United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                    ___________

                                Nos. 00-3441/3923
                                  ___________

Delta Family-Care Disability and         *
Survivorship Plan,                        *
                                         *
                   Appellant,            *          Appeal from the United States
                                         *          District Court for the Eastern
            v.                           *          District of Arkansas
                                         *
Harold Marshall,                         *
                                         *
                   Appellee.             *
                                    ___________

                            Submitted: May 17, 2001

                                   Filed: July 31, 2001
                                    ___________

Before BOWMAN and BEAM, Circuit Judges, and KYLE, District Judge.1


KYLE, District Judge.

      Delta Family-Care Disability and Survivorship Plan (“the Plan”) appeals from
the final judgment entered by the district court in favor of Harold Marshall


      1
         The HONORABLE RICHARD H. KYLE, United States District Judge for
the District of Minnesota, sitting by designation.
                                          1
(“Marshall”), directing the Plan to reinstate Marshall’s long-term disability benefits
pursuant to the Employment Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1132(a)(1)(B). The Plan argues that, while the district court identified the
correct standard for reviewing the Plan’s decision -- a deferential “abuse of discretion”
standard -- the court misapplied that standard when it reviewed the administrative
record and concluded that the Plan administrator’s decision was not supported by
substantial evidence.2 The Plan also appealed from a subsequent order granting in part
Marshall’s request for attorney’s fees. We reverse the district court’s judgment
reinstating Marshall’s long-term disability benefits and vacate the Order awarding fees.

I.    Background

      A.     Marshall’s Injury and Treatment Therefor

       From approximately 1979 to 1991, Marshall worked as a non-pilot employee
for Delta Airlines, most recently as a senior customer service agent. In March 1989,
he sustained a lower back injury at work.3 Marshall continued to work at Delta, and
pursued non-invasive treatment for his back, until September 1991. When
Marshall’s back problems persisted, orthopaedic surgeon Harold Chakales
performed a laminectomy and fusion in November 1991. The fusion involved the
spine from the L-4 vertebra in Marshall’s lower back to the sacrum. By a letter
dated January 2, 1992, Dr. Chakales advised Delta that recovery from such spinal


      2
        The Plan further argues that the district court erred in denying the Plan’s
motion to compel discovery from Marshall concerning other disability benefits he
had received during the period he was also receiving benefits from the Plan.
      3
         Marshall sustained an earlier lower back injury in 1980 when he was struck
in the back at work by a piece of falling equipment. To repair the injury suffered in
that accident, Marshall underwent back surgery in 1980. Marshall made a good
recovery from that surgery and returned to work at Delta.
                                           2
fusion surgery takes anywhere from two to five years.

       Following his surgery in 1991, Marshall remained under the care of Dr.
Chakales, who periodically submitted statements to the Plan advising it of
Marshall’s status. In July 1994, Dr. Chakales performed a second back surgery to
remove hardware associated with the spinal fusion. On January 4, 1995, Dr.
Chakales assigned a 35% anatomical impairment to Marshall’s body as a whole.
On April 24, 1995, Dr. Chakales stated in his progress notes that Marshall’s spinal
surgery had reached maximum healing, and that he was discharging Marshall from
his care -- Marshall could return to see Dr. Chakales on an “as needed” basis.
Following his discharge, Marshall returned to Dr. Chakales every four to eight
weeks to receive treatment for the pain in his lower back and legs. At the end of
1995, Dr. Chakales informed the Plan that Marshall was unable to work in his
regular employment or in any other type of work.

      In April 1993, while treating Marshall’s spine injury, Dr. Chakales referred
Marshall to a psychiatrist, Dr. Henry Good. Dr. Good treated Marshall with
psychotherapy and drug therapy for depression associated with chronic pain
syndrome. Sometime in 1994, Dr. Good retired, and Dr. Raymond Remmel took
over Marshall’s psychiatric care, continuing with drug therapy. On November 7,
1994, Dr. Remmel opined that Marshall was unable to work due to his chronic pain,
traumatic injury, and “unremitting depression.” On April 6, 1995, Dr. Remmel
assessed Marshall as being disabled by “morbid depression.” Throughout his
treatment of Marshall, Dr. Remmel has reported that Marshall is disabled due to his
depression.

