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No. 17-10833
 

IN THE UNITED STATES COURT OF APPEALS
 

FOR THE ELEVENTH CIRCUIT
 

EDWARD C. HUGLER, Acting Secretary, U.S. Department of Labor,
 

Plaintiff-Appellant,
 

v. 

ROBERT N. PRESTON, et al., 

Defendants-Appellees. 

On Appeal from the United States District Court 

for the Northern District of Georgia 

SECRETARY OF LABOR’S OPENING BRIEF 

NICHOLAS C. GEALE THOMAS TSO 

Acting Solicitor of Labor Counsel for Appellate 

and Special Litigation 

G. WILLIAM SCOTT STEPHEN SILVERMAN 

Associate Solicitor Senior 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 
U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
 

CERTIFICATE OF INTERESTED PERSONS
 

PURSUANT TO 11th Cir. R. 26.1-1
 

Colon, Isabel, Regional Director, Employee Benefits Security Administration, U.S. 

Department of Labor, Atlanta 

Egemonye, Uche, MSHA Counsel, U.S. Department of Labor, Atlanta 

Flint, David H. 

Flint, Michael D. 

Wall, Jeffrey B., Acting Solicitor General of the United States 

Geale, Nicholas C., Acting Solicitor of Labor 

Keen, Stanley, Regional Solicitor, U.S. Department of Labor, Atlanta 

Hauser, Timothy D., Deputy Assistant Secretary for Program Operations, 

Employee Benefits Security Administration, U.S. Department of Labor 

LaVoie, Andrew J. 

Lewis, Robert, ERISA Counsel, U.S. Department of Labor, Atlanta 

Hugler, Edward C., Acting U.S. Secretary of Labor 

Preston, Robert N. 

Schreeder, Wheeler & Flint, LLP 

Scott, G. William, Associate Solicitor, U.S. Department of Labor 

Silverman, Stephen A., Senior Trial Attorney, U.S. Department of Labor 

TPP Holdings, Inc. d/b/a The Preston Partnership, LLC 

1 of 2 
TPP Holdings, Inc. Employee Stock Ownership Plan 

Tso, Thomas, Counsel for U.S. Department of Labor 

Walker, Amy, Senior Trial Attorney, U.S. Department of Labor, Atlanta 

*No publicly traded company or corporation has an interest in the outcome of this 

matter* 

2 of 2 
STATEMENT REGARDING ORAL ARGUMENT 

The Secretary of Labor (“Secretary”) requests oral argument. This appeal 

concerns whether the time limitation contained in Employee Retirement Income 

Security Act (“ERISA”) section 413(1), 29 U.S.C. § 1113(1), is subject to express 

waiver. This issue has split the lower courts in this Circuit, and the decision in this 

case will determine whether a party may expressly waive the limitations defense 

under section 1113(1) in order to allow the Secretary and private ERISA parties to 

defer litigation in an effort to resolve ERISA violations without judicial 

intervention. The Secretary believes that oral argument will benefit the Court’s 

consideration of this case. 
TABLE OF CONTENTS
 

Page
 

TABLE OF AUTHORITIES .............................................................................. iii
 

STATEMENT OF SUBJECT-MATTER AND APPELLATE
 

JURISDITION ..............................................................................................1
 

STATEMENT OF THE ISSUE............................................................................1
 

STATEMENT OF THE CASE.............................................................................1
 

A.	 The Secretary’s Fiduciary Breach and Prohibited Transaction Claims...1
 

B.	 The Secretary Delayed Filing in Reliance on Defendants’ Express
 

Waivers of Any Timeliness Defense .......................................................4
 

C.	 Defendants Violated Their Agreements When They Moved to Dismiss
 

the Secretary’s Complaint Based on Timeliness Defenses that They
 

Expressly Waived.....................................................................................8
 

D.	 The District Court Dismissed Most of the Secretary’s Claims ...............9
 

E. The Secretary Obtained Interlocutory Review ..................................... 10
 

STANDARD OF REVIEW ............................................................................... 11
 

SUMMARY OF THE ARGUMENT ................................................................ 11
 

ARGUMENT ..................................................................................................... 13
 

I.	 A Federal Statutory Limitation is Waivable Unless a Close Examination
 

of Congressional Intent Clearly Indicates the Limitation is a
 

Jurisdictional Requirement that Bars Waivers...................................... 13
 

A.	 This Court’s Decision in Pugh and Trusted Net Media Set the
 

Analytical Framework: Whether a Federal Time Limit is
 

Waivable Turns On Whether The Limit is Jurisdictional or
 

Non-Jurisdictional ......................................................................... 13
 
 

B. Pugh’s and Trusted Net Media’s Analytical Framework is
 

Confirmed by Supreme Court Precedent ...................................... 18
 

II.	 ERISA’s Six-Year Limitations Period, 29 U.S.C. § 1113(1) is Nonjurisdictional and Subject to Waiver..................................................... 21
 

A.	 ERISA Contains No Clear Statement That the Time Limit in
 

Section 1113(1) is Jurisdictional and Not Waivable..................... 21
 

B.	 Congressional Intent and Policy Underlying ERISAʹs Time Limits
	

Support the Availability of Voluntary Waiver.............................. 23
 

C.	 The Ability to Waive ERISA’s Six-Year Limitations Period is
 

Supported by the Presumption that Statutory Rights Are Waivable
 

and Background Common-Law Principles ................................... 29
 

III.	 The District Court Erred In Holding that ERISA’s Six-Year TimeLimitations Cannot Be Expressly Waived............................................ 31
 

A.	 The District Court’s Analysis Was Inconsistent with Pugh and
 

Trusted Net Media ......................................................................... 32
 

B.	 The District Court Misread the Case Law in Adopting a
 

Categorical Rule That All Statutes of Repose are Not
 

Waivable........................................................................................ 37
 

C.	 Numerous Authorities Conclude That Statutes of Repose are
 

Waivable........................................................................................ 43
 

CERTIFICATE OF COMPLIANCE......................................................................
 

CERTIFICATE OF SERVICE ...............................................................................
 

CONCLUSION.... ............................................................................................. 48
 

ii 
TABLE OF AUTHORITIES
 

Federal Cases: 

Arbaugh v. Y&H Corp.,
 

546 U.S. 500 (2006) .......................................................................... 15, 19, 20, 28
 

Archer v. Nissan Motor Acceptance Corp.,
 

550 F.3d 506 (5th Cir. 2008)........................................................................ 35 n. 7
 

Astoria Fed. Sav. & Loan Ass’n v. Solimino,
 

501 U.S. 104 (1991) .............................................................................................31
 

Avila-Santoyo v. U.S. Atty. Gen.,
 

713 F.3d 1357 (11th Cir. 2013)............................................................... 22, 23, 24
 

Booth v. Carnival Corp.,
 

522 F.3d 1148 (11th Cir. 2008)............................................................................33
 

Brock v. Nellis,
 

809 F.2d 753 (11th Cir. 1987)................................................................ 14 n. 4, 29
 

Brooklyn Sav. Bank v. O’Neil,
 

324 U.S. 697 (1945) .............................................................................................16
 

Bryant v. United States,
 

768 F.3d 1378 (11th Cir. 2014)............................................................................40
 

Burnett v. New York Cent. R.R. Co.,
 

380 U.S. 424 (1965) ...................................................................................... 16, 43
 

C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla.,
 

532 U.S. 411 (2001) .............................................................................................47
 

Chao v. Linder,
 

No. 05 C 3812, 2007 WL 1655254 (N.D. Ill. May 31, 2007)..............................44
 

Cherochak v. Unum Life Ins. Co. of Am.,
 

586 F. Supp. 2d 522 (D.S.C. 2008) ......................................................................44
 

Christie v. Hartley Const., Inc.,
 

766 S.E.2d 283 (N.C. 2014) .......................................................................... 40, 45
 

iii
 
Federal Cases (Continued):
 

Clark v. Barnard,
 

108 U.S. 436 (1883) .............................................................................................46
 

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
 

527 U.S. 666 (1999) .............................................................................................46
 

Credit Suisse Sec. (USA) LLC v. Simmonds,
 

566 U.S. 221 (2012) .............................................................................................38
 

Ctr. for Biological Diversity v. Hamilton,
 

453 F.3d 1331 (11th Cir. 2006)............................................................................11
 

CTS Corp. v. Waldburger., 

134 S. Ct. 2175 (2014).................................................................................. passim 

Davenport Recycling Assocs. v. C.I.R.,
 

220 F.3d 1255 (11th Cir. 2000)............................................................................17
 

Davis v. Humphreys,
 

747 F.3d 497 (7th Cir. 2014)................................................................................31
 

Dolan v. United States,
 

560 U.S. 605 (2010) .............................................................................................20
 

Eberhart v. United States,
 

546 U.S. 12 (2005) ...............................................................................................19
 

ESI Montgomery Cty., Inc. v. Montenay Int’l Corp.,
 

899 F. Supp. 1061 (S.D.N.Y. 1995).....................................................................45
 

F.D.I.C. v. Jones,
 

2014 WL 4699511 (D. Nev. Sept. 19, 2014) .......................................................45
 

Fazio v. Gruttadauria,
 

2008 WL 4175040 (Ohio Ct. App. 2008) ............................................................47
 

Fed. Deposit Ins. Corp. v. Lenk,
 

361 S.W.3d 602 (Tex. 2012) ................................................................................47
 

iv
 
Federal Cases (Continued):
 

Feldman v. C.I.R.,
 

20 F.3d 1128 (11th Cir. 1994)...................................................................... 27 n. 6
 

Fencorp Co. v. Ohio Kentucky Oil Corp.,
 

675 F.3d 933 (6th Cir. 2012)................................................................................41
 

First Interstate Bank of Denver v. Cent. Bank & Trust Co.,
 

937 P.2d 855 (Colo. Ct. App. 1997).....................................................................45
 

Glus v. Brooklyn Eastern Dist. Terminal,
 

359 U.S. 231 (1959) .............................................................................................27
 

Harris v. Bruister,
 

2013 WL 6805155 (S.D. Miss. Dec. 20, 2013)...................................... 35 n. 7, 37
 

Heimeshoff v. Hartford Life & Acc. Ins. Co.,
 

134 S. Ct. 604 (2013)............................................................................................31
 

Henderson v. Shinseki,
 

562 US 428 (2011) ...............................................................................................28
 

Hodgson v. Lodge 851, Int’l Ass’n of Machinists & Aerospace
 

Workers, AFL-CIO,
 

454 F.2d 545 (7th Cir. 1971)................................................................................24
 

Holland v. Florida,
 

560 U.S. 631 (2010) ...................................................................................... 18, 48
 

Howsam v. Dean Witter Reynolds, Inc.,
 

537 U.S. 79 (2002) ...............................................................................................44
 

Hughler v. First Bankers Trust Servs., 

2017 WL 1194692 (S.D.N.Y Mar. 30, 2017)............................................... passim 

In re Bldg. Materials Corp. of Am. Asphalt Roofing,
 

2013 WL 169289 (D.S.C. Jan. 16, 2013).............................................................46
 

In re Butcher,
 

829 F.2d 596 (6th Cir. 1987)................................................................................15
 

v
 
Federal Cases (Continued):
 

