Browning v. Tiger's Eye Benefits Consulting

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-1404

JEFFREY S. BROWNING, as Trustee of the Browning Equipment,
Inc. 401(k) Profit Sharing Plan,

Plaintiff - Appellant,

TIGER’S EYE BENEFITS CONSULTING; THEODORE G. REEDER, III,
C.P.A.; DAVID M. DUKICH,

Defendants – Appellees,

and

POTOMAC ASSET MANAGEMENT GROUP, LLC,

Defendant.

--------------------

JOHN J. KORZEN,

Amicus Supporting Appellee David M. Dukich.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:05-cv-303-CMH)

Argued: October 28, 2008 Decided: February 26, 2009

Before NIEMEYER and MICHAEL, Circuit Judges, and Richard D.
BENNETT, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished opinion. Judge Bennett wrote the
opinion, in which Judge Niemeyer and Judge Michael joined.

ARGUED: Richard Dennis Carter, Alexandria, Virginia, for
Appellant. Patrick John Kearney, SELZER, GURVITCH, RABIN &
OBENCY, CHTD., Bethesda, Maryland; Jenelle Neubecker, WAKE
FOREST UNIVERSITY, School of Law, Appellate Advocacy Clinic,
Winston-Salem, North Carolina, for Appellees. ON BRIEF: John J.
Korzen, Elizabeth H. Asplund, Amber Burleson, Lauren T.
Millovitsch, WAKE FOREST UNIVERSITY, School of Law, Appellate
Advocacy Clinic, Winston-Salem, North Carolina, Amicus Counsel
for Appellee David M. Dukich.

Unpublished opinions are not binding precedent in this circuit.

2
BENNETT, District Judge:

Appellant Jeffrey S. Browning, as Trustee of the Browning

Equipment, Inc. 401(k) Profit Sharing Plan, appeals the entry of

summary judgment by the district court in favor of the

Appellees, Tiger’s Eye Benefits Consulting, Theodore G. Reeder,

III, and David Dukich. The district court entered summary

judgment on alternative grounds: first, the district court found

as a matter of law that the Appellees were not fiduciaries under

section 409(a) of the Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1132(a) (“ERISA”); and, second, the district

court found that the Appellees were entitled to summary judgment

because ERISA’s three-year statute of limitations had expired

before the suit was brought. Because we agree as to the latter

ground, the judgment below is affirmed.

Browning Equipment, a small, family-owned tractor sales and

services company, maintains the Browning Equipment, Inc. 401(k)

Profit Sharing Plan (“the Plan”). At the time this suit

commenced, Appellant Jeffrey S. Browning (“Browning”) was a

Trustee of the Plan, as were Jean Copeland and Reyburn Browning,

Jeffrey Browning’s father. Under the Plan, the Trustees had

3
“the sole responsibility of the management of the assets held

under the Trust.” (J.A. 451.)

Theodore Reeder is a certified public accountant and the

sole shareholder of Tiger’s Eye Benefits Consulting, a business

that provided third-party consulting services to the Plan

beginning in 1994. Prior to 1994, the Plan had been a client to

Reeder’s former employer since 1984. The Plan engaged Tiger’s

Eye through annual letters which provided that “Tiger’s Eye

Benefits Consulting will be a third party plan administrative

consultant only, and will not act in the capacity of the Plan’s

‘ERISA Administrator.’” (J.A. 163-172.)

Between 1979 and 1999, most of the Plan’s assets were

invested in a fixed annuity insurance contract with Royal

Maccabees Life Insurance Company. Between 1997 and 1999, Reeder

began communicating with Reyburn Browning about reinvesting its

assets elsewhere. In April 1999, Reeder met with David Dukich,

a broker based in Frederick, Maryland who was selling

investments in U.S. Capital Funding, Inc. Dukich was promising

a return of 9.25% on a 180-day investment with U.S. Capital

Funding. Relying on the information given to him by Dukich,

Reeder recommended to Reyburn Browning in a letter dated April

20, 1999 that the Trustees invest $300,000 with U.S. Capital

Funding and $150,000 with John Hancock. Reeder told Reyburn
4
Browning that the U.S. Capital Funding investment was insured up

to $2,000,000 through CNA Insurance Companies.

