__________________ 

__________________ 

 

__________________ 

__________________ 

 

__________________ 

 

 

No. 16- ____ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

THOMAS E. PEREZ, Secretary, U.S. Department of Labor, 

Plaintiff-Petitioner, 

v. 

 ROBERT N. PRESTON, et al., 

Defendants-Respondents. 

On Petition from the United States District Court 

for the Northern District of Georgia 

SECRETARY'S PETITION FOR PERMISSION TO APPEAL CERTIFIED 

INTERLOCUTORY ORDER PURSUANT TO 28 U.S.C. § 1292(b) 

M. PATRICIA SMITH THOMAS TSO 

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 
TABLE OF CONTENTS
 

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

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 

DISCLOSURE STATEMENT .......................................................................... 1 of 2 

BACKGROUND FACTS AND PROCEDURAL HISTORY ................................. 2 

A.	 Initial Dismissal ......................................................................... 2 

B.	 Motion for Reconsideration ....................................................... 3 

C. Motion for Certification for Interlocutory Appeal..................... 5 

QUESTION PRESENTED ....................................................................................... 6 

REASONS TO GRANT THE PETITION ............................................................... 6 

A.	 The Issue for Appeal Is a Controlling Question of 

Law............................................................................................. 7 

B. Substantial Grounds Exist for Difference of Opinion on the 

Issue............................................................................................ 8 

1. The district court misapplied this Court's precedent in 

Pugh ...................................................................................... 9 

2. The district court failed to properly apply Supreme 

Court precedent ................................................................... 13 

3. Numerous authorities conclude that statutes of repose 

are waivable ........................................................................ 15 

C. Interlocutory Review Will Materially Advance this 

Case's Termination ................................................................... 19 

CONCLUSION ....................................................................................................... 20 

CERTIFICATE OF SERVICE 

i 
TABLE OF AUTHORITIES 

Federal Cases: 

Arbaugh v. Y & H Corp., 

546 U.S. 500 (2006) .............................................................................................. 11 

Brooklyn Sav. Bank v. O'Neil, 

324 U.S. 697 (1945) ....................................................................................... 10 n.1 

CTS Corp. v. Waldburger, 

134 S. Ct. 2175 (2014) .......................................................................................... 17 

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

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

Deen v. Egleston,
 

597 F.3d 1223 (11th Cir. 2010) .............................................................................. 8 

Dial v. Healthspring of Ala., 

612 F. Supp. 2d 1205 (S.D. Ala. 2007) ................................................................ 16 

Fed. Hous. Fin. Agency v. UBS Americas, Inc., 

858 F. Supp. 2d 306 (S.D.N.Y. 2012) .................................................................... 8 

Fencorp Co. v. Ohio Ky. Oil Corp., 

675 F.3d 933 (6th Cir. 2012) ................................................................................ 18 

Herman v. NationsBank Tr. Co., 

126 F.3d 1354 (11th Cir. 1997) ............................................................................ 20 

Holland v. Florida, 

560 U.S. 631 (2010) .............................................................................................. 13 

Howsam v. Dean Witter Reynolds, Inc., 

537 U.S. 79 (2002) ................................................................................................ 16 

In re Butcher, 

829 F.2d 596 (6th Cir. 1987) ......................................................................... 10, 11 

ii 
Federal Cases (Continued): 

In re Iron-Oak Supply Corp., 

162 B.R. 301 (Bankr. E.D. Cal. 1993) .................................................................. 11 

In re Osterman, 

296 F. App'x 900 (11th Cir. Oct. 21, 2008) ............................................................ 7 

In re Pugh, 

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

In re Suntrust Banks, Inc. ERISA Litig., 

2011 WL 13824 (N.D. Ga. Jan. 3, 2011) ................................................................ 8 

In re Trusted Net Media Holdings, LLC, 

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

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

201 F.3d 848 (7th Cir. 2000) ................................................................................ 15 

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

552 U.S. 130 (2008) .............................................................................................. 13 

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

501 U.S. 350 (1991) .............................................................................................. 12 

McFarlin v. Conseco Services, LLC, 

381 F.3d 1251 (11th Cir. 2004) ....................................................................... 9, 20 

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

320 U.S. 356 (1943)................................................................................. 10, 10 n.1 

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

108 F. Supp. 2d 1266 (N.D. Ala. 2000) aff'd, 

267 F.3d 1209 (11th Cir. 2001) ..................................................................... 18, 19 

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

267 F.3d 1209 (11th Cir. 2001), .................................................................... 13, 19 

iii 
Federal Cases (Continued): 

