                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                                 F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                                 October 7, 2003
                               FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                      Clerk


                                     No. 03-50060
                                   Summary Calendar



      ISABEL HERNANDEZ, For Herself and on
      behalf of Hector Hernandez’ Estate,

                                                       Plaintiff-Appellant,

                                          versus

      EL PASO ENERGY CORPORATION, (NOW
      KNOWN AS EL PASO CORPORATION);
      EL PASO NATURAL GAS COMPANY
      EMPLOYEE SEVERANCE PROTECTION PLAN,

                                                       Defendants-Appellees.


                  Appeal from the United States District Court for
                           the Western District of Texas
                         (USDC No. EP-01-CV-441-DB)
          _______________________________________________________


Before REAVLEY, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*




      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
       Appellant Hernandez sued for severance benefits allegedly due her deceased

husband. The relevant facts are not in dispute. We agree with the district court that the

plan administrator made a legally correct interpretation of the plan document in denying

severance benefits where the beneficiary died, before his employment otherwise

terminated as a result of a scheduled reduction in force that followed a change in control.

The language of sections 4.1 and 5.2 of the plan provide that severance benefits are not

available in such circumstances. We agree with the district court’s analysis of the

relevant plan provisions.

       The parties on appeal and the district court do not clearly indicate whether they

think de novo or abuse of discretion review is applicable to judicial review of the plan

administrator’s decision. The de novo standard applies “unless the benefit plan gives the

administrator or fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989). The parties point to no language giving the administrator discretionary

authority, and appellees conceded below that the de novo standard is applicable. Even

under the less deferential de novo standard, we should affirm the administrator’s decision

if, as here, there are no material issues of fact in dispute and the administrator’s

interpretation of the plan was legally correct. See Dial v. NFL Player Supplemental

Disability Plan, 174 F.3d 606, 613 (5th Cir. 1999).

       AFFIRMED.



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