In re: Dynegy, Inc. Sec. Litig., 

339 F. Supp. 2d 804 (S.D. Tex. 2004)..................................................................33 

In re Estate of Palmer, 

187 P.3d 758 (Wash. Ct. App. 2008) ...................................................................47 

In re Iron-Oak Supply Corp., 

162 B.R. 301 (Bankr. E.D. Cal. 1993) .................................................................16 

In re: Lehman Bros. Sec. and ERISA Litig., 

2012 WL 6584524 (S.D.N.Y. Dec. 18, 2012)......................................................46 

In re Pugh, 

158 F.3d 530 (11th Cir. 1998)...................................................................... passim 

In re Trusted Net Media Holdings, LLC, 

550 F.3d 1035 (11th Cir. 2008).................................................................... passim 

J.E. Liss & Co. v. Levin, 

201 F.3d 848 (7th Cir. 2000)................................................................................44 

John R. Sand & Gravel Co. v. United States, 

552 U.S. 130 (2008) .............................................................................................18 

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 

501 U.S. 350 (1991) .............................................................................................33 

Lewis v. Taylor, 

375 P.3d 1205 (Colo. 2016) .................................................................................45 

Lozano v. Montoya-Alvarez, 

134 S. Ct. 1224 (2014)..........................................................................................31 

McElroy by McElroy v. Firestone Tire & Rubber Co., 

894 F.2d 1504 (11th Cir. 1990)............................................................................46 

Mercantile Nat’l Bank at Dallas v. Langdeau, 

371 U.S. 555 (1963) .............................................................................................47 

vi 
Federal Cases (Continued): 

Midstate Horticultural Co. v. Pennsylvania R.R. Co., 

320 U.S. 356 (1943) ..................................................................................... passim 

Moore v. Liberty Nat’l Ins. Co.,
 

108 F. Supp. 2d 1266 (N.D. Ala. 2000) ........................................................ 41, 42
 

Moore v. Liberty Nat. Life Ins. Co.,
 

267 F.3d 1209 (11th Cir. 2001)............................................................... 34, 42, 46
 

Moore v. Morgan,
 

922 F.2d 1553 (11th Cir. 1991)............................................................................47
 

Musacchio v. United States, 

136 S. Ct. 709 (2016).................................................................................... passim 

Nat’l Credit Union Admin. Bd. V. Barclays Capital Inc.,
 

785 F.3d 387 (10th Cir. 2015)..............................................................................41
 

New York v. Hill,
 

528 U.S. 110 (2000) ...................................................................................... 29, 30
 

Perez v. Commodity Control Corp,
 

No. 1:16-cv-20245-UU (S.D. Fl. May 4, 2016) (Dkt. 26) ........................... 43, 44
 

Perez v. PBI Bank, Inc.,
 

69 F. Supp. 3d 906 (N.D. Ind. 2014)............................................................. 22, 23
 

Pinigis v. Regions Bank,
 

942 So.2d 841 (Ala. 2006) ...................................................................................47
 

Pratcher v. Methodist Healthcare Memphis Hosps.,
 

407 S.W.3d 727 (Tenn. 2013) ..............................................................................47
 

Radford v. Gen. Dynamics Corp.,
 

151 F.3d 396 (5th Cir. 1998)........................................................................ 35 n. 7
 

Reed Elsevier v. Muchnick,
 

559 U.S. 154 (2010) ...................................................................................... 20, 23
 

vii
 
Federal Cases (Continued):
 

Rogers v. Nacchio,
 

241 F. App’x. 602 (11th Cir. July 12, 2007)................................................. 32, 33
 

Roskam Baking Co., Inc. v. Lanham Machinery Co., Inc.,
 

288 F.3d 895 (6th Cir. 2002)................................................................................41
 

Santiago-Lugo v. Warden,
 

785 F.3d 467 (11th Cir. 2015)..............................................................................22
 

Sebelius v. Auburn Reg’l Med. Ctr.,
 

133 S. Ct. 817 (2013)............................................................................................19
 

Shambaugh v. Scofield,
 

132 F.2d 345 (5th Cir. 1942)........................................................................ 27 n. 6
 

Sharon Steel Corp. v. Workmen’s Comp. Appeal Bd.,
 

670 A.2d 1194 (Pa. 1996).............................................................................. 41, 43
 

Skrtich v. Thornton,
 

280 F.3d 1295 (11th Cir. 2002)............................................................................47
 

Solis v. Seibert,
 

2011 WL 398023 (M.D. Fl. Feb. 4, 2011) ...........................................................44
 

Stafford v. Muscogee Cty. Bd. of Educ.,
 

688 F.2d 1383 (11th Cir. 1982)............................................................................38
 

Stange v. United States,
 

282 U.S. 270 (1931) ..................................................................................... 27 n. 6
 

Stone & Webster Eng’g Corp. v. Duquesne Light Co.,
 

79 F. Supp. 2d 1 (D. Mass. 2000).................................................................. 41, 42
 

Sturniolo v. Sheaffer, Eaton, Inc.,
 

15 F.3d 1023 (11th Cir. 1994)..............................................................................38
 

Tibble v. Edison Int’l,
 

135 S. Ct. 1823 (2015).................................................................................. 14 n. 4
 

viii
 
Federal Cases (Continued):
 

Townes v. Rusty Ellis Builder Inc.,
 

98 So. 3d 1046 (Miss. 2012) ................................................................................47
 

United States v. Buford,
 

28 U.S. 12 (1830) .................................................................................................31
 

United States v. DiFalco,
 

837 F.3d 1207 (11th Cir. 2016)..................................................................... 17, 19
 

United States v. Ford Motor Co.,
 

497 F.3d 1331 (Fed. Cir. 2007).................................................................... 27 n. 6
 

United States v. Kwai Fun Wong, 

135 S. Ct. 1625 (2015).................................................................................. passim 

United States v. Mezzanatto,
 

513 U.S. 196 (1995) .............................................................................................29
 

United States v. Najjar,
 

283 F.3d 1306 (11th Cir. 2002)............................................................................46
 

United States v. Wilson,
 

699 F.3d 789 (4th Cir. 2012)................................................................................22
 

Wilson Land Corp. v. Smith Barney Inc.,
 

1999 WL 1939270 (E.D.N.C. May 17, 1999)......................................................44
 

Zipes v. Trans World Airlines, Inc.,
 

455 U.S. 385 (1982) .............................................................................................21
 

Federal Statutes:
 

Title 18, Crimes and Criminal Procedure
 

18 U.S.C. § 664........................................................................................................25
 

18 U.S.C. § 3282.............................................................................................. 38 n. 9
 

ix
 
Statutes (Continued):
 

Title 21, Food and Drugs Procedure:
 

21 U.S.C. § 851........................................................................................................17
 

Title 28, Judiciary and Judicial Procedure: 

28 U.S.C. § 1292(b) .............................................................................................1, 10
 

28 U.S.C. § 1331........................................................................................................1
 

Employee Retirement Income Security Act of 1974 (Title I),
 

29 U.S.C. § 1001 et seq.:
 

Section 2(b), 29 U.S.C. §1001(b) ............................................................................27
 

Sections 401-413, 29 U.S.C. §§ 1101-1113 ............................................................23
 

Section 404, 29 U.S.C. § 1104...................................................................................3
 

Section 406(a), 29 U.S.C. § 1106(a)..........................................................................3
 

Section 406(b), 29 U.S.C. § 1106(b) .........................................................................3
 

Section 408, 29 U.S.C. § 1108(a) ............................................................................25
 

Section 409, 29 U.S.C. § 1109.................................................................................23
 

Section 413, 29 U.S.C. § 1113......................................................................... passim
 

Section 413(1), 29 U.S.C. § 1113(1) ............................................................... passim
 

Section 501, 29 U.S.C. § 1131.................................................................................25
 

Section 502, 29 U.S.C. § 1132...................................................................... 3, 23, 25
 

Section 502(a)(2), 29 U.S.C. § 1132(a)(2) ................................................................1
 

Section 502(a)(5), 29 U.S.C. § 1132(a)(5) ................................................................1
 

x
 
Statutes (Continued): 

Section 502(e), 29 U.S.C. § 1132(e)........................................................................23
 

Section 502(e)(2), 29 U.S.C. § 1132(e)(2) ................................................................1
 

Section 502(l)(2), 29 U.S.C. § 1132(l)(2)................................................................25
 

Section 502(l)(3), 29 U.S.C. § 1132(l)(3)................................................................25
 

Section 504, 29 U.S.C. § 1134.............................................................................3, 25
 

Federal Regulations: 

29 CFR § 2570.35(a)(14).........................................................................................25
 

Miscellaneous: 

Fed. R. Civ. P. 12(b)(16)..........................................................................................11
 

Fed. R. Crim. P. 33...................................................................................................19
 

H.R. Rep. No. 93-553,
 

reprinted in, 1974 U.S.C.C.A.N 4639 ..................................................................26
 

H.R. Rep. No. 93-553,
 

reprinted in, 1974 U.S.C.C.A.N 4655 ..................................................................26
 

S. Rep. No. 93-127
 

reprinted in,1974 U.S.C.C.A.N 4838 ...................................................................26
 

S. Rep. No. 93-127
 

reprinted in,1974 U.S.C.C.A.N 4871 ...................................................................26
 

EBSA Enforcement Manual, Chapter 34 “Voluntary Compliance Guidelines,”
 

§ 9a, available at http://www.dol.gov/ebsa/oemanual/cha34.html (last visited
 

March 9, 2017)................................................................................................. 25 n. 5
 

CERTIFICATE OF SERVICE ...................................................................................
 

xi 
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) .........................................
 

xii
 
STATEMENT OF SUBJECT-MATTER AND APPELLATE
 

JURISDICTION
 

The Secretary brings this action under 29 U.S.C. §§ 1132(a)(2) and 

1132(a)(5). The United States District Court for the Northern District of Georgia 

had federal question jurisdiction under 28 U.S.C. § 1331, and exclusive subject 

matter jurisdiction under 29 U.S.C. § 1132(e)(2). 

The Court of Appeals for the Eleventh Circuit granted the Secretary’s 

petition for permission to file an interlocutory appeal from the district court’s 

October 27, 2015 and May 2, 2016 orders, and has jurisdiction pursuant to 28 

U.S.C. § 1292(b). A notice of appeal was entered on February 24, 2017. 

STATEMENT OF THE ISSUE 

Is the limitation of actions contained in ERISA section 413(1), 29 U.S.C. § 

1113(1) subject to express waiver? 

STATEMENT OF THE CASE 

A. The Secretary’s Fiduciary Breach and Prohibited Transaction Claims 

Defendant Robert Preston was the owner and Chief Executive Officer of 

Defendant TPP Holdings, Inc. (“TPP”) (collectively “Defendants”). Dkt. 1 ¶ 9.1 

In 2004, TPP established an ERISA-covered pension plan, the TPP Employee 

Stock Ownership Plan (“Plan” or “ESOP”), to provide retirement income for TPP 

1 Unless otherwise noted, the factual statements in this brief are based on the 

allegations in Secretary’s Complaint. 
employees. Id. ¶¶ 8, 10, 13-19. The Plan primarily invested in TPP stock. Id.
 

The Plan purchased all of its TPP stock from Preston while he simultaneously 

served as the Plan trustee and, therefore, a fiduciary to the Plan under ERISA. Id. 

¶¶ 7, 8, 12, 13. He was “responsible for administering and managing the assets of 

the Plan.” Id. ¶ 11. TPP was the designated plan administrator and also a Plan 

fiduciary. Id. ¶ 7. 

Preston sold TPP stock to the Plan on three occasions in 2004, 2006, and 

2008. Id. ¶ 13. Over the course of those three stock transactions, the Plan paid 

Preston a total of $7 million for TPP stock, $6 million of which was paid in the 

2006 and 2008 transactions at issue in this case. Id. ¶¶ 15, 17, 19. Preston, as both 

Plan trustee and the seller, acted simultaneously on both sides of the stock 

purchase transactions, representing adverse and conflicting interests (the Plan’s 

interests as a buyer and his personal interests as a seller). See id. ¶ 25. Acting with 

this conflict of interest, Defendants “imprudently accepted and/or relied” on flawed 

valuation reports that inflated the value of Preston’s TPP stock in both transactions. 