Sometime between April 20 and April 26, 1999, Reeder

introduced Dukich to the Trustees. At the meeting, the Trustees

questioned Reeder and Dukich about the investment with U.S.

Capital Funding and received positive responses, including that

the investment was insured. On April 26, 1999, the Trustees

invested $555,000 with U.S. Capital Funding. In return, the

Plan received a promissory note bearing a 9.25% rate of return,

payable in 180 days from April 27, 1999. The note did not

contain an automatic reinvestment or renewal provision. Dukich

received a 9% commission, half of which was actually paid to

him. Reeder received a 1% commission from Dukich.

For the first few months, the Plan received information

about its investment directly from U.S. Capital Funding,

including monthly interest statements and a Form 1099. Jeffrey

Browning testified that, to his knowledge, none of the Trustees

ever expressly authorized the renewal of the U.S. Capital

Funding investment. Nonetheless, the Trustees did not receive

payment when the note became due in October 1999, and there is

no evidence suggesting that the Trustees inquired as to why

payment was not received. Also in October 1999, the Plan

stopped receiving monthly interest statements from U.S. Capital
5
Funding, and the record does not contain any evidence that the

Trustees acted to determine the reason that the statements

stopped arriving.

Dukich first learned that U.S. Capital Funding was not

paying funds to clients sometime in fall 2000. At that time,

Dukich was told that U.S. Capital Funding would not be paying

noteholders because of difficulty receiving funds from the

companies with which it was doing business. On February 20,

2001, Reeder informed the Trustees via letter that the assets

were temporarily unavailable and that litigation was currently

being pursued to “free up the monies.” (J.A. 348-49.) Reeder

also assured the Trustees that the “original investment is

guaranteed through [the CNA] insurance arrangement” and that

“interest earnings would be separately recoverable.” (Id.)

Then, on July 23, 2001, Reeder explained to the Trustees,

again by letter, that the 180-day investment was locked into

five-year notes. (J.A. 350.) He also explained “it was his

understanding” that U.S. Capital Funding initiated legal

proceedings in Florida in order to release invested funds.

(Id.) Consequently, Reeder advised the Trustees as follows:

“Although it is a difficult position to take, my suggestion

continues to be to wait on the legal actions pending . . . for

6
an ultimate resolution and release of monies invested through

the Browning Equipment Inc. Profit Sharing Plan.” (J.A. 351.)

Sometime in early November 2001, Browning had “the need to

find out what the story was on the insurance” because “the doubt

started to creep in our minds about the – you know, where the

funds were.” (J.A. 149.) On November 15, 2001, in response to

a request from Browning, Reeder sent a fax transmission to

Browning. Reeder acknowledged on the cover sheet that,

“although [Dukich] has made reference to me previously of an

insurance company ‘declaration page,’” Reeder had not yet

received the document. Thus, as Browning testified, Reeder’s

fax contained “nothing worthwhile” demonstrating that the U.S.

Capital Funding investment was insured. (J.A. 148.)

On February 19, 2002, the Trustees were explicitly informed

by Reeder that a court-appointed receiver was in place to

“coordinate the ongoing activity of U.S. Capital Funding, Inc.”

(J.A. 371-72.) By this time, the Plan had not received payment

on the U.S. Capital Funding note since March 22, 2000, when it

received its first and only payment in the amount of $25,317.12.

In a letter received by the Trustees on March 24, 2003, Reeder,

who is not an attorney, informed them that legal proceedings

were ongoing and that any legal action taken by the Trustees

themselves would not accelerate recovery. (J.A. 359.) He
7
added, however, that “I fully understand any actions that you

feel compelled to take in fulfilling your duties as . . .

Trustees.” (Id.)

Tragically, the problems associated with the Plan’s

investment in U.S. Capital Funding were dire. We have

previously noted that the U.S. Capital Funding was, “in reality,

a Ponzi scheme.” Smith v. Continental Ins., 118 Fed. Appx. 683,

683 (4th Cir. 2004). The Plan’s investment was all but lost.

