Charles Guenther v. Lockheed Martin Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES GUENTHER, Nos. 17-16984

Plaintiff-Appellant, 18-15823

v. D.C. No.

5:11-cv-00380-

LOCKHEED MARTIN CORPORATION; EJD

LOCKHEED MARTIN CORPORATION

RETIREMENT PLAN FOR CERTAIN

SALARIED EMPLOYEES, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted June 11, 2019

Submission Vacated June 13, 2019

Resubmitted August 18, 2020

San Francisco, California

Filed August 25, 2020

Before: Ronald M. Gould, Sandra S. Ikuta, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

2 GUENTHER V. LOCKHEED MARTIN

SUMMARY *

Employee Retirement Income Security Act

Affirming the district court’s summary judgment in

favor of defendants, the panel held that a claim of breach of

fiduciary duty in violation of the Employee Retirement

Income Security Act was time-barred under 29 U.S.C.

§ 1113(2), which provides that such a claim must be brought

within three years of the date on which the plaintiff obtained

“actual knowledge” of the breach.

First, the panel held that the defendant did not waive its

statute of limitations affirmative defense, raised in answer to

a second amended complaint filed during proceedings on

remand from this court, either by litigating the case to

judgment without ever raising the defense or by compelling

plaintiff to exhaust administrative remedies without

asserting the defense.

Addressing the merits of the defense, the panel applied

Intel Corp. Inv. Policy Committee v. Sulyma, 140 S. Ct. 768

(2020), which held that “actual knowledge” requires more

than merely a possible inference from ambiguous

circumstances, but rather knowledge that is actual. Plaintiff

alleged that in a letter regarding bridging of service under a

retirement plan, defendant breached its duty to make

accurate representations to a beneficiary. The panel

concluded that the sending of this letter provided the basis

for plaintiff’s claim, and he had actual knowledge of

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

GUENTHER V. LOCKHEED MARTIN 3

defendant’s alleged misrepresentation upon receipt of the

letter. The panel held that actual knowledge does not mean

that a plaintiff has knowledge that the underlying action

violated ERISA, not does it merely mean that the plaintiff

has knowledge that the underlying action occurred. Instead,

the defendant must show that the plaintiff was actually aware

of the facts constituting the breach, as well as the nature of

the breach. The panel concluded that plaintiff’s suit was

barred by the statute of limitations because he did not file

suit within three years of obtaining actual knowledge of the

alleged breach. The panel held that an exception for

fraudulent concealment, triggering application of ERISA’s

six-year statute of limitations, did not apply. The panel also

held that the district court did not abuse its discretion in

denying plaintiff’s post-judgment motion for

reconsideration.

COUNSEL

Andrew F. Pierce (argued), Pierce & Shearer LLP, Redwood

City, California, for Plaintiff-Appellant.

Clarissa A. Kang (argued), R. Bradford Huss, and Dylan D.

Rudolph, Trucker Huss APC, San Francisco, California, for

Defendants-Appellees.

Stephanie B. Bitto (argued), Trial Attorney; Thomas Tso,

Counsel for Appellate and Special Litigation; G. William

Scott, Associate Solicitor for Plan Benefits Security; Kate S.

O’Scannlain, Solicitor of Labor; Office of the Solicitor,

United States Department of Labor, Washington, D.C.; for

Amicus Curiae United States Secretary of Labor.

4 GUENTHER V. LOCKHEED MARTIN

OPINION

R. NELSON, Circuit Judge:

This appeal arises from a fiduciary’s alleged breach of

its duty to make accurate representations to a beneficiary

under the Employee Retirement Income Security Act of

1974 (“ERISA”). Specifically, we determine whether the

beneficiary had actual knowledge of the alleged breach and

failed to bring suit within the statute of limitations prescribed

under ERISA. Because the record establishes that the

beneficiary had actual knowledge of the alleged breach and

failed to bring suit within the required three-year period, we

hold his claim is time-barred.

I

Appellant Charles Guenther began working for

Lockheed Martin Corporation (“LMC”) in 1983. From 1983

to 1991, he was an active participant in the company’s

retirement plan (the “Plan”), a defined benefit pension plan.

He left LMC in 1991, but returned to work for the company

again in 1997 and was able to “bridge” his previously

accrued service credit under the Plan with his new service

credit—meaning that upon starting his new term of

employment with LMC, he was credited for his prior eight

years of accumulated service under the Plan and could

resume where he left off—in accordance with the Plan

provisions in effect at the time. 1

1

During Guenther’s first and second periods of employment with

LMC, he participated in the Lockheed Retirement Plan for Certain

Salaried Employees (the “Salaried Plan”). The Salaried Plan was later

merged with the company’s other defined benefit plans to form the Plan.

