            United States Court of Appeals
                       For the First Circuit


No. 13-2166

                            ROBERT RILEY,

                        Plaintiff, Appellant,

                                 v.

         METROPOLITAN LIFE INSURANCE COMPANY, d/b/a METLIFE,

                        Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Douglas P. Woodlock, U.S. District Judge]



                               Before

                         Lynch, Chief Judge,
                     Souter,* Associate Justice,
                      and Lipez, Circuit Judge.


     Valeriano Diviacchi for appellant.
     James F. Kavanaugh, Jr., with whom Johanna L. Matloff and Conn
Kavanaugh Rosenthal Peisch & Ford, LLP were on brief, for appellee.


                            March 4, 2014




     *
        Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            LYNCH, Chief Judge.    In 2012, plaintiff Robert Riley

filed suit under the Employee Retirement Income Security Act of

1974 ("ERISA"), 29 U.S.C. § 1001 et seq., against defendant

Metropolitan Life Insurance Co. ("MetLife"), arguing that MetLife

had been underpaying his monthly benefits since its 2005 denial of

his assertion that he was entitled to a larger payment calculation

under his long-term disability insurance plan.    The district court

granted MetLife's motion for summary judgment on the grounds that

Riley's suit was barred by the six-year statute of limitations.

See Riley v. Metro. Life Ins. Co., ___ F. Supp. 2d ___, 2013 WL

5009618 (D. Mass. Sept. 11, 2013).      We affirm, rejecting Riley's

argument that this long-term disability plan must be analogized to

an installment payment plan so as to alter the accrual date of his

claim.    In doing so, we join three other circuits.   We also reject

his claim that the plan documents here create a different accrual

rule for him based on a principle of "symmetry" and reject his

equitable arguments.

                                  I.

            The relevant facts of this case are undisputed.    Riley

began working at MetLife in 1988. By 1999, Riley had been promoted

to associate general manager and earned approximately $80,000 per

year.    In February 2000, however, Riley began experiencing chronic

back, neck, knee, and shoulder pain, which also led to a bout of

depression.    Riley left work and received short-term disability


                                  -2-
(STD) benefits from February 2000 through July 2000. His claim for

continued benefits beyond July 2000 was denied.

            In the spring of 2001, Riley returned to MetLife, this

time in a non-managerial role in which he earned much less than he

had previously as a manager.          In May 2002, however, Riley's pain

returned, and he left work again.           Riley received STD benefits

until November 2002. He then made a claim for long-term disability

(LTD) benefits.      Riley's claim for LTD benefits was approved in

March 2005.

            The MetLife LTD plan ("the Plan") is governed by ERISA

and    explicitly   gives   MetLife    authority   in   its   discretion   to

interpret the terms of the contract. The plan provided that, if on

LTD, Riley would receive half of his pre-disability earnings,

offset by any disability payments from Social Security and certain

other sources of income.       To calculate Riley's benefits, MetLife

utilized his non-managerial salary from 2002, before he applied for

LTD.   Use of that salary gave Riley LTD benefits of $871 per month,

which was fully offset by Riley's Social Security benefits to leave

a net benefit of $50 per month, the plan minimum.         Had MetLife used

Riley's managerial salary from 2000 (before his STD leave) as its

starting point, Riley would have been entitled to benefits of about

$3,000 per month, leaving a net of about $1,400 per month after the

Social Security offset.       In May 2004, when he submitted forms in

support of his claim for LTD benefits, Riley contacted MetLife


                                      -3-
through his (since fired) counsel and argued that his sum of each

monthly LTD benefit should be based on his managerial salary from

2000, not his lesser salary from 2002.   MetLife disagreed.

            MetLife issued Riley his first LTD benefits check for

$50, which was less than the amount he felt he was owed, on April

15, 2005.   Riley refused to cash it.   He likewise refused to cash

any of the subsequent checks he received, returning them all to

MetLife in December 2005.   He also called MetLife in December 2005

to request that MetLife stop sending him the benefit checks. Riley

had retained counsel and, in October 2005, his counsel threatened

MetLife with suit based on MetLife's decision to base the LTD

benefits on Riley's 2002 non-managerial salary rather than his 2000

managerial salary.