Browning filed the underlying complaint on March 18, 2005,

asserting breach of fiduciary duty and prohibited transaction

claims under ERISA (Counts I and II), as well as a state law

tort claim (Count III). Without separately discussing the

individual claims asserted by Browning, the district court

granted summary judgment in Appellees’ favor on alternative

grounds: first, the district court concluded that Reeder and

Dukich were not fiduciaries of the Plan; and, second, the

district court concluded that the statute of limitations had

expired prior to Browning filing suit.

II.

The district court’s entry of summary judgment is reviewed

de novo, with the facts and the inferences from those facts

taken in a light most favorable to the nonmovant. See EEOC v.
8
Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005).

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).

Although Browning appeals both grounds asserted by the

district court to grant summary judgment for Appellees, we

discuss only the latter ground because, assuming that Appellees

were fiduciaries to the Plan, Browning’s failure to timely file

suit under ERISA’s three-year statute of limitations necessarily

bars both ERISA claims. Additionally, although the district

court did not specifically discuss Browning’s state law claim,

the record is sufficiently developed for us to conclude that it

is barred by Virginia’s statute of limitations.

Browning’s breach of fiduciary duty and prohibited

transaction claims are subject to the statute of limitations

framework provided in ERISA § 413, 29 U.S.C. § 1113. Section

413 provides that a claim for breach of fiduciary duty may not

commence after the earlier of:
9
(1) six years after (A) the date of the last action
which constituted a part of the breach or violation,
or (B) in the case of an omission, the latest date on
which the fiduciary could have cured the breach or
violation, or

(2) three years after the earliest date on which the
plaintiff had actual knowledge of the breach or
violation;

except that in the case of fraud or concealment, such
action may be commenced not later than six years after
the date of discovery of such breach or violation.

29 U.S.C. § 1113. Thus, section 413 “creates a general six year

statute of limitations, shortened to three years in cases where

the plaintiff has actual knowledge, and potentially extended to

six years from the date of discovery in cases involving fraud or

concealment.” Kurz v. Philadelphia Elec. Co., 96 F.3d 1544,

1551 (3d Cir. 1996).

Prior to 1987, section 413's three year statute of

limitations was triggered by either actual knowledge or

constructive knowledge. Congress amended the statute in 1987 to

require, at a minimum, “actual knowledge of the breach or

violation.” See Martin v. Consultants & Administrators, Inc.,

966 F.2d 1078, 1085 n.6 (7th Cir. 1992) (explaining that

“[b]efore it was amended in 1987, [29 U.S.C. § 1113] contained a

constructive knowledge provision, stating that the three-year

limitations period began when a plaintiff ‘could reasonably be

expected to have obtained knowledge’ from certain reports filed
10
with the Secretary of Labor” (citing removed statutory

language)). Since the 1987 amendment, the circuits that have

defined what constitutes actual knowledge have reached somewhat

divergent results.

The Third and Fifth Circuits’ narrow interpretation of

actual knowledge in section 413 “requires a showing that

plaintiffs actually knew not only of the events that occurred

which constitute the breach or violation but also that those

events supported a claim of breach of fiduciary duty or

violation under ERISA.” Int'l Union v. Murata Erie N. Am.,

Inc., 980 F.2d 889, 900 (3d Cir. 1992); see also Gluck v. Unisys

Corp., 960 F.2d 1168, 1177 (3d Cir. 1992); Maher v. Strachan

Shipping Co., 68 F.3d 951, 954 (5th Cir. 1995) (applying the

Third Circuit test). Other circuits, including the Sixth,

Seventh, Ninth, and Eleventh Circuits, require only that the

plaintiff have “knowledge of the facts or transaction that

constituted the alleged violation; it is not necessary that the

plaintiff also have actual knowledge that the facts establish a

cognizable legal claim under ERISA in order to trigger the

running of the statute.” Wright v. Heyne, 349 F.3d 321, 330

(6th Cir. 2003); see also Martin v. Consultants & Adm'rs, Inc.,

966 F.2d 1078, 1086 (7th Cir. 1992); Blanton v. Anzalone, 760

F.2d 989, 992 (9th Cir. 1985); Brock v. Nellis, 809 F.2d 753,
11
755 (11th Cir. 1987). The remaining circuits that have settled

on a definition fall somewhere between these two views. 1 See,

e.g., Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001)

(holding that a “plaintiff has ‘actual knowledge of the breach

or violation’ within the meaning of ERISA § 413(2), 29 U.S.C. §

1113(2), when he has knowledge of all material facts necessary

to understand that an ERISA fiduciary has breached his or her

duty or otherwise violated the Act”).

