1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN VANDERKAM and GAYLYN DIERINGER , P laintiff s ,

v. PENSION BENEFIT GUARANTY CORPORATION and MELISSA VANDERKAM , Defendant s . Civil Action No. 09

- cv - 1907 (RLW)

MEMORANDUM OPINION Upon his retirement from the Huffy Corporation in August 1994, John VanderKam began receiving benefits under the Huffy Corporation Retirement Plan in the form of a Joint and 100% Survivor Annuity . At th at time, John was married to Melissa VanderKam, who m he ha d designated as the survivor beneficiary under the Plan. John and Melissa divorced eight years late r , and, after remarrying Gaylyn Dieringer in February 2003, John sought to substitute Gaylyn

as the survivor beneficiary under his retirement plan through a Domestic Relations Order (“ DRO”) entered by a Texas state court. 1 T he Plan initially approved the DRO as a Qualified Domestic Relations Order (“QDRO”) and substituted Gaylyn as an alternate survivor beneficiary. In 2005 , however, t he Pension Benefit Guaranty Corporation ( “ PBGC ” ) became statutory trustee of the Plan, and in the course of reviewing John’s benefit payments, PBGC determined that Gaylyn’s purported substitution as an alternate beneficiary was invalid and that Melissa remain ed the survivor beneficiary under the Plan.

1 For ease of reference, and because John and Melissa share the same last name, the Court refers to John, Melissa, and Gaylyn by their first names.2 Through this action, John and Gaylyn (collectively, “Plaintiffs”) seek reversal of PBGC’s determination under Section 502(a)(1)(B) of the Employee Retirement Income Security Act ( “ ERISA ” ), 29 U.S.C. § 1132(a)(1)(B) , arguing th at PBGC’s decision was arbitrary and capricious in violation of the Administrative Procedure Act ( “ APA ” ), 5 U.S.C. §§ 551, et seq
. Alternatively, Plaintiffs argue that, even if the Court uphold s PBGC’s decision , the Court should impose a constructive trust under Texas common law on any survivor b enefits received by Melissa under the Plan. In response to Plaintiffs’ summary judgment motion, both PBGC and Melissa have cross

- moved for summary judgment, urging the Court , respectively, to uphold
PBGC’s determination and to reject Plaintiffs’ alternative claims for relief. Upon careful consideration of the parties’ briefing and a thorough review of the Administrative Record, and based on the arguments of counsel durin g the hearing on April 29, 2013, the Court concludes that PBGC’s decision is both reasonable and reasonably explained, and the Court also finds that Plaintiffs’ claims against Melissa under Texas state common law

are preempted by ERISA’s statutory scheme. As a result, and for the reasons more fully set forth herein, the Court will DENY Plaintiffs’ Motion for Summary Judgment ( Dkt. No. 43 ), and will GRANT PBGC’s and Melissa’s Cross

- Motions for Summary Judgment (Dkt. Nos. 4 6 , 47 )

.
BACKGROUND On August 1, 1994, John retired from his employment with the Huffy Corporation. (Administrative Record (“AR”) 34 ). Through his position with Huffy, John was a participant in the Huffy Corporation Retirement Plan (the “Plan”), and , prior to his retirement , he elected to receive his Plan benefit as a joint

- and

- 100%

- survivor annuity and designated his then

- wife, Melissa, as the survivor beneficiary. (AR 34

- 36 ). This benefit is a considered a “Qualified Joint3 and Survivor Annuity” (“QJSA”) for purposes of E RISA and the Internal Revenue Code. See 29 U.S.C. § 1055 (a)(1)

. 2 Upon retirement, John began receiving payouts under the Plan. John and Melissa divorced approximately eight years later, in March 2002, and a f inal d ecree of d ivorce was entered in Texas state court . (AR 232). Pursuant to this d ecree, John was awarded “as his sole and separate property” all rights “related to any . . . pension plan . . . existing by reason of [his] past, present, or future employment.” (AR 250). In March 2003, John married Gaylyn, and he sought to designate Gaylyn as an alternate payee for the survivor benefits under the Plan. To this end, John petitioned a Texas state court for a DRO

