                 UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                             No. 97-10689


                      HARRIMAN G. RADFORD,

                                               Plaintiff-Appellant,


                                VERSUS


              GENERAL DYNAMICS CORPORATION, ET AL.,

                                              Defendants-Appellees.




          Appeal from the United States District Court
               For the Northern District of Texas
                         August 18, 1998


Before KING, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:

     Appellant Harriman G. Radford appeals from the order of the

district court granting Appellees’ motion to dismiss on statute of

limitations grounds in this ERISA case.       Finding no error, we

affirm.

                              Background

     Harriman Radford worked for General Dynamics in Fort Worth

for 33 years and 9 months.    On November 4, 1988, Radford went to

Employee Services at General Dynamics to inquire about the effect
of retiring a few months prior to age fifty-five, the first age

at which General Dynamics employees can take “early retirement.”

The benefits office employee provided Radford a booklet entitled

“General Dynamics Retirement Plan for Salaried Employees” dated

June 1984.   The booklet provided that if an employee retired

prior to age fifty-five, the employee would experience an

actuarial reduction in benefits; however, the booklet did not

state the amount of the actuarial reduction in benefits.

     General Dynamics provided Radford with an out-of-date

booklet.   A current booklet with the same title, but dated

September 1988, was available and in stock, but was not given to

Radford.   The 1988 Booklet contained information that would have

apprised Radford of the drastic reduction in benefits which would

occur if he were to retire prior to age fifty-five.

     In order to ascertain the amount of the reduction, Radford

returned to Employee Services on November 9, 1988, and spoke with

a different benefits office employee.   Radford told the benefits

office employee that he was considering retiring prior to age

fifty-five and that he needed to determine the amount of his

monthly retirement benefit he would receive at age fifty-five if

he retired at age fifty-four and five months.   The benefits

office employee informed him that the actuarial reduction would

be 4.5%.

     On December 20, 1988, Radford received from General Dynamics



                                 2
two Retirement Benefits Payment Election forms:     one for salaried

employees and one for hourly employees.   Radford was eligible for

benefits under both plans.    By electing a monthly benefit under a

life annuity, the salaried employee plan form advised that

Radford would receive a monthly benefit of $617.92, and the

hourly employee plan form advised that Radford would receive a

monthly benefit of $215.00.   Both forms indicated that the

approximate benefits shown were based on an anticipated

retirement age of fifty-five years.   Attached to these payment

election forms was a post-it note to call “Billie” in Employee

Services.

     Radford called Billie and discussed his date of retirement

and the fact that the monthly benefit amounts indicated on the

election forms were the same amount if he were to retire at age

fifty-five.   Radford advised Billie that another benefits office

employee had advised him that this amount would be reduced

actuarially by 4.5%.   Billie advised Radford that the other

employee must have calculated the amount under the alternate

benefit formula as opposed to the regular benefits formula, and

that under the rules Radford would receive the higher of the two.

     Based upon these written and oral representations, Radford

retired from General Dynamics at age 54 years and 4 months on

January 6, 1989.   He was under the impression that he would be

receiving a total monthly income of over $800.00.    Instead, “on



                                  3
January 9, 1989, Radford learned that the General Dynamics

Corporation benefits office employees had misrepresented to him

what his benefits would be under the General Dynamics Plans if he

retired prior to age fifty-five.”1   His monthly income amounted

to $301.00, and he lost his medical insurance.   Radford elected

not to receive any benefit until this matter was fully

adjudicated.

      Radford immediately initiated an administrative claim for

higher benefits with General Dynamics Corporation and its Plans.

Some years later, Radford also filed an administrative claim with

Lockheed,2 seeking relief on the basis of the alleged

misrepresentations made by General Dynamics Corporation benefits

employees.   Lockheed denied Radford’s appeal on December 16,

1994.

      Radford filed his Original Complaint on October 17, 1996,

alleging breach of fiduciary duty under ERISA.   General Dynamics

and Lockheed moved to dismiss Radford’s ERISA claim as time-

barred.   The district court granted the motions to dismiss,

holding that the last action which constituted a part of the

breach or violation occurred prior to January 9, 1989, and that

Radford’s complaint filed on October 17, 1996, was barred by §413

  1
   Brief of Appellee General Dynamics Corp. at p.8-9.
  2
   On March 1, 1993, Lockheed Corporation purchased the Fort Worth
Division of General Dynamics pursuant to a purchase agreement. The
Lockheed Plan assumed the fiduciary duties and responsibilities,
rights, and obligations of the General Dynamics Plans.

