No. 17-16984 

In the U.S. Court of Appeals

For the Ninth Circuit

CHARLES GUENTHER, 

Plaintiff-Appellant, 

v.

LOCKHEED MARTIN CORPORATION, ET AL. 

Defendant-Appellees. 

On Appeal from the U.S. District Court

for the Northern District of California, San Jose

Case No. 5:11-cv-00380-EJD

Brief for the U.S. Secretary of Labor as

Amicus Curiae Supporting Plaintiff-Appellant

KATE S. O’SCANNLAIN

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

for Plan Benefits Security

THOMAS TSO

Counsel for Appellate

and Special Litigation

STEPHANIE B. BITTO

Trial Attorney

U.S. Department of Labor

Office of the Solicitor

Plan Benefits Security Division

200 Constitution Ave. NW, N4611

Washington, DC 20210

202.693.5616 (t)|202.693.5610 (f)

bitto.stephanie.b@dol.gov
i

TABLE OF CONTENTS

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

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

STATEMENT OF IDENTITY, INTEREST, AND 

AUTHORITY TO FILE ........................................................................... 2 

STATEMENT OF THE CASE ........................................................... 3 

I. Factual Background............................................................ 3

II. Procedural History.............................................................. 7

SUMMARY OF THE ARGUMENT .................................................10

ARGUMENT ...................................................................................11

I. Guenther Did Not Have “Actual Knowledge” Of A 

Fiduciary Breach When Lockheed Made A 

Statement To Him That Appeared To Contradict 

An Earlier One....................................................................11

A. Only Actual Knowledge Of The Facts that 

Constitute The Fiduciary Breach Triggers 

The Three-Year Period In ERISA Section 

413(2)...........................................................................11

B. The Discrepancies In Lockheed’s 

Communications To Guenther Did Not Give 

Him Actual Knowledge Of Facts That 

Constituted A Fiduciary Breach ...........................14

CONCLUSION................................................................................20
ii

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
iii

TABLE OF AUTHORITIES

Federal Cases:

Barker v. Am. Mobil Power Corp.,

64 F.3d 1397 (9th Cir. 1995) ................................................................14

Blanton v. Anzalone,

760 F.2d 989 (9th Cir. 1985) ................................................................13

Brock v. Nellis,

809 F.2d 753 (11th Cir. 1987) ........................................................13, 17

Caputo v. Pfizer, Inc.,

267 F.3d 181 (2d Cir. 2001)..................................................................14

CB Richard Ellis Investors, L.L.C. v. Sonnenblick,

45 F. App’x 680 (9th Cir. Aug. 26, 2002)(unpublished).......................19

Chuck v. Hewlett Packard Co.,

455 F.3d 1026 (9th Cir. 2006) ..............................................................18

CIGNA Corp. v. Amara,

563 U.S. 421 (2011) ..........................................................................8 n.1

Farr v. U.S. W. Commc’ns, Inc.,

151 F.3d 908 (9th Cir. 1998) ................................................................14

Fink v. Nat’l Savs. & Tr. Co.,

772 F.2d 951 (D.C. Cir. 1985)...............................................................19

Fish v. Greatbanc Tr. Co.,

749 F.3d 671 (7th Cir. 2014) ................................................................17

Frommert v. Conkright,

433 F.3d 254 (2d Cir. 2006)............................................................14, 17

Gluck v. Unisys Corp.,

960 F.2d 1168 (3d Cir. 1992)..........................................................13, 15
iv

Federal Cases (continued):

Guenther v. Lockheed Martin Corp.,

646 F. App’x 567 (9th Cir. Mar. 29, 2016)(unpublished)............. passim

Guenther v. Lockheed Martin Corp.,

No. 5:11-cv-00380-EJD, 2017 WL 3838437 (N.D. Cal. Sept. 1, 2017)

...................................................................................................... passim

King v. Blue Cross & Blue Shield of Ill.,

871 F.3d 730 (9th Cir. 2017) ................................................................14

Landwehr v. DuPree,

72 F.3d 726 (9th Cir. 1995) ..................................................................12

Maher v. Strachan Shipping Co.,

68 F.3d 951 (5th Cir. 1995) ..................................................................17

Mass. Mut. Life Ins. Co. v. Russell,

473 U.S. 134 (1985) ..............................................................................11

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ..............................................................................18

