honour's life insurance benefits and retirement benefits are different and they have different purposes and for this reason we ask this court to reverse the lower court's decision and find that st which governs the t s p account she is not preempt the state's post suit saying that if asking for a declaratory judgment saying that she retained the proceeds chili violating the divorce decree and pull that just a little bit yes and the court below dismissed the state's case finding that  preempts the post just a recent case however post this recent suits in this case do not contravene a clear and substantial federal interest you for a state law can be preempted and it must be the manifest and clear purpose of congress that there's preemption in addition another layer here is that we're dealing with an area of state family law there's actually a presumption against preemption in areas such as this and say family law is not preempted unless it does major your honor however helman is different because hellman was dealing with a federal life insurance case in so in that's what i want to get to see your argument is that st involves retirement benefits and the three other supreme court cases that the district court relied on involve life insurance and that unlike life insurance the congress would have big concern solely in st with protecting the the employees benefits during his or her lifetime correct a below said the purpose is to take care of the secondary beneficiary but there's nothing that we're aware of that says that this was actually congress's purpose in acting st and if that was congress purpose then congress would have made some allowance that said they're going to be some funds left over for the secondary beneficiary and we're going to make sure they get them there's nothing in the statutory scheme that shows that about the order of precedence the order of the priority it's laid out in st isn't that on it's based on the text of st a pretty clear evidence that congress was concerned not just with protecting the worker during his or her lifetime but tell the government this is where the money should go if there are any problems it gives them that it speaks to the administrative convenience with giving them clear direction about where to actually distribute the money but it does not mean that congress wanted to make sure that these secondary beneficiaries both received and were able to make use of these funds because again with the retirement fund there's no guarantee that you're even going to have benefits at the end of it someone puts  money and then when they retire a they take benefits out and hopefully that last their whole lifetime but if it doesn't then there's nothing left at the end and the secondary beneficiary doesn't get anything and congress made no provision for that secondary beneficiary to make another federal statutory scheme that governs private retirement benefit accounts and in cases that talk about a risk that they talk about administrative efficiency and giving people direction about what to do and so we are now a days into a recession because we have we're dealing with st say here which is also a retirement account and the court below didn't want to look towards the rest and looked instead towards these life insurance accounts but this creates a strange an arbitrary distinction where the government says we're going to regulate private insurance accounts this way and we're going to say that you could have post private insurance are private retirement benefits accounts but you can't in government retirement accounts and there seems to be no reason for that distinction other than core court started to rely on these insurance cases instead of relying on the arrest of cases and it's error to rely on these insurance cases because in an insurance case what you have is you have someone who purchases this insurance plan specifically to take care of their their beneficiaries and if you go back and you look back far enough some of these insurance plans go back to world war two congress was concerned about servicemen morale so and these servicemen are you know in combat and they can't get commercial life insurance but they still have families they want to take care of so congress said ok we're going to create this life insurance plan for you to improve your morale and to make  have this whole scheme which is that we set this this insurance account up specifically for this residual beneficiary in a retirement account you don't do that you don't set up your retirement account to take care of your heirs you set up your retirement account to take care of yourself and so if you're a lying on these other insurance cases which are are worried specifically about these contingent beneficiaries it's  own retirement and what happens in the money if they don't draw it all out yes your honor they are concerned york obviously concerned about the money if you don't draw it all out but you're not husbanding the money or not account to here isn't there yes your honor however there's still nothing in their retirement account that says that there's going to be a specific amount that's going to be left over for your heirs after you pass  away counsel what's left over it appears to me in looking at what the of the district court did below that he said that under the thrift savings plan that that would that not only does it belong to the person who had by court degree decree not be entitled to it but he goes further and says that that that right is preempted we are going about preemption here just like they did cigna and the mice were you're in the wiser cases isn't that what the trial court did below your honor we guess we are arguing about preemption however when alan let me go a little bit further because you've got three separate so your honor the language at the court below was looking out was the statutory order of precedence however it's error to simply say this statute has the same purpose as if there's as these other statutes just because it has a statutory order of precedence is clear that the bar is higher than that you have to find the clear and manifest purpose of congress and a similar scheme that says ok if we have money left over this is where it goes doesn't mean what you have in this case is if you have a a pot of money and that on his desk it goes to the ex wife who had voluntarily a one hundred court decree and state court waived any interest in that and what the district court did below it said no state court order has no effect because this money is preempted and goes to the named beneficiary that it never changed now the essence of the way i read it what the trial court did is take away any action that the a state or children whoever of the deceased man claiming and unjust enrichment claim and state court based on the waiver that's clearly in the in the court and only way that can be done is if we say yes it is totally preempted right that is correct your honor ok now how do you get around i mean i've been hearing of all how do you get around that clear language so here as to the why this specifically there's nothing in the statute specifically that says that this can't be brought your honor there's nothing that prevents the t s p from distributing these funds to ms diamond and us bringing this claim directly against ms no one else get at that money period and that's in essence what's happened it's didn't i give you your client the opportunity to say wait a minute you know you're saying court it's if it is preempted you and and to be clear the court below found it was preempted also by looking at other statutes so if you're going to rely on the insurance statutes then it then it might be preempted they might think about the insurance  right so your honor if you're just looking at st so just looking at the statute itself there's nothing in the statute that says that we that the state cannot bring a claim against ms diamond and it's not our burden to show that that that there's a purpose in there that's contrary to that it is the other side's burden to show that there's a purpose in there that would be contravened and thus that our suit would be preempted there's nothing in the statute itself that says that we can't bring this suit and that's why it's not preempted and i'd like to reserve the rest of