                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 26 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


DOMINICK BRUNO,                                  No. 11-57000

              Plaintiff - Appellant,             D.C. No. 2:11-cv-04374-R-VBK

  v.                                             MEMORANDUM*

THE TIME WARNER PENSION PLAN,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                      Manual Real, District Judge, Presiding

                        Argued and Submitted May 6, 2013
                               Pasadena, California

Before: Pregerson and Fisher, Circuit Judges, and Gwin, District Judge.**

       Plaintiff-Appellant Dominick Bruno asks this court to reverse the district

court’s judgment dismissing his pension-related claims as untimely. We AFFIRM.




       *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
       The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
      1. Appellee The Time Warner Pension Plan (the TWP Plan) argues for the

first time on appeal that we should apply the statute of repose found in 29 U.S.C. §

1113. The appropriate time limit presents a pure question of law, and meaningful

review of the district court’s judgment requires us to decide what time limit applies

here. We therefore exercise our discretion to consider the TWP Plan’s argument

even though it was not raised below. See MacDonald v. Grace Church Seattle,

457 F.3d 1079, 1086 (9th Cir. 2006).

      2. Section 1113 provides the statutes of limitations and repose for actions

“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.” The “part” refers to

ERISA Part 4, which describes fiduciary obligations. Under Mathews v. Chevron

Corp., 362 F.3d 1172, 1178 (9th Cir. 2004), “[t]o establish an action for equitable

relief under ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3), the defendant must

be an ERISA fiduciary acting in its fiduciary capacity and must violate

ERISA-imposed fiduciary obligations.” Id. (citations and alterations omitted).

Bruno seeks equitable relief under 29 U.S.C. § 1132(a)(3) so, under Mathews, his




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case must involve a fiduciary’s breach of a fiduciary obligation. We therefore

apply the time limits found in 29 U.S.C. § 1113.1

      3. Section 1113 contains statutes of limitations and repose. The repose

period requires an action be filed within six years of “(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.” 29 U.S.C. § 1113(1). Here, the alleged breach occurred in 1991, when

Bruno received a summary plan description (SPD) that failed to disclose an

“offset” provision, and was cured in 1996, when he received a new SPD disclosing

the provision. The six year statute of repose therefore expired, at the latest, in

2002, almost a decade before Bruno’s 2011 lawsuit.2

      AFFIRMED.




1
  Bruno argues that Mathews was wrongly decided and conflicts with the Supreme
Court’s earlier decision in Harris Trust & Savings Bank v. Salomon Smith Barney,
Inc., 530 U.S. 238 (2000). We express no opinion on the merits of these arguments.
Mathews was decided after Harris, and we are bound by circuit precedent. See Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

2
 Appellant’s Motion to Strike the Supplemental Excerpts of Records and the Counter
Statement of Facts, ECF No. 19, is denied as moot.

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