1

 The HONORABLE RICHARD H. KYLE, United States District Judge for

the District of Minnesota, sitting by designation.

1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 00-3441/3923

___________

Delta Family-Care Disability and *

Survivorship Plan, *

 *

 Appellant, * Appeal from the United States

 * District Court for the Eastern

v. * District of Arkansas

 * 

Harold Marshall, *

 *

 Appellee. *

___________

Submitted: May 17, 2001

 Filed: July 31, 2001

___________

Before BOWMAN and BEAM, Circuit Judges, and KYLE, District Judge.1 

KYLE, District Judge. 

Delta Family-Care Disability and Survivorship Plan (“the Plan”) appeals from

the final judgment entered by the district court in favor of Harold Marshall
2

 The Plan further argues that the district court erred in denying the Plan’s

motion to compel discovery from Marshall concerning other disability benefits he

had received during the period he was also receiving benefits from the Plan. 

3

 Marshall sustained an earlier lower back injury in 1980 when he was struck

in the back at work by a piece of falling equipment. To repair the injury suffered in

that accident, Marshall underwent back surgery in 1980. Marshall made a good

recovery from that surgery and returned to work at Delta. 

2

(“Marshall”), directing the Plan to reinstate Marshall’s long-term disability benefits

pursuant to the Employment Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1132(a)(1)(B). The Plan argues that, while the district court identified the

correct standard for reviewing the Plan’s decision -- a deferential “abuse of discretion”

standard -- the court misapplied that standard when it reviewed the administrative

record and concluded that the Plan administrator’s decision was not supported by

substantial evidence.2 The Plan also appealed from a subsequent order granting in part

Marshall’s request for attorney’s fees. We reverse the district court’s judgment

reinstating Marshall’s long-term disability benefits and vacate the Order awarding fees.

I. Background

A. Marshall’s Injury and Treatment Therefor

From approximately 1979 to 1991, Marshall worked as a non-pilot employee

for Delta Airlines, most recently as a senior customer service agent. In March 1989,

he sustained a lower back injury at work.3 Marshall continued to work at Delta, and

pursued non-invasive treatment for his back, until September 1991. When

Marshall’s back problems persisted, orthopaedic surgeon Harold Chakales

performed a laminectomy and fusion in November 1991. The fusion involved the

spine from the L-4 vertebra in Marshall’s lower back to the sacrum. By a letter

dated January 2, 1992, Dr. Chakales advised Delta that recovery from such spinal
3

fusion surgery takes anywhere from two to five years. 

Following his surgery in 1991, Marshall remained under the care of Dr.

Chakales, who periodically submitted statements to the Plan advising it of

Marshall’s status. In July 1994, Dr. Chakales performed a second back surgery to

remove hardware associated with the spinal fusion. On January 4, 1995, Dr.

Chakales assigned a 35% anatomical impairment to Marshall’s body as a whole. 

On April 24, 1995, Dr. Chakales stated in his progress notes that Marshall’s spinal

surgery had reached maximum healing, and that he was discharging Marshall from

his care -- Marshall could return to see Dr. Chakales on an “as needed” basis. 

Following his discharge, Marshall returned to Dr. Chakales every four to eight

weeks to receive treatment for the pain in his lower back and legs. At the end of

1995, Dr. Chakales informed the Plan that Marshall was unable to work in his

regular employment or in any other type of work. 

In April 1993, while treating Marshall’s spine injury, Dr. Chakales referred

Marshall to a psychiatrist, Dr. Henry Good. Dr. Good treated Marshall with

psychotherapy and drug therapy for depression associated with chronic pain

syndrome. Sometime in 1994, Dr. Good retired, and Dr. Raymond Remmel took

over Marshall’s psychiatric care, continuing with drug therapy. On November 7,

1994, Dr. Remmel opined that Marshall was unable to work due to his chronic pain,

traumatic injury, and “unremitting depression.” On April 6, 1995, Dr. Remmel

assessed Marshall as being disabled by “morbid depression.” Throughout his

treatment of Marshall, Dr. Remmel has reported that Marshall is disabled due to his

depression.

