IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31046

JANICE BROWN DORN,

Plaintiff-Appellant,

versus

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Etc., et al.,

Defendants,

ELECTRICIANS PENSION TRUST FUND, Substituted Party for

IBEW Local 995, Electricians Health, Welfare and Benefit Plans,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Middle District of Louisiana

-------------------- May 18, 2000

Before JONES, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Janice Brown Dorn ("Janice") appeals the

district court’s grant of summary judgment in favor o f the

Defendant-Appellee Electricians Pension Trust Fund ("the Plan"),

dismissing her claim, ostensibly pursuant to a Qualified Domestic

Relations Order (“QDRO”), for continued payment of pension benefits

following the death of her ex-husband, Jack Lee Dorn (“Jack”).

Jack was a former participant and, at death, a retiree and1 Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 et seq.

2 Pub.L. No. 98-397, 99 Stat. 1426, (codified at 29 U.S.C. §

1001 et seq .).

3 See generally 29 U.S.C. § 1055. (We recognize that “in the

trade” these annuities are generally referred to as QJSAs, but we

have included the ampersand to aid our readership in distinguishing

the QJSA fromthe QDRO). REA also dealt with the Qualified PreRetirement Survivor Annuity, another type of ERISA benefit, which

is not at issue here.

4 See generally 29 U.S.C. § 1056(d).

2 pensioner under the Plan, which is governed by ERISA 1

. We affirm

the district court’s judgment dismissing Janice’s claim.

I.

BACKGROUND

A. Applicable Law: ERISA after the Retirement Equity Act of 1984

("REA") 2

1. REA Changes Pertinent to this Appeal

After ERISA had been on the books for approximately ten years,

during which period the need for substantial modification had

become apparent, Congress enacted REA. Two innovations wrought by

REA that are particularly pertinent to this case are (1) changes in

mandated retirement plan benefits in the form of a revised version

of the “Qualified Joint and Survivor Annuity” (“QJ&SA”) 3 and (2)

creation of a new procedure

—— unique and exclusive to ERISA

—— for

obtaining otherwise prohibited assignments or alienations of

pension plan benefits in the event of, inter alia

, divorce: the

“ Qualified Domestic Relations Order” ("QDRO"). 4 Familiarity with3

the applicable terms of art is imp ortant and helpful in

understanding the instant appeal. After surveying the key terms,

we shall examine briefly the nature of the benefits that most ERISA

retirement plans like the Plan are required to provide as automatic

survivor benefits with respect to the retiring participant —— for

our purposes today, Jack’s QJ&SA

—— and some of the alternative

elections available. We shall then consider in greater depth the

exception to ERISA’s spendthrift pros cription of alienation that

REA brought to the table by creation of the QDRO, a mechanism for

recognizing, inter alia

, the interest of the non-participant spouse

in benefits under such plans. Finally, we shall analyze Janice’s

QDRO in light of the foregoing to determine whether it was

correctly interpreted by the Plan’s plan administra tor and the

district court.

2. Terminology

• Qualified Joint and Survivor Annuity

ERISA’s QJ&SA is unlike the typical joint and survivor annuity

availab l e in the commercial market, which commonly guarantees

payment of a stipulated or determinable amount to two persons

——

frequently spouses

—— while both are living and, after the death of

either person, to whichever of the two survives. ERISA's QJ&SA is

an annuity ——

(1) for the life of the participant[,] with a

survivor annuity fo r the life of the spouse

which is not less tha n 50% of (and is not

grea ter than 100% of) the amount of the5 29 U.S.C. § 1055(d). The Plan helps eliminate the tendency

