No In The United States Court of Appeals For The First Circuit. Linnea Garcia-Tatupu,

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1 Case: Document: Page: 1 Date Filed: 06/08/2018 Entry ID: No In The United States Court of Appeals For The First Circuit Linnea Garcia-Tatupu, v. Plaintiff/Appellant, Bert Bell/Pete Rozelle NFL Player Retirement Plan; NFL Player Supplemental Disability Plan, Defendants/Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BRIEF OF APPELLEES The BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN, and the NFL PLAYER SUPPLEMENTAL DISABILITY PLAN Michael L. Junk, Esq. Groom Law Group, Chartered 1701 Pennsylvania Avenue NW Washington, DC T: (202) F: (202) E: mjunk@groom.com Grace V.B. Garcia, Esq. Morrison Mahoney LLP 250 Summer Street Boston, MA T: (617) F: (617) E: ggarcia@morrisonmahoney.com Counsel for Defendants-Appellees

2 Case: Document: Page: 2 Date Filed: 06/08/2018 Entry ID: RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, counsel of record for Defendants-Appellees, the Bert Bell/Pete Rozelle NFL Player Retirement Plan and the NFL Player Supplemental Disability Plan, hereby certifies the following: (1) Neither party is a publicly held corporation or other publicly held entity. (2) No publicly held corporation or other publicly held entity owns 10% or more of the stock of either party.

3 Case: Document: Page: 3 Date Filed: 06/08/2018 Entry ID: TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE ISSUES PRESENTED FOR REVIEW... 1 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT...10 ARGUMENT...11 I. Ms. Garcia-Tatupu Waived All Of Her Arguments On Appeal After Failing To Squarely Raise Them Before The District Court II. The 2011 Domestic Relations Order Is Unenforceable Because It Would Require The Plan To Provide Increased Benefits In Violation Of ERISA A. Under ERISA, a QDRO cannot require a pension plan to provide increased benefits B. This Court should follow Samaroo and Files, where the Third Circuit considered whether post mortem domestic relations orders similar to the one at issue here required a plan to provide increased benefits C. Because the 1997 Marital Separation Agreement did not give Ms. Garcia-Tatupu survivor rights or a separate interest in Mr. Tatupu s pension benefits, her post mortem domestic relations order would require the Plan to pay increased benefits CONCLUSION...21 RULE 32(g)(1) CERTIFICATE OF COMPLIANCE...22 CERTIFICATE OF SERVICE...23 i

4 Case: Document: Page: 4 Date Filed: 06/08/2018 Entry ID: Cases TABLE OF AUTHORITIES Boston Beer Co. Ltd. P ship v. Slesar Bros. Brewing Co., Inc., 9 F.3d 175 (1st Cir.1993)...11 Campos-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999)...11 CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504 (1st Cir. 1996)...13 Einhorn v. McCafferty, No. 5:14-CV-06924, 2016 WL (E.D. Pa. Mar. 31, 2016)... 18, 19 Files v. ExxonMobil Pension Plan, 428 F.3d 478 (3d Cir. 2005)... 7, 14, 16, 17 Garcia-Tatupu v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 249 F. Supp. 3d 570 (D. Mass. 2017)... 7 Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091 (9th Cir. 2006)...19 McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13 (1st Cir. 1991)... 11, 12 Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359 (1980)...12 Rocafort v. IBM Corp., 334 F.3d 115 (1st Cir. 2003)... 11, 12 Samaroo v. Samaroo, 193 F.3rd 185 (3d Cir. 1999)... passim Statutes 29 U.S.C. 1056(d)(1) U.S.C. 1056(d)(3)(A) U.S.C. 1056(d)(3)(B)(i) U.S.C. 1056(d)(3)(B)(ii)...13 ii

5 Case: Document: Page: 5 Date Filed: 06/08/2018 Entry ID: U.S.C. 1056(d)(3)(D)(ii)... 1, 10, 13, 15 Other Authorities U.S. Dep t of Labor, Emp. Benefits Sec. Admin., QDROs: The Division of Retirement Benefits through Qualified Domestic Relations Orders (2014)...18 iii

