RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0283p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

S UN L IFE A SSURANCE C OMPANY OF C ANADA , Plaintiff-Appellant ,

v

.

R ICHARD E. J ACKSON ; S IERRA N. J ACKSON , individually and as the personal representative on behalf of the Estate of Bruce D. Jackson, Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 17-3120

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:14-cv-00041—Walter H. Rice, District Judge. Argued: November 28, 2017 Decided and Filed: December 13, 2017 Before: GILMAN, SUTTON, a nd STRANCH, Circuit Judges.

_________________ COUNSEL

ARGUED: Joshua Bachrach, WILSON ELSER, MOSKOWITZ EDELMAN & DICKER LLP, Philadelphia, Pennsylvania, for Appellant . James D. Brookshire, DUNGAN & LEFEVRE CO., LPA, Troy, Ohio, for Appellee Sierra N. Jackson. Eirik Cheverud, UNITED STATES DEPARTMENT OF LABOR, Washingt on, D.C., for Amicus Curiae. ON BRIEF: Joshua Bachrach, WILSON ELSER, MOSKOWITZ EDELMAN & DICKER LLP, Philadelphia, Pennsylvania, for Appellant. James D. Br ookshire, Glen R. McMu rray, DUNGAN & LEFEVRE CO., LPA, Troy, Ohio, for Appell ee Sierra N. Jackson. Ste phanie Lewis, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., fo r Amicus Curiae. Richard E. Jackson, Boise, Idaho, pro se. 

### >No. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 2

_________________ OPINION

_________________ SUTTON, Circuit Judge. Bruce Jackson ma rried Bridget Jackson in 1993, and Sierra Jackson, their only child, arrived in 1995. They di vorced in 2006. In their separation agreement, Bruce and Bridget agreed to maintain any employer-related life insurance policies for the benefit of Sierra until sh e turned 18 or graduated from high school . At the time, Bruce had an employersponsored life insurance policy that listed his uncle, Richard Jacks on, as the sole beneficiary. Bruce never changed the beneficiary of the policy to Sierra before he died in 2013. Litigation ensued, and the district court ordered Sun Life to pay the life insurance proceeds to Sierra. Because the divorce decree suffices as a qualif ied domestic relations order that “clearly specifies” Sierra as the bene ficiary under the Employee Retirement Income Security Act, 29 U.S.C. § 1056(d)(3)(C), we affirm.

I.
In 2003, Bruce Jackson signed up for a life in surance plan sponsored by his employer, Samaritan Health Partners, and governed by th e Employee Retirement Income Security Act, better known as ERISA. Sun Life Assurance Company took over management of Bruce’s insurance policy in 2008. Bruce died in 2013. At his death, Bruce was insured for $48,000 in basic life insurance and $191,000 in optional life insurance. The question is whether Richard Jackson, Bruce’s uncle, or Sierra Jackson, Br uce’s only child, rece ives the money.
When Bruce signed up for the life insurance po licy in 2003, he listed Richard as its sole beneficiary. When Bruce and Br idget divorced in 2006, their divor ce decree inco rporated the following provision:

Article IX: Life Insurance

In order to secure the ob ligation of the parties to support their child during her minority, Father and Mother shall maintain, unencumbered, all employerprovided life insurance, now in existence at a reasonable cost, or later acquired at a reasonable cost, naming their minor ch ild as primary beneficiary during herNo. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 3

minority; and the obligation to do so shall continue until she . . . reach(es) the age of eighteen (18) or graduates from hi gh school, whichever occurs last . . . .

R. 29-1 at 29.
Bruce never changed the beneficiary designatio n in his policy to account for the terms of the divorce decree. At the time of Bruce’s death, Sier ra was still in high school. Richard and Sierra, as one might expect, made competing claims to Sun Life for the policy’s benefits. After learning of both Richard and Sierra’s claims, Sun Life decided to pay all of the proceeds to Richard, and litigation involving Sun Li fe, Richard, and Sierra followed.
Sun Life sought a declaratory judgment that it properly paid the proceeds to Richard. Sierra filed a counterclaim seeking a declaration that she was the la wful beneficiary. The district court issued a decision in Sierra’s favor and or dered Sun Life to pay $239,000 plus interest to Sierra. Sun Life Assurance Co

. of Can. v. Jackson , No. 3:14-cv-41, 20 16 WL 4184444, at *14 (S.D. Ohio Aug. 5, 2016). Sun Life appeals.

