Secretary, U.S. Department of Labor v. Robert N. Preston, 873 F.3d 877

Robert Preston, owner/CEO and trustee of TPP’s ESOP, allegedly caused the Plan to buy his inflated TPP stock in 2006 and 2008; Secretary of Labor sued under ERISA for fiduciary breach and related claims.
Before filing, the Secretary and defendants negotiated and executed successive tolling agreements (last extended May 2014) in which defendants expressly agreed not to assert statute-of-limitations or timeliness defenses for suits filed within specified dates; Secretary sued Dec. 30, 2014.
Defendants moved to dismiss claims based on ERISA’s six‑year limitation (statute of repose) in 29 U.S.C. § 1113(1) for events before Dec. 30, 2008; district court held § 1113(1) is a non‑waivable statute of repose and dismissed those claims.
Secretary obtained interlocutory certification under 28 U.S.C. § 1292(b); Eleventh Circuit reviewed de novo and framed the certified question: Is § 1113 subject to express waiver?
The panel assessed (1) whether § 1113(1) is jurisdictional (which would render waiver impermissible) and (2) whether a statute of repose is categorically non‑waivable even if non‑jurisdictional.
Court concluded § 1113(1) is a statute of repose but not jurisdictional, and that statutes of repose—including § 1113(1)—are subject to express waiver; affirmed that express tolling/waiver agreements may bar a defendant from invoking § 1113(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 29 U.S.C. § 1113(1) is jurisdictional and thus non‑waivable	§ 1113(1) is not jurisdictional; without a clear congressional statement making it jurisdictional, it is a non‑jurisdictional claim‑processing rule and presumptively waivable	§ 1113(1) is a statute of repose that should be treated as non‑waivable regardless of jurisdictional label	Court held § 1113(1) is non‑jurisdictional (no clear textual grant of jurisdiction) and therefore presumptively waivable
Whether a statute of repose like § 1113(1) can be expressly waived	Even though § 1113(1) is a statute of repose, a defendant can knowingly and voluntarily waive that personal statutory protection by express agreement	Statutes of repose are categorically immune from waiver (district court relied on this rule) because repose reflects a legislated end to liability	Court rejected the categorical non‑waivability view: statutes of repose are not inherently unwaivable and § 1113(1) may be expressly waived; remanded for further proceedings

In re Pugh, 158 F.3d 530 (11th Cir. 1998) (framework: determine whether time bar is jurisdictional to assess waiver)
In re Trusted Net Media Holdings, LLC, 550 F.3d 1035 (11th Cir. 2008) (reaffirming Pugh analytical framework)
Musacchio v. United States, 136 S. Ct. 709 (2016) (statutory time bars ordinarily are not jurisdictional absent a clear statement)
United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (clear‑statement requirement to treat a procedural bar as jurisdictional)
CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) (distinguishing statutes of limitations from statutes of repose; repose not subject to equitable tolling)
California Pub. Emp. Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042 (2017) (statute of repose generally not subject to equitable tolling; exceptions where statute contemplates extensions)
Mid State Horticultural Co. v. Pennsylvania R.R. Co., 320 U.S. 356 (1943) (express waiver held invalid where waiver would conflict with statutory purpose)
United States v. Mezzanatto, 513 U.S. 196 (1995) (presumption that statutory protections are waivable absent clear congressional intent to the contrary)