Musacchio v. United States, 

136 S. Ct. 709 (2016) ............................................................................................ 14 

Nat'l Credit Union Admin. Bd. v. Barclays Capital Inc., 

785 F.3d 387 (10th Cir. 2015) .............................................................................. 18 

Perez v. PBI Bank, Inc., 

69 F. Supp. 3d 906 (N.D. Ind. 2014) ............................................................. 14, 15 

Rogers v. Nacchio, 

241 F. App'x. 602 (11th Cir. July 12, 2007) ......................................................... 12 

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

288 F.3d 895 (6th Cir. 2002) ................................................................................ 18 

S.R. v. United States, 

555 F. Supp. 2d 1350 (S.D. Fl. 2008) ..................................................................... 8 

Solis v. Seibert, 

2011 WL 398023 (M.D. Fl. Feb. 4, 2011) ............................................................ 16 

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

79 F. Supp. 2d 1 (D. Mass. 2000) ......................................................................... 18 

United States v. Kwai Fun Wong, 

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

United States v. Mezzanatto, 

513 U.S. 196 (1995) .............................................................................................. 14 

W. Tenn. Chapter of Associated Builders & Contractors v. Memphis, 

138 F. Supp. 2d 1015 (W.D. Tenn. 2000) ............................................................ 16 

State Cases: 

Christie v. Hartley Const., Inc., 

766 S.E.2d 283 (N.C. 2014).................................................................................. 18 

iv 
State Cases-cont.: 

Lewis v. Taylor, 

375 P.3d 1205 (Colo. 2016) ............................................................... 16, 17, 18, 19 

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

670 A.2d 1194 (Pa. 1996) ..................................................................................... 18 

Federal Statutes:
 

Title 18, Crimes and Criminal Procedure: 

18 U.S.C. § 3282(a) ................................................................................................. 14 

Title 28, Judiciary and Judicial Procedure: 

28 U.S.C. § 1292(b) ...................................................................................... 1, 5, 7, 8
 

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

29 U.S.C. § 1001 et seq.:
 

Section 413, 29 U.S.C. § 1113 ..................................................................... 1, 9, 15 

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

Miscellaneous: 

Fed. R. App. P. 5 ........................................................................................................ 1 

16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 

Federal Practice & Procedure § 3930 (2d ed. 1996) ............................................. 20 

v 
U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 

DISCLOSURE STATEMENT 

Borzi, Phyllis C., Assistant Secretary, Employee Benefits Security Administration, 

U.S. Department of Labor 

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. 

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

Gershengorn, Ian, U.S. Solicitor General 

Lavore, Andrew J. 

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

Perez, Thomas, U.S. Secretary of Labor 

Preston, Robert N. 

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

Schreeder, Wheeler & Flint, LLP 

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

Smith, M. Patricia, Solicitor of Labor 

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

TPP Holdings, Inc. Employee Stock Ownership Plan 

1 of 2 
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 
Pursuant to Federal Rule of Appellate Procedure 5, the Secretary of Labor 

petitions this Court for permission to appeal an order partially granting Defendants' 

motion to dismiss, which the district court certified for interlocutory review under 

28 U.S.C. § 1292(b). Order, Perez v. Preston, Case No. 4:10-cv-4214 (N.D. Ga. 

Nov. 22, 2016) (Dkt. 29) (Ex. 1 hereto) ("Certification Order"). As the district 

court's Certification Order explains, the question certified for immediate review – 

"[i]s the limitation of actions contained in [ERISA section 413,] 29 U.S.C. § 1113 

subject to express waiver?" – satisfies the statutory requirement for interlocutory 

appeal as (1) a pure, "controlling question of law" on which there is (2) clearly 

"substantial ground for difference of opinion" and (3) whose resolution will 

"materially advance the ultimate termination of the litigation." See id. at 3 (citing 

28 U.S.C. § 1292(b)). 

Only section 413(1), 29 U.S.C. § 1113(1), is at issue. It 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 . . . the date of the last action 

which constituted a part of the breach or violation[.]" Deciding the question 

certified in this case will resolve an intra-circuit conflict that affects the Secretary's 

ERISA investigations and enforcement actions and private ERISA lawsuits across 

this Circuit. 
  

I. BACKGROUND FACTS AND PROCEDURAL HISTORY
 

A. Initial Dismissal 

TPP Holdings, Inc. ("TPP") sponsors the TPP Employee Stock Ownership 

Plan ("Plan" or "ESOP"), a pension plan that primarily invests in employer stock. 