II.
In deciding whether Sierra or Richard is en titled to the proceeds of this life insurance policy, we must resolve two questions. One: What is the test for determining whether a qualified domestic relations orde r permissibly changed the benefi ciary of an ERISA-covered life insurance plan? Two: Does this divorce decree satisfy that test?

A.
The “clearly specifies” test. Subject to certain exceptions, ERISA mandates that an employee benefit plan’s assets are to be “held fo r the exclusive purposes of providing benefits to participants in the plan and their beneficiarie s and defraying reasonable expenses.” 29 U.S.C. § 1103(c)(1). The plan administrator must de termine participants and beneficiaries “in accordance with the documents and instruments governing the plan.” Id. § 1104(a)(1)(D). ERISA preempts “any and all State laws insofar as they . . . relate to any employment benefit plan.” Id. § 1144(a). Before 1984, this provisi on arguably would have prevented the enforcement of the court orde r at issue in this case. See Hawkins v. Comm’r of Internal Revenue ,No. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 4

86 F.3d 982, 988 (10th Cir. 1996) (describing the “j udicial rift” about preemption of domestic relations orders that existed before 1984).
In 1984, Congress amended ERISA to prov ide greater protection for spouses and dependents after a divorce. See S. Rep. No. 98-575, at 1, 3 (1984) ; H.R. Rep. No. 98-655, pt. 1, at 1, 30–31 (1984). One such protection was an exemption from ERISA’s general preemption provision for “qualified domestic relations or ders.” 29 U.S.C. § 1144(b)(7). A qualified domestic relations order includes any state “judgment, d ecree, or order” rela ting to the provision of “child support, alimony payments, or marital property rights” that r ecognizes an “alternate payee’s right to . . . benefits” and meets a number of other requirements. Id. § 1056(d)(3)(B)(i)– (ii).
This case turns on those require ments. Here they are:
A domestic order meets the requirements of this subparagraph only if such order clearly specifies— (i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount or percentage of the part icipant’s benefits to be paid by the plan to each such altern ate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies.

Id. § 1056(d)(3)(C).
In adding this provision to ERISA, Congress pr ovided that plan administrators could treat a domestic relations order entered prior to th e Act’s effective date (January 1, 1985) “as a qualified domestic relations orde r even if such order does not meet the requirements of such amendments.” Retirement Equity Act of 1984, Pub. L. No. 98–397, § 303(d), 98 Stat. 1426, 1453. As a result, we have held that domestic relations orders entered before 1985 need only “substantially comply” with this provision. Metro. Life Ins. Co. v. Marsh , 119 F.3d 415, 422 (6th Cir. 1997). But Marsh cabined this relaxed standard to pre-1985 orders. “As the divorce decree was written before th e REA amended ERISA in 1984,” Marsh explained, “we should notNo. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 5

demand literal compliance.” Id. When the Second Circuit adopted Marsh ’s substantial compliance test, Metro. Life Ins. Co. v. Bigelow , 283 F.3d 436, 443 (2d Cir. 2002), it likewise limited its application to pre-1985 orders, Yale-New Haven Hosp. v. Nicholls , 788 F.3d 79, 85 (2d Cir. 2015).
The Jacksons divorced long after 1985. The divorce decree dates from 2006, meaning that, to be a qualifying plan, Sie rra must meet the standards of § 1056(d)(3)(C) and thus must show that the Jacksons’ di vorce decree “clearly specifies ” the required information.
While a “clearly specifies” standard demands more than a “substantially complies” standard, that does not mean it re quires Simon Says rigidity or demands magic words. One may “clearly specify” something by implication or in ference so long as the meaning is definite. See Oxford English Dictionary 159 (2d ed. 1989) (To specify means “to mention, speak of, or name (something) definitely or exp licitly”); Webster’s New Intern ational Dictionary 2415 (2d ed. 1934) (“to mention or name in a specific or explicit manner”).
A few everyday examples illustrate the point. A cashier asks the grocery store customer: “paper or plastic?” The customer could signal his preference for pl astic bags by saying “plastic.” But he could just as clearly specif y his choice by saying “not paper.”
So too of a sports fan asked th is question: Who is the greatest basketball player of all time: Michael Jordan or LeBron James? He might respond “LeBron James,” which clearly specifies the answer. Or he might respond “N umber 23,” which does not clearly specify the answer. But if he responded “Number 23 of the Cleveland Cavalier s,” no one would be confused. The sports fan did not state “LeBron James.” But he did specify him. And clearly so.
A similar approach, informed by common sense and context, applies to the naming of the beneficiary of a life insurance policy. The statut e does not require that a particular provision of the divorce decree clearly specify the relevant details. It requires the entire “domestic order” to do so, examined in full, not silo by silo. See Russell v. Citigroup, Inc. , 748 F.3d 677, 681 (6th Cir. 2014). After all, plan administrators act as fiduciaries and must follow reasonable procedures in distributing benefits. See 29 U.S.C. § 1056(d)(3)(G), (I). It would not be reasonable for a fiduciary to fail to consider the entirety of the decree documents beingNo. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 6