                                 4
of ERISA’s six-year statute of limitations.      Radford timely filed

a notice of appeal.

                                Analysis

         We review a district court’s ruling on a motion to dismiss

for failure to state a claim de novo.      Morin v. Caire, 77 F.3d

116, 120 (5th Cir. 1996).      The parties do not dispute that

Radford has asserted a breach of fiduciary duty claim under §

502(a)(3) of ERISA as recognized in Varity v. Howe, 116 S. Ct.

1065 (1996).3     In Varity, the Supreme Court recognized that §

502(a)(3) of ERISA, 29 U.S.C. § 1132(a), authorizes lawsuits for

individualized equitable relief for breach of fiduciary

obligations.      In order to review the district court’s ruling, we

must address the following issues of first impression: (1) what

is the statute of limitations for a Varity claim; and (2) if the

lawsuit was filed outside the limitations period, should the

statute of limitations be tolled while administrative remedies

are being exhausted.

I.       Statute of Limitations for a Varity Claim

         The district court found, and Appellees Lockheed and General

     3
   The    court   notes    that   Varity    involved    intentional
misrepresentations to employees, and that in this case, Radford
alleges negligent misrepresentation by General Dynamics. See
Librizzi v. Children’s Memorial Med. Ctr., 134 F.3d 1302, 1305 (7th
Cir. 1998) (noting that uninformed but well-meaning advice poses a
different problem from the intentional deceit involved in Varity).
As the parties do not dispute that a Varity claim has been stated,
the court does not address whether Radford’s claim is indeed a
Varity claim.

                                    5
Dynamics maintain, that the limitations period for a Varity claim

can be found in § 413 of ERISA.    Section 413 provides in

pertinent part:

          No action may be commenced under this subchapter
     with respect to a fiduciary’s breach of any
     responsibility, duty, or obligation under this part, or
     with respect to a violation of this part, after the
     earlier of--

          (1) six years after (A) the date of the last
     action which constituted a part of the breach or
     violation, or . . .

          (2) three 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 six years after
     the date of discovery of such breach or violation.

29 U.S.C. § 1113 (amd. 1989)(Supp. 1997)(emphasis added).

     The court agrees.   The plain language of § 413 of ERISA

indicates that its statute of limitations would apply to a Varity

claim pursuant to § 502(a)(3).    The Varity court explained that

the fiduciary duties which were violated arose under § 404(a) of

ERISA.   116 S. Ct. at 1074-75.   Section 413 provides that any

action “commenced under this subchapter with respect to a

fiduciary’s breach of any responsibility, duty, or obligation

under this part” is subject to either the six-year or three-year

statute of limitations, whichever is earlier.    Both § 413 and §

404(a) are contained in Subchapter I, subtitle B, Part 4 of

ERISA.   A Varity claim for breach of fiduciary duty arises under


                                  6
§ 404(a) and § 502(a)(3), both within Subchapter I of ERISA.

      Radford stated in his complaint that he “learned to his

dismay” that the information was incorrect on January 9, 1989.

Thus Radford had actual knowledge of the breach on January 9,

1989, and under § 413 he had to file suit within three years.

Further, the last act which constituted part of the breach

occurred prior to January 9, 1989.    Thus under either the three

year or six year limitations period, Radford’s claim filed on

October 17, 1996, is time-barred.    However, it is clear that the

three-year period applies because it is the earlier of the two

periods outlined in § 413.   In a similar case, the Seventh

Circuit concluded that § 413 provides the limitations period for

a case assumed to lie under Varity.    See Librizzi v. Children’s

Memorial Med. Ctr., 134 F.3d 1302 (7th Cir. 1998).

II.   Tolling the Statute of Limitations

      The next question we must answer is whether the statute of

limitations should be tolled while administrative remedies are

being exhausted.   This question presupposes that a requirement

exists to exhaust administrative remedies in cases under Varity.

If there is no exhaustion requirement, there is no need to toll

the statute.   See Lindahl v. American Telephone & Telegraph, 609

F. Supp 267 (N.D. Ill. 1985)

      Radford maintains that exhaustion is required before a

Varity claim can be filed, citing Denton v. First Nat’l Bank of


                                 7
Waco, 765 F.2d 1295 (5th Cir. 1985).   In Denton, this court

adopted the rule that a plaintiff generally must exhaust

administrative remedies afforded by an ERISA plan before suing to

obtain benefits wrongfully denied.