Id. Preston knew the reports were flawed and contained several errors, including: 

overly optimistic projections of TPP’s growth, unrealistically low estimates of 

TPP’s future expenses, and a failure to consider the “slowing economic conditions 

in the Company’s industry and related industries.” Id. ¶¶ 25-26. By knowingly 

relying on flawed and inflated valuations, Preston acted in his own interests when 

2
 
he caused the Plan to overpay him for his stock, thereby engaging in self-dealing
 

with plan assets, which is prohibited by ERISA. Id. ¶¶ 27, 40. 

Less than two years after the Plan’s final stock purchase, the stock was 

worthless. Id. ¶ 28. “Defendant Robert N. Preston sent a memo to the ESOP 

participants on December 17, 2009, notifying them that the ESOP was being 

terminated because the most recent valuation reflected that the Company had no 

value.” Id. The Plan was officially terminated on December 18, 2009, and the 

employees lost their entire retirement savings in the Plan. Id. 

The Secretary of Labor is responsible for enforcing ERISA to protect the 

interests of plan participants and beneficiaries in their retirement benefits and to 

recover losses suffered by plans caused by fiduciary breaches. 29 U.S.C. §§ 1132, 

1134. On December 30, 2014, the Secretary sued Defendants to recover the Plan’s 

losses caused by Defendants’ violations of ERISA. The Complaint alleges that 

Defendants violated their ERISA fiduciary duties of loyalty, prudence, and fidelity 

to the terms of the Plan, 29 U.S.C. § 1104, entered into transactions prohibited by 

ERISA, 29 U.S.C. § 1106(a), and engaged in prohibited self-dealing, 29 U.S.C. § 

1106(b), when they caused the Plan to purchase TPP stock from Preston for greater 

than fair market value in 2006 and 2008, resulting in a substantial loss to the 

employees’ retirement funds. Dkt. 1 ¶¶ 25-27, 40-41. 

The Secretary also sued Defendants for several other fiduciary breaches and 

3
 
prohibited transactions. These violations arose from Defendants’ disloyal and
 

imprudent actions related to their erroneous distributions of employer stock to 

participants and their co-mingling of the Plan’s assets with corporate funds. Id. ¶¶ 

30-41. The Secretary alleges that Defendants breached their fiduciary duties by 

failing to pay distributions required by the Plan to over 330 participants in the Plan. 

Id. ¶¶ 30-37, 40-41. For the 2007 plan year, Defendants allocated 40,299 fewer 

shares of TPP stock to participants’ accounts than the Plan required. Id. ¶¶ 30-31. 

During 2007 and 2008 plan years, Defendants failed to distribute shares to certain 

participants who had terminated their employment even though the Plan had 

promised that “participants are 100% vested in their ESOP account balances at 

termination.” Id. ¶¶ 32-37. The Secretary also asserts that Defendants committed 

prohibited self-dealing in violation of ERISA by permitting a bank account 

containing Plan assets to be used as a corporate checking account from April to 

June 2009. Id. ¶¶ 38-41. Among other things, the Secretary seeks to restore to the 

Plan all losses caused by Defendants’ violations, and to permanently enjoin 

Defendants from serving as ERISA fiduciaries. Id. at 13. 

B.	 The Secretary Delayed Filing Suit in Reliance on Defendants’ Express 

Waivers of Any Timeliness Defense. 

Prior to filing suit, the Secretary conducted an investigation of Defendants’ 

fiduciary conduct in administering the Plan pursuant to ERISA. Cf. Dkts. 10-1 to 

10-4. During that investigation, Defendants entered into four separate agreements 

4
 
with the Secretary in which they explicitly waived their rights to raise affirmative 

defenses based on the timeliness of the suit. That included any defense based on 

ERISA’s six-year limitations period contained in 29 U.S.C. § 1113(1), which states 

that fiduciary breach claims must be brought within six years of the breach. Dkts. 

10-1 to 10-4.2 The purpose of these agreements was to allow the parties to “meet 

and exchange additional information with respect to claims under Title I of ERISA 

that may be asserted by the Secretary, and if appropriate, to negotiate with respect 

to such claims.” See, e.g., Dkt. 10-1 at 1. The parties intended the agreements to 

achieve this purpose through two provisions. First, the Secretary agreed not to 

“institute legal proceedings against” Defendants before a specified future date. 

2 29 U.S.C. § 1113 states: 

No action may be commenced under this subchapter with respect to a 

fiduciary’s breach of any responsibility, duty, or obligation under this 

part, or with respect to a violation of this part, after the earlier of-­

(1) six years after (A) the date of the last action which 

constituted a part of the breach or violation, or (B) in the case of 

an omission the latest date on which the fiduciary could have 

cured the breach or violation, or 

(2) three years after the earliest date on which the plaintiff had 

actual knowledge of the breach or violation; 

except that in the case of fraud or concealment, such action may be 

commenced not later than six years after the date of discovery of such 

breach or violation. 

(emphasis added). 

5
 
See, e.g., id. ¶ 1. Second, Defendants agreed that the “running of the statute of
 

limitations contained in ERISA § 413, 29 U.S.C. § 1113 . . . shall be tolled” for a 

specified period of time “with respect to any action brought by the Secretary under 

Title I of ERISA” concerning the Plan, and that they would not “assert in any 

manner the defense of statute of limitations, the doctrine of waiver, laches, or 

estoppel, or any other matter constituting an avoidance of the Secretary’s claims 

that is based on the time within which the Secretary commenced such action.” 

See, e.g., id. ¶ 2. 

The parties signed the first of these agreements in August 2011, well before 

the six-year time limitation had run on any claims filed in this case. Dkt. 10-1. In 

these agreements, Defendants expressly agreed to waive any timeliness defenses to 

any of the Secretary’s claims that could have been timely filed within ERISA’s 

time-limitations on July 6, 2011. Dkts. 10-1 to 10-4. Under ERISA’s six-year 

limitations period, a party could have timely sued on July 6, 2011, for any breach 

that occurred on or after July 6, 2005 (six years prior to suit). See 29 U.S.C. § 

1113(1). Accordingly, by waiving the six-year limitations period for any claim 

that could have been timely filed on July 6, 2011, Defendants waived their six-year 

limitations defense for any breach that occurred on or after July 6, 2005. Compare 

id. with Dkts. 10-1 to 10-4. On the other hand, they expressly preserved their 

defenses under the six-year statute for any breach that occurred before July 6, 

6
 
2005, because those breaches did not occur within the six-year period before July
 

6, 2011. E.g., Dkt. 10-1 ¶ 3. The first agreement was extended three times, 

preserving Defendants’ July 6, 2011 waiver date in each extension. See Dkts. 10-2 

to 10-4. The last agreement was signed in May 2014, with an expiration date of 

December 31, 2014. Dkt. 10-4. 

The Secretary relied on Defendants’ express waivers of timeliness defenses 

and complied with his agreement to defer filing suit to give the parties an 

opportunity to exchange information and settle this case without judicial 

intervention. See Dkts. 10-1 to 10-4. The parties did not reach a settlement, so the 

Secretary filed suit on December 30, 2014. See Dkt. 1. On its face, the Secretary’s 

complaint only alleges breaches that occurred after July 6, 2005.3 Defendants 

expressly waived any timeliness defense to those claims under the six-year statute 

in the agreements. E.g., Dkts. 10-1 to 10-4. 

Agreements to expressly waive timeliness defenses are not unusual in light 

of the enormity of the Secretary’s enforcement responsibilities and potential 

defendants’ interests in not being sued. The Secretary is responsible for enforcing 

ERISA to protect the participants and beneficiaries of over 680,000 retirement 

plans and approximately 2.3 million health and welfare plans holding over $8.7 

3 The Secretary did not sue for fiduciary breaches and prohibited transactions 

arising from the Plan’s 2004 purchase of stock from Preston. 

7
 
trillion in assets. Dkt. 26-3 ¶ 2. Potential defendants voluntarily waive their 

timeliness defenses during ERISA investigations conducted by the Secretary in 

order to allow the parties the opportunity to resolve the matter without a lawsuit. 

As of August 2016, the Secretary had signed such agreements with potential 

defendants willing to waive their timeliness defenses in approximately 235 

pending matters nationwide. Id. ¶ 3. 

C.	 Defendants Violated Their Agreements When They Moved to Dismiss 

the Secretary’s Complaint Based on Timeliness Defenses that They 

Expressly Waived. 

Defendants waived their right to assert the six-year time limit as an 

affirmative defense to any of the Secretary’s claims for fiduciary breaches and 

prohibited transactions that occurred after July 6, 2005. Supra at 4-7. Despite their 

prior agreements and express waivers, Defendants moved to dismiss all of the 

Secretary’s claims that were based on violations that occurred before December 

30, 2008, that is, more than six years before the suit was filed on December 30, 

2014. Dkt. 5. Defendants argued that their waivers and agreements were invalid 

and unenforceable because ERISA’s six-year limitations period “establishes an 

unyielding statute of repose” that is not subject to express waiver by agreement of 

the parties. Dkt. 5-1 & Dkt. 14 at 6-17. Accordingly, Defendants asserted that all 

claims for breaches that occurred prior to December 30, 2008, were untimely, 

including the Secretary’s claim that Defendants breached their duties by buying 

8
 
TPP stock from Preston for greater than fair market value in 2006 and 2008 and the 

Secretary’s claim that Defendants failed to make required distributions to Plan 

participants during the 2007 and 2008 plan years. Compare Dkt. 17 (Dismissal 

Order) with Dkt. 18 (Secretary’s Response to Court Regarding Remaining Claims). 

D. The District Court Dismissed Most of the Secretary’s Claims. 

The district court agreed with Defendants that the six-year period in 29 

U.S.C. § 1113(1) is a statute of repose and categorically held “that a statute of 

repose is not subject to waiver – even express waiver.” Dkt. 17 at 3-4. The district 

court relied on the distinction between statutes of repose and limitations described 

in the Supreme Court’s decision in CTS v. Waldburger, 134 S. Ct. 2175 (2014): 

In the ordinary course, a statute of limitations creates “a time limit for 

suing in a civil case, based on the date when the claim accrued.” . . . 

A statute of repose, on the other hand, puts an outer limit on the right 

to bring a civil action. That limit is measured not from the date on 

which the claim accrues but instead from the date of the last culpable 

act or omission of the defendant. 

Dkt. 17 at 3 (quoting CTS, 134 S. Ct. at 2182). 

The district court accordingly dismissed all of the Secretary’s claims that 

arose more than six years before the suit was filed. Id. at 4-7. Certain claims 

concerning Plan distributions as well as claims that Plan assets were commingled 

with corporate assets survived the dismissal because they concerned breaches that 

occurred after December 30, 2008. Dkt. 18. 

The Secretary moved for reconsideration of the dismissal order, arguing that 

9
 
the district court’s categorical approach to “statutes of repose” was inconsistent
 

with the Supreme Court’s and this Court’s precedents. Dkt. 20-1. In particular, 

the Secretary argued that the court failed to analyze ERISA’s six-year limitations 

period as required by In re Pugh, 158 F.3d 530, 533-34 (11th Cir. 1998), and 

United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015), which set forth the 

correct analysis for determining whether a federal time limit can be waived. The 

district court denied the Secretary’s reconsideration motion, but acknowledged that 

the dismissal involved a controlling question of law as to which there is substantial 

ground for difference of opinion. Dkt. 25 at 6. 

E. The Secretary Obtained Interlocutory Review. 

The Secretary moved for an interlocutory appeal and the district court 

certified its order pursuant to 28 U.S.C. § 1292(b). See Dkt. 29. The Secretary 

then timely petitioned this Court for interlocutory review. Case No. 16-90019-B 

(filed Dec. 2, 2016). On February 24, 2017, this Court granted the Secretary 

permission “to appeal from the district court’s October 27, 2015 order dismissing 

some of the [Secretary’s] lawsuit as untimely under 29 U.S.C. § 1113(1), and from 

the district court’s May 2, 2016 order denying reconsideration of the earlier order.” 