6 Case: Document: Page: 6 Date Filed: 06/08/2018 Entry ID: STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Did Appellant waive all of her arguments by failing to squarely raise them before the District Court (and again before this Court on appeal)? 2. Does a state court domestic relations order require a plan to provide increased benefits and thereby violate section 206(d)(3)(D)(ii) of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ), 29 U.S.C. 1056(d)(3)(D)(ii) if: (a) the domestic relations order is issued nearly two years after the participant s death, at a time when no benefits are payable under the plan; and (b) the domestic relations order purports to give the deceased participant s ex-spouse a fully-separate, 100% interest in the participant s pension benefits and designate her as the participant s surviving spouse all against the terms of a preexisting divorce decree between the participant and the ex-spouse? This is an issue of first impression in this Circuit. 1

7 Case: Document: Page: 7 Date Filed: 06/08/2018 Entry ID: STATEMENT OF THE CASE The Bert Bell/Pete Rozelle NFL Player Retirement Plan ( Plan ) is an ERISA-governed, multiemployer pension plan created through collective bargaining between the NFL Players Association (the bargaining agent for Playeremployees) and the NFL Management Council (the bargaining agent for NFL Clubs). Plan Doc. (ECF 14-3) at 1. It provides retirement and disability benefits to eligible participants ( Players ) and their beneficiaries. Id. In June 2016, Linnea Garcia-Tatupu sued the Plan alleging that its administrator, the Retirement Board, wrongfully denied her request for pension and/or survivor benefits following the death of her ex-husband, Mosiula F. Tatupu. Compl. 13 (A9). The material facts of this case are undisputed. Ms. Garcia-Tatupu married Mr. Tatupu in Id. 5 (A8). They divorced in Id. 7 (A8). Their Marital Separation Agreement ( MSA ) reads, in pertinent part, as follows: At the time of Mosiula F. Tatupu s retirement and decision to draw pension benefits as may be available to him by virtue of his employment with the National Football League from 1978 through and including 1991, Mosiula F. Tatupu, shall pay to Linnea Garcia- Tatupu one-third (1/3) of the net benefit he receives from said pension benefit plan. Mosiula F. Tatupu shall have exclusive right to decide, if, when, and how he wishes to receive said benefits, having the sole right to choose what payment option he desires without regard to the desire and/or wishes of Linnea Garcia-Tatupu. Whatever payment option Mosiula F. Tatupu elects shall govern the time amount and manner of payments to Linnea Garcia-Tatupu. Mosiula F. Tatupu shall remit the payments due to Linnea Garcia-Tatupu within two (2) 2

8 Case: Document: Page: 8 Date Filed: 06/08/2018 Entry ID: business days of his receipt of any payments of benefits under said plan. Any and all benefits paid to Linnea Garcia-Tatupu by Mosiula F. Tatupu shall be deemed alimony payments. Said benefits shall continue to be payable to Linnea Garcia-Tatupu subsequent to the death of Mosiula F. Tatupu, if the plan so provides, and if she survives Mosiula F. Tatupu, [sic] Linnea Garcia-Tatupu specifically waives any rights to receive any alimony and/or pension benefits in excess of the amount provided herein. The parties agree to cooperate with any plan administrator in coordinating distribution of benefits so long as the distribution is consistent with the terms of this Agreement. 9/24/1997 MSA at (A72- A73) Mr. Tatupu and Ms. Garcia-Tatupu never presented the 1997 MSA to the Plan. (In fact it first surfaced in this litigation.) In 2005, Mr. Tatupu elected to receive a portion of his pension in the form of a lump-sum, early payment benefit. See Plan Doc. (ECF 14-3) at 13 (Section 4.5, describing availability of early payment benefit equal to the Actuarial Equivalent of 25% of the sum of a Player s Benefit Credits, and noting that [i]f a Player receives an early payment benefit, his monthly pension will be based upon 75% of the sum of his Benefit Credits under Section 4.1 at the time of the early payment benefit distribution (but 100% of any Benefit Credit increases that take effect after the early payment benefit is paid), with such remaining monthly pension being payable under Sections 4.3 and 4.4 of the Plan); 2/1/2005 Fax fr. M. Tatupu to C. Timpson (A79- A81) (demonstrating that Mr. Tatupu elected to receive a lump-sum early payment benefit). Plan records indicate that Mr. Tatupu honored the terms of the 1997 MSA and turned over one-third of his early payment 3

