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[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.
3
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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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Case: 17-10833 Date Filed: 10/12/2017 Page: 20 of 20
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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