                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-2655
                          ___________________________

                                  Winfred G. Beasley

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

                                 Warren Unilube, Inc.

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Jonesboro
                                   ____________

                              Submitted: June 12, 2019
                               Filed: August 9, 2019
                                   ____________

Before GRUENDER, STRAS, and KOBES, Circuit Judges.
                          ____________

KOBES, Circuit Judge.

     Winfred Beasley, an African American, claims that Warren Unilube, Inc.
(Warren) fired him because of his race in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. '' 2000e to 2000e-17, and 42 U.S.C. ' 1981. The district court1
granted Warren’s motion for summary judgment. We affirm.

                                         I.

       Warren produces motor oil and other automotive lubricants. Beasley started
working as the Quality Assurance Manager at Warren in October 2012. He was
generally responsible for creating and implementing systems to safeguard the quality
of Warren’s products. Beasley’s primary job was to ensure that all products went into
the correct bottles and boxes with appropriate labeling and caps. He supervised
several quality inspectors who would conduct regular checks on Warren’s assembly
lines to detect problems. He was also responsible for troubleshooting, containing,
and correcting any issues that developed. Finally, Beasley was required to handle the
annual audit of Warren’s quality control systems by the International Standards
Organization (ISO).

       Beasley was not the only one at Warren responsible for product quality. The
Lab Manager, Ben Heater, and his assistants verified that the oil (or other product)
met appropriate specifications. Maintenance personnel calibrated the equipment at
the plant. The transportation department ensured that products were delivered on
time and not damaged in transit. And although the Operations Manager—who for
much of Beasley’s tenure was Rusty Brown—was primarily focused on production
efficiency, he also impacted product quality since Beasley relied on Brown’s team to
implement many of his recommendations.

       Up to this point the parties agree. But they part ways when it comes to the
circumstances surrounding Beasley’s termination. Warren alleges that multiple
factors figured into this decision: a series of customer complaints, Beasley’s poor

      1
       The Honorable D.P. Marshall, Jr., United States District Judge for the
Eastern District of Arkansas.
                                      -2-
showing during the annual ISO audit, and concerns about his organizational skills.
Beasley disputes much of this. Because this appeal arises in the context of a motion
for summary judgment, we construe the facts in a light most favorable to him.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc).
Beasley “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). Nor can he rely on mere “allegations or denials.” Mann v. Yarnell, 497
F.3d 822, 825 (8th Cir. 2011). But to the extent the parties’ accounts of what
happened genuinely diverge, we follow Beasley.

       There were roughly three sets of customer complaints during Beasley’s tenure.
The first set came in 2013 from AutoZone, one of Warren’s primary customers. On
four occasions, AutoZone reported that Warren’s products were labeled or packaged
incorrectly. The underlying cause of these failures appears to have been two pieces
of equipment that either maintenance or operations personnel had improperly
calibrated. Beasley concedes that his team might have been able to catch or correct
these problems, but he notes that these complaints occurred before his quality control
systems had been fully implemented.

       Warren received a second set of complaints in February 2015. Though
Warren’s products met appropriate performance specifications during this period,
some contained too much red dye and others had a foul odor. Beasley investigated
these problems and concluded that both resulted from mistakes in the oil blending
process. Beasley states that he was not to blame for these problems, which would
have fallen under the purview of Billy Moore, the Blending Manager. He also states
his team could not have detected the issues because the oil was already bottled when
it reached quality control.

      Warren received a third set of complaints, this time about leaky bottles,
throughout the spring of 2015. The leaks were caused by Warren’s bottle capping

                                         -3-
machine, which was either improperly calibrated or was not the proper machine to use
for the job. Warren’s President at the time, Steve Estok, admits that the responsibility
for this problem fell partly on operations personnel and the Maintenance Manager,
Shawn Jamieson. Beasley also shared some blame according to Estok, because he
should have been inspecting the amount of torque that the machine was applying.
Beasley disputes this, stating that he had informed Estok that the company needed
different or additional equipment.

       Around this same time, Beasley was preparing for the annual ISO audit. In
prior years, Warren had passed the audit without any problems. In May 2015,
however, the auditor identified six minor deficiencies. Estok also says that the
auditor was especially critical of Beasley, stating that he was “not capable of doing
this job” and that Warren’s quality control program was “progressively getting
worse.” App. 616. Estok further claims that the auditor told him Warren might lose
its ISO certification if Warren did not improve.

       Due to these complaints, the strain they created with Warren’s customers, the
audit, and other issues, upper-management at Warren took corrective action. Rusty
Brown, the Operations Manager, was temporarily reassigned and received a detailed
write-up about his poor job performance. The Transportation Manager, Craig
Stauffer, also received a disciplinary letter. And Billy Moore, the Blending Manager,
was written-up and eventually fired. These individuals were all white.

        In late-June 2015, Estok met with Beasley and his supervisor, Gary Whiteside,
to discuss Beasley’s job performance. The meeting did not go well. According to
Beasley, Estok generally discouraged any meaningful discussion. Estok claims that
Beasley was unprepared and showed that he did not understand Warren’s quality
control program. Estok sent Beasley a letter afterward summarizing the meeting and
alleging several deficiencies in his performance, including a lack of organizational
skills, his failure to document non-conforming products, and his delay in following

                                          -4-
up on requests from management. On August 7, 2015, Warren fired Beasley. The
termination notice stated: “[s]ystems have not improved, training is [still]
non-existent, documentation has not improved and we are still reviewing complaints
for the same items.” App. 609. Shortly after, Warren hired Beasley’s replacement,
who was white.

      Beasley subsequently filed an EEOC charge alleging that Warren had treated
him differently from other mid-level managers because of his race. The EEOC
dismissed Beasley’s charge. Beasley then filed this action alleging that Warren’s
management violated Title VII and 42 U.S.C. § 19812 by treating similarly situated
white employees more favorably.3 Warren eventually moved for summary judgment,
and the district court granted Warren’s motion.

                                           II.

       We review a district court’s decision to grant summary judgment de novo.
Brown v. Diversified Distribution Sys., LLC, 801 F.3d 901, 907 (8th Cir. 2015). As
in other contexts, “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact . . . the
movant is entitled to judgment as a matter of law.” Torgerson, 643 F.3d at 1042-43
(stating that “[t]here is no ‘discrimination case exception’ to the application of
summary judgment”).

      2
        Because “[t]he same analysis [applies] to claims of discrimination . . .
under Title VII and 42 U.S.C. § 1981,” Takele v. Mayo Clinic, 576 F.3d 834, 838
(8th Cir. 2009), we use Title VII as shorthand for both claims below.
      3
         Beasley’s Complaint also included a cause of action against Warren for
retaliation. Because Beasley failed to raise this claim in his opening brief on
appeal, the argument is waived. See United States v. Rice, 699 F.3d 1043, 1050
(8th Cir. 2012) (“Issues not raised in a party’s opening brief are waived.”).
                                          -5-
      Where there is no direct evidence of discrimination, we use the burden-shifting
framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Torgerson, 643 F.3d at 1044. First, the plaintiff must make out a prima facie case of
discrimination. Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir.
2015). If he can do so, the burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for the discharge. Id. If this burden is met, the plaintiff
must demonstrate that the employer’s “proffered nondiscriminatory justifications are
mere pretext for intentional discrimination.” Torgerson, 643 F.3d at 1046. Though
the evidentiary burden under this framework alternates between the parties, “[t]he
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000) (quoting Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

      To make a prima facie case for employment discrimination in the context of a
discharge, Beasley must establish: (1) he “is a member of a protected group”; (2) he
“was qualified for h[is] position”; (3) he “was discharged”; and (4) “the discharge
occurred under circumstances permitting an inference of discrimination.” Elam v.
Regions Fin. Corp., 601 F.3d 873, 879 (8th Cir. 2010). This burden is “not onerous.”
Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 852 (8th Cir. 2005) (cautioning against
“conflat[ing] the prima facie case with the ultimate issue of discrimination”),
abrogated on other grounds by Torgerson, 643 F.3d 1031. Nor are these
requirements “intended to be rigid, mechanized, or ritualistic.” Id. They merely serve
the gatekeeping function of “eliminat[ing] the most common nondiscriminatory
reasons for [adverse employment actions].” Burdine, 450 U.S. at 254.

       Beasley makes a prima facie case of discrimination. He plainly meets the first
and third requirements: he is a member of a protected group and was fired. Also,
there is no dispute that Beasley was qualified for his position. As to the fourth
requirement, our cases note that there are multiple ways “a plaintiff can establish an

                                         -6-
inference of discrimination . . . .” Grant v. City of Blytheville, 841 F.3d 767, 774
(2016). The parties focused their briefing on this point on whether Beasley is able
to show that he was treated differently from similarly-situated white employees.
Appellant’s Br. at 11-12; Appellee’s Br. at 6-7. The district court, however, relied on
a more straightforward method by which Beasley can satisfy this element—the
showing that “he was replaced by a white male.” App. 1106; see Putman v. Unity
Health Sys., 348 F.3d 732, 736 (8th Cir. 2003) (noting that a plaintiff can satisfy the
fourth element by showing that “after [his] discharge, he was replaced by a person
with similar qualifications”); see also McDonnell Douglas, 411 U.S. at 802 (similarly
describing the fourth element of the prima facie case in the hiring context). We agree
with the district court’s analysis on this point, and therefore we find it unnecessary
to reach the parties’ arguments about disparate treatment in McDonnell Douglas’s
first stage.