my time for abo appellee first of all the to the state that the statute itself does not say anything about congressional intent as far as preemption is not correct to the statute itself does have a provision right at the beginning of the statutory order of precedence that ours recovery by any other person wants payments made that to me can't be said any clear that's in the st a statute that particular language does not appear in the insurance per statutes  states that payment bars recovery by any other person that's at the beginning of the statutory order of press eyes though so they bet he recovers here it doesn't prohibit betty from a convenience and that is we're just going to distribute according to the documents we have on who the designated beneficiaries are after that have at yeah in other words like in the hellman case case i should but let me get back to this you were addressing ms francis argument that there is nothing in this statute that indicates there should be preemption and i 've told you a different view now is there any further language that suggests preemption in th statute that i can think of your honor i think it we have the statutory order of precedence which in of itself is i mean if there are two purposes as q this question going along were drugged murphy is i have a thrift savings plan and i need to buy a new home and of course the lenders warn collateral and i give them a lien against my money that i have and i die now the all a contract are written in there with thing like this is the limit of what i read to the government has to pay the money to the designated year and they don't they're not required to do any more than that so my wife is the beneficiary of my thrift savings plan and she gets the money if it's preempted then the creditor can't come and collect from that source of bonding the repay my debt sample but i'm looking at it from and  just don't believe because preemption under the law has to be spelled up actual quick clear and convincing in the that presley stated there can be a constructive preemption which i assume much what we're arguing about here what in essence that would do if you carried it to the point where it says it's absolutely preempted that creditor just loan me the money for buy my new house  gratuitous because they can't collect it is that your position that is my position your honor i don't think it was if it if that's our job it's preempted where in that statute unless you say it's preempted that a state court where i have entered it where i have a document that says i have no interest in that were does it preempt then the right of the the children of the deceased so to say to go against the person who the money was paid to the essays out of it unless it's clearly p honor i think that's consistent with the hellman case certainly him and i understand that we're dealing with a different statute here but tillman certainly provides instruction on the statutory scheme that is a basically identical in congressional intent and also on policy considerations what would be the purpose of establishing a strict statutory construction you know a statutory precedence if it's subject to state lawsuit claims after the distribution is made but this is not only a state lawsuit claim it's one in which the beneficiary damed has waived in a state court any right title or interest to that money yes that's why one of the the arguments that's made by the children in this case is that there was a waiver that's subject to debate as well that didn't help them and there are what i'm trying to get sure that that's where we are under under that statute that this claim that preempted for ever and the children in the state have even though they may go back to court and bring an action it's preempted i think what the court has is and i keep going back to the hilman case and the cases that preceded it including the ridge glia it and instruction in that case just like i'm suggesting this court should find instruction in the case of of hillman not only for the congressional inten but also the policy considerations we're dealing with identical statutory schemes and and how can you say that a insurance and a federal insurance plan is that much different from a retirement type plan that you would disregard case law dealing with insurance type statutes but that have identical statutory orders of precedents and so that's what what i'm saying is that what are the policy considerations the policy considerations proposition that a beneficiary be automatically transformed to a defendant that's what would happen in this case it would turn in to a melee so to speak of you we've got of so a real question here yes that goes a long way and just like the hilman and the winner case it is absolutely allowing errors and it's telling the state of utah that in this instance even though you got a divorce decree the already says i waive any right i don't and you're saying that has absolutely no you in federal court we really have exactly the same thing that's that's that's my concern i think we do we how it's good i want to hear why you think we do because there's always the consideration in a retirement plan as to what happens if you don't use all of the funds during your lifetime where do those go that that that's what the statutory order of precedence is that's what the beneficiary designation is for we see that in numerous other accounts in other accounts bank accounts ira accounts they allow and provide for naming a beneficiary upon the death of  owner of the account those are subject to state law claims that are not that there is no statutory scheme that sets forth a statutory order precedence like in this case u addresses those but what are the considerations there is a consideration similar to a an insurance policy that you would name you would want to take care talking about a and identical order of precedence as a and that all with all the policy considerations and all of the congressional intent that's discussed in that in the hilman case how do we not apply that in this case here it's all of those are our instructive to this court but i do agree that this is a new statute not a new statute but it's a statute where this issue hasn't been addressed yet to the cases that we've cited in our brief including his scared zero which dealt with the retirement type  specifically prohibits attachment so then we're not talking about wives and children and domestic law about something different we're talking about somebody who's owed a debt and they want to go after retirement account or whether it's an insurance policy right right through the language attachment in his carried out is much broader in the limited statute here yes and it makes me think that that you could have a post distribution agreement the estate in bedi agree ok you got funds from the d federal government now turn him over to us pursuant to our green it or pursuant to the decree right what's wrong with that i know you're not agreeing with me but no i don't agree i think that going back to hillman we're dealing with the honor just in conclusion ms diamond decided what she wanted to deal with these funds if they were ever distributed to her in the divorce decree she said they belong to crack and all the estate is asking is  for an order from the district court wiring ms diamond to follow through with that commitment and for that reason we ask this court to reverse it i ask you a question about what mr c m was telling my colleague judge murphy and that is on the anti alienation clause in st i thought that one of the two independent grounds that the district court found and it until now i thought he was arguing was the similar clauses have come up before in different cases especially interesting cases and courts have found and actually the kennedy court and the supreme court in kennedy discussed this and found that and say alienation clauses such as  s are not pleasurable in cases of divorce decree waivers for one thing because it's difficult to assign something back to yourself and also just because of the unique  unique circumstances revolve around divorce decrees that exact argument made ridgway in wisdom and rejected your honor it might have been but in in kennedy that argument is made actually the supreme court found that argument persuasive