Id. (filed Feb. 24, 2017). 

10
 
STANDARD OF REVIEW
 

The district court granted Defendants’ motion to dismiss pursuant to Federal 

Rule of Civil Procedure 12(b)(6), concluding that Defendants’ express waivers of 

timeliness defenses were ineffective and the Secretary’s claims concerning events 

that occurred prior to December 30, 2008, were time-barred under 29 U.S.C. § 

1113(1). Dkt. 17 at 7. This Court “review[s] the district court’s interpretation and 

application of statutes of limitations de novo.” Ctr. for Biological Diversity v. 

Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006). 

SUMMARY OF THE ARGUMENT 

The Supreme Court has repeatedly held that that a federal statutory 

limitations period does not deprive the federal courts of subject-matter jurisdiction 

and is a waivable affirmative defense, unless Congress clearly expressed an intent 

to the contrary. To “clear [the] high bar” to establish that a federal time limit is 

jurisdictional, Kwai Fun Wong, 135 S. Ct. at 1632, a clear congressional intent 

must be demonstrated by the statute’s plain text, its context, and its legislative 

history. 

This Court in Pugh adopted and applied this well-established principle as 

dispositive for determining whether a federal statutory limitations period can be 

waived. 158 F.3d at 530, 533-34. Pugh expressly rejected the argument that a 

limitations period cannot be waived if it is construed to be a “statute of repose” and 

11
 
may only be waived if it is construed to be a “statute of limitations.” Therefore,
 

this Court has rejected the very foundation of the district court’s decision and 

Defendants’ argument in this case. Instead, this Court in Pugh applied the settled 

principle: Federal statutory limitation periods are non-jurisdictional and waivable 

absent a clearly expressed congressional intent to the contrary. 

Applying this principle, this Court must hold that ERISA’s six-year 

limitations period, 29 U.S.C. § 1113(1), is an ordinary federal time limit that is 

both non-jurisdictional and waivable. Neither Defendants nor the district court 

identify a clear congressional intent to withhold jurisdiction from the federal courts 

to redress fiduciary breaches that occurred more than six years before a suit is 

filed. In fact, an examination of the plain language of the statute, its context, the 

statutory structure, the legislative history, and the regulatory scheme all support the 

conclusion that ERISA’s six-year limitations period is non-jurisdictional and 

subject to express waiver. 

Finally, even if the district court correctly decided that ERISA’s six-year 

limitations period is a statute of repose and that the distinction between statutes of 

repose and statutes of limitations is relevant to the question presented, Defendants’ 

waivers remain valid and enforceable. Contrary to the district court’s categorical 

conclusion that statutes of repose are not subject to express waiver, this Court’s 

precedent and persuasive federal and state authorities all support the conclusion 

12
 
that “statutes of repose” are subject to express waiver.
 

ARGUMENT 

I.	 A Federal Statutory Limitations Period is Waivable Unless a Close 

Examination of Congressional Intent Clearly Indicates the Limitation is 

a Jurisdictional Requirement that Bars Waivers. 

A.	 This Court’s Decisions in Pugh and Trusted Net Media Set the 

Analytical Framework: Whether a Federal Time Limit is Waivable 

Turns On Whether The Limit is Jurisdictional or Non-Jurisdictional. 

ERISA’s six-year limitations period states in pertinent part: “No action may 

be commenced under this subchapter with respect to a fiduciary’s breach of any 

responsibility, duty, or obligation under this part, or with respect to a violation of 

this part. . . (1) six years after . . . the date of the last action which constituted a 

part of the breach or violation, or . . . in the case of an omission, the latest date on 

which the fiduciary could have cured the breach or violation[.]” 29 U.S.C. § 

1113(1). Whether this provision is subject to express waiver is dictated by this 

Court’s decision in Pugh and its en banc endorsement of Pugh’s analysis in In re 

Trusted Net Media Holdings, LLC, 550 F.3d 1035, 1042-44 (11th Cir. 2008). 

In Pugh, the Court considered whether parties can waive the limitations 

period in two sections of the federal Bankruptcy Code. 158 F.3d at 530. The 

Court held that the answer to that question did not turn on whether the statutes 

could be characterized as a “statutes of repose or statutes of limitation” or whether 

they could be construed as “‘substantive’ (also called ‘jurisdictional’) or 

13
 
‘procedural’ statutes of limitations.” Id. at 533-34 (citations omitted). The Court 

explicitly rejected as irrelevant both of these analytical approaches. Id.4 

Instead, this Court in Pugh decided that the dispositive question is whether 

the statutory provisions operated to divest a “court of subject matter jurisdiction 

once they have elapsed, or do these periods constitute statutes of limitations that 

can be waived.” 158 F.3d at 530. This Court held that “[i]t is more conducive to 

reasoned analysis” to consider “whether these code provisions constitute grants of 

subject matter jurisdiction that leave a court without any authority to hear certain 

proceedings – i.e., that extinguish the right of action itself by divesting a court of 

its subject matter jurisdiction over certain proceedings – after the limitations period 

has elapsed, or whether they are true statutes of limitations that restrict the power 

of a court to grant certain remedies in a proceeding over which it has subject matter 

jurisdiction.” Id. at 533-34 (citation omitted) (emphasis added). In short, to 

determine whether a federal time limitation can be waived, a court must decide 

whether Congress intended the limitation to deprive the court of subject matter 

jurisdiction; if not, a limitations period is waivable. Id. This Court, sitting en 

4 Neither the Supreme Court nor the Eleventh Circuit have ever described 29 

U.S.C. § 1113(1) as a statute of repose. See Tibble v. Edison Int’l, 135 S. Ct. 

1823, 1825 (2015) (calling section 1113(1) “the 6-year limitations period”); Brock 

v. Nellis, 809 F.2d 753, 754 (11th Cir. 1987) (calling section 1113 a “statute of 

limitations”). Whether section 1113(1) is technically a “statute of repose” is 

irrelevant to this case under Pugh’s binding analysis. 

14
 
banc, subsequently endorsed the Pugh analysis and required a “‘clearly state[d]’” 

congressional intent to deprive a court of subject matter jurisdiction. Trusted Net 

Media, 550 F.3d at 1042-43 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515­

16 (2006)). 

Determining whether Congress clearly intended a statutory limitations 

period to be jurisdictional (and not waivable) or non-jurisdictional (and waivable) 

requires a close analysis of the provision. Pugh, 158 F.3d at 535-36. This Court 

rejected “relying wholly on th[e] semantic analogy” that the provisions at issue are 

“linguistically similar to the typical statutes of limitations noted by the [Supreme] 

Court.” Id. at 534. The Court considered such an approach to be an example of 

the “categorical approach” that “[t]he Supreme Court has rightly rejected.” Id. 

Indeed, Pugh concluded that the most-cited decision finding the bankruptcy code 

provisions jurisdictional was “unpersuasive” because it was “devoid of analysis” of 

congressional intent. Id. (discussing In re Butcher, 829 F.2d 596 (6th Cir. 1987)). 

Other rulings also “offer[ed] little analysis to support their position” that the 

bankruptcy code provisions at issue were jurisdictional, and were therefore “no 

more convincing.” See id. at 536-37. 

Pugh thus rejected any approach that categorizes a limitations period as 

“jurisdictional” and non-waivable without identifying a specific legislative intent. 

It instead requires a more searching examination of “the plain language of [the] 

15
 
provisions, the decisions of other courts, the legislative history of the provisions,
 

and the statutory scheme.” 158 F.3d. at 538; id. at 534 (same). Accordingly, Pugh 

favorably cited In re Iron-Oak Supply Corp., 162 B.R. 301, 307 (Bankr. E.D. Cal. 

1993), which held that a bankruptcy time limit is waivable because the “legislative 

scheme” did not “unequivocal[ly] and unambiguous[ly]” deem it jurisdictional. 

Pugh, 158 F.3d at 536. Applying the foregoing principles, Pugh determined that, 

“[i]n this case, the legislative history and the statutory scheme confirm the 

conclusion that [the bankruptcy code provisions] are waivable statutes of 

limitations.” Id. at 537. 

Pugh also relied on Supreme Court decisions, such as Midstate Horticultural 

Co. v. Pennsylvania R.R. Co., 320 U.S. 356 (1943), in support of its analytical 

approach. 158 F.3d at 534, 537. In Midstate Horticultural, the Supreme Court 

closely analyzed the statutory language, structure, and legislative history of the 

Interstate Commerce Act before concluding that the Act’s time limitation barred 

waivers or tolling. 320 U.S. at 364-67; see Brooklyn Sav. Bank v. O’Neil, 324 

U.S. 697, 704-05 (1945) (Midstate Horticultural requires courts to determine if 

waiver of a right “affecting the public interest . . . contravenes the statutory policy” 

by examining “specific Congressional intent.”); see also Burnett v. New York 

Cent. R. Co., 380 U.S. 424, 426 (1965) (“The basic question to be answered in 

determining whether, under a given set of facts, a statute of limitations is to be 

16
 
tolled, is one ‘of legislative intent whether the right shall be enforceable . . . after
 

the prescribed time.’”) (quoting Midstate Horticultural, 320 U.S. at 360). 

This Court en banc in Trusted Net Media reaffirmed Pugh and used its 

framework to find another bankruptcy time limit non-jurisdictional. 550 F.3d at 

1042-44. In Trusted Net Media, the Court stated that a long line of Supreme Court 

authorities reinforce this Court’s precedent holding that federal time limits are 

deemed to be “waivable statutes of limitation rather than restrictions on the [ ] 

courts’ subject matter jurisdiction” unless Congress “‘clearly state[d ]’” an intent to 

render a time limit jurisdictional. Id. (citations omitted). 

Pugh’s framework is not limited to the Bankruptcy Code. Pugh itself cited 

cases involving the Sherman Antitrust Act and the Interstate Commerce Act in 

support of its analytical approach. 158 F.3d at 537. This Court has also cited Pugh 

in deciding non-bankruptcy time limits. See, e.g., Davenport Recycling Assocs. v. 

C.I.R., 220 F.3d 1255, 1259-1260 (11th Cir. 2000) (agreeing that limitations period 

in the tax code is a statute of limitations that does not implicate a court’s 

jurisdiction); cf. United States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir. 2016) 

(considering the validity of a waiver of the right to appeal a criminal sentence 

under 21 U.S.C. § 851, and stating “[t]he first question before us, then, boils down 

to whether § 851 is in fact a jurisdictional requirement”). Accordingly, Pugh’s 

analysis also applies to 29 U.S.C. § 1113(1). 

17
 
B.	 Pugh’s and Trusted Net Media’s Analytical Framework is Confirmed 

by Supreme Court Precedent 

Under Pugh and Trusted Net Media, the question of whether a federal timelimitation is waivable turns on whether the time limitation is jurisdictional or nonjurisdictional, and not whether the limitation is a “statute of repose” or not. 

Supreme Court precedent compels the conclusion that, ordinarily, federal time 

limitations, like 29 U.S.C. § 1113(1), are non-jurisdictional and thus waivable. 

The Supreme Court has “‘repeatedly stated that the enactment of time limitation 

periods . . . without further elaboration, produces defenses that are 

nonjurisdictional and thus subject to waiver and forfeiture.’” Holland v. Florida, 

560 U.S. 631, 645 (2010) (citation omitted); see John R. Sand & Gravel Co. v. 

United States, 552 U.S. 130, 133 (2008) (non-jurisdictional federal time limits are 

generally “subject to rules of forfeiture and waiver”). 

The only exception to this general rule that federal statutory limitations 

periods are non-jurisdictional and waivable is the presence of “clear indication” of 

legislative intent to the contrary. See Musacchio v. United States, 136 S. Ct. 709, 

716-17 (2016) (citation omitted). The Supreme Court recently reaffirmed that a 

party “must clear a high bar to establish that a statute of limitations is 

jurisdictional. In recent years, we have repeated held that procedural rules, 

including time bars, cabin a court’s power only if Congress has ‘clearly state[d]’ as 

much.” Kwai Fun Wong, 135 S. Ct. at 1632 (citations omitted) (emphasis added). 