            On February 7, 2007, Riley, still represented by former

counsel, filed suit against MetLife in Massachusetts state court,

alleging violations of Mass. Gen. Laws ch. 93A.    MetLife removed

the case to federal court, which dismissed Riley's claims as

preempted by ERISA in November 2007.      This court affirmed the

dismissal in an unpublished order on October 14, 2009.        Riley

asserts that his then-lawyers never told him that the suit had been

dismissed or that the dismissal was affirmed on appeal.

            Early in 2011, Riley expressed concerns to his former

lawyers that the statute of limitations period would run on his

claim.   In response, on March 18, 2011, Riley's counsel filed a


                                 -4-
second suit, this time in federal court.             The 2011 complaint did

not conform to the district court's Local Rules and was not

properly served on MetLife. MetLife moved to dismiss the complaint

and Riley's counsel failed to oppose the motion.                     The district

court then dismissed the complaint in January 2012.

           Riley retained present counsel, who filed this suit on

March 22, 2012. Riley's new complaint presented an ERISA claim for

unpaid   disability   benefits     under    29    U.S.C.   §   1132(a).1        The

district   court    allowed    limited     discovery      on   the    statute   of

limitations    question,   after    which    MetLife       moved     for   summary

judgment on the grounds that Riley's suit was untimely.                      In a

thoughtful    and   thorough   opinion,     the    district     court      granted

MetLife's motion.     Riley appeals.

                                    II.

           We review the district court's entry of summary judgment

de novo. Fidelity Co-Operative Bank v. Nova Cas. Co., 726 F.3d 31,

36 (1st Cir. 2013).    Summary judgment is appropriate when there is

no genuine dispute of material fact and the moving party is

entitled to judgment as a matter of law.            Id.

           ERISA does not provide a statute of limitations with

respect to actions to recover unpaid benefits from non-fiduciaries



     1
         The complaint filed by Riley's present counsel also
included claims against Riley's prior counsel for malpractice. The
parties settled those claims and stipulated to their dismissal with
prejudice.

                                    -5-
under its civil enforcement provision, 29 U.S.C. § 1132(a).     See

Santaliz-Ríos v. Metro. Life Ins. Co., 693 F.3d 57, 59 (1st Cir.

2012).   Federal courts "borrow the most closely analogous statute

of limitations in the forum state."       Id.     The most closely

analogous statute of limitations here is the six-year period

Massachusetts applies to breach of contract claims. See Mass. Gen.

Laws ch. 260, § 2.

           While state law governs the length of the limitations

period, federal common law determines when an ERISA claim accrues.

See Edes v. Verizon Commc'ns, Inc., 417 F.3d 133, 139 (1st Cir.

2005).   Ordinarily, a cause of action for ERISA benefits accrues

"when a fiduciary denies a participant benefits."       Cottrill v.

Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 223 (1st Cir.

1996), partially abrogated by Hardt v. Reliance Std. Life Ins. Co.,

560 U.S. 242 (2010).

           Here, MetLife allowed Riley's LTD claim, but with its

first check for $50, MetLife denied his explicit assertion that any

award of that sum was inaccurate.       This was not a complete

repudiation or a formal denial of all LTD benefits.    But it was a

clear repudiation of Riley's assertion that he was entitled to more

than the amount MetLife actually awarded.       We agree with those

circuits which, in like circumstances, have concluded that an ERISA

cause of action accrues when, after a claim for benefits is made

and a specific sum is sought, the ERISA plan repudiates the claim


                                -6-
or the sum sought, and that rejection is clear and made known to

the beneficiary.   See, e.g., Miller v. Fortis Benefits Ins. Co.,

475 F.3d 516, 520-21 (3d Cir. 2007) ("In the ERISA context, the

discovery rule has been 'developed' into the more specific 'clear

repudiation' rule whereby a non-fiduciary cause of action accrues

when a claim for benefits has been denied. . . . [T]he clear

repudiation rule does not require a formal denial to trigger the

statute of limitations." (emphasis omitted) (quoting Romero v.

