Dominick BRUNO, Plaintiff-Appellant, v. The TIME WARNER PENSION PLAN, Defendant-Appellee, 534 F. App'x 654

MEMORANDUM Plaintiff-Appellant Dominick Bruno asks this court to reverse the district court’s judgment dismissing his pension-related claims as untimely. We AFFIRM. 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. § 1118. 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).

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 case must involve a fiduciary’s breach of a fiduciary obligation. We therefore apply the time limits found in 29 U.S.C. § 1113. 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. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . 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, 120 S.Ct. 2180, 147 L.Ed.2d 187 (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). . Appellant’s Motion to Strike the Supplemental Excerpts of Records and the Counter Statement of Facts, ECF No. 19, is denied as moot.