— the substance of which had been draft ed by the Plan’s legal counsel

. (AR 24

- 26,
274 ). Melissa objected to and opposed John’s efforts in those proceedings, arguing that she did not disclaim any interest in the Plan as part of the prior divorce decree. The Texas court ultimately approved the DRO, concluding that Melissa “waived he r entitlement to the survivor annuity” as part of the divorce decree; that the divorce decree “divested [Melissa] of all interest and rights to [John’s] Retirement Benefit with the Huffy Corporation, including specifically the survivor annuity portion of t he Retirement Benefit”; and that John “wishes to designate a beneficiary with respect to the survivor annuity portion of the Retirement Benefit.” (AR 24). The DRO proceeded to name Gaylyn as an alternative payee, explaining that she “is entitled to

2 As the Ninth Circuit has succinctly explained: ERISA provides for two types of survivor annuity benefits. If a vested participant dies before the annuity start date and the participant is survived by a spouse, the surviving spouse is entitled to a qualified preretirement survivor annuity (“QPSA”) . . . . QJSA benefits arise when the participant does not die before the annuity start date. These benefits are payable to the plan participant for his lifetime after the annuity start date and, if the plan participant dies before his spouse, the surviving spouse will receive no less than 50 percent of the amount of the annuity for the remainder of her lifetime. Carmona v. Carmona , 603 F.3d 1041 1053 (9th Cir. 2010) (amended opinion). Here, because John did not die prior to the annuity starting date

— i.e., his retirement from Huffy

— the applicable benefit is a QJSA.4 the s urvivor annuity portion of the Retirement Plan distribution in accordance with the provisions of the Plan. The survivor annuity portion of the Retirement Benefit remains unchanged and is calculated based upon the life expectancies of [John] and [Melissa]. ” (AR 24). The Plan’s legal counsel determined that the DRO issued by the Texas state court was a valid Q DRO for purposes of ERISA, and the Plan administrat or thus designated Gaylyn as an alternate payee with respect to the survivor benefits in August 2003 . (AR 43). In August 2005, t he Plan terminated, at which time PBGC became its statutory trustee. 3 Around that time, it appears that PBGC reduced the amount of John’s monthly benefit payment, and John subsequently requested a review of hi s benefit payments by letter dated February 15,
2006 . (AR 360). Ultimately, PBGC completed its review of John’s benefits and notified him of its determination in September 2008. (AR 277

- 283). PBGC increased John’s monthly benefit payment from $2,839.45 to $4,317.09, but in the course of examining John’s file , PBGC also determined that Melissa , and not Gaylyn, was the proper beneficiary for the survivor annuity

3 PBGC serves a unique and important role in ensuring the integrity of pension plan benefits in the United States. As the Supreme Court has explained: PBGC is a wholly owned United States Government corporation, modeled after the Federal Deposit Insurance Corporation . . . . The PBGC administers and enforces Title IV of ERISA. Title IV includes a mandatory government insurance program that protects the pension benefits of over 30 million priv at e - sector American workers who participate in plans covered by t he Title. In enacting Title IV , Congress sought to ensure that employees and their beneficiaries would not be completely deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the p lans. When a plan covered under Title IV terminates with insufficient assets to satisfy its pension obligations to the employees, the PBGC becomes trustee of the plan, taking over the plan’s assets and liabilities. The PBGC then uses the plan’s assets t o cover what it can of the benefit obligations. The PBGC must then add its own funds to ensure payment of the most of the remaining “nonforfeitable” benefits, i.e., those benefits to which participants have earned entitlement under the plan terms as of th e date of termination. PBGC v. LTV Corp. , 496 U.S. 633, 636

- 38 (1990) (internal citations and quotation marks omitted).5 benefits under the Plan. (AR 277

- 283). John contacted PBGC seeking clarification on th is ben eficiary determination , and PBGC responded via letter on December 11, 2008, explaining: PBGC policy is as follows: The survivor annuity that becomes payable under this policy to a surviving spouse will only be paid to the spouse if he or she was married to the participant on the participant’s annuity starting date. The participant’s spouse continues to be entitled to the survivor annuity even if the participant and that spouse are not married on the date of the participant’s death. A participant may desig nate any living person as the beneficiary of an optional joint

- life annuity form. The beneficiary may not be changed after the first payment date. (AR 284). 4 In February 2009, John formally requested an “initial determination” from PBGC, under 29 C.F.R. §§ 4003.21 and 4003.51, “concerning its change to [his] beneficiary designation for the survivor portion of his annuity retirement benefits.” (AR 287