       In October 1997, Dr. Chakales reported that Marshall was suffering from
post-laminectomy syndrome and chronic pain syndrome. Dr. Chakales noted that,
from a chronic pain standpoint, while Marshall would never be pain-free, he was
able to manage his pain with two to three “Tylenol 4” per day and doses of another

                                         3
pain medication called Soma. Dr. Chakales stated that the combination seemed
effective and was “basically a low maintenance dosage.” On January 8, 1998, Dr.
Chakales repeated his assessment that Marshall was unable to work in any job,
adding that Marshall was “not able to be rehabilitated.”

      B.     Marshall’s Claim for Long-term Disability Benefits.

       The Plan is a non-contributory employee welfare benefit plan available to
eligible non-pilot employees of Delta Airlines, Inc. – it provides both short-term and
long-term disability benefits. An employee is eligible for long-term disability
benefits under the Plan “provided he is disabled at that time as a result of
demonstrable injury or disease (including mental or nervous disorders) which will
continuously and totally prevent him from engaging in any occupation whatsoever
for compensation or profit, including part-time work.”

       On March 5, 1992, after receiving the maximum amount of short-term
benefits allowed under the Plan, Marshall signed a claim notice for long-term
disability benefits. In support of his claim, Marshall submitted an “Attending
Physician’s Statement” from Dr. Chakales stating that Marshall was “totally
disabled” both for his regular job and for any occupation. The Plan approved
Marshall’s claim for long-term disability benefits on March 18, 1992. The Plan paid
long-term disability benefits to Marshall until March 31, 1998.

       During the six years in which he received long-term disability benefits,
Marshall underwent several Independent Medical Examinations (“IMEs”) by
orthopaedists and Independent Psychiatric Examinations (“IPEs”) by psychiatrists,
at the request of the Plan. Three examinations are pertinent to the pending appeal.4


      4
        Two other examinations occurred before Marshall underwent surgery in
1994 to remove the hardware implanted in connection with his spinal fusion. The
                                          4
       On April 3, 1996, orthopaedist William Blankenship performed an IME. Dr.
Blankenship concluded that Marshall was at that time capable from a physical
standpoint of performing “some type of work in the form of restricted or light duty,
clerical, and part-time.” Dr. Blankenship stated that the work should be sedentary
in nature and should not require a lot of bending or stooping.

       The following month, Marshall underwent an IPE by Stephen C. Buchanan,
M.D., a psychiatrist. Dr. Buchanan stated that Marshall seemed to be totally
disabled physically in that he was unable to sit or stand for any length of time, his
concentration was impaired by the medications that he was taking, and his energy
level and ability to relate to others were impacted by his depression. Dr. Buchanan
opined that Marshall was “likely” to be chronically incapacitated, but also thought it
was “possible” that Marshall could work some kind of job from his home involving
the telephone, at which Marshal could set his own hours. Dr. Buchanan
recommended that Marshall receive psychotherapy with a psychotherapist. On July
10, 1996, Dr. Buchanan submitted an addendum to his report stating that he had
subsequently reviewed the report of Dr. Blankenship’s IME and concluded that,
whatever one might say about whether Marshall was disabled from an orthopaedic
perspective, one could nevertheless say that Marshall was totally disabled due to his
depression, chronic pain, and his need to take medications that impair his
concentration.

      One year later, Marshall underwent a second IPE, this time performed by
Bradley Diner, M.D.,a psychiatrist.5 After meeting with Marshall and evaluating his
records, Dr. Diner concluded that Marshall’s pain was not fully associated with


Plan did not base its decision to terminate Marshall’s benefits on either of these
examinations.
      5
         The Plan sent Marshall to Dr. Diner because Dr. Buchanan was no longer
practicing in the Little Rock area.
                                           5
non-psychiatric medical or neurological findings. Dr. Diner also noted that
Marshall’s depression had been only superficially addressed because the psychiatric
intervention has mainly focused on pain management. Dr. Diner also raised a
concern about what he regarded as Marshall’s “overuse” of pain medications and
recommended a pain management program.6 Dr. Diner concluded that there was
nothing from a psychiatric standpoint to prevent Marshall from working; his
depression was not severe enough to warrant any significant disability.
Accordingly, Dr. Diner opined that Marshall was immediately capable of
performing some type of work, particularly of a sedentary nature, that offered the
freedom to take breaks as needed and set self-determined hours.

