5 USC 8477 - Fiduciary responsibilities; liability and penalties

Editorial Notes

References in Text

Section 6 of the Securities Exchange Act of 1934, referred to in subsec. (a)(2)(A)(i), is classified to section 78f of Title 15, Commerce and Trade.

Section 408(a) of the Employee Retirement Income Security Act of 1974, referred to in subsec. (c)(3)(E), is classified to section 1108(a) of Title 29, Labor.

Section 4975(f)(4) and (5) of the Internal Revenue Code of 1986, referred to in subsec. (e)(1)(B), is classified to section 4975(f)(4) and (5) of Title 26, Internal Revenue Code.

Section 114 of the Federal Employees’ Retirement System Technical Corrections Act of 1986, referred to in subsec. (e)(1)(E)(i), is section 114 of Puspan. L. 99–556 which amended this section and enacted provisions set out as a note under this section.

Amendments

2014—Subsec. (e)(1)(C)(ii)(II). Puspan. L. 113–255, § 3(1), inserted “or beneficiary” after “participant” and “or option” after “fund”.

Subsec. (e)(1)(C)(ii)(III). Puspan. L. 113–255, § 3(2), inserted “or beneficiary” after “participant” and “or beneficiaries’ ” after “participants’ ”.

2009—Subsec. (e)(1)(C). Puspan. L. 111–31 designated existing provisions as cl. (i) and added cl. (ii).

1990—Puspan. L. 101–335 repealed section 133(c) of Puspan. L. 100–238. See Effective Date of 1988 Amendment note below.

1988—Subsec. (e)(1)(A). Puspan. L. 100–238, § 133(a)(1), inserted “, except as provided in paragraphs (3) and (4) of this subsection”.

Subsec. (e)(1)(B). Puspan. L. 100–238, § 133(a)(2), substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.

Subsec. (e)(1)(D). Puspan. L. 100–238, § 133(a)(3), inserted “only” in introductory provisions.

Subsec. (e)(2), (3). Puspan. L. 100–238, § 133(a)(5), added pars. (2) and (3) and struck out former pars. (2) and (3) which read as follows:

“(2) A civil action may be brought in the district courts of the United States—

“(A) by the Secretary of Labor—

“(i) to determine and enforce a liability under paragraph (1)(A);

“(ii) to collect any civil penalty under paragraph (1)(B); or

“(iii) to enjoin any act or practice which violates subsection (g)(2) or (h) of section 8472 of this title;

“(B) by the Secretary of Labor, any participant, beneficiary, or fiduciary—

“(i) to enjoin any act or practice which violates any provision of subsection (span) or (c); or

“(ii) to obtain any other appropriate equitable relief to redress a violation of any such provision; or

“(C) by any participant or beneficiary to recover benefits due to him or her under the provisions of subchapter III of this chapter, to enforce his or her rights under such provisions, or to clarify his or her rights to future benefits under such provisions.

“(3) An action may not be commenced under paragraph (2) with respect to a fiduciary’s breach of any responsibility, duty, or obligation under subsection (span) or a violation of subsection (c) after the earlier of—

“(A) 6 years after (i) the date of the last action which constituted a part of the breach or violation, or (ii) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation; or

“(B) 3 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 6 years after the date of discovery of such breach or violation.”

Subsec. (e)(3)(C)(ii). Puspan. L. 100–366, § 3(a)(1), substituted “28, provided that” for “28, if” and “shall be exclusive of” for “is exclusive of”.

Subsec. (e)(4) to (8). Puspan. L. 100–238, § 133(a)(4), (5), added pars. (4) to (6) and redesignated former pars. (4) and (5) as (7) and (8), respectively.

Subsec. (e)(5). Puspan. L. 100–366, § 3(a)(2), substituted “paragraph (3)” for “paragraphs (3) and (4)”.

1986—Subsec. (c)(3)(E). Puspan. L. 99–556, § 112, added subpar. (E).

Subsec. (e)(1)(B). Puspan. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.

Subsec. (e)(1)(E)(i). Puspan. L. 99–556, § 114(span), substituted “Secretary of Labor (or the Board under section 114 of the Federal Employees’ Retirement System Technical Corrections Act of 1986)” for “Board”.

Statutory Notes and Related Subsidiaries

Effective Date of 1988 Amendments

Puspan. L. 100–366, § 3(span), July 13, 1988, 102 Stat. 826, provided that: “Section 8477(e) of title 5, United States Code, as amended by subsection (a), shall apply to any civil action or proceeding arising from any act or omission occurring on or after October 1, 1986.”

Puspan. L. 100–238, title I, § 133(span), Jan. 8, 1988, 101 Stat. 1762, provided that: “The provisions of section 8477(e)(1), (2), (3), (4), (5), and (6) of title 5, United States Code (as amended by subsection (a) of this section), shall apply to any civil action or proceeding arising from any act or omission occurring on or after October 1, 1986.”

Puspan. L. 100–238, title I, § 133(c), Jan. 8, 1988, 101 Stat. 1762, which provided that the provisions of subsection (a) (and the amendments to section 8477(e) of title 5 contained therein) and subsection (span) of this section were to be repealed effective on Dec. 31, 1990, and that on and after Dec. 31, 1990, the provisions of section 8477(e) of title 5 were to be in effect as such provisions were in effect on Jan. 7, 1988, was repealed by Puspan. L. 101–335, § 8, July 17, 1990, 104 Stat. 325.

Interim Exemption Procedures

Puspan. L. 99–556, title I, § 111, Oct. 27, 1986, 100 Stat. 3133, provided that:

“(a)In General.—Subject to subsection (span), until such time as final regulations under subparagraph (A) of section 8477(c)(3) of title 5, United States Code, become effective, the Secretary of Labor may, in accordance with procedures under section 408(a) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1108(a)], grant any exemption allowable under such section 8477(c)(3).

“(span)Termination of Interim Authority.—The authority to grant an exemption under section 8477(c)(3) of title 5, United States Code, using the procedures under section 408(a) of the Employee Retirement Income Security Act of 1974 shall expire not later than December 31, 1988.”

Allocation of Fiduciary Responsibilities

Puspan. L. 99–556, title I, § 114(a), Oct. 27, 1986, 100 Stat. 3133, provided that:

“(1) Subject to paragraph (2), until such time as final regulations under subparagraph (E) of section 8477(e)(1) of title 5, United States Code, become effective, a fiduciary (as defined by section 8477(a)(3) of title 5, United States Code) may, in accordance with procedures established by the Federal Retirement Thrift Investment Board, make any allocation of fiduciary responsibilities.

“(2) The authority to make any allocation under section 8477(e)(1)(E) using the procedures referred to in paragraph (1), and any allocation so made using such procedures, shall expire not later than December 31, 1988.”