     During oral argument, General Dynamics argued that there

should be no exhaustion requirement in fiduciary breach cases

under ERISA and that fiduciary breach cases are distinguishable

from benefit denial cases like Denton.   However, this court held

in Simmons v. Wilcox, 911 F.2d 1077, 1081 (5th Cir. 1990), that a

plaintiff must exhaust administrative remedies before complaining

of a breach of fiduciary duty under ERISA.   See also Makar v.

Health Care Corp. of Mid-Atlantic, 872 F.2d 80 (4th Cir. 1989).

Cf. Kross v. Western Elec. Co., 701 F.2d 1238, 1244-45 (7th Cir.

1983) (exhaustion is discretionary with the district court).

     However, we can assume without deciding that exhaustion for

Varity claims is required in this circuit, because we do not find

it necessary to toll the statute of limitations pending the

exhaustion of administrative remedies.   Section 413 of ERISA is a

statute of repose, establishing an outside limit of six years in

which to file suit, and tolling does not apply.     See Lampf v.

Gilbertson, 501 U.S. 350, 363 (1991) (holding that a similar

provision under the Securities Exchange Act of 1934 was not

subject to tolling “[b]ecause the purpose of the three-year

limitation is clearly to serve as a cutoff”).     Accord Wolin v.


                                8
Smith Barney, Inc., 83 F.3d 847, 850 (7th Cir. 1996); Landwehr v.

DuPree, 72 F.3d 726, 733 (9th Cir. 1995); Larson v. Northrop

Corp., 21 F.3d 1164, 1174-77 (D.C. Cir. 1994).    As a statute of

repose, § 413 serves as an absolute barrier to an untimely suit.

     Additionally, we note that pursuant to ERISA administrative

claims regulations, 29 C.F.R. § 2560.503-1(e)(2) and (h)(4)

(1997), promulgated by the Secretary of Labor under 29 U.S.C. §

1133, administrative review of a claim is deemed denied after a

total of 300 days have passed from the date the claim was filed.

Radford’s claim was filed on January 9, 1989, and was

constructively denied, pursuant to the above regulations on

November 6, 1989.    These regulations reinforce the view that §

413 is a statute of repose.



     We conclude that the statute of limitations is not tolled

during exhaustion of administrative remedies for Varity claims

under ERISA.   Accordingly, Radford’s Varity claim is time-barred.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.



ROBERT M. PARKER, Circuit Judge, dissenting:

     I respectfully dissent.    I begin by noting that the

exhaustion requirement is not present in the statute--it has been

created out of thin air.    As the majority points out, in Denton,


                                  9
this court adopted the rule that a plaintiff generally must

exhaust administrative remedies afforded by an ERISA plan before

suing to obtain benefits wrongfully denied.1   But see Held v.

Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1205 (10th

Cir. 1990); Zipf v. American Tel. & Tel. Co., 799 F.2d 889, 891-

94 (3d Cir. 1986); Amaro v. Continental Can Co., 724 F.2d 747,

750-53 (9th Cir. 1984) (exhaustion not required for claims of

statutory violations of ERISA).

      After Denton, this court held in Simmons v. Wilcox, 911 F.2d

1077, 1081 (5th Cir. 1990), that a plaintiff must exhaust

administrative remedies before complaining of a breach of



  1
   The Denton court relied upon a Ninth Circuit decision, Amato v.
Bernard, 618 F.2d 559 (9th Cir. 1980), involving a claim for
declaration of rights under a plan.            The Ninth Circuit
distinguished Amato in Amaro v. Continental Can Co., 724 F.2d 747,
751-52 (9th Cir. 1984), by pointing out that the pension plan in
Amato contained the internal appeal procedure required by section
503 of ERISA. The Amaro court concluded that exhaustion would not
be required to bring an action under § 510 of ERISA, and that Amato
did not apply.

   The difference between Amato (cited in Denton) and Amaro is that
Amato involved a dispute about the rights and duties under the plan
for which exhaustion would be required; Amaro involved a dispute as
to whether the statute had been violated, so that exhaustion of
administrative remedies would not be required. The en banc court
may wish to reexamine Denton and its progeny to make a distinction
with respect to the exhaustion requirement between cases involving
rights under a plan and rights under ERISA. Cf. Chailland v.
Brown & Root, Inc., 45 F.3d 947, 950 (5th Cir. 1995) (“Our cases
applying this common law exhaustion requirement presuppose that the
grievance upon which the lawsuit is based arises from some action
of a plan covered by ERISA, and that the plan is capable of
providing the relief sought by the plaintiff.”)

