FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE W. ANDERSON, 

Plaintiff-Appellant,

v.

SUBURBAN TEAMSTERS OF NORTHERN No. 07-15532

ILLINOIS PENSION FUND BOARD OF

D.C. No. TRUSTEES, in its capacity as  CV-05-01377-DGC Administrator of the Suburban

Teamsters of Northern Illinois OPINION

Pension Plan; SUBURBAN

TEAMSTERS OF NORTHERN ILLINOIS

PENSION PLAN,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

September 14, 2009—San Francisco, California

Filed December 1, 2009

Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges,

and Suzanne B. Conlon,* District Judge.

Opinion by Judge Trott

*The Honorable Suzanne B. Conlon, United States District Judge for

the Northern District of Illinois, sitting by designation. 

15639
COUNSEL

Andrea A. Ambrose and Colin B. Vandell, Latham & Watkins

LLP, Los Angeles, California, for the plaintiff/appellant. 

Barry G. Collins, Asher, Gittler, Greenfield & D’Alba, Ltd.,

Chicago, Illinois, for the defendants/appellees.

OPINION

TROTT, Circuit Judge:

Bruce Anderson appeals the district court’s determination,

following a bench trial, that the Suburban Teamsters of Northern Illinois Pension Fund Board of Trustees (“the Trustees”)

15642 ANDERSON v. SUBURBAN TEAMSTERS
did not abuse their discretion in partially denying his claim for

disability benefits pursuant to a plan maintained under the

Employee Retirement Income Security Act (“ERISA”). In the

past, the Plan specified one way to calculate disability benefits. Before Anderson applied for benefits, the Plan was

amended to change the formula for calculating benefits

depending on the date the employee became disabled. Anderson claims the Trustees improperly determined the date of his

disability, resulting in a lower benefit. Anderson claims also

that if the Trustees appropriately determined the date of his

disability, then the 1999 amendment violates ERISA’s anticutback rule. Finally, Anderson claims the Trustees improperly applied a Qualified Domestic Relations Order

(“QDRO”), allocating half of his pre-divorce disability benefits to his ex-wife. We affirm.

I

BACKGROUND

For much of his life, Anderson worked as a mechanic. In

July 1996, Anderson suffered an on-the-job knee injury that

required surgery. In December 2006, Anderson was diagnosed with osteoarthritis. In addition to his bad knee, Anderson suffers from degenerative disk disease, carpal tunnel

syndrome, tinnitus, depression, and bone spurs in his shoulders. 

Believing that he might be able to find a job that would

allow him to work despite his injury, Anderson went to school

from 1997 to 2001 and did not work. He earned a degree in

Business Administration and hoped to work in the computer

field. 

Anderson and his wife divorced in 1999. The QDRO

entered in the Andersons’ state court divorce proceeding provided that Anderson’s ex-wife was to receive the actuarial

equivalent of fifty percent of Anderson’s accrued pension as

ANDERSON v. SUBURBAN TEAMSTERS 15643
of February 25, 1999. The payments to Anderson’s ex-wife

were to begin “at her election following the Participant attaining his earliest retirement age as defined by the Plan.” 

Unable to find a job in the computer field, Anderson went

back to union employment in 2001. From June to October, he

worked fifty-one days as a truck driver. Finding himself

unable to continue to perform this work because of his pain,

Anderson stopped working and has not worked since. In

August 2003, Anderson applied to the Suburban Teamsters of

Northern Illinois Pension Fund (“the Fund”) for disability

benefits under its pension plan (“the Plan”). The applicable

version of the Plan at that time was the Plan as amended on

January 1, 1999 (“1999 Plan”). 

The Fund is a multi-employer benefit trust fund. Participating employers contribute to the Plan pursuant to various collective bargaining agreements. The Board of Trustees —

which administers the Plan — is made up of both employer

and employee representatives. 

The Plan provides for several different types of pensions.