       Under the second step of McDonnell Douglas, Warren must articulate a
“legitimate, nondiscriminatory reason” for the discharge. Torgerson, 643 F.3d at
1046. Again, this burden is not heavy. Bone v. G4S Youth Servs., LLC, 686 F.3d
948, 954 (8th Cir. 2012). Warren’s explanation must only “raise[] a genuine issue of
fact as to whether it discriminated against [Beasley].” Burdine, 450 U.S. at 254.

       Warren meets this burden. The June 2015 letter Estok sent to Beasley alleged
several performance-related deficiencies. Also, Warren received multiple customer
complaints during Beasley’s tenure and was cited for six deficiencies in the ISO
audit. Even if Beasley was disproportionately blamed for these problems, the record
is more than sufficient to raise a genuine issue of fact as to whether Warren
intentionally discriminated against Beasley.

      Under McDonnell Douglas’s third step, Beasley must demonstrate that
Warren’s explanation for his termination is “mere pretext for intentional
discrimination.” Torgerson, 643 F.3d at 1046. A common approach to show pretext

                                         -7-
is to introduce evidence that the employer treated similarly-situated employees in a
disparate manner. See Rodgers, 417 F.3d at 853. However, “the test for whether
someone is sufficiently similarly situated, as to be of use for comparison, is rigorous.”
Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (2014) (en banc). The
plaintiff must establish “that he and the employees outside of his protected group
were similarly situated in all relevant respects.” Id. (cleaned up). This means that the
plaintiff and the potential comparators must have “dealt with the same supervisor,
have been subject to the same standards, and engaged in the same conduct without
any mitigating or distinguishing circumstances.” Id. (citation omitted).

        Ultimately, we agree with the district court’s conclusion that “[t]here simply
[we]ren’t other employees ‘similarly situated [to Beasley] . . . in all relevant
respects.’” App. 1107. Beasley provides an initial list of five different individuals
at Warren “on the same level of management.” Appellant Br. at 10. He later trims
the list to three employees “who were [also] involved in conduct that was imputed to
the Appellant”—Rusty Brown, Shawn Jamieson, and Ben Heater. Id. at 31. Yet
Beasley never shows that he and any of these people shared the same supervisor, were
subject to the same standards, or engaged in the same conduct. We examine each of
these individuals below, but note that our neutral role in the adversarial process
makes us wary of combing through the record to supplement a party’s arguments. See
Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006) (“Without some
guidance, we will not mine a summary judgment record searching for nuggets . . . to
gild a party’s arguments.”).

      Rusty Brown is not similarly situated. Although he was in a similar level of
management as Beasley, he had a much longer tenure at Warren—27 years as
opposed to 3 years. He also held a number of different positions over the years,
which meant that he could be more easily reassigned. Also, although Brown and
Beasley both communicated regularly with Estok, they had different direct reports.
Finally, Brown’s role was never focused on ensuring product quality. He held the

                                          -8-
position of Plant Manager, Operations Manager, and Warehouse Manager at different
times during relevant events and—under each of these roles—his job was to promote
production efficiency. Brown was thus disciplined for production-related issues like
the “[f]ailure to meet delivery dates” and the “[f]ailure to properly organize
warehouse personnel to optimize loading of outbound shipments.” App. 548–49.
Brown also played no part whatsoever in helping Warren prepare for the ISO audit.

       Ben Heater fails as a comparator for similar reasons. Like Brown, Heater’s role
as the Laboratory Manager was very different from Beasley’s. His specific charge
was to test the oil itself to ensure that it met appropriate technical specifications—a
stage of the process in which Beasley admits he played no part. Heater’s potential
responsibility for customer complaints also differs from Beasley’s. Even for the
complaints relating to the oil (rather than labeling or capping), the record shows that
the oil met the required specifications, so the fault lay with the blending department,
not Heater. Heater also had a different supervisor than Beasley for some of his time
at Warren. Finally, though Heater was hired the same year as Beasley, he had been
employed in similar roles for 40 years beforehand.

       We have less information about the Maintenance Manager, Shawn Jamieson.
His deposition does not appear in the record, and Beasley does not point to where we
might determine Jamieson’s supervisor, the length of his tenure at Warren, his
disciplinary record, and his employment and educational history. We do not have
enough to go on to say that he was “similarly situated in all relevant respects.”

       Even if Jamieson or some other individual at Warren had been similarly
situated to Beasley, he would still have to establish that he was treated differently on
account of his race. This is the central question for a Title VII claim. See Torgerson,
643 F.3d at 1046 (noting that, in McDonnell Douglas’s third stage, the plaintiff’s
“burden to show pretext merges with the ultimate burden of persuading the court that
[he was] the victim of intentional discrimination”) (cleaned up); Griffith v. City of

                                          -9-
Des Moines, 387 F.3d 733, 743 (8th Cir. 2004) (“[T]he key issue under Title VII is
whether intentional discrimination occurred.”).

       Beasley’s primary argument is that racial animus can be inferred from Warren’s
(or perhaps Estok’s) practices with respect to African-American employees over time.
But Beasley never develops the claim by showing, for example, hiring statistics at
Warren, a list of all the employees disciplined during Estok’s tenure, salary
information for African-American employees, or similar evidence. Nor does Beasley
explain the parts of the record that cut the other way. As previously noted, two other
mid-level managers, both of whom were white, were disciplined in June 2015, and
another white mid-level manager was eventually fired.

         Without some way to tie his termination to racial animus, Beasley’s claim fails.
Though Beasley’s termination might have been unfair or disproportionate, this alone
is insufficient under Title VII. See Schaffhauser, 794 F.3d at 903 (“The question is
not whether [the employer] made a good decision, or even a fair one. . . [but] whether
it . . . [was] based on discriminatory animus.”). Congress has not given “federal
courts the authority to sit as super-personnel departments reviewing the wisdom or
fairness of the business judgments made by employers . . . .” Guimaraes v.
SuperValu, Inc., 674 F.3d 962, 977 (8th Cir. 2012) (citation omitted). Instead,
plaintiffs must provide sufficient evidence of intentional discrimination.

       Because we find that Beasley has not established intentional discrimination,
either by showing that Warren treated similarly-situated employees in a disparate
manner or otherwise, his claims fail.

                                          III.

      The judgment of the district court is affirmed.
                     ______________________________

                                          -10-


198 N.W.2d 566 (1972)
Harvey COURTNEY, trustee for the heirs of Thomas P. Fitzgerald, Decedent, Respondent,
v.
Sebastian BABEL, et al., Respondents,
County of Clearwater and Western National Mutual Insurance Company, proposed intervenors, Appellants.
No. 43299.
Supreme Court of Minnesota.
June 16, 1972.
Clarification and Modification of Opinion Denied August 29, 1972.
*567 Raymond W. Fitch, Minneapolis, for appellants.
Ekvall & Rasmussen, Bagley, for Courtney.
Rufer, Hefte, Pemberton, Schulze & Sorlie, Fergus Falls, Powell & Dessert and Phillip D. Nelson, Bemidji, for Babel and others.
Heard before KNUTSON, C. J., and ROGOSHESKE, TODD, and GUNN, JJ.