Meagher v. Int’l Ass’n of Machinists & Aerospace Workers 

Pension Plan,

856 F.2d 1418 (9th Cir. 1988) ........................................................13, 15

Sec’y of Labor v. Fitzsimmons,

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

Tibble v. Edison Int’l,

843 F.3d 1187 (9th Cir. 2016)(en banc) ...............................................19

Waller v. Blue Cross of Cal.,

32 F.3d 1337 (9th Cir. 1994) ................................................................13
v

Federal Cases (continued):

Washington v. Bert Bell/Pete Rozelle NFL Player Ret. Plan,

504 F.3d 818 (9th Cir. 2007) ................................................................14

Wright v. Heyne,

349 F.3d 321 (6th Cir. 2003) ..........................................................17, 19

Federal Statutes:

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

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

Section 2, 29 U.S.C. § 1001.................................................................1

Section 2(b), 29 U.S.C. § 1001(b)..................................................2, 11

Section 404(a), 29 U.S.C. § 1104(a)..................................................11

Section 413, 29 U.S.C. § 1113................................. 1, 2, 12, 12 n.2, 19

Section 413(1), 29 U.S.C. § 1113(1)..................................................12

Section 413(2), 29 U.S.C. § 1113(2)............................ 1, 10, 12, 13, 16

Section 502(a), 29 U.S.C. § 1132(a)..................................................11

Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) .................................7

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

Section 502(a)(3), 29 U.S.C. § 1132(a)(3) .......................................2, 7

Section 502(a)(5), 29 U.S.C. § 1132(a)(5) ...........................................2

Section 504, 29 U.S.C. § 1134.............................................................2

Section 505, 29 U.S.C. § 1135.............................................................2
vi

Miscellaneous:

Fed. R. App. P. 29(a)..................................................................................2
STATEMENT OF THE ISSUE

Section 413 of the Employee Retirement Income Security Act, 29 

U.S.C. § 1001, et seq. (“ERISA”), contains two time limits by which 

participants in employee benefit plans must file suit alleging fiduciary 

misconduct. The one relevant here is contained in section 413(2), which 

requires participants to sue within three years of acquiring “actual 

knowledge of the breach or violation.” 29 U.S.C. § 1113(2). The breach 

alleged in this case is a misrepresentation by a fiduciary to an ERISAplan participant about how the participant’s benefits would be 

calculated under the plan. The district court concluded that the 

plaintiff had actual knowledge of the misrepresentation when the 

fiduciary made a subsequent, seemingly contradictory statement to the 

participant. Because the fiduciary made that second statement more 

than three years before the plaintiff filed suit, the district court 

dismissed the claim as time barred under section 413(2).

The Secretary addresses the following question presented: 

Whether an ERISA plan participant has “actual knowledge” of a 

fiduciary breach within the meaning of section 413(2) the very moment

the fiduciary makes a statement that appears to contradict a prior

statement.
2

STATEMENT OF IDENTITY, INTEREST, AND

AUTHORITY TO FILE

Congress enacted ERISA “to protect . . . the interests of 

participants in employee benefit plans . . . by establishing standards of 

conduct, responsibility, and obligation for fiduciaries of employee 

benefit plans, and by providing for appropriate remedies, sanctions, and 

ready access to the Federal courts.” 29 U.S.C. § 1001(b) (Congressional 

findings and declaration of policy). The Secretary of Labor has primary 

enforcement and regulatory authority for the fiduciary responsibility 

provisions in Title I of ERISA. See 29 U.S.C. §§ 1132(a)(2) & (5), 1134, 

1135; Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 688-91 (7th Cir. 

1986) (en banc). Congress also authorized plan fiduciaries, 

participants, and beneficiaries to bring actions to remedy fiduciary 

breaches in order to more fully protect the rights conferred by ERISA. 

29 U.S.C. §§ 1132(a)(2) & (3). 

Civil actions brought by either the Secretary or private parties to 

redress fiduciary breaches must be filed within the time limits 

prescribed in ERISA. 29 U.S.C. § 1113. The Secretary has an interest 

in the proper interpretation of those time limits in order to effectuate 

Congressional intent to provide “ready access to the Federal courts.” 29 

U.S.C. § 1001(b). 