In October 1997, Dr. Chakales reported that Marshall was suffering from

post-laminectomy syndrome and chronic pain syndrome. Dr. Chakales noted that,

from a chronic pain standpoint, while Marshall would never be pain-free, he was

able to manage his pain with two to three “Tylenol 4” per day and doses of another
4

 Two other examinations occurred before Marshall underwent surgery in

1994 to remove the hardware implanted in connection with his spinal fusion. The

4

pain medication called Soma. Dr. Chakales stated that the combination seemed

effective and was “basically a low maintenance dosage.” On January 8, 1998, Dr.

Chakales repeated his assessment that Marshall was unable to work in any job,

adding that Marshall was “not able to be rehabilitated.” 

B. Marshall’s Claim for Long-term Disability Benefits.

The Plan is a non-contributory employee welfare benefit plan available to

eligible non-pilot employees of Delta Airlines, Inc. – it provides both short-term and

long-term disability benefits. An employee is eligible for long-term disability

benefits under the Plan “provided he is disabled at that time as a result of

demonstrable injury or disease (including mental or nervous disorders) which will

continuously and totally prevent him from engaging in any occupation whatsoever

for compensation or profit, including part-time work.” 

On March 5, 1992, after receiving the maximum amount of short-term

benefits allowed under the Plan, Marshall signed a claim notice for long-term

disability benefits. In support of his claim, Marshall submitted an “Attending

Physician’s Statement” from Dr. Chakales stating that Marshall was “totally

disabled” both for his regular job and for any occupation. The Plan approved

Marshall’s claim for long-term disability benefits on March 18, 1992. The Plan paid

long-term disability benefits to Marshall until March 31, 1998. 

During the six years in which he received long-term disability benefits,

Marshall underwent several Independent Medical Examinations (“IMEs”) by

orthopaedists and Independent Psychiatric Examinations (“IPEs”) by psychiatrists,

at the request of the Plan. Three examinations are pertinent to the pending appeal.4
Plan did not base its decision to terminate Marshall’s benefits on either of these

examinations. 

5

 The Plan sent Marshall to Dr. Diner because Dr. Buchanan was no longer

practicing in the Little Rock area.

5

On April 3, 1996, orthopaedist William Blankenship performed an IME. Dr.

Blankenship concluded that Marshall was at that time capable from a physical

standpoint of performing “some type of work in the form of restricted or light duty,

clerical, and part-time.” Dr. Blankenship stated that the work should be sedentary

in nature and should not require a lot of bending or stooping. 

The following month, Marshall underwent an IPE by Stephen C. Buchanan,

M.D., a psychiatrist. Dr. Buchanan stated that Marshall seemed to be totally

disabled physically in that he was unable to sit or stand for any length of time, his

concentration was impaired by the medications that he was taking, and his energy

level and ability to relate to others were impacted by his depression. Dr. Buchanan

opined that Marshall was “likely” to be chronically incapacitated, but also thought it

was “possible” that Marshall could work some kind of job from his home involving

the telephone, at which Marshal could set his own hours. Dr. Buchanan

recommended that Marshall receive psychotherapy with a psychotherapist. On July

10, 1996, Dr. Buchanan submitted an addendum to his report stating that he had

subsequently reviewed the report of Dr. Blankenship’s IME and concluded that,

whatever one might say about whether Marshall was disabled from an orthopaedic

perspective, one could nevertheless say that Marshall was totally disabled due to his

depression, chronic pain, and his need to take medications that impair his

concentration. 

One year later, Marshall underwent a second IPE, this time performed by

Bradley Diner, M.D.,a psychiatrist.5 After meeting with Marshall and evaluating his

records, Dr. Diner concluded that Marshall’s pain was not fully associated with
6

 Approximately three months later, in October 1997, Marshall’s own

orthopaedist, Dr. Chakales, reported that Marshall was taking fewer doses of pain

medications than Dr. Diner had reported. Furthermore, Dr. Chakales described the

dosage of pain medications Marshall was taking as “basically a low maintenance

dosage.”

On January 8, 1998, Marshall’s own psychiatrist, Dr. Remmel, responded to

the pain medication issue raised in Dr. Diner’s report. Dr. Remmel stated that he

had ruled out any overuse or abuse by Marshall and indicated that he himself

prescribed much of the pain medications Marshall took. Dr. Remmel concluded: “I

would recommend that [Delta Air Lines] cease the constant harassment of this

unfortunate gentleman who suffered a severe injury while in the service of [Delta]

and now lives with unremitting pain.” 