For example, an employee might be eligible for a Normal

Retirement Pension under § 5.01, an Early Retirement Pension under § 5.02, a 30-Year Pension under § 5.03, or a “25

and Out” Pension under § 5.06. 

In addition to these types of pensions, Article 6 of the Plan

provides disability benefits — called a “disability retirement

pension” — for employees who become “totally and permanently disabled.” The Plan defines “totally and permanently

disabled” as follows: 

A Participant shall be considered totally and permanently disabled only if he suffers from a physical or

mental condition which will continue for a long and

indeterminate period of time and which will prevent

him from pursuing any and all gainful occupations

15644 ANDERSON v. SUBURBAN TEAMSTERS
and from performing any work for compensation or

benefit during that period of time. 

1999 Plan, § 6.03. 

The Plan calculates benefits based on Benefit Credits participants earn during their employment. Normally, an

employee receives Benefit Credits only for periods when the

employee actually works. However, before the Plan was

amended in 1999, employees were covered by the 1995 version of the Plan (“1995 Plan”). Under the 1995 Plan, if an

employee became disabled, 

[t]he amount of such Disability Retirement Benefit

shall be equal to 100% of the amount of Age Retirement Benefit to which the Participant would be entitled at his Normal Retirement Age, calculated as if

he remained in Covered Employment continuously

from the onset of his total and permanent disability

until his Normal Retirement Age, except that with

respect to a Participant whose Disability Retirement

Benefit becomes effective on or after April 1, 1977,

each payment prior to his Normal Retirement Age

shall be equal to 75% of such Age Retirement Benefit, increasing to 100% of such Age Retirement Benefit at the Participant’s Normal Retirement Age. 

1995 Plan, § 6.02 (emphasis added). Thus, the disabled

employee was allocated Benefit Credits for future years even

though the employee would not be working. 

The 1999 Plan, in contrast, contains two different ways to

calculate a disability benefit. If an employee became disabled

prior to May 1, 1998, the employee’s benefit would be determined using the same calculation described above: the

employee would receive extra Benefit Credits for years not

actually worked. 1999 Plan, § 6.02(b). 

ANDERSON v. SUBURBAN TEAMSTERS 15645
If, however, an employee became disabled after May 1,

1998, the disability benefit would be equal to “100% of the

amount of Age Retirement Benefit to which the Participant

would be entitled at his Normal Retirement Age, based on

Benefit Credits actually earned.” 1999 Plan, § 6.02(a)

(emphasis added). Under this formula, the employee would

not receive any extra Benefit Credits for future years of unemployment due to disability. 

Anderson claimed he was disabled as of June 1, 1997. The

Trustees, however, determined that Anderson was totally and

permanently disabled as of November 2001 and partially

denied his application. The Trustees informed Anderson they

could not “reconcile a disability date prior to November 2001

with the fact that you worked for a significant period from

June through October 2001.” Because Anderson became disabled after May 1, 1998, the Trustees applied § 6.02(a) of the

1999 Plan instead of § 6.02(b). Anderson’s disability benefit

was based only on those Benefit Credits he actually earned

while he was working. Anderson earned 11.3 Benefit Credits

before 1997 and 0.3 Benefit Credits in 2001. Based on this

number of Benefit Credits, the Trustees found that the amount

of Anderson’s disability benefit was $878.08 per month. This

amount consisted of $869.31 attributable to his pre-1997

employment, and $8.77 attributable to his 2001 employment.

The Trustees then applied Anderson’s QDRO to divide

Anderson’s portion and his ex-wife’s portion of his benefits.

They split the $869.31, which accrued while Anderson was

married, by fifty percent. Anderson was therefore entitled to

$434.66 (half of the amount attributable to his pre-divorce

employment) plus the $8.77 from his 2001 employment, for

a total monthly benefit of $443.43. 

Anderson appealed the partial denial of his claim, as well

as the QDRO reduction, but the Trustees came to the same

conclusion on appeal. Anderson then filed a complaint in the

Arizona District Court. After a bench trial, the district court

15646 ANDERSON v. SUBURBAN TEAMSTERS
entered judgment in favor of the Trustees. The court also

denied Anderson’s motion for a new trial. Anderson timely

appealed to this court. 