GUENTHER V. LOCKHEED MARTIN 5

In 2001, Guenther left LMC for the second time, having

accrued approximately 11.5 years of credited service under

the Plan. While Guenther was employed elsewhere, the Plan

was amended in 2005 (the “Plan Amendment”). The Plan

Amendment provided that “no person who is re-employed

by [LMC] on or after January 1, 2006 shall become an active

Participant or earn Credited Service under the Plan with

respect to any period commencing with such

reemployment.” Under the Plan Amendment, therefore,

returning LMC employees hired after January 1, 2006, could

participate in a different retirement plan—the Capital

Accumulation Plan (“CAP”)—but could not participate in or

resume accruing additional credited service under the Plan.

In 2006, Guenther began negotiations with an LMC

human resources representative to return to work for the

company. Prior to interviewing with LMC, Guenther heard

a “rumor” that the company “was going to be changing

around their [retirement] plan.” This was an important issue

for Guenther. So during the negotiations that followed, he

made clear that one of his “key conditions” of returning was

that his “prior service be bridged so that he could receive the

full benefit of the company’s defined benefit retirement

plan.” The LMC representative indicated it was possible to

bridge his prior service with his proposed new service, as

Guenther had done when he previously returned to LMC in

1997, and provided him a form entitled “Application for

Bridging of Prior Service,” which Guenther submitted to

LMC on July 17, 2006. The bridging form stated in part: “If

your request is approved, the date you submit this

application is the effective date that your current period of

service will bridge with your prior service.” On July 25,

2006, LMC Pension Plan Operations replied to his bridging

request form in a letter (the “July Letter”), stating in relevant

part:

6 GUENTHER V. LOCKHEED MARTIN

Since you were vested in a pension benefit

provided by the Lockheed Martin

Corporation Retirement Plan for Certain

Salaried Employees, your prior periods of

Lockheed/Lockheed Martin service will be

bridged with your proposed current

Lockheed Martin service.

According to Guenther, this was the only communication

from LMC that he believed told him he would be accruing

ongoing credited service in the Plan. No other retirement

plan (including CAP) was brought to his attention at that

time. The next month, Guenther terminated his then-existing

employment, and then rejoined LMC in September.

After rejoining LMC, Guenther received a November 7,

2006 letter (the “November Letter”) from LMC Pension Plan

Operations which stated, in part, the following:

Since you were vested in a pension benefit

provided by the Lockheed Martin

Corporation Retirement Plan for Certain

Salaried Employees, your prior periods of

Lockheed/Lockheed Martin service will be

bridged with your current Lockheed Martin

service. Consequently, your accrued benefit

under the Capital Accumulation Plan has

immediately become vested because the

combined total of your Lockheed Martin

controlled group service exceeds five years.

It should be noted that because you are not

currently participating in a Lockheed Martin

defined benefit pension plan, you are not

GUENTHER V. LOCKHEED MARTIN 7

entitled to a pension benefit from Lockheed

Martin for your current period of service.

Guenther was “surprise[d]” by this letter because he believed

it contradicted LMC’s assurance in the July Letter that he

could bridge his prior service under the Plan. Guenther had

checked his account numerous times online after he started

at LMC in September to see whether he had begun

accumulating time for his pension. No accumulated time

was ever indicated. He stopped checking his account online

once he received the November Letter.

Soon after receiving the November Letter, he contacted

LMC’s Employment Service Center (“ESC”) to ask about

the status of his pension, but was told the bridging issue was

handled by CitiStreet, LMC’s employer benefits service

provider. CitiStreet then instructed him to contact ESC,

which he did again, but “got the run around.” In late

November, after several more calls, Guenther asked to speak

with someone at LMC’s Human Relations office, but the

person he was referred to was not there and did not return his

calls. In December, Guenther visited a different Human

Relations office and showed the program HR Representative

the July and November Letters and asked for an explanation.

The HR Representative thanked him for bringing the matter

to her attention but never followed up. The record does not

indicate that Guenther had any further communication with

LMC regarding his pension plan for more than three years.

In 2009, Guenther spoke with another LMC employee

who was hired several months before him. That employee

indicated that he, like Guenther, had received a similar letter

promising bridging but was later informed that his credited

service under the Plan would not bridge. After speaking

with his manager, Guenther contacted the ESC again in

8 GUENTHER V. LOCKHEED MARTIN

March 2010 but received no information regarding the

specifics of his plan. However, the ESC did discuss

information from a Plan Amendment provision with him,

stating that employees “[n]ewly or rehired on or after

January 1, 2006 will not participate in [the] defined pension

benefit plan.” He later asked the legal department for a point

of contact but was again told to contact HR.