                                  10
fiduciary duty under ERISA.   There is no reason why exhaustion

should not be required for a Varity claim for breach of fiduciary

duties, when this circuit has required it for other breach-of-

fiduciary-duty claims and benefit-denial claims under ERISA.

There is no principled reason for treating Varity claims

differently.   I recognize that exhaustion is the law of the

circuit, and we are bound by that precedent.

      Where the majority and I part ways is with respect to the

tolling issue.   If we require exhaustion of administrative

remedies for claims under Varity which we must under existing

circuit precedent, then we must also hold that the statute of

limitations will be tolled during the pendency of the

administrative process.2   Although the Appellees contend and the

majority agrees that a plaintiff should be required to both

exhaust administrative remedies and file suit within the

limitations period, I consider such a procedure anathema to

judicial economy.   According to the Appellees, even if suit is

filed before administrative procedures have concluded, the case

can be stayed in federal court until it is ripe for decision.



  2
   Radford had actual knowledge of the alleged breach on January
9, 1989.     Radford avers that he immediately initiated an
administrative claim, and that his administrative claim was denied
by Lockheed on December 16, 1994. Radford filed suit on October
17, 1996. Thus, if the statute of limitations is tolled during
exhaustion of administrative remedies, his suit under ERISA is not
time-barred for purposes of a motion filed pursuant to Rule
12(b)(6).

                                11
Not only does this create a potentially unnecessary step in the

judicial process, but it also undermines the policy reasons

supporting an exhaustion requirement:    (1) minimizing the number

of frivolous ERISA suits; (2) promoting the consistent treatment

of benefit claims; (3) providing a nonadversarial dispute

resolution process; (4) decreasing the time and cost of claims

settlement; (5) providing a clear record of administrative action

if litigation should ensue; and (6) assuring that judicial review

is not made under a de novo standard.    See Hall v. National

Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997).

     The only other court to have addressed this precise issue

concluded that the limitations period would be tolled while the

plaintiff exhausted administrative remedies.     See Mitchell v.

Shearson Lehman Brothers, Inc., 1997 WL 277381 (S.D.N.Y. 1997).

The court reasoned that such a conclusion was the only way to

avoid unfairness to the plaintiff and that it was “simply

illogical to say that a claim has accrued if it is automatically

subject to dismissal when filed.”    1997 WL 277381, *5.

     The majority cites a Supreme Court decision, Lampf, and

three circuit court decisions, Wolin, Larson, and Landwehr in

support of its position that the court should not toll the

limitations period.   In Lampf the Supreme Court held that § 9(e)

of the Securities Exchange Act of 1934 was a statute of repose

not subject to equitable tolling.    In so holding, the Court


                                12
rejected the argument that the statute of limitations should not

begin to run until the party who is a victim of fraud or

concealment discovers his injury.      Likewise in Wolin and Larson,

the issue with respect to equitable tolling involved the

discovery rule.    Landwehr merely stands for the proposition that

“the limitations period in an ERISA action begins to run on the

date that the person bringing suit learns of the breach or

violation.”    72 F.3d at 732.   Landwehr left open the possibility

that if someday a case arose in which the application of the

general rule would frustrate the purpose of ERISA, the rule would

be applied in a manner that would not permit such a result.     72

F.3d at 733.    These cases are distinct from the situation

presented in the case sub judice wherein this court has

legislated an additional requirement of exhaustion not expressly

provided in the statute.

     If our circuit case law would allow us to hold that there is

no exhaustion requirement for a Varity claim, then I would

wholeheartedly agree with the majority that the statute of

limitations in § 413 of ERISA should not be tolled.     But instead,

our circuit has read into ERISA an exhaustion requirement where

it does not expressly exist.     Common sense and basic fairness

dictates that if we are willing to read in an exhaustion

requirement, we must toll the limitations period while exhaustion

occurs.   I also take issue with the majority’s reference to and


                                  13
back-door application of the 300-day rule--an argument raised by

General Dynamics for the first time on appeal.   I would hold that

the statute of limitations should be tolled while the plaintiff

exhausts his court-mandated administrative remedies and reverse

and remand the case for further proceedings.




                               14