II

STANDARD OF REVIEW

We face first a threshold question: what standard of review

applies to the Trustees’ determination regarding the date of

disability and thus their decision partially to deny Anderson’s

application? The court will review de novo the district court’s

decision to apply an abuse of discretion standard to the Trustees’ decision. Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955, 962 (9th Cir. 2006) (en banc). 

When a court reviews an ERISA plan administrator’s decision to grant or deny benefits, de novo is “the default standard

of review.” Id. at 963. However, if the plan grants discretion

to the plan administrator “to determine eligibility for benefits

or to construe the terms of the plan,” the court reviews the

administrator’s decision for an abuse of discretion. Id. (quotation omitted). 

Even if a plan grants discretion to the administrator, the

standard of review shifts to de novo if the administrator

engages in “wholesale and flagrant violations of the procedural requirements of ERISA, and thus acts in utter disregard

of the underlying purpose of the plan as well.” Id. at 971.1

1

In Abatie, the plan administrator added a new reason on appeal for its

denial of the participant’s benefits such that the participant never had the

opportunity to respond to that reason for the denial. Id. at 961. Sitting en

banc, we concluded that error was not so flagrant as to preclude abuse of

discretion review. Id. at 972. As an example of “that rare class of cases”

in which a procedural violation crosses the line so as to warrant de novo

review, id., the court cited Blau v. Del Monte Corp., 748 F.2d 1348 (9th

Cir. 1984), abrogation on other grounds recognized by Dytrt v. Mtn.

ANDERSON v. SUBURBAN TEAMSTERS 15647
That is, de novo review is justified if the administrator’s decision was so plagued with errors and “so far outside the strictures of ERISA” that we cannot say the administrator actually

exercised discretion. Id. at 972. Most procedural errors do not

alter the abuse of discretion standard, but the court should

consider such errors when deciding whether the administrator

abused its discretion. Id.

The parties agree that the Plan grants discretion to the

Trustees. Therefore, unless the Trustees committed wholesale

and flagrant procedural violations, the court will review their

decision for an abuse of discretion. 

[1] The Trustees did not comply with all of ERISA’s procedural requirements.2

 ERISA provides that: 

States Tel. & Tel. Co., 921 F.2d 889 (9th Cir. 1990). In Blau, the ERISA

administrator kept the plan details secret from employees, provided no

claims procedure, and never gave employees in writing the details of the

plan: the administrator “ ‘failed to comply with virtually every applicable

mandate of ERISA.’ ” Abatie, 458 F.3d at 971 (quoting Blau, 748 F.2d at

1353). 

2ERISA plans established pursuant to collective bargaining agreements

are exempt from certain of ERISA’s claims procedures, including those

that Anderson alleges the Trustees violated in this case. See 29 C.F.R.

§ 2560.503-1(b)(6) (explaining that for certain plans established pursuant

to collective bargaining, certain of ERISA’s procedural regulations will

not apply if the collective bargaining agreement “sets forth or incorporates

by specific reference — (A) [p]rovisions concerning the filing of benefit

claims and the initial disposition of benefit claims, and (B) [a] grievance

and arbitration procedure to which adverse benefit determinations are subject.”). 

For two reasons, however, we assume the standard regulations apply.

First, the Trustees have not contended that the Plan falls under this exception. See Bard v. Boston Shipping Ass’n, 471 F.3d 229, 239 n.11 (1st Cir.

2006). Second, the record lacks the collective bargaining agreement under

which the Plan was established, so we cannot decide whether the agreement suffices to trigger the exemption. 