Guenther never received additional credited service for

his third period of employment with LMC, leaving his years

of credited service at 11.5. Guenther was never given a plan

summary or any other indication that he could appeal the

issue to anyone other than those he had already contacted.

On November 8, 2010, Guenther filed his complaint

(“FAC”) against LMC alleging breach of contract and

ERISA claims to recover benefits, and the case was removed

to federal court. The district court dismissed his breach of

contract claim and granted summary judgment on the ERISA

claim in favor of LMC. On appeal, we affirmed the district

court’s determination, but remanded the case because

Guenther alleged sufficient facts to raise a previously

unasserted ERISA claim against LMC for breach of

fiduciary duty under Section 1132(a)(3). Guenther v.

Lockheed Martin Corp., 646 F. App’x 567, 570 (9th Cir.

2016) (unpublished) (remanding to consider “whether

[LMC] breached a fiduciary duty and, if so, whether

Guenther is entitled to surcharge as a remedy”).

On remand, Guenther filed a Second Amended

Complaint (“SAC”) pursuing the Section 1132(a)(3) claim

for equitable relief in the form of surcharge—that is,

monetary recovery for losses resulting from a fiduciary

breach. See CIGNA Corp. v. Amara, 563 U.S. 421, 440–42

(2011) (recognizing equitable estoppel, reformation, and

surcharge as the three types of equitable relief available

GUENTHER V. LOCKHEED MARTIN 9

under Section 1132(a)(3)). Guenther alleged LMC breached

its fiduciary duty “to make accurate and correct

representations concerning [Guenther’s] ability to obtain

additional service credit under the Plan after rehire.”

Specifically, he alleged LMC misrepresented the Plan by

inducing him (and allegedly others) to return to work for

LMC by “granting” his pre-hire bridging application while

failing to disclose to him that the Plan Amendment barred

him from bridging his additional credited service. LMC

raised an affirmative defense that his claim was barred by

the statute of limitations governing breach of fiduciary duty.

The district court granted LMC’s motion for summary

judgment, finding Guenther’s claim barred by the statute of

limitations. The court found that Guenther obtained “actual

knowledge” of the breach when he received the November

Letter from LMC, more than three years before he filed his

claim. See 29 U.S.C. § 1113(2). The court concluded that

Guenther “unequivocally stated he understood the

November 7th letter to mean he was not entitled to a pension

benefit on re-employment with Lockheed, and he knew from

his online account he was not accruing credit.” The court

rejected Guenther’s argument that disclosure of the Plan

Amendment’s existence was necessary for his breach claim

to accrue, instead relying on Guenther’s testimony that when

he received the November Letter he clearly understood the

effect of the Plan Amendment (i.e., his prior credited service

would not bridge under the Plan), and this understanding

clearly conflicted with LMC’s representations during

employment negotiations and in the July Letter.

Guenther then moved for reconsideration, citing

previously unconsidered testimony from two fact witnesses

affiliated with LMC. Guenther argued that these statements

demonstrated the fraud and concealment necessary to invoke

10 GUENTHER V. LOCKHEED MARTIN

ERISA’s six-year statute of limitations, rendering his claim

timely. The court denied Guenther’s request for

reconsideration because the evidence could have been

discovered earlier with reasonable diligence, no

circumstances beyond his control prevented him from

obtaining it, and the testimony would not have changed the

disposition of the case. This timely appeal followed.

After oral argument, we vacated submission and stayed

this case pending a decision by the Supreme Court in Intel

Corporation Investment Policy Committee v. Sulyma, 140 S.

Ct. 768 (2020). In Sulyma, the Supreme Court affirmed the

Ninth Circuit’s determination that “actual knowledge” under

Section 1113(2) requires more than “‘merely a possible

inference from ambiguous circumstances’” like disclosure

alone, but rather knowledge that is actual. Sulyma, 140 S.

Ct. at 775 (quoting Sulyma v. Intel Corp. Inv. Policy Comm.,

909 F.3d 1069, 1076 (9th Cir. 2018)).

II

Congress enacted ERISA “to protect . . . the interests of

participants in employee benefit plans . . . 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). ERISA requires a

fiduciary to discharge its responsibilities “solely in the

interest of the participants and beneficiaries” and “for the

exclusive purpose of . . . providing benefits to participants

and their beneficiaries.” § 1104(a)(1). Fiduciaries breach

this duty “if they mislead plan participants or misrepresent

the terms or administration of a plan.” Barker v. Am. Mobil

Power Corp., 64 F.3d 1397, 1403 (9th Cir. 1995).