to confuse the QJ&SA with the typical commercial product mentioned

supra by calling its QJ&SA a “50% Husband-and-Wi fe Pension” and

defining it to mean that “if the Participant dies before his

Qualified Spouse, the latter will receive a monthly benefit for her

lifetim e of 50% of the Participant’s monthly benefit” —— such

survivor benefit being referred to in the Plan as the “survivor’s

pension.” The Plan defines “Spouse” as (1) “a person to whom a

Participant is considered married under applicable law” and (2) a

“Participant’s former Spouse” “if and to the extent provided in a

Q ualified Domestic Relations Order....” The Plan then defines

“Qualified Spouse” as the person who was married to the Participant

[Jack] “on the date of Participant’s death and had been married

throughout the year ending with the date the Participant’s pension

payments start or, if earlier, the date of death; however, a Spouse

is also a Qualified Spouse if the Participant and his Spouse were

married for at least a year before his death. ” Thus, as Janice had

been married to Jack for more than one year, she could have been a

Qualified Spouse if she had been expressly recognized as such in

her QDRO. S ee 29 U.S.C. § 1056(d)(3)(F)(i), (ii). The Plan

contains an alternative definition of Qualified Spouse: “A person

to whom a Participant was married on the date his pension payments

started [so-called “pay status”] and for at least one year

immediately before that, but who is divorced from the participant

after that date, shall be considered his Qualified Spouse on the

date of [Participant’s] death,” unless a QDRO provides otherwise.

As Janice and Jack were divorced well before his pension payments

started, this alternate definition is inapposite. As shall become

apparent when we review the operable facts of this appeal and the

provisions of J anice’s QDRO, she meets none of the Plan’s

definitions of Qualified Spouse: She was not married to Jack on

the date of his death, and she had not been married to Jack for the

year preceding the commencement of his pension payments or for the

year preceding his death. Most significantly, her QDRO does not

recognize her as Jack’s “Qualified Spouse” for purposes of the

“survivor’s pension” under the Plan.

4 annuity which is payable during the joint

lives to the participant and the spouse, and

(2) which is the actuarial equivalent of a

single annuity for the life of the

participant. 5

Stated more simply, (1) the QJ&SA’s annuity payments cease at the

death of the participant spo use, regardless of whether his death6 29 U.S.C. § 1055(h)(2)(A)(i)

7 29 U.S.C. § 1055(h)(3).

8 29 U.S.C. § 1056(d)(3)(B)(ii).

5 occurs before or after the death of the non-participant spouse; and

(2) if, but only if, the non-participant spouse survives the

participant spouse does the survivor’s annuity kick in.

• Annuity Starting Date “means the first day of the first

period for which an amount is received as an annuity ” 6 (whether by

reason of retirement or disability).

• Earliest Retirement Age “means the earliest date on

which, under the plan, the participant could elect to receive

retirement benefits.” 7

• Domestic Relations Order “means any judgment, decree, or

order (including approval of a property settlement agreement) which

(I) relates to the provision of...marital property rights to a

spouse [or] former spouse...of a participant, and (II) is made

pursuant to a State domestic relations law (including a community

property law).” 8

• Qualified Domestic Relations Order means a domestic

relations order ——

(I) which creates or recognizes the existence

of an alternate payee’s right to, or assigns

to an alternate payee the right t o, receive

all or a portion of the benefits payable with

respect to a participant under a plan, and

(II) with respect to which subparagraphs (C)9 29 U.S.C. § 1056(d)(3)(B)(i)(I) (emphasis added). Subparagraph

(C) provides that a domestic relations order be a QDRO only if it

“clearly specifies,” inter alia

, the name and address of the

participant and the alternate payee, the amount or percentage to be

paid to the alternate payee, the plan or plans to which the order

applies, etc.; and subparagraph (D) provides that a domestic

relations order can be a QDRO only if it “(i) does not require a

plan to provide any type or form of benefit, or any option, not

otherwise provided under the plan, (ii) does not require the plan

to provide increased benefits (determined on the basis of actuarial

value), and (iii) does not re quire the payment of benefits to an

alternate payee which are required to be paid to another alternate

payee under another order previously determined to be” a QDRO.

1 0 29 U.S.C. § 1056(d)(3)(G)(i)(II)(“the plan administrator

shall determine whe ther such [domestic relations] order is a

qualified domestic relations order” (emphasis added)).

1 1 29 U.S.C. § 1056( d)(3)(K)(emphasis added). Use of the

phrase “with respect to” makes clear that alienability under a QDRO

is not limited to those benefits that are “payable to” a

participant, i.e., only the participant’s life annuity, but may

also make other plan benefits, such as the surviving spouse’s

annuity available to an alternate payee.

