                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3572
                                  ___________

Esther Abdel,                         *
                                      *
            Plaintiff/Appellant,      *
                                      *
      v.                              *
                                      *
U.S. Bancorp,                         * Appeal from the United States
                                      * District Court for the
            Defendant/Appellee,       * District of Minnesota.
                                      *
Hartford Comprehensive Employee       *
Benefit Service Company; Hartford     *
Financial Services Group, Inc.        *
                                      *
            Defendants.               *
                                 ___________

                            Submitted: April 21, 2006
                               Filed: August 11, 2006
                                ___________

Before ARNOLD, COLLOTON, Circuit Judges, and BOGUE,1 District Judge.
                          ___________

COLLOTON, Circuit Judge.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      Esther Abdel appeals from the district court’s2 grant of summary judgment
dismissing her action to recover long-term disability (“LTD”) benefits under the
Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B) (“ERISA”).
We affirm.

                                           I.

        Abdel was employed by U.S. Bancorp (“U.S. Bank”) from 1991 until
September 2000. At that time, Hartford Comprehensive Employee Benefit Service
Company (“Hartford”) was the plan administrator handling disability benefit claims
and initial appeals for U.S. Bank. In her last year of work, Abdel applied for LTD
benefits beginning on November 15, 1999, listing her conditions as asthma, migraine
headaches, double vision, and shortness of breath. She provided a statement from her
treating physician, Dr. Walid Mikhail, diagnosing her with general anxiety disorder,
caused by “work harassment [and] abuse by current staff,” and suggesting that she
would “need a different work environment [before] being able to return.” Based on
this statement and a telephone call to Dr. Mikhail, Hartford informed Abdel in a letter
dated January 5, 2000, that the “weight of the medical evidence in your file does not
show that you met the definition of Totally Disabled as of November 15, 1999.
Accordingly, no benefits are payable on your LTD claim.” (Appellee’s App. at 44).



      The letter included an invitation to send Hartford any additional information
not previously submitted within 60 days, in response to which Hartford would
conduct a review and provide “written notification of the results of our review.” (Id.).
For applicants who had no additional information but still disagreed with the denial
decision, the letter stated that “the Employee’s Retirement Income Security Act of


      2
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                          -2-
1974 (ERISA) provides you with the right to appeal our decision to the Plan
Administrator.” (Id. at 44-45). The letter indicated that to initiate this appeal process,
Abdel was required to write to Hartford within 60 days, authorizing the Plan
Administrator to fully review her file and clearly outlining her position and “any
issues or comments” Abdel had in connection with the claim. (Id. at 45).

        In response, Dr. Mikhail submitted additional medical records, and Hartford
responded with another letter, dated January 26, 2000, again denying benefits. This
letter stated that “[i]t is still our determination that you do not meet the Plan definition
of Total Disability . . . and we are upholding our decision to deny LTD benefits on
your claim.” (Appellant’s App. at 42-43). Hartford explained that:

       [t]he medical information provided does not support that you are
       disabled due to migraine headaches, asthma, or shortness of breath. All
       of the medical information received documents that you are being
       treated for anxiety. In addition, Dr. Mikhail has stated to us that your
       anxiety is secondary to issues at work, and he strongly recommended
       that you work in a different work place.

(Id. at 43). The letter repeated Abdel’s right to appeal the decision, specifying that
if Abdel did not agree with the reason her claim was denied, she should write to
Hartford “within 60 days of this letter,” clearly stating her position and authorizing
Hartford to release relevant portions of her file to the Plan Administrator. (Id.).

       Dr. Mikhail again wrote to Hartford, in a letter dated February 15, 2000,
clarifying his view that Abdel was “totally disabled from the dates of November 15,
1999 to January 31, 2000 due to anxiety disorder.” (Appellant’s App. at 45). On
February 25, 2000, Hartford responded by approving Abdel’s claim for LTD benefits,
but advising Abdel that her Plan “limits benefits to twenty-four months for certain
disabilities” and stating that “[b]ased on a review of the medical documentation that
we have received in support of your LTD claim, we have determined that your

                                            -3-
disability is subject to this provision.” (Id. at 48). Under the terms of Abdel’s plan,
“[i]f a Participant is Disabled because of Mental Illness or any condition that may
result from Mental Illness, subject to all other Plan provisions, benefits shall be
payable . . . for a total of twenty-four (24) months for all such Disabilities during the
Participant’s lifetime.” (Id. at 25) (emphasis added).