OPINION
WILLIAM D. GUNN, Justice.[*]
In this action for death by wrongful act, the workmen's compensation carrier for decedent's employer appeals from an order refusing to vacate an order for the distribution of money recovered under Minn.St. 573.02 by way of settlement.
The action for death by wrongful act was originally filed in the District Court in Clearwater County on November 10, 1970, but a change in venue was granted moving the case to Hubbard County. That case was then dismissed without prejudice on February 5, 1971. On the same day, a new complaint relating to the same matter was filed in the United States District Court for the District of Minnesota at Fergus Falls. The Federal court case was announced as settled and dismissed on May 11, 1971. On May 17, 1971, upon application of the plaintiff-trustee in the third-party action, Judge James E. Preece of the Hubbard County District Court made an order for the distribution of the money recovered under Minn.St. 573.02. The settlement was for $25,000 and the order authorized attorney's fees to plaintiff's counsel for 1/3 of this amount. Thereafter appellant, Western National Mutual Insurance Company, workmen's compensation insurer for the employer of decedent, moved for an order vacating the order of May 17, 1971, which was denied. This appeal followed.
*568 The decedent, Thomas P. Fitzgerald, was employed as director of the Clearwater County Welfare Board at Bagley, Minnesota. In the early morning of October 9, 1970, while in the course of his employment, he was in an automobile accident, receiving injuries that caused his death on October 17, 1970.
On October 22, 1970, the attorney for decedent's heirs, now the attorney for plaintiff-trustee, wrote appellant informing it of an intent to proceed with an action for death by wrongful act against the third-party tortfeasors. Shortly thereafter, counsel for appellant sent a proposed agreement to plaintiff's attorney. This proposed agreement provided that plaintiff's attorney could handle the litigation and appellant's attorney would receive no attorney's fees out of the recovery. In return, the decedent's heirs were to give up their right to workmen's compensation unless the court determined that they were entitled to no recovery from the third-party tortfeasors. Plaintiff's counsel returned the agreement unsigned, probably because he deemed it unfair to decedent's heirs and because of features which appeared to make it void under Minn.St. 176.021, subd. 4.[1]
Appellant never intervened in either of the pending actions although it attempted to do so in the Federal court case after that case had been settled. However, both plaintiff and defendants were on notice of appellant's interest in the case and its demand for subrogation. There were telephone conversations and correspondence between counsel, and on May 4, 1971, appellant objected to a settlement figure of $28,000 that was then being considered as inadequate. Appellant is, of course, a beneficiary of the settlement to the extent authorized by statute. See, § 176.061, subd. 6. The Workmen's Compensation Commission has made its order pursuant to Judge Preece's order and the above statute. Appellant argues that even though it did not attempt to intervene in the action until after settlement had been reached, it should have been allowed to proceed as if it were a party. It also contends that the settlement was improvidently low; that the plaintiff's attorney's 33 1/3 percent contingent-fee arrangement with the plaintiff is unconscionable; and that plaintiff's counsel should not have been allowed attorney's fees for any sum representing appellant's subrogation interest.
The Workmen's Compensation Act allows an injured employee to bring suit against a party other than his employer who may be legally liable for his damages. Minn.St. 176.061, subd. 5, provides in part:
"* * * If the action is not diligently prosecuted or if the court deems it advisable in order to protect the interests of the employer, upon application the court may grant the employer the right to intervene in any such action for the prosecution thereof. If the injured employe or his dependents agree to receive compensation from the employer or institute proceedings to recover the same or accept from the employer any payment on account of such compensation, the employer is subrogated to the rights of the employee or his dependents. This employer *569 may maintain an action or continue an action already instituted. This action may be maintained in the name of the employee or the names of the dependents or in the name of the employer against such other party for the recovery of damages."
The statute makes it clear that appellant had the right to petition the court to intervene in the action as a party. The facts make it clear that it had ample opportunity to do so. Had it followed this course, it is probable that the petition would have been granted. However, appellant's failure to intervene may not be too significant in view of the decision of this court in Lang v. William Bros Boiler & Mfg. Co. 250 Minn. 521, 85 N.W.2d 412 (1957), except that appellant would then have had an opportunity to protect itself on the issue of attorney's fees, which appellant's counsel in oral argument said is the principal issue in this appeal.
1. The first issue is whether an employee or his dependents may enter into a settlement with defendant in an action against a third-party tortfeasor, where workmen's compensation is involved, without the consent, or even against the wishes, of the employer or its insurance carrier. This question was answered by this court in the Lang case. There, plaintiff employee and defendant third-party tortfeasor appealed an order of the trial court vacating a dismissal of plaintiff's cause of action and declaring void a release signed by plaintiff. In Lang, as in this case, plaintiff and defendant third-party tortfeasor entered into a settlement without the knowledge or consent of the workmen's compensation carrier.
In Lang, the compensation insurance carrier was permitted to intervene shortly before the settlement and dismissal occurred. In this case, no application to intervene was made before the case was settled. Except for this, the question presented in the Lang case was essentially the same as the question here. In Lang, after an extensive analysis of the issue and consideration of applicable authorities, this court said (250 Minn. 531, 85 N.W.2d 419):
"We now hold, therefore, that, where an employee who receives compensation benefits under the Workmen's Compensation Act commences an action against a third-party tortfeasor under M.S.A. 176.061, subd. 5, he may settle such action with the third party without the consent of the employer or the employer's compensation insurance carrier but that such settlement does not affect the rights of the employer or compensation carrier to proceed against the third party the same as if such settlement had not been made."
Unless the decision in the Lang case is to be overruled or modified, the decision of the trial court in the instant case must be affirmed.
2. Appellant, relying upon Quarberg v. Laundry Store Sales, Inc. 269 Minn. 213, 130 N.W.2d 340 (1964); Anderson v. Twin City Lines, 289 Minn. 11, 182 N.W.2d 193 (1970); and Munson v. Nelson, 289 Minn. 99, 182 N.W.2d 709 (1970), argues that it was entitled to representation in the action against the third-party tortfeasor under Minn.St. 176.061 and to employ and use its own attorney to represent its subrogation interest in that case. We do not disagree with this statement. The statute and case law provide vehicles whereby such objectives may be attained. Here, however, appellant did not take advantage of the opportunity to petition to participate in and become a party to the proceeding.
In substance and so far as material to the issue presented, the cases relied upon by appellant hold that in an action brought against a third party by an injured employee, the employee's attorney has no right to a fee for the subrogation recovery by the workmen's compensation insurer if that recovery was attributable to the efforts *570 of the insurer's own attorney and if there was an understanding or agreement between the respective attorneys that each should represent the interests of his respective client. Here, there was no such agreement and on the record we cannot say that recovery of the subrogation interest was in any substantial way attributable to the efforts of appellant's own attorney.
Other points advanced by appellant have little merit. The question of adequacy of the settlement presents at best an issue of judgment. The contingent attorney's fees were in the usual sum for cases of this kind and they had the approval of the trial court. We cannot say that they are unconscionable.
Affirmed.
MacLAUGHLIN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ORDER
It is ordered that the petition for clarification and modification of the Opinion and Syllabus filed in the above entitled matter on June 16, 1972 be, and the same hereby is, denied.
NOTES
[*]  Acting as Justice of the Supreme Court by appointment pursuant to Minn.Const. art. 6, § 2, and Minn.St. 2.724, subd. 2.
[1]  The proposed agreement provided in part: "b) Mrs. Fitzgerald in behalf of herself and the surviving children and in behalf of the funeral and medical creditors hereby waive any past, present, or future right to Workmen's Compensation benefits whatsoever except as is outlined in (e) below, and Mrs. Fitzgerald and Mr. Rasmussen [plaintiff's counsel] will make no claim against Western National for expenses, fees, disbursements, or any attorney's fees arising out of the third party suit against the third party tortfeasor,

* * * * *
"e) In the event at trial it is determined that Mrs. Fitzgerald, the surviving children, the medical creditors, and/or the funeral creditors are entitled to no recovery from the third party tortfeasor, this entire agreement is null and void and Mrs. Fitzgerald may make claim for Workmen's Compensation benefits in accordance with the Workmen's Compensation Laws of the State of Minnesota and subject to its provisions and limitations."


795 F.Supp. 519 (1992)
George E. BERARD and Joao S. Almeida, on behalf of themselves and the class of all others similarly situated, Plaintiffs,
v.
ROYAL ELECTRIC, INC., Royal Electric, Inc. Retirement Plan for Salaried Employees, Martin Wright, Jordan Wright, FL Industries, Inc., and FL Industries, Inc. Retirement Plan for Salaried Employees, Defendants.
Civ. A. No. 90-367B.
United States District Court, D. Rhode Island.
June 9, 1992.
*520 *521 Joseph V. Cavanagh, Blish & Cavanagh, Providence, R.I., for plaintiffs.
Jeffery Schreck, Flanders & Mederios, Providence, R.I., for defendants.

MEMORANDUM AND ORDER
FRANCIS J. BOYLE, Chief Judge.
This class action is brought pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461 (1988), on behalf of certain participants in an employee pension benefit plan. The plaintiffs originally sought relief from Royal Electric, Inc.; The Royal Electric, Inc. Retirement Plan for Salaried Employees; Martin Wright and Jordan Wright for their failure to establish and fund a pension plan with early retirement benefits. In April, 1991, plaintiffs amended their complaint, adding FL Industries, Inc. and the FL Industries, Inc. Retirement Plan for Salaried Employees (FL Plan) as defendants. FL Industries, Inc. and the FL Plan are now the sole defendants. The plaintiffs claim that FL Industries and the FL Plan wrongfully terminated their right to future benefit accruals and improperly reduced early retirement benefits accrued by them.