12 29 U.S.C. § 1056(d)(3)(J)(emphasis added).

6 and (D) are met.... 9

N ote that determination of whether a domestic relations order,

which a state court renders, is “qualified” is made by the Plan

Administrator, not by the court that granted the order. 10

• Alternate Payee “means any spouse [or] former

spouse...who is recognized by a domestic relations order as having

a right to receive all, or a portion of, the benefits payable under

a plan with respect to ” the participant. 1 1 Note that “[a] person

who is an alternate p ayee under a [QDRO] shall be considered for

purposes of any provision of [ERISA] a beneficiary under the

plan;” 12 only the employee who is a member of the plan is a13 [S. Rep. No. 98-575 (1984), reprinted in 1984 U.S.C.C.A.N.

2547.

1 4 Although not applicable here, the participant can waive the

QJ&SA in favor of an alternate benefit permitted by the plan, but

only with spousal consent and only during the applicable election

period, being a reasonable time before the annuity starting date,

not to exceed ninet y (90) days. 29 U.S.C. § 1055(c)(1)(A)(i),

(2)(A)(i), (7)(A).

7 "participant."

3. Framework for Analysis

Employing the foregoing terms and paraphrasing the pertinent

portions of the legislative history of REA 13

—— those regarding the

QJ&SA and the QDRO

—— establishes the appropriate framework within

which this case s hould be analyzed. Since the enactment of REA,

ERISA pension plans have been requir ed to provide automatic

survivor benefits, principally a QJ&SA, to participants who retire

under such plans. As noted by the district court, a QJ&SA

comprises two separate and distinct benefits: (1) An annuity for

the life of the participant, and (2) a succeeding annuity for the

life of the surviving spouse (if there is one) of not less than 50%

of the participant annuity. 14

To implement the im portation of the QDRO procedure for

accommodating situations such as divorce, community property

partition , and the like, REA expressly exempted from ERISA's

otherwise preemptive proscription of alienation of plan benefits,

a narrowl y limited set of permissible assignments to a similarly

limited set of transferees, denominated “alternate payee,” such as1 5 See, e.g.

, C ritchell v. Critchell

, No. 98-FM-1304, (D.C.

Cir. Feb. 10, 2000).

8 a survivi ng spouse, of specified plan benefits that are payable

with respect to the participant. 15 The QDRO is the REA-created

mechanism employed to facilitate this REA-recognized, tightly

circumscribed set of non-preempted assignments of benefits.

To be a QDRO, a domestic relations order must designate, inter

alia

, the spouse or former spouse as an alternat e payee. A

domestic relations order can only be "qualified" (and thus can only

become a QDRO), however, if it creates or recognizes the existence

of an alternate payee's right, or assigns to an alternate payee the

right, to receive all or a portion of the benefits payable with

respect to a participant under one of the expressly designated

types of ERISA retirement plans, and meets the other requirements

of the statute.

To be an al ternate payee under a QDRO, the spouse or former

spouse of a plan participant must be recognized in a state court’s

domestic relations order as having a right to receive all, or a

portion of, the benefit or benefits under the plan with respect to

the participant. Moreover, to be "qualified," a domestic relations

order must clearly specify the nature and portion of the benefits

to be received by the alternate payee. Even then, the order cannot

be qualified if it requires the plan to provide any type or form of

benefit not otherwise provided under the plan, or if it requires

the plan to provide increased benefits. And, as noted in the1 6 The instant QDRO was obtained before Jack’s annuity starting

date, so there is no issue of timeliness here. B ut cf. Rivers v.