Although this Court has not had occasion to precisely

define “actual knowledge of the breach or violation” under

section 413(2), 2 we need not settle on a hard and fast definition

1
Ironically enough, there appears to be some disagreement
as to whether there is even a circuit split on the definition of
actual knowledge. The Sixth Circuit specifically explained that
“courts are divided on the issue of what constitutes ‘actual
knowledge’ under § 1113(2).” Wright 349 F.3d at 328. In Edes
v. Verizon Commc’ns, Inc., 417 F.3d 133 (1st Cir. 2005),
however, the First Circuit refused to acknowledge that there was
a circuit split, instead finding that the respective positions
of the circuits are “more nuanced” and the differences
“exaggerated.” Id. at 141.
2
We have previously stated that the three-year limitations
period “begins to run when a plaintiff has knowledge of the
alleged breach of a responsibility, duty, or obligation by a
fiduciary.” Shofer v. Hack Co., 970 F.2d 1316, 1318 (4th Cir.
1992). In Shofer, however, there was no dispute between the
parties that the three-year limitations applied and had expired
when suit was filed. The issue in Shofer was whether filing an
earlier suit in Maryland state court based on the same facts
equitably tolled the running of the three-year statute of
limitations under federal tolling principles. Thus, Shofer did
(Continued)
12
in the instant case. Based on the statutory amendment in 1987,

it is plainly apparent that “actual knowledge must be

distinguished from constructive knowledge.” Martin, 966 F.2d at

1086. The point in which one has “actual knowledge of the

breach or violation,” as opposed to constructive knowledge, in

turn depends largely on the “complexity of the underlying

factual transaction, the complexity of the legal claim[,] and

the egregiousness of the alleged violation.” Id. We also agree

with the First Circuit that “[t]he amendment to ERISA § 413

means that knowledge of facts cannot be attributed to plaintiffs

who have no actual knowledge of them,” and that “there cannot be

actual knowledge of a violation for purposes of the limitation

period unless a plaintiff knows ‘the essential facts of the

transaction or conduct constituting the violation.’” Edes, 417

F.3d at 142 (emphasis in original) (citing Martin, 966 F.2d at

1086). Thus, the appropriate inquiry is fact-intensive and, on

the facts before us, we have little difficulty finding that the

Trustees had the requisite factual knowledge to trigger the

three-year statute of limitations under section 413(2).

not examine the meaning of “actual knowledge of the breach or
violation.”

13
Browning’s ERISA claims are based on allegations that

Appellees failed to render advice in the best interest of the

plan, failed to diversify funds, failed to adequately

investigate the U.S. Capital Funding investment, and invested

the Plan’s assets for their own benefit. The district court

determined that the Trustees “knew or should have known of the

problems with the Note in February 2002 because Reeder wrote to

inform them that a receiver had been appointed for U.S. Capital

Funding.” (J.A. 538.) Although it is not clear whether the

district court applied an actual or constructive notice

requirement, 3 we conclude that, by February 19, 2002, the

Trustees had actual knowledge of enough sufficient facts relied

upon in their legal claims to trigger the three-year limitations

period. On February 19, 2002, the Trustees were unambiguously

informed that the Plan’s $555,000 investment was placed in

court-appointed receivership. On that date, the Trustees

undoubtedly had “knowledge of [the] transaction’s harmful

consequences,” as well as notice of “actual harm.” Gluck, 960

F.2d at 1177.

3
Because of the amendment to 29 U.S.C. § 1113, the three-
year statute of limitations did not begin to run on the date
that the Trustees should have known about facts establishing a
breach or violation. It began to run only when they had actual
knowledge of the facts.

14
Although this fact alone convinces us that the Trustees had

actual knowledge of the breach or violation, the record reveals

that the Trustees also had direct, first-hand knowledge of other

facts by February 19, 2002, making their ERISA claim patently

clear by then. For example, the Trustees were fully aware that

their investment was not diversified on April 26, 1999, the date

they first purchased the promissory note. By investing the

entire liquid portion of the Plan’s funds with U.S. Capital

Funding, the Trustees did not accept Reeder’s advice to invest a

lesser amount with U.S. Capital Funding with the balance

invested elsewhere.