FACTS
International Telephone and Telegraph owned and operated a business known as the Royal Electric Division (Royal Electric) in Pawtucket, Rhode Island. On June 28, 1985, FL Industries, pursuant to an asset purchase agreement, purchased Royal Electric and 11 other ITT industrial divisions.
The purchase agreement required FL Industries to establish a retirement plan, the FL Plan, to secure the pension benefits of former ITT employees. The FL Plan provided retirement benefits identical to those provided by the former ITT plan. The FL Plan was funded in accord with Internal Revenue Code, 26 U.S.C.A. § 414(1) (1988), and regulations implementing that section, by "spinning off" a portion of the assets from the ITT plan and transferring them to the FL Plan. FL Industries retained the actuarial firm of Frank B. Hall & Company to advise it of the funds necessary to fully fund its plan. Mr. Harvey Pasternack, enrolled actuary at Frank B. Hall, advised FL Industries that the funds required to fully fund the FL Plan equaled the total actuarial value of all the liabilities of the ITT Plan to be assumed by the FL Plan. Mr. Pasternack assessed ITT's liabilities to be approximately $23,500,000.00. In reliance on that advice, FL Industries accepted the sum of $24,500,000.00 to fund its new retirement plan. After the asset transfer, the FL Plan assumed the liabilities of the ITT plan to pay pension benefits to those ITT employees who became FL Industries employees due to the sale.
Under the FL Plan, accrued normal retirement benefits were based upon a percentage of the final average compensation multiplied by the number of years of service credited to a participant for purposes of benefit calculations. Retirement age under the Plan was age 65. Additionally, the Plan provided two types of early retirement benefits: "Standard Early Retirement," available at age 55 with 10 years of service, and "Special Early Retirement," available at age 55 with 15 years of service. An early retiree with requisite age and service could elect to receive monthly retirement payments at age 65 or at an earlier time. Standard Early Retirement payments starting before age 65 were reduced by 3% per year for each year before age 65. Special Early Retirement payments commencing before age 60 were reduced by 5% per year for each year before age 60, and Special Early Retirement payments starting at or after age 60 were not reduced at all.
On April 18, 1986, FL Industries sold the assets of Royal Electric to Royal Technologies. The Asset and Purchase Agreement provided that the "Buyer [Royal Technologies] shall, on and as of the Closing Date, assume all of the obligations of Seller [FL *522 Industries] with respect to all of the compensation, employee benefit and related programs relating to Business' Employees (sic) including, but not limited to, pension benefits...." The agreement also required FL Industries to transfer all assets and liabilities of the FL Plan to the new Royal Technologies plan.
Royal Electric employees were notified of the sale and informed of basic changes in their retirement benefits. The employees received a memorandum dated April 28, 1986, stating that "monthly cash payment pension benefits provided through the Salaried Retirement Plan, [the FL Plan], will initially be computed using the same benefit formula presently in existence until a detailed analysis is made of all plan provisions." FL Industries, by letter dated April 22, 1986, also informed the employees that they were no longer FL Industries employees and, therefore, no longer entitled to certain retirement benefits provided by it.
The Asset and Purchase Agreement required Royal Technologies to establish a qualified pension plan to secure pension benefits for Royal Electric employees. As an accommodation, FL Industries agreed to continue managing the benefits of Royal Electric employees until the new Royal Technologies plan received approval from the Internal Revenue Service. The Royal Technologies plan was to be funded by "spinning off" certain assets of the FL Plan as had been done previously between ITT and FL Industries. This time, however, the asset transfer was plagued by two major problems.
First, Royal Technologies did not establish a qualified pension plan until December 31, 1988, even though its Board of Directors voted in December, 1986, to adopt a retirement plan that would be the "mirror-image" of the FL Plan. The actual plan adopted by Royal Technologies, however, was not a "mirror image" of the FL Plan. The new Royal Plan did not provide for the accrual of early retirement benefits after April 26, 1986.
Second, the FL Plan did not have sufficient funds available to cover the accrued benefits of Royal Electric employees. The root cause of this insufficiency was traced back to an actuarial miscalculation of the amount of assets required to be spun off from the ITT plan and transferred the FL Plan. As a result of this miscalculation, the FL Plan was underfunded and did not have the required assets to transfer to Royal Technologies' Plan[1]. Litigation ensued.
On October 12, 1988, the parties reached a settlement which required an amendment to the asset purchase agreement. The amendment provided that "the Buyer [Royal Technologies] shall not assume any obligations of Seller [FL Industries] with respect to the Retirement Plan for Salaried Employees [FL Plan] of FL Industries, Inc. (the `Salaried Plan'), as to Business' Employees; and Seller shall not be obligated to, and shall not, transfer any assets of the Salaried Plan to Buyer's qualified Plan for said employees." The amendment was retroactive to April 26, 1986. To meet its obligation to those Royal Electric employees who had participated in the FL Plan, FL Industries purchased a group annuity contract from Lincoln National Insurance Company which provided retirement benefits to those employees whose benefits had vested and accrued as of April 26, 1986. The annuity, however, did not fund early retirement benefits which had not vested on or before April 26, 1986.
Between April 26, 1986, the closing date of the sale to Royal Technologies, and October 12, 1988, the date of the settlement agreement, retirement benefits for Royal Electric employees were calculated under the FL Plan. During this period, both Royal Technologies and FL Industries participated in the administration of the pension plan for Royal Electric Employees. All *523 benefits paid to retirees were paid from the FL Plan. After April 26, 1986, certain Royal Electric salaried employees retired under the early retirement provisions of the FL Plan, receiving credit for service of employment during Royal Technologies' ownership.
In October, 1988, Royal Technologies sold Royal Electric to LW Industries, Inc. (LW Industries), a corporation owned by members of the Wright Family, principally defendants Martin and Jordan Wright. Royal Electric subsequently changed its name to Royal Electric, Inc., but remained the same corporate entity. Jordan Wright, in a memorandum dated November 14, 1988, informed the employees that pursuant to a settlement agreement between FL Industries and Royal Technologies, FL Industries would provide retirement benefits to those employees who were participants in the FL Plan on or before April 26, 1986. Mr. Wright's memorandum stated that the FL Plan terminated on that date.
In March, 1988, FL Industries began reducing the benefits of retired salaried employees to reflect only those benefits accrued on or before April 26, 1986. On March 30, 1989, FL Industries sent letters to William Weed, Jr., Margie Anderson, and John Lipe, each of whom received retirement benefits based, in part, on credit for service after April 26, 1986, informing them that the amount of their monthly pension payments would be reduced to reflect the elimination of this credit. On the same day, FL Industries informed Royal Technologies that "benefits currently being paid from the FL Plan include benefits that would have accrued had an identical plan been adopted by the new Royal owners. Accordingly, Royal Electric as successor to Royal Technologies, owes the FL Plan for the accumulated value of benefits paid in excess of FL's obligations. Any accruals after the sale date are the responsibility of Royal Electric and a new Royal Electric Plan." On or about April 17, 1989, the salaried employees were informed that all retirement benefits terminated as of December 31, 1988, and that early retirement benefits would be provided only to those participants who qualified for such benefits on April 26, 1986. At the time Royal Technologies acquired Royal Electric, neither of the named plaintiffs in this action had met the age requirements for eligibility and vesting early retirement benefits under the FL Plan.
At trial, plaintiffs' expert, Franklin Peters, testified as to the actuarial value of early retirement subsidies as calculated under the FL Plan's benefit formula. Peters defined the early retirement subsidy as "an additional benefit or additional value of benefit which becomes involved when a person takes early retirement. In other words, the early retirement subsidy is the excess of the value of the early retirement benefit over the regular benefit at normal retirement age." For those salaried employees who became eligible for early retirement between April 26, 1986, and October 12, 1988, by meeting the age and service requirements, Peters stated that the present value of the early retirement subsidy is $376,000.00.[2] For the one individual who became eligible for early retirement benefits between October 12, 1988, and December 31, 1988, the present value of the early retirement subsidy was calculated to be $54,000.00.
Peters also testified as to the actuarial valuation of accrued benefits. "Accrued benefits", Peters stated, "is (sic) the basic benefit which would be payable to the participant at normal retirement age." For the period from April 26, 1986, through December 31, 1988, Peters found the present value of the accrued benefits to be $800,000.00. For both the accrued benefits and the early retirement subsidy, Peters based his calculations on the assumption that the FL Plan remained in existence beyond April 26, 1986.
On February 7, 1991, Royal Electric, Inc. filed a petition under Chapter 11 in the United States Bankruptcy Court for the *524 Southern District of New York. On June 21, 1991, a petition under Chapter 11 was filed against Martin Wright in the same court. As a result, this action is stayed as to these parties.
On the second day of this trial, November 6, 1991, plaintiffs settled with Royal Technologies. The only issue remaining for decision is FL Industries' obligation for retirement benefits which accrued after the sale of Royal Electric to Royal Technologies.

DISCUSSION
Congress enacted ERISA to ensure that an employee would not lose fully vested, accrued benefits in the event the employer terminated its pension plan. Nachman Corp. v. PBGC, 446 U.S. 359, 374-75, 100 S.Ct. 1723, 1732-33, 64 L.Ed.2d 354 (1980). ERISA, however, does not require a plan sponsor to pay benefits which are not vested or accrued at the time a plan terminates. West v. Greyhound Corp., 813 F.2d 951, 955 (9th Cir.1987). The plaintiffs claim that because FL Industries continued to administer the benefits accruing to Royal Electric employees they were entitled to accruals under the FL Plan which occurred after the sale to Royal Technologies. The plaintiffs further claim that they were entitled to unreduced early retirement benefits which vested after FL Industries sold Royal Electric to Royal Technologies.
Generally, a pension plan participant may not accrue or become vested in pension benefits if the plan terminates. See Blessitt v. Retirement Plan for Emp. of Dixie Eng. Co., 848 F.2d 1164, 1172 (11th Cir.1988). The principal issue is whether the FL Plan terminated when FL Industries sold Royal Electric to Royal Technologies.