       On several occasions, Hartford informed Abdel that due to this 24-month limit,
her LTD benefits payments would continue only through March 19, 2002. On March
10, 2002, Abdel wrote to Hartford, arguing that she should not be subject to the 24-
month limitation, and claiming that she suffered from migraine headaches, vision
impairments, and chronic pain in her neck, upper shoulders, and arms. Hartford
reviewed Abdel’s file and informed her, in a letter dated June 12, 2002, that “the
evidence submitted in support of your claim does not establish that you meet the Plan
definition of Totally Disabled for your physical condition.” (Appellant’s App. at 57).
The letter also explained that “[t]he weight of the medical evidence we have been
provided shows that in the absence of your psychiatric condition you are not
physically disabled from any occupation,” and reiterated that no benefits would be
paid beyond March 19, 2002, for her psychiatric condition. (Id. at 60). The letter
repeated her administrative appeal rights, and informed Abdel that after this
administrative appeal, if Hartford again denied her claim, she would have the right
to bring a civil action under ERISA. (Id.).

       Abdel appealed the denial, and U.S. Bank had another doctor review Abdel’s
file and medical conditions. The U.S. Bancorp LTD Benefit Claim Subcommittee
then sent Abdel a letter dated October 16, 2002, stating that the “Committee has
decided to uphold the previous decision to wholly deny your claim for LTD benefits
beyond March 19, 2002.” (Appellant’s App. at 38). The letter provided that “[t]his
decision is final . . . and you have exhausted your right to appeal under the claims
procedures of the Plan. You may bring a civil action” under ERISA. (Id. at 40).



                                          -4-
       Abdel subsequently sued U.S. Bank, alleging employment discrimination, and
she settled her claims on June 2, 2003. In the settlement agreement, Abdel released
U.S. Bank from:

      any and all claims . . . under any federal, state or local ordinance
      prohibiting discrimination in employment, including any claims for
      discrimination arising under . . . the Employee Retirement Income
      Security Act of 1976 [sic] . . . or any other claims in any manner relating
      to her employment with and separation from the Bank, or otherwise,
      arising in law or equity, whether known, suspected, or unknown, and
      however originating or existing, to the date of her signing of this
      Agreement.

(Appellant’s App. at 7). The agreement further provided that “[n]otwithstanding the
foregoing, this Agreement and Release does not affect Abdel’s rights to employee
benefits, if any, payable after the termination of employment, including but not by
way of limitation, retirement benefits.” (Id.).

       On August 6, 2004, Abdel filed suit under ERISA, 29 U.S.C. § 1132(a)(1)(B),
claiming that she was wrongfully denied LTD benefits. U.S. Bank moved for
summary judgment, contending that Abdel’s claims were barred by the release and
by the statute of limitations. The district court granted the motion, holding that the
settlement agreement had released all potential ERISA claims. The court also held,
in the alternative, that Abdel’s claim was not timely because the two-year limitations
period began to run on February 25, 2000, when U.S. Bank “clearly conveyed to
Plaintiff that due to the nature of her disability,” her benefits would be subject to the
24-month limit, and effectively repudiated any claim to benefits beyond this period.




                                          -5-
                                           II.

       On appeal, Abdel argues that the settlement release does not bar her claim, and
that her action under ERISA was timely filed. We conclude that even assuming that
Abdel’s ERISA claim was not covered by the release, the action is barred by the
statute of limitations.

       ERISA contains no limitations period, and Minnesota’s two-year statute of
limitations governing contract actions to recover unpaid benefits applies. See Cavegn
v. Twin City Pipe Trades Pension Plan, 223 F.3d 827, 829-830 (8th Cir. 2000). The
question of claim accrual, however, is governed by federal common law. Id. A cause
of action for plan benefits under ERISA accrues when a plan fiduciary has “formally
denied an applicant’s claim for benefits or when there has been a repudiation by the
fiduciary which is clear and made known to the beneficiary.” Id.; see also Union Pac.
R.R. Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998).

       U.S. Bank alleges that Abdel’s cause of action accrued in January 2000, when
Hartford initially denied Abdel’s benefits claim, or on February 25, 2000, when it
granted benefits subject to the mental illness durational limitation. Abdel argues that
her claim accrued on October 16, 2002, when U.S. Bank informed her that she had
exhausted all internal appeals and could file suit. Alternatively, if her claim accrued
earlier, Abdel contends that the limitations period was tolled while she exhausted her
internal remedies under the plan.