9 Case: Document: Page: 9 Date Filed: 06/08/2018 Entry ID: benefit to Ms. Garcia-Tatupu. See id. (A81) (demonstrating that Mr. Tatupu elected to receive a lump-sum early payment benefit ($104,771.01), and he asked the Plan to direct 1/3 of the amount ($34,771.01) to him in cash, and 2/3 of the amount ($70,000) to an IRA maintained by Aviva Life Insurance Company). Ms. Garcia-Tatupu has never contested that she received one-third of Mr. Tatupu s early payment benefit. Mr. Tatupu died on February 23, 2010 (Compl. 9 (A8)) at age 54, before receiving the remainder of his pension. At the time of his death, no benefits were payable under the Plan because (1) Mr. Tatupu had not elected to receive and was not receiving monthly pension benefits, and (2) he died without a surviving spouse or minor child. See generally Plan Doc. (ECF 14-3) at 28 (Article 7, describing scenarios in which the Plan will pay benefits following the death of a Player). In December 2011, nearly two years after Mr. Tatupu died, Ms. Garcia- Tatupu obtained a state court domestic relations order ( DRO ). She provided it to the Plan in January The DRO made no mention of the preexisting MSA, and it purported to award Ms. Garcia-Tatupu all of Mr. Tatupu s pension benefits and designate her as his surviving spouse. The DRO states, in relevant part: The Alternate Payee [Ms. Garcia-Tatupu] is hereby awarded 100% of the Player s accrued benefit under the Retirement Plan, based on the Player s Credited Seasons earned as of the date of this order and the terms of the Plan in effect as of the date of this order. The Alternate Payee will be treated as a participant in the Retirement Plan with respect to this percentage of the Player s accrued benefit, and may 4

10 Case: Document: Page: 10 Date Filed: 06/08/2018 Entry ID: elect the form in which benefits will be paid and the time they will commence according to the following rules. The Alternate Payee may elect the life only pension, life and contingent annuitant pension, life and 10-year certain pension, or life only pension with social security adjustment benefit option described in the Retirement Plan. If the Alternate Payee elects a life and 10-year certain pension benefit, she may delegate her spouse, parent, child, brother, sister or dependent as her beneficiary. However, if the Alternate Payee elects the life and contingent annuitant pension option, she may only delegate a child or dependant [sic] of the Player as her beneficiary. If the Alternate Payee die[s] prior to the commencement of benefits, no benefits will be payable with respect to the Alternate Payee s portion of the Player s accrued benefit. If the Alternate Payee is alive upon the Player s death, the Alternate Payee will be treated as the Player s surviving spouse for purposes of awarding death benefits with respect to the Player s remaining benefit under the Retirement Plan. This treatment will not remain in effect in the event the Player is married to another person at the time of his death. The Alternate Payee may elect that retirement benefits under the Retirement Plan begin as of the first day of any month following the date the Player attains age 55 (or on the Player s birthday, if that date i[s] the first of the month). If the Player earned a Credited Season under the Plan prior to the 1993 Plan Year, the Alternate Payee may elect that retirement benefits begin the first day of any month following the date the Player attains age 45. The Alternate Payee must notify the Plan s Administrative Offices of the distribution option she selects at least 30 days before the Alternate Payee wants her retirement benefits under the Retirement Plan to begin. 12/29/2011 Qualified Domestic Relations Order at 2-4 (A84- A86). In February 2012, the Retirement Board (the Plan s administrator) determined that the Plan could not honor the DRO as a qualified domestic relations order ( QDRO ) for a variety of reasons, including that it required the Plan to 5

11 Case: Document: Page: 11 Date Filed: 06/08/2018 Entry ID: provide increased benefits in violation of ERISA. See generally 4/5/2012 Ltr. fr. S. Gaunt to L. Garcia-Tatupu (A90- A92). Ms. Garcia-Tatupu appealed that decision as she was entitled to do, and after further review the Retirement Board affirmed its initial decision in August See generally 9/19/2012 Ltr. fr. S. Gaunt to L. Garcia-Tatupu (A94- A97). On October 5, 2012, Ms. Garcia-Tatupu secured an additional state court order stating that the 2011 DRO was hereby ordered nunc pro tunc to September 24, 1997, the date of the 1997 MSA. 10/5/2012 Order (A99). Ms. Garcia-Tatupu then presented the nunc pro tunc order to the Plan. After reconsidering Ms. Garcia-Tatupu s arguments in light of that nunc pro tunc order, the Retirement Board determined once again in November 2012 that the Plan could not honor the 2011 DRO as a QDRO. See generally 12/20/2012 Ltr. fr. S. Gaunt to L. Garcia- Tatupu (A101- A104). On June 16, 2016, Ms. Garcia-Tatupu filed a 12-sentence complaint alleging that the Retirement Board wrongfully denied her pension benefits that she was entitled to following Mr. Tatupu s death. Compl. 13 (A9). The Plan moved to dismiss the complaint for failure to state a claim. On April 18, 2017, the District Court denied the Plan s motion to dismiss, but in doing so it narrowed the case considerably. The District Court analyzed the law on post mortem QDROs and held that Ms. Garcia-Tatupu s entitlement to 6

