               Case: 17-10833       Date Filed: 10/12/2017      Page: 1 of 20


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-10833
                              ________________________

                         D.C. Docket No. 1:14-cv-04122-WBH



SECRETARY, U.S. DEPARTMENT OF LABOR,

                                                                       Plaintiff - Appellant,

                                            versus


ROBERT N. PRESTON,
TPP HOLDINGS, INC., d.b.a. The Preston Partnership, LLC,
TPP HOLDINGS INC., EMPLOYEE STOCK OWNERSHIP PLAN

                                                                   Defendants - Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (October 12, 2017)

Before WILSON and NEWSOM, Circuit Judges, and MORENO, * District Judge.

NEWSOM, Circuit Judge:

*
 Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
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      It is hornbook law that rights of all kinds—even constitutional ones—can be

waived. For instance, a criminal defendant might for one reason or another elect to

waive his Fourth Amendment freedom from unreasonable searches, his Fifth

Amendment privilege against self-incrimination, or his Sixth Amendment right to

the assistance of counsel. In the same way, a civil litigant can waive his Seventh

Amendment right to a jury trial or his right, rooted in the Fourteenth Amendment,

to be free from overbroad assertions of personal jurisdiction. So too, a sovereign

State may choose to waive its Eleventh Amendment immunity from suit.

      This case also concerns waiver—but not of some fundamental constitutional

guarantee. Rather, this case is about … the Employee Retirement Income Security

Act of 1974, affectionately (and hereinafter) known as “ERISA.” In particular, this

interlocutory appeal requires us to determine whether a defendant is capable of

expressly waiving the six-year statute of repose contained in ERISA Section

413(1), 29 U.S.C. § 1113(1)—or whether instead, the protection provided by

Section 1113(1) is so essential, so fundamental, that it (seemingly almost alone

among personal rights) is inherently indefeasible and unwaivable.

      We won’t bury the lede. In response to the district court’s certified question,

we answer yes—Section 1113(1)’s statute of repose is subject to express waiver.

                                         I

      Robert Preston was the owner and CEO of TPP Holdings, Inc., which



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established the TPP Employee Stock Ownership Plan in 2004 to provide retirement

income for TPP’s employees. The Secretary of Labor brought this ERISA action

alleging that Preston, who also served as the Plan’s trustee, breached his fiduciary

duties and engaged in prohibited self-dealing when, in 2006 and then again in

2008, he knowingly caused the Plan to purchase his own TPP stock at an inflated

price. The Secretary separately alleged that Preston, TPP, and the Plan engaged in

assorted other misdeeds (terminating plan participants, failing to pay required

distributions, etc.) in 2008.

       Prior to filing suit, the Secretary notified Preston, TPP, and the Plan

(together, “the defendants”) of his claims, and the parties attempted to negotiate a

settlement. 1 While the negotiations were ongoing, the parties entered into a series

of “tolling agreements” of the sort that are increasingly common in civil litigation.

The first such agreement was executed in August 2011; it was then extended three

times over the next few years. The final extension, which was inked in May 2014,

extended the Secretary’s filing deadline until December 31, 2014.

       In each of the tolling agreements, the Secretary offered to delay filing any

action until a specified date in exchange for the defendants’ pledge not to raise a

timeliness defense in the event the Secretary later sued. In particular, the


1
  Although Hilda Solis was the Secretary of Labor at the time, we refer to “the Secretary” in the
masculine form for the sake of consistency, as Alexander Acosta has since assumed the post and
the responsibility of defending the office’s position in this Court.


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defendants broadly stipulated that, as to any suit filed by the Secretary during the

range of dates specified in the agreements, 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.” The defendants

have acknowledged that they entered into the tolling agreements knowingly,

willingly, and voluntarily. See Oral Arg. Tr. at 14:10.

