                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          FILE NAME: 19A0215N.06

                                        Case No. 18-5459

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

  JOYCE ENSLEY,                                                                     FILED
                                                     )                         Apr 25, 2019
        Plaintiff-Appellant,                         )                    DEBORAH S. HUNT, Clerk
                                                     )
                 v.                                  )
                                                     )     ON APPEAL FROM THE
  CHARLES WHOBREY, et al.,                           )     UNITED STATES DISTRICT
                                                     )     COURT FOR THE MIDDLE
        Defendants-Appellees.                        )     DISTRICT OF TENNESSEE
                                                     )
                                                     )

Before: BATCHELDER, COOK, and KETHLEDGE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. This appeal arises under the Employee

Retirement Income Security Act (ERISA), on a claim by plaintiff Joyce Ensley for surviving-

spouse benefits that were denied by defendant Central States Southeast and Southwest Areas

Pension Fund (“Fund”) because Ensley and her late husband Melvin, the ERISA Plan participant,

had previously elected to decline those benefits. In challenging the denial, Ensley claimed that

Melvin forged her name on the form, but the district court held, among other things, that Ensley

did not bring this suit within the applicable statute of limitations. We AFFIRM.

                                                I.

       In April 2002, Melvin executed a form titled “Election Notice Joint and 50% Surviving

Spouse Option” that declined the surviving-spouse option offered in his pension plan. The

surviving-spouse option would have given Ensley, after Melvin’s death, a monthly benefit (at 50%

of Melvin’s benefit, as his surviving spouse) for the remainder of her life, but it would also have
Case No. 18-5459, Ensley v. Whobrey, et al.


reduced Melvin’s monthly pension benefit during his lifetime. The Election Notice form contains

signatures for both Melvin and Ensley, with notarization by a Patricia Wells.

       When Melvin died in April 2009, the Fund informed Ensley that, pursuant to the Election

Notice form, the monthly benefits would be discontinued. Ensley responded that she had never

before seen the Election Notice form, did not sign it, and did not know Patricia Wells. The Fund

explained that she could appeal the denial to the Benefit Claim Appeals Committee (BCAC),

which would consider any evidence she submitted, such as a handwriting expert’s opinion, but that

she had the burden of proving that the signature was not hers.

       On February 16, 2010, Ensley submitted to the BCAC a “Forensic Handwriting Report”

from a woman named Marty Pearce, a certified document examiner. The Report stated that, based

on the documents that Ensley had provided, both signatures on the Election Notice matched

Melvin’s handwriting, not Ensley’s, so Ensley had not signed the Election Notice.

       But on May 24, 2010, the BCAC sent Ensley a letter denying the appeal because the Report

did not convince it that the signature on the Election Notice form was not Ensley’s. The BCAC

found the Report flawed and unpersuasive because it: (1) provided no specific reasons to support

its conclusions; (2) had not used contemporaneous examples of Melvin’s or Ensley’s signatures

from 2002 for its comparisons; (3) had used only select examples of Ensley’s signature rather than

a complete set of signature examples (such as all of her personal checks from 2002); and

(4) revealed that Ensley’s signature varied greatly, prompting the BCAC to say: “Although no

member of the Committee is a handwriting expert, it was obvious to all that [Ensley is] not

consistent in the manner in which [she] sign[s] [her] name–especially noticeable are the various

ways in which [she] form[s] the letter ‘y’ in both [her] first and last names.” The BCAC also gave

credit to the notarization as proof that the signature was Ensley’s. And the BCAC recognized that
Case No. 18-5459, Ensley v. Whobrey, et al.


the Fund had paid Melvin more than $37,000 in additional lifetime pension benefits because of the

decision to forgo surviving spouse benefits. The Fund advised Ensley of her option to appeal

further and that, if she appealed, she should investigate the notary (“[Y]ou should contact the

notary and submit a copy of the notary’s record regarding this attestation.”), answer for Melvin’s

receipt of non-reduced monthly pension benefits, and describe her involvement in Melvin’s

retirement application process, including her efforts to ensure that any documents necessary to

provide her with survivor’s benefits had been properly signed and filed with the Fund.