15648 ANDERSON v. SUBURBAN TEAMSTERS
In accordance with regulations of the Secretary,

every employee benefit plan shall — 

(1) provide adequate notice in writing to

any participant or beneficiary whose claim

for benefits under the plan has been denied,

setting forth the specific reasons for such

denial, written in a manner calculated to be

understood by the participant, and 

(2) afford a reasonable opportunity to any

participant whose claim for benefits has

been denied for a full and fair review by the

appropriate named fiduciary of the decision

denying the claim. 

29 U.S.C. § 1133. Pursuant to § 1133, the Secretary promulgated 29 C.F.R. § 2560.503-1(h)(3)(ii), which states that a

plan must provide for a review of disability benefit determinations “conducted by an appropriate named fiduciary of the

plan who is neither the individual who made the adverse benefit determination . . . nor the subordinate of such individual.”

As the express terms of the Plan provided for them to do, the

Trustees decided both Anderson’s initial application and his

appeal of that decision. 

[2] This procedural violation, however, was not so egregious as to fall into “that rare class of cases” in which de novo

review should apply. Abatie, 458 F.3d at 972. Assuming without deciding that the term “individual” in 29 C.F.R.

§ 2560.503-1(h)(3)(ii) applies to a deliberative body,3 we find

that Anderson has not shown that in deciding both his initial

3

See Johnston Envt’l Corp. v. Knight (In re Goodman), 991 F.2d 613,

619 (9th Cir. 1993) (“ ‘[I]ndividual’ means individual, and not a corporation or other artificial entity.”). But see United States v. Middleton, 231

F.3d 1207, 1210 (9th Cir. 2000) (“Neither is ‘individual’ a legal term of

art that applies only to natural persons.”). 

ANDERSON v. SUBURBAN TEAMSTERS 15649
claim and his appeal, the Trustees committed “wholesale and

flagrant violations of the procedural requirements of ERISA,

and thus act[ed] in utter disregard of the underlying purpose

of the plan as well.” Abatie, 458 F.3d at 971. In their decision

on both Anderson’s initial claim and his appeal, the Trustees

provided detailed reasons for their denial and did not appear

substantively to defer to their initial decision. The minutes of

the Trustees’ meeting on Anderson’s appeal reflect their

detailed consideration of all the evidence before them. That

the result of both meetings was the same does not itself show

that the Trustees flagrantly disregarded ERISA’s requirement

that individuals receive full and fair review of claim denials,

because Anderson did not submit additional evidence — only

argument — between the two meetings of the Trustees on his

claim. Finally, both the composition of the board and the

attendance at the meetings changed such that three of the

eight members of the Board of Trustees present at the meeting

considering Anderson’s appeal were not present at the meeting on his initial claim. Therefore, the Court will review for

an abuse of discretion the Trustees’ partial denial of Anderson’s application for disability benefits, taking into account

the Trustees’ procedural errors. 

III

CONFLICT OF INTEREST

[3] We must also decide whether the Trustees had a conflict

of interest. If a plan administrator labors under a conflict of

interest, the court must consider that conflict of interest as a

factor in determining whether the administrator abused its discretion. Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___,

128 S. Ct. 2343, 2348 (2008). 

[4] A conflict of interest exists “where it is the employer

that both funds the plan and evaluates the claims.” Id. This is

because “ ‘every dollar provided in benefits is a dollar spent

by . . . the employer; and every dollar saved . . . is a dollar

15650 ANDERSON v. SUBURBAN TEAMSTERS
in [the employer’s] pocket.’ ” Id. (quoting Bruch v. Firestone

Tire & Rubber Co., 828 F.2d 134, 144 (3d Cir. 1987), aff’d

in part, rev’d in part, 489 U.S. 101 (1989)) (omissions and

alteration in original). The Plan here does not meet that standard. 

[5] The Plan is a multi-employer benefit trust fund maintained under the Taft-Hartley Act. The various participating

employers — not the Trustees — fund the Plan. The Trustees

have no personal economic interest in the decision to grant or

deny benefits. Additionally, the Board of Trustees consists of

both employer and employee representatives, who determine

employee eligibility under the Plan. Both sides are at the

table. See Jones v. Laborers Health & Welfare Trust Fund,

906 F.2d 480, 481 (9th Cir. 1990) (“Because the Board of

Trustees consists of both management and union employees,

there is no conflict of interest to justify less deferential

review.”). For these reasons, the Trustees did not have a conflict of interest.