12 Case: Document: Page: 12 Date Filed: 06/08/2018 Entry ID: benefits turned on whether the 1997 MSA granted her rights to Mr. Tatupu s pension benefits. Garcia-Tatupu v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 249 F. Supp. 3d 570, 582 (D. Mass. 2017) ( If the Plaintiff was granted rights to Tatupu s pension under her divorce decree, in accordance with Files a postmortem court order that complies with ERISA s statutory requirements does not create new benefits not otherwise payable. ) (following Samaroo v. Samaroo, 193 F.3d 185 (3d Cir. 1999), and Files v. ExxonMobil Pension Plan, 428 F.3d 478 (3d Cir. 2005)). Because the District Court did not have a copy of the MSA, it left the answer to that dispositive question for future briefing. Id. On April 28, 2017, Ms. Garcia-Tatupu produced a copy of the 1997 MSA to counsel for the Plan, and on June 26, 2017 she filed a motion to reverse the Plan s decision. The entire legal argument supporting the motion spanned eight sentences; it did not cite or discuss the relevant provisions of ERISA; and it did not cite or discuss any relevant legal authority, including the QDRO cases that the District Court highlighted in its April 18, 2017 memorandum decision. See Pl. s Mem. of Law in Support of Mot. to Reverse the Decision Denying Retirement Benefits at 3-4 (A44- A45). On July 11, 2017, the Plan opposed Ms. Garcia-Tatupu s motion. The Plan s opposition analyzed the relevant provisions of ERISA, the material terms of the MSA and the state court DROs, and the legal authority supporting the Plan s 7

13 Case: Document: Page: 13 Date Filed: 06/08/2018 Entry ID: position. See generally Def. s Combined Response in Opp. to Pl. s Mot. to Reverse the Decision Denying Retirement Benefits and Mot. for Sum. Jgmt. (A47- A59). On August 28, 2017, Ms. Garcia-Tatupu filed a short reply brief that, like her opening brief, did not mention ERISA or cite any legal authority whatsoever. See generally Pl. s Reply to the Def. s Opp. to the Mot. to Reverse the Decision Denying Retirement Benefits (A105- A107). On November 1, 2017, the District Court denied Ms. Garcia-Tatupu s motion and entered judgment for the Plan. The court held that the 2011 DRO could not be enforced because it has the effect of increasing benefits beyond what was contemplated by the [P]lan in violation of ERISA (A135). The court found that the provision awarding Ms. Garcia-Tatupu 100% of Mr. Tatupu s accrued pension benefits plainly constituted an increased benefit, [g]iven that the [1997] Marital Separation Agreement only provides Ms. Garcia-Tatupu with one-third of Mosiula Tatupu s plan benefits, and especially given the previous payout of the early lump-sum payment (A147). After examining several thoughtfully reasoned analogous cases from courts in the Third Circuit (A147), the court observed that [b]y subsequently purporting to give Ms. Garcia-Tatupu survivorship rights, thus allowing her to assert a separate interest in the Plan, the state post mortem and nunc pro tunc domestic relations orders have the effect of altering rights under the Marital Separation Agreement 8

14 Case: Document: Page: 14 Date Filed: 06/08/2018 Entry ID: and providing benefits that were not otherwise payable upon Mosiula Tatupu s death. This is an increased benefit under 29 U.S.C. 1056(d)(3)(D); therefore, the post mortem state domestic relations orders do not provide an enforceable Qualified Domestic Relations Order beyond the terms of the Marital Separation Agreement. (A154) 9