       Almost six months later, on November 16, 2010, Ensley’s then-attorney, Martin

Kooperman, told the Fund that Ensley was appealing the BCAC’s decision, but did not address

the concerns raised in the May 24, 2010 letter. The Fund responded on December 3, 2010,

explaining that Ensley (Kooperman) had not addressed the BCAC’s concerns, listing those

concerns again and advising Ensley, again, to provide information about the notary, Melvin’s

receipt of non-reduced monthly pension benefits, and Ensley’s efforts to ensure that the proper

documents had been filed regarding survivor’s benefits. The Fund also emphasized: “Please

understand that the weight given to Ms. Pearce’s expert [handwriting] opinion may be adversely

affected by Ms. Ensley’s failure to satisfactorily address all of the points raised by the [BCAC]”

and “[t]herefore, Ms. Ensley should provide detailed responses to all of the above points.”

       By March 8, 2011—three months later—the Fund had received no response, so it contacted

Kooperman, asking whether Ensley intended to provide the missing information and proceed with

her appeal. On March 24, 2011, Kooperman responded that Ensley would be proceeding with her

appeal and that “we are in the process of gathering information for this appeal and will submit the

additional information as soon as possible.” But the Fund heard nothing further from either Ensley

or Kooperman for over two years.
Case No. 18-5459, Ensley v. Whobrey, et al.


       On March 29, 2013, Ensley called the Fund and said that she wanted to pursue her appeal.

But then the Fund heard nothing further from Ensley for another four months.

       On July 30, 2013, the Fund wrote to Ensley, explaining again that if she wanted to reopen

the appeal, she should submit the information requested in May 2010 and again in December 2010.

This letter said: “Please understand that you bear the burden of proof in demonstrating any fact

essential to the approval of your claim, and your failure to provide the information requested and/or

fully address the Committee’s observations may lead to inferences which are adverse and contrary

to your claim.” When Ensley did not respond by November 5, 2013, the Fund mailed the letter to

her again. Ensley did not respond for three more years.

       In August 2016, attorney Gina Crawley wrote to the Fund, stating that she represented

Ensley and requesting copies of: (1) the documents the BCAC relied on in deciding Ensley’s

appeal; (2) all rules, procedures, contracts, or documents that would govern the Trustees’ review;

(3) “all rules and procedures that were in place in regards to verifying the authenticity of an

Election Notice that would have been submitted to [the] Fund on or about April 15, 2002”; and

(4) “proof of any other safeguards that [the] Fund had in place to minimize acting upon forged

documents on or about April 15, 2002.” On August 18, 2016, the Fund sent Crawley copies of its

records of Ensley’s prior appeal, the Plan documents, and the Plan Trust Agreement—which were

the documents that ERISA required it to provide and the only documents it actually had.

       On October 16, 2016, Crawley submitted a letter with attachments. Crawley argued that

the February 2010 Forensic Handwriting Report by Marty Pearce was sufficient on its own to

prove that Ensley did not sign the Election Notice. But Crawley did not address the BCAC’s

concerns that the Report did not provide reasons for its opinions, had not used contemporaneous

handwriting samples of either Ensley or Melvin, had not used a complete set of Ensley’s signature
Case No. 18-5459, Ensley v. Whobrey, et al.


examples, or that the examples of Ensley’s signature that were included were inconsistent.

Crawley also argued that because Melvin had handled the family finances, Ensley had just assumed

the pension benefits would continue after his death—she had not reviewed the Election Notice and

was made aware of it only after his death. Crawley explained that she could not provide a

declaration from Patricia Wells because Wells had died in February 2004, but argued that Wells’s

notary commission was expired in 2002 when she “notarized” the Election Notice, meaning that

Wells was not actually a notary and her “notarizing” the Election Notice was an illegal act.

Crawley argued—with no citation to any legal authority—that Ensley could not be held

responsible for Wells’s illegally notarizing the Election Notice and that the Fund “was presumed

to know that Ms. Wells’ commission expired on November 27, 1999,” so it must be held

responsible for its accepting an invalid notarization and Election Notice.