The Secretary files this brief as amicus curiae under the Federal 

Rule of Appellate Procedure 29(a).
3

STATEMENT OF THE CASE

Plaintiff Charles Guenther (“Guenther”) brought this action 

against Defendants Lockheed Martin Corporation (“Lockheed”) and the 

Lockheed Martin Corporation Retirement Plan for Certain Salaried 

Employees (the “Plan”), a defined-benefit plan, for breach of fiduciary 

duty under ERISA. Guenther alleges Lockheed told him that, upon 

rejoining the company, his retirement benefits under the Plan would be 

calculated by “bridging” (or combining) the employment service credit 

he earned in his prior employment at Lockheed with any future service 

credit he would earn if he resumed employment at the company. After 

Guenther rejoined Lockheed, he learned his service credits would not in 

fact be bridged. This suit followed.

I. Factual Background

Guenther worked for Lockheed during three different periods over 

the last 35 years. The first time he was re-hired by Lockheed, Guenther 

successfully “bridged” his service credits from his prior employment and 

became an active participant in the Plan again. Guenther v. Lockheed 

Martin Corp., 646 F. App’x 567, 569 (9th Cir. Mar. 29, 2016) 

(unpublished). The Plan was amended in 2005, after Guenther’s second 

period of employment had ended and while Guenther was not employed 

by Lockheed. The amendment stated that “no person who is reemployed by [Lockheed] on or after January 1, 2006, shall become an 

active Participant or earn Credited Service under the Plan with respect 
4

to any period commencing with such reemployment” (“2005 Plan 

Amendment”). Id. Thus, any employee who is re-employed and 

resumes employment after January 1, 2006, could not become an active 

participant in the Plan or earn any additional service credit under the 

Plan. Id. at *6. Because Guenther was not a Lockheed employee when 

the amendment was adopted, he never received notice of the 

amendment. Id.

Guenther was re-hired by Lockheed a second time on September 

11, 2006. Guenther v. Lockheed Martin Corp., No. 5:11-cv-00380-EJD, 

2017 WL 3838437, at *1 (N.D. Cal. Sept. 1, 2017). Before his re-hiring

in September 2006, Guenther “heard a ‘rumor’ that ‘Lockheed was going 

to be changing around their plan.’” Guenther, 2017 WL 3838437, at *1. 

He sent an e-mail to management on February 22, 2006, discussing 

potential changes in the Plan for re-hired employees, but management 

did not provide the confirmation he requested about those changes and 

the manager he e-mailed was not involved in human resources or 

authorized to speak on behalf of the Plan. Id. at *1-2. During his 

interview for re-employment with Lockheed, Guenther met with a 

human resources representative who gave him a “bridging form” in 

response to his inquiries about whether Lockheed was “bridging 

service” related to the Plan. Id. at *2. On July 17, 2006, he completed 

and submitted the bridging application, which stated that those with 
5

prior service “may be eligible to have [their] prior service bridged with 

[their] current period of employment.” Id. 

On July 25, 2006, Guenther accepted an employment offer with 

Lockheed. He also received a letter (the “July 25 letter”) in response to 

his bridging application stating that his “prior periods of 

Lockheed/Lockheed Martin service will be bridged with [his] proposed 

Lockheed Martin service” and “if [he is] rehired by Lockheed Martin, 

[he] will need to submit a new Application for Bridging of Prior Service 

to ensure that any necessary adjustments to [his] employment service 

date and pension records are made.” Guenther, 2017 WL 3838437, at 

*2. The July 25 letter did not state whether bridging applied to the 

defined-benefit pension plan or to a defined-contribution plan called the 

Capital Accumulation Plan. Id.

After resuming employment with Lockheed, Guenther followed 

the July 25 letter’s instructions and submitted a new bridging 

application, dated September 14, 2006. Guenther, 2017 WL 3838437, at 

*2. Relying on the representations in the July 25 letter, he concluded 

he would again participate in the defined-benefit pension plan and that 

his prior credited service would be counted in calculating his benefits. 

