                     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 JOHN F. NANGLE, Senior United States District
Judge for the Eastern District of Missouri, sitting by designation.
                            ____________

NANGLE, Senior District Judge.

    Billy E. Bennett, Jr. appeals from the district
court’s*** grant of summary judgment in favor of appellees
in his suit for recovery of pension 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 employment
rather than on the date that his claim for benefits was
denied. We affirm.

    Appellant began working for Federated Mutual Insurance
Company (“Federated”) in 1980. At some point after his
initial hiring, appellant was selected for transfer to
Compensation Plan II. Transfer to Plan II is within the
sole discretion of Federated and is an incentive plan
reserved for its top performers. Under Plan II, appellant
began participating in the Federated Mutual Insurance
Company Career Growth Bonus Plan (the “ Bonus Plan”).
Only select employees are allowed to participate in the
Bonus Plan as a reward for being a top performer. The
Bonus Plan does not payout during active employment and no
funds are deposited or transferred into individual
accounts for plan participants. Credit in the Bonus Plan
is earned when the employee has met certain goals and is
not payable until retirement, permanent disability or
death. Credit is forfeited upon termination for any other
reason. According to the Bonus Plan, upon forfeiture an
employee has sixty days to contest said forfeiture.


     ***
            The HONORABLE H. FRANKLIN WATERS, United States District
Court for the Western District of Arkansas.
                                  -2-
    Appellant alleges the Bonus Plan is an “employee
pension benefit plan” as defined by ERISA.      Appellant
resigned from Federated on May 31, 1990. At that time, he
had accumulated credit in the amount of $57,992 in the
Bonus Plan. It is undisputed that Appellant had a copy of
the Bonus Plan which contains the forfeiture clause. It
is also undisputed that while still working at Federated,
two of appellant’s superiors told




                           -3-
him that if he resigned he would automatically forfeit all
plan credit 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.

    In a letter dated January 18, 1996, appellant demanded
payment of benefits due him under the Bonus Plan. The
Bonus Plan denied the claim on March 20, 1996. Appellant
appealed the denial through the Plan and said denial was
upheld by letter dated May 20, 1996. Appellant did not
contest the denial within sixty days as required by the
Bonus Plan.     Appellant filed the present action on
November 11, 1996, seeking payment of his vested pension
benefits. Appellees filed for summary judgment, which the
district court granted. The court ruled that appellant’s
cause of action had accrued on the date of his termination
of employment and therefore the suit was barred by the
statute of limitations.

    We review the district court’s grant of summary
judgment de novo, using the same standards as the district
court. See Mayard v. Hopwood, 105 F.3d 1226, 1227 (8th
Cir. 1997). Summary judgment is only appropriate when the
record demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a
matter of law after viewing the facts and inferences in
the light most favorable to the nonmoving party. See Fed.
R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

    Under Eighth Circuit law, a “claim for ERISA benefits
is characterized as a contract action for statute of
limitations purposes.” See Adamson v. Armco, 44 F.3d 650,

                            -4-
652 (8th Cir. 1995). Although the court looks to state
statutes of limitations, federal law determines when the
cause of action accrues. See Connors v. Hallmark & Son
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




                           -5-
F.2d 446, 450 (7th Cir. 1990), cert. denied, 501 U.S. 1261
(1991); Northern California Retail Clerks Union & Food
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 applies
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 rule
should apply to determine when the statute of limitations
begins to run or whether the statute of limitations should
begin to run when a claim for benefits is made and denied.
This issue was recently decided by a panel of this Court
in Union Pacific Railroad Co. v. Beckham, 1998 WL 79003
(8th Cir. Feb. 26, 1998). In Union Pacific, the Court
noted that absent a contrary mandate from Congress, the
discovery rule, which states that a cause of action
accrues when a plaintiff “discovers or with due diligence
should have discovered, the injury that is the basis of
the litigation,” determines when a cause of action accrues
in a federal question case.      Id. at * 4.    The Court
reasoned that in an ERISA action “[c]onsistent with the
discovery rule, the general rule . . . is that a cause of
action accrues after a claim for benefits has been made
and has been formally denied.” Id. at * 5. There are
times, however, when “an ERISA beneficiary’s cause of
action accrues before a formal denial, and even before a
claim for benefits is filed ‘when there has been a clear
repudiation by the fiduciary which is clear and made known
to the beneficiar [y].’” Id. (citing Miles v. New York
State Teamsters Conf. Pension & Retirement Fund Employee
Pension Benefit Plan, 698 F.2d 593, 598 (2nd Cir. 1983)).




                            -6-
    In the present case, it is undisputed that appellees
informed appellant by letter on the date of his
resignation that he forfeited any credit and interest
accumulated in the Bonus Plan. This letter was a clear
repudiation by the fiduciary which was “clear and made
known” to appellant, the beneficiary.     Id.   Consistent
with the discovery rule, appellant knew or should have
known on the date of his resignation that he would forfeit
his benefits because he had a copy of the Bonus Plan which




                            -7-
included the forfeiture clause, he had been told by two
superiors that if he resigned he would forfeit his
benefits and he received a clear repudiation in the form
of a letter upon his resignation. Appellant’s cause of
action accrued on the date of his resignation and the
district court correctly held that the statute of
limitations barred his suit. Affirmed.

A true copy.

    Attest:

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




                           -8-