Allstate Corp., 404 F.3d 212, 222 (3d Cir. 2005))); Union Pac. R.R.

Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998); Daill v. Sheet

Metal Workers' Local 73 Pension Fund, 100 F.3d 62, 66 (7th Cir.

1996); see also Novella v. Westchester Cnty., 661 F.3d 128, 147 (2d

Cir. 2011) (holding that limitations period begins to run "when

there is enough information available to the pensioner to assure

that he knows or reasonably should know of the miscalculation," and

explaining its view that its standard is consistent with the Third

Circuit's reasoning in Miller).

          Other provisions of ERISA support this interpretation.

In Edes, we applied a discovery rule to suits under § 510 of ERISA,

to hold that plaintiffs discovered the supposed miscalculation of

their status when they were hired.      417 F.3d at 139.    In the

context of suits against fiduciaries, ERISA itself establishes that

the limitations period runs from "the earliest date on which the




                                  -7-
plaintiff had actual knowledge of the breach or violation."             29

U.S.C. § 1113(2).2

            There is no dispute that Riley's suit is untimely as to

MetLife's initial calculation of Riley's benefits and its first

payments.      The facts show that Riley argued to MetLife that it

should   use    his   managerial   salary   before   he   began   receiving

payments, then saw the $50 amount on his checks, refused to cash

them, and threatened to sue MetLife.             Together, these facts

demonstrate that Riley certainly was aware of his claim for

underpayment when he received his first $50 check in April 2005.

That was approximately six years and eleven months before he filed

this suit and thus falls outside the six-year limitations period.

And there has been no recalculation of benefits thereafter.

            Riley argues, however, that even though his suit is

untimely as to the initial calculation and the first few monthly

payments, it is still timely as to all of the monthly payments made

within six years of the time he filed his complaint in this case.

He argues his ERISA Plan with MetLife is better characterized as an

installment contract,3 giving him a separate cause of action and a


     2
         Riley has not alleged that MetLife is a fiduciary for
purposes of this suit.   There is no inconsistency between the
statutory rule and our approach to accrual.   See Pisciotta v.
Teledyne Indus., Inc., 91 F.3d 1326, 1332 (9th Cir. 1996) (per
curiam).
     3
        Installment contracts are used in different settings.
Installment contracts typically involve an asset transfer in the
form of a sale of goods. See, e.g., Black's Law Dictionary 372,

                                    -8-
new accrual of the limitations period with respect to every

individual monthly underpayment.     He argues this must be so under

a provision in the Plan's terms allowing MetLife to recover

overpayments regardless of when they were made and argues that

"symmetry" and equity require that he be allowed to recover

underpayments, at least for those payments made within the six-year

limitations period.4   We address each of these arguments in turn.

                                A.

          In an issue of first impression in this circuit, we

reject Riley's argument that the ERISA plan must be treated as a




868 (9th ed. 2009) (referring "installment contract" to "retail
installment contract," which involves a "sale of goods"); 15
Williston on Contracts § 45:2 (4th ed. 2013) (observing that
installment contracts, "for the sale of goods," are governed by the
Uniform Commercial Code); see also Pride Hyundai, Inc. v. Chrysler
Fin. Co., 369 F.3d 603, 607 (1st Cir. 2004) (discussing operation
of installment contracts, which "allow the customer to pay for an
automobile over the course of an extended period of time," in the
context of car sales); cf. Berezin v. Regency Sav. Bank, 234 F.3d
68, 73 (1st Cir. 2000) (promissory note requiring monthly principal
and interest payments on loan financing purchase of real estate for
business venture is an installment contract).
     4
        On appeal, Riley has waived any argument that the statute
of limitations should be equitably tolled as a result of his
original attorneys' malpractice. See DeCaro v. Hasbro, Inc., 580
F.3d 55, 64 (1st Cir. 2009).

                                -9-
continuing violation or as an installment contract,5 with a new

accrual date starting a new limitations period for each payment.