Id. When he checked his online pension account, however, he did not 

see any additional accumulation of credited service. Id. 

On November 7, 2006, Guenther received a letter (the “November 

7 letter”) in response to his September 14 bridging application that, in 
6

one paragraph, appeared to confirm his past benefits would be bridged

with his future benefits:

Since you were vested in a pension benefit provided by the 

Lockheed Martin Corporation Retirement Plan for Certain 

Salaried Employees, your prior periods of Lockheed/Lockheed 

Martin service will be bridged with your current Lockheed Martin 

service. Consequently, your accrued benefit under the Capital 

Accumulation Plan has immediately become vested because the 

combined total of your Lockheed Martin controlled group service 

exceeds five years.

Guenther, 2017 WL 3838437, at *3. However, in a separate paragraph, 

the letter stated that “because you are not currently participating in a 

Lockheed Martin defined benefit pension plan, you are not entitled to a 

pension benefit from Lockheed Martin for your current period of 

service.” Id.

At this point, Guenther contacted human resources regarding the 

seemingly conflicting information in the letters. Guenther, 2017 WL 

3838437, at *3. The human resources representative thanked Guenther 

for bringing the letters to her attention and stated that Lockheed would 

try to be clearer in the future, but did not resolve the confusion and did 

not tell Guenther he would be able to participate in the Plan for his new 

period of employment. Id. Guenther also discussed the letters with a 

manager and a co-worker, neither of whom provided any additional 

information or explanation. Id.
7

II. Procedural History

Guenther filed this case on November 8, 2010, asserting two 

causes of action, one under ERISA to recover Plan benefits and one for 

breach of contract. Guenther, 2017 WL 3838437, at *3. The district 

court dismissed the breach of contract claim with prejudice, but stayed 

the remainder of the case for Guenther to exhaust his administrative 

remedies by first making a claim for benefits to the Plan. Id. The Plan 

denied his claim, and the court lifted the stay on November 30, 2012. 

Id. 

Guenther then asserted two claims in the district court: (1) a 

claim for benefits due under the terms of the Plan, brought under 

ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); and (2) a claim 

that Lockheed breached its fiduciary duties to Guenther for which he 

sought appropriate equitable relief (in the form of equitable estoppel) 

under ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3). Guenther, 646 

F. App’x at 568. The district court granted summary judgment for

Lockheed on both claims. With respect to the benefits claim, the court 

held Lockheed did not abuse its discretion in denying Guenther’s claim 

for benefits. As to the fiduciary breach claim, it held Guenther did not 

clearly allege equitable estoppel and, alternatively, that the equitable 

estoppel claim failed because no misrepresentation occurred and the 

Plan terms were not ambiguous, as required for equitable estoppel in 
8

the Ninth Circuit. Guenther, 2017 WL 3838437, at *3; Guenther, 646 

F. App’x at 568-69. 

On appeal, this Court affirmed summary judgment for Lockheed 

on the benefits claim but reversed on the fiduciary breach claim,

holding Guenther alleged sufficient facts to plead a plausible claim for 

breach of fiduciary duty under ERISA. Guenther, 646 F. App’x at 568-

69. This Court rejected as premature the district court’s conclusion 

Lockheed did not make a misrepresentation as a fiduciary for two 

reasons. First, the unchallenged evidence showed Guenther had 

received “bridging” the last time he was re-hired by Lockheed, and 

Lockheed did not inform Guenther that he was placed into a new 

defined-contribution plan or that the 2005 Plan Amendment barred the 

type of bridging Guenther had previously received and expected. 

Second, Guenther had not been given the opportunity to conduct 

discovery into Lockheed’s frame of mind when it made the promise to 

bridge. Id. at 569. This Court thus remanded the action to “consider 

whether [Lockheed] breached a fiduciary duty and, if so, whether 

Guenther is entitled to surcharge as a remedy.”1 Id. at 570. 

Upon returning to the district court, Guenther filed a Second 

Amended Complaint on December 12, 2016, asserting breach of 

 

1 The remedy of surcharge would require Lockheed, not the Plan, to 

compensate Guenther for monetary losses caused by Lockheed’s 

fiduciary breach. CIGNA Corp. v. Amara, 563 U.S. 421, 441-42 (2011).
9

fiduciary duty and seeking the equitable remedy of surcharge, relying 

on the same factual allegations that Lockheed made misrepresentations 

to him about his ability to continue to earn service credits under the 

defined-benefit pension plan. Guenther, 2017 WL 3838437, at *4. 