18
 
“‘[A]bsent such a clear statement, . . . ‘courts should treat the restriction as 

nonjurisdictional.’” Id. (citations omitted). Thus, “traditional tools of statutory 

construction must plainly show that Congress imbued a procedural bar with 

jurisdictional consequences . . . [a]nd in applying that clear statement rule, we have 

made plain that most time bars are nonjurisdictional.” Id. (citing Sebelius v. 

Auburn Regional Medical Ctr., 133 S. Ct. 817, 825 (2013) (noting the rarity of 

jurisdictional time limits)). Accordingly, time limits are waivable unless Congress 

clearly states the limit is jurisdictional. See Eberhart v. United States, 546 U.S. 12, 

13, 16 (2005) (even though Fed. R. Crim. P. 33’s timeliness requirement is “rigid” 

and mandatory, it does not speak to district court’s authority over subject matter of 

case and is not immune from forfeiture); DiFalco, 837 F.3d at 1218 (“In short, . . . 

‘where Congress does not say there is a jurisdictional bar, there is none.’”) (citation 

omitted). 

In order to determine whether Congress “clearly state[d] that a threshold 

limitation on a statute’s scope shall count as jurisdictional,” courts must ask if the 

statutory provision unequivocally “speak[s] in jurisdictional terms or refer[s] in 

any way to the jurisdiction of the district courts.” Arbaugh, 546 U.S. at 515-16; 

Trusted Net Media, 550 F.3d at 1042 (“courts should look to whether Congress has 

included jurisdictional language in the statute in question [by asking] ‘[i]f the 

Legislature clearly states that a threshold limitation on a statute’s scope shall count 

19
 
as jurisdictional’”) (quoting Arbaugh, 546 U.S. at 515-16) (emphasis in original).
 

Discerning such congressional intent requires an examination of the “text, context, 

and relevant historical treatment” of the statutory time limit’s “legal character,” 

Reed Elsevier v. Muchnick, 559 U.S. 154, 166 (2010) (citation omitted), and “what 

they reveal about the purposes [the limitation] is designed to serve,” Dolan v. 

United States, 560 U.S. 605, 610 (2010). 

Recent Supreme Court decisions re-affirm this Court’s conclusion in Pugh 

that “[t]he Supreme Court repeatedly has confirmed the important role that 

legislative intent plays in determining whether a limitations period can be waived 

or tolled.” 158 F.3d at 537 (citations omitted). In Kwai Fun Wong, the Supreme 

Court concluded that “[n]either the text nor the context nor the legislative history 

indicates (much less does so plainly) that Congress meant to enact something other 

than a standard time bar” when it held that the limitations period in the Federal 

Tort Claims Act is non-jurisdictional. 135 S. Ct. at 1632 (Congress “provided no 

clear statement indicating that [it] [was one of] the rare statute of limitations that 

can deprive a court of jurisdiction.”). The Court also used the same framework last 

year in Musacchio to hold that the general statute of limitations for federal crimes 

is non-jurisdictional and waivable, because Congress did not make the “necessary 

clear statement” to the contrary; “[r]ather, the statutory text, context, and history 

establish that [the provision] imposes a non-jurisdictional defense.” 136 S. Ct. at 

20
 
717.
 

II.	 ERISA’s Six-Year Limitations Period, 29 U.S.C. § 1113(1), is Nonjurisdictional and Subject to Waiver. 

Nothing in the text, context, or legislative history of 29 U.S.C. § 1113(1), or 

in the controlling case law supports any argument that this limitations period is 

jurisdictional or that Defendants’ knowing and voluntary waivers of their 

timeliness defenses are unenforceable. Congress did not clearly state an intent that 

section 1113(1) is jurisdictional or bars waivers. In fact, a close examination of the 

statute indicates that Congress expected the time limit in section 1113(1) to be an 

ordinary time limitation that is non-jurisdictional and thus subject to waiver. 

Defendants cannot “clear [the] high bar” to establish that section 1113(1) is 

jurisdictional, see Kwai Fun Wong, 135 S. Ct. at 1632, and their waivers of their 

timeliness defenses are therefore valid and enforceable. 

A.	 ERISA Contains No Clear Statement That the Time Limit in Section 

1113(1) is Jurisdictional and Not Waivable. 

Nothing in the text of 29 U.S.C. § 1113(1) “clearly states” that Congress 

intended it to be a jurisdictional limitation or expresses a legislative intent to bar 

voluntary waiver. Section 1113, entitled “Limitations of actions,” sets the time 

limits for ERISA causes of actions but, like the time limits in Pugh, “‘does not 

speak in jurisdictional terms or refer in any way to the jurisdiction of the . . . 

courts.’” Pugh, 158 F.3d at 538 (quoting Zipes v. Trans World Airlines, Inc., 455 

21
 
U.S. 385, 394 (1982)); see Santiago-Lugo v. Warden, 785 F.3d 467, 473 (11th Cir.
 

2015). This Court in Santiago-Lugo contrasted a non-jurisdictional time limit with 

a jurisdictional time bar in the same statute by noting that the latter provision 

clearly stated that “[n]o court, justice, or judge shall have jurisdiction” after a 

period of time. 785 F.3d at 473. Section 1113 does not reference a court’s 

jurisdiction to hear the Secretary’s claims; it limits plaintiffs’ actions but not the 

court’s authority. Perez v. PBI Bank, Inc., 69 F. Supp. 3d 906, 910 (N.D. Ind. 

2014) (agreeing with the Secretary that “Congress has not spoken so clearly that 

the limitations provision in 29 U.S.C. § 1113 must be deemed jurisdictional”); see 

United States v. Wilson, 699 F.3d 789, 795–96 (4th Cir. 2012) (treating as nonjurisdictional a provision that speaks to plaintiff’s, and not the court’s powers). 

Furthermore, the statutory text of section 1113 contains a “fraud or concealment” 

exception to the six-year limitation, which is Congress’ express statement that it 

did not establish the six-year time limit as an absolute bar against any form of 

extension. See 29 U.S.C. § 1113; Avila-Santoyo v. U.S. Atty. Gen., 713 F.3d 

1357, 1362 (11th Cir. 2013) (en banc) (noting that regulatory exceptions support a 

limit’s non-jurisdictional nature). 

Like the statute in Pugh, the statutory language here “confirms the 

conclusion that” section 1113(1) is not an extraordinary jurisdictional bar but is 

instead an ordinary “waivable statute[] of limitations.” Pugh, 158 F.3d at 538. 

22
 
B.	 Congressional Intent and Policy Underlying ERISA’s Time Limits 

Support the Availability of Voluntary Waiver. 

All available indications of congressional intent point to a finding that 29 

U.S.C. § 1113(1) is not jurisdictional and therefore subject to waiver. First, the 

location of section 1113(1) supports the conclusion that it is not jurisdictional. 

Congress put section 1113 in Part 4 of the statute (titled “Fiduciary 

Responsibility”), which sets forth the substantive fiduciary standards applicable to 

plan fiduciaries, see generally 29 U.S.C. §§ 1101-1113, and makes them personally 

liable for any fiduciary breach or violation, 29 U.S.C. § 1109. In contrast, 

enforcement of these fiduciary standards through civil actions brought under 

ERISA section 502, 29 U.S.C. § 1132, is covered in a different part of ERISA 

(“Part 5 – Administration and Enforcement”). Indeed, ERISA section 502(e), 29 

U.S.C. § 1132(e), which is found in Part 5, is specifically entitled “Jurisdiction” 

and defines the state and federal courts’ subject-matter jurisdiction over ERISA 

causes of actions. The location of section 1113(1) in a part of ERISA unrelated to 

jurisdiction counsels against imputing any Congressional intent that it is a 

jurisdictional limit and is hardly a clear statement that it is jurisdictional. See Reed 

Elsevier, 559 U.S. at 164-65; Avila-Santoyo, 713 F.3d at 1361. Thus, “[t]he entire 

structure of ERISA supports the conclusion that [section 1113(1)] is not a 

jurisdictional bar, but rather operates as a defense to an action.” PBI Bank, 69 F. 

Supp. 3d at 910. 

23
 
Second, consideration of how the time limit fits within the overall regulatory
 

scheme supports a finding that Congress did not intend section 1113(1) to be 

jurisdictional. See Avila-Santoyo, 713 F.3d at 1362. Waivers of limitations 

defenses promote pre-litigation settlements and ensure that the Secretary will 

pursue in litigation only well-supported claims that cannot be resolved prior to 

litigation. Waivers of timeliness defenses are a mutually beneficial aspect of many 

enforcement regimes. Such agreements give parties under investigation more time 

to persuade the inquiring agency that no violation occurred without the public 

exposure caused by litigation. See, e.g., Hodgson v. Lodge 851, Int’l Ass’n of 

Machinists & Aerospace Workers, AFL-CIO, 454 F.2d 545, 551-52 (7th Cir. 1971) 

(without waivers of Labor-Management Recording and Disclosure Act’s statute of 

limitations, the Department of Labor would have to prosecute marginal cases 

which could easily be settled without suit; nearly half of cases over seven years 

had been settled without suit). Defendants here entered into four agreements to 

waive their defenses for just that purpose. See, e.g., Dkt. 10-1 at 1 (“the parties to 

this Agreement desire to enter into an agreement tolling the statute of limitations [] 

in order to meet and exchange information and, if appropriate, to conduct 

negotiations with respect to the [Secretary’s claims].”).5 ERISA’s statutory 

5 As a general matter, the Enforcement Manual of the Employee Benefits Security 

Administration (EBSA) of the Department of Labor expressly endorses “tolling 

24
 
scheme reflects a desire to encourage pre-litigation investigation and settlements. 

See 29 U.S.C. § 1134 (authorizing comprehensive investigations by the Secretary); 

29 U.S.C. §§ 1132(l)(2), (3) (contemplating “settlement agreement[s] with the 

Secretary” and an administrative application process to waive or reduce civil 

penalties associated with violations). The statutory and regulatory regime also 

encourages resolution of prohibited transactions (such as those asserted in this 

case) through administrative procedures, including an exemption process, without 

resorting to litigation. See 29 U.S.C. § 1108(a); 29 CFR § 2570.35(a)(14) 

(permitting retroactive exemptions). Granting the Secretary the power to 

investigate, negotiate, and provide administrative procedures to resolve ERISA 

disputes suggests Congress intended the Secretary (representing the public interest) 

and parties to explore solutions to violations without litigation and did not intend to 

subject claims of ERISA violations to absolute time deadlines for filing suit. 

Third, the potential for parallel civil and criminal investigations and 

proceedings under ERISA favors the conclusion that section 1113(1) is nonjurisdictional. See 29 U.S.C. §§ 1131 (criminal penalties), 1132 (civil 

enforcement); 18 U.S.C. § 664 (theft or embezzlement from employee benefit 

agreements” as useful tools to facilitate settlements and voluntary compliance with 

ERISA. EBSA Enforcement Manual, Chapter 34 “Voluntary Compliance 

Guidelines,” § 9a, available at http://www.dol.gov/ebsa/oemanual/cha34.html (last 

visited March 9, 2017). 

25
 
plans). Although civil cases can be filed and then stayed when parallel criminal
 

proceedings are brought, a civil complaint need not be filed in many cases if the 

criminal case resolves all outstanding issues or the Department of Labor stays a 

civil investigation. Holding that section 1113(1) is jurisdictional or otherwise not 

subject to express waiver would disrupt this process because it may force the filing 

of a civil suit prior to the running of the limitations period, rather than allowing for 

waiver while the criminal process reaches its conclusion. 