15 Case: Document: Page: 15 Date Filed: 06/08/2018 Entry ID: SUMMARY OF THE ARGUMENT 1. Ms. Garcia-Tatupu s briefing before the District Court was devoid of any reasoned factual or legal analysis. The briefing did not cite much less analyze the relevant federal statute or any applicable legal authority. The appeal brief that Ms. Garcia-Tatupu filed with this Court is no different. Given Ms. Garcia-Tatupu s failure to squarely and distinctly address the relevant factual and legal issues in a case of first impression, the Court should hold that Ms. Garcia- Tatupu has waived her arguments, and affirm the District Court s decision for that reason alone. 2. Ms. Garcia-Tatupu obtained the 2011 DRO two years after Mr. Tatupu s death, at a time when no benefits were payable under the terms of the Plan. Moreover, the DRO purported to substantially increase the amount of benefits that Ms. Garcia-Tatupu would have been entitled to under the MSA by (i) giving her a fully separate, 100% interest in Mr. Tatupu s accrued pension benefits, and (ii) designating her as Mr. Tatupu s surviving spouse. For these reasons, the 2011 DRO required the Plan to provide increased benefits in violation of section 206(d)(3)(D)(ii) of ERISA, 29 U.S.C. 1056(d)(3)(D)(ii), and the District Court correctly determined that it was unenforceable against the Plan as a matter of federal law. 10

16 Case: Document: Page: 16 Date Filed: 06/08/2018 Entry ID: ARGUMENT I. Ms. Garcia-Tatupu Waived All Of Her Arguments On Appeal After Failing To Squarely Raise Them Before The District Court. The law in this circuit is crystalline: a litigant s failure to explicitly raise an issue before the district court forecloses that party from raising the issue for the first time on appeal. This rule applies with equal force to situations where a plaintiff properly raises an issue in [her] complaint, but then fails to adequately address it as part of [her] summary judgment argument. Rocafort v. IBM Corp., 334 F.3d 115, 121 (1st Cir. 2003) (quoting Boston Beer Co. Ltd. P ship v. Slesar Bros. Brewing Co., Inc., 9 F.3d 175, 180 (1st Cir. 1993)). See also McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) ( It is hornbook law that theories not raised squarely in the district court cannot be surfaced for the first time on appeal. ); Campos-Orrego v. Rivera, 175 F.3d 89, 95 (1st Cir. 1999) ( We have reiterated, with a regularity bordering on the echolalic, that a party s failure to advance an issue in the nisi prius court ordinarily bars consideration of that issue on appellate review. ). To adequately address an issue, Rocafort, 334 F.3d at 121, a party has a duty to incorporate all relevant arguments in the papers that directly address a pending motion. This duty includes analyzing relevant statutes and presenting applicable legal authority. It also includes explaining arguments squarely and distinctly. These requirements are even more incumbent when, as 11

17 Case: Document: Page: 17 Date Filed: 06/08/2018 Entry ID: here, a party urges the court to adopt new legal principles. Id. at 122 (internal citations and quotation marks omitted). Under the crystalline law of this Circuit, id. at 121, Ms. Garcia-Tatupu waived whatever arguments she intends to present in this appeal. Even after the District Court delineated Ms. Garcia-Tatupu s only viable theory of relief, the arguments that Ms. Garcia-Tatupu presented in her summary judgment briefing were but the merest of skeletons. McCoy, 950 F.2d at 22. She failed to provide any analysis of the statutory scheme, and she failed to present any legal authority directly supporting [her] thesis. Id. In fact, throughout all of Ms. Garcia- Tatupu s briefing before the District Court, she never once cited ERISA the comprehensive and reticulated statute that governs the Plan, Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361 (1980) and she never cited a single judicial decision supporting her claim. Ms. Garcia-Tatupu s appeal brief is equally devoid of any substantive argument or legal analysis. To put it mildly: Ms. Garcia-Tatupu utterly failed in her affirmative responsibility to put [her] best foot forward in an effort to present some legal theory that will support her claim. McCoy, 950 F.2d at 23. Consequently, the Court should hold that she has waived her arguments. See id. at 22 (holding that the appellant waived an argument that, when presented to the district court, comprised two sentences and one citation (to a tangentially relevant case) ); 12

18 Case: Document: Page: 18 Date Filed: 06/08/2018 Entry ID: CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1527 (1st Cir. 1996) (holding that appellant waived arguments that, when asserted at the summary judgment stage, consisted of a mere five sentences and one citation ). II. The 2011 Domestic Relations Order Is Unenforceable Because It Would Require The Plan To Provide Increased Benefits In Violation Of ERISA. A. Under ERISA, a QDRO cannot require a pension plan to provide increased benefits. Pension benefits are typically subject to ERISA s anti-alienation provision, meaning they belong exclusively to the participant who earned them and may not be assigned or alienated. 29 U.S.C. 1056(d)(1). QDROs are an exception to this rule. 29 U.S.C. 1056(d)(3)(A). A QDRO recognizes the existence of an alternate payee s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to the participant under a plan. 29 U.S.C. 1056(d)(3)(B)(i). [A]ny judgment, decree, or order (including approval of a property settlement agreement) that relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant can be a QDRO, 29 U.S.C. 1056(d)(3)(B)(ii), but only if it meets certain statutory requirements. One such requirement is that the order must not require the plan to provide increased benefits (determined on the basis of actuarial value). 29 U.S.C. 1056(d)(3)(D)(ii) (emphasis added). 13