Additionally, “[t]he duty of loyalty is one of the common

law trust principles that apply to ERISA fiduciaries, and it

GUENTHER V. LOCKHEED MARTIN 11

encompasses a duty to disclose.” Washington v. Bert

Bell/Pete Rozelle NFL Ret. Plan, 504 F.3d 818, 823 (9th Cir.

2007) (internal citation and footnote omitted). ERISA

imposes “an obligation to convey complete and accurate

information material to the beneficiary’s circumstance, even

when a beneficiary has not specifically asked for the

information.” Id. at 824–25 (quoting Barker, 64 F.3d at

1403). Thus, in addition to a duty not to mislead, fiduciaries

have “an affirmative duty to inform beneficiaries of

circumstances that threaten the funding of benefits.” Acosta

v. Pac. Enters., 950 F.2d 611, 619 (9th Cir. 1991) (as

amended).

ERISA authorizes participants and beneficiaries to seek

equitable relief for violations of this duty. § 1132(a)(3). It

imposes a six-year statute of limitations commencing after

either (1) the date of the last action constituting a part of the

breach or violation, or (2) in the case of an omission, the

latest date on which the fiduciary could have cured the

breach or violation. § 1113(1). Alternatively, if the plaintiff

obtains “actual knowledge of the breach or violation,” the

statute of limitations requires suit to be filed within three

years of “the earliest date on which the plaintiff had [that]

knowledge,” § 1113(2), 2 except in the case of “fraud or

concealment,” where suit may be filed within six years of the

date of discovery of the breach or violation, § 1113.

2

If the plaintiff obtains actual knowledge of the breach or violation,

his three-year limitation period described in Section 1113(2) applies only

if it expires earlier than the default six-year limitation period outlined in

Section 1113(1). § 1113.

12 GUENTHER V. LOCKHEED MARTIN

III

We review the district court’s order granting summary

judgment de novo. Sulyma, 909 F.3d at 1072, aff’d, Sulyma,

140 S. Ct. 768. “[V]iewing the evidence in the light most

favorable to the nonmoving party,” we determine “whether

there are any genuine issues of material fact and whether the

district court correctly applied the substantive law.” Id.

LMC bears the burden of proving that Guenther filed suit

outside the limitation period. See Payan v. Aramark Mgmt.

Servs. Ltd. P’ship, 495 F.3d 1119, 1122 (9th Cir. 2007).

At the heart of this dispute is whether Guenther had

“actual knowledge” of an alleged fiduciary breach within the

meaning of ERISA Section 1113(2). To determine a claim’s

accrual date under Section 1113, we use a two-step analysis.

First, we “isolate and define the underlying violation upon

which the plaintiff’s claim is founded.” Sulyma, 909 F.3d

at 1072–73 (internal quotation marks omitted). Second, we

determine “when the plaintiff had ‘actual knowledge’ of the

alleged breach or violation,” and whether suit was filed

within three years of the date that knowledge was obtained.

Id. at 1073 (quoting § 1113(2)).

Even if LMC shows Guenther had actual knowledge, he

may still demonstrate LMC committed “fraud or

concealment” under Section 1113, triggering a six-year

limitation period that would render his claim timely. See

§ 1113.

A

As an initial matter, Guenther argues LMC waived its

statute of limitations affirmative defense by (1) litigating the

case to judgment without ever raising the defense and

GUENTHER V. LOCKHEED MARTIN 13

(2) compelling him to exhaust administrative remedies

without asserting the defense. We disagree.

First, the statute of limitations defense was unavailable

to LMC in response to Guenther’s FAC because no breach

of fiduciary duty was alleged in the FAC. LMC’s statute of

limitations defense under Section 1113 only became

available on remand after Guenther raised his breach of

fiduciary duty claim in his SAC. At that point, LMC

properly raised its affirmative defense in its answer to the

SAC. LMC thus did not waive its right to raise this defense

by not doing so in its initial answer.

Second, Guenther’s argument that LMC waived the

statute-of-limitations defense by advocating that Guenther

exhaust administrative procedures also fails. Exhaustion is

required prior to bringing Section 1132(a)(1)(B) suits to

recover benefits for plan violations, see Diaz v. United Agric.

Emp. Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 (9th

Cir. 1995), but not for claims alleging a breach of fiduciary

duty, see Spinedex Physical Therapy USA Inc. v. United

Healthcare of Ariz., Inc., 770 F.3d 1282, 1294 (9th Cir.

2014). LMC’s insistence on exhaustion in response to

Guenther’s FAC—which did not raise a breach of fiduciary

duty claim—thus did not mean the defense was waived for

the SAC.

Accordingly, the district court did not abuse its

discretion in determining LMC did not waive its statute of

limitations affirmative defense.