Compl. (Dkt. 1) at ¶¶ 7, 8, 13. The Plan purchased TPP stock in 2008. Id. In 

January 2009, the Secretary opened an investigation into the Plan. Before reaching 

the statutory time limit to file suit, the Secretary and Defendants signed agreements 

in which Defendants expressly waived their rights under ERISA's statute of 

limitations, including its six-year time limit, section 413(1), 29 U.S.C. § 1113(1), 

for specified periods of time. See Dismissal Order (Dkt. 17) at 4 (Ex. 2 hereto); 

Tolling Agreements. (Dkts. 10-1 to 10-4). In exchange, the Secretary promised not 

to file suit until each period elapsed. Id. at 2. The agreements permitted the parties 

to pursue settlement negotiations. Id. The parties did not reach a settlement, so the 

Secretary filed suit once the period of time elapsed. See id. at 1-4. 

The Secretary's suit alleges that TPP and its owner, Robert Preston, breached 

fiduciary duties and committed prohibited transactions under ERISA when they 

caused the Plan to purchase TPP stock from Preston at an inflated price, failed to 

pay participants proper distributions due from the Plan, and permitted a bank 

account containing Plan assets to be used as a corporate checking account. See Ex. 

1 at 1; see also Compl. (Dkt. 1) ¶¶ 38-39. Disregarding their prior agreements and 

2 
express waivers of statute of limitations defenses, Defendants moved to dismiss as 

untimely all claims arising more than six years before the Secretary filed suit. Ex. 

2 at 2-3. Defendants argued that the prior agreements are invalid because ERISA's 

six-year limitations period is a statute of repose. Id. The district court agreed and 

dismissed the claims that arose more than six years before the suit was filed, while 

acknowledging that "[n]o published opinion has weighed in on the question of 

whether the statute of repose in [ERISA section 413(1)] can be waived." Id. at 4. 

The court determined that ERISA section 413(1) is a statute of repose, and held 

that no statute of repose is waivable under any circumstance, including by 

agreement of the parties. Id. at 4-7. 

B. Motion for Reconsideration 

The Secretary then sought reconsideration of the district court's partial 

dismissal because the court's generalized and categorical approach to "statutes of 

repose" is inconsistent with the Supreme Court's and this Court's precedents. 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 U.S. 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. Under 

these controlling cases, courts should enforce waivers unless Congress specifically 

intended the time limit to deprive the court of subject-matter jurisdiction. 

3 
Enforcement of waivers does not turn on whether a time limit is labeled a "statute 

of limitation" or a "statute of repose." The Secretary argued below that under the 

proper jurisdictional analysis, section 413(1) is non-jurisdictional and, therefore, 

express waivers of an affirmative defense based on section 413(1) are enforceable. 

The district court denied the Secretary's reconsideration motion. Order Den. 

Recons. (Dkt. 25) at 6 (Ex. 3 hereto). The court was "not convinced of Pugh's 

applicability" to the limitations inquiry because section 413(1) contains different 

language than the provisions analyzed in Pugh, and because it believed 

(incorrectly) that an unpublished Eleventh Circuit case aligned with a categorical 

approach to statutes of repose. Id. at 3. The court further concluded that it would 

reach the same result applying the Secretary's approach, but it avoided any analysis 

of congressional intent, ignoring the instructions in Pugh. Id. at 3-5. 

The district court also disagreed with the Secretary's argument that the 

Supreme Court's decision in Kwai Fun Wong supports the conclusion that section 

413 is not jurisdictional. Ex. 3 at 5. While Kwai Fun Wong plainly adopted a 

presumption that time bars in federal statutes are not jurisdictional and thus 

waivable, 135 S. Ct. at 1634-35, the 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." Ex. 3 at 5. In the court's view, ERISA 

4 
section 413(1) was presumptively jurisdictional because "numerous cases" 

identified by the court had treated section 413(1) as such. Id. In fact, only one 

case cited by the court, a 2014 Mississippi district court case, held that ERISA 

section 413(1) is jurisdictional in an unpublished decision. See id. Other cited 

decisions stated that ERISA section 413(1) is a statute of repose; however, they did 

not conclude that ERISA section 413(1) is jurisdictional or non-waivable. See id. 

Two days after the court denied reconsideration, another district court in this 

Circuit upheld the validity of an agreement with the Secretary in which the 

defendant expressly waived his defense under ERISA section 413(1), just as the 

Defendants here did. Order on Mot. to Dismiss, Perez v. Commodity Control 

Corp., No. 1:16-cv-20245-UU (S.D. Fl. May 4, 2016) (Dkt. 36) (Ex. 4 hereto). 