      The parties ultimately failed to reach a settlement, and the Secretary filed

this action on December 30, 2014, one day before the expiration of the agreed-

upon tolling period. Despite their agreements not to assert a time bar, the

defendants moved to dismiss the Secretary’s complaint on the ground that all

claims arising from alleged violations that occurred before December 30, 2008—

six years prior to the complaint’s filing—were foreclosed by ERISA’s limitation-

of-actions provision. That statute, which is at the heart of this case, 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


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             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.

      In response to the Secretary’s contention that they had expressly waived

their right to assert a timeliness defense, the defendants asserted that the tolling

agreements were invalid and unenforceable. Section 1113(1), they said,

“establishes an unyielding statute of repose” that cannot be waived, even by a

party’s express agreement.

      The district court agreed with the defendants and held that because Section

1113(1) constitutes a statute of repose, rather than an ordinary statute of

limitations, it “is not subject to waiver—even express waiver.” Accordingly, the

court dismissed all of the Secretary’s claims arising from events that occurred

before December 30, 2008.

      The Secretary moved for reconsideration, arguing (among other things) that

the district court’s “categorical” rule that statutes of repose cannot be waived

contradicts governing precedent, which instead requires a determination whether

the applicable time bar is “jurisdictional.” The district court denied the motion,

and the Secretary sought leave to file an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). The district court granted permission and certified the following



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question, which this Court agreed to consider: “Is the limitation of actions

contained in 29 U.S.C. § 1113 subject to express waiver?”

       We turn, then, to a careful examination of that question.2

                                               II

       The Secretary and the defendants come at the waiver issue differently. For

his part, the Secretary contends that the question turns on whether or not Section

1113(1)’s time bar embodies a “jurisdictional” limitation—because it doesn’t, he

says, the bar is necessarily waivable. The defendants, by contrast, maintain that

Section 1113(1)’s status as a statute of repose (as opposed to limitations) is

determinative—statutes of repose, they say, can’t be waived, even expressly. We

consider the parties’ arguments in turn.

                                              A
       Under our precedent, the jumping-off point is In re Pugh, 158 F.3d 530

(11th Cir. 1998), which, as the Secretary points out, indicates that the principal

criterion in deciding whether a limitations period can be waived is its

“jurisdictional” character. In Pugh, this Court considered whether debtors had

waived the limitations periods contained in two Bankruptcy Code provisions by


2
  “We review de novo a question of law certified by the district court pursuant to § 1292(b).”
Johnson v. City of Fort Lauderdale, 148 F.3d 1228, 1229 n.3 (11th Cir. 1998). Although the
defendants briefly contend that an abuse-of-discretion standard should apply because the district
court denied the Secretary’s motion for reconsideration, they acknowledge—and indeed
emphasize, correctly—that “[t]his interlocutory appeal presents a purely legal issue of statutory
interpretation.” Br. of Appellees at 1–2. Accordingly, our review is de novo.


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failing to raise them as affirmative defenses to an adversary proceeding brought by

a bankruptcy trustee. Id. at 530. We acknowledged that the waiver issue could “be

conceptualized in different ways”—including, as relevant here, either “as a dispute

over whether the[] code provisions constitute statutes of repose or statutes of

limitations” or, instead, “as a disagreement over whether the[] code provisions

constitute grants of subject matter jurisdiction that leave a court without any

authority to hear certain proceedings … after the limitations period has elapsed.”

Id. at 533–34. We concluded that the latter approach—keying the waiver

determination to the particular time bar’s “jurisdictional” character—was “more

conducive to reasoned analysis.” Id. at 533. Pursuant to Pugh, then, we begin our

assessment of Section 1113(1) by considering whether it limits courts’ subject

matter jurisdiction—in which case its time bar is not waivable—or is instead a

non-jurisdictional claim-processing rule—in which case waiver is permissible. See

id. at 534. See also In re Trusted Net Media Holdings, LLC, 550 F.3d 1035 (11th

Cir. 2008) (en banc) (reaffirming Pugh’s analytical framework). 3

       Before we get in too deep, a bit of background: In a recent line of decisions,

the Supreme Court has set out to impose some discipline on the previously slippery


3
  To be clear, Pugh’s framework applies beyond the context of the Bankruptcy Code. Pugh itself
relied on cases involving the Clayton Act and the Interstate Commerce Act, 158 F.3d at 537, and
this Court has subsequently relied on Pugh in cases interpreting other statutes, see, e.g.,
Davenport Recycling Assocs. v. C.I.R., 220 F.3d 1255, 1259 (11th Cir. 2000) (Internal Revenue
Code).