Central & Southwest Corp. et al

, 186 F.3d 681 (5th Cir. 1999)

(holding failure to obtain QDRO before death of retired participant

and before vesting of second spouse’s survivor benefit under plan

prevents rec overy by former spouse); c f. also Hopkins v. AT&T

Global Info. Solutions Co. , 105 F.3d 153 (4th Cir. 1997) (holding

former spouse cannot obtain a QDRO for s urviving spouse annuity

after participant’s retirement

, as benefits vest in current spouse

on retirement). Absent a pre-existing QDRO expressly recognizing

a former spouse as the alternate payee of the survivor’s pension,

the person who is the spouse of the participant at his retirement

need not obtain a QDRO to establish the right to the survivor’s

pension; neither would a subsequent divorce divest that spouse of

such right. If the spouses were to divorce a fter a pension plan

has gone into pay status, the non-participant spouse m ight be

entitled to obtain a QDRO for a portion of the former participant

spouse’s lifetime annuity, assuming the applicable domestic

relations laws of the cognizant state would support such a claim.

17 See La. Civ. Code Ann. arts. 2326-28.

9 foregoing definitions, determination whether a domestic relations

order is qualified and thus a QDRO is the job of a plan

administrator. 16

B. Facts and Proceedings

Jack and Janice married in 1968. Neither prior to nor during

their marriage did Jack and Janice elect out of Louisiana’s legal

regime

—— the community of acquets and gains

—— for matrimonial

property in that State; rather, they remained under the community

regime at all pertinent times. 17 Throughout the time that Jack and

Janice were married to each other, he was a participant in the

Plan, an ERISA employee pension benefit plan for union workers.

Jack an d Janice divorced on April 25, 1991. At that time,

Jack was still a part icipant in the Plan: His annuity starting10

date had not arrived; indeed, he did not become eligible for

pension benefits under the Plan until March 1, 1993 and did not

receive his first check until August of that year. On the day in

1991 when they divorced, Jack and Janice executed an agreement

s ettling their community property. It stipulated that Jack

assigned to Janice “her” interest in his benefits under the Plan.

T his settlement agreement likely met REA’s definition of a

“domestic relations order” but it clearly failed to specify details

sufficient to be deemed a QDRO; and neither party contends that it

was or should have been.

Later that year, on September 27, 1991, Jack married Geraldine

T. Duck ("Geraldine"). Jack and Geraldine were still married to

each other (and had been for more than a year) when he retired for

plan purposes and when his annuity starting date arrived. And,

they were still married to each other on May 31, 1997 when he died.

On January 22, 1993, however, after Jack had married Geraldine

but while he was still working and still a participant in the Plan,

Janice obtained a domestic relations order from a state court in

Louisiana. That order is labeled "Qualified Domestic Relations

Order for Electricians' Pension Plan IBEW 995." It purports to

divide and assign benefits accumulated under the Plan during the

existence of Jack and Janice's community, identifying the benefits

as marital property, designating Janice as "Alternate Payee,"

referring to Jack as "Participant," and otherwise making all

recitations required for the domestic relations order to be11

recognized by a plan administrator as a QDRO.

The order specifies that, as alternate payee, Janice "shall

receive payment fro m [the Plan] of Participant...pursuant to the

Participant's assignment of benefits to the alternate payee in the

amount of...$302 per month....as of February 27, 1991, the date on

which the community of acquets and gains ceased to exist...." The

order also specifies:

This assignment of benefits does not require

the Plan to provid e any type or form of

benefit, or any option, not otherwise provided

under the Plan. This assignment does not

require the Plan to provide increased benefits

determined on the basis of actuarial value.

This assignment doe s not require the Plan to

provide benefits to the Alternate Payee under

another order previously determined to be a

Qualified Domestic Relations Order.

The order declares that from its date

the alternate payee shall have, with respect

to the alternate payee's interest in the Plan,

the exclusive right to receive such funds

specified above and in the event of alternate

payee's death, her estate shall receive those

funds to which the alternate payee is

entitled, in the event of survivor

beneficiaries not named by alternate payee.

In reference to the designation of monthly payments of $302 to

Janice, the order contains the following footnote:

Division of Benefits: S ims v. Sims

, 248 So.2d

919 (La. 1978) All funds accumulated under

this Plan were accumulated during the

existence of the community of acquets and

gains. The community of acquets and gains

existing between the parties hereto ceased as

of February 27, 1991.

Jack became eligible for retirement on March 1, 199 3, less1 8 Given the Plan’s disbursements to Janice, we infer that the

Plan Administrator determined that the domestic relations order of

January 22, 1993 was “qualified” and thus a QDRO. Neither party

contends otherwise.