Moreover, the Trustees had actual knowledge of facts

demonstrating that the Plan’s money was not invested in an

insured, 180-day promissory note, as they originally believed to

be the case. Although the Trustees knew that the note was

payable in 180 days and did not contain an automatic

reinvestment or renewal provision, the Plan was not paid after

180 days and the Trustees did not receive a single monthly

interest statements from U.S. Capital Funding after October

1999. By late 2000, the Trustees were informed that U.S.

Capital Funding was not paying noteholders upon maturity of the

note, and the Trustees were further informed in February 2001

that litigation involving U.S. Capital Funding had already
15
ensued. On July 23, 2001, the Trustees were told that their

initial 180-day investment was apparently “locked into five-year

notes.” Finally, in November 2001, Browning, concerned about

the lack of insurance of the Plan’s investment, requested

documents from Reeder but received nothing in return to assuage

his concerns. By that point, the Trustees had not received a

single document indicating that the Plan’s investment was in

fact insured.

Because we do not believe that the nature of the

transaction was overly factually complex (it involved the

purchase of only a single promissory note), and because the

alleged breach by the Appellees is quite egregious (the entire

purchase price of $555,000 was unrecoverable), see Martin, 966

F.2d at 1086, we conclude that the aforementioned facts taken

together more than establish that the Trustees had actual

knowledge under 29 U.S.C. § 1113 no later than February 19,

2002. Thus, assuming that the Appellees were in fact

fiduciaries (an issue we need not reach), the three-year statute

of limitations ran on February 19, 2005. Consequently,

Browning’s lawsuit, filed on March 18, 2005, was time barred.

16
B.

Browning’s fallback position is that the six-year “fraud or

concealment” period applies to his ERISA claims, rather than the

three-year “actual knowledge of the breach or violation” period.

The district court did not address this argument in its

memorandum opinion, but implicitly rejected it by granting

Appellees’ motion for summary judgment.

If applicable, the “fraud or concealment” provision extends

the statute of limitations period to six years beginning on the

date of discovery. As relevant here, the six-year “fraud or

concealment” provision also encompasses at a minimum the

“fraudulent concealment doctrine,” which applies when the

defendant acts to prevent or delay the plaintiff’s discovery of

the breach. 4 See, e.g., Caputo, 267 F.3d at 188. Rooted in

federal common law, the fraudulent concealment doctrine tolls

the statute of limitations “until the plaintiff in the exercise

4
The Second Circuit in Caputo interpreted the “fraud or
concealment” provision in 29 U.S.C. § 1113 as independently
including both fraud and fraudulent concealment claims. See
Caputo, 267 F.3d at 190 (interpreting “fraud or concealment” as
“fraud or [fraudulent] concealment”). This appears to be the
minority view. Id. at 188-89 (citing six Unites States Courts
of Appeal—i.e. the First, Third, Seventh, Eighth, Ninth, and
D.C. Circuits—that have interpreted “fraud or concealment” as
synonymous with “fraudulent concealment”). We have not been
asked to address this issue, however, as Browning “do[es] not
claim that [Reeder and Dukich] committed fraud by false
representations or omissions.” (App. Reply 10.)

17
of reasonable diligence discovered or should have discovered the

alleged fraud or concealment.” J. Geils Band Employee Benefit

Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1255 (1st Cir.

1996) (citing Larson v. Northrop Corp., 21 F.3d 1164, 1172-74

(D.C. Cir. 1994)). We conclude that the fraudulent concealment

doctrine is inapplicable in this case.

The fraudulent concealment doctrine does not apply here for

the simple reason that we find nothing in the record

demonstrating that the Trustees were prevented from discovering

the breach or violation as a result of concealment by Appellees.

The fraudulent concealment doctrine “requires the plaintiffs

show (1) that defendants engaged in a course of conduct designed

to conceal evidence of their alleged wrongdoing and that (2)

[the plaintiffs] were not on actual or constructive notice of

that evidence, despite (3) their exercise of diligence.”

