United States Court of Appeals,

Eleventh Circuit.

No. 95-6277.

T.A. MUSICK and James Character, Plaintiffs-Appellants,

v.

GOODYEAR TIRE & RUBBER COMPANY, INC., Defendant-Appellee.

April 23, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (Nos. CV 94-PT-1132-M, CV 94-PT-1348-M),

Robert B. Propst, Judge.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior

Circuit Judge.

PER CURIAM:

The plaintiffs, T.A. Musick and James Character, appeal from

the district court's order granting the defendant, Goodyear Tire &

Rubber Co., summary judgment. In 1994, almost four years after

Goodyear had laid them off from their jobs, the plaintiffs filed

suits claiming that the lay-offs were motivated by Goodyear's

desire to deprive them of retirement benefits, in violation of

section 510 of the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C. § 1140. They sought back pay and benefits as

well as retirement eligibility credit for the time they were

laid-off. The district court determined that a two-year statute of

limitations was applicable to the plaintiffs' lawsuits and

dismissed them.

The plaintiffs concede that they filed their lawsuits more

than two years after their claims accrued (on the date of the

lay-offs). But they contend that a six-year statute of limitations

governs section 510 actions in Alabama. For the reasons that
 1

As explained in note 2 on p. 1710, infra, this case does

not involve any prayer for reinstatement, so we have no occasion

to decide whether a different statute of limitations might apply

to such a remedy. 

follow, we conclude that the district court was correct in

determining that a two-year statute of limitations is applicable to

section 510 actions brought in Alabama, at least insofar as back

pay, back benefits, and retirement eligibility credit are the

remedies sought.1

I.

Until 1990, the plaintiffs worked as schedulers, a salaried

position, at Goodyear's tire manufacturing plant in Gadsden. The

plaintiffs participated in Goodyear's retirement plan for salaried

employees. Under that plan, an employee is eligible for full

retirement benefits when: (a) he reaches age 55 and has 10 years

of service; or (b) he has 30 years of service, regardless of age.

The plan is governed by ERISA, 29 U.S.C. § 1001 et seq. In early

1990, Goodyear notified a number of workers, including the

plaintiffs, that due to a reduction in force they would be laid-off

from work. At that time, Musick was 50 years old, and had been

employed by Goodyear for 19 years, 10 months. Character was 45

years old, and had been employed by Goodyear for 25 years, 6

months.

In April of 1994, Character was recalled to work at Goodyear's

Gadsden plant. Musick was recalled in August of 1994. However,

they were not given credit, for purposes of calculating retirement

eligibility, for the time they were laid-off. Consequently, the

plaintiffs' retirement eligibility dates were approximately four
years later than they would have been but for the lay-offs.

II.

In early 1994, Musick and Character commenced separate actions

against Goodyear. Each alleged that Goodyear laid him off, failed

to transfer him to another department, and failed to recall him to

work in a timely fashion, all with the specific intent to deny him

retirement and fringe benefits to which he was entitled under his

ERISA plan. Each sought to recover past wages, benefits, and

retirement eligibility credit equal to the length of time he was

laid-off.

The district court consolidated the plaintiffs' cases.

Goodyear moved for summary judgment on the ground that the

plaintiffs' actions were barred by the applicable statute of

limitations. The district court agreed with Goodyear that the

plaintiffs' section 510 claims are governed by a two-year statute

of limitations. Applying that two-year limitations period, the

district court held that claims arising from the plaintiffs'

lay-offs were time-barred because Musick was laid-off four years

before commencing his action, and Character was laid-off more than

three and one half years before commencing his action.

III.

 ERISA does not contain a statute of limitations for section

510 actions. E.g., Clark v. Coats & Clark, Inc., 865 F.2d 1237,

1241 (11th Cir.1989). Because Congress has not established a time

limitation for such actions, "the settled practice has been to

adopt a state time limitation as federal law." Id. "When adopting

a state statute of limitations, we first determine the essential
nature of the claim under federal law and then focus on the period

applicable to such a claim under the most analogous state law

claim." Id. The district court followed this course, and we

review its analysis de novo. Byrd v. MacPapers, Inc., 961 F.2d

157, 159 (11th Cir.1992).

 "In selecting the state statute of limitations most

appropriate to the federal cause of action, federal courts must

first "characterize the essence of the claim in the pending case.'

" Id. (quoting Wilson v. Garcia, 471 U.S. 261, 268, 105 S.Ct.

1938, 1942, 85 L.Ed.2d 254 (1985)). Characterization of the

essential nature of an ERISA action is a matter of federal law.

Id. This Court has characterized an ERISA section 510 claim for

these purposes on two occasions, establishing the applicable state

law statute of limitations for section 510 claims brought in

Georgia and Florida. We have yet to establish the applicable state

law statute of limitations for claims brought in Alabama. In doing

so now, we will adopt or borrow the statute of limitations Alabama

law provides for the most analogous state law cause of action. Our

previous decisions in which we have performed the same task in

Georgia and Florida cases provide useful guidance for deciding

which Alabama cause of action is most analogous to an ERISA section

510 claim.

In Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1241 (11th

Cir.1989), the plaintiffs were former employees who sued their

employer under section 510 of ERISA, seeking back pay, front pay,

and reinstatement. The district court held that Georgia's two-year

statute of limitations for actions seeking recovery of wages
 2

As to the employees' section 510 claims for reinstatement,

however, this Court reversed, and held that Georgia's 20-year

statute of limitations applicable to claims for equitable

enforcement of statutory rights was applicable. Clark, 865 F.2d

at 1242.

In this case, we have no occasion to determine which

Alabama statute of limitations is applicable to a section

510 claim for reinstatement, because neither plaintiff in

this case was seeking reinstatement at the time the district

court dismissed the lawsuits. By that time, both plaintiffs

had been called back to work, thus mooting any reinstatement

remedy. 

governed the section 510 claims. Id. at 1239. We affirmed the

district court's holding insofar as the back pay remedy was

concerned. Id. at 1242.2

The Georgia statute of limitations applicable to wage claims

is entitled "Enforcement of rights under statutes, acts of

incorporation; recovery of wages, overtime, and damages."

O.C.G.A. § 9-3-22 (1982). That section provides that "all actions

for the recovery of wages, overtime, or damages and penalties

accruing under laws respecting the payment of wages and overtime

shall be brought within two years after the right of action has

accrued." Id. In upholding the application of that statute of

limitations to the plaintiffs' section 510 claims in Clark, we

reasoned that "[t]he focus of this statute much more narrowly and

specifically contemplates the action now before us than does the

general language of O.C.G.A. § 9-3-24 governing contract actions.

Therefore, the two-year limitations period ... is the most

analogous statute of limitations and governs appellants' claims."

Clark, 865 F.2d at 1242.

In Byrd v. MacPapers, Inc., 961 F.2d 157, 158 (11th Cir.1992),

the plaintiff sued her deceased husband's former employer, alleging
that the employer discharged her husband because he had refused to

surrender medical and disability benefits to which he was entitled

under his employee benefits plan. The plaintiff sought recovery of

lost wages and benefits, as well as injunctive relief. The

district court dismissed the plaintiff's section 510 claim, relying

on Clark and holding that Florida's two-year statute of limitations

governing actions for the recovery of wages barred the plaintiff's

claims. We reversed the district court's holding in Byrd. In

doing so, we characterized the essential nature of the plaintiff's

section 510 claim as one for benefits denied by wrongful discharge.

Id. at 159. Based on that characterization, we reasoned that

"Florida Statute § 440.205 is most closely analogous to § 510 of

ERISA in that it prohibits the discharge of an employee in

retaliation for the employee's claim or attempted claim for

compensation under Florida workers' compensation law." Id. A

four-year statute of limitations governed claims under section

440.205. Id. at 160.

We concluded in Byrd that the district court, in determining

the most closely analogous Florida cause of action, had erred by

relying on Clark 's analysis of Georgia law. Id. Causes of action

sometimes vary from state to state, as do statutes of limitation.

Alabama, like Florida, has a provision in its worker's compensation

statutes addressing retaliatory discharge. Section 25-5-11.1 of

the Alabama Code provides that "[n]o employee shall be terminated

by an employer solely because the employee has instituted or

maintained any action against the employer to recover workers'

compensation benefits under this chapter." The Alabama Supreme
Court has held that claims brought under that section are subject

to the two-year statute of limitations found in section 6-2-38.

ConAgra, Inc. v. Adams, 638 So.2d 752, 753-54 (Ala.1994).

Likewise, Alabama has a statute of limitations for the recovery of

wages that is materially identical to the Georgia provision applied

in Clark. Section 6-2-38(m) of the Alabama Code provides: "All

actions for the recovery of wages, overtime, damages, fees, or

penalties accruing under the laws respecting payment of wages,

overtime, damages, fees, and penalties must be brought within two

years."

 There is no provision of Alabama law more closely analogous

to a section 510 action than those two provisions; therefore, the

more analogous of those two Alabama provisions is the one that

determines the statute of limitations period for section 510 ERISA

claims in Alabama. The plaintiffs argue that Alabama's general

six-year statute of limitations governing "[a]ctions upon any

simple contract or specialty not enumerated [specifically],"

Ala.Code § 6-2-34(9), should govern section 510 actions in Alabama.

We reject this argument for the same reason we rejected it in

Clark: other provisions of state law "more narrowly and

specifically contemplate[ ] the [section 510] action now before us

than does the general language" of the state's statute of

limitations generally governing contract actions. 865 F.2d at

1242.

Because the two provisions of Alabama law most analogous to a

section 510 ERISA action—one for wages, the other for retaliatory

discharge—both have a two-year statute of limitations, we need not
decide which is more analogous. Either way, there is a two-year

statute of limitations for filing section 510 claims in Alabama.

Accordingly, the district court correctly held that the plaintiffs'

lawsuits, which were filed more than two years after the alleged

section 510 claims accrued, are time-barred.

AFFIRMED.