       The Trustees met two months later, on December 13, 2016, to consider the appeal. They

determined that Ensley had not proven that the signature on the Election Notice was forged, so

they denied her appeal. The Trustees emphasized the absence of contemporaneous signature

examples from 2002 and that neither the Report nor Ensley herself had explained why the

handwriting examination was not conducted using contemporaneous signatures. They offered to

reconsider Ensley’s appeal if she (1) explained the reasons for the six-year delay in pursuing the

appeal and submitting the additional information, (2) submitted at least 20 known signature

examples and other handwritten documents from 2002, and (3) obtained an updated expert report

from a qualified document examiner that used the 2002 examples. Ensley did not reply—she did

not submit any additional information or pursue reconsideration by the Trustees.

       On April 25, 2017, Ensley sued in federal court seeking (1) benefits under Melvin’s ERISA

Plan and (2) a civil penalty for the Fund’s alleged failure to provide requested information. The
Case No. 18-5459, Ensley v. Whobrey, et al.


Fund moved for judgment on the administrative record and argued that Ensley’s ERISA claims

were barred by the statute of limitations, that the decision was not arbitrary or capricious, and that

the civil-penalty claim was untenable factually and legally.

       The district court found that Ensley’s legal claim began to accrue, at the latest, on May 24,

2010, when the BCAC denied her first appeal in writing (i.e., rejected the handwriting expert’s

Report), but that Ensley did not sue until April 25, 2017, well past Tennessee’s six-year statute of

limitations for contract actions. Ensley conceded the facial untimeliness but argued for equitable

tolling, claiming that she had diligently pursued her rights but the Fund had caused the delay by

demanding more information. The district court found that the record refuted this claim: Ensley

had not been diligent and the Fund had not “demanded” additional information (it had attempted

to aide Ensley by directing her to the information necessary to meet her burden and allowing her

additional time and opportunity to provide it). Moreover, the court held that “the statute of

limitations for bringing a legal action is not tolled during the administrative process.” The court

found the claim time barred.

       The court also found that the Fund’s decision was not arbitrary or capricious because

Ensley had not carried her burden of proving that her signature was forged, “given the missing

information and unanswered questions about Ms. Pearce’s analysis” and Ensley’s “failure to

provide the information requested or address the concerns identified.”

       Finally, the district court denied Ensley’s claim for statutory penalties for the Fund’s

alleged failure to produce certain requested information. The court found that ERISA does not

require the information Ensley had requested, that the information she requested did not even exist

(the Fund had not created it), and that Ensley was not a participant or beneficiary entitled to that

information anyway. The court rejected the claim and denied the request for penalties.
Case No. 18-5459, Ensley v. Whobrey, et al.


       Ensley moved the district court to alter or amend the judgment via Federal Rule of Civil

Procedure 59(e), claiming that she had good cause for her delay (e.g., health issues, reliance on

her former attorney, difficulty in locating the notary and the documents from 2002), that the Fund

should be estopped from arguing statute of limitations, and that the Fund had waived the statute-

of- limitations defense. The district court found Ensley’s good-cause-for-delay argument neither

new nor persuasive. As for the estoppel argument, the court said:

       [The Fund] did not raise the statute of limitations defense [in its December 2016
       denial of her claim] because no lawsuit had been filed. [Ensley] continues to
       confuse the deadline for filing a lawsuit with any deadlines for her to file additional
       documentation during her administrative appeal.

As for the waiver argument, the court said:

       [Ensley] cites an Eleventh Circuit [] case for the proposition that the fiduciary
       statute of limitations defense is ‘subject to express waiver.’ The record here does
       not reveal any express waiver. [Ensley] also cites to the dissent in a Ninth Circuit
       [] case, decided under California law. A dissenting opinion from another circuit,
       decided under the law of another state, is not binding upon this court.

The court denied the motion. Ensley appeals.

                                                 II.

       Ensley claims the district court erred by dismissing the suit as untimely. We review this

judgment de novo. Patterson v. Chrysler Grp., LLC, 845 F.3d 756, 762 (6th Cir. 2017).