B

Guenther’s sole cause of action in his SAC is for “Breach

of Fiduciary Duty” under Section 1132(a)(3). Specifically,

Guenther alleges that LMC breached its duty by failing, in

14 GUENTHER V. LOCKHEED MARTIN

the July Letter granting his pre-hire bridging application, “to

make accurate and correct representations concerning his

ability to obtain additional service credit under the Plan after

rehire.” Guenther asserts LMC not only made an inaccurate

affirmative representation in response to his inquiry whether

his “prior periods of Lockheed/Lockheed Martin service

[would] be bridged with [his] proposed current Lockheed

Martin service,” but also failed to disclose the existence of

the 2005 Plan Amendment, which barred him from obtaining

additional credited service under the Plan.

The facts as Guenther pled them in the SAC are

sufficient to support the claim that when LMC sent the July

Letter, it breached its fiduciary duty to not “mislead plan

participants or misrepresent the terms or administration of a

plan,” Barker, 64 F.3d at 1403. LMC allegedly falsely

represented to Guenther that he could bridge his prior and

future credited service under the Plan, even though the Plan

Amendment explicitly prevented him from “becom[ing] an

active Participant or earn[ing] Credited Service under the

Plan” upon rejoining LMC. This alleged misrepresentation

took place when LMC sent the July Letter. 3

Guenther separately contends, however, that LMC’s

failure to disclose the Plan Amendment to Guenther “until

2010 at the earliest” constitutes a “breach” distinct from its

asserted misrepresentation in the July Letter, and that this

3

At the summary judgment stage, we view all facts “in the light

most favorable” to Guenther. See Sulyma, 909 F.3d at 1072. We note

that the July Letter did not expressly state that Guenther could continue

to accrue additional credited service under the Plan, and LMC contends

that Guenther received a form of bridging because his prior period of

service was included when determining certain benefits under the newly

instituted CAP, although not for accrual of credited service under the

Plan.

GUENTHER V. LOCKHEED MARTIN 15

breach continued after the time LMC sent the July Letter.

He argues this continuing breach should extend his Section

1113 limitation period. We agree with Guenther that LMC

had a fiduciary “duty to disclose” the Plan Amendment’s

existence to him when he began the process of renewing

employment at LMC (or at a minimum, its effect of barring

his bridging request). See NFL Ret. Plan, 504 F.3d at 823.

However, this alleged breach is not a continuing breach for

purposes of Section 1113, separate from the alleged

misrepresentation in the July Letter. Once a beneficiary

knows of one breach in a series of breaches “of the same

character . . . . awareness of [the] later breaches would

impart nothing materially new.” Phillips v. Alaska Hotel &

Rest. Emps. Pension Fund, 944 F.2d 509, 520 (9th Cir.

1991). “The earliest date on which a plaintiff became aware

of any [such] breach would thus start the limitation period of

§ 1113(a)(2) running.” Id. (emphasis added). Failure to

disclose the Plan Amendment was “of the same character,”

id., as the alleged misrepresentation in the July Letter. This

is because knowledge of the Plan Amendment was only

useful to Guenther insofar as it would have informed him

that his prior credited service could not be bridged. The

district court thus correctly determined that once Guenther

received the November Letter, Guenther’s subsequent

knowledge of the Plan Amendment’s existence “impart[ed]

nothing new” to him. 4

4

Even assuming Guenther’s SAC alleges a separate breach of a

different character (i.e., continuing failure to disclose the Plan

Amendment’s existence), his legal theory fails. Under this theory, his

cause of action for LMC’s ongoing failure to disclose could have accrued

even after he obtained actual knowledge of the breach if he had learned

about the Plan Amendment from sources other than LMC, because

LMC’s ongoing fiduciary duty to disclose the Plan Amendment’s

existence to him would have continued until LMC fulfilled its duty to

16 GUENTHER V. LOCKHEED MARTIN

Because Guenther asserts no separate underlying

violation beyond breach of fiduciary duty, LMC’s act of

sending the July Letter to Guenther is the violation providing

the basis for his equitable surcharge claim. See Sulyma,

909 F.3d at 1072–73. LMC has thus met its burden of

showing that the alleged underlying violation occurred on

July 25, 2006. We therefore look at that violation for

purposes of determining Guenther’s “actual knowledge.”

C

The Section 1113 limitation period begins to run as soon

as “the plaintiff has sufficient knowledge to be alerted to the

particular claim.” Sulyma, 909 F.3d at 1076. “This inquiry

into the plaintiff’s actual knowledge is entirely factual,

requiring examination of the record.” Id. at 1073 (citation

and alterations omitted).