6

non-psychiatric medical or neurological findings. Dr. Diner also noted that

Marshall’s depression had been only superficially addressed because the psychiatric

intervention has mainly focused on pain management. Dr. Diner also raised a

concern about what he regarded as Marshall’s “overuse” of pain medications and

recommended a pain management program.6 Dr. Diner concluded that there was

nothing from a psychiatric standpoint to prevent Marshall from working; his

depression was not severe enough to warrant any significant disability. 

Accordingly, Dr. Diner opined that Marshall was immediately capable of

performing some type of work, particularly of a sedentary nature, that offered the

freedom to take breaks as needed and set self-determined hours. 

The Plan also required Marshall to submit to a Functional Capacity

Evaluation with a physical therapist on March 12, 1998. Barbara Morris, M.S.,

performed an evaluation lasting several hours from which she concluded that, from a

physical standpoint, Marshall was capable of performing some type of work in the

sedentary category with lifting restrictions of 25 pounds. 

C. The Plan Terminates Marshall’s Long Term Disability Benefits
7

 The “Administrative Committee” is the administrator of the Plan, vested

with “[t]he operation and administration of the Plan . . . the exclusive power to

interpret it, and the responsibility for carrying out its provisions.” 

7

On March 30, 1998, the Plan sent a letter to Marshall informing him that,

based on Dr. Diner’s IPE, the Functional Capacity Evaluation performed by the

physical therapist, Dr. Blankenship’s IME, and surveillance reports indicating that

Marshall was seen walking without a cane and driving a car, Marshall no longer met

the eligibility requirements for long-term disability benefits. The Plan was therefore

terminating Marshall’s benefits effective April 1, 1998. The letter also explained

Marshall’s appeal rights.

When the Plan terminates an employee’s long-term disability benefits, the

employee may appeal that decision administratively. That process has two levels. 

At the first level, a subcommittee (whose members are appointed by the

Administrative Committee of the Plan) reviews the challenged decision.7 If the

subcommittee decides the appeal against the employee, the employee may appeal

that decision to the Administrative Committee itself. At each level, the employee

may submit any written evidence or arguments that he wishes to support his claim

for benefits. 

Marshall timely appealed the termination of his benefits to the subcommittee. 

In support of that appeal, Marshall submitted additional medical documentation

from Drs. Chakales and Remmel. Dr. Remmel stated, in a report dated April 6,

1998, that he “cannot and will not release Mr. Marshall to return to work.” Dr.

Chakales described Marshall as suffering from “post lumbar laminectomy syndrome

with chronic low grade spinal arachnoiditis with chronic nerve root irritation” and

reported on April 24, 1998, that Marshall was still disabled and was a “poor

rehabilitative candidate.” Marshall also submitted to the Plan a vocational

assessment report from Pinnacle Rehabilitation. The vocational assessment
8

 On June 24, 1998, Marshall’s counsel arranged for him to be evaluated by

James Moore, M.D., a neurosurgeon, who concluded that Marshall was “severely

compromised in any abilities to work” and was not “a candidate to return to the

workforce.” 

8

indicated that, based upon the medical evaluations of Drs. Chakales and Remmel, it

was neither physically nor psychologically appropriate for Marshall to return to

work.8

In response to Marshall’s appeal, the Plan asked Marshall to undergo two

further IMEs. On June 17, 1998, Marshall underwent an Independent Orthopaedic

Evaluation by Tad Pruitt, M.D. Dr. Pruitt spent approximately one and a half hours

examining Marshall and another two hours reviewing his medical records and

preparing his report. Dr. Pruitt concluded that Marshall might, from a physical

standpoint, be able to perform a sedentary clerk’s job if he were able to ease into

the job by starting with just a couple of hours at a time and if he were able to move

around as needed. Dr. Pruitt stated, however, that he could not appropriately

comment on Marshall’s mental ability to perform the job and noted that Marshall’s

subjective issues -- his mental problems and chronic pain -- may continue to limit

him. Dr. Pruitt also raised a concern about Marshall’s dependence on chronic pain

medicines. 