C. Motion for Certification for Interlocutory Appeal 

In light of this intra-circuit conflict and the importance of this question, the 

Secretary moved to certify the dismissal for an interlocutory appeal under 28 

U.S.C. § 1292(b). The district court granted the motion. The court's Certification 

Order found all the elements of section 1292(b) satisfied because "there is clearly 

substantial ground for difference of opinion" on the issue, which "will materially 

advance the ultimate termination of the litigation," and the court "cannot imagine a 

better example of a 'pure, controlling question of law.'" Ex. 1 at 3. The court 

explained that, because some claims survived dismissal, "there is a good chance 

5 
that this case will come back for a second round if the Eleventh Circuit disagrees 

with this Court" and it will "significantly further the cause of judicial efficiency to 

resolve this question before continuing on with this matter." Id. 

II. QUESTION PRESENTED 

Is the limitation of actions contained in 29 U.S.C. § 1113(1) subject to 

express waiver? 

III. REASONS TO GRANT THE PETITION 

The Secretary is responsible for enforcing ERISA to protect the participants 

and beneficiaries of over 650,000 retirement plans and approximately 2.3 million 

health and welfare plans holding over $8.7 trillion in assets. Bach Decl. (Dkt. 26-3 

¶ 2). Potential defendants routinely waive the statute of limitations during ERISA 

investigations in order to allow the parties the opportunity to resolve the matter 

short of a lawsuit. In this way, these express waivers help to reduce litigation and 

attendant burdens on courts and expense to the parties. As of August 2016, the 

Secretary had signed such agreements with potential defendants in approximately 

235 matters nationwide. Id. ¶ 3. In this case, the Secretary postponed filing suit by 

the limitation date, relying on Defendants' promises not to assert timeliness 

defenses. Defendants failed to uphold their end of the bargain and, instead, 

breached their express agreement. Defendants' conduct should not be rewarded at 

the expense of the public interest and the innocent participants they harmed. 

6 
Against this backdrop, the district court's Dismissal Order creates 

uncertainty as to the validity of these waiver agreements. This uncertainty disrupts 

the Secretary's ability to enforce ERISA's protections, particularly in this Circuit, 

forcing the Secretary to file suit in cases that might have otherwise been resolved 

without litigation or prosecuted after a more complete investigation. These 

consequences are in no one's interest: neither the Secretary's interest in protecting 

participants, nor the interest of potential defendants in resolving matters short of 

litigation, nor the Court's interest in reducing unnecessary litigation. 

This Court has discretion under 28 U.S.C. § 1292(b) to permit an 

interlocutory appeal where, as here, the district court certifies that its order meets 

the statutory requirements. Defendants offered no argument below that the 

dismissal fails to satisfy these requirements, and thereby waived any argument on 

appeal. See In re Osterman, 296 F. App'x 900, 902–03 (11th Cir. Oct. 21, 2008); 

compare Defs.' Resp. to Sec'y's Mot. (Dkt. 27). Certification will permit this Court 

to resolve a legal issue significant for this case and for ERISA's enforcement 

generally on which district courts in this Circuit have disagreed. 

A. The Issue for Appeal Is a Controlling Question of Law 

The district court's Dismissal Order decided a controlling question of law: 

whether ERISA's six-year limitations period is subject to express waiver. All the 

facts necessary for a resolution of that legal question are undisputed. The Order 

7 
dismissed with prejudice the central claims in this case based on a pure legal 

conclusion that ERISA section 413(1) is a "statute of repose" and all "statutes of 

repose" categorically bar express waivers. 

Moreover, an issue of law is controlling where "the certified issue could 

have precedential value for a large number of cases." In re Suntrust Banks, Inc. 

ERISA Litig., 2011 WL 13824, at *2 (N.D. Ga. Jan. 3, 2011). Determinations 

based on time limits, "which go directly to the plaintiff's ability to maintain some 

or all of its claims, are precisely the type of legal issue that Congress intended to be 

addressed through the section 1292(b) procedure." Fed. Hous. Fin. Agency v. 

UBS Americas, Inc., 858 F. Supp. 2d 306, 337 (S.D.N.Y. 2012); see S.R. v. United 

States, 555 F. Supp. 2d 1350, 1360-61 (S.D. Fl. 2008); cf. Deen v. Egleston, 597 

F.3d 1223, 1228-38 (11th Cir. 2010). By holding for the first time in this Circuit 

(and second time anywhere) that express waivers of the ERISA's six-year limit are 

invalid, the Dismissal Order exerts influence on hundreds of ERISA investigations 

and lawsuits seeking to remedy violations in this Circuit and nationwide. 