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use of the term “jurisdictional.” See, e.g., Musacchio v. United States, 136 S. Ct.

709, 716 (2016); United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015);

Henderson v. Shinseki, 562 U.S. 428, 435 (2011); John R. Sand & Gravel Co. v.

United States, 552 U.S. 130, 133 (2008); Arbaugh v. Y&H Corp., 546 U.S. 500,

510 (2006). In so doing, the Court has emphasized—repeatedly—that statutory

limitation periods and other filing deadlines “‘ordinarily are not jurisdictional’”

and that a particular time bar should be treated as jurisdictional “only if Congress

has ‘clearly stated’ that it is.” Musacchio, 136 S. Ct. at 716–17 (quoting Sebelius

v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824–25 (2013)). Establishing the

requisite clear statement requires a party to “clear a high bar”—in particular, by

demonstrating that “traditional tools of statutory construction … plainly show that

Congress imbued a procedural bar with jurisdictional consequences.” Kwai Fun

Wong, 135 S. Ct. at 1632.

      Against that backdrop, we have little difficulty concluding that Section

1113(1)’s limitations period is not jurisdictional. Neither Section 1113(1)’s text

nor the broader statutory context in which it exists provides any indication—let

alone the required clear statement—that its limitations period is intended to curtail

a reviewing court’s jurisdiction.

      First, and most importantly, Section 1113(1)’s language does not “‘speak in

jurisdictional terms or refer in any way to the jurisdiction of the district courts.’”



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Arbaugh, 546 U.S. at 515 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 394 (1982)); accord, e.g., Pugh, 158 F.3d at 538 (same). Congress is plenty

capable of erecting a true jurisdictional bar when it wants to—we have pointed, for

instance, to the phrase “[n]o court, justice, or judge shall have jurisdiction” as

exemplary. See Santiago-Lugo v. Warden, 785 F.3d 467, 473–74 (11th Cir. 2015).

But when, as here, a statute “speaks only to a claim’s timeliness, not to a court’s

power,” it should be treated as non-jurisdictional. Kwai Fun Wong, 135 S. Ct. at

1632.

        To be clear, and contrary to the defendants’ suggestion, Section 1113(1)’s

use of mandatory language—“No action may be commenced”—doesn’t do the

trick. The Supreme Court has flatly “rejected the notion that all mandatory

prescriptions, however emphatic, are ... properly typed jurisdictional.” Henderson,

562 U.S. at 439 (quotation marks omitted). And indeed, the Court has described

statutory phrasing much like Section 1113(1)’s―“no action shall be brought”―as

“boilerplate,” Jones v. Bock, 549 U.S. 199, 220 (2007), and has deemed an even

stronger proscription―“shall be forever barred”―to be ordinary, non-

jurisdictional claim-processing language, Kwai Fun Wong, 135 S. Ct. at 1633–38.

Under clear Supreme Court precedent, it is only an express reference to

jurisdiction, not firmness more generally, that counts. Because Section 1113(1)

contains no such reference, it is non-jurisdictional—and thus presumptively



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waivable. 4

       Statutory context confirms Section 1113(1)’s non-jurisdictional character.

The Supreme Court “has often explained that Congress’s separation of a filing

deadline from a jurisdictional grant indicates that the time bar is not jurisdictional.”