The district court again granted Lockheed’s motion for summary 

judgment, this time stating that Lockheed “has successfully shown that 

Plaintiff’s sole claim is barred by ERISA’s three year [time limit], and 

Plaintiff has not satisfied his responsive burden to produce evidence on 

which a reasonable factfinder could conclude otherwise.” Guenther, 

2017 WL 3838437, at *1. The district court held Guenther had actual 

knowledge of the fiduciary breach triggering the three-year time limit 

when he received the November 7 letter from Lockheed. The court 

concluded Guenther “unequivocally stated he understood the November 

7 letter to mean he was not entitled to a pension benefit on reemployment with Lockheed, and he knew from his online account he 

was not accruing credit.” Id. at *7. The court rejected Guenther’s 

argument that he had no reason to believe the November 7 letter was 

accurate over the July 25 letter, stating that “as Plaintiff understands 

the letters, one [letter] must have contained an inaccuracy since the 

information about Plaintiff’s right to ‘bridge’ service cannot be 

reconciled between them.” Id. at *8. Accordingly, the district court 

found Guenther gained “actual knowledge” of any alleged breach arising 

from the discrepancy when he received the November 7, 2006 letter. Id. 
10

Because Guenther filed his complaint on November 10, 2010, more than 

three years after his receipt of the November 7, 2006 letter, the district 

court concluded his complaint was time-barred by ERISA section 413(2). 

Id.

SUMMARY OF THE ARGUMENT

The district court dismissed Guenther’s misrepresentation claim

because it was filed more than three years after Lockheed made a 

statement to Guenther that apparently conflicted with an earlier 

statement it made to him. The district court concluded as a matter of 

law that the mere utterance of the second statement gave Guenther 

“actual knowledge” of a fiduciary breach of misrepresentation under 

ERISA section 413(2) because it appeared to deviate from the prior 

statement. The district court’s conclusion that a discrepancy between 

two statements, by itself, suffices for “actual knowledge” of a

misrepresentation is based on the unwarranted assumption that 

Guenther knew which representation was true and which was false or 

misleading. Without that knowledge, a participant like Guenther is 

merely confused by the conflicting information but has no actual 

knowledge of facts establishing that any specific communication was a

misrepresentation. The district court therefore erred in concluding that 

Guenther’s knowledge of a potential discrepancy between the November 

7 letter and the July 25 letter constitutes actual knowledge of a 

fiduciary breach. 
11

ARGUMENT

I. Guenther Did Not Have “Actual Knowledge” Of A 

Fiduciary Breach When Lockheed Made A Statement 

To Him That Appeared To Contradict An Earlier One

A. Only Actual Knowledge Of The Facts That 

Constitute The Fiduciary Breach Triggers The 

Three-Year Period In ERISA Section 413(2) 

Congress enacted ERISA “to protect . . . the interests of 

participants in employee benefit plans. . . by establishing standards of 

conduct, responsibility, and obligation for fiduciaries of employee 

benefit plans, and by providing for appropriate remedies, sanctions, and 

ready access to the Federal courts.” 29 U.S.C. § 1001(b) (Congressional 

findings and declaration of policy) (emphasis added). ERISA imposes 

stringent duties of loyalty and prudence on plan fiduciaries to ensure 

plans are properly managed and that participants receive promised 

benefits. 29 U.S.C. § 1104(a). To enforce these statutory 

responsibilities and to remedy violations, ERISA contains several 

“carefully integrated” enforcement provisions, which authorize plan 

participants and beneficiaries, plan fiduciaries, and the Secretary of 

Labor to bring suit when fiduciaries fail to adhere to ERISA’s important 

standards. Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 

(1985); see, e.g., 29 U.S.C. § 1132(a) (conferring rights to sue and 

specifying eligible plaintiffs). 
12

A plan participant must bring a lawsuit alleging fiduciary 

misconduct before the earlier of two dates: (1) six years after the date of 

the fiduciary breach or violation; or (2) three years after the date the 

participant has “actual knowledge of the breach or violation.” ERISA 

sections 413(1)-(2), 29 U.S.C. §§ 1113(1)-(2). There is an exception to 

this rule where the defendant engaged in “fraud or concealment,” in 

which case a participant must bring the action within six years of his or 

her “discovery” of the breach. 29 U.S.C. § 1113.2 

The three-year time limit only “begins to run on the date that the 

person bringing suit learns of the breach or violation.” Landwehr v. 