B. Substantial Grounds Exist for Difference of Opinion on the Issue 

Substantial grounds for difference of opinion clearly exist as to whether 

ERISA's six-year limitations period is subject to waiver by agreement of the 

parties. There are substantial grounds for difference of opinion when, as here, 

court rulings on an issue within the controlling circuit are conflicting, or when 

8 
there is an issue of broad application with "general relevance to other cases in the 

same area of law." See McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1259 

(11th Cir. 2004). Correcting the district court's error in this case will resolve a 

conflict in the lower courts in this Circuit, while also resolving an important issue 

with relevance to numerous pending ERISA investigations and actions. 

1. The district court misapplied this Court's precedent in Pugh 

The district court acknowledged that "[n]o published opinion has weighed in 

on the question of whether the [the six-year limit] in § 1113 can be waived." Ex. 2 

at 4. In determining that parties cannot expressly waive ERISA's six-year limit, the 

district court relied on a perceived distinction between "statutes of repose" and 

"statutes of limitations" for express waivers that finds no basis in Pugh. See 158 

F.3d at 533-34. In Pugh, this Court considered whether parties may waive time 

limits in two sections of the federal Bankruptcy Code, and this Court explicitly 

rejected as irrelevant the categorical distinction between "statutes of repose" and 

ordinary "statute of limitations." Id. This Court held that it is "more conductive to 

reasoned analysis . . . to [determine] . . . whether [limitations] provisions constitute 

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

certain proceedings . . . after the limitations period has elapsed, or whether they are 

true statutes of limitations." Id. (emphasis added). Therefore, a statutory provision 

setting a federal time limit, like ERISA section 413(1), is waivable under Pugh 

9 
                                                            

unless Congress intended the provision to constitute a grant of subject-matter 

jurisdiction and not merely to set forth a limitations period. Id. 

To determine whether the time limits at issue were non-jurisdictional and 

thus waivable, Pugh exhaustively analyzed Congressional intent, looking to "the 

plain language of [the] provisions, the decisions of other courts, the legislative 

history of the provisions, and the statutory scheme." Id. at 538. Pugh noted that 

Supreme Court decisions, such as Midstate Horticultural Co. v. Pennsylvania R.R. 

Co., 320 U.S. 356, 360 (1943), "confirm[] the important role that legislative intent 

plays in determining whether a limitations period can be waived or tolled." 158 

F.3d at 537.1 Pugh rejected the Sixth Circuit's contrary conclusion in In re 

Butcher, 829 F.2d 596 (6th Cir. 1987), that one of the bankruptcy limitations 

periods at issue was "automatically" jurisdictional and non-waivable just because it 

was located in the same part of the statute that created the cause of action. 158 

1

 The district court incorrectly concluded that Midstate supported its dismissal. 

Ex. 2 at 6. In Midstate, the Supreme Court treated the statute of limitation in the 

Interstate Commerce Act as jurisdictional without calling it a statute of repose or 

suggesting that all statutes of repose are jurisdictional. 320 U.S. at 364-67. 

Instead, the Court analyzed the statutory language, structure, and legislative history 

at issue to conclude that the time limitation dictated the courts' jurisdiction and 

therefore could not be voluntarily waived. Id. Two years later, the Supreme Court 

read Midstate as holding that courts must determine whether waiver of a right 

"affecting the public interest . . . contravenes the statutory policy" by examining 

"specific Congressional intent." Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 704­

05 (1945). The district court's analysis and conclusion regarding ERISA section 

413(1) are inconsistent with these authorities. 

10 
F.3d at 535. This Court called Butcher "devoid of analysis" and an example of the 

"categorical approach" that "[t]he Supreme Court has rightly rejected." Id.; see id. 

at 534 (also rejecting a "semantic analogy" between the provisions and "the typical 

statutes of limitations noted by the Court"). Instead, Pugh, 158 F.3d at 536, 

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. 