Kwai Fun Wong, 135 S. Ct. at 1633 (collecting cases). Here, Congress placed

Section 1113 in Part 4 of ERISA—“Fiduciary Responsibility”—which establishes

the substantive standards applicable to plan fiduciaries. See generally 29 U.S.C.

§§ 1101–1114. In contrast, Congress housed the “Jurisdiction” provisions, which

delineate state and federal courts’ subject matter jurisdiction over ERISA claims,

id. § 1132(e), in an altogether separate part of the statute—namely, Part 5, titled

“Administration and Enforcement.” See generally id. §§ 1131–1151. Conferring

“jurisdictional” status on Section 1113(1)’s limitations period would thus not only

violate the provision’s plain language, but would also “disregard the structural

divide built into the statute.” Kwai Fun Wong, 135 S. Ct. at 1633.

                                              * * *

       Because we find no clear textual indication that Section 1113(1)’s time bar

was intended to limit courts’ subject matter jurisdiction, we hold that the provision

4
 That Section 1113(1)’s time bar is subject to a “fraud or concealment” exception further
underscores that is not jurisdictional. Such express exceptions are “indicative of a certain degree
of flexibility that is inherently inconsistent with the jurisdictional label.” Avila-Santoyo v. U.S.
Attorney Gen., 713 F.3d 1357, 1362 (11th Cir. 2013) (quotation marks omitted); see also Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 165 (2010) (observing that it would be “unusual” to
ascribe jurisdictional significance to a provision that is subject to textually specified exceptions).


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is non-jurisdictional and therefore (under Pugh) presumptively waivable. 5

                                               B
       The defendants have a different way of looking at the waiver issue. The

“jurisdictional” inquiry is not determinative, they say, because even if Section

1113(1) is non-jurisdictional, it might nonetheless be (for other reasons) non-

waivable. In particular, the defendants assert—as the district court held—that

jurisdictional considerations aside, because Section 1113(1) is a statute of repose

rather than an ordinary statute of limitations, it “is not subject to waiver—even

express waiver.” We turn, then, to the questions (i) whether Section 1113(1) is

indeed a statute of repose and (ii) if so, whether its status as such renders it non-

waivable.

                                                   1

       As an initial matter, we agree with the defendants—and the Secretary, for

that matter—that Section 1113(1)’s limitation-of-actions provision is indeed a


5
  Before moving on, we pause to clarify one issue—ironically enough, about an allegation of
“waiver,” albeit of a different stripe. In their briefing, the defendants repeatedly assert that the
Secretary waived “various … arguments raised, and authorities cited”—including Pugh—by
failing to make or cite them in response to the defendants’ motion to dismiss in the district court.
See, e.g., Br. of Appellees at 9, 13, 39–40. The defendants misunderstand the law. Parties can
most assuredly waive positions and issues on appeal, but not individual arguments—let alone
authorities. See, e.g., Yee v. City of Escondido, Cal., 503 U.S. 519, 534 (1992) (“Once a [] claim
is properly presented, a party can make any argument in support of that claim; parties are not
limited to the precise arguments they made below.”). Offering a new argument or case citation
in support of a position advanced in the district court is permissible—and often advisable. (Were
the rule otherwise, we could never expect the quality and depth of argument to improve on
appeal—an unfortunate result.)


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statute of repose, and not a mere statute of limitations. Whereas a statute of

limitations establishes a time limit “based on the date when the claim accrued,” a

statute of repose bars “any suit that is brought after a specified time since the

defendant acted,” without regard to any later accrual. Black’s Law Dictionary

1636–37 (10th ed. 2014) (emphasis added). Because by its plain terms Section

1113(1) bars any action brought more than six years after the date of the

fiduciary’s “last action” that constituted the alleged breach—or in the case of an

omission the last date on which the fiduciary could have cured the breach, see 29

U.S.C. §1113(1)—we think it clear that the time bar is properly classified as a

statute of repose.