       Abdel’s initial request for benefits encompassed two different claims under the
terms of the plan. The broader claim was for benefits of unlimited duration, based on
the claimed physical conditions of asthma, double vision, migraine headaches, and
shortness of breath. The parties refer to this as a claim for “benefits based on physical
disability.” She also claimed disability benefits for an anxiety disorder. This claim
was narrower, because the plan limited benefits based on mental illness to a period

                                          -6-
of 24 months. The administrator denied her request in its entirety on January 5 and
January 26, 2000.

      Abdel appealed the denial by way of Dr. Mikhail’s letter dated February 15,
2000, but the appeal was limited to the narrower claim for 24 months’ of benefits
based on the anxiety disorder. The letter made no mention of Abdel’s physical
conditions or her broader claim for benefits unlimited in duration based on these
physical conditions. (Appellant’s App. at 45). The administrator was persuaded by
the appeal, and thus granted Abdel benefits for 24 months based on her mental
condition.

       Relying on this course of events, and cryptic notes of a Hartford claims adjuster
in 2002 that the administrator “did not formally deny phys” in 2000, Abdel argues
that her claim for benefits based on physical disability was not denied until October
2002. We disagree. The administrator clearly denied Abdel’s claim for physical
disability benefits of unlimited duration on January 26, 2000, and Abdel declined to
challenge that aspect of the decision through an administrative appeal. Even if a
timely administrative appeal delays the accrual date until after internal remedies are
exhausted, see Fogerty v. Metro. Life Ins. Co., 850 F.2d 430, 433 n.3 (8th Cir. 1988),
overruled on other grounds by Johnson v. State Mut. Life Assur. Co., 942 F.2d 1260,
1266 (8th Cir. 1991) (en banc), Abdel failed to appeal the denial of benefits for
physical disability within the time provided. We have given conflicting signals about
whether an ERISA claim accrues at the time of the initial denial, Wilkins v. Hartford
Life and Accident Ins. Co., 299 F.3d 945, 947, 949 (8th Cir. 2002), or after the timely
exhaustion of administrative remedies under the plan. Mason v. Aetna Life Ins. Co.,
901 F.2d 662, 664 (8th Cir. 1990), but taking the view most favorable to Abdel, her
cause of action under ERISA accrued, at the latest, after expiration of the 60-day time
period within which she could have timely appealed the denial of her claim for the
physical disability benefits.



                                          -7-
       Abdel’s request in March 2002 for reevaluation of the denial of benefits based
on her physical condition may have been necessary to exhaust her administrative
remedies under the plan (as Hartford indicated in its October 2002 letter), see Wert
v. Liberty Life Assur. Co., 447 F.3d 1060, 1065-66 (8th Cir. 2006), and the request
and subsequent internal appeal may have been sufficient to meet the exhaustion
requirement even though Abdel did not initially pursue her internal remedies in a
timely manner. See Jenkins v. Local 705 Int’l Bhd. of Teamsters Pension Plan, 713
F.2d 247, 254 (7th Cir. 1983). But the belated effort to exhaust remedies does not
change the accrual date of Abdel’s claim. If such a request for reevaluation of a claim
previously denied were sufficient to delay the accrual date or renew the statue of
limitations, then a participant could forestall the running of the statute of limitation
simply by declining to pursue internal remedies under the ERISA plan.
Reconsideration of prior requests is to be encouraged, Mason, 901 F.2d at 664, and
Hartford’s 2002 reevaluation of Abdel’s file does not re-start the limitations period.
Id. This case involves no explicit statement by the administrator to the claimant that
it was treating the later request as a “new application,” cf. Cavegn, 223 F.3d at 829,
and the substance of Abdel’s 2002 request – which was based on renewed complaints
of physical conditions virtually identical to those considered in 2000 – leads us to
conclude that it triggered a reevaluation of an earlier claim, rather than a decision
about an entirely new claim.

       In summary, assuming Abdel’s claim under ERISA was not released by her
previous settlement agreement, the claim accrued no later than March 26, 2000. She
filed the instant action on August 6, 2004, a date that was beyond the two-year
limitations period. Her claim is therefore barred by the statute of limitations, and the
judgment of the district court is affirmed.
                            ______________________________




                                          -8-