DuPree, 72 F.3d 726, 732 (9th Cir. 1995). The participant must have 

“actual” knowledge of the specific facts that made the defendant’s 

 

2 The full text of ERISA section 413 provides as follows: 

“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.”

29 U.S.C. § 1113.
13

conduct illegal. Gluck v. Unisys Corp., 960 F.2d 1168, 1176-77 (3d Cir. 

1992). “[C]onstructive knowledge,” or knowledge the participant could 

have obtained in the exercise of reasonable diligence, on the other hand,

does not suffice as “actual knowledge.” Id. at 1176. 

In defining “actual knowledge,” this Court has stated “the [time 

limit] is triggered by [a claimant’s] knowledge of the transaction that 

constituted the alleged violation, not by [his] knowledge of the law.” 

Meagher v. Int’l Ass’n of Machinists & Aerospace Workers Pension 

Plan, 856 F.2d 1418, 1423 (9th Cir. 1988) (quoting Blanton v. 

Anzalone, 760 F.2d 989, 992 (9th Cir. 1985)); see, e.g., Waller v. Blue 

Cross of Cal., 32 F.3d 1337, 1341 (9th Cir. 1994) (declining to equate 

knowledge of the purchase of annuities with actual knowledge of the 

alleged breach of fiduciary duty). Because “it is not enough [to have] 

notice that something was awry; [one] must have had specific 

knowledge of the actual breach of duty.” Brock v. Nellis, 809 F.2d 753, 

755 (11th Cir. 1987). The “stringent requirement imposed” by ERISA 

section 413(2)’s “actual knowledge” standard, and the statutory 

structure itself, “sets a high standard for barring claims against 

fiduciaries prior to the expiration of the section’s six-year [time limit].” 

Gluck, 960 F.2d at 1176. 
14

B. The Discrepancies In Lockheed’s Communications 

To Guenther Did Not Give Him Actual Knowledge

Of Facts That Constituted A Fiduciary Breach

ERISA fiduciaries have a duty to provide clear and accurate 

information. Specifically, a “fiduciary has an obligation to convey 

complete and accurate information material to the beneficiary’s 

circumstance, even when a beneficiary has not specifically asked for the 

information.” Barker v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 

(9th Cir. 1995); see also King v. Blue Cross & Blue Shield of Ill., 871 

F.3d 730, 744-45 (9th Cir. 2017); Washington v. Bert Bell/Pete Rozelle 

NFL Player Ret. Plan, 504 F.3d 818, 823-24 (9th Cir. 2007); Farr v. U.S. 

W. Commc’ns, Inc., 151 F.3d 908, 914-15 (9th Cir. 1998). This case 

presents a common situation where fiduciaries provide participants 

with confusing and conflicting communications about their benefits. 

E.g., Frommert v. Conkright, 433 F.3d 254, 272-73 (2d Cir. 2006); 

Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001) (“Although the 

announcement should have (and did) give plaintiffs reason to suspect 

that Pfizer had lied to them, ‘it is not enough that [plaintiffs] had notice 

that something was awry; [plaintiffs] must have had specific knowledge 

of the actual breach of duty upon which [they sued].’”) (alteration in 

original) (citation omitted). 