          We join the three other circuits which have squarely

confronted and rejected the plaintiff's accrual theory in this

ERISA context.   They have concluded that the plaintiff's theory of

accrual is inapplicable where the alleged wrong is based on an

alleged one-time miscalculation of ERISA benefits of which the

plaintiff is aware.

          The Third Circuit rejected the plaintiff's accrual theory

in Miller, 475 F.3d at 516.     In Miller, the plaintiff had begun

receiving allegedly miscalculated disability benefits in 1987 but

did not file suit until 2003.       The Third Circuit held that the

plaintiff's claim had accrued in 1987, and that a suit filed in

2003 was untimely.    Id. at 522.   The court held that the plaintiff

should have been alerted to the fact that he was being underpaid as



     5
          In his briefing, Riley used the terms "continuing
violation" and "installment contract" interchangeably for his
argument that a new accrual period began with each benefits check.
The district court used the term "installment contract" but equated
the two theories. At oral argument and contrary to his briefing,
Riley disavowed the "continuing violation" language and to
characterize his claim as involving only an installment contract.
The difference between the two theories, he says, goes to the
number of back payments that can be recovered: in the installment
contract theory, only those payments starting six years before he
filed suit may be recovered, while in the continuing violation
theory, all payments may be recovered as long as the most recent
violation was within six years. While we accept his disavowal of
any continuing violation theory, we do not engage this debate, and
use the terms as alternate expressions for Riley's accrual theory,
as he did in his briefing.

                                -10-
soon as he saw the first check.         Id.       It explicitly rejected the

theory "whereby a new cause of action would accrue upon each

underpayment of benefits owed under the plan." Id.              Like the Third

Circuit in Miller, we agree that:

           an underpayment can qualify as a repudiation
           because   a  plan's   determination  that   a
           beneficiary receive less than his full
           benefits is effectively a partial denial of
           benefits. Like a denial, an underpayment is
           adverse to the beneficiary and therefore
           repudiates his rights under a plan. Cf. 29
           C.F.R. § 2560.503-1(m)(4) (defining "adverse
           benefit determination" to include "a denial,
           reduction, or termination of, or a failure to
           provide or make payment (in whole or in part)
           for, a benefit" (emphasis added)).

Id. at 521. We also agree that "repudiation by underpayment should

ordinarily be made known to the beneficiary when he first receives

his miscalculated benefit award."           Id.

           The Third Circuit reasoned that its rejection of the

installment contract accrual theory in ERISA cases would promote

the   traditional   aims    of   statutes         of   limitations   --   "rapid

resolution of disputes, repose for defendants, and avoidance of

litigation involving lost or distorted evidence," id. at 522

(quoting Romero, 404 F.3d at 223) -- and was "consistent with the

broad, beneficiary-protective goals of ERISA," id.

           The   Second    Circuit   also     rejected      plaintiff's    ERISA

accrual theory, with some glosses on the precise accrual date,6 in


      6
        Those glosses do not require exploration on the facts of
this case. Riley was well aware of his claim for underpayment from

                                     -11-
Novella, 661 F.3d at 128.          There, in considering whether class

certification was proper, the court examined when non-fiduciary

ERISA   claims   would   accrue.     It    considered   and   rejected   the

plaintiff's theory, explaining that "that method is appropriate in

ERISA cases, as elsewhere, only 'where separate violations of the

same type, or character, are repeated over time,'" and that "it is

not as clear a fit in cases where, as here, 'the plaintiff['s]

claims are based on a single decision that results in lasting

negative effects.'"      Id. at 146 (alteration in original) (emphasis

added) (quoting L.I. Head Start Child Dev. Servs., Inc. v. Econ.

Opportunity Comm'n of Nassau Cnty., Inc., 558 F. Supp. 2d 378, 400,

401 (E.D.N.Y. 2008)).

           The Ninth Circuit rejected a like theory in Pisciotta v.

Teledyne Industries, Inc., 91 F.3d 1326 (9th Cir. 1996) (per

curiam). It concluded that claims accrue under other provisions of

ERISA on the "earliest date" on which the plaintiff has knowledge

of the breach, and that those same concerns apply to ERISA's civil

enforcement provision.      See id. at 1332.

