___________ 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 Program for TWA Employees, * * [UNPUBLISHED] Plaintiffs, * * v. * * Trans World Airlines, Inc., * * Appellee.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. *

### *T he HONORABLE RICHARD H. KYLE, United States Distric t

Ju dge for the District of Minnesota, sitting b y designation. Prior to trial, the pilots voluntarily dismissed al l 1 

### defendants except TWA. The Honorab le Dean Whipple, United States District Judge for 2 

### the Western District of Missouri. -2- ___________ Submitted: January 11, 1996 Filed: March 27, 1996

___________ Before B OWMAN and JOHN R. GIBSON, Circuit Judges, and KYLE, Distric t * Judge.

___________ PER CURIAM. Scott Nielsen, Douglas McSherry, Tom Carter and Hal Anderson, former pilots for Trans World Airlines (TWA), sued TWA and five individua l defen dants alleging violations of the Employment Retirement Incom e 1 Security Act (ERISA). Count I of the pilots' complaint, brought under 29 U.S.C. § 1104, alleges that TWA breached fiducia ry 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. § 114 0 which prohibits retaliation for, or interference with, the assertion o f rights provided under ERISA. TWA moved for summary judgment. The Distric t Court denied TWA's motion for summary judgment on Count I find ing disputed

2 questions of fact, and granted summary judgment to TWA on Count II, holdin g that the pilots had p resented no evidence of adverse employment action in ret aliation for, or in interference with, rights under the SHS program
. The District Court conducted a bench trial on Co unt I, and at the close of all the evidence ruled in favor of TWA on three independent and

### At the conc lusion of the trial, the District Court indicated 3 

### that it would entertain an application from TWA for an award o f attorney fees, and subsequently granted TWA's application fo r 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. -3- 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 fidu ciary duty under 29 U.S.C. § 1104
. On appeal, the pilots argue that the District Court erred i n

3 reaching each of these conclusions. Having carefully considered the record and the arguments of th e parties, we conclude that no error of law or fact appears, and we affirm the judgment of the D istrict 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.