19 Case: Document: Page: 19 Date Filed: 06/08/2018 Entry ID: B. This Court should follow Samaroo and Files, where the Third Circuit considered whether post mortem domestic relations orders similar to the one at issue here required a plan to provide increased benefits. The First Circuit has never addressed whether and under what circumstances post mortem domestic relations orders such as the one that Ms. Garcia-Tatupu secured can be QDROs. The Third Circuit has, in a series of cases including Samaroo v. Samaroo, 193 F.3d 185 (3d Cir. 1999), and Files v. ExxonMobil Pension Plan, 428 F.3d 478 (3d Cir. 2005). The District Court followed the logic of those thoughtfully reasoned analogous cases (A147). This Court should do the same. In Samaroo, the divorce decree between the parties provided that the exhusband would pay the ex-wife a portion of his pension benefits: Husband has a vested pension having a present value, if husband were to retire at this time, of $1, per month. At the time of husband s retirement and receipt of his pension he agrees to pay to wife one half of said monthly amount. Samaroo, 193 F.3d at 187. The divorce decree said nothing, however, about the ex-wife s survivor rights. The ex-husband died three years after the parties divorced, and before he could receive retirement benefits. Because there was no surviving spouse, there was no pre-retirement survivor s annuity under the terms of the pension plan (the ex-husband s pension plan provided a pre-retirement survivor s annuity, but only to a surviving spouse). To change that result, the ex- 14

20 Case: Document: Page: 20 Date Filed: 06/08/2018 Entry ID: wife obtained a nunc pro tunc amendment to the divorce decree purportedly giving her a 50% pre-retirement survivor s annuity. The district court conclude[d] that entitlement to a survivor s annuity in respect of Samaroo had to be determined as of the day Samaroo died, and that the amended divorce decree represented an attempt to obtain increased benefits from the Plan in violation of ERISA, 29 U.S.C. 1056(d)(3)(D)(ii). Id. at 190. The Third Circuit affirmed that decision. In doing so, it rejected the contention that disregarding the nunc pro tunc state court order unfairly deprived the husband (and, by extension, the ex-wife herself) of receiving any retirement benefits from the plan: [S]uccessful operation of a defined benefit plan requires that the plan s liabilities be ascertainable as of particular dates. The annuity provisions of a defined benefit plan are a sort of insurance, based on actuarial calculations predicting the future demands on the plan. Some annuity participants will die without ever receiving a payment and some participants will receive payments far in excess of the value of their contributions. The fact that some participants die without a surviving spouse to qualify for benefits is not an unfair forfeiture, as Robichaud contends, but rather part of the ordinary workings of an insurance plan. Allowing the insured to change the operative facts after he has lost the gamble would wreak actuarial havoc on administration of the Plan. Besides, it is inaccurate to say that Samaroo was deprived of any benefit from the Plan. Until he died, Samaroo enjoyed the right to remarry and thereby bestow on a new wife the survivorship rights under his preretirement annuity. Alternatively, after the enactment of the Retirement Equity Act, he could have entered a QDRO conveying the rights to Robichaud. (But if Samaroo had entered a QDRO making Robichaud his surviving spouse under the Plan, he would 15