ERISA does not define “actual knowledge.” But the

Supreme Court recently confirmed that the plain language of

Section 1113(2) requires that an individual “in fact be

aware” of a piece of information (particularly given the

statute’s use of the qualifier “actual”). Sulyma, 140 S. Ct.

at 776. This knowledge is distinguished from lower

knowledge thresholds like presumed, implied, or

constructive knowledge, where the law will sometimes

disclose it to him. We decline to adopt such an impractical and untenable

“continuing violation” approach to the statute, which would effectively

“read[] the ‘actual knowledge’ standard out” of Section 1113(a)(2). See

Phillips, 944 F.2d at 520. LMC may have had a duty to remedy its failure

to disclose after Guenther received the July Letter with its alleged

misrepresentation. But that does not change the fact that a breach of the

duty to disclose at least happened on July 25, 2006, and that Guenther

was aware of the effect of this breach on November 7, 2006, as discussed

further below.

GUENTHER V. LOCKHEED MARTIN 17

impute knowledge of facts to a person when a reasonably

diligent person would have (or should have) learned them.

Id. Instead, actual knowledge under Section 1113(2)

requires that a plaintiff’s knowledge “be more than

‘potential, possible, virtual, conceivable, theoretical,

hypothetical, or nominal.’” Id. (quoting Black’s Law

Dictionary 53 (4th ed. 1951)). And while constructive

knowledge is insufficient to meet the actual knowledge

threshold, “actual knowledge can be proved through

‘inference from circumstantial evidence.’” Id. at 779

(quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

Regarding what facts a defendant must show that a

plaintiff was aware of, “actual knowledge of the breach”

(1) “does not mean that a plaintiff has knowledge that the

underlying action violated ERISA” and (2) “does not merely

mean that a plaintiff has knowledge that the underlying

action occurred.” Sulyma, 909 F.3d at 1075. Instead, a

defendant’s burden is to show “the plaintiff [was] actually

aware of the facts constituting the breach, not merely that

those facts were available to the plaintiff,” as well as

something “extra,” meaning that that the plaintiff “was

actually aware of the nature of the alleged breach.” Id.

at 1075–76 (emphasis added). 5 “The key is that, whatever

the underlying ERISA claim, the limitation period begins to

run once the plaintiff has sufficient knowledge to be alerted

to the particular claim.” Id. at 1076.

5

“For instance, in a section 1104 case, the plaintiff must be aware

that the defendant has acted and that those acts were imprudent. But in,

for example, a section 1106 case the plaintiff need only be aware that the

defendant has engaged in a prohibited transaction, because knowledge

of the transaction is all that is necessary to know that a prohibited

transaction has occurred.” Sulyma, 909 F.3d at 1075 (internal citation

omitted).

18 GUENTHER V. LOCKHEED MARTIN

A defendant’s disclosure of all relevant information to a

plaintiff strongly suggests that the plaintiff gained

knowledge of the disclosed information. Sulyma, 140 S. Ct.

at 777. To meet the actual knowledge threshold though,

Section 1113(2) “requires more than evidence of disclosure

alone.” Id. For example, circumstantial evidence that “a

plaintiff viewed the relevant disclosures” coupled with

“evidence suggesting that the plaintiff took action in

response to the information contained in them” could be

sufficient to prove actual knowledge even if a plaintiff

denies knowledge of the disclosure. Id. at 779. 6

Here, direct evidence demonstrates Guenther had actual

knowledge of LMC’s alleged breach of its fiduciary duty

more than three years before this action was filed.

Guenther’s deposition confirms he was fully aware upon

receiving the November Letter that LMC had

misrepresented in its July Letter that it would bridge his

previously accrued credited service. For instance, Guenther

testified: “I didn’t find out that I’m not in the pension fund

until I got a letter in November that Lockheed said, Oh, by

the way, we didn’t mean pension plan when we told you

pension plan in the earlier [July] letter that was your basis

for why you came back.” He thus understood the November

Letter’s representation to be “[c]ompletely opposite of the

first letter,” and even asserted it was “obvious” that LMC

contradicted itself in the two letters. When asked whether

he understood at the time he read the November Letter that

he was no longer able to participate in the Plan, he answered

affirmatively that “[u]nfortunately, I understood what they

6

“If a plaintiff’s denial of knowledge is blatantly contradicted by

the record, a court should not adopt that version of the facts for purposes

of ruling on a motion for summary judgment.” Sulyma, 140 S. Ct. at 779

(internal quotation marks omitted).

GUENTHER V. LOCKHEED MARTIN 19

were saying, yeah,” namely, “[a]t that point, I wasn’t in any

plan.” 7 His testimony thus confirms that on November 7,

2006, he was aware of the nature of LMC’s alleged breach,

even if he didn’t know that LMC’s actions violated ERISA

specifically. See Sulyma, 909 F.3d at 1075. This qualifies

as actual knowledge for purposes of Section 1113.