12 than two months after Janice had obtained that domestic relations

order. The annuity starting date came and went, and pursuant to

Janice’s QDRO, the Plan began paying $302 per month to her. The

r emaining $321 balance of Jack's monthly pension benefit of $ 623

was paid to him, beginning August 1, 19 93. 18 The total of these

payments equaled the total amount of Jack's monthly participant's

annuity under the Plan, i.e., his lifetime pension of $623 per

month.

Effective at Jack's death on May 31, 1997, the Plan

discontinued makin g monthly payments to Jack and to Janice that

clearly were being paid to them from the participant's portion of

Jack's QJ&SA. Also effective at Jack's death, the Plan began

paying Geraldine the “survivor’s pension” of $312 per month, being

50% of the participant’s pension under Jack’s QJ&SA.

Shortly after Jack’s death, the Plan wrote to Janice advising

of the cessation of payme nts to her as a result of (1) the

termination of the participant' s annuity at Jack’s death and (2)

the absence in the QDRO of a designation of Janice as Jack’s

Qualified Spouse for purposes of the survivor’s pension. In July,

1997, through her attorney, Janice appealed to the Plan in writing

to reinstate payment of the benefits that it had been paying to her

before Jack’s death; and, in September she ap peared with her13

attorney before the Plan’s Board of Trustees

—— its plan

administrator

—— to re-urge her appeal. The Board of Trustees

advised Janice by a September 24 letter to her attorney that her

appeal had been denied. Janice filed the instant lawsuit a month

later.

In her complaint, Janice asserted that the Plan's refusal to

continue benefi t payments to her (1) violated ERISA; (2) was

unconstitutional under the Fifth Amendment; and (3) consti tuted

conversion of her property. In June, 1998 the Plan filed a motion

for summary judgment on all counts, maintaining that Janice was not

entitled to payments of benefits following Jack's death because (1)

the participant's annuity, out of which she had been receiving a

$302 portion, terminated at participant's death, and (2 ) neither

the Plan nor the 1993 QDRO provid ed for the payment of any other

benefit to Janice after Jack's death, the only benefit remaining

being the annuity of the surviving spouse, who was not Janice, but

Geraldine, Jack’s “Qualified Spouse.” The Plan also asserted that

Janice's Fifth Amendment claim was baseless and that her state law

claim of conversion was preempted by ERISA.

In September, 1998, the distric t court granted the Plan's

motion for summary judgment, rejecting all of Janice's claims and

dismissing her suit. This appeal followed.

II.

ANALYSIS

A. Standard of Review1 9 F irestone Tire & Rubber Co. v. Bruch

, 489 U.S. 101, 115

(1989).

20 Id.

21 Matassarin v. Lynch

, 174 F.3d 549, 563 (5th Cir

. 1999)(internal citation and quotation omitt ed). S ee Samaroo v.

Robichaud , 193 F.3d 185, 189 (3rd Cir. 1999).

14 We review the district court’s grant of summary judgment under

the well know n de novo standard. Here, there are no disputed

issues of material fact, only is sues of law. Like the district

court, we review a plan administrator’s denial of benefits under a

de novo standard, unless the plan gives the administrator

discretionary authority to determine eligibility for benefits or to

construe the terms of the plan. 19 Neither Janice nor the Plan has

asserted that the Plan’s Board of Trustees, as plan administrator,

has discretionary authority to determine eligibility for benefits;

