Opinion
No. 83-1330.
Submitted October 11, 1983.
Decided November 9, 1983.
Arnold J. Stern, Arnold J. Stern, P.C., Omaha, Neb., for appellant.
Frederick S. Cassman, of Abrahams, Kaslow Cassman, Omaha, Neb., for appellee.
Appeal from the United States District Court for the District of Nebraska.
Before ROSS, McMILLIAN and BOWMAN, Circuit Judges.
Ronald M. Budwig instituted this action against Natelson's, Inc. Profit Sharing Retirement Plan, alleging improper allocation of benefits to him upon his termination of employment. The district court, the Honorable Albert G. Schatz, dismissed Budwig's complaint and held that the Trustee's action was not arbitrary or capricious nor was it inconsistent with ERISA.
Budwig was employed by Natelson's on November 13, 1967, and his employment continued until he resigned on June 30, 1977. During this time, Natelson's maintained a retirement profit sharing plan for its eligible employees. The original retirement plan was amended by an ERISA Plan on February 1, 1976. Contributions to the plan for the benefit of Budwig were made by Natelson's on the thirty-first of January 1970 through 1977.
On February 27, 1978, Budwig submitted his written claim to the Trustee. The Trustee calculated Budwig's vested equity under the terms of both the original and the ERISA Plan and concluded that under both plans, Budwig was entitled to the same amount. The Trustee determined that Budwig's vested equity was fifty percent, that Budwig was not entitled to an allocation of Natelson's contribution for the Trust Year ending January 31, 1978, and that Budwig was not entitled to immediate distribution of an insurance policy.
We have carefully studied the record, including the trial court's opinion, the briefs and the arguments of the parties to this action. We find no merit to Budwig's arguments, and accordingly affirm pursuant to Rule 14 of the Rules of the court on the basis of Judge Schatz's opinion. Budwig v. Natelson's, Inc. Profit Sharing Retirement Plan, Civ. No. 81-0-24, (D.Neb. Oct. 18, 1982).