Here, Lockheed provided confusing and possibly contradictory 

information in letters sent to Guenther. In the July 25 letter, Lockheed 

told Guenther his past employment at Lockheed would be bridged with 
15

his current employment. The November 7 letter was unclear. While 

stating—in apparent conformance with the July 25 letter—“your prior 

periods of Lockheed/Lockheed Martin service will be bridged with your 

current Lockheed Martin service,” Lockheed linked that statement to a 

defined-contribution plan and then “noted” that Guenther was not 

currently participating in a defined-benefit plan. Of course, if Guenther 

was no longer a participant in the defined-benefit plan (and could not 

accrue additional benefits), then the promised “bridge” led nowhere 

with respect to that plan. It was thus not apparent from the face of the 

letters (a) whether they were inconsistent with one another, or (b) 

assuming they were inconsistent, which letter was right and which was 

wrong. A participant cannot have “actual knowledge” of a fiduciary 

misrepresentation without knowledge as to whether a 

misrepresentation occurred, or, assuming he or she knows of 

contradictory communications, which communication constituted the 

misrepresentation.

To satisfy the “actual knowledge” requirement, the plaintiff must 

know facts that are at least sufficient to give a potential plaintiff 

knowledge that a duty has been breached or ERISA violated. See, e.g., 

Gluck, 960 F.2d at 1177. Knowing which of two potentially conflicting 

representations was the misrepresentation is necessary for a 

participant to understand which communication underlies the ERISA 

violation. Meagher, 856 F.2d at 1423. For example, if the November 7 
16

letter was false, then Guenther would have a different 

misrepresentation claim, because he did not take any action based on 

the November 7 representation that assumed he was not part of the 

Plan except to further investigate its content. On the other hand, if the 

July 25 letter was false, then Guenther would have an argument that 

he took this job with Lockheed based on the letter’s misrepresentation 

about bridging. Guenther, 646 F. App’x at 569. These claims and 

injuries are completely different. Without knowledge as to which 

representation was in error, Guenther could not have actual knowledge 

as to the facts underlying any specific ERISA violation. Accordingly, if 

it is unclear which letter contained the breach, Guenther could not have 

actual knowledge of the breach to trigger the three-year time limit. 

In finding Guenther’s “actual knowledge” of an alleged fiduciary 

misrepresentation, the district court relied heavily on the November 7 

letter, stating it provided Guenther with the actual knowledge 

necessary to trigger the three-year time limit under section 413(2) of 

ERISA. Guenther, 2017 WL 3838437, at *7-8. The court concluded any 

“discrepancy” between the November and July letters sufficed to confer 

upon Guenther “actual knowledge” of a violation. Id. at *8. But, as far 

as Guenther was aware, either letter could have been a 

misrepresentation. Indeed, after receiving the November letter, 

Guenther embarked on a years-long search for an answer from 

Lockheed as to his eligibility status, belying the notion that the 
17

November letter resolved the matter. Id. at *4-5. Based on these 

letters and Guenther’s past experience of having his benefits bridged, 

he could reasonably have concluded that competent professionals had 

provided him with accurate information initially and the second letter 

was in error. Under this scenario, the document received on November 

7 told Guenther only that there was confusion regarding bridging and 

his participation in the Plan. 

The district court therefore erred in stating that Guenther’s 

knowledge of a discrepancy between the November 7 letter and the July 

25 letter constitutes actual knowledge of a fiduciary breach. Knowledge 

of a discrepancy is knowledge only that “something was awry,” a 

standard no court has adopted to suffice as “actual knowledge.” E.g., 

Fish v. Greatbanc Tr. Co., 749 F.3d 671, 683 (7th Cir. 2014); Frommert, 

433 F.3d at 272-73; Brock, 809 F.2d at 755; Maher v. Strachan Shipping 

Co., 68 F.3d 951, 955-56 (5th Cir. 1995). It does not in itself equate to 

actual knowledge that a breach of fiduciary duty occurred. Wright v. 

Heyne, 349 F.3d 321, 329-30 (6th Cir. 2003) (“somewhere between 

‘every last detail’ and ‘something was awry’ lies the requisite knowledge 

of an ERISA violation”) (citation omitted). Consistent with this view, 

this Court previously considered and described the November 7 letter 

only as evidence of potential misrepresentation, not as dispositive 

evidence of a fiduciary breach. Guenther, 646 F. App’x at 569. The 

district court thus made an unsupported logical leap to conclude that 
18

knowledge of conflicting representations is “actual knowledge” that the 

July 25 letter contained a misrepresentation. 