This Court's decision in Pugh thus rejects any approach that deems a 

limitations period "jurisdictional" and non-waivable without identifying a specific 

legislative intent. This Court en banc reaffirmed Pugh and used its framework to 

find another bankruptcy time limit non-jurisdictional. In re Trusted Net Media 

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

Media affirmed that, consistent with Pugh, Congress must "'clearly state[ ]'" an 

intent to render a time limit jurisdictional. Id. at 1042 (quoting Arbaugh v. Y & H 

Corp., 546 U.S. 500, 515-16 (2006)). This Court's analysis in Pugh is not limited 

to cases under the Bankruptcy Code, 158 F.3d at 537 (citing cases regarding the 

Sherman Antitrust Act and the Interstate Commerce Act), and this Court has cited 

Pugh for non-bankruptcy time limits. E.g., Davenport Recycling Assocs. v. C.I.R., 

220 F.3d 1255, 1259-1260 (11th Cir. 2000) (tax code). 

The district court did not follow Pugh. Rather, the court suggested in its 

11 
Reconsideration Order that Pugh was called into question by Rogers v. Nacchio, 

241 F. App'x. 602, 605 (11th Cir. July 12, 2007), an unpublished and nonprecedential decision regarding the limitations period for asserting a private action 

under the Securities Exchange Act, because Nacchio allegedly "stat[ed]" in 

"decidedly categorical" fashion "that a statute of repose cannot be tolled." Ex. 3 at 

3. But Nacchio does not adopt such a categorical rule. In stating that "tolling 

principles do not apply to the five-year statute of repose" in the Securities 

Exchange Act, Nacchio simply applied binding Supreme Court precedent which 

had held that the almost-identically worded three-year period of repose that 

previously applied to such actions was not subject to equitable tolling by a court 

based on the defendants' fraudulent or misleading conduct. Nacchio, 241 Fed. 

App'x. at 605 (citing Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 

U.S. 350, 363 (1991)). Nacchio says nothing about an express waiver of a 

limitations period. Id. Lampf, the Supreme Court decision on which Nacchio's 

timeliness holding 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). This Court noted that Lampf's 

holding is narrowly tied to the securities statute in that case and not directly 

12 
applicable to other federal statutes. See Moore v. Liberty Nat'l Life Ins. Co., 267 

F.3d 1209, 1215 n.1 (11th Cir. 2001). The district court's attempt to use Nacchio 

to justify its failure to follow Pugh is unpersuasive. Left uncorrected, the district 

court's decision will only confuse other courts on the vitality of Pugh for analyzing 

waivers of federal time limits in general, and the ERISA time limit at issue here. 

2. The district court failed to properly apply Supreme Court precedent 

This Court's holding in Pugh that limitations periods are waivable absent 

specific legislative intent to the contrary is reinforced by the recent line of Supreme 

Court cases holding that federal time bars are only jurisdictional if Congress has 

"'clearly stated' as much." See, e.g., Kwai Fun Wong, 135 S. Ct. at 1632 (quoting 

authorities). The Supreme Court has "'repeatedly stated that the enactment of timelimitation 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"). Thus, in Kwai Fun Wong, 

for example, the Court held that the limitations period in the Federal Tort Claims 

Act is non-jurisdictional because Congress "provided no clear statement indicating 

that [it] [was one of] the rare statute of limitations that can deprive a court of 

jurisdiction." 135 S. Ct. at 1632. In so holding, the Court emphasized that parties 

13 
"must clear a high bar to establish that a statute of limitations is jurisdictional" and 

that "most time bars are nonjurisdictional." Id. (citation omitted). The Court used 

the same framework in Musacchio v. United States to hold that the general statute 

of limitations for federal crimes, 18 U.S.C. §3282(a), is non-jurisdictional and 

waivable. 136 S. Ct. 709, 717 (2016). Congress did not make the "necessary clear 

statement" in section 3282(a); "[r]ather, the statutory text, context, and history 

establish that § 3282(a) imposes a non-jurisdictional defense." Id. 

Under these authorities, a federal limitations period is waivable unless the 

party claiming otherwise can establish that Congress specifically intended the 

statute to deprive courts of jurisdiction once the limitations period elapses. E.g., 

Pugh, 158 F.3d at 533-34; Musacchio, 136 S. Ct. at 717; Kwai Fun Wong, 135 S. 

Ct. at 1632. These authorities follow the well-established rule that "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." United States v. Mezzanatto, 513 U.S. 196, 201 (1995). 

Defendants have not and cannot make such a showing. Congress never 

stated that ERISA's time limits are jurisdictional; in fact, ERISA's text, structure 

and history indicate otherwise. See Sec'y's Briefs (Dkts. 10, 20-1, 26-1); see 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 

14 
29 U.S.C. § 1113 must be deemed jurisdictional"). For example, ERISA's 

limitations and jurisdictional provisions are separate. Id.; compare Pugh, 158 F.3d 

at 538. Under Pugh, because Congress did not clearly state that section 413(1) is 

jurisdictional, the six-year limitations period is waivable. At a minimum, these 

authorities establish substantial grounds for a difference of opinion on the 

correctness of the district court's analysis of section 413(1). Certification permits 

this Court to correct the district court's misapplication of binding precedent. 