                                           2

      But that’s just the beginning of the defendants’ argument. The real thrust of

their position is that, as a statute of repose, Section 1113(1)’s limitations period is

inherently and “by definition” non-waivable—even (as in this case) by express

agreement. For the reasons explained below, we reject the defendants’ position as

inconsistent with both law and logic.

                                           a

      First, there is the fact that, overwhelmingly, the authorities cited by the

defendants—and also the district court—have nothing to do with express waiver,

but rather involve the altogether separate issue of “equitable tolling.” See, e.g.,



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California Public Employees’ Ret. Sys. v. ANZ Sec, Inc., 137 S. Ct. 2042 (2017);

CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014); Rogers v. Nacchio, 241 F.

App’x 602 (11th Cir. 2007). To be clear, the judge-made doctrine of equitable

tolling has nothing to do with a defendant’s waiver, let alone his express waiver.

Indeed, equitable tolling isn’t principally concerned with a defendant’s conduct at

all—whether, for instance, he relinquished a time bar through inaction or (as here)

affirmatively renounced it. Rather, the equitable-tolling doctrine’s focus is on the

plaintiff’s particular circumstances and the fairness, given those circumstances, of

holding him to a hard-and-fast filing deadline. See, e.g., Black’s, supra, at 656.

      Waldburger, on which the district court chiefly relied, illustrates the

inappositeness of the defendants’ cases. There, in the course of deciding whether a

provision contained in the Comprehensive Environmental Response,

Compensation, and Liability Act preempted state statutes of repose, as well as

statutes of limitations, the Supreme Court explored the differences between the two

types of limitations periods. “One central distinction,” the Court observed, is that

“[s]tatutes of limitations, but not statutes of repose, are subject to equitable

tolling.” 134 S. Ct. at 2183. In explaining that distinction, the Court emphasized

the different policies that underlie statutes of limitations and repose:

      Equitable tolling is applicable to statutes of limitations because their
      main thrust is to encourage the plaintiff to pursue his rights diligently,
      and when an extraordinary circumstance prevents him from bringing a
      timely action, the restriction imposed by the statute of limitations does

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      not further the statute’s purpose. But a statute of repose is a judgment
      that defendants should be free from liability after the legislatively
      determined period of time, beyond which the liability will no longer
      exist and will not be tolled for any reason.

134 S. Ct. at 2183–84 (internal citations and quotation marks omitted).

      That’s all well and good as far as it goes, but it doesn’t go nearly as far as

the defendants’ position requires. Again—and this is the key point—the Court in

Waldburger observed only that statutes of repose aren’t subject to equitable

tolling. Our case has nothing to do with equitable tolling; rather, the defendants

here executed a series of contracts in which they expressly—and (as they have

since acknowledged) knowingly, willingly, and voluntarily—renounced their rights

under Section 1113(1). That express waiver makes this case a whole different

ballgame. The mere fact that a defendant ordinarily won’t lose the protection of a

statute of repose through no fault (or even act) of his own―as in the equitable-

tolling context―says nothing about whether he can expressly disavow that

protection. A statute of repose confers on a defendant a personal privilege of sorts,

in the form of an immunity from further liability. While that privilege can’t just be

snatched out of the defendant’s hand—certainly not, as Waldburger confirms, by a

squishy doctrine like equitable tolling—there is nothing to prevent the defendant

from voluntarily giving it away.