thus, any plan interpretation mad e by the Board when denying

Janice’s appeal for continued benefits is reviewed de novo

. 20 More

to the point, even if the Plan does vest its administrator with

maximum discretion and that authority includes discretion to decide

whether a domestic relations order meets the requirements for

recognition as a QDRO, we would still review de novo the Board of

Trustees’ interpretation of the substantive provisions of Janice’s

QDRO. “Although we allow a plan administrator discretion to

determine whether [a domestic relations order] constitutes a QDRO

under the plan, we otherwise review de novo a plan administrator’s

interpretation of the meaning of a QDRO.” 2115

B. ERISA Claim

From the record on appeal and Janice’s appellate brief, it is

clear to us that she is seeking a continuation, for her lifetime,

of the monthly $302 payment out of Jack’s participant annuity only,

from which she had received it during his lifetime by virtue of her

QDRO; and that, b ecause in the QDRO she is not designated as the

surviving spouse (or “qualified spouse”), she is not assert ing a

claim to any part of Jack’s QJ&SA that constitutes the survivor

annuity (the “survivor’s pension”), which Geral dine began to

receive at Jack’s death. As the district court in its ruling on

motion for summary judgment touched on both possibilities, however,

we shall as well.

1. Validity of QDRO

First, there is no dispute about the propriety of the plan

administrator’s having treated the state court’s domestic relations

order in this case as a QDRO: Not only does the order touch all of

the bases from the standpoint of required contents under § 1056(d)

by recognizing Janice as an alternate payee, ex pressing that it

relat es to marital property rights, and specifying the factual

information required under subsection (3)(C); at least facially it

also does not violate subsection (3)(D)’s prohibition of requiring

the Plan to provide (1) any type or form of benefit or option not

otherwise provided under the Plan or, (2) on the basis of actuarial

value, any increased benefits. Neither does the order require

payment of benefits to an alternate payee other than Janice (there16

were no prior QDROs). Moreover, the instant QDRO was applied for

and obtained before Jack’s (1) annuity starting date, (2)

retirement, or (3) death.

2. Surviving Spouse Annuity

Regarding any claim that Janice could possibly have asserted

to all or any portion of the survivor’s pension —— again, it does

not appear to u s that she is asserting any such claim —— the

district court correctly determined that neither under any

provision of the Plan nor under ERISA generally could Janice be

deemed a surviving spouse in the context of Jack’s QJ&SA: She was

no longer married to Jack (1) during the “applicable election

period,” (2) on the “annuity starting date,” or (3) at his death.

In fact, they had been divorced for more than a year prior to any

of those events. The district court correctly determined that as

an alternate payee (and thus a beneficiary) by virtue of her QDRO,

Janice did not obtain status as a surviving spouse (“Qualified

Spouse”) or any interest in the survivor annuity under the

provisions of Jack’s QJ&SA. Section 1056(d)(3)(C) requires that a

domestic relations order “clearly” specify, inter alia

, the amount

or percentage of the “participant’s” benefits to be paid to the

alternate payee. The QDRO is silent on the issue of survivor’s

rights; the only Plan benefit of Jack’s addressed in the QDRO is

the one from which the QDRO specifies Janice’s $302 per month was22 See Samaroo

, 193 F.3d at 1 87, n.2 (“[T]he original decree

was silent on the issue of a survivor’s rights. Congress has

required QDROs to be quite specific in order to convey ERISA

benefits. The statute requires a QDRO to state specifically the

extent of the alternate payee’s interest in the plan”).

2 3 The question whether a domestic relations order that purports

to designate a former spouse of the participant as the “surviving

spouse” alternate payee under a pension plan can still “qualify”

for purposes of becoming a QDRO is not before us, for Janice’s QDRO

contains no such provision. The availability of such a

specification is well settled by the Internal Revenue Code,

provided the participant and the former spouse had, at some time in

the past, been married to each other for a period of at least one

year. S ee supra n.4. In such circumstances, the designation of

the former spouse as the alternate payee of the surviving spouse

annu ity trumps any claims thereto by another person who

subsequently becomes the de facto surviving spouse of the

participant. See

, e.g. , Treas. Reg. § 1.401(a)-20 Q&A 25(b)(3).