Circumstantial evidence of Guenther’s actions taken

before and after receiving the November Letter bolsters the

conclusion that he had actual knowledge of LMC’s alleged

misrepresentation upon receipt of the November Letter.

Guenther could have only viewed the November Letter to be

a misrepresentation if he first interpreted the July Letter to

mean he could bridge his prior credited service under the

Plan as he asserts (rather than just under the CAP).

Circumstantial evidence supports his assertion: while

negotiating with the LMC recruiter earlier that year, the fact

that Guenther explicitly stated that bridging his credited

service under the Plan was a “key condition[]” of his return,

coupled with the fact that receiving the July Letter was

apparently sufficient for him to end his existing employment

in reliance on its representation, suggests that he understood

the July Letter to mean he could bridge his prior credited

service under the Plan upon his return to LMC.

More importantly, after starting at LMC, Guenther

regularly checked his account online to see if he was

accumulating additional credited service under the Plan (he

7

When asked whether receiving the November Letter answered his

question whether he was accumulating new time on the Plan, Guenther

answered: “Yes. Not the way it was supposed to, but . . . . That was an

answer.” Driving this point home even further, Guenther also testified:

“It’s very clear in the first letter, pension plan is called out. Second letter,

it says, You’re not in the pension plan.”

20 GUENTHER V. LOCKHEED MARTIN

was not), 8 but stopped checking after receiving the

November Letter. This behavior suggests he no longer

maintained his expectation that his prior credited service

would bridge under the Plan after receiving the November

Letter. Finally, Guenther contacted various company HR

representatives immediately after receiving the November

Letter, indicating his concern LMC had made a

misrepresentation to him, causing him to urgently seek

clarification regarding the status of his pension.

Guenther argues that under Waller v. Blue Cross of

California, 32 F.3d 1337 (9th Cir. 1994), he could not have

had actual knowledge until he understood the Plan

Amendment had ended accrual of credited service for

employees rehired after January 1, 2006. However, Waller

is distinguishable because in that case the beneficiary only

knew that the fiduciaries had purchased annuities for the

employee benefits plan (not inherently a breach of fiduciary

duty), but did not know they had used an infirm bidding

process to select the annuity providers. Id. at 1341, 1345–

46. Accordingly, the beneficiary’s partial knowledge was

insufficient to rise to the level of actual knowledge of a

breach. Id. at 1341–42. Here, by contrast, Guenther testified

he was fully aware at the time he received the November

Letter that LMC’s representation in the July Letter was not

accurate.

8

Guenther testified that “when I’d go on the web and look” during

the period of time prior to receiving the November Letter, “[t]here was

no years of service being added to my prior years of service for the

pension plan,” and this concerned him. He also stated that in October

2006, after he decided he had waited “long enough [because] they should

be putting money into the pension plan and nothing’s happening,” he got

“on the phone calling State Street and Lockheed saying, [‘]What the heck

is going on here?[’]”

GUENTHER V. LOCKHEED MARTIN 21

We also reject Guenther’s argument that the three-year

limitation period should start running on a later date based

on LMC’s separate alleged breach of its fiduciary duty to

disclose the Plan Amendment to him. The district court

correctly determined that the effect of the Plan Amendment

(i.e., preventing bridging of his prior credited service) is

what mattered to Guenther, rather than the Plan

Amendment’s existence, and the November Letter “related

the effect of the 2005 plan amendment, and [Guenther]

stated he understood it.” 9 His awareness from the November

Letter was thus also sufficient to trigger the three-year

limitation period for the alleged breach of LMC’s duty to

disclose, even without specific knowledge of the Plan

Amendment’s existence per se. We need not determine

whether LMC breached its duty to disclose exclusively with

the July Letter, or continuously thereafter as Guenther

contends, because either way the date he obtained actual

knowledge of the effect of that breach remains the same:

November 7, 2006. See Phillips, 944 F.2d at 520 (“The

earliest date on which a plaintiff became aware of any breach

[of the same character in a series of breaches] would thus

start the limitation period of § 1113(a)(2) running.”).

Accordingly, even if he didn’t learn about the Plan

Amendment’s existence until his 2010 phone call with the

ESC, that knowledge “impart[ed] nothing materially new”

to him beyond the November Letter, and is not the “earliest

9

In any event, by the time he received the November Letter,

Guenther knew that “information material to [his] circumstance,”

Barker, 64 F.3d at 1403, had been concealed from him, either in the July

Letter or the November Letter, regarding whether LMC would allow him

to bridge his prior accrued credited service. At a minimum, therefore,

he was aware of the “nature of [LMC’s] alleged breach” of its duty to

disclose. See Sulyma, 909 F.3d at 1075.