21 Case: Document: Page: 21 Date Filed: 06/08/2018 Entry ID: have lost the right to confer the same survivorship benefits on a new wife. See 29 U.S.C. 1056(d)(3)(F) (to the extent QDRO designates former spouse as participant s surviving spouse, current spouse shall not be treated as spouse for purposes of plan)). When Samaroo died without remarrying or naming Robichaud as alternate payee of the survivor s rights, the right to dispose of the benefits lapsed. Allowing Samaroo (or his estate) to preserve the right to confer the benefits on a new wife as long as he was alive and had the possibility of remarrying, and then to designate Robichaud as the surviving spouse after his death, is allowing him to have his cake and eat it, too. Id. at The Third Circuit revisited its Samaroo decision in Files v. ExxonMobil Pension Plan, 428 F.3d 478 (3d Cir. 2005). Like Samaroo, Files involved an exwife s attempt to secure survivor benefits via a nunc pro tunc order that purported to amend a property settlement agreement previously executed between the exwife and her former husband. Unlike Samaroo, however, the Third Circuit held that the ex-wife in Files was entitled to benefits. The difference, the Third Circuit explained, was that in Files the preexisting divorce decree gave the ex-wife a separate, enforceable interest in her ex-husband s pension benefits: The operative distinction between the facts here versus Samaroo is the type of benefit awarded to the ex-wives in the property settlements within the respective divorce decrees. First, in Samaroo, we determined that the decree evidenced an intention to divide only property rights existing at the time of the divorce, not an intention to give the ex-wife an interest in post-divorce earnings. Second, we concluded that the decree only gave the ex-wife an entitlement to benefit payments when they were paid to the participant rather than conveying to her a portion of... [ex-husband s] interest in the Plan. In contrast, the PSA here conferred upon Files a fifty percent interest in Rutyna s pension; in other words conveying to her a portion of... 16

22 Case: Document: Page: 22 Date Filed: 06/08/2018 Entry ID: [husband s] interest in the Plan not limited to property rights existing as of the date of the divorce. There was no question that Files could have enforced her right to receive that fifty percent interest on or after Rutyna s fiftieth birthday (the date the pension became payable), separate and apart from Rutyna s election regarding the remaining fifty percent. We conclude that Files possessed a separate interest in fifty percent of Rutyna s pension as of the July 16, 1998 PSA. Files, 428 F.3d at 488. See id. at 489 (explaining that Ms. Files simply seeks to enforce an interest created prior to Rutyna s death ). C. Because the 1997 Marital Separation Agreement did not give Ms. Garcia-Tatupu survivor rights or a separate interest in Mr. Tatupu s pension benefits, her post mortem domestic relations order would require the Plan to pay increased benefits. This case is essentially on all fours with Samaroo, and thus the DROs that Ms. Garcia-Tatupu obtained are unenforceable as a matter of federal law for the same reasons the Third Circuit highlighted in Files. The 1997 MSA did not give Ms. Garcia-Tatupu a separate interest in, or any independent right to receive, Plan benefits prior to Mr. Tatupu s death. The MSA plainly tied her rights to Mr. Tatupu s personal election and receipt of his own pension benefits. Under the 1997 MSA, Mr. Tatupu agreed to turn over to Ms. Garcia-Tatupu one-third of the amount of any pension benefits that he received if and when he elected to receive them. 9/24/1997 MSA at 10 (A72). Mr. Tatupu retained the exclusive right to decide, if, when, and how he wishe[d] to receive said benefits. Id. Mr. Tatupu retained the sole right to choose what payment option he desire[d] without regard to the desire and/or wishes of Ms. Garcia- 17

23 Case: Document: Page: 23 Date Filed: 06/08/2018 Entry ID: Tatupu. And Mr. Tatupu s election would exclusively govern the time amount and manner of payments to Ms. Garcia-Tatupu. Id. As the District Court recognized, Ms. Garcia-Tatupu s and Mr. Tatupu s arrangement was analogous to what is commonly referred to as a shared payment approach. In that scenario, a participant and his ex-spouse can obtain a DRO which divides the pension benefits by split[ting] the actual benefit payments made with respect to a participant under the plan to give the alternate payee part of each payment. Einhorn v. McCafferty, No. 5:14-CV-06924, 2016 WL , at *2 (E.D. Pa. Mar. 31, 2016) (citing U.S. Dep t of Labor, Emp. Benefits Sec. Admin., QDROs: The Division of Retirement Benefits through Qualified Domestic Relations Orders (2014) at 29-30, 1 and Samaroo, 193 F.3d at 187, n.2) (internal quotation marks omitted; alteration in original). But even if the 1997 MSA had directed the Plan to divide Mr. Tatupu s payments between him and Ms. Garcia- Tatupu (and it did not), if Mr. Tatupu died before receiving his pension as he did Ms. Garcia-Tatupu would receive no benefits. See id. at *2 ( [The exhusband] died before he began receiving retirement benefits, which means that if 1 Available at (last visited June 8, 2018). 18

