IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-2348

Summary Calendar

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J.R. WHITTEMORE, et al.,

Plaintiffs-Appellants,

VERSUS

SCHLUMBERGER TECHNOLOGY CORP.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

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(September 21, 1992)

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The plaintiffs, who are former employees of Schlumberger

Technology Corp. ("Schlumberger"), brought suit against that company for breach of an e mployment contract. Schlumberger removed

to federal court on the ground that the cause of action is preempted by the Employee Retirement Inco me Security Act of 1974

("ERISA"), 29 U.S.C. § 1001 et seq . In a thorough and persuasive

memorandum and order, the district court granted Schlumberger's

motion for summary judgment, denying any recovery to the plaintiffs. We agree with the district court's analysis and, accordingly, we affirm.2 I.

The plaintiffs basically claim a denial of severance pay

u nder a provision of the company's management policy manual that

had provided for severance pay in lieu of notice of termination.

That policy was amended on December 22, 1988, to provide that,

unlike the previous provision, an employee was not entitled to

pay in lieu of no tice, where he or she was released from employment before the expiration of a prescribed period of notice of

termination, if he or she was offered full-time employment by a

company acquiring the division of Schlumberger in which the employee worked.

The plaintiffs worked in the MACCO Division of Schlumberger,

which was purchased by Arrow Oil Tools ("Arrow") on February 28,

1989. Apparently, the amended severance plan was adopted after

plans were made for the purchase by Arrow, although it became

effective before the sale took place. The plaintiffs, however,

seek severance pay under the former provision.

II.

The plaintiffs first argue that federal jurisdiction is

wanting because the Schlumberger plan is not an ERISA employee

welfare benefit plan. ERISA defines a covered "employee welfare

benefit plan" as one that provides "(A)

. . . benefits in the

event of sickness, accident, disability, death or unemployment

. . . or (B) any benefit describe d in [section 302(c) of the

Labor-Management Relations Act]." 29 U.S.C. § 1002(1). Benefits3

under section 302(c) of the Labor-Management Relations Act include ". . . pooled vacation, holiday, severance or similar benefits . . . ." 29 U.S.C. § 186(c)(6).

The plaintiffs depart from the plain meaning of these provisions to argue that Schlumberger's severance pay in lieu of notice is not an ERISA plan in light of Fort Halifax Packing Co. v.

Coyne

, 482 U.S. 1 (1987), and W ells v. General Motors Corp.

, 881

F.2d 166 (5th Cir. 1989), cert. denied

, 495 U.S. 923 (1990). As

the district observed, ho wever, these cases are distinguishable.

F ort Halifax involved a state law requiring severance pay, wi thout establishment of a plan, and Wells involved a one-time severance obligation without the ongoing administration of benefits

that i s required of an ERISA plan. Schlumberger's plan, on the

other hand, was not created with a particular closing in mind and

had been in existence for some time.

The plaintiffs concede that "ordinarily, unfunded single

e mployer severance policies are benefit plans within the Scope

[sic] of ERISA." Their argument that the Schlumberger plan is

self-executing and thus does not requir e "administration" is to

no avail, as we perceive nothing about the Schlumberger plan to

take it out of the ordinary definition of an ERISA plan. Moreover, the plan plainly required some sort of an administrative

set-up in order to make payments to employees.

III.

The plaintiffs assert that if the Schlumberger plan is an4

ERISA plan, Schlumberger violated it by failing fully to disclose

the terms of the amendment to the employees prior to their termination. The plaintiffs concede, however, that the amendment

"technically occurr[ed] before the employees' termination." Even

if this concession were n ot enough, the district court specifically found that Schlumberger complied with ERISA's disclosure

requirements in that "plaintiffs admit receiving copies of the

amended severance . . . plan on February 7, and admit receiving a

summary description of this plan change on Marc h 8, 1989." The

plaintiffs do not dispute these facts.

The plaintiffs acknowledge that Schlumberger gave notice

within the time permitted by ERISA. They argue only that "such a

technical reading of the disclosure provisions

. . . work [sic]

an inequitable result and give [sic] effect to form over

substance." We conclude, to the contrary, that Schlumberger was

entitled to give notice within the statutory notice period and

was not required to provide it sooner. The plaintiffs' argument

is without merit.

IV.

The plaintiffs aver tha t their right to severance benefits

had vested, precluding any amendment. They admit, however, that

"ordinarily, severance benefits are unaccrued, unvested benefits

which an employer has no continuing duty to provide." The

strongest argument they can muster for the proposition that the

instant severance bene fits are vested is that they "have been5

unable to find any case law which conclusively holds that, under

ERISA, severance benefits never vest. " In fact, severance

benefits consistently have been held not to vest. S ee, e.g.

,

Reichelt v. Emhart Corp. , 921 F.2d 425, 430 (2d Cir. 1990), cert.

denied , 111 S. Ct. 2854 (1991); Young v. Standard Oil (Ind.) , 849

F.2d 1039, 1045 (7th Cir.), cert. denied , 488 U.S. 981 (1988).

V.

The plaintiffs argue that if the amended plan does not apply

to them because of Sc hlumberger's failure to make proper

disclosure, they are entitled to de novo review of the denial of

their benefits. In light of our conclusion that the district

court was correct in its determination that notice was legally

sufficient, we need not consider this issue.

The district court properly concluded that the plaintiffs

are entitled to no relie f. Its judgment, accordingly, is

AFFIRMED.