Fourth, the legislative history, although limited, does not support the 

conclusion that Congress intended section 1113 to be jurisdictional. Congress 

stated that “[t]he intent [of ERISA] . . . is to provide the full range of legal and 

equitable remedies available in both state and federal courts and to remove 

jurisdictional and procedural obstacles which in the past appear to have hampered 

effective enforcement of fiduciary responsibilities under state law or recovery of 

benefits due to participants.” H.R. Rep. No. 93-553 (1973), reprinted in 1974 

U.S.C.C.A.N. 4639, 4655; S. Rep. No. 93-127 (1974), reprinted in 1974 

U.S.C.C.A.N. 4838, 4871 (emphasis added); see 29 U.S.C. §1001(b) (recognizing 

as ERISA’s policy to provide “ready access to the Federal courts” for participants 

and beneficiaries). One cannot plausibly infer that Congress removed 

jurisdictional obstacles only to tacitly substitute a jurisdictional obstacle in the 

form of a non-waivable six-year time limit. Pursuant to the legislative intent 

26
 
analysis required by Circuit and Supreme Court precedent, section 1113(1) is nonjurisdictional and subject to waiver. 

In addition, equity favors enforcement of waivers in agreements. It would 

be inequitable to permit Defendants to act inconsistently with their signed promises 

in the waiver and tolling agreements.6 The Secretary acted consistently with those 

documents, foregoing an earlier filing in reliance on Defendants’ promise not to 

raise any timeliness defense. If Defendants did not intend to abide by their 

representations and waivers, they should have notified the Secretary before they 

placed their signatures on multiple agreements. In Glus v. Brooklyn Eastern Dist. 

Terminal, 359 U.S. 231, 235 (1959), the Supreme Court affirmed that it would be 

inequitable to permit a defendant to defeat a claim based upon the statute of 

limitations where he gave assurances to the plaintiff that he would not insist on the 

6 The Secretary and Defendants entered into an agreement in which the Secretary 

agreed to forego suing for a period of time in exchange for Defendants’ express 

waiver of their timeliness defenses. But Defendant’s voluntary waiver alone 

(without an enforceable agreement or contract) would have been sufficient to 

overcome their timeliness defenses. E.g., Stange v. United States, 282 U.S. 270, 

276 (1931) (“the provision requiring the Commissioner’s signature was inserted 

for purely administrative purposes and not to convert [a voluntary waiver] into a 

contract”); Feldman v. C.I.R., 20 F.3d 1128, 1132 (11th Cir. 1994); United States 

v. Ford Motor Co., 497 F.3d 1331, 1336-37 (Fed. Cir. 2007) (government need not 

sign or accept letter waiving statute of limitations defense); Shambaugh v. 

Scofield, 132 F.2d 345, 347 (5th Cir. 1942) (rejecting defendants’ argument that 

second and third tolling agreements were ineffective because unsigned by the 

Commissioner of Internal Revenue). 

27
 
statute of limitations and the plaintiff relied on those assurances. The same is true 

here. 

Accepting Defendants’ argument could also have larger, unintended and 

unjust consequences. In Henderson v. Shinseki, the Supreme Court cautioned 

against the use of “jurisdictional” labels for federal time limits, because “the 

consequences that attach to the jurisdictional label may be so drastic” that it would 

“alter[ ] the normal operation of our adversarial system.” 562 U.S. 428, 434 

(2011); cf. Arbaugh, 546 U.S. at 511 (expressing concern about “less than 

meticulous . . . unrefined . . . ‘drive-by jurisdictional rulings’ that should be 

accorded ‘no precedential effect’”). One concern that the Supreme Court has 

raised is that “[j]urisdictional rules may also result in the waste of judicial 

resources and may unfairly prejudice litigants.” Henderson, 562 U.S. at 434. If 

the courts invalidated all express waivers during the Secretary’s ERISA 

investigations, hundreds of millions of dollars of presently tolled claims would be 

considered untimely and thus unenforceable. More importantly, plan participants 

would immediately lose their rights to pension and health benefits based on their 

fiduciaries’ false promises in waiver agreements to attempt to resolve their claims 

without costly litigation. Such a rule would unnecessarily burden the court system 

with future lawsuits that could otherwise be resolved amicably, and with 

unnecessary court-supervised discovery that could take place during the 

28
 
Secretary’s pre-litigation investigation pursuant to a waiver agreement. Neither 

ERISA nor the federal jurisprudence on statutes of limitations requires or 

countenances such a result. See Brock v. Nellis, 809 F.2d 753, 754 (11th Cir. 

1987) (observing that “Congress evidently did not desire that those who violate 

[their fiduciary duty] could easily find refuge in a time bar”). 

C.	 The Ability to Waive ERISA’s Six-Year Limitations Period is 

Supported by the Presumption that Statutory Rights Are Waivable and 

Background Common-Law Principles. 

The conclusion that 29 U.S.C. § 1113(1) is waivable is further buttressed by 

two other overarching principles that govern federal statutory rights. First, 

statutory rights are presumptively waivable by agreement. New York v. Hill, 528 

U.S. 110, 114 (2000). The Supreme Court has “‘in the context of a broad array of 

constitutional and statutory provisions,’ articulated a general rule that presumes the 

availability of waiver . . . absent some affirmative indication of Congress’ intent to 

preclude waiver,” or that a waiver would contravene public policy. Id. at 114, 116; 

United States v. Mezzanatto, 513 U.S. 196, 201 (1995) (“absent some affirmative 

indication of Congress’ intent to preclude waiver, we have presumed that statutory 

provisions are subject to waiver by voluntary agreement of the parties.”). As 

detailed above, allowing waiver of section 1113(1) by agreement furthers – rather 

than detracts from – the policies of ERISA. See supra at 23-29. Statutes of 

limitations such as section 1113(1) protect defendants against stale or unduly 

29
 
delayed claims – concerns that are not present when defendants voluntarily waive
 

these protections. See Hugler v. First Bankers Trust Servs., 2017 WL 1194692, at 

*8-*9 (S.D.N.Y. Mar. 30, 2017) (noting that a waiver of rights does not raise any 

policy concerns with respect to section 1113(1)). It “cannot be argued that” any 

supposed societal benefit derived from the six year limitations period set forth in 

section 1113(1) is “so central to” ERISA “that it is part of the unalterable ‘statutory 

policy.’” Hill, 528 U.S. at 117 (citation omitted). The time limitation in section 

1113(1) is a personal benefit, and its waiver does not contravene ERISA policy. 

See id. at 116-117 (“[i]t is not true that any private right that also benefits society 

cannot be waived.”). As the district court in First Bankers Trust Services noted in 

its assessment of section 1113(1), “‘[t]olling agreements allow parties to extend 

statutory periods while they evaluate their claims and defenses in the hope that 

they can resolve their dispute without litigation. In cases such as this one, such 

agreements can serve the interests of the parties, the public, and the courts.’” 2017 

WL 1194692, at *9 (citation omitted); see also id. at *8 (“[Defendant’s] interest in 

being free from liability after a legislatively-determined period of time is not 

implicated when, as here, it has contractually agreed to waive that right vis-à-vis a 

particular litigant.”). 

Second, the Supreme Court has stated that “[a]s applied to federal statutes of 

limitations, the inquiry begins with the understanding that Congress ‘legislate[s] 

30
 
against a background of common-law adjudicatory principles.’” Lozano v. 

Montoya-Alvarez, 134 S. Ct. 1224, 1232 (2014) (quoting Astoria Fed. Sav. & 

Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)). Waivers of timeliness 

defenses or agreements to toll are long-recognized in the common law. See, e.g., 

United States v. Buford, 28 U.S. 12, 29 (1830) (“the statute of limitations will bar a 

recovery of this claim, unless . . . by some promise or agreement between Morrison 

and Buford, the statute has been waived”); Heimeshoff v. Hartford Life & Acc. 

Ins. Co., 134 S. Ct. 604, 611 (2013) (noting the general rule that parties “are 

permitted to contract around a default statute of limitations”); see also Davis v. 

Humphreys, 747 F.3d 497, 499 (7th Cir. 2014) (“The Supreme Court treats tolling 

as one of those background understandings in American law that applies unless a 

statute modifies or excludes the doctrine.”). Congress drafted ERISA’s time 

limits, including section 1113(1), in light of the long-standing ability of parties to 

waive timeliness defenses by agreement, and there is no reason to believe that 

Congress intended to abrogate those rights. 

III.	 The District Court Erred In Holding that ERISA’s Six-Year TimeLimitation Cannot Be Expressly Waived. 

The district court erred by following an analytical framework that has been 

rejected by this Court. In applying the incorrect analysis, the court erroneously 

adopted a categorical rule that statutes of repose cannot be expressly waived. Even 

assuming section 1113(1) is a statute of repose, no such categorical rule exists. 

31
 
A.	 The District Court’s Analysis Was Inconsistent with Pugh and 

Trusted Net Media. 

The district court failed to follow Pugh and Trusted Net Media. Instead of 

engaging in the requisite jurisdictional analysis, the court mistakenly focused on 

whether section 1113(1) is a statute of limitations or a statute of repose. Dkt. 17 at 

3-7. After finding that section 1113(1) is a “statute of repose,” the court 

unconditionally concluded that “a statute of repose is not subject to waiver – even 

express waiver,” and held that Defendants’ waiver of their limitations defenses was 

not enforceable. Id. But this Court in Pugh squarely rejected that approach. 158 

F.3d at 533-34. The district court’s approach resorted to “semantic[s]” that are 

“unpersuasive,” “devoid of analysis,” and an example of the “categorical 

approach” that “[t]he Supreme Court has rightly rejected.” Id. By failing to 

engage in the jurisdictional analysis required by this Court, the district court erred 

in dismissing the Secretary’s claims. 

The district court attempted to justify its departure from Pugh by suggesting 

that Pugh had been called into question by Rogers v. Nacchio, 241 F. App’x. 602, 

605 (11th Cir. July 12, 2007) (unpublished). Dkt. 25 at 3. According to the district 

court, Rogers “stat[ed]” in “decidedly categorical” fashion “that a statute of repose 

cannot be tolled.” Id. Not so. Rogers is an unpublished and non-precedential 

decision regarding the limitations period for asserting a private action under the 

Securities Exchange Act. 241 F. App’x. 602. In stating that “tolling principles do 

32
 
not apply to the five-year statute of repose” in the Securities Exchange Act, Rogers
 

simply applied binding Supreme Court precedent which had held that the almostidentically worded three-year period of repose that previously applied to such 

actions was not subject to equitable tolling. Id. at 605 (citing Lampf, Pleva, 

Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991)). Equitable 

tolling refers to the ability of “courts [to] equitably toll statutes of limitations when 

an inequitable event prevented a plaintiff’s timely action.” Booth v. Carnival 

Corp., 522 F.3d 1148, 1150 (11th Cir. 2008) (citation omitted). Rogers says 

nothing about express waivers of a limitations period such as the waivers in this 

case. Id. Lampf, the Supreme Court decision upon which Rogers relied, also did 

not reach any categorical conclusions. Rather, Lampf analyzed the text and 

structure of the specific time limit, as well as commentary regarding congressional 

intent behind it, to conclude that the limitations period was not subject to equitable 

tolling doctrines; it did not address express waiver. 501 U.S. at 363 (citations 

omitted); see In re: Dynegy, Inc. Sec. Litig., 339 F. Supp. 2d 804 (S.D. Tex. 2004) 

(distinguishing Lampf as applying to equitable tolling and holding that the 

limitations period applicable to plaintiffs’ § 10(b) claim can be waived by express 

agreement); see also First Bankers Trust Servs., 2017 WL 1194692, at *8-*9 

(distinguishing equitable tolling and waivers). Moreover, this Court has noted that 

Lampf’s holding is narrowly tied to the securities statute in that case and not 

33
 
directly applicable to other federal statutes. See Moore v. Liberty Nat. Life Ins.
 