      The Plan also required Marshall to submit to a Functional Capacity
Evaluation with a physical therapist on March 12, 1998. Barbara Morris, M.S.,
performed an evaluation lasting several hours from which she concluded that, from a
physical standpoint, Marshall was capable of performing some type of work in the
sedentary category with lifting restrictions of 25 pounds.

      C.    The Plan Terminates Marshall’s Long Term Disability Benefits



      6
         Approximately three months later, in October 1997, Marshall’s own
orthopaedist, Dr. Chakales, reported that Marshall was taking fewer doses of pain
medications than Dr. Diner had reported. Furthermore, Dr. Chakales described the
dosage of pain medications Marshall was taking as “basically a low maintenance
dosage.”
       On January 8, 1998, Marshall’s own psychiatrist, Dr. Remmel, responded to
the pain medication issue raised in Dr. Diner’s report. Dr. Remmel stated that he
had ruled out any overuse or abuse by Marshall and indicated that he himself
prescribed much of the pain medications Marshall took. Dr. Remmel concluded: “I
would recommend that [Delta Air Lines] cease the constant harassment of this
unfortunate gentleman who suffered a severe injury while in the service of [Delta]
and now lives with unremitting pain.”
                                         6
       On March 30, 1998, the Plan sent a letter to Marshall informing him that,
based on Dr. Diner’s IPE, the Functional Capacity Evaluation performed by the
physical therapist, Dr. Blankenship’s IME, and surveillance reports indicating that
Marshall was seen walking without a cane and driving a car, Marshall no longer met
the eligibility requirements for long-term disability benefits. The Plan was therefore
terminating Marshall’s benefits effective April 1, 1998. The letter also explained
Marshall’s appeal rights.

       When the Plan terminates an employee’s long-term disability benefits, the
employee may appeal that decision administratively. That process has two levels.
At the first level, a subcommittee (whose members are appointed by the
Administrative Committee of the Plan) reviews the challenged decision.7 If the
subcommittee decides the appeal against the employee, the employee may appeal
that decision to the Administrative Committee itself. At each level, the employee
may submit any written evidence or arguments that he wishes to support his claim
for benefits.

      Marshall timely appealed the termination of his benefits to the subcommittee.
In support of that appeal, Marshall submitted additional medical documentation
from Drs. Chakales and Remmel. Dr. Remmel stated, in a report dated April 6,
1998, that he “cannot and will not release Mr. Marshall to return to work.” Dr.
Chakales described Marshall as suffering from “post lumbar laminectomy syndrome
with chronic low grade spinal arachnoiditis with chronic nerve root irritation” and
reported on April 24, 1998, that Marshall was still disabled and was a “poor
rehabilitative candidate.” Marshall also submitted to the Plan a vocational
assessment report from Pinnacle Rehabilitation. The vocational assessment


      7
         The “Administrative Committee” is the administrator of the Plan, vested
with “[t]he operation and administration of the Plan . . . the exclusive power to
interpret it, and the responsibility for carrying out its provisions.”
                                          7
indicated that, based upon the medical evaluations of Drs. Chakales and Remmel, it
was neither physically nor psychologically appropriate for Marshall to return to
work.8

       In response to Marshall’s appeal, the Plan asked Marshall to undergo two
further IMEs. On June 17, 1998, Marshall underwent an Independent Orthopaedic
Evaluation by Tad Pruitt, M.D. Dr. Pruitt spent approximately one and a half hours
examining Marshall and another two hours reviewing his medical records and
preparing his report. Dr. Pruitt concluded that Marshall might, from a physical
standpoint, be able to perform a sedentary clerk’s job if he were able to ease into
the job by starting with just a couple of hours at a time and if he were able to move
around as needed. Dr. Pruitt stated, however, that he could not appropriately
comment on Marshall’s mental ability to perform the job and noted that Marshall’s
subjective issues -- his mental problems and chronic pain -- may continue to limit
him. Dr. Pruitt also raised a concern about Marshall’s dependence on chronic pain
medicines.

