                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                      UNITED STATES COURT OF APPEALS
                                                                        June 14, 2007
                          FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk


                               No. 06-41569
                             Summary Calendar



     ALLYSON A DYE,

                                                Plaintiff-Appellant,

                                      v.

     ASSOCIATES FIRST CAPITAL CORPORATION LONG-TERM DISABILITY
     PLAN 504; ASSOCIATES FIRST CAPITAL CORPORATION CAFETERIA
     PLAN 502,

                                                Defendants-Appellees.



         Appeal from the United States District Court for the
                  Eastern District of Texas, Marshall
                              2:03-CV-289



Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Allyson Dye challenges the termination of her short term

disability     benefits   and   the   denial     of   long   term    disability

benefits.    The district court held that her claims were barred by

the Plan’s limitations period.        We AFFIRM.

     Dye    was   a   project   manager    at    Associates    First     Capital

     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Corporation (“Associates”) when she underwent surgery to replace

her right knee in June, 2000.             She applied for and received

approval for short term disability benefits under the Associates

First Capital Corporation Cafeteria Plan 502 (“Plan 502"), which

ran from June 30, 2000, to September 25, 2000.        On October 9, 2000,

the plan’s third-party administrator, Kemper National Services,

Inc. (“Kemper”), sent Dye a letter terminating her benefits after

exhausting only 12 of the 26 weeks of short term disability

coverage    available.     Dye   subsequently    applied   for   long    term

disability benefits, but her claim was denied by letter dated March

28, 2001, on account of her failure to fully exhaust the short-term

benefits.    On April 11, 2001, Kemper’s Appeal Review Committee

affirmed the denial of her short term benefits.

     Approximately two years after the Appeal Review Committee

upheld the denial of benefits, Dye, through counsel, unsuccessfully

sought     information     concerning      her   claim,    including      the

administrative record, from Kemper.          In August, 2003, she filed

suit seeking to recover benefits under the Employee Retirement

Income   Security   Act   of   1974   (“ERISA”).     The   district     court

dismissed this case as untimely given the contractual limitations

period of 120 days.      Dye appeals.     The validity of the contractual

limitations period is a question of law which we review de novo.

Harris Methodist Fort Worth v. Sales Support Servs. Inc. Employee

Health Care Plan, 426 F.3d 330, 333 (5th Cir. 2005).


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     ERISA does not provide a statute of limitations for denial of

benefits lawsuits.     In the absence of such a statute, courts apply

the most analogous state statute of limitations.         Id. at 337; Hogan

v. Kraft Foods, 969 F.2d 142, 145 (5th Cir. 1996).           In Texas, the

most analogous state statute of limitations is the four year

limitation governing suits on contracts.            Tex. Civ. Prac. & Rem.

Code § 16.004(a).     “Where a plan designates a reasonable, shorter

time period, however, that lesser limitations schedule governs.”

Harris, 426 F.3d at 337.      Because the Plan in this case provides

that “no legal action may be commenced against an ERISA covered

plan more than 120 days after . . . receipt of the decision on

appeal,” the question is whether that shorter period is reasonable.

     In approving the use of a “reasonable, shorter time period,”

we cited two decisions from sister circuits which enforced shorter

time periods.     See Northlake Regional Medical Center v. Waffle

House,   160   F.3d   1301,   1303   (11th   Cir.    1998)   (enforcing   as

reasonable a 90-day contractual limitations period, triggered by

plan’s decision on administrative appeal); Doe v. Blue Cross Blue

Shield of Wisconsin, 112 F.3d 869, 874-75 (7th Cir. 1997)(enforcing

as reasonable a 39-month contractual limitations period from first

date on services on which action based).       In particular, the 90-day

limitations period upheld in Northlake was shorter than the 120-day

period now at issue.     While this suggests that the 120-period is

not presumptively unreasonable, however, it does not automatically


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mean that it is reasonable.     Rather, we must look to other factors

to determine whether the 120-day period was reasonable in this

particular case.

        Dye argues that a period less than two years is unlawful and

unreasonable under section 16.070(a) of the Texas Civil Practice &

Remedies Code, which prohibits an agreement to shorten a statute of

limitation to less than two years.       The only Texas court to address

this statute in the ERISA context, however, held that it was

inapplicable to an ERISA contract.        Hand v. Stevens Trans., Inc.

Employee Benefit   Plan,   83   S.W.3d    286,   290   (Tex.   App.   Dallas

2002)(“A state statute prohibiting the shortening of a statute of

limitations is not binding on ERISA claims.”).

     In the alternative, Dye argues that the 120-day period is not

reasonable under federal common law for a long term disability

plan.   She bases this argument on the fact that federal cases have

not previously enforced a 120-day limitation period in the context

of disability benefits, as opposed to health, death, or pension

benefits.    Courts have enforced short contractual limitations

provisions in several analogous contexts, however.              See, e.g.,

Northlake, 160 F.3d at 1302-03 (applying 90-day period in health

care context); Sheckley v. Lincoln Nat’l Corp., 366 F.Supp.2d 140

(D.Me. 2005)(applying six-month period in retirement plan context);

Davidson v. Wal-Mart Associates Health and Welfare Plan, 305

F.Supp.2d 1059 (S.D. Iowa 2004)(applying 45-day period in health


                                   4
care context).   Dye does not offer any federal cases in which a

court expressly refused to enforce such a limit in the disability

benefits context, and there is no apparent reason that a court

should treat a limitations period differently in this context.

     The Plan gives notice, specifying the 120-day period.            The

Plan also   requires   prompt   notification   to   the   employee   of a

decision on appeal.    Moreover, the period does not begin to run

until after the disposition of the internal appeal process.          Given

these other factors, the 120-day period is reasonable in this

specific case.

     For the foregoing reasons, we AFFIRM the district court.




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