Two days later, Marshall underwent an IME by neurological surgeon,

Anthony Russell, M.D. Dr. Russell concurred in Dr. Pruitt’s findings and stated his

belief that Marshall was not totally disabled to the point that he could no longer

engage in any gainful employment. Dr. Russell continued:

I realize it is not proper to use specific illustrations in order to form an

opinion, however, if we use someone who is severely injured, such as

Christopher Reeves, a patient with a C1-C2 fracture, who is unable to

walk or breath for himself, then obviously Mr. Marshall’s injury falls
9

somewhere short of that degree of disability. On the other hand, Mr.

Reeves has been able to resume employment. The ability to work is

typically more a function of motivation rather than actual ability to

engage in certain activities. 

Dr. Russell concluded that the main limiting factor for Marshall was his subjective

pain. The Plan submitted additional documents from Marshall’s treating psychiatrist

to Dr. Diner, the psychiatrist who had completed Marshall’s 1997 IPE, for his

review. Dr. Diner concluded that Dr. Remmel’s letter did not change the opinion he

expressed in 1997. 

Marshall was accepted as permanently and totally disabled by the Arkansas

Worker’s Compensation Commission on September 1, 1998, a fact known to the

Plan. On September 22, 1998, the subcommittee notified Marshall that it was

affirming the Plan’s initial decision to terminate Marshall’s benefits “based on the

evidence presented that [Marshall] is able to perform some type of work other than

his customary occupation.” By a letter dated December 15, 1998, Marshall

appealed this determination to the Administrative Committee. On February 22,

1999, the Administrative Committee notified Marshall that his appeal was denied

because medical evidence showed that he was physically and psychologically

capable of doing some work.

D. The District Court Action

On September 10, 1999, Marshall filed a one-count complaint under §

1132(a) of ERISA seeking reinstatement of his long-term disability benefits. On

June 2, 2000, the Plan filed a Motion for Summary Judgment and submitted to the

Court the administrative record that was before the Plan when it made its decision to

discontinue Marshall’s benefits. Marshall opposed the motion and, the Plan argues,

relied in part on documents that had not been presented to the Plan during the

administrative process and/or had not been produced by Marshall during discovery. 
9

 The Administrative Committee is expressly granted “the discretionary

authority to interpret and construe the Plan, and decide all questions of eligibility of

any Eligible Family Member to participate in the Plan or to receive benefits under it,

its interpretation and decision to be final and conclusive.”

10

The district court determined that the abuse of discretion standard applied and

reviewed the record before the Plan for “substantive evidence” in support of its

decision. The district court first observed that “the evaluations by the non-treating

physicians were in conflict.” The district court then noted that the only consistent

evidence before the Plan came from Marshall’s treating physicians, who have

maintained throughout the relevant time period that Marshall was totally disabled. 

The district court determined that it was not reasonable for the Plan to disregard this

“overwhelming evidence” from the doctors most knowledgeable about Marshall’s

condition. The district court further reasoned that the evidence in the administrative

record on which the Plan relied came from evaluators who were “isolated to a

particular specialty” and, therefore, did not take into account all of Marshall’s

problems. The district court held that the Plan’s decision to terminate Marshall’s

benefits was not supported by substantial evidence and directed the Plan to reinstate

Marshall’s long-term disability benefits. This appeal followed. 

II. Standard of Review

ERISA provides a plan beneficiary with the right to judicial review of a

benefits determination. 29 U.S.C. § 1132(a)(1)(B). An ERISA plan administrator’s

decision to terminate benefits is reviewed under an abuse-of-discretion standard

where the plan gives the administrator discretion to determine eligibility for benefits

and to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 115 (1989). As discussed above, the district court applied the abuse-ofdiscretion standard. Marshall does not dispute that the Plan contains the

discretionary language necessary to merit an abuse-of-discretion standard;9 rather,
10 The report indicates that Marshall drove a car on several occasions during

the course of the surveillance and was observed walking to the mailbox without the

assistance of a cane.

11

he argues that the circumstances in this case require a more rigorous standard of

review. 