IV

THE DATE OF ANDERSON’S DISABILITY

[6] We must now determine whether the Trustees abused

their discretion when they determined the date of Anderson’s

disability. A plan administrator abuses its discretion if it renders a decision without any explanation, construes provisions

of the plan in a way that conflicts with the plain language of

the plan, or fails to develop facts necessary to its determination. Schikore v. BankAmerica Supplemental Ret. Plan, 269

F.3d 956, 960 (9th Cir. 2001). 

The date of Anderson’s disability is crucial to his benefits

calculation. If Anderson became disabled after May 1, 1998,

he would receive disability payments based on Benefit Credits

he actually earned during his years of employment. However,

if Anderson became disabled before May 1, 1998, he would

ANDERSON v. SUBURBAN TEAMSTERS 15651
receive disability payments calculated as if he continued to

work from the date of his disability all the way up until his

normal retirement age. All of the future years Anderson

would not be working would still count toward his accumulation of Benefit Credits. Based on this enhanced number of

Benefit Credits, Anderson would receive a greater monthly

payment than if he were disabled after May 1, 1998. 

The Trustees did not abuse their discretion in determining

the date of Anderson’s disability. The standard for disability

in both the 1995 Plan and the 1999 Plan requires that the disability prevent the employee “from pursuing any and all gainful occupations and from performing any work for

compensation or benefit.” 1995 and 1999 Plans, § 6.03

(emphasis added). 

[7] Although he claims to have been disabled as of June 1,

1997, Anderson worked for fifty-one days from June to October in 2001. His employment was a “gainful occupation.” In

return for his work, he earned a paycheck and even received

Benefit Credits under the Plan. Following the plain language

of the Plan, the Trustees had a reasonable basis to conclude

that Anderson was not “totally and permanently disabled”

until the end of his employment in 2001.4 The Trustees did

not abuse their discretion in applying § 6.02(a) of the Plan and

calculating Anderson’s benefits based on the Benefit Credits

he actually earned. 

4

In his reply brief, Anderson argues that the Summary Plan Description

contains a more lenient standard of disability than the Plan. See Bergt v.

Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1145 (9th

Cir. 2002). However, Anderson forfeited this argument by failing to raise

it in his opening brief. See Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir.

1995). Additionally, Anderson’s counsel did not argue this point at oral

argument. 

15652 ANDERSON v. SUBURBAN TEAMSTERS
V

THE ANTI-CUTBACK RULE

Anderson argues alternatively that if he did not become disabled until November 2001 — which he did not — then the

1999 Plan amendment is invalid under 29 U.S.C. § 1054(g).

Anderson raised this issue in the district court, but the court

did not address it. Anderson v. Suburban Teamsters of N. Ill.

Pension Fund Bd. of Trustees, No. CV-05-1377-DGC (D.

Ariz.), Memorandum in Support of Plaintiff’s Complaint

(Docket No. 97) at 1-2; Order (Docket No. 106). 

[8] Section 1054(g) is ERISA’s so-called “anti-cutback”

provision. It states that “[t]he accrued benefit of a participant

under a plan may not be decreased by an amendment of the

plan,” subject to certain exceptions not applicable here. 29

U.S.C. § 1054(g)(1) (2006). The purpose of the anti-cutback

rule is to “prevent employers from pulling the rug out from

under plan participants by eliminating or reducing certain

forms of benefits through a plan amendment.” McDaniel v.

Chevron Corp., 203 F.3d 1099, 1119 (9th Cir. 2000) (quotation omitted). 