           Riley has identified no circuit court cases taking his

approach and applying an installment contract accrual theory to

ERISA benefit claims. Instead, Riley argues from dicta in McNamara

v. City of Nashua, 629 F.3d 92 (1st Cir. 2011), which speculated

that "conceivably if the City had to make periodic payments . . .


the first $50 check he received.

                                    -12-
and successively underpaid [plaintiff], a claim might arise each

time a payment was made."        Id. at 96.      That dicta is just that, and

in any event is distinguishable here.

             The issue in McNamara was not whether the retirement plan

administrator        had   miscalculated   the       plaintiff's     benefits    and

continued to issue checks based on that miscalculation.                     Rather,

the complaint in that case alleged that the City of Nashua, the

plaintiff's former employer, had reported incorrect information to

the New Hampshire Retirement System (NHRS), causing NHRS to pay

pension checks that were too low.             Id. at 93-94.       More than seven

years   later,       the   plaintiff   sued    the     city    for   its    alleged

misrepresentation of his period of service to NHRS; he did not sue

NHRS directly for the monthly underpayments.                  Id. at 94, 96.

             Additionally, the payments at issue in McNamara were

governed   by    a    state   retirement      plan    under    the   laws   of   New

Hampshire.      ERISA did not apply, and the case cited in support of

this position applied state law. See id. at 96. Finally, McNamara

itself went on to note its speculation was "beside the point." Id.

Indeed, it then cited a case involving successive underpayments

under ERISA, which explained that the installment contract theory

"does not apply to a claim based on a single distinct event," such

as "the defendants' single alleged miscalculation."                  Id. (quoting

Miele v. Pension Plan of N.Y. State Teamsters Conf. Pension & Ret.

Fund, 72 F. Supp. 2d 88, 102 (E.D.N.Y. 1999)).


                                       -13-
            Riley's entire alleged injury derives from a single

action, MetLife's initial calculation of his disability benefits.

Riley does not allege that the calculation was actively confirmed

at later dates, nor does he allege that there is any provision of

ERISA that requires his accrual theory be accepted.      Moreover,

Riley has not identified any provisions of the Plan documents

showing that the Plan should be interpreted as an installment

contract.

            The policies underlying ERISA support our conclusion.

One of ERISA's main purposes is the promotion of "predictability,"

through which ERISA seeks to "induc[e] employers to offer benefits

by assuring a predictable set of liabilities."        Conkright v.

Frommert, 559 U.S. 506, 517 (2010) (quoting Rush Prudential HMO,

Inc. v. Moran, 536 U.S. 355, 379 (2002)).   Allowing beneficiaries

to challenge alleged miscalculations on which the statute of

limitations has already run by limiting the challenge to recent and

future payments would undermine that predictability interest.   Cf.

Carey v. Int'l Bhd. of Elec. Workers Local 363 Pension Plan, 201

F.3d 44, 49 (2d Cir. 1999) (explaining that allowing a beneficiary

to sue long after benefits are calculated by changing the form of

the suit "would render the limitation period a limit in name

only").   It could also undermine the ERISA plan's reliance on its

original calculations and payments for actuarial purposes.      Cf.

Conkright, 559 U.S. at 517-18 (discussing importance of deferring


                                -14-
to actuarial determinations); Malden Mills Indus., Inc. v. Alman,

971 F.2d 768, 778 (1st Cir. 1992) (emphasizing importance of

preserving      "actuarial         soundness      of   pension      funds"    (quoting

Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032,

1041 (2d Cir. 1985))).

                                            B.

              Riley argues that whatever the general rule as to accrual

of   claims     for    miscalculation        of    ERISA        benefits,    under    the

provisions     of     his   Plan    with   MetLife,        he   must   be   allowed   to

challenge the underpayment even after the statute of limitations

has expired on the original calculation in order to promote

"symmetry."         His     argument   turns      on   a   provision    of    the    Plan

documents entitled "Right To Recover Overpayments," which states:

              We have the right to recover from you any
              amount that we determine to be an Overpayment.
              You have the obligation to refund to us any
              such amount. . . .