A court will review a plan administrator’s decision to deny benefits under a

less deferential standard where the plan beneficiary presents “material, probative

evidence demonstrating that (1) a palpable conflict of interest or serious procedural

irregularity existed, which (2) caused a serious breach of the plan administrator’s

fiduciary duty to him.” Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998).

Marshall’s primary contention is that there was a serious procedural irregularity in

the Plan’s handling of his claim because the Plan received information from and

allegedly acted in concert with Delta’s workers’ compensation carrier for purposes

of reducing or eliminating benefits payable to him. Marshall complains that the Plan

received and used IMEs that he had undergone in connection with his pending

workers’ compensation proceeding. The record before the Plan contained notes

from the workers’ compensation adjuster, IMEs, and a surveillance report regarding

Marshall’s physical activities.10 

We conclude that, on the facts of this case, there was no “serious procedural

irregularity” in the Plan’s consideration and use of information obtained in

connection with Marshall’s workers’ compensation proceeding. Indeed, Marshall

himself submitted reports and correspondence that his physicians had addressed to

Wausau Insurance, apparently in connection with Marshall’s workers’

compensation claim. Marshall also forwarded to the Plan a copy of the report

prepared by Dr. Russell (whom Marshall identifies in his handwritten letter as “the

doctor Wausau sent me to be seen by.”) As for the surveillance report, we note that

there is nothing procedurally improper about the use of surveillance. See McGarrah

v. Hartford Life Ins. Co., 234 F.3d 1026, 1028-29 (8th Cir. 2000). Accordingly,
12

we decline to depart from the abuse-of-discretion standard warranted by the

language of the Plan. 

 

III. Application of the Abuse-of-Discretion Standard

We review a district court’s application of the abuse-of-discretion standard de

novo. Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1179 (8th Cir.

2001). Under an abuse-of-discretion standard of review, a plan administrator’s

decision to deny or terminate benefits must stand if it is reasonable, that is, if it is

supported by “substantial evidence.” Id.; Donaho v. FMC Corp., 74 F.3d 894, 899

n.9 & 900 (8th Cir.1996). Substantial evidence “means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion." Consolidated

Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938). So long as the

plan administrator’s “findings are reasonable, they may not be displaced on review

even if the court might have reached a different result had the matter been before it

de novo.” Donaho, 74 F.3d at 900. Ultimately, 

a trustee decision is reasonable if a reasonable person could have

reached a similar decision, given the evidence before him, not that a

reasonable person would have reached that decision. Put another way,

the committee’s decision need not be the only sensible interpretation,

so long as its decision offer[s] a reasoned explanation, based on the

evidence, for a particular outcome.

Id. at 899 (emphasis in original)(internal quotation marks and citations omitted). 

 The Plan argues that the district court erred in holding that the decision to

terminate Marshall’s benefits was “unreasonable” because the district court (1)

improperly determined the weight to be given to various medical reports; (2)

incorrectly concluded that the Plan should have given deference to Marshall’s

treating physicians; and (3) incorrectly found that the Plan disregarded the opinions

of Marshall’s treating physicians. The Plan further contends that the district court

should have viewed the administrative record underlying the decision as a whole,
13

rather than focusing on isolated portions of various doctors’ opinions. 

We agree with the Plan that the district court incorrectly reasoned that the

Plan should have accorded greater deference to the opinions of Marshall’s treating

physicians. As authority for this proposition, the district court relied solely on

Donaho v. FMC Corp., 74 F.3d 894 (8th Cir. 1996). The administrative record in

this case, however, is much different from the record before the plan administrator

in Donaho. The only doctor who opined that Donaho was not disabled was a

physician who had merely reviewed her medical records and had never examined

her. We therefore stated in Donaho that “where the reviewing physician’s

conclusions are contradicted by an examining physician and two treating physicians,

reliance on the reviewing physician’s conclusions seems especially misplaced and

constitutes an abuse of discretion.” Donaho, 74 F.3d at 901 (emphasis added). As

we recently observed, however, a treating physician's opinion does "not

automatically control, since the record must be evaluated as a whole." 

Fletcher-Merrit, 250 F.3d at 1180 n.3 (citing Bentley v. Shalala, 52 F.3d 784, 786

(8th Cir. 1995)). 