interpreted. All of this demonstrat es that the statute’s “clearly sp ecifies” test doe s not require, as Sun Life argues, any “strict” method of compliance. See Brief for Appellant at 10–11.
Sierra and the Department of Labor, as amicus curiae , argue that this legal standard frustrates Congress’s purpose of protecting spouse s, ex-spouses, and dependents. No doubt, the words of the law seek to allow participants to alter their employment benefits more easily in response to changes in family status. But Congr ess rarely legislates to effectuate a single purpose. And it rarely pursues any given purpose at all costs. The essence of legislative choice is to decide how much of a particular objective to achieve at a particular cost to other interests.
See Contract Courier Servs. v. Research & Special Programs Admin. , 924 F.2d 112, 115 (7th Cir. 1991).
Two competing considerations were at pl ay in this instance: flexibility and administrability. The new law gave family members greater flexibility in changing the beneficiaries of an employee pla n. But it poured that new idea into an old scheme, one that demanded uniformity and a standard procedure for how to process claims and disburse benefits easily without undue risk of delay and litigation. Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan , 555 U.S. 285, 300–01 (2009).
Congress balanced these twin aims thr ough § 1144(b)(7) and § 1056(d)(3)(C). Those provisions protect spouses and depe ndents by allowing a state order, outside of the four corners of the employee benefit plan, to modify the di stribution of the plan’s benefits. 29 U.S.C. § 1144(b)(7). At the same time, the provisions pr otect plan administrato rs by requiring the order to be clear about the identity of the alternate payee and the benefits to be redirected. Id. § 1056(d)(3)(C). To lighten the load on one side of the tradeoff is to in crease the burden on the other.
We realize that this Court appeared to slip Marsh from its statutory mooring and applied the “substantially complies” test, rather than the “clearly specifies” legislative test, to post-1985 orders in two unpublished opinions. Mattingly v. Hoge , 260 F. App’x 776, 780 (6th Cir. 2008); Metro. Life Ins. Co. v. Clark , 159 F. App’x 662, 665 (6th Cir. 2005). But Clark went on to conclude that the divorce decree at issue was not only in substantial compliance but also inNo. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 7