22 GUENTHER V. LOCKHEED MARTIN

date on which [he] became aware of any breach[.]” See id.

(emphasis added).

Because Guenther failed to bring suit within three years

of November 7, 2006 (the earliest date he had actual

knowledge of LMC’s alleged breach of its fiduciary duty),

his suit is barred by ERISA’s statute of limitations. See

§ 1113(2).

D

Alternatively, Guenther claims that even if he had actual

knowledge of the breach, because LMC engaged in fraud via

the July Letter and concealment via LMC’s failure to

disclose the Plan Amendment “both prior to and after the

July 25, 2006 Letter,” ERISA’s six-year limitation period

applies instead of the three-year period. See § 1113.

Our circuit has held that this exception only applies when

a defendant has “taken steps to hide [its] breach of fiduciary

duty.” Barker, 64 F.3d at 1402 (emphasis added). Under

this approach, incorporated from the common law doctrine

of fraudulent concealment, a plaintiff must establish

“affirmative conduct upon the part of the defendant which

would, under the circumstances of the case, lead a

reasonable person to believe that he did not have a claim for

relief.” Id. (internal quotation marks and emphasis omitted).

Plaintiff bears the burden of pleading and proving that such

affirmative acts occurred. See Hexcel Corp. v. Ineos

Polymers, Inc., 681 F.3d 1055, 1060 (9th Cir. 2012).

To be sure, Guenther has set forth facts suggesting that

LMC misrepresented his ability to bridge his terms of

service, and failed to disclose material information regarding

the same while Guenther was negotiating renewed

employment with LMC. But his claim does not rise to the

GUENTHER V. LOCKHEED MARTIN 23

level of “fraud or concealment” under our precedent.

Guenther has failed to produce any evidence that LMC made

“knowingly false misrepresentations with the intent to

defraud” Guenther when it sent him the July Letter, see

Barker, 64 F.3d at 1401, much less evidence of affirmative

acts taken by LMC to hide that misrepresentation as required

in our circuit, see id. at 1402. Mere failure to disclose the

Plan Amendment’s existence does not demonstrate that

LMC hid its breach from Guenther. Evidence that Guenther

was “bounced . . . from one department to another, never

answering his questions” over the course of several years is

indicative of bureaucratic inefficiency, but does not on its

own rise to the level of affirmative concealment. 10 Absent

the necessary record evidence, Guenther’s argument for

application of the fraud or concealment exception fails.

Accordingly, the district court correctly determined

ERISA’s six-year limitation period for fraud or concealment

does not apply to Guenther’s claim.

IV

The district court’s order denying Guenther’s post-

judgment motion for reconsideration of summary judgment

10

Guenther argues in the alternative that even if LMC’s continuing

failure to disclose the Plan Amendment does not qualify as a separate

affirmative act of concealment, the July Letter was a “self-concealing

act” with the concealment committed in the course of the underlying

wrong itself, thus satisfying the fraud or concealment exception on its

own. We agree with the district court that the facts constituting the claim

for breach of fiduciary duty alone cannot also serve as the basis for fraud

or concealment—otherwise, the exception would swallow the rule.

Instead, a defendant must take affirmative steps “beyond the breach itself

[with] the effect of concealing the breach from its victims.” In re Unisys

Corp. Retiree Med. Benefit ERISA Litig., 242 F.3d 497, 503 (3d Cir.

2001).

24 GUENTHER V. LOCKHEED MARTIN

is reviewed for abuse of discretion. Latshaw v. Trainer

Wortham & Co., 452 F.3d 1097, 1100 (9th Cir. 2006).

“Judgment is not properly reopened absent highly unusual

circumstances, unless the district court is presented with

newly discovered evidence, committed clear error, or if there

is an intervening change in the controlling law.” Weeks v.

Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001) (internal

quotation marks omitted).

Guenther fails to show how the new deposition

testimony he obtained from two witnesses affiliated with

LMC rises to the level of “highly unusual circumstances,”

nor does he cite any circumstances beyond his control which

prevented him from obtaining and producing the deposition

testimony of LMC officials for the district court’s review

before it issued its summary judgment order. Instead of

raising the kind of newly discovered evidence that would

merit reconsideration, Guenther is using Federal Rules of

Civil Procedure 59(e) and 60(b) to “relitigate old matters, or

to raise arguments or present evidence that could have been

raised prior to the entry of judgment.” Exxon Shipping Co.

v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation omitted).

The district court therefore did not abuse its discretion

by denying Guenther’s motion for reconsideration.

* * *

Because Guenther had actual knowledge of LMC’s

alleged breach of its fiduciary duty, yet failed to bring suit

within the applicable three-year limitation period under

ERISA, his action is time-barred.

AFFIRMED.