is 

broad enough to permit a range of interpretations, from an official investigation to 

a simple question; this range includes plan audits. See id. at 335. Thus, no circuit 

has adopted an interpretation of section 510 that forecloses Trujillo's claim.8 

8 Other circuits that adopt a reading of "any inquiry" in section 510 broader than 

King to encompass unsolicited complaints would also necessarily include 

providing information given during a plan audit. See, e.g., George, 694 F.3d at 

815. The Secretary agrees that section 510 protects unsolicited internal 

complaints. See, e.g., Sec'y's Am. Br. in George, at 8-29. 

29
 
CONCLUSION
 

Based on the plain language of section 510 and its statutory context and 

purpose, Trujillo's claim that defendants retaliated in response to his provision of 

information during ERISA plan audits clearly falls within the ambit of ERISA 

section 510's protections. For the reasons stated above, the district court's opinion 

should be reversed. 

Respectfully Submitted, 

M. PATRICIA SMITH 

Solicitor of Labor 

G. WILLIAM SCOTT 

Associate Solicitor 

Plan Benefits Security Division 

THOMAS TSO 

Counsel for Appellate and 

Special Litigation 

Plan Benefits Security Division 

s/ Stephen Silverman 

STEPHEN SILVERMAN 

Trial Attorney 

Plan Benefits Security Division 

U.S. Department of Labor 

Room N-4611 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

(202) 693-5623 – Phone 

(202) 693-5610 – Fax 

Attorneys for the Secretary 

30
 
CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a) 

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

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2. This brief complies with the typeface requirements of Fed. R. App. P. 

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been prepared in 14-point Times New Roman font, a proportionally spaced 

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Dated: May 6, 2016 

s/ Stephen Silverman 

STEPHEN SILVERMAN 
CERTIFICATE OF SERVICE 

I hereby certify that on May 6, 2016 the foregoing was served on all parties 

or their counsel of record through the CM /ECF system. 

s/ Stephen Silverman 

STEPHEN SILVEMRAN