“literal compliance” with the statute. 159 F. A pp’x at 665. And it is difficult to tell whether Mattingly relied on the relaxed standard and thus wh ether the standard made any difference to the outcome of the case. See 260 F. App’x at 780. Unpublished de cisions of this Court in any event are non-precedential and bind only the parties to those cases. FDIC v. Dover , 453 F.3d 710, 715 (6th Cir. 2006).
The Department of Labor also claims that the Seventh, Ninth, and Tenth Circuits have adopted a “substantially complies” test and urge s us to follow them. But neither the Seventh Circuit nor the Tenth Circuit mentions that phrase. Metro. Life Ins. Co. v. Wheaton , 42 F.3d 1080 (7th Cir. 1994); Hawkins , 86 F.3d 982; Carland v. Metro. Life Ins. Co. , 935 F.2d 1114 (10th Cir. 1991). In Wheaton , to the contrary, the Seventh Circuit concluded that “the literal reading of ERISA as amended by the Retirement Equ ity Act . . . makes more practical sense than a flexible reading” and emphasized that the “cl early specifies” language of § 1056(d)(3)(C) is “explicit and emphatic.” 42 F.3d at 1084. And the Tenth Circuit in Hawkins likewise concluded that “accept[ing] anything less than what [§ 1056( d)(3)(C)] expressly requires would . . . read language out of a statute” and thus refused to do “violence to the plain meaning of the statute.” 86 F.3d at 992. And although the Ninth Circuit ha s stated that it “require[s] substantial compliance” with the statutory requirements, it also cautioned that “an overly expansive interpretation may render the specificity requi rements toothless,” and concluded that “[t]he pivotal question is whether the di ssolution order ‘clearly contains the information specified in the
statute.’” Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan , 433 F.3d 1091, 1097 (9th Cir. 2006) (quoting Stewart v. Thorpe Holding Co. Profit Sharing Plan , 207 F.3d 1143, 1154 (9th Cir. 2000)).
To the extent these courts undertake a contextual inquiry that examines the decree in its entirety when applying the statut e, we do not disagree. That i ndeed is required. And to the extent any court means to adopt a “substantially co mplies” test for post-1985 orders, it neglects a congressional directive th at, to borrow a phrase, is clearly specified.No. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 8

B.
Application of the “clearly specifies” test. In assessing whether the Jacksons’ divorce decree “clearly specifies” the information require d by the statute, we may consider the divorce decree and the two other documents it incorpor ates: the Jacksons’ separation agreement and their shared parenting plan. The three documents , taken together, satisfy each of the relevant requirements, entitling Si erra to the benefits.
Name and mailing address of participant? The statute first requires the order to clearly specify the name and last known mailing addre ss of the plan participant. 29 U.S.C. § 1056(d)(3)(C)(i). Article IX of the separation agreement notes that “Father and Mother” shall maintain life insurance. R. 29-1 at 29. Thes e terms unambiguously refer to Bruce Jackson and Bridget Jackson, who are identified as the parents of Sierra Jacks on on Page 1 of the agreement. That page also lists their respective mailing addresses.
Name and mailing address of alternate payee? The statute next requires the order to clearly specify the name and maili ng address of each alternate pay ee from the payee identified in the plan. 29 U.S.C. § 1056(d)(3)(C)(i). Article IX requires Bruce to maintain life insurance “naming their minor child as primary beneficiary.” R. 29-1 at 29. Page 1 states that “[t]he parties have one (1) ch ild born the issue of this marriag e, namely: Sierra N. Jackson, born February 9, 1995.” Id. at 24. The agreement thus clearly specifies Sierra Jackson as the alternate payee.
As for the mailing address, the shared parenting plan designates Bruce and Bridget Jackson as the shared “residential parent[s] a nd legal custodian[s]” of Sierra Jackson. Id. at 20. The decree also states, as a court finding, that the “parties will be spending near equal time with the child.” Id. at 16. And again the mailing addresses of both Bruce and Bridget Jackson are listed on the front page of the separation agreement.
Amount or percentage of benefits? The statute next requires the order to clearly specify the amount or percentage of the participant’s be nefits to be paid to each alternate payee. 29 U.S.C. § 1056(d)(3)(C)(ii). Article IX spec ifies that Bruce shall maintain “all employerprovided life insurance . . . naming their minor ch ild as primary beneficiar y.” R. 29-1 at 29.No. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 9