      ANZ and Rogers suffer from the same fundamental defect. Both are

equitable-tolling cases, and thus provide no support the defendants’ more strident


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position that statutes of repose can’t be even expressly waived. See, e.g., ANZ, 137

S. Ct. at 2051–55 (holding that the limitation period contained in Section 13 of the

Securities Act, 15 U.S.C. § 77m, is a statute of repose not subject to “equitable

tolling”); Rogers, 241 F. App’x at 605 (holding that the five-year statute of repose

in 28 U.S.C. § 1658 is not subject to “tolling principles”). And in fact, ANZ

boomerangs back around to undermine the defendants’ position. There, the

Supreme Court observed that even equitable tolling of a statute of repose may be

permissible “where there is a particular indication that the legislature did not intend

the statute to provide complete repose but instead anticipated the extension of the

statutory period under certain circumstances”—as, for instance, where “the statute

of repose itself contains an express exception ….” 137 S. Ct. at 2050. As an

example, the Court cited the fraud-or-concealment exception to 29 U.S.C. §

1113—the very statute of repose at issue in this case. Id. Logically, if Section

1113(1)’s built-in exception even plausibly opens the door to equitable tolling,

then it would seem to clinch the case for enforcing an express waiver.

      In fairness, the defendants do cite one express-waiver decision that warrants

close consideration. In particular, they assert that Mid State Horticultural Co. v.

Pennsylvania Railroad Co., 320 U.S. 356 (1943), supports their contention that

allowing a party to waive Section 1113(1)’s protection would frustrate ERISA’s

“purpose,” which the defendants take to be ensuring that the Secretary pursues



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relief in a timely fashion. See Br. of Appellees at 21 n.4, 30, 36–40; Oral Arg. Tr.

at 26:52. We cannot agree with the defendants’ purpose-driven argument.

      The defendants are right that the Supreme Court in Mid State considered

whether a limitations period contained in the Interstate Commerce Act could be

waived “by express agreement.” 320 U.S. at 357. The defendants are also right

that the Court held that the agreed-to waiver there was “invalid as being contrary to

the intent and effect” of the Act, id. at 358, which the Court found was to secure

“the general public interest in adequate, nondiscriminatory transportation at

reasonable rates.” Id. at 361. The Court reasoned that the Act’s limitations period

couldn’t be waived, even expressly, because enforcing a waiver agreement would

undermine the Act’s anti-discrimination purpose by advantaging one party over the

other. Id. at 367.

      But Mid State didn’t purport to impose a blanket rule prohibiting express

waivers of statutes of repose. To the contrary, the Court’s holding there was by its

own description bound up in the specifics of the Interstate Commerce Act and the

policies that the Court found underlay it. Here, the same considerations cut the

other way. It’s true, of course, that limitation-of-actions provisions are generally

intended to promote the timely filing of claims. But the defendants’ position

would frustrate, rather than advance, ERISA’s overarching purpose—which the

statute’s text itself says is to “protect … the interests of participants in employee



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benefit plans and their beneficiaries … 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) (emphasis added). We just can’t see how refusing to

enforce a contractual waiver that all agree was executed knowingly, willingly, and

voluntarily—and on that basis dismissing an enforcement action that seeks to

recover plan participants’ lost retirement savings—could be deemed necessary to

the fulfillment of ERISA’s stated purpose. Quite the contrary, it seems to us.6

                                                  b

       We come, then, to a second problem with the defendants’ position that

Section 1113(1)’s statute of repose is inherently non-waivable: It seems to

contradict a well-established background understanding that statutes of repose are

subject to express waiver. The North Carolina Supreme Court, for instance,

recently concluded that a statute of repose applicable to claims arising out of

improvements to real property could be waived by mutual agreement. See Christie

v. Hartley Const., Inc., 367 N.C. 534 (2014). In so holding, the court emphasized


6
  Although the district court didn’t rely on it, the defendants have also cited Harris v. Bruister,
Civ. A. No. 4:10cv77-DPJ-FKB, 2013 WL 6805155 (S.D. Miss. Dec. 20, 2013), in support of
their position. It is true, as the defendants say, that Harris is for all practical purposes on point;
the court there held that Section 1113(1)’s statute of repose is not subject to express waiver. It is
also true, however, that Harris is an unpublished district court decision from another circuit, and
that in reaching its conclusion about express waiver the court there relied (we think erroneously)
on authorities and sources that addressed only equitable tolling. See id. at *5–*6. In any event,
for reasons stated in text, we find Harris unpersuasive and decline to follow it.