3. Numerous authorities conclude that statutes of repose are waivable 

Even those authorities that have considered whether statutes of repose are 

waivable reach a different outcome than the district court below – further 

presenting substantial grounds for a difference of opinion. In Commodity Control, 

the District Court for the Southern District of Florida recently reached a different 

outcome. Ex. 4 at 7-8. The court ruled that, even if ERISA's six-year limit is a 

statute of repose, it can be expressly waived. Id. 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, 

15 
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). 

After Commodity Control, the Supreme Court of Colorado held in Lewis v. 

Taylor that a Colorado limitations period that "contains the language of a statute of 

repose" may be waived by mutual agreement. 375 P.3d 1205, 1209, 1211-12 

(Colo. 2016). The Court echoed Pugh's interpretation of Midstate, 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." Lewis, 357 P.3d at 1209, 1211-12. Lewis supports the 

outcome in Commodity Control and undermines the district court's analysis here. 

Where district courts within a circuit disagree regarding a legal issue and the 

issue is one of first impression, substantial grounds for difference of opinion 

clearly exist. Dial v. Healthspring of Ala., 612 F. Supp. 2d 1205, 1206-07 (S.D. 

Ala. 2007); see W. Tenn. Chapter of Associated Builders & Contractors v. 

Memphis, 138 F. Supp. 2d 1015, 1019 (W.D. Tenn. 2000). Both factors are 

satisfied here, because an intra-circuit split exists, and the issue is one of first 

impression that has neither been addressed by this Court nor analyzed by any other 

16 
federal court of appeals. 

The district court here relied on decisions that do not support its conclusion 

that ERISA section 413(1) is not waivable and do not address Pugh's and Kwai 

Fun Wong's jurisdictional approaches. For example, the district court cited to the 

Supreme Court's decision in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), but 

that decision is inapposite and does not otherwise supersede Pugh's framework. In 

CTS, the Court determined that North Carolina's statute of repose is not preempted 

by the discovery rule in the Comprehensive Environmental Response, 

Compensation, and Liability Act ("CERCLA"). 134 S. Ct. at 2187. In arriving at 

this conclusion, the Court did note that "state-enacted" "statutes of limitations" are 

generally subject to equitable tolling, while "statutes of repose" are not. Id. at 

2182-83. However, the Court did not opine on express waivers, and the Court 

based its holding on the specific legislative intent behind the North Carolina law. 

Id. at 2187. As Lewis noted, "the policy concerns" behind CTS's treatment of the 

North Carolina statute of repose—"freeing defendants from the lingering threat of 

a lawsuit"—"do not apply. . . where the parties expressly agree[] not to assert. . . 

time limitations." 375 P.3d at 1212. The Supreme Court's conclusion that North 

Carolina's statute of repose is not preempted by CERCLA does not support a ruling 

here that ERISA section 413(1) cannot be expressly waived. 

The district court's Dismissal Order cited other cases that are equally 

17 
inapposite. Five of the cases construe state statutes of repose, rather than federal 

time limits, and do not establish any categorical rules about statutes of repose. See 

Roskam Baking Co., Inc. v. Lanham Mach. Co., 288 F.3d 895, 903 (6th Cir. 2002) 

(deciding who has to plead the statute of repose under Michigan law); Fencorp Co. 

v. Ohio Ky. 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 

Life Ins. Co., 108 F. Supp. 2d 1266, 1275 (N.D. Ala. 2000) (refusing to apply an 

Alabama statute of repose to federal claims), aff'd, 267 F.3d 1209, 1215-19 (11th 

Cir. 2001); Stone & Webster Eng'g Corp. v. Duquesne Light Co., 79 F. Supp. 2d 1, 

8 (D. Mass. 2000) (analyzing whether Pennsylvania courts would find a state 

statute of repose waivable); Sharon Steel Corp. v. Workmen's Comp. 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). The sixth decision, Nat'l Credit 

Union Admin. Bd. v. Barclays Capital Inc., 785 F.3d 387, 390 (10th Cir. 2015), 

stated in a one-sentence dictum that a federal securities time limit was not 

waivable. However, this dictum was "devoid of analysis," Pugh, 158 F.3d at 535, 

and not the product of an examination of legislative intent that Pugh requires. 

Indeed, many, if not most, courts recognize that state statutes of repose are 

waivable. E.g., Lewis, 375 P.3d at 1209, 1211-12 (limitations period that 

"contains the language of a statute of repose" waivable by agreement); Christie v. 