[9] However, § 1054(g) does not apply to “employee welfare benefit plans.” 29 U.S.C. § 1051(1) (2006) (excluding

such plans from Part 2 of ERISA). An “employee welfare

benefit plan,” or “welfare plan,” is defined as 

any plan, fund, or program which was heretofore or

is hereafter established or maintained by an

employer or by an employee organization, or by

both, to the extent that such plan, fund, or program

was established or is maintained for the purpose of

providing . . . benefits in the event of sickness, accident, disability, death or unemployment . . . . 

29 U.S.C. § 1002(1) (2006) (emphasis added). 

ANDERSON v. SUBURBAN TEAMSTERS 15653
A welfare plan is distinguished from an “employee pension

benefit plan” in that the latter is 

established or maintained by an employer or by an

employee organization, or by both, to the extent that

by its express terms or as a result of surrounding circumstances such plan, fund, or program — 

(i) provides retirement income to employees, or 

(ii) results in a deferral of income by employees

for periods extending to the termination of covered

employment or beyond . . . . 

29 U.S.C. § 1002(2)(A) (2006). 

[10] The question here is whether disability benefits such

as those provided by the Plan constitute an employee welfare

benefit plan that ERISA permits employers to cut. The Second, Sixth, and Eleventh Circuits have all answered, “Yes.”

The Second Circuit case of Rombach v. Nestle, USA, Inc.,

211 F.3d 190 (2d Cir. 2000), is quite similar to Anderson’s.

The plan in Rombach was a comprehensive plan that provided

for several different pensions, including a normal retirement

pension, an early retirement pension, and a “disability retirement pension.” Id. at 191 n.1. 

The plan had previously calculated the amount of the disability retirement pension as if the disabled employee’s “period of service as an Employee had been extended from the

commencement date of such pension up to his or her Normal

Retirement Date.” Id. at 192. Under this provision, the

employee received credit not only for actual service, but also

for service the employee would have performed had the

employee not become disabled. The plan was amended to calculate the disability retirement pension in accordance with

“the normal retirement benefit accrued by the [employee] as

15654 ANDERSON v. SUBURBAN TEAMSTERS
of the date of retirement due to disability.” Id. (alteration in

original). This calculation allowed no credit for service not

actually performed. 

Rombach, an employee covered by the plan, became disabled and applied for benefits. In accordance with the amendment, the plan administrator calculated the amount of her

disability pension with reference only to her actual service.

Rombach argued that the amendment violated § 1054(g) by

failing to follow the requirements necessary for an exception

to the anti-cutback rule. Id. at 191-92. 

The Second Circuit held that “the disability provisions of

the Pension Plan are an ‘employee welfare benefit plan’ under

29 U.S.C. § 1002(1), to which the protections of § 1054(g) do

not apply.” Id. at 192. The court emphasized that the statutory

definition of a welfare plan includes within its scope any plan

“to the extent” the plan provides “benefits in the event of . . .

disability”: 

In our view, it does not matter that Nestle called the

disability retirement pension portion of its plan a

“pension benefit” and made it part of its master

“pension plan.” Its meaning and function remained

clear; it was a benefit triggered by disability. And,

under the plain language of the statute, “to the

extent” that Nestle’s Pension Plan provides benefits

that are triggered by disability, that portion of the

plan is a welfare plan under § 1002(1). 

Id. at 194 (emphasis added). See also Robinson v. Sheet Metal

Workers’ Nat’l Pension Fund, 441 F. Supp. 2d 405, 417-18

(D. Conn. 2006), aff’d in part, dismissed in part, 515 F.3d 93

(2d Cir. 2008). The Eleventh Circuit relied on Rombach in

holding that § 1054(g) did not apply to a no-interest award of

retroactive disability benefits. Green v. Holland, 480 F.3d

1216, 1228 (11th Cir. 2007). 