Because the agreement identifies all employer-provided life insurance and names no other beneficiaries, Sierra plainly is entitle d to 100% of the benefit proceeds.
Number of payments or applicable period? The statute next requires the order to clearly specify the number of payments or the period to which such order applies. 29 U.S.C. § 1056(d)(3)(C)(iii). Ar ticle IX says that the obligation . . . shall continue until [Sierra] (a) reach(es) the age of eighteen (18) or graduates from high school, whic hever occurs last; or (b) is otherwise emancipated, or (c) some other event oc curs which relieves the parties of the obligation of child support, and provide d, however, that the duty of child support shall not continue past th e age of nineteen (19) un less ordered by a court. R. 29-1 at 29. This language plainly identifies the period during which Sierra is the alternate
payee.
Plan identity? The statute next requires the order to clearly specify each plan to which the order applies. 29 U.S.C. § 1056(d)(3)(C)(iv). Here too Ar ticle IX speaks unambiguously by referring to “all employer-provided life insurance.” R. 29-1 at 29.
Sun Life offers a number of competing argum ents. They are unpersuasive. Sun Life points out that Article IX in broader scope says that Bruce “shall maintain . . . all employerprovided life insurance, now in ex istence at a reasonable cost, or later acquired at a reasonable cost, naming their minor child as primary beneficiary.” Id. Sun Life argues that this creates ambiguity as to which plans are at issue. But the reasonable cost qualif ication most naturally speaks to the extent of Bruce’s obligation to maintain life insurance in the first instance. There is little dispute that, once Bruce entered into a life in surance plan, Sierra would be the beneficiary. There was thus no need for the plan administrato r to conduct an open-ended inquiry into whether a life insurance plan was acquired at reasonable co st. It is no coinciden ce that, in the litigation below, no one ever asked whether Bruce’s pa yment for the policy, $16.82 per pay period, was reasonable.
Sun Life faults the order for not specifying whether it pertained to Bruce’s basic or optional insurance. It also points out that it did not begin managing Bruce’s plan until 2008, twoNo. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 10

years after the decree was executed. But “all” means all—basic and opti onal coverage, no matter who manages the plan, and no matter wh en they assume those duties.
Sun Life also argues that Bruce’s optional life insurance is not “employer-provided life insurance” under the agreement because Bruce, rather than his employer, paid the plan premiums. True, but the optional life insuranc e plan was a group policy offered only through his employer. And there would be no reason for the agreement to specify “employer-provided life insurance now in existence at a reasonable cost ” if “employer-provided life insurance” covered only policies completely paid for by Br uce’s employer. R. 29-1 at 29.
Even if the divorce decree and accompanyi ng documents satisfy these specificity requirements, Sun Life argues that the remedial clause of the decree precludes Sierra from obtaining relief. “The parties’ minor child,” th at provision reads, “shall have a valid claim against the probate estate of a non-compliant party.” R. 29-1 at 30. But this provision does not state that the child has a claim against only the probate estate to the exclusion of everybody else. It just provides an alternate righ t of action. Sierra at any rate doe s not seek relief for a breach of the decree. She seeks relief because the decree amounts to a qualified domestic relations order under ERISA that entitles her to the life insurance proceeds.
In a variation on this theme, Sun Life argues that Bruce and Bridget failed to comply with the decree’s requirements to change the name of the beneficiary and monitor the beneficiary designation and thus extinguished an y rights Sierra may have had against Sun Life. Cut from the same cloth, this claim fails for much the same reason. These shortcomi ngs may have entitled Sierra to take action against the probate estate and perhaps those ri ghts now have been forfeited. But today Sierra brings a claim under ERISA, not a common-law contract claim. Her parents’ (alleged) non-compliance with the decree does not li mit Sierra’s rights under ERISA. As long as the order suffices as a qualified domestic relati ons order, she deserves the proceeds of her father’s life insurance policy.
Sun Life’s argument that Sierra cannot pur sue her claim because it was not timely notified of the existence of the order also fails. Sun Life does not dispute that Sierra’s attorney provided Sun Life with a copy of the order well before the payment was issued to Richard; thisNo. 17-3120 Sun Life Assurance Co. v. Jackson, et al. Page 11

notice was sufficient to preserve Sierra’s claim despite being received after Bruce’s death. See Nicholls , 788 F.3d at 86–87 (upholding th e validity of posthumous nunc pro tunc orders as qualified domestic relations orders); Files v. ExxonMobil Pension Plan , 428 F.3d 478, 489 (3d Cir. 2005) (holding that a qualified domestic re lations order may be pursued posthumously); 29 C.F.R. § 2530.206(c)(2) (noting that a qualified domestic relations order may be issued posthumously).
Richard Jackson, the unfortunate victim of this saga, has filed a pro se brief in which he seeks damages for loss of income related to this la wsuit. The district court rejected these claims below as meritless. And Richard never filed a no tice of appeal challenging that ruling. We thus have no authority to address it. 28 U.S.C. § 2107(a).
For these reasons, we affirm.