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that it could “see no public policy reason why the beneficiary of a statute of repose

cannot bargain away, or even waive, that benefit.” Id. at 540. The Supreme Court

of Colorado has since reached the same conclusion regarding a statute of repose in

that State’s Uniform Fraudulent Transfer Act. See Lewis v. Taylor, 375 P.3d 1205

(Colo. 2016). There’s no need to multiply examples, but we could go on and on.

See, e.g., Townes v. Rusty Ellis Builder Inc., 98 So. 3d 1046, 1053–55 (Miss. 2012)

(holding that, in general, parties can contractually modify statutes of repose); cf.,

e.g., Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 738

(Tenn. 2013) (holding that party could waive statute of repose even implicitly by

failing to timely assert it); FDIC v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012) (same);

Pinigis v. Regions Bank, 942 So. 2d 841, 847 (Ala. 2006) (same).

      Thus, far from there being a categorical rule prohibiting express waiver of

statutes of repose—of the sort that the defendants say prevails in ERISA—there

seems to be a broad consensus that such provisions can be expressly waived. We

have found no indication that Congress intended to enshrine some contrary—and

idiosyncratic—rule in Section 1113(1).

                                           c

      Finally, there is good ol’ common sense. Why wouldn’t Section 1113(1)’s

limitations period be subject to express waiver? With respect to all manner of

personal rights, the Supreme Court has long adhered to what it has called a



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“presumption of waivability.” United States v. Mezzanatto, 513 U.S. 196, 200–02

(1995). So, for instance, the Court held more than a century ago that “[a] party

may waive any provision … of a statute[] intended for his benefit.” Shutte v.

Thompson, 82 U.S. (15 Wall.) 151, 159 (1872). The same rule prevails today:

“[A]bsent some affirmative indication of Congress’ intent to preclude waiver,”

courts are to presume federal “statutory provisions are subject to waiver by

voluntary agreement of the parties.” Mezzanatto, 513 U.S. at 201; accord, e.g.,

New York v. Hill, 528 U.S. 110, 114 (2000) (holding that by “assent[ing] to delay

on the applicable time limits” for commencing trial, a criminal defendant waived

the right to enforce the deadline). Why a different rule for ERISA’s statute of

repose? What makes it so special?

      For that matter, even constitutional rights are subject to express waiver. A

civil litigant, of course, can waive his Seventh Amendment right to a jury trial, see

Hodges v. Easton, 106 U.S. (16 Otto) 408, 412 (1882), as well as his Fourteenth

Amendment freedom from overbroad assertions of personal jurisdiction, see

Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

704 (1982). So too, a sovereign State can waive its Eleventh Amendment

immunity from suit. See College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 675 (1999). Even criminal defendants—in

jeopardy of losing life or liberty—“may knowingly and voluntarily waive many of



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the most fundamental protections afforded by the Constitution.” Mezzanatto, 513

U.S. at 201 (collecting decisions). It would be passing strange—bizarre, in fact—

to conclude that while a litigant can renounce his most basic freedoms under the

United States Constitution, he is powerless to waive the protection of … ERISA’s

statute of repose. No way.

                                        IV

      No matter how we come at the question, we arrive at the same answer:

ERISA’s limitation-of-actions provision, 29 U.S.C. § 1113(1), is subject to express

waiver. Under Pugh, because Section 1113(1) doesn’t erect a “jurisdictional” bar,

it is presumptively waivable. Moreover, and in any event, there is just no good

reason to conclude that Section 1113(1)—unlike other federal (and even

constitutional) protections—can’t be expressly waived simply because it’s a statute

of repose.

      Accordingly, in response to the certified question—“Is the limitation of

actions contained in 29 U.S.C. § 1113 subject to express waiver?”—we answer in

the AFFIRMATIVE.

      Question ANSWERED and case REMANDED for proceedings consistent

with this opinion.




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