              An Overpayment occurs when we determine that
              the total amount paid by us on your claim is
              more than the total of the benefits due under
              This Plan.    This includes any Overpayments
              resulting from:
              1.     retroactive awards received from
                     [certain other sources] . . . ;
              2.     fraud; or
              3.     any error we make in processing your
                     claim. . . .

              We may, at our option, recover the Overpayment
              by:
              1.     reducing or offsetting against any
                     future benefits payable to you or your
                     survivors;


                                           -15-
             2.       stopping future benefit payments
                      (including Minimum Benefits) which would
                      otherwise be due under This Plan.
                      Payments may continue when the
                      Overpayment has been recovered; or
             3.       demanding an immediate refund of the
                      Overpayment from you.7

Riley argues that it is "asymmetrical" to grant MetLife authority

to   recover      overpayments    at    any    time   without   granting   him   a

corresponding right to so recover underpayments, and that as a

result we must infer the existence of that right from the Plan

itself and consider his suit timely.              We disagree.

             ERISA    plans,     like    other    contracts,     are    construed

according to their written terms.              US Airways, Inc. v. McCutchen,

133 S. Ct. 1537, 1549 (2013).            Even if the written terms of the

Plan give MetLife a right to recover overpayments by offsetting

against future payments or demanding a refund regardless of when

the overpayment was first made, they do not establish a reciprocal

right for Riley to recover underpayments regardless of when the

underpayment was first made (or discovered).8               Under the familiar

principle of expressio unius est exclusio alterius, this was a

choice which reflected the intention of the parties.                   As we have

explained:



      7
         We do not face the question of whether MetLife could
recover overpayments through a legal action instituted beyond the
statute of limitations.
      8
        If the terms of the Plan do not give MetLife such a right,
then there is no asymmetry on this point.

                                        -16-
             The [expressio unius] maxim instructs that,
             when parties list specific items in a
             document, any item not so listed is typically
             thought to be excluded. . . .       While this
             interpretive maxim is not always dispositive,
             it carries great weight; and when, as now,
             there is absolutely nothing in the agreement's
             text that hints at some additional term
             lurking beyond the enumerated list, we see no
             reason   why   the   maxim   should    not  be
             controlling.

Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 179

(1st Cir. 1995) (citation omitted).

             Riley argues that we must "liberally constru[e]" the Plan

documents in his favor as the beneficiary on an insurance contract.

He cites Wickman v. Northwestern National Insurance Co., 908 F.2d

1077 (1st Cir. 1990), for the proposition that "insurance contracts

must    be   liberally    construed        in    favor     of   a   policyholder    or

beneficiary . . . and strictly construed against the insurer." Id.

at 1084 (alteration in original) (quoting 13 Appleman, Insurance

Law and Practice § 7401 at 197 (1976)) (internal quotation mark

omitted).     But Wickman itself goes on to explain, "We are bound by

[the policy's] plain language, and we may not distort it in an

effort to achieve a desirable or sympathetic result." Id. Because

we     are   bound   by   the    Plan's         plain     terms,    Riley's   liberal

construction argument cannot save his case.

             With    nothing    in   the    Plan        documents   to   support   his

position, Riley turns to equitable arguments, asking us "to do

justice" by adding a term to the document allowing Riley to recover


                                       -17-
underpayments.     We may not alter the Plan documents.         ERISA's

statutory scheme "is built around reliance on the face of written

plan documents."    US Airways, 133 S. Ct. at 1548 (quoting Curtiss-

Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995)) (internal

quotation marks omitted). "The plan, in short, is at the center of

ERISA.   And     precluding   [a   party's]   equitable   defenses   from

overriding plain contract terms helps it to remain there." Id.         As

the Supreme Court has explained, "[t]he agreement itself becomes

the measure of the parties' equities," id.; we "do justice" by

enforcing its plain terms.

                                   III.

          Riley's claim against MetLife is barred by the statute of

limitations.     His remedy for his failure to file a timely ERISA

claim lay, if anywhere, against his former attorneys. The decision

of the district court is affirmed.




                                   -18-