A. Termination of Plan

ERISA provides no guidelines to determine when a plan terminates.[3]In re Syntex Fabrics, Inc. Pension Plan, 698 F.2d 199, 201 (3d Cir.1983). The Third Circuit has suggested a test which uses notice of termination to determine when a plan terminates. Id. A District Court has relied on the factors determining the date of merger/spinoff under 26 C.F.R. 414(1)  1(b)(11) as guidelines for establishing plan termination dates. Bass v. Retirement Plan of Conoco, Inc., 676 F.Supp. 735 (W.D.La.1988). First, we turn to the notice test.

Notice
An employee does not have a justifiable expectation of receiving benefits from a retirement plan once that employee receives reasonable notice, actual or constructive, of the plan's termination. Blessitt, 848 F.2d at 1173; In re Pension Plan for Employ. of Broadway Maintenance Corp., 707 F.2d 647, 652 (2d Cir.1983); Syntex Fabrics, 698 F.2d at 201; Pension Benefit Guar. Corp. v. Heppenstall Co., 633 F.2d 293, 302 (3d Cir.1980). Actual notice is obviously notice explicitly stating the date of plan termination. Syntex Fabrics, 698 F.2d at 201. Constructive notice is information which would lead a plaintiff to reasonably concluded that the plan was terminated. See In re Pan American World Airways, Inc. Co-op. Retirement Income Plan, 777 F.Supp. 1179, 1184 (S.D.N.Y.1991). Constructive notice of plan termination is established when the employer ceases operations. Heppenstall, 633 F.2d at 301; In re Maryland Glass, 618 F.Supp. 1410, 1415 (D.C.Md.1985); Pension Benefit Guar. Corp. v. Dickens, 535 F.Supp. 922, 925 (W.D.Mich.1982).
Here, the plaintiffs must be charged with constructive notice of the plan's termination because FL Industries ceased operations with respect to Royal Electric when it sold the company to Royal Technologies. The plaintiffs were no longer FL Industries employees, and, thus, they could not justifiably expect to continue accruing retirement benefits from an employer for whom they no longer worked. See Heppenstall, 633 *525 F.2d at 301 (no justifiable expectation of termination later than date employer ceased all operations). The FL Plan itself clearly states in section 3.02(b) that only eligible employees of FL Industries may accrue benefits under the FL Plan.
Additionally, Royal Electric employees received a memorandum dated April 28, 1986, which stated that Royal Technologies, not FL Industries, would continue to compute pension benefits according to the formula employed under the FL Plan until a detailed analysis of the Plan's provisions was complete. Furthermore, FL Industries informed the employees that 30 days after the sale certain retirement benefits previously provided by it would no longer be available. These communications provided enough information from which plaintiffs could have reasonably concluded that they would no longer accrue benefits under a retirement plan sponsored by FL Industries unless they exercised their rights within 30 days of the sale. It is of little significance that actual notice of termination was not received until November 14, 1988, since the employees were placed on constructive notice of termination as early as April 28, 1986, 10 days after the closing date.
Plaintiffs also argue that they should have received written notice of any amendment to the FL Plan within 15 days of such amendment. See 29 U.S.C.A. § 1054 (West.Supp.1991). This particular statutory provision is of no help to plaintiffs since it concerns plan amendments rather than terminations. In plan termination situations, constructive notice, which plaintiffs had, is all that is necessary.

Date of Termination based on Merger/Spin off Factors
In Bass, 676 F.Supp. 735 (W.D.La. 1988), the court applied the factors outlined in Internal Revenue Code 26 C.F.R. § 1.414(1)-1(b)(11) to determine the termination date of the Conoco's pension plan. 676 F.Supp. at 748. The regulation provides:
(11) Date of Merger or Spinoff.
The actual date of a merger or spinoff shall be determined on the basis of the facts and circumstances of the particular situation. For purposes of this determination, the following factors, none of which is necessarily controlling, are relevant:
(i) The date on which the affected employees stop accruing benefits under one plan and begin coverage and benefit accruals on another plan.
(ii) The date as of which the amount of assets to be eventually transferred is calculated.
(iii) If the merger or spinoff agreement provides that interest is to accrue from a certain date to the date of actual transfer, the date from which such interest will accrue.
Treas.Reg., 26 C.F.R. § 1.414(1)-1(b)(11) (1991).
Plaintiffs do not dispute the following relevant facts. First, the Asset Purchase Agreement provided that all assets and liabilities of the FL Plan were to be transferred to the new Royal Technologies Plan within a specified time period after the sale. The transfer did not occur, and the Asset Purchase Agreement was amended to relieve Royal Technologies of liabilities that accrued under the FL Plan prior to the sale and to eliminate FL Industries' obligation to transfer assets of the FL Plan to the Royal Technologies plan. The amendment clearly required that the FL Plan would be obligated to pay those pension benefits which accrued before the sale but not those which accrued thereafter. As a result, Royal Electric employees ceased to accrue benefits under the FL Plan on April 26, 1986.
Second, FL Industries' benefit liability under the FL Plan was calculated up to April 26, 1986. Benefit liability means benefits owed employees or their beneficiaries under a retirement plan. See 29 U.S.C.A. § 1301(a)(16) (West Supp.1991). In order to satisfy its liabilities under the FL Plan, FL Industries bought and transferred to Royal Technologies an annuity from Lincoln National Insurance Company. This annuity reflected the FL Plan's liability to Royal Electric employees for accrued benefits calculated through April 26, 1986.
*526 Finally, interest on the FL Plan's liability began to accrue on April 26, 1986.
Plaintiffs, however, maintain that the date of termination should be taken as the date on which the actual asset transfer took place. There is no authority to support the plaintiffs' proposition that termination cannot occur until the asset transfer is complete. As a practical matter, termination can preceded the actual transfer of assets. See Bass, 676 F.Supp. at 748. In Bass Conoco sold its Westlake, Louisiana chemical plant to Vista on July 20, 1984. Id. at 738. The sales agreement required Vista to establish a pension plan for the employees at the Westlake facility. Id. The new plan was to be funded by spinning off assets from the Conoco plan and transferring them to the Vista plan. Id. Conoco agreed to hold these assets in trust for Vista until the Vista plan received certification from the Internal Revenue Service (IRS). Id. On October 1, 1985, the Vista plan received IRS qualification. Id. at 739. The asset transfer was deemed to have occurred on that date. Id. Prior to the transfer of assets in 1985, Conoco, in December, 1984, added an early retirement opportunity to its plan. Id. Employees at the Westlake facility claimed an entitlement to early retirement benefits under the Conoco plan, arguing that the Conoco plan did not terminate with respect to them until the actual asset transfer took place. Id. The Bass court held that the plaintiffs were no longer employees of Conoco and were not entitled to benefits under the Conoco plan. Id. at 745. Conoco's management of the pension plan for Vista was not considered as a factor entitling Westlake employees to continued benefits under the Conoco plan, nor did the court consider the date of actual transfer indicative of when Westlake employees ceased to be covered under the Conoco plan.
Plaintiffs, like those in Bass, seek benefits which accrued after the business was sold. Plaintiffs' sole support for their claim is that FL Plan's continued to administer Royal Electric pension plan assets after the sale and that the actual asset transfer did not take place until October, 1988. These accommodations did not impose upon FL Industries a duty to provide retirement benefits for Royal Electric benefits beyond April 26, 1986.
Even if the termination date of the FL Plan could be established at some time after April 26, 1986, plaintiffs claims for early retirement benefits after April 26, 1986, would still fail because these benefits were neither vested nor accrued to plaintiffs at the time FL Industries sold Royal Electric to Royal Technologies. An employer does not run afoul of ERISA simply because the sale of its business affects unaccrued and nonvested benefits. Bass, 676 F.Supp. at 745.

B. Employers' Liability for Vested and Accrued Benefits

ERISA was enacted to protect an employees' accrued, vested pension benefits. Although the terms accrued and vested are often used interchangeably by courts, these terms, while related, are not synonymous. Vesting means that a participant has gained "a nonforfeitable right to receive his [or her] entire accrued benefit." Ashenbaugh v. Crucible Inc., 1975 Salaried Ret. Plan, 854 F.2d 1516, 1524 (3d Cir.1988), cert. denied, 490 U.S. 1105, 109 S.Ct. 3155, 104 L.Ed.2d 1019 (1988). A nonforfeitable right to accrued benefits occurs when "a participant or his beneficiary [has obtained a right or claim] to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan." 29 U.S.C.A. § 1002(19) (West Supp. 1991). In other words, a vested right to pension benefits arises once a plan participant has met and satisfied all conditions establishing eligibility to receive the benefits. Hence, it is the satisfaction of vesting requirements which determines when a nonforfeitable right to the accrued benefit exists. Stewart v. National Shopmen Pension Fund, 730 F.2d 1552, 1562 (D.C.Cir.1984).
An accrued benefit is defined in ERISA as follows: The term accrued benefit means