       Ensley concedes that she filed her lawsuit after the expiration of the applicable statute of

limitations—Tennessee’s six-year limit for contract actions—and argues instead for equitable

tolling by claiming that she diligently pursued her claim and the Fund caused the delay by

demanding information. But the record demonstrates that Ensley did not diligently pursue her

claim. She repeatedly allowed significant time lapses between communications with the Fund,

despite the Fund’s efforts to engage her, prompt her to provide information, or determine if she

was even still pursuing her claim. Moreover, the record also demonstrates that the Fund did not
Case No. 18-5459, Ensley v. Whobrey, et al.


demand information from her, unreasonably or otherwise. Rather, the Fund denied her claim and

her first appeal, but then offered her the opportunity to salvage her claim and advised her on its

questions or concerns so that she could most effectively (and expeditiously) do so.

        Ensley next argues, using this same premise, that the Fund is estopped from invoking the

statute of limitations because it “caused the delay by acting beyond the parameters of the Pension

Plan” when it “refused to process Ms. Ensley’s appeal in accordance with the Pension Plan.”

Ensley’s theory is that the Fund “halt[ed] the appeal process” by “demanding” in its December 3,

2010 letter “that Ms. Ensley provide more information before it would permit the appeal to

proceed” and because the Plan does not permit the Fund to halt the appeal process—rather, it

requires the Fund to decide an appeal within 120 days—or to demand information from her, the

Fund impermissibly “stop[ped] Ms. Ensley’s appeal” and caused the delay. But this representation

of events is neither complete nor accurate.

        In the May 2010 letter, which rejected her first appeal, the Fund began: “At its May 20,

2010 meeting, the Benefits Claim Appeals Committee reviewed your claim, including the forensic

handwriting report you submitted, and determined that you are not eligible to receive a 50%

Surviving Spouse Benefit.” That letter then explained the BCAC’s reasons for its decision,

advised Ensley that she could further appeal that decision to the Trustee Appellate Review

Committee, and offered “recommendations” as to the information and documentation that would

persuade the Trustee Appellate Review Committee to overrule the BCAC. Ensley’s attorney,

Kooperman, replied on November 16, 2010, with a three-paragraph letter, and attached documents,

most notably the same forensic handwriting Report. The Fund answered with the December 2010

letter, which said in relevant part:
Case No. 18-5459, Ensley v. Whobrey, et al.


       Dear Mr. Kooperman:
              We have received Joyce Ensley’s Pension Benefit Appeal Form [and] your
       November 16, 2010 letter and its exhibits. . . . You argue that ‘Ms. Pearce’s expert
       opinion should be sufficient to rebut any presumption that the election was signed
       by Joyce Ensley.’ However, you address none of the points raised in the Fund’s
       May 24, 2010 letter communicating the [BCAC]’s observations. . . .
                 ...
               Please understand that the weight given to Ms. Pearce’s expert opinion may
       be adversely affected by Ms. Ensley’s failure to satisfactorily address all of the
       points raised by the Committee.
               You also argue that the signatures on [the] election form were not properly
       notarized. . . . [A]lthough you submitted an e-mail indicating that Ms. Wells’
       commission expired on November 27, 1999, it is contradicted by the fact that she
       still possessed her seal, notarized the form, and indicated that her commission
       expires January 2004. Therefore, Ms. Ensley should contact Ms. Wells and submit
       her signed statement explaining the discrepancy, together with the information
       requested in the Fund’s May 24, 2010 letter concerning the notarization. . . .
                 ...
              Although you indicate that Melvin Ensley was in charge of all of the
       family’s business matters, it appears that Joyce Ensley had her own checking
       account with Bank of America. Your letter also states, ‘Mrs. Ensley was aware that
       there were survivor benefits that she would receive upon her husband’s death.’
       However, you do not fully explain either the extent or the basis for her
       understanding or address many of the points raised in our May 24, 2010 letter
       concerning her involvement in her husband’s retirement process. . . .
                 ...
                 Therefore, Ms. Ensley should provide detailed responses to all of the above
       points.
              Once we receive the above requested information and documentation, we
       will schedule Ms. Ensley’s appeal for review by the Trustee Appellate Review
       Committee.
                 If you or Ms. Ensley have any questions, please call me. . . .