24 See § 414(p)(5), I.R.C.

17 to be paid, unmistakably the participant annuity. 22 Conversely, the

monthly payment specified in the QDRO had no relationship

whatsoever to the surviving spouse annuity facet of Jack’s QJ&SA. 23

The domestic order nowhere designates her as the surviving or

“qualified” spouse for purposes of any survivor benefit that is

specifically allowed under the Internal Revenue Code. 24

3. Participant Annuity

Regarding Janice’s insistence that, following Jack’s death,

the Plan continue making monthly payments of $302 to her, the

district court correctly determined that (1) the domestic relations

order granted to Janice by the state court nowhere “clearly” states

that she would continue to receive such payments after Jack’s death

(presumably for the remainder of her lifetime), and (2) had that2 5 Janice’s QDRO specifies that “in the event of the Alternate

Payee’s death, her estate shall receive those funds to which the

Alternate Payee is entitled, in the event a survivor beneficiary is

not named by Alternate Payee.” As that provision deals with

payments beyond her lifetime, the QDRO obviously contemplated the

payment of her $302 until Jack’s death in the event he should

outlive her, but not after his death.

18 domestic relations order contained such a provision as to Jack’s

participant annuity

—— as distinct from the surviving spouse

annuity

—— it could not (or at least sh o uld not) have been

recognized as a QDRO. On the first point, any fair reading of the

words of Janice’s domestic relations order confirms tha t it did

nothing more or less than carve a $302 portion out of Jack’s $623

monthly benefit under his lifetime participant’s annuity. Nowhere

in the QDRO is a reference to Janice’ s payments modified by “for

life” or “for her lifetime” or any other such phrase. Her payments

had to be co-terminus with his which, by definition, ceased as of

his death. This expectation is confirmed by its obverse: Under

one express provision of her QDRO, Janice ’s death before Jack’s

would not have terminated her $302 monthly payments ; rather,

following her death the $302 payments would have continued, month

after month , until h is death, and would have been paid either to

her designated successor or to her estate, i.e., her heirs or

legatees. 25

Janice’s domestic rela tions order specifies that she “shall

receive payment from [the pension plan] of Particip ant, Jack Lee

Dorn....” The only benefit that Jack had under the Plan was a2 6 C onnolly v. Pension Benefit Guar. Corp.

, 475 U.S. 211, 224

(1986).

19 QJ&SA which comprised (1) his lifetime annuity (which was not, as

in some commercial products, payable for as long as either spouse

lived), and (2) the “survivor’s pension,” i.e., the surviving

spouse annuity, equal to 50% of the Participant’s lifetime pension.

As already noted, the surviving spouse annuity is not a ddressed

anywhere in the s ubject domestic relations order, and Janice has

not expressly demanded any part of it.

In conclusion, we agree completely with the district court:

The pension benefit component [of Jack’s

QJ&SA] in which [Janice] did receive payments,

terminated upon the death of the participant.

The survivor’s annuity is the only benefit

currently payable under the [Plan]. It vested

in [Jack’s] current wife on the date he became

eligible for benefits.

C. Fifth Amendment Claim

Dorn also argues that the district court’s interpretation of

ERISA is a taking of her vested property without due process of law

prohibited by the Fifth Amendment. There is no set formula for

identifying a “taking” forbidde n by the Fifth Amendment; rather,

courts use an “ad hoc, factual inquir[y] into the circumstances of

[the] case.” 26 Dorn has not met her burden to show that she had any

private property which has been the subject of a taking.

D. Conversion Claim

Dorn’s last argument is that the Fund converted Janice’s

property to its own use. A state law claim, such as Dorn’s claim2 7 S ee, Dowden v. Blue Cross & Blue Shield of Tex., Inc.

, 126

F.3d 64 1, 643 (5th Cir. 1997); s ee also Pilot Life Ins. Co. v.

Dedeaux

, 481 U.S. 41, 47-48 (1987) (common law cause of action

alleging improper decision on claim for benefits undoubtedly meets

criteria for ERISA preemption).

28 Boggs v. Boggs , 520 U.S. 833, 844 (1997).

20 for conversion, addressing the right to receive benefits under the

terms of an ERISA plan necessarily “relates to” an ERISA plan and

is thus preempted. 27 Additionally, to the extent Dorn attempts to

use the Louisiana law of conversion to interfere with a surviving

spouse’s benefits, that law is preempted. 28

III.

CONCLUSION

Dorn has failed to show that the district court erred by

granting summary judgment in favor of the Plan on all counts. The

judgment of the district court is, in all respects,

AFFIRMED.