*527 (A) in the case of a defined benefit plan, the individual's accrued benefit determined under the plan and ... expressed in the form of an annual benefit commencing at normal retirement age....
29 U.S.C.A. § 1002(23)(A) (West Supp. 1991). An accrued benefit is the benefit a participant earns annually as calculated according to the formula specified by the plan. Lynch v. J.P. Stevens & Co., Inc., 758 F.Supp. 976, 993 (D.N.J.1991) (citing Hoover v. Cumberland, Maryland Area Teamsters Pension Fund, 756 F.2d 977, 981-82 (3d Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985)). It is the benefit which a fully vested employee would be entitled to receive at any particular point in time under the term of the plan if his/her employment ceased at that particular point in time. Ashenbaugh, 854 F.2d at 1524 (emphasis added).
The FL Plan fully satisfied its liability for benefits which had vested and accrued under the plan through April 26, 1986, when it purchased the Lincoln National Insurance annuity contracts. These annuities provided for all normal and early retirement benefits which had vested on or before April 26, 1986. The annuities did not provide for early retirement benefits which had not vested as of April 28, 1986. Plaintiffs, however, maintain that the early retirement benefits had accrued to them and they were entitled to receive the early retirement subsidy even though they had not met the requirements for early retirement as required by the FL Plan.
There is no uniform position among the circuits as to whether early retirement benefits are accrued benefits which automatically vest when a plan terminates. Some Circuit courts have determined that contingent early retirement benefits which may commence before normal retirement age are not accrued benefits. See Tilley v. Mead Corp., 927 F.2d 756, 759 (4th Cir. 1991); Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 577 (3d Cir.1985); Shaw v. International Ass'n of Machinists & Aerospace Workers Pension Plan, 750 F.2d 1458, 1464 (9th Cir.), cert. denied, 471 U.S. 1137, 105 S.Ct. 2678, 86 L.Ed.2d 696 (1985). The Second Circuit posits that early retirement benefits are accrued benefits if they are "expressed in the form of an annual benefit commencing at normal retirement age." Amato v. Western Union Int'l, Inc., 773 F.2d 1402, 1407-08 (2d Cir.1985), cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986) (emphasis in original).
This court takes the position that "[a]n early retirement subsidy is protected as an accrued benefit only if the participant has already met the age and service eligibility requirements or will subsequently `grow into' the benefit subsidy. However, an employee cannot `grow into' his[/her] right to a subsidy where he[/she] no longer works for the plan sponsor." See Lear Siegler Aerospace Products Holding Corp. v. Smiths Industries, Inc., No. 88-1528, 1990 WL 422417, at *___, 1990 U.S. Dist. LEXIS 2887, at *15 (S.D.N.Y.1990). Plaintiffs had no vested interest in early retirement subsidies which had accrued on or before April 26, 1986. Their entitlement to these benefits was contingent upon their satisfaction of the age and service requirements of the plan, age 55 and 10 years of service for standard early retirement and age 55 and 15 years of service for special early retirement. It is undisputed that the named plaintiffs had not met the age and service requirements before April 26, 1986. They could not acquire an accrued interest in the early retirement subsidies until both the age and service requirements were met. They cannot point to any language in the FL Plan which excused their failure to satisfy the age and service requirements of the early retirement option, nor may they use their employment with Royal Technologies as a means to satisfy the age and service requirements of the FL Plan. Plaintiffs simply were not entitled to, nor was the FL Plan obligated to pay, benefits which were not vested or accrued on April 26, 1986. ERISA does not prevent an employer from terminating pension benefits which are neither accrued or vested. It does, however, hold an employer liable for vested, accrued benefits. Here, the FL Plan fully satisfied its liabilities with regard *528 to vested, accrued benefits through its purchase of the Lincoln National Insurance annuities.
Judgment will enter for defendants FL Industries, Inc. and FL Industries, Inc. Retirement Plan for Salaried Employees for costs.
NOTES
[1]  ERISA provides that "a pension plan may not ... transfer its assets or liabilities to, any other plan ... unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the ... transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the transfer...." 29 U.S.C.A. § 1058 (1988).
[2]  Peters used October 12, 1988 as termination date for the accrual of benefits under the FL Plan because that was the date that FL Industries and Royal Technologies reached a settlement concerning the transfer of assets from the FL Plan to the Royal Plan.
[3]  ERISA, however, does dictate under 29 U.S.C.A. §§ 1341 and 1342 the procedure for terminating a single-employer pension plan.


865 F.2d 103
Basil STEWART, et al., Plaintiffs-Appellants,v.DOW CHEMICAL CO., Defendant-Appellee.
No. 87-2223.
United States Court of Appeals,Sixth Circuit.
Argued Nov. 7, 1988.Decided Jan. 11, 1989.

Jules B. Olsman, Woll, Crowley, Berman & Olsman, Royal Oak, Mich., Robert Sedler (argued), Detroit, Mich., for plaintiffs-appellants.
Joseph J. Ortego, Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., Michael H. Whiting, Stark, Reagan & Finnerty, Troy, Mich., Michael A. Makulski (argued), Dow Chemical Co., Midland, Mich., for defendant-appellee.
Before WELLFORD and BOGGS, Circuit Judges, and SIMPSON, District Judge.*
BOGGS, Circuit Judge.

1
Stewart and the other plaintiffs appeal from a dismissal of their product liability claims based on the doctrine of forum non conveniens.    He, along with the other plaintiffs in this action, are citizens of New Brunswick, Canada, who sued Dow Chemical, Co.  (Dow), a Michigan corporation, in a federal district court in Michigan.  Dow moved to dismiss on a number of grounds, including that of forum non conveniens, claiming that New Brunswick's interest in this case, as well as the alleged location of most of the evidence in the case, mandated that the suit be heard in New Brunswick.  The trial judge agreed, and we affirm.

2
* Stewart, et al.  (hereinafter "Stewart"), complain that while they or members of their families were employed by the New Brunswick Electric Power Commission between 1955 and 1966, they suffered injuries from exposure to toxic herbicides manufactured by Dow at its Midland, Michigan plant.  Stewart claims that the injuries complained of were a direct result of exposure to the herbicide contaminated with a substance known as 2,3,7,8-Tetrachlorodibenzo-P-Dioxin (dioxin).  Stewart's complaint was filed on January 2, 1987.

3
Upon receipt of Stewart's complaint, Dow moved to dismiss alleging that:  1) co-defendant Dow Chemical Canada, Inc.  (Dow Canada) was an indispensible party to the suit, but that the presence of Dow Canada in the suit defeated diversity jurisdiction;  and 2) the doctrine of forum non conveniens mandated dismissal because the suit should have been brought in a Canadian court.  Stewart was allowed to amend his complaint, removing Dow Canada as a party to maintain diversity, after a finding by a magistrate that Dow Canada was not an indispensible party.  The magistrate also recommended that the case be dismissed on grounds of forum non conveniens.

4
The trial judge adopted the magistrate's recommendations with one exception noted below and dismissed the suit on grounds of forum non conveniens, finding that the Canadian courts would afford an adequate alternate forum.  He conditioned the dismissal on the following events:  1) that Dow stipulate that it would accept Canadian jurisdiction and service of process;  2) that Dow waive any statute of limitations defense;  3) that Dow make all of the witnesses under its control available to testify in Canada;  4) that Dow allow discovery in the Canadian court of any materials which would be available under the Federal Rules of Civil Procedure in a United States Court;  and 5) that Dow pay any judgment rendered by a Canadian court, subject to its right to appeal under Canadian law.  Dow filed its stipulation to these conditions on November 17, 1987, and the trial court entered its dismissal order on that date.

5
Stewart claims that the alleged exposure took place in New Brunswick, and that the manufacture of the herbicide took place in Midland, Michigan, where the majority of Dow's corporate officials and scientists are now located.  Dow contends that the design and manufacture of the actual herbicide occurred in Canada, and was not performed by Dow.  Dow states in its brief that although Dow and several other companies may have supplied Canadian manufacturers with a component of the subject herbicide, the manufacturers processed the component and shipped it to other Canadian companies that made the final product in Canada.

6
The herbicide in question is alleged to contain dioxin;  Stewart alleges that, as a result of continued and direct exposure to the herbicide, he and the other plaintiffs suffered injuries ranging from cancer to neurological and gastrointestinal disorders, as well as injuries to the reproductive system resulting in miscarriage and stillbirth.  Stewart sues under theories of strict product liability, negligence, breach of implied and express warranties, and failure to warn.

7
At the time the suit was filed, there was some question as to Dow's amenability to process in a Canadian court;  however, Dow's stipulations submitting to Canadian jurisdiction cure that defect, and Canada is now clearly an available alternate jurisdiction.

8
In making his recommendation, the magistrate did not explicitly find that Michigan was an inconvenient forum.  Instead, he weighed the public and private interests involved, finding that the "private interest factors weigh in favor of dismissal while the public interest factors neither militate in favor of dismissal nor retention."    Contrary to the magistrate's conclusion that Michigan law would apply in this case regardless of where it was tried, the trial judge disagreed, finding that Canadian law would apply in either location.  While the substance of the law to be applied is neither a factor in, nor determined by, the district court's decision here, we note that both parties appear to believe that Canadian law is more favorable to manufacturers than the laws of Michigan.  The trial judge explicitly agreed with this weighing of factors, and agreed to dismiss on grounds of forum non conveniens.