- 290 ). PBGC responded via letter on February 26, 2009, advising John as follo ws: As mentioned in our previous letter dated 12/11/2008, PBGC is unable to change the designation of beneficiary made by the Participant. At the time of the participant’s retirement which was 08/01/1994, he elected a Joint and 100% Survivor Annuity with Melissa Vander K am. A spousal waiver can only occur at the participant’s date of retirement in order to be a valid waiver. Once the benefit election is implemented, it cannot be changed or waived after the first payment has been made. Therefore, the Divor ce Decree dated 03/15/2002, the Order for Clarification and Modification dated 7/30/2003, all of which are dated after the participant’s date of retirement have no affect [sic] on Melissa Vander K am’s entitlement and eventual receipt of the survivor annuity

. (AR 310

- 311).

4 PBGC’s reasoning at th at time is further elucidated by an internal “Service Request Details” form, which summarizes the history as f ollows: A letter dated 12/11/2008 was sent to [John VanderKam] explaining that his designation of beneficiary was made at the time of his election and being put into pay. He elected his ex wife Melissa as beneficiary on J&S 100% survivor annuity. His ben efit calculation was based on the ages of both of them and according to the provisions of the plan cannot be changed after he goes into pay. He has been in pay for several years and this election cannot be rescinded by any divorce decree, Order on Motion of Clarification or QDRO. The initial election must be upheld by PBGC . . . . (AR 285

- 286).6 J ohn and Gaylyn then initiated this lawsuit against PBGC on October 7, 2009. (Dkt. No. 1). About two months later, on December 18, 2009, PBGC formally responded to John’s request for an “initial determination,” advising that although it “initially declined to issue such a determination, . . . upon further consideration, PBGC has decided that your request for issuance of a determination is reasonable.” (AR 27

- 33 ). Therein, PBGC explained its conclusion that the domestic relations order i ssued by the Texas state court did not constitute a valid QDRO under ERISA, and that Melissa’s purported waiver and disclaimer of the survivor annuity benefit under the Plan was ineffective. (AR 27

- 33). This action was then stayed while Plaintiffs exhaus ted their administrative remedies with PBGC, ( see Dkt. Nos. 7, 8), until the PBGC Appeals Board ultimately upheld the initial determination in a letter dated November 24, 2010, (AR 2

- 22). Plaintiffs then filed a First Amended Complaint, (Dkt. No. 10), and PBGC moved to join Melissa as a required party under Federal Rule of Civil Procedure 19, (Dkt. No. 20). The Court granted
PBGC’s motion on February 7, 2012 , (Dkt. No. 30), and Plaintiffs then filed a Second Amended Complaint adding Melissa as a defendant on February 21, 2012, (Dkt. No. 32). Through their Second Amended Complaint, Plainti ffs challenge and seek reversal of the PBGC Appeals Board’s determination pursuant to 29 U.S.C. § 1303(f)(1) ( Count I ), and they also allege that the Appeals Board’s determination violates ERISA’s “anti

- cutback rule,” 29 U.S.C. § 1054(g) ( Count II ). In addition, Plaintiffs assert a number of claims against Melissa under Texas state common law : a claim seeking a declaratory judgment, pursuant to 28 U.S.C. §
22 01(a), that John has equitable title to the survivor annuity benefits under the Plan ( Count III ); a claim for unjust enrichment, asking the Court to impose a constructive trust on any survivor benefits received by Melissa under the Plan ( Count IV ); and a c laim for anticipatory breach of contract ( Count V ). The parties settled on a briefing schedule for cross

- motions for summary7 judgment, and the Court subsequently heard arguments from the parties during a hearing on April 29, 2013, at which time it took th e matter under advi sement.

ANALYSIS This action presents two distinct s ets of issues for the Court’s review. First, the Court must consider Plaintiffs’ challenge to the PBGC Appeals Board’s decision, determining whether the Appeals Board reasonably and appropriately concluded that Melissa, and not Gaylyn, remains the proper beneficiary of the survivor annuity benefits under the Plan, based on ERISA’s statutory framework and the terms of the Plan itself. Second, if the Court upholds the Appeals Board’s determination, the Court must consider whether it can and should impose a constructive trust, under Texas common law, over any benefits received by Melissa pursuant to the Plan. The
Court takes each of these issues in turn.