Larson, 21 F.3d at 1172. Thus, the fraudulent concealment

doctrine does not trigger the six-year limitations period under

29 U.S.C. § 1113 if the concealing act does not delay actual or

constructive notice of the fiduciary’s wrongdoing.

In this case, Browning contends that Reeder and Dukich

fraudulently concealed their breach of fiduciary duty “by

assuring the Plan that [Dukich] was protecting their legal

rights and by discouraging them from otherwise seeking
18
independent legal advice.” (App. Reply 10.) Thus, Browning’s

argument is tied to the fact that the Trustees were advised by

letter in July 2001 and again in March 2003 that they should

withhold legal action.

However, notwithstanding the July 2001 letter’s advice

regarding counsel, the Trustees had already accumulated

significant indicia of a viable claim against Appellees. In

fact, the July 2001 letter explained a component of the alleged

breach, as it stated that the 180-day investment was locked into

five-year notes. Thus, the July 2001 letter itself did not

prevent or delay the plaintiff’s discovery of the breach. And

on February 19, 2002, well before the March 2003 letter was

sent, the Trustees were unambiguously informed that the Plan’s

$555,000 investment was placed in court-appointed receivership.

At that time, the Trustees not only had “actual knowledge of a

breach or violation” under section 413(2), but, by necessary

implication, they also had clearly discovered the breach or

violation that formed the basis of their suit. Thus, “[t]he

claim, such as it was, lay bare for the world to see.” Kurz, 96

F.3d at 1552.

In sum, the July 2001 letter therefore did not delay

discovery of the “breach or violation” because, regardless of

the letter, the Trustees were well aware of Appellees’
19
wrongdoing by February 19, 2002. Further, because the three-

year limitations period was triggered at that time, the March

2003 letter certainly had no effect on the Trustees’ discovery

of the breach or violation.

Lastly, we turn to Browning’s state law professional

malpractice claim, which alleges that Appellees negligently

provided investment advice to the Trustees. The record in this

case amply supports the district court’s dismissal of the claim.

Under Virginia law, a claim for professional negligence,

although sounding in tort, is considered an action for breach of

contract for purposes of the statute of limitations because the

legal claim is grounded in contract law. See Virginia Military

Institute v. King, 232 S.E.2d 895, 899-900 (Va. 1977). Under

Virginia law, the statute of limitations for contract claims is

five years for contracts in writing, and three years for oral

contracts. Va. Code Ann. § 8.01-46. The statute of limitations

accrues on the date of breach, not the date of the resulting

damage is discovered. Id. § 8.01-230.

Here, Browning’s malpractice claim is based entirely on the

Appellees’ recommendation to purchase the U.S. Capital Funding

investment. Browning’s argument is that the Appellees

“recommended that the Trustees invest ‘a larger portion’ of the
20
Plan’s assets” with U.S. Capital Funding. (App. Brief 38.)

Even assuming that the professional relationship between the

parties was based in contract (which appears to be the case),

the lengthier five-year limitations period provided under

Virginia law still bars this claim. Based on Appellees’

recommendations, the Trustees purchased the U.S. Capital Funding

note on April 26, 1999, more than five years and eleven months

before this action was filed on March 18, 2005. 5 Therefore, the

state law professional malpractice claim is also barred by the

statute of limitations.

III.

The district court did not err in granting summary judgment

to Appellees on the grounds that Browning’s action was barred by

5
Equitable estoppel principles do not save Browning in this
case. Based on Virginia statutory and case law, we have held
that the “statute of limitations is tolled until a person
intentionally misled by a putative defendant could reasonably
discover the wrongdoing and bring action to redress it.” FDIC
v. Cocke, 7 F.3d 396, 402 (4th Cir. 1993). As discussed at
length earlier, we find that the Trustees discovered the
wrongdoing on February 19, 2002, when they learned that the
Plan’s $555,000 investment was placed in court-appointed
receivership. The July 2001 letter advising the Trustees to
forgo legal action was sent seven months before they had actual
knowledge. Thus, even if equitable estoppel principles tolled
the running of the statute of limitations for this seven-month
period, Browning’s action was still filed four months late.

21
the statute of limitations. Consequently, the judgment of the

district court is

AFFIRMED.