       Two days later, Marshall underwent an IME by neurological surgeon,
Anthony Russell, M.D. Dr. Russell concurred in Dr. Pruitt’s findings and stated his
belief that Marshall was not totally disabled to the point that he could no longer
engage in any gainful employment. Dr. Russell continued:

      I realize it is not proper to use specific illustrations in order to form an
      opinion, however, if we use someone who is severely injured, such as
      Christopher Reeves, a patient with a C1-C2 fracture, who is unable to
      walk or breath for himself, then obviously Mr. Marshall’s injury falls


      8
       On June 24, 1998, Marshall’s counsel arranged for him to be evaluated by
James Moore, M.D., a neurosurgeon, who concluded that Marshall was “severely
compromised in any abilities to work” and was not “a candidate to return to the
workforce.”
                                            8
      somewhere short of that degree of disability. On the other hand, Mr.
      Reeves has been able to resume employment. The ability to work is
      typically more a function of motivation rather than actual ability to
      engage in certain activities.

Dr. Russell concluded that the main limiting factor for Marshall was his subjective
pain. The Plan submitted additional documents from Marshall’s treating psychiatrist
to Dr. Diner, the psychiatrist who had completed Marshall’s 1997 IPE, for his
review. Dr. Diner concluded that Dr. Remmel’s letter did not change the opinion he
expressed in 1997.

       Marshall was accepted as permanently and totally disabled by the Arkansas
Worker’s Compensation Commission on September 1, 1998, a fact known to the
Plan. On September 22, 1998, the subcommittee notified Marshall that it was
affirming the Plan’s initial decision to terminate Marshall’s benefits “based on the
evidence presented that [Marshall] is able to perform some type of work other than
his customary occupation.” By a letter dated December 15, 1998, Marshall
appealed this determination to the Administrative Committee. On February 22,
1999, the Administrative Committee notified Marshall that his appeal was denied
because medical evidence showed that he was physically and psychologically
capable of doing some work.

      D.     The District Court Action

      On September 10, 1999, Marshall filed a one-count complaint under §
1132(a) of ERISA seeking reinstatement of his long-term disability benefits. On
June 2, 2000, the Plan filed a Motion for Summary Judgment and submitted to the
Court the administrative record that was before the Plan when it made its decision to
discontinue Marshall’s benefits. Marshall opposed the motion and, the Plan argues,
relied in part on documents that had not been presented to the Plan during the
administrative process and/or had not been produced by Marshall during discovery.

                                          9
       The district court determined that the abuse of discretion standard applied and
reviewed the record before the Plan for “substantive evidence” in support of its
decision. The district court first observed that “the evaluations by the non-treating
physicians were in conflict.” The district court then noted that the only consistent
evidence before the Plan came from Marshall’s treating physicians, who have
maintained throughout the relevant time period that Marshall was totally disabled.
The district court determined that it was not reasonable for the Plan to disregard this
“overwhelming evidence” from the doctors most knowledgeable about Marshall’s
condition. The district court further reasoned that the evidence in the administrative
record on which the Plan relied came from evaluators who were “isolated to a
particular specialty” and, therefore, did not take into account all of Marshall’s
problems. The district court held that the Plan’s decision to terminate Marshall’s
benefits was not supported by substantial evidence and directed the Plan to reinstate
Marshall’s long-term disability benefits. This appeal followed.

II.   Standard of Review

       ERISA provides a plan beneficiary with the right to judicial review of a
benefits determination. 29 U.S.C. § 1132(a)(1)(B). An ERISA plan administrator’s
decision to terminate benefits is reviewed under an abuse-of-discretion standard
where the plan gives the administrator discretion to determine eligibility for benefits
and to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 

, 115 (1989). As discussed above, the district court applied the abuse-of-
discretion standard. Marshall does not dispute that the Plan contains the
discretionary language necessary to merit an abuse-of-discretion standard;9 rather,


      9
          The Administrative Committee is expressly granted “the discretionary
authority to interpret and construe the Plan, and decide all questions of eligibility of
any Eligible Family Member to participate in the Plan or to receive benefits under it,
its interpretation and decision to be final and conclusive.”
                                           10
he argues that the circumstances in this case require a more rigorous standard of
review.