Co., 267 F.3d 1209, 1215 n.1 (11th Cir. 2001). Rogers does not justify the district 

court’s failure to follow Pugh. 

The district court was also “not convinced of Pugh’s applicability” to the 

limitations inquiry because section 1113(1) contains different language than the 

provisions analyzed in Pugh. Dkt. 25 at 3. But nothing in Pugh indicates that its 

analytical framework for federal limitations periods is limited to provisions that 

have language similar to the bankruptcy code provisions in that case. Quite the 

contrary: Pugh expressly rejects any approach based primarily on whether a 

particular provision is “linguistically similar to the typical statutes of limitations 

noted by the [Supreme] Court” as “unpersuasive . . . semantics.” 158 F.3d at 533­

34. Pugh cited to cases analyzing other federal statutes (without reference to 

specific language) in its discussion, and courts have since relied on Pugh to 

analyze non-bankruptcy provisions without respect to linguistic similarity. See 

supra at 17. 

The district court also asserted that “taking the Government’s advocated 

approach to analysis of the issue leads to the same result.” Dkt. 25 at 3. But the 

district court did not, in fact, engage in the Secretary’s “advocated approach,” 

based on Pugh and Supreme Court precedent. Instead, the district court first stated 

that “the plain language” of section 1113(1) was similar to the language of a statute 

34
 
that the Supreme Court concluded was a statute of repose in CTS, 134 S. Ct. at 

2186. This is the wrong approach because courts must look at the plain language 

for any “clear statement” that the provision is jurisdictional, see Musacchio, 136 S. 

Ct. at 717, not just for linguistic similarities with other statutes; doing the latter is 

just the sort of “semantic[s]” that Pugh and the Supreme Court have rejected. See 

Pugh, 158 F.3d at 534 (citations omitted). 

Second, the district court cited to “numerous cases that have held that § 1113 

is a statute of repose.” Dkt. 25 at 4. This is also the wrong approach because the 

“statute of repose” label is irrelevant to the validity of express waivers under this 

Court’s approach and Supreme Court precedent. Furthermore, only one district 

court case cited held in an unpublished decision that section 1113(1) is 

jurisdictional, and that court did not endeavor to make the required determination 

that Congress clearly intended to make section 1113(1) jurisdictional. See Dkt. 25 

at 5.7 

7 In Harris v. Bruister, 2013 WL 6805155, *5-*6 (S.D. Miss. Dec. 20, 2013), the 

district court relied on two Fifth Circuit cases, Radford v. General Dynamics Corp. 

and Archer v. Nissan Motor Acceptance Corp., to conclude that section 1113(1) “is 

a jurisdictional prerequisite to suit that cannot be waived or tolled.” 2013 WL 

6805155, *5-*6. Neither case, however, concerned voluntary waiver. See First 

Bankers Trust Servs., 2017 WL 1194692, at *7-*8 & n.7 (distinguishing equitable 

tolling and waivers and finding Bruister and Archer “unpersuasive”). In Radford, 

151 F.3d 396, 400 (5th Cir. 1998), the Fifth Circuit merely found that section 

1113(1) is a statute of repose but did not consider whether it was jurisdictional or 

could be waived by agreement. Archer, 550 F.3d 506 (5th Cir. 2008), is not an 

35
 
Third, the district court bluntly stated that “[l]egislative history offers no
 

help in determining this issue.” Id. at 6. The limited legislative history suggests an 

intent to remove jurisdictional hurdles for ERISA claims. See supra at 26-27. 

Moreover, because the courts must start with the presumption that federal 

limitations periods are waivable statutes of limitations, Kwai Fun Wong, 135 S. Ct. 

at 1632, the absence of evidence would actually support a conclusion that section 

1113(1) is waivable. 

Finally, the district court disagreed with the Secretary’s argument that the 

Supreme Court’s decision in Kwai Fun Wong supports the conclusion that section 

1113 is not jurisdictional. Dkt. 25 at 5. While Kwai Fun Wong plainly held that, 

absent clear congressional intent to the contrary, time bars in federal statutes are 

non-jurisdictional and thus waivable, 135 S. Ct. at 1634-35, the district court relied 

on the dissent in that decision to conclude that “when a significant line of cases 

‘left undisturbed by Congress’ has adopted the position that a particular time limit 

in a statute is treated as jurisdictional, the presumption flips.” Dkt. 25 at 5. In the 

court’s view, section 1113(1) was presumptively jurisdictional because “[a]s noted 

ERISA case. There, the Fifth Circuit held that the Equal Credit Opportunity Act 

(“ECOA”) limitations period is a statute of repose that stands as a jurisdictional 

bar, and, therefore, a discovery rule did not apply to extend the limitations period. 

Id. at 508. Archer’s holding was specifically about the intent underlying the 

ECOA, not ERISA. Archer does not hold that section 1113(1) is jurisdictional, 

and cites Radford and section 1113(1) only in dicta. Id. Neither case examines the 

congressional intent behind 29 U.S.C. § 1113(1). 

36
 
in the prior order and above, there are numerous cases that treat [29 U.S.C] § 1113
 

as jurisdictional.” Id. This simply is not true. The district court cited only one 

unpublished 2013 district court decision holding that section 1113(1) is 

jurisdictional. Id. at 4 (citing Bruister, 2013 WL 6805155, at *5-*6). Moreover, as 

noted infra at 43-48, the district court did not acknowledge courts that have 

permitted waivers of section 1113(1). 

B.	 The District Court Misread the Case Law in Adopting a Categorical 

Rule That All Statutes of Repose are Not Waivable. 

Aside from its failure to apply the framework described in Pugh and Trust 

Net Media, the district court was incorrect that statutes of repose are categorically 

not subject to express waiver. Dkt. 17 at 3-7. The district court relied on the 

general description of a “statute of repose” the Supreme Court quoted in CTS: “[a] 

statute of repose ‘bar[s] any suit that is brought after a specified time since the 

defendant acted (such as by designing or manufacturing a product), even if this 

period ends before the plaintiff has suffered a resulting injury.’” 134 S. Ct. at 2182 

(citing Black’s Law Dictionary). The district court’s categorical rule based on this 

general description is inconsistent with Supreme Court and this Circuit’s 

precedent. Last year, in Musacchio, the Supreme Court considered whether a 

defendant’s attempt to raise a statute of limitations defense was untimely by 

examining whether the pertinent provision, which barred suit brought after a 

specified time after the defendant commits an offense, was waivable. 136 S. Ct. at 

37
 
717-18.8 The Court concluded that, based on “the statutory text, context, and 

history” and the absence of the requisite “clear statement,” the provision was nonjurisdictional and could be waived. Id. Likewise, in Credit Suisse Sec. (USA) 

LLC v. Simmonds, the Supreme Court looked to congressional intent to determine 

if equitable tolling was available for a time limit in the federal securities law that 

the Court had previously described as a “period of repose,” a limitations period 

that started to run after the defendants’ violation; the Court did not just apply a 

categorical rule. 566 U.S. 221, 225-30 (2012) (citation omitted). This Court has 

similarly held that limitations periods that start on the date of the alleged violation 

are subject to equitable tolling and not jurisdictional bars. For example, in 

Sturniolo v. Sheaffter, Eaton, Inc., this Court held that the requirement that a 

claimant files a timely charge of discrimination with the EEOC, which begins 

when the alleged violation occurs, is subject to equitable tolling and is “not a 

jurisdictional prerequisite to sue in federal court.” 15 F.3d 1023, 1024 (11th Cir. 

1994); see also Stafford v. Muscogee Cnty. Bd. of Educ., 688 F.2d 1383, 1387 

(11th Cir. 1982) (permitting tolling of, and finding non-jurisdictional, a time limit 

for filing Title VII charge that must be filed “within 180 days after the alleged 

8 The time limit at issue was 18 U.S.C. § 3282, which states that “no person shall 

be prosecuted, tried, or punished for any offense, not capital, unless the indictment 

is found or the information is instituted within five years next after such offense 

shall have been committed.” 

38
 
discriminatory practice occurred.”). Accordingly, the district court’s broad rule 

that all statutes that run from the defendant’s violation and appear to meet the 

description of a “statute of repose” are not subject to tolling or waiver is 

inconsistent with Supreme Court and this Circuit’s case law. 

The district court cited two Supreme Court decisions in support of its 

conclusion that statutes of repose are not subject to waiver: Midstate Horticultural 

and CTS. Dkt. 17 at 4, 6. However, neither decision supports the court’s position. 

The district court misread Midstate Horticultural to mean that “federal 

statutes of repose may not be tolled by mutual agreement where the statute in 

question implicates national interests.” Dkt. 17 at 6. In Midstate Horticultural, the 

Supreme Court treated the statute of limitation in the Interstate Commerce Act 

(ICC) as a bar against waiver and tolling but not because it found it to be a statute 

of repose or suggesting in any way that no statute of repose could be waived or 

tolled by agreement. See 320 U.S. at 361-64. The Court simply examined the 

legislative intent behind ICC (the statutory language, structure, and legislative 

history) and found that voluntary waivers were inconsistent with the entire 

statutory framework, including numerous provisions setting out very short time 

frames for challenging shipping rates. Id. at 361-66. Midstate Horticultural simply 

provides no support for the district court’s categorical rule; in fact, this Court in 

39
 
Pugh cited Midstate Horticultural as supporting an approach that focuses on
 

legislative intent. 158 F.3d at 534, 537. 

CTS is similarly unhelpful to the district court. There, the Supreme Court 

recognized that the preemption question turned on an analysis of the specific 

legislative intent behind North Carolina’s statutes of repose in order to determine if 

these state laws were time limitations Congress intended to preempt under the 

Comprehensive Environmental Response, Compensation, and Liability Act. 134 

S. Ct. at 2187. The Court did not even address, much less hold, that the state 

statutes of repose are not waivable. The Court’s analysis confirms that the effect 

of a statute of repose on tolling turns on its specific legislative intent and statutes of 

repose do not categorically or automatically bar all forms of tolling. See id. (citing 

to North Carolina cases to establish intent behind the North Carolina statutes of 

repose); see also Bryant v. United States, 768 F.3d 1378, 1382 (11th Cir. 2014) 

(examining North Carolina’s legislative intent as to the scope of the statute of 

repose). In fact, North Carolina courts permit tolling agreements to extend the 

time limits of the state’s statutes of repose. Christie v. Hartley Const., Inc., 766 

S.E.2d 283, 287-88 (N.C. 2014) (noting that “we see no public policy reason why 

the beneficiary of a statute of repose cannot bargain away, or even waive, that 

benefit,” and permitting express waiver of statute of repose)). 

40
 
The district court additionally relied on out-of-circuit cases, but none of 

these support a categorical rule barring a voluntary waiver of section 1113(1). Dkt. 

17 at 5-6. Instead, each of these decisions merely interprets how state statutes of 

repose are intended to operate. See Roskam Baking Co., Inc. v. Lanham 

Machinery Co., Inc., 288 F.3d 895, 903 (6th Cir. 2002) (deciding who has to plead 

the statute of repose under Michigan law); Fencorp Co. v. Ohio Kentucky Oil 

Corp., 675 F.3d 933, 940 (6th Cir. 2012) (interpreting Ohio law to decide if 

defendants had vested rights to statute of repose); Moore v. Liberty Nat’l Ins. Co., 

108 F. Supp. 2d 1266, 1275 (N.D. Ala. 2000) (refusing to apply an Alabama 

statute of repose to federal claims); Stone & Webster Eng’g Corp. v. Duquesne 

Light Co., 79 F. Supp. 2d 1, 8 (D. Mass. 2000) (Pennsylvania law) (making an Erie 

guess about whether Pennsylvania courts would find a Pennsylvania statute of 

repose waivable); Sharon Steel Corp. v. Workmen’s Compensation Appeal Bd., 

670 A.2d 1194 (Pa. 1996) (holding that under Pennsylvania law a plaintiff cannot 

revive a claim extinguished by a statute of repose after the time limitation has 

already run). The district court also cited Nat’l Credit Union Admin. Bd. v. 