18 
Hartley Const., Inc., 766 S.E.2d 283, 287-88 (N.C. 2014) (permitting express 

waivers of statutes of repose). These decisions undermine the Dismissal Order. 

Moreover, the district court cited Moore, which recognized that "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 . . . and 

do not form a regular feature of the landscape in the prosecution of federal rights." 

108 F. Supp. 2d at 1275. This Court adopted this conclusion and recognized that 

"[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." Moore, 267 F.3d at 1215 & n.1. The 

district court's use of inapposite state cases to create a rule of repose in ERISA that 

bars waivers will only encourage other courts to improperly import state rules into 

the federal landscape, a result Congress and this Court never intended. 

C. Interlocutory Review Will Materially Advance this Case's 

Termination 

Interlocutory review of the certified question will address the statute of 

limitations issue that is the basis for dismissing the Secretary's chief claims relating 

to the Plan's stock purchases and subsequent distributions to participants 

terminated more than six years before the Secretary's suit was filed. The remaining 

claims, not dismissed by the court, concern identical Plan distributions to 

participants terminated within the six years before the suit was filed. Both 

19 
distribution claims nevertheless overlap significantly, and resolving these claims 

together eliminate the possibility of duplicative discovery. While the dismissed 

claims challenging the price in the stock transactions are analytically separate from 

the distribution claims, the two sets of claims are still intertwined in important 

ways. First, the accuracy of a participant's distribution may depend on the proper 

value for the stock. See generally Herman v. NationsBank Tr. Co., 126 F.3d 1354, 

1357 (11th Cir. 1997). Second, fact discovery for both sets of claims would 

involve the same fiduciaries and potentially the same experts. Finally, relief for 

any of these claims would require an independent fiduciary because the Plan is 

now terminated. In pragmatic terms, the most cost-effective and efficient remedy 

is to have one independent fiduciary distribute any and all relief in one round of 

distributions rather than wait for separate claims to be appealed and, perhaps, 

following remand, another round of distributions. As the Certification Order notes, 

"there is a good chance that this case will come back for a second round if the 

Eleventh Circuit disagrees with this Court" and it would "significantly further the 

cause of judicial efficiency to resolve this question before continuing on with this 

matter." Ex. 1 at 3. See 16 Wright, Miller, & Cooper, Fed. Prac. & Proc. § 3930, 

at 426 & n.25 (2d ed. 1996); see also McFarlin, 381 F.3d at 1256-57. 

IV. CONCLUSION 

For the foregoing reasons, this Court should grant the Secretary's petition. 

20 
Respectfully submitted, 

M. PATRICIA SMITH 

Solicitor of Labor 

G. WILLIAM SCOTT 

Acting Associate Solicitor 

Plan Benefits Security Division 

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 

Room N-4611 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

(202) 693-5623 – Phone 

(202) 693-5610 – Fax 

Silverman.stephen@dol.gov 

21 
 

CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMIT 

Certificate of Compliance with Type-Volume Limit, 

Typeface Requirements, and Type-Style Requirements 

1.	 This document complies with the word limit of Fed. R. App. P. 

5(c)(1) because, excluding the parts of the document exempted by 

Fed. R. App. P. 32(f): 

This document contains 4874 words. 

2.	 This document 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 document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2010, Times New Roman, 14 point font. 

/s/ _________________________ 

Stephen A. Silverman 

Attorney for U.S. Department of Labor 

Dated: December 1, 2016 
CERTIFICATE OF SERVICE 

I hereby certify that on December 1, 2016, one copy of the foregoing 

Petition for Permission to Appeal Certified Interlocutory Order Pursuant to 

28 U.S.C. § 1292(b), and accompanying exhibits, was served using United 

Parcel Service (UPS), overnight delivery on the following individuals at the 

address below: 

DAVID H. FLINT 

MICHAEL H. FLINT 

ANDREW J. LAVOIE 

Schreeder, Wheeler & Flint, LLP 

1100 Peachtree Street, N.E. Suite 800 

Atlanta, GA 30309-4516 

Telephone: (404) 681-3450 

Facsimile: (404) 681-1046 

E-mail: dflint@swfllp.com 

E-mail: mflint@swfllp.com 

E-mail: alavoie@swfllp.com 

Attorneys for Defendants Robert N. Preston, 

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

Partnership, LLC, and the TPP Holdings, 

Inc. Employee Stock Ownership Plan 

/s/ _________________________ 

Stephen A. Silverman 

Attorney for U.S. Department of Labor 

Dated: December 1, 2016