In reaching this conclusion, the district court failed to draw all 

inferences in the plaintiff’s favor. See, e.g., Chuck v. Hewlett Packard 

Co., 455 F.3d 1026, 1031 (9th Cir. 2006); Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (a court draws 

all reasonable inferences in favor of the party against whom summary 

judgment is sought). By assuming the November 7 letter was true and 

the July 25 letter was false, the district court effectively presumed that 

Guenther must have known one letter was a misrepresentation, placing

the burden on Guenther to establish the negative and show that he did 

not actually know the July 25 letter contained the misrepresentation. 

Guenther, 2017 WL 3838437, at *7-8. The district court did not even 

consider whether Guenther was simply confused by the presence of 

conflicting information without any actual knowledge that a specific 

letter contained a fiduciary misrepresentation. 

Furthermore, the clarity the district court ascribed to the 

November 7 letter conflicts with the discussion of the same document in 

this Court’s previous opinion. This Court considered these same 

documents and determined Guenther was suffering from a “lack of 

opportunity . . . to conduct discovery into Defendants’ frame of mind 

when they made [the bridging] promise.” Guenther, 646 F. App’x at 

569. Accordingly, this Court found the document less than clear. Id. 
19

Such divergent readings of the same letter indicate that, at the very 

least, this case was not appropriately decided on summary judgment.

The district court’s view that knowledge of a discrepancy between 

two letters is actual knowledge of a misrepresentation also creates 

perverse incentives for fiduciaries. The purpose of ERISA section 413 is 

to prevent a plaintiff who has actual knowledge of a breach, “from 

sitting on her rights and allowing the series of related breaches to 

continue.” Tibble v. Edison Int’l, 843 F.3d 1187, 1196 (9th Cir. 2016) 

(en banc); see also Wright, 349 F.3d at 330-31; Fink v. Nat’l Savs. & Tr.

Co., 772 F.2d 951, 956-958 (D.C. Cir. 1985). If discrepancies in 

communications alone confer “actual knowledge,” fiduciaries are 

encouraged to create confusion in order to escape liability after three 

years, and discouraged from speaking definitively. Imputing knowledge 

of specific fiduciary misrepresentations to participants who receive 

confusing communications from plan fiduciaries “would allow the 

unfaithful fiduciary . . . to control the starting date of the statute of 

limitations” by sowing confusion. CB Richard Ellis Investors, L.L.C. v. 

Sonnenblick, 45 F. App’x 680, 682 (9th Cir. Aug. 26, 2002) 

(unpublished). 
20

CONCLUSION

The Secretary respectfully requests that this Court reverse the

district court’s decision dismissing the fiduciary breach claim as barred 

by ERISA’s three-year time limit.

Respectfully Submitted,

KATE S. O’SCANNLAIN

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

for Plan Benefits Security

THOMAS TSO

Counsel for Appellate

and Special Litigation

s/ Stephanie B. Bitto

STEPHANIE B. BITTO

Trial Attorney

U.S. Department of Labor

Office of the Solicitor

Plan Benefits Security Division

200 Constitution Ave. NW

Washington, DC 20210

202.693.5616

bitto.stephanie.b@dol.gov
CERTIFICATE OF COMPLIANCE OF BRIEFS

AND VIRUS CHECK

Pursuant to Rules 32(a)(7)(B) and (C), Fed. R. App. P., I certify 

that this amicus brief uses a mono-spaced typeface of 14 characters per 

inch and contains 4,312 words.

I certify that the digital version and hard copies of the Secretary’s 

Brief are identical. I further certify that a virus scan was performed on 

the Brief using McAfee, and that no viruses were detected. 

Dated: August 22, 2018 s/ Stephanie B. Bitto

STEPHANIE B. BITTO

Trial Attorney 
CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of August, 2018, true and 

correct copies of the foregoing Brief for the U.S. Secretary of Labor 

as Amicus Curiae Supporting Plaintiff-Appellant were filed 

electronically with the Clerk of the Court for the United States Court of 

Appeals for the Ninth Circuit by using the appellate CM/ECF system 

and served electronically via email to the Participants in the case who 

are registered CM/ECF users of the appellate CM/ECF system.

Dated: August 22, 2018 s/ Stephanie B. Bitto 

STEPHANIE B. BITTO

Trial Attorney