Barclays Capital Inc., 785 F.3d 387, 390 (10th Cir. 2015), which stated in onesentence dictum that a federal securities time limitation was non-waivable; this 

sentence was not the product of the rigorous analysis of legislative intent required 

under Pugh. 

41
 
Several of these cases actually rejected a categorical rule that statutes of
 

repose bar all forms of tolling or waiver and found the interpretation of the intent 

of state statutes of repose inapplicable to interpreting federal time limits. For 

instance, the court in Moore recognized that: 

By contrast, blanket repose rules barring all federal claims after a 

period of time has passed do not exist to bar federal actions; such 

rules appear sparingly among federal statutes. Failure to create a rule 

of repose concerning a particular statute is not an invitation to apply a 

state law rule of repose in its absence, as such rules do not form a 

regular feature of the landscape in the prosecution of federal rights. 

108 F. Supp. 2d at 1275. This Court later agreed with this statement on appeal. 

Moore, 267 F.3d at 1215 & n.1 (“[t]he absence of absolute rules of repose through 

most of the federal legal landscape makes it difficult to contend that statutes or 

rules of repose are ‘universally familiar’ in federal litigation.”). The court in Stone 

& Webster also recognized that state laws are not uniform on whether state-law 

statutes of repose bar waiver, 79 F. Supp. 2d at 8 (“the issue is not free from 

doubt”), and it expressly limited its holding to the type of open-ended waiver in 

question in that case, which is different from the waiver in this case. Id. The 

waiver in this case was expressly limited to a certain time period. Importantly, the 

Stone & Webster court found that equitable tolling could be permitted for 

Pennsylvania statutes of repose, undermining a categorical rule that statutes of 

repose always bar all forms of tolling or waiver. See id. 

42
 
The holding in Sharon Steel also fails to support the decision below. Under
 

Sharon Steel, a party under Pennsylvania law cannot revive a claim extinguished 

by a statute of repose after the time limitation has already run. 670 A.2d at 1198. 

This rule has no relevance to the facts in this case as the tolling agreements here 

were completed before the six-year time limit had elapsed on the Secretary’s 

claims. See supra at 6-7. Moreover, the court acknowledged that equitable 

estoppel may bar the defendant from raising the statute of repose as a defense, 

again undermining any categorical rules that a statute of repose always bars all 

forms of tolling or waiver, though the court did not find the elements of estoppel 

satisfied in that case. Sharon Steel, 670 A.2d at 1198. In short, the inapposite 

cases relied on by the district court undercut the court’s adoption of a categorical 

rule against tolling or waiver, because – rather than take a blanket approach – the 

decisions attempt to make specific determinations of the legislative intent of state 

laws in deciding whether the provisions at issue can be tolled or waived. 

C. Numerous authorities conclude that statutes of repose are waivable 

Contrary to indications from the district court, many authorities have 

concluded that statutes of repose are waivable. Cf. Burnett, 380 U.S. at 426 

(“policy of repose, designed to protect defendants, is frequently outweighed, 

however, where the interests of justice require vindication of the plaintiff’s 

rights”). In Commodity Control, the District Court for the Southern District of 

43
 
Florida recently ruled that, even if ERISA’s six-year limit is a statute of repose, it
 

can be expressly waived. Order on Mot. to Dismiss, Perez v. Commodity Control 

Corp., No. 1:16-cv-20245-UU (S.D. Fl. May 4, 2016) (Dkt. 36), at 7-8. In so 

ruling, the court “agree[d] with [the] decisions” of “courts in other circuits [that] 

have held that parties can modify, extend, or waive a statute of repose based on a 

written agreement between the parties.” Id. (citing cases). Commodity Control 

relied on the Seventh Circuit’s statement that “‘[a] statute of repose and a statute of 

limitations are ordinary defenses to liability, differing from each other only in 

length, accrual, and tolling rules . . . . Both normally are waivable.’” Id. at 8 

(quoting J.E. Liss & Co. v. Levin, 201 F.3d 848, 850 (7th Cir. 2000), abrogated on 

other grounds by Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 

(2002)); see Solis v. Seibert, 2011 WL 398023, at *9 (M.D. Fl. Feb. 4, 2011) 

(finding Secretary’s action timely based on parties’ agreement); Chao v. Linder, 

2007 WL 1655254, at *9 (N.D. Ill. May 31, 2007) (same); accord Cherochak v. 

Unum Life Ins. Co. of Am., 586 F. Supp. 2d 522, 533 (D.S.C. 2008); Wilson Land 

Corp. v. Smith Barney Inc., 1999 WL 1939270, at *8 (E.D.N.C. May 17, 1999) 

(finding the cause of action in an ERISA fiduciary action to be timely under such 

agreement). Recently, a district court in the Southern District of New York 

dismissed arguments similar to the ones raised by Defendants here, and upheld the 

tolling agreements and waiver with respect to section 1113(1). First Bankers Trust 

44
 
Servs., 2017 WL 1194692, at *6-*9. 

The Supreme Court of Colorado also recently held that a Colorado 

limitations period that “contains the language of a statute of repose” may be 

waived by mutual agreement. Lewis v. Taylor, 375 P.3d 1205, 1209, 1211-12 

(Colo. 2016). The Supreme Court of Colorado echoed Pugh’s interpretation of 

Midstate Horticultural, noting that “[t]o the extent Midstate created a general[] . . . 

rule regarding tolling statutes of repose, that rule can best be characterized as a 

directive to consider the legislative intent and policy purposes behind each statute 

under consideration, not as a universal prohibition on tolling.” Id. at 1209, 1211­

12. The North Carolina Supreme Court has reached the same conclusion. See 

Christie, 766 S.E.2d at 287-88 (permitting express waivers of statutes of repose). 

Numerous other courts have re-affirmed this principle and permitted waivers 

of statutes of repose. See ESI Montgomery County, Inc. v. Montenay Int’l Corp., 

899 F. Supp. 1061, 1066 (S.D.N.Y. 1995) (parties may expressly waive a period of 

repose in a federal securities law); First Interstate Bank of Denver v. Central Bank 

& Trust Co., 937 P.2d 855, 860 (Colo. Ct. App. 1997) (holding that statute of 

repose is not jurisdictional and could be waived by express agreement); see also 

F.D.I.C. v. Jones, 2014 WL 4699511, *5 (D. Nev. Sept. 19, 2014) (“Even 

assuming that FIRREA’s three-year limitations period is one of repose, defendants 

have not established conclusively that the parties could not expressly waive or 

45
 
extend that repose period.”); In re Building Materials Corp. of America Asphalt
 

Roofing, 2013 WL 169289, *3-*4 (D.S.C. Jan. 16, 2013) (holding that a statute of 

repose extended “based upon evidence of a waiver contained in an extended 

warranty or contract”); In re: Lehman Bros. Sec. and ERISA Litig., 2012 WL 

6584524 (S.D.N.Y. Dec. 18, 2012) (defendants waived statute of repose in tolling 

agreement). Thus, far from there being a categorical rule against waiving statutes 

of repose, many courts have held or indicated that such provisions are subject to 

express waiver. 

This Court has described state statutes of repose as both an “affirmative 

defense,” McElroy by McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 

1507 n.4 (11th Cir. 1990) (describing Florida law), and as a “right” granted to 

defendants, Moore, 267 F.3d at 1218 (citations omitted). Under both conceptions, 

statutes of repose should be waivable. For example, this Court has stated the broad 

principle that: “the expiration of the statute of limitations does not divest a district 

court of subject matter jurisdiction, but rather constitutes an affirmative defense, 

which the defendant can waive.” United States v. Najjar, 283 F.3d 1306, 1308–09 

(11th Cir. 2002). Similarly, like an immunity from suit, the statute of repose is a 

“personal privilege which [the holder] may waive at pleasure.” See College Sav. 

Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 

(1999) (quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)) (sovereign 

46
 
immunity); see also Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002)
 

(qualified immunity); Moore v. Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991) 

(qualified immunity). Similarly, a statute of repose confers a waivable right 

against suit and does not speak to the jurisdiction of the courts. See C & L 

Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 

411, 423 (2001) (recognizing tribe can waive immunity from suit in arbitration 

agreement); Mercantile Nat’l Bank at Dallas v. Langdeau, 371 U.S. 555, 561 n.12 

(1963) (recognizing waiver of personal statutory rights to immunity from suit). 

This view of state statutes of repose is consistent with numerous state 

decisions that consider statutes of repose to be waivable rights to an affirmative 

defense. Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 738 

(Tenn. 2013) (citing authorities, including Fed. Deposit Ins. Corp. v. Lenk, 361 

S.W.3d 602, 609 (Tex. 2012); Pinigis v. Regions Bank, 942 So.2d 841, 847 (Ala. 

2006); In re Estate of Palmer, 187 P.3d 758, 763 (Wash. Ct. App. 2008); Fazio v. 

Gruttadauria, 2008 WL 4175040, at *5 (Ohio Ct. App. 2008); see Townes v. Rusty 

Ellis Builders Inc., 98 So. 3d 1046, 1053 (Miss. 2012) (noting hornbook law that 

parties can contractually agree to modify statutes of limitations, including statutes 

of repose, “unless prohibited by public policy or statute”). More importantly, such 

a reading of state statutes of repose as presumptively affirmative defenses that are 

waivable is consistent with the overarching analysis required by Pugh and the 

47
 
Supreme Court cases that discuss federal time limits. See Holland, 560 U.S. at 645 

(Supreme Court has “‘repeatedly stated that the enactment of time-limitation 

periods . . . without further elaboration, produces defenses that are nonjurisdictional and thus subject to waiver and forfeiture.’”) (citation omitted) 

(emphasis added); accord Musacchio, 136 S. Ct. at 717 (“the statutory text, 

context, and history establish that [the provision] imposes a non-jurisdictional 

defense.”) (emphasis added). 

CONCLUSION 

For the foregoing reasons, the Secretary respectfully asks this Court to 

reverse the district court’s dismissal order. 

48
 
Respectfully submitted, 

NICHOLAS C. GEALE 

Acting Solicitor of Labor 

G. WILLIAM SCOTT 

Associate Solicitor 

For Plan Benefits Security 

THOMAS TSO 

Counsel for Appellate and 

Special Litigation 

Plan Benefits Security Division 

/s/ Stephen Silverman 

STEPHEN SILVERMAN 

Senior Trial Attorney 

Plan Benefits Security Division 

U.S. Department of Labor 

200 Constitution Avenue, N.W. N-4611 

Washington, D.C. 20210 

(202) 693-5623 – Phone 

(202) 693-5610 – Fax 

Silverman.stephen@dol.gov 

49
 
CERTIFICATE OF SERVICE
 

I hereby certify that a copy of the foregoing was filed electronically using 

the CM/ECF system, which will send notification of such filing to the following: 

s/ Stephen Silverman 

Stephen Silverman 

Senior Trial Attorney 

Plan Benefits Security Division 

U.S. Department of Labor 

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

Washington, D.C. 20210 

(202) 693-5623 – Phone 

(202) 693-5610 – Fax 

silverman.stephen@dol.gov 
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
 

1.	 This brief complies with the type-volume limitation of FED. R. APP. P. 

32(a)(7)(B) because: this brief contains 11,084 words, excluding the parts of 

the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii) 

2.	 This brief complies with the typeface requirements of FED. R. APP. P. 

32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) 

because: this brief has been prepared in a proportionally spaced typeface 

using Microsoft Word 2010 in 14-point, Times New Roman font. 

/s/ Stephen Silverman 

Stephen Silverman 

Counsel for the Secretary 

April 5, 2017