Two things from this passage bear emphasis: (1) in both its tone and its repeated use of the word

should, such as in the conclusion that “Ms. Ensley should provide detailed responses to all of the

above points” (emphasis added), this letter is not a demand for information; and (2) while the letter

certainly indicates that the Fund will delay the appeal to the Trustee Appellate Review Committee

until “we receive the above requested information and documentation,” that delay was for Ensley’s
Case No. 18-5459, Ensley v. Whobrey, et al.


benefit, as she could not have won her appeal based on the information and documentation then in

the record.

       When Kooperman did not timely respond, the Fund prompted him again three months later,

writing on March 8, 2011:

       Dear Mr. Kooperman:
              We have received no response to our December 3, 2010 letter from either
       you or Ms. Ensley. . . . Please advise me whether Ms. Ensley intends to proceed
       with her appeal; and if so, when she expects to submit the information and
       documentation requested in our December 3, 2010 letter. If Ms. Ensley has decided
       to withdraw her appeal, please let me know.
               If either you or Ms. Ensley have any questions, please call me. . . .

Kooperman responded on March 24, 2011, and asserted that Ensley would be proceeding with her

appeal and that “we are in the process of gathering information for this appeal and will submit the

additional information as soon as possible.” At this point, the Fund was merely waiting for Ensley

(or Kooperman) to provide the information, as promised. But Ensley did not make another

submission until October 2016.

       Nothing in this record supports the contention that the Fund caused the delay of more than

six years by demanding that Ensley provide more information before it would proceed. The Fund

responded promptly to every communication—written or by telephone—from Ensley. Moreover,

the Fund did not demand information; it suggested information that Ensley should provide that

would most effectively help her prove her claim. Finally, the Fund did not require this information

before proceeding with the appeal, as is evident from the fact that Ensley never submitted much

of this information but the Trustees eventually (December 13, 2016) ruled on her appeal. Ensley

could have responded at any time with a request that the Trustees decide her appeal based on the

record then before them. She never did so.
Case No. 18-5459, Ensley v. Whobrey, et al.


       Oddly, Ensley next argues that she “had neither actual [n]or constructive notice of the six

(6) year statute of limitations.” On one hand, this is a perplexing statement from Ensley’s counsel

that she does not know the law. On the other hand, this argument is dead on arrival inasmuch as

ignorance of the law is no excuse. See, e.g., United States v. Caseer, 399 F.3d 828, 835 (6th Cir.

2005); United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971).

       Ensley also claims that she could not file her lawsuit until she had exhausted her

administrative remedies, citing Patterson v. Chrysler Group, LLC, 845 F.3d 756, 764 n.7 (6th Cir.

2017). This theory, however, presupposes three things that are doubtful, unproven, or untrue:

(1) that “exhaustion” required the completion of her second appeal, to the Trustee Appellate

Review Committee, rather than just the “formal denial” after her first appeal to the BCAC; (2) that

the Fund, rather than Ensley, caused the delay in completing the second appeal; and (3) that

Patterson, which “explicitly rejected the argument that a claim accrues only upon exhaustion of

administrative remedies,” id., actually supports her attempt to evade the statute of limitations.

Based on these three counter-points, we must reject Ensley’s exhaustion argument.

       Finally, Ensley argues that the Fund “waived” a statute-of-limitations defense “because it

did not raise the issue in its December 19, 2016 denial letter.” But, as the district court explained,

the December 2016 denial letter was part of the administrative appeal; the Fund “did not raise the

statute of limitations defense then because no lawsuit had been filed.” Ensley “continues to

confuse the deadline for filing a lawsuit with any deadlines for her to file additional documentation

during her administrative appeal.”
Case No. 18-5459, Ensley v. Whobrey, et al.


       Because Ensley has failed to prove that she is entitled to equitable tolling and because it is

undisputed that she filed her lawsuit after the expiration of Tennessee’s six-year statute of

limitations for contract actions, this claim is untimely. The district court properly dismissed it.

                                                 III.

       For all of the foregoing reasons, we AFFIRM the judgment of the district court.