       A court will review a plan administrator’s decision to deny benefits under a
less deferential standard where the plan beneficiary presents “material, probative
evidence demonstrating that (1) a palpable conflict of interest or serious procedural
irregularity existed, which (2) caused a serious breach of the plan administrator’s
fiduciary duty to him.” Woo v. Deluxe Corp., 

, 1160 (8th Cir. 1998).
Marshall’s primary contention is that there was a serious procedural irregularity in
the Plan’s handling of his claim because the Plan received information from and
allegedly acted in concert with Delta’s workers’ compensation carrier for purposes
of reducing or eliminating benefits payable to him. Marshall complains that the Plan
received and used IMEs that he had undergone in connection with his pending
workers’ compensation proceeding. The record before the Plan contained notes
from the workers’ compensation adjuster, IMEs, and a surveillance report regarding
Marshall’s physical activities.10
       We conclude that, on the facts of this case, there was no “serious procedural
irregularity” in the Plan’s consideration and use of information obtained in
connection with Marshall’s workers’ compensation proceeding. Indeed, Marshall
himself submitted reports and correspondence that his physicians had addressed to
Wausau Insurance, apparently in connection with Marshall’s workers’
compensation claim. Marshall also forwarded to the Plan a copy of the report
prepared by Dr. Russell (whom Marshall identifies in his handwritten letter as “the
doctor Wausau sent me to be seen by.”) As for the surveillance report, we note that
there is nothing procedurally improper about the use of surveillance. See McGarrah
v. Hartford Life Ins. Co., 

, 1028-29 (8th Cir. 2000). Accordingly,


      10
         The report indicates that Marshall drove a car on several occasions during
the course of the surveillance and was observed walking to the mailbox without the
assistance of a cane.
                                         11
we decline to depart from the abuse-of-discretion standard warranted by the
language of the Plan.

III.   Application of the Abuse-of-Discretion Standard

       We review a district court’s application of the abuse-of-discretion standard de
novo. Fletcher-Merrit v. NorAm Energy Corp., 

, 1179 (8th Cir.
2001). Under an abuse-of-discretion standard of review, a plan administrator’s
decision to deny or terminate benefits must stand if it is reasonable, that is, if it is
supported by “substantial evidence.” Id.; Donaho v. FMC Corp., 

, 899
n.9 & 900 (8th Cir.1996). Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Consolidated
Edison Co. of New York v. N.L.R.B., 

, 229 (1938). So long as the
plan administrator’s “findings are reasonable, they may not be displaced on review
even if the court might have reached a different result had the matter been before it
de novo.” 

. Ultimately,
       a trustee decision is reasonable if a reasonable person could have
       reached a similar decision, given the evidence before him, not that a
       reasonable person would have reached that decision. Put another way,
       the committee’s decision need not be the only sensible interpretation,
       so long as its decision offer[s] a reasoned explanation, based on the
       evidence, for a particular outcome.

(emphasis in original)(internal quotation marks and citations omitted).

       The Plan argues that the district court erred in holding that the decision to
terminate Marshall’s benefits was “unreasonable” because the district court (1)
improperly determined the weight to be given to various medical reports; (2)
incorrectly concluded that the Plan should have given deference to Marshall’s
treating physicians; and (3) incorrectly found that the Plan disregarded the opinions
of Marshall’s treating physicians. The Plan further contends that the district court
should have viewed the administrative record underlying the decision as a whole,

                                          12
rather than focusing on isolated portions of various doctors’ opinions.

       We agree with the Plan that the district court incorrectly reasoned that the
Plan should have accorded greater deference to the opinions of Marshall’s treating
physicians. As authority for this proposition, the district court relied solely on
Donaho v. FMC Corp., 

(8th Cir. 1996). The administrative record in
this case, however, is much different from the record before the plan administrator
in Donaho. The only doctor who opined that Donaho was not disabled was a
physician who had merely reviewed her medical records and had never examined
her. We therefore stated in Donaho that “where the reviewing physician’s
conclusions are contradicted by an examining physician and two treating physicians,
reliance on the reviewing physician’s conclusions seems especially misplaced and
constitutes an abuse of discretion.” 

(emphasis added). As
we recently observed, however, a treating physician's opinion does "not
automatically control, since the record must be evaluated as a whole."

n.3 (citing Bentley v. Shalala, 

, 786
(8th Cir. 1995)).

