The HONORABLE JOHN F. NANGLE, Senior United States District * Judge for the Eastern District of Missouri, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3653

____________ Billy E. Bennett, Jr., *
* Appellant, *

*
v. * Appeal from the United States * District Court for the Western Federated Mutual Insurance Company * District of Arkansas. as plan administrator of the Federated * Mutual Insurance Company Career * Growth Bonus Plan and as plan * administrator of the Federated Mutual * Insurance Company Golden Cash * Reserve Plan; Federated Mutual * Insurance Company Career Growth * Bonus Plan; Federated Mutual * Insurance Company Golden Cash * Reserve Plan, *
* Appellees. *

____________ Submitted: March 12, 1998 Filed: April 2, 1998

____________ Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges, and NANGLE, Senior District Judge. *

____________The HONORABLE H. FRANKLIN WATERS, United States District *** Court for the Western District of Arkansas.

-2- ____________ NANGLE, Senior District Judge.

Bi llyE. Bennett, Jr. appeals from the distric t court’s grant of summary judgment in favor of appellees

*** in his suit for recovery of pe nsion benefits under ERISA. The district court ruled that appellant’s suit was barred by the statute of limitations because his cause of action accrued on the date of his termination of employmen t rather than on the date that his claim for benefits wa s denied. We affirm.

Appellant began working for Federated Mutual Insuranc e Comp any(“Federated”) in 1980. At some point after hi s initi al hiring, appellant was selected for transfer t o Compensation Plan II. Transfer to Plan II is within the sole d iscretion of Federated and is an incentive pla n reserved for its top performers. Under Plan II, appellan t be gan participating in the Federated Mutual Insuranc e Compan yCareer Growth Bonus Plan (the “ Bonus Plan”)

. Onlyselect employees are allowed to participate in th e Bonus Pla n as a reward for being a top performer. Th e Bonus Plan does not payout during active employment and n o funds are deposited or transferred into individua l accounts for plan participants . Credit in the Bonus Plan is earned when the employee has met certain goals and is

no t payable until retirement, permanent disability o r death. Credit is forfeited upon termination for any othe r
reason. According to the Bonus Plan, upon forfeiture an employee has sixty days to contest said forfeiture.-3-

Ap pellant alleges the Bonus Plan is an “employe e pensio n benefit plan” as defined by ERISA. Appellan t resigned from Federated on May 31, 1990. At that time, h e had accumulated credit in the amount of $57,992 in th e Bonus Plan. It is undisputed that Appellant had a copy o f the Bonus Plan which contains the forfeiture clause. It is also undisputed that while still working at Federated, two of appellant’s superiors told-4-

him that if he resigned he would automatically forfeit al l plancredit and interest accumulated under the Bonus Plan

. Further, upon appellant’s resignation, he received a letter informing him that he would automatically forfeit any credit and interest accumulated in the Bonus Plan.

Ina letter dated January 18, 1996, appellant demande d payme nt of benefits due him under the Bonus Plan. Th e Bonus Plan denied the claim onMarch 20, 1996. Appellant appealed the denial through the Plan and said denial was upheld by letter dated May 20, 1996. Appellant did no t cont est the denial within sixty days as required by th e Bonus P lan. Appellant filed the present action o n November 11, 1996, seeking payment of his vested pension benefits. Appellees filed for summary judgment, which th e district court granted. The c ourt ruled that appellant’s
cause of action had accrued on the date of his terminatio n of employment and therefore the suit was barred by th e statute of limitations.

We review the district court’s grant of summar y judgment de novo, using the same standards as the distric t court. See Mayard v. Hopwood , 105 F.3d 1226, 1227 (8t h Cir. 1997). Summary judgment is only appropriate when th e record demonstrates there is n o genuine issue of material fact and the moving party is entitled to judgment as a matt er of law after viewing the facts and inferences i n the light most favorable to the nonmoving party

. See Fed

. R. C iv. P. 56(c); Matsushita Elec. Indus. Co. v. Zenit h Radio Corp. , 475 U.S. 574, 587 (1986).
Under Eighth Circuit law, a “claim for E RISA benefits is characterized as a contract action for statute o f limitations purposes.” See Adamson v. Armco , 44 F.3d 650 ,-5-

652 (8th Cir. 1995). Although the court looks to stat e statutes of limitations, federal law determines when the
cause of action accrues. See Connors v. Hallmark & So n Coal Co. , 935 F.2d 336, 341 (D.C. Cir. 1991); Dixon v

. Anderson , 928 F.2d 212, 215 (6th Cir. 1991); Cada v

. Baxter Healthcare Corp. , 920-6-

F.2d 446, 450 (7th Cir. 1990), cert

. denied , 501 U.S. 126 1 (1991 ); Northern California Retail Clerks Union & Foo d Employers Joint Pension Trust Fund v. Jumbo Markets, Inc. , 906 F.2d 1371, 1372 (9th Cir. 1990). The parties agree that the Arkansas five year statute of limitations applie s to this case. See Ark. Code Ann. § 16-56-111(West , WESTLAW through 1997 Reg. Sess.).

The only issue on appeal is whether the discovery rul e should apply to determine whenthe statute of limitations begins to run or whether the statute of limitations shoul d beginto run when a claim for benefits is made and denied

. This issue was recently decided by a panel of this Court in U nion Pacific Railroad Co. v. Beckham , 1998 WL 7900 3 (8th Cir. Feb. 26, 1998). In Union Pacific , the Cour t noted that absent a contrary mandate from Congress, th e disc overyrule, which states that a cause of actio n accrues when a plaintiff “disc overs or with due diligence shou ld have discovered, the injury that is the basis o f the litigation,” determines when a cause of action accrue s in a federal question case. Id . at * 4. The Cour t reasoned that in an ERISA action “[c]onsistent with th e discovery rule, the general ru le . . . is that a cause of acti on accrues after a claim for benefits has been mad e and has been formally denied.” Id . at * 5. There ar e times , however, when “an ERISA beneficiary’s cause o f action accrues before a formal denial, and even before a claimfor benefits is filed ‘when there has been a clear repudiationby the fiduciary which is clear and made know n to the beneficiar [y].’” Id . (citing Miles v. New Yor k State Teamsters Conf. Pension & Retirement Fund Employee Pension Benefit Plan , 698 F.2d 593, 598 (2nd Cir. 1983)).-7-

In th e present case, it is undisputed that appellees informed appellant by letter on the date of hi s resig nation that he forfeited any credit and interes t accumulated in the Bonus Plan. This letter was a clea r rep udiation by the fiduciary which was “clear and mad e kno wn” to appellant, the beneficiary. Id . Consisten t wit h the discovery rule, appellant knew or should hav e knownon the date of his resignation that he would forfei t his benefits because he had a copy of the Bonus Plan whic h-8-

incl uded the forfeiture clause, he had been told by tw o superio rs that if he resigned he would forfeit hi s benefits and he received a clear repudiation in the form of a letter upon his resignation. Appellant’s cause o f
ac tion accrued on the date of his resignation and th e distr ict court correctly held that the statute o f limitations barred his suit. Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.