II

9
On appeal, Stewart claims that the doctrine of forum non conveniens cannot be invoked to dismiss a case within the diversity jurisdiction of the federal courts under these circumstances.  The circumstances Stewart alleges include that the defendant, Dow, is a manufacturer sued in its home state, that it was doubtful at the time of filing that Dow was amenable to suit in Canada, and that all of the acts pertinent to the case occurred during the manufacture and testing of the allegedly dangerous product, which Stewart claims was performed in Michigan.  Dow claims that the plaintiffs were damaged, if at all, in New Brunswick, and the hazard, if any, arose in Canada.  It further contends that the standard of review in this case is an abuse of discretion standard, and that under that standard, the trial judge cannot be said to have abused his discretion.

10
* A trial court's dismissal on the basis of the doctrine of forum non conveniens must be upheld in the absence of a clear abuse of discretion.  Kryvicky v. Scandinavian Airlines System, 807 F.2d 514, 516 (6th Cir.1986);  Watson v. Merrell Dow Pharmaceuticals, Inc., 769 F.2d 354, 356 (6th Cir.1985);  Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 616 (6th Cir.1984).  "[W]here the [trial] court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference."    Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981).

B

11
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court set out guidelines for determining when a dismissal on grounds of forum non conveniens is appropriate.

12
[T]he defendant seeking a forum non conveniens dismissal must identify an alternative forum.  Once the existence of such a forum is established the trial court must consider the private interests of the litigants and factors of public interest in determining relative convenience of the forum chosen by the plaintiff as opposed to the available alternative forum.  Among the important private interest considerations are "the relative ease of access to sources of proof;  availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of unwilling, witnesses;  possibility of view of premises, if view would be appropriate to the action;  and all other practical problems that make trial of a case easy, expeditious and inexpensive."    The court must also consider problems of enforcing a judgment if one is obtained and relative advantages and obstacles to a fair trial, if any.  "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."    The Court also identified relevant public interest factors:  administrative difficulties of courts with congested dockets;  the burden of jury duty on people of a community having no connection with the litigation;  desirability of holding a trial near those most affected by it ("There is local interest in having localized controversies decided at home.");    appropriateness of holding a trial in a diversity case in a court which is familiar with governing law.

13
Dowling, 727 F.2d at 612 (citing and quoting Gilbert, 330 U.S. at 508-09, 67 S.Ct. at 843).

14
This rule was slightly modified in Piper.    In Gilbert, the two forums involved were different United States forums.  330 U.S. at 503, 67 S.Ct. at 840.    In Piper, the plaintiffs were foreign, in which case, the Court said, the plaintiffs' choice of forum was entitled to less deference.  454 U.S. at 256, 102 S.Ct. at 266.    This is so because it is not the home forum which has been chosen, and so convenience cannot be presumed.  Ibid.

15
In evaluating the factors set out in Gilbert, it is clear that no one factor is determinative;  the "central focus of the ... inquiry is convenience...."  Piper, 454 U.S. at 249, 102 S.Ct. at 262.    "[D]ismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice."    Ibid.  Thus, there is no requirement in Piper, as Stewart alleges, that the burden be "oppressive," though surely such would be sufficient.  Such a high standard would constitute a misreading of Piper and its progeny.

16
In the present case, both the magistrate and the trial judge weighed the interests carefully, disagreeing only on the question of what law would be applied at trial.  Each used the results of his determination in weighing the public interests in the case.  Despite that difference, both reached the conclusion that dismissal on grounds of forum non conveniens was appropriate.  Dismissals based on conditions such as those agreed to in this case have been approved by this court more than once in the past.  Dowling, 727 F.2d at 615;  Watson, 769 F.2d at 356.    We see no error that rises to the level of an abuse of discretion in this case.

17
In terms of convenience, it appears inevitable that one of the parties will be inconvenienced by having to proceed in a court in a foreign jurisdiction.  Both parties seem almost peculiarly willing to do so;  the Canadian residents filed in the United States, and the United States corporation seeks to proceed in Canada.  Stewart makes no effort to explain his preference for a foreign forum, although Dow claims that evidence essential to its anticipated defense can be found and presented as evidence only in a Canadian forum.  Thus, in examining the interests involved, the inconvenience or costs of travel does not seem to be an issue, as each side strenuously contends for the privilege of bearing them.

18
The defendant, Dow, did establish that an adequate alternative forum existed.  By agreeing to the conditions imposed by the trial judge, Dow has made New Brunswick a perfectly adequate alternative forum.  There is no allegation that Canadian law would provide an inadequate remedy, or no remedy at all.  Dismissal on grounds of forum non conveniens cannot be reversed solely because another forum's laws are more or less favorable to one or the other party.  DeMelo v. Lederle Laboratories, 801 F.2d 1058, 1063 (8th Cir.1986).

19
We must next proceed to an examination of the private interests involved in this case.  There is a question of fact as to where the herbicide was manufactured;  however, there is no question that evidence of design and manufacture is under the control of Dow, which has agreed, as one of the conditions imposed by the trial judge, to allow discovery of any evidence which would be discoverable under the Federal Rules of Civil Procedure, and to make witnesses under its control available to the Canadian court.  In fact, Dow claims that the burden of establishing its defense would be an impossible one were the case to proceed in an American court.  Further, any evidence as to the nature of the injuries would be located in New Brunswick, as would treating physicians, the site of the injury, and witnesses to the use of the herbicide.  Thus, there was no abuse of discretion in finding that the private interests weigh in favor of dismissal on the grounds of forum non conveniens.

20
It is clear that the people of New Brunswick have an interest in this controversy;  it is their fellow citizens who were allegedly injured.  Thus, in considering the public interests involved here, it cannot be said that New Brunswick has no interest in this controversy.  The relevance of the choice of laws consideration is only to determine which forum will be more comfortable applying the applicable law, and which forum can be said to have an interest in having its law applied.  We need not resolve any disagreement between the trial judge and the magistrate regarding the choice of laws issue in that both found that, despite differing conclusions on the point, it did not affect the weighing of interests enough to lead to different outcomes.

21
Here, the alleged injuries occurred in New Brunswick, the allegedly injured parties reside in New Brunswick, and it may be determined that the final stages of manufacture of the herbicide were performed in New Brunswick.  At the very least, it is fair to say that the trial court did not abuse its discretion in finding the public interests to weigh in favor of the Canadian forum.  Thus, we affirm the trial court's dismissal of this action based on the doctrine of forum non conveniens.

C

22
Stewart raises for the first time on appeal that the Rules of Decision Act, 28 U.S.C. Sec. 1652, requires that this court reverse the dismissal on grounds of forum non conveniens.    Because this issue was not raised below, it is not properly before this court on appeal.  Sigmon Fuel Co. v. TVA, 754 F.2d 162, 164-65 (6th Cir.1985).

23
We cannot say that the trial court committed an abuse of discretion in dismissing the case on grounds of forum non conveniens.    Thus, we AFFIRM.

*
 The Honorable Charles R. Simpson, III, United States District Judge for the Western District of Kentucky, sitting by designation


