Dowl v. N O Steamship Assn

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30417 Summary Calendar

NATHANIEL DOWL, JR.,

Plaintiff-Appellant,

versus

NEW ORLEANS STEAMSHIP ASSOCIATION, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO, PENSION, WELFARE, VACATION AND HOLIDAY FUNDS; THOMAS R. DANIEL,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-1753 -------------------- October 3, 2001

Before JOLLY, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Nathaniel Dowl, Jr., has filed an application for leave to

proceed in forma pauperis (IFP) on appeal, following the district

court’s summary judgment in favor of the defendants on his claims

for benefits under the Employee Retirement Income Security Act of

1974 (ERISA). By moving for IFP, Dowl is challenging the

district court’s certification that IFP status should not be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-30417 -2-

granted on appeal because his appeal is not taken in good faith.

See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

Dowl asserts that the district court erred in determining

that his father had retired before his death and that as a result

Dowl, his father’s beneficiary, was entitled to receive the death

benefit payment for a retired employee rather than an active

employee. Dowl has failed to show that ERISA prohibits the

existence of a disability retirement plan or that the provisions

of ERISA defining welfare plans (including disability) and

pension plans are mutually exclusive. See 29 U.S.C. § 1002(1),

(2). The record clearly shows that Dowl’s father took disability

retirement. The fact that the plan administrator admitted that

the plan including the disability retirement provisions also

included a long-term disability provision is irrelevant because a

plan under ERISA can include both welfare and pension provisions.

See 29 U.S.C. § 1002(3). Therefore, Dowl has failed to show that

a nonfrivolous issue exists with respect to the conclusion that

his father had retired before the time of his death.

Dowl also contends that the district court erred in failing

to find that he was entitled to his father’s survivor annuity

benefit because his mother predeceased his father. Under ERISA,

a surviving spouse annuity only exists if the non-employee spouse

survives the employee spouse. See Dorn v. Int’l Bhd. of Elec.

Workers, 211 F.3d 938, 942 (5th Cir. 2000). Moreover, Dowl has

failed to show that any attempts by his father to designate Dowl

as the beneficiary of those annuity benefits complied with the

requirements of 29 U.S.C. § 1055(c). No. 01-30417 -3-

Dowl’s appeal is without arguable merit and is thus

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Accordingly, we uphold the district court’s order

certifying that the appeal is not taken in good faith and denying

Dowl IFP status on appeal, we deny the motion for leave to

proceed IFP, and we DISMISS Dowl’s appeal as frivolous. See

Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

APPEAL DISMISSED.