___________

No. 95-2396

___________

Scott Nielsen, *

*

Appellant, *

*

Douglas McSherry; H. P. *

Anderson; Thomas Carter, *

parties immediately above *

individually and for and on * Appeals from the United States

behalf of the Special Health * District Court for the 

Services Employee Assistance * Western District of Missouri.

Program for TWA Employees, *

* [UNPUBLISHED]

Plaintiffs, *

*

v. *

*

Trans World Airlines, Inc., *

*

Appellee.

___________

No. 95-2567

___________

Scott Nielsen, *

*

Plaintiff, *

*

Douglas McSherry; H. P. *

Anderson; Thomas Carter, *

parties immediately above *

individually and for and on *

behalf of the Special Health *

Services Employee Assistance *

Program for TWA Employees, *

*

Appellants, *

*

v. *

*

Trans World Airlines, Inc., *

*

Appellee. *
*The HONORABLE RICHARD H. KYLE, United States District

Judge for the District of Minnesota, sitting by

designation.

 Prior to trial, the pilots voluntarily dismissed all

1

defendants except TWA. 

 The Honorable Dean Whipple, United States District Judge for 2

the Western District of Missouri.

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___________

 Submitted: January 11, 1996

 Filed: March 27, 1996

___________

Before BOWMAN and JOHN R. GIBSON, Circuit Judges, and KYLE, District

*

Judge.

___________

PER CURIAM.

Scott Nielsen, Douglas McSherry, Tom Carter and Hal Anderson, former

pilots for Trans World Airlines (TWA), sued TWA and five individual

defendants alleging violations of the Employment Retirement Income

1

Security Act (ERISA). Count I of the pilots' complaint, brought under 29

U.S.C. § 1104, alleges that TWA breached fiduciary duties in administering

Special Health Services (SHS), TWA's employee assistance program. Count

II of the pilots' complaint alleges that TWA violated 21 U.S.C. § 1140

which prohibits retaliation for, or interference with, the assertion of

rights provided under ERISA. TWA moved for summary judgment. The District

Court denied TWA's motion for summary judgment on Count I finding disputed 2

questions of fact, and granted summary judgment to TWA on Count II, holding

that the pilots had presented no evidence of adverse employment action in

retaliation for, or in interference with, rights under the SHS program.

The District Court conducted a bench trial on Count I, and at the close of

all the evidence ruled in favor of TWA on three independent and
 At the conclusion of the trial, the District Court indicated 3

that it would entertain an application from TWA for an award of

attorney fees, and subsequently granted TWA's application for fees.

The pilots filed a motion to stay the enforcement of the award of

attorney fees pending appeal. This motion was denied by both the

District Court and this Court.

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separate grounds: the pilots lacked standing to bring the lawsuit against

TWA, SHS is not an employee welfare benefit plan subject to ERISA, and the

pilots failed to show that TWA breached any fiduciary duty under 29 U.S.C.

§ 1104. On appeal, the pilots argue that the District Court erred in

3

reaching each of these conclusions. 

 

Having carefully considered the record and the arguments of the

parties, we conclude that no error of law or fact appears, and we affirm

the judgment of the District Court for the reasons set forth in its wellreasoned opinion. See 8th Cir. R. 47B. 

A true copy.

Attest:

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