694 S.W.2d 572 (1985)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
Lorraine CLARK, Appellee.
No. 13-84-251-CV.
Court of Appeals of Texas, Corpus Christi.
April 25, 1985.
*573 Bradford M. Condit, White, Huseman, Pletcher & Powers, Corpus Christi, for appellant.
James Ragan, Latham & Moss, Corpus Christi, for appellee.
Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION
NYE, Chief Justice.
This is an appeal from the award of attorney's fees in favor of appellee insured and against appellant insurance company.
Appellee, Lorraine Clark, presented her claim on her insurance policy to appellant, State Farm Mutual Automobile Insurance Company, for property damages sustained in an auto collision with an uninsured motorist.[1] Appellant did not contest coverage, but refused to pay the claim on its contention that the insured's negligence exceeded 51%. Appellee subsequently brought this suit on her automobile insurance contract against appellant as the uninsured motorist insurance carrier. Appellee also sought to recover reasonable and necessary attorney's fees under the provisions of TEX. REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1985). Appellee's original petition alleged that appellant, by refusing to pay her claim, violated various provisions of the Texas Deceptive Trade Practices Act, TEX. BUS. & C.CODE §§ 17.46, et seq. and 17.50(a) (Vernon Supp.1985) and the Texas Insurance Code, art. 21.21-2 (Vernon 1981). Alternatively, appellee sought attorney's fees based on these statutes.
The trial court granted the insurance company's motion for an instructed verdict against the appellee for the alleged DTPA and Insurance Code violations. However, based upon the jury's verdict, the trial court entered judgment in favor of appellee for her actual damages of $2,550.00, plus attorney's fees of $3,600.00, pursuant to article 2226.
Appellant does not contest its liability on actual damages on appeal. In its sole point of error, appellant attacks the award of attorney's fees to appellee under article 2226. The appellant insurance company argues that article 2226 is inapplicable because the latter provisions of the statute exempts insurance contracts that are subject to various provisions of the insurance Code.[2] We disagree with appellant's contention and hold that appellee is entitled to recover attorney's fees under article 2226.
*574 Appellant confines its point of error, and its argument thereunder, to the assertion that article 2226 does not apply to the insurance policy issued by it for the reason that it is an "accident insurance" company subject to the provisions of article 21.21-2 of the Insurance Code. See TEX.INS. CODE ANN. art. 21.21-2 § 7. Appellant relies on two earlier cases, both suits on fire insurance policies, which held that attorney's fees were not recoverable against the fire insurance companies because of the exclusionary language of art. 2226. See Standard Fire Insurance Co. v. Fraiman, 588 S.W.2d 681 (Tex.Civ.App.Houston [14th Dist.] 1979, no writ); Reynolds v. Allstate Insurance Co., 629 F.2d 1111 (5th Cir.1980), aff'd in part and rev'd in part, 633 F.2d 1208 (5th Cir.1981) (opinion on petition for rehearing).
In Standard Fire Insurance v. Fraiman, the Houston Court applied a strict construction to the 1978 version of article 2226 and held that "[s]ince this is a fire insurance company, it falls within article 21.21-2, section 7, and, thus, not within the provisions of article 2226." Attorney's fees were not awarded under article 21.21-2, apparently because no jury issue was submitted.
In Reynolds, the Fifth Circuit, in an attempt to interpret Texas law on this issue, reversed itself on rehearing and denied attorney's fees under article 2226. The Fifth Circuit noted in its opinion that they "must address for the first time ... appellant's second issue: whether fire insurance contracts are exempted from Article 2226 by operation of that Article's exclusion provision." At that time, the only authority the Fifth Circuit relied on to interpret the exclusionary provision was the "plainer" language of article 2226 and the case of Standard Fire Insurance Co. v. Fraiman. See 633 F.2d at 1209. It is well worth noting that even then the Fifth Circuit reasoned the following:
"... We find it extremely difficult to believe that the Texas legislature intended the exclusion provision to prevent the award of fees on all insurance contracts in all cases except those brought under the Unfair Claim Act by the Board of Insurers. Rather, it seems more sensible that the legislature excluded from the scope of coverage of Article 2226 suits brought under those Actssuch as the Unfair Claim Settlement Practices Actwhich themselves specify conditions for awarding attorney's fees. Thus, we deem it more logical that the exclusion provision of Article 2226, quoted above, was intended to increase, not decrease, the availability of fees to plaintiffs. Yet, for the time being, it seems that the "plainer" language of Article 2226 and the case of Standard Fire Insurance Co. v. Fraiman, 588 S.W.2d 681 (Tex.Civ.App.Houston 1979, no writ hist.) require the conclusion that fire insurers, among many others, are excluded from even the `liberally construed' scope of Article 2226 and that attorney's fees should not have been awarded in the present case." (Emphasis added.)
633 F.2d at 1209.
We have given careful consideration to the two cases relied upon by appellant and find neither of them to be controlling. In reaching this conclusion, we agree with the more recent statutory interpretation of several other courts of appeal that "the purpose of Article 2226 was to exclude only those claims against insurance companies where attorney's fees were already available by virtue of other specific statutes, as they are in those which Article 2226 specifically mentions." Prudential Insurance v. Burke, 614 S.W.2d 847, 850 (Tex.Civ.App. Texarkana 1981, writ ref'd n.r.e.), 621 S.W.2d 596 (Tex.1981) (per curiam); see Texas Farmers Insurance Co. v. Hernandez, 649 S.W.2d 121, 124 (Tex.App.Amarillo 1983, writ ref'd n.r.e.); Bellefonte Underwriters Insurance Co. v. Brown, 663 S.W.2d 562, 575 (Tex.App.Houston [14th Dist.] 1983, writ ref'd n.r.e.); Aetna Fire Underwriters Insurance Co. v. Southwestern Engineering Co., 626 S.W.2d 99, 102-03 (Tex.App.Beaumont 1981, writ ref'd n.r.e.).
*575 By enacting article 21.21-2, the legislature has provided remedies for injuries suffered as a result of unfair claim settlement practices. This section, however, does not confer any private cause of action upon individuals injured by unfair settlement practices; but instead, the State Board of Insurance, upon finding an insurer in violation of the Act, is empowered to stop such unlawful practices by issuing a cease and desist order to the insurer. Art. 21.21-2 § 6(a), (b); see Lone Star Life Insurance Co. v. Griffin, 574 S.W.2d 576 (Tex.Civ. App.Beaumont 1978, writ ref'd n.r.e.); Russell v. Hartford, 548 S.W.2d 737, 742 (Tex.Civ.App.Austin 1977, writ ref'd n.r. e.). Appellee, then, failed to state a cause of action against appellant insurance company for violations of art. 21.21-2 and the trial court properly granted an instructed verdict against appellee for such allegations. See Russell v. Hartford, 548 S.W.2d at 742.
In the present case, it is undisputed that the insurance contract on which appellee brought suit to recover property damages does not provide for recovery of attorney's fees. Appellee does not have alternative statutory relief for recovery of her attorney's fees under the provisions of the Insurance Code specifically mentioned in article 2226. Therefore, recovery is only permitted under the general provisions of article 2226. See Commonwealth Lloyd's Insurance Co. v. Thomas, 678 S.W.2d at 284; Bellefonte Underwriters Insurance Co. v. Brown, 663 S.W.2d at 575; Texas Farmers Insurance Co. v. Hernandez, 649 S.W.2d at 124. Here, attorney's fees were properly awarded by the jury in answer to the special issue submitted.[3]See Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.1966) (where it is said that reasonableness of attorney's fees is a question of fact and must be supported by competent evidence and may be submitted to the jury); accord Bullock v. Foster Cathead Co., 631 S.W.2d 208 (Tex.App.Corpus Christi 1982, no writ). Appellant does not challenge the evidence to support the jury's award of attorney's fees. Appellant's point of error is overruled.
In her prayer, appellee has requested this Court to award ten percent of the judgment as penalty pursuant to TEX.R. CIV.P. 438. Even assuming that appellee had properly raised this issue, we hold that she has not established that the appeal was taken primarily for the purpose of delaying payment which would permit such penalty.
The judgment of the trial court is affirmed.
NOTES
[1]  The insured vehicle was driven by appellee's son, Donald Clark.
[2]  Article 2226, as pertinent here, provides as follows:

"The provisions hereof shall not apply to contracts of insurers issued by insurers subject to the provisions of the Unfair Claim Settlement Practices Act (Article 21.21-2, Insurance Code), nor shall it apply to contracts of any insurer subject to the provisions of Article 3.62, Insurance Code, or to Chapter 387, Acts of the 55th Legislature, Regular Session, 1957, as amended (Article 3.62-1, Vernon's Texas Insurance Code), or to Article 21.21, Insurance Code, as amended, or to Chapter 9, Insurance Code, as amended, and each such article or chapter shall be and remain in full force and effect. This Act shall be liberally construed to promote its underlying purposes." (Emphasis added.)
[3]  (17) "Find from a preponderance of the evidence the reasonable and necessary cost of attorney's fees for pursuing Lorraine Clark's claim against State Farm Insurance Company? Answer in dollars and cents, if any.

Answer: $3,600.00."


127 F.3d 1097
John K. Whitefordv.Commonwealth of Pennsylvania, Bureau of Proffessional andOccupational Affairs
NO. 97-3080
United States Court of Appeals,Third Circuit.
Aug 05, 1997
Appeal From:  W.D.Pa. ,No.96cv01949

1
Affirmed.


299 F.2d 949
John W. D. COLLINS and Margaret W. Collinsv.The UNITED STATES.
No. 477-56.
United States Court of Claims.
March 7, 1962.

Robert H. McNeile, Washington, D. C., for plaintiffs. R. G. de Quevedo, Washington, D. C., was on the brief.
Jerry M. Hamovit, Washington, D. C., with whom was Asst. Atty. Gen. Louis F. Oberdorfer for defendant. Lyle M. Turner and Philip R. Miller, Washington, D. C., were on the brief.
PER CURIAM.

1
This is a suit for the recovery of income taxes deducted for the years 1951 through 1954 from the salaries of plaintiffs, husband and wife, who are citizens of the United States and were employed by various agencies of the United States Government while residing in the Republic of Panama in 1951 and 1952 and the Canal Zone in 1953 and 1954. The question involved is whether Section 251(j) of the Internal Revenue Code of 1939, 26 U.S.C. § 251 (1952 Ed.), and the comparable Section 931(i) of the Internal Revenue Code of 1954, 26 U.S.C. § 931 (1958 Ed.), contravene the due process clause of the Fifth Amendment to the Constitution, because they deny employees of the United States or its agencies an exemption from Federal income taxes when employed in possessions of the United States, by providing that income of Federal employees shall "be deemed to be derived from sources within the United States." Plaintiffs were employed by agencies of the United States located in an area within the legislative power of the United States. Therefore, the income was "derived from sources within the United States" and we hold it within the taxing power of the Congress. Plaintiffs are therefore not entitled to recover and their petition, as amended, will be dismissed.

2
It is so ordered.