Here, the Plan did not base its decision to terminate benefits on the report of

any physician who had merely reviewed Marshall’s medical records. All of the

doctors who conducted Marshall’s IMEs and IPEs examined him and included in

their reports information regarding their observations of Marshall’s then-present

condition. The question of deference as between the conclusions of a treating

physician and a physician who has merely reviewed medical records is not at issue

here. On that issue, Donaho is not controlling.

“The unreasonableness of a plan administrator’s decision can be determined

by both the quantity and quality of the evidence supporting it.” Donaho, 74 F.3d at

900. There is certainly a quantity of evidence in this extensive record both for and
11

 Marshall argues that the Plan’s decision to terminate Marshall’s disability

benefits was unreasonable in light of the Arkansas Workers’ Compensation

Commission’s determination in September of 1998 that Marshall was permanently

and totally disabled. We have observed, however, that a governmental award of

disability benefits is not inherently inconsistent with a decision that an employee is

not eligible for disability benefits under an ERISA plan. See e.g., Schatz v. Mutual

of Omaha Ins. Co., 220 F.3d 944, 950 n.9 (8th Cir. 2000). Nor is a governmental

award of disability benefits controlling on the question of whether the ERISA plan

should provide disability benefits. Indeed, if it were, the actions of a governmental

agency would effectively strip the plan administrator of his discretion granted by the

language of the benefits plan. 

14

against Marshall’s claim to continuing long-term disability benefits.11 Marshall’s

treating physicians, Dr. Buchanan (who performed an IPE in 1996) and Dr. Moore

submitted reports stating that Marshall was totally disabled, either physically or

psychologically. On the other hand, the 1996 IME of Dr. Blankenship, the 1997

IPE of Dr. Diner (supplemented in 1998 in response to materials submitted by

Marshall’s treating psychiatrist), the 1998 IME of Dr. Pruitt, the 1998 IME of Dr.

Russell, the 1998 Functional Capacity Examination by the physical therapist, and

the surveillance report of Marshall’s observed capacity to engage in certain daily

activities support the conclusion that Marshall was not totally disabled either

physically or psychologically. 

With respect to the quality of the evidence before the Plan, the district court

(and Marshall’s counsel at oral argument) focused on Dr. Russell’s analogy between

Marshall’s situation and that of actor Christopher Reeves. Dr. Russell

acknowledged in his report that such an analogy may be inappropriate. That

analogy does not, however, clearly invalidate the observations Dr. Russell made

during his examination of Marshall -- observations reported by Dr. Russell prior to

the “Christopher Reeves” letter. To the extent Dr. Russell’s comments may be

considered an expression of bias, we also note that, in 1998, Marshall’s treating

psychiatrist clearly and passionately articulated his view that Marshall was being
15

“harassed” by Delta Air Lines and the Plan, going so far as to opine that Marshall

should sue the Plan. The district court did not consider whether Dr. Remmel’s

comments were evidence of a lack of objectivity on his part. 

Finally, all of the medical information available to the Plan, both the reports

prepared by Marshall’s own treating physicians and those prepared by the doctors

who performed the IMEs and IPEs, came from specialists. Therefore, the district

court’s criticism of the Plan’s reliance on the reports of evaluators who were

“isolated to a particular specialty” is without merit – Marshall’s treating physicians

were an orthopaedic surgeon and a psychiatrist. Based on our review of the record,

we cannot conclude, as the district court did, that the Plan “disregarded” the reports

of Marshall’s treating physicians. Indeed, the Plan’s final decision letter clearly

demonstrates that the Plan did consider those reports.

Where the record reflects conflicting medical opinions, the plan administrator

does not abuse its discretion in finding the employee not to be disabled. Donaho, 74

F.3d at 901. We conclude that conflicting medical opinions were presented to the

Plan, and that there was “substantial evidence” to support the Plan’s decision to

terminate Marshall’s long-term disability benefits. The Plan’s decision was

reasonable and the district court should not have overturned it. 

IV. Conclusion

Having determined that the Plan’s decision to terminate Marshall’s long-term

disability benefits was reasonable, we vacate the judgment of the district court and

direct that judgment be entered in favor of the Plan. We further vacate the district

court’s award of attorneys’ fees to Marshall.
16

A true copy.

ATTEST:

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