       Here, the Plan did not base its decision to terminate benefits on the report of
any physician who had merely reviewed Marshall’s medical records. All of the
doctors who conducted Marshall’s IMEs and IPEs examined him and included in
their reports information regarding their observations of Marshall’s then-present
condition. The question of deference as between the conclusions of a treating
physician and a physician who has merely reviewed medical records is not at issue
here. On that issue, Donaho is not controlling.

      “The unreasonableness of a plan administrator’s decision can be determined
by both the quantity and quality of the evidence supporting it.” 

. There is certainly a quantity of evidence in this extensive record both for and


                                          13
against Marshall’s claim to continuing long-term disability benefits.11 Marshall’s
treating physicians, Dr. Buchanan (who performed an IPE in 1996) and Dr. Moore
submitted reports stating that Marshall was totally disabled, either physically or
psychologically. On the other hand, the 1996 IME of Dr. Blankenship, the 1997
IPE of Dr. Diner (supplemented in 1998 in response to materials submitted by
Marshall’s treating psychiatrist), the 1998 IME of Dr. Pruitt, the 1998 IME of Dr.
Russell, the 1998 Functional Capacity Examination by the physical therapist, and
the surveillance report of Marshall’s observed capacity to engage in certain daily
activities support the conclusion that Marshall was not totally disabled either
physically or psychologically.

      With respect to the quality of the evidence before the Plan, the district court
(and Marshall’s counsel at oral argument) focused on Dr. Russell’s analogy between
Marshall’s situation and that of actor Christopher Reeves. Dr. Russell
acknowledged in his report that such an analogy may be inappropriate. That
analogy does not, however, clearly invalidate the observations Dr. Russell made
during his examination of Marshall -- observations reported by Dr. Russell prior to
the “Christopher Reeves” letter. To the extent Dr. Russell’s comments may be
considered an expression of bias, we also note that, in 1998, Marshall’s treating
psychiatrist clearly and passionately articulated his view that Marshall was being


      11
          Marshall argues that the Plan’s decision to terminate Marshall’s disability
benefits was unreasonable in light of the Arkansas Workers’ Compensation
Commission’s determination in September of 1998 that Marshall was permanently
and totally disabled. We have observed, however, that a governmental award of
disability benefits is not inherently inconsistent with a decision that an employee is
not eligible for disability benefits under an ERISA plan. See e.g., Schatz v. Mutual
of Omaha Ins. Co., 

, 950 n.9 (8th Cir. 2000). Nor is a governmental
award of disability benefits controlling on the question of whether the ERISA plan
should provide disability benefits. Indeed, if it were, the actions of a governmental
agency would effectively strip the plan administrator of his discretion granted by the
language of the benefits plan.
                                          14
“harassed” by Delta Air Lines and the Plan, going so far as to opine that Marshall
should sue the Plan. The district court did not consider whether Dr. Remmel’s
comments were evidence of a lack of objectivity on his part.

       Finally, all of the medical information available to the Plan, both the reports
prepared by Marshall’s own treating physicians and those prepared by the doctors
who performed the IMEs and IPEs, came from specialists. Therefore, the district
court’s criticism of the Plan’s reliance on the reports of evaluators who were
“isolated to a particular specialty” is without merit – Marshall’s treating physicians
were an orthopaedic surgeon and a psychiatrist. Based on our review of the record,
we cannot conclude, as the district court did, that the Plan “disregarded” the reports
of Marshall’s treating physicians. Indeed, the Plan’s final decision letter clearly
demonstrates that the Plan did consider those reports.

      Where the record reflects conflicting medical opinions, the plan administrator
does not abuse its discretion in finding the employee not to be disabled. 

. We conclude that conflicting medical opinions were presented to the
Plan, and that there was “substantial evidence” to support the Plan’s decision to
terminate Marshall’s long-term disability benefits. The Plan’s decision was
reasonable and the district court should not have overturned it.
IV.   Conclusion

       Having determined that the Plan’s decision to terminate Marshall’s long-term
disability benefits was reasonable, we vacate the judgment of the district court and
direct that judgment be entered in favor of the Plan. We further vacate the district
court’s award of attorneys’ fees to Marshall.




                                          15
A true copy.

      ATTEST:

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




                                   16