24 Case: Document: Page: 24 Date Filed: 06/08/2018 Entry ID: [the ex-wife] had been given only a shared payment interest, she would not have been entitled to any benefits. ). Ms. Garcia-Tatupu is not entitled to benefits as Mr. Tatupu s surviving spouse because the 1997 MSA did not designate her as the surviving spouse of Mr. Tatupu. Ms. Garcia-Tatupu argues otherwise, but the MSA does not contain the words surviving spouse, much less specifically designate her as Mr. Tatupu s surviving spouse, as it could have. See id. at *6 ( To give a former spouse the right to be treated as a pension participant s surviving spouse, the domestic relations order must meet not only the standard QDRO specificity requirements, but the order must also specifically assign surviving spouse rights to the former spouse. ) (quoting Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1099 & n.9 (9th Cir. 2006)); Samaroo, 193 F.3d at 187, n.2 (noting that a divorce decree that is silent on survivor rights conveys no such rights because Congress has required QDROs to be quite specific in order to convey ERISA benefits ). The MSA does state that [s]aid benefits shall continue to be payable to Linnea Garcia-Tatupu subsequent to the death of Mosiula F. Tatupu, if the plan so provides, and if she survives Mosiula F. Tatupu. 9/24/1997 MSA at 10 (A72) (emphasis added). But this means that Ms. Garcia-Tatupu would continue to receive one-third of the benefits that Mr. Tatupu elected to and did receive, and 19

25 Case: Document: Page: 25 Date Filed: 06/08/2018 Entry ID: even then only if the plan so provides. If benefits were never paid to Tatupu (as it so happened), or if the Plan provided that the form of benefits elected by Tatupu would not survive him (e.g., he elected a life-only pension), then under the terms of the MSA Ms. Garcia-Tatupu would be entitled to nothing following Mr. Tatupu s death. By ostensibly requiring the Plan to provide Ms. Garcia-Tatupu with 100% of the value of Mr. Tatupu s accrued pension benefits in addition to survivor benefits, the post mortem DRO requires the Plan to provide increased benefits, and it violates federal law. Samaroo, 193 F.3d at Ms. Garcia-Tatupu obtained the DRO two years after Mr. Tatupu died. At that point, the Plan had already determined that no benefits were payable as a result of Mr. Tatupu s death, and it had closed the book on its pension liabilities with respect to him. Further, if Ms. Garcia-Tatupu ever had a right to Mr. Tatupu s pension benefits, that right was limited by the express terms of the 1997 MSA to one-third of the benefits that Mr. Tatupu might receive not 100% of his accrued benefits, and not any survivor benefits unless the Plan otherwise permitted them. That is the bargain Mr. Tatupu and Ms. Garcia-Tatupu struck; if they intended to create rights different from those outlined in the 1997 MSA, they easily could have. They did not, and Ms. Garcia- Tatupu expressly waived her right to receive anything more or different. 20

26 Case: Document: Page: 26 Date Filed: 06/08/2018 Entry ID: The DRO that Ms. Garcia-Tatupu obtained is nothing short of an attempt to rewrite settled history. The District Court noted that Congress sought to avoid the mischief evident in this case when a state law judge enters an order at best inattentive to and at worst in conscious disregard of ERISA plan provisions. Such orders are treated as without force as a matter of federal law in order to assure uniformity in the regulation and administration of the nation s pension system (A144). Ms. Garcia-Tatupu has never attempted to explain how the posthumous DRO that she obtained fits within the ERISA framework. Nor does she consider the actuarial havoc that would ensue if the Plan s liabilities could not be ascertainable as of particular dates, Samaroo, 193 F.3d at 190, such as the date of a participant s death. CONCLUSION The District Court s judgment should be affirmed. 21

27 Case: Document: Page: 27 Date Filed: 06/08/2018 Entry ID: RULE 32(g)(1) CERTIFICATE OF COMPLIANCE 1. This document complies with the type-volume limit of Fed. R. App. P. 32(a)(7)(B) because, excluding the parts of the document exempted by the Fed. R. App. P. 32(f), this document contains 5,090 words. 2. This document complies with the typeface requirements of Fed. R App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Times New Roman 14 point. Michael L. Junk Counsel for Appellees 22

28 Case: Document: Page: 28 Date Filed: 06/08/2018 Entry ID: CERTIFICATE OF SERVICE I hereby certify that on June 8, 2018, I electronically filed the foregoing document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. I certify that the following parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system: Edward J. McCormick, III McCormick & Maitland 195 Main Street, Suite Six Franklin, MA ejmccormick3@verizon.net Michael L. Junk Counsel for Appellees 23