ANDERSON v. SUBURBAN TEAMSTERS 15655
In a similar context, the Sixth Circuit has also held that the

disability portion of a master plan was a welfare plan. McBarron v. S & T Indus., Inc., 771 F.2d 94, 97 (6th Cir. 1985). The

plan in McBarron provided for a disability benefit, but the

disabled employee was not entitled to that benefit if the

employee was also receiving payments from Workmen’s

Compensation. Id. at 96. The employee argued this provision

violated 29 U.S.C. § 1053(a), ERISA’s anti-forfeiture provision. Like the anti-cutback rule, the anti-forfeiture provision

does not apply to welfare plans. 29 U.S.C. § 1051(1) (2006).

The court, relying on the “to the extent” language of

§ 1002(1), held that the disability benefits constituted a welfare plan, and therefore ERISA’s anti-forfeiture rule did not

apply to them. McBarron, 771 F.2d at 97. 

[11] We agree with our sister circuits. The statute specifies

that a plan is a welfare plan “to the extent” that it provides

“benefits in the event of . . . disability.” 29 U.S.C. § 1002(1)

(2006). The “to the extent” language evidences Congress’s

intent that the definition encompass any portion of a plan in

which the employee’s disability triggers the right to the benefit. Rombach, 211 F.3d at 194. The disability benefit here fits

this mold. We hold that Anderson’s disability retirement pension is not subject to the anti-cutback rule because it is an

employee welfare benefit plan. 

VI

THE QDRO

Finally, Anderson argues that the Trustees improperly

applied the QDRO to reduce his disability benefit in favor of

his ex-wife, the alternate payee. Anderson claims that until his

ex-wife elects to begin receiving her portion of the benefit, he

is entitled to the full amount, without any reduction pursuant

to the QDRO. We review de novo a decision regarding obligations under a QDRO. Owens v. Auto. Machinists Pension

Trust, 551 F.3d 1138, 1142 (9th Cir. 2009). 

15656 ANDERSON v. SUBURBAN TEAMSTERS
[12] A QDRO requires a plan administrator to provide part

or all of an employee’s pension to an ex-spouse. 29 U.S.C.

§ 1056(d)(3)(B) (2006). According to the Department of

Labor, there are two basic types of QDROs: “separate interest” QDROs and “shared payment” QDROs. U.S. Dep’t of

Labor, The Division of Pensions Through Qualified Domestic

Relations Orders, http://www.dol.gov/ebsa/publications/

qdros.html, Question 3-3. A separate interest QDRO divides

the benefit into two different pensions, one for the plan participant and one for the alternate payee. Because there are two

pensions, the alternate payee can receive her benefit “at a time

and in a form different from that chosen by the participant.”

Id.

On the other hand, a shared payment QDRO assigns the

alternate payee a portion of each monthly payment. “Under

this approach, the alternate payee will not receive any payments unless the participant receives a payment or is already

in pay status.” Id. 

The Trustees found the QDRO to be a separate interest

QDRO creating two separate pensions. Once the pension was

split, they reasoned, Anderson no longer had an interest in any

of his ex-wife’s pension. 

[13] The Trustees were correct. The QDRO grants the alternate payee half of Anderson’s pension as of February 25,

1999. It allows Anderson’s ex-wife to begin receiving her

payments at Anderson’s earliest retirement age: thus, she

could be paid even if Anderson were still working. This is

impossible with a shared payment QDRO, where the exspouse receives a payment only when the plan participant

does. For these reasons, Anderson’s QDRO was a separate

interest QDRO, and he cannot share in any of the benefits

allocated to his ex-wife. 

ANDERSON v. SUBURBAN TEAMSTERS 15657
VII

CONCLUSION

The Trustees did not abuse their discretion in finding

Anderson disabled as of November 2001 and correctly

applied the QDRO to reduce the amount of Anderson’s benefits in favor of his ex-wife. Further, Anderson’s disability

retirement pension is an employee welfare benefit plan, even

though it is only part of a comprehensive ERISA plan and

even though the Plan refers to it as a “pension.” As a welfare

plan, the disability retirement pension is not subject to the

anti-cutback rule. 

AFFIRMED.

15658 ANDERSON v. SUBURBAN TEAMSTERS