A. The PBGC Appeals Board’s Determination Several aspects of the Appeals Board’s decision are implicated by Plaintiff s’ claims

. First, Plaintiffs challenge PBGC’s determination that the DRO they obtained is not a valid QDRO because it would provide a “type of form of benefit . . . not otherwise provided under the plan,” in contravention of ERISA section 206(d)(3)(D)(i)

. See 29 U.S.C. § 1056(d)(3)(D)(i). Second, Plaintiffs challenge PBGC’s conclusion tha t Melissa could not have waived her survivor benef it through a QDRO , in any even t, because her survivor benefits irrevocably vested upon the annuity starting date and therefore could not be divested through a subsequent DRO . While PBGC addressed the se iss ues in this sequence

— and while the parties ’ briefing largely adheres to the same structure

— the Court believes it more appropriate to first resolve the issue of whether Melissa’s survivor benefits were vested (and, consequently, not waivable or assignable ), before turning to analyze whether the DRO issued by the Texas state court wa s a valid QDRO. Finally,8 the Court considers Plaintiffs’ argument that PBGC waived the ability to contest the validity of the QDRO and /or the substitution of Gaylyn as the survivor annuity beneficiary, given the Plan administrator’s initial approval of the DRO as a valid QDRO before PBGC bec a me statutory trustee of the Plan

.
1. Standard of Review Pursuant to its authority as statutory trustee, P BGC is responsible for administering benefits under terminated pension plans, which includes the authority and duty to make determinations with respect to the plan participants ’ benefits. See 29 U.S.C. § 1342(d)(1)(B). Participants may then challenge suc h determinations before the PBGC Appeals Board, see 29 C.F.R. §§ 4003.21, 4003.51, and “[t]he decision of the Appeals Board constitutes the final agency action by the PBGC with respect to the determination which was the subject of the appeal,” id. § 4003.5 9(b). Decisions of the Appeals Board are then subject to review under the
APA. See LTV Corp. , 496 U.S. at 636, 656; Davis v. PBGC , 864 F. Supp. 2d 148, 155 (D.D.C. 2012); U nit ed Steel v. PBGC , 839 F. Supp. 2d 232 , 241 (D.D.C. 2012) ; Air Line Pilots Ass’n v.
PBGC , 193 F. Supp. 2d 209 , 220

- 21 (D.D.C. 2002)

. U nder the APA, a court must set aside agency action as unlawful if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The Court notes that both Plaintiffs and PBGC agree that the APA’s “arbitrary and capricious” standard applies to the Court’s review of PBGC’s decision in this case. (Dkt. No. 43 (“Pls.’ Mem.”) at 12; Dkt. No. 47 (“PBGC Mem.”) at 10

- 12). 5 The “arbitrary and capricious” standard

5 At oral argument, however, counsel for Plaintiffs suggested otherwise and argued that a de novo standard of review applies as to som e issues presented in this case, citing as support the following cases: Dycus v. PBGC , 133 F.3d 1367 (10th Cir. 1998); Burgin v. OPM , 120 F.3d 494 (4th Cir. 1997); and Air Line Pilots Ass’n , 193 F. Supp. 2d 209. But these decisions do not dictate that a d e novo standard governs the review of a P BGC Appeals Board decision, as the9 of review is a narrow one, and it is well settled that “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983). The Co urt must be satisfied that the agency “examine[d] the relevant [issues] and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. ; Nat’l Ass’n of Home Builders v. EPA , 682 F.3d 1032, 1036 (D.C. Cir. 2012). While a reviewing court must conduct a “searching and careful” review, the agency’s action remains “entitled to a presumption of regularity,” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 415 (1971), an d the Court “will not second guess an agency decision or question whether the decision made was the best one,” C & W Fish Co. v.
Fox , 931 F.2d 1556, 15 65 (D.C. Cir. 1991) . The Court must uphold PBGC’s decision “so long as the agency ‘engaged in reasoned d ecisionmaking and its decision is adequately explained and supported by the record. ’ ” Clark County v. FAA , 522 F.3d 437, 441 (D.C. Cir. 2008) (quoting N.Y. Cross Harbor R.R. v. STB , 374 F.3d 1177, 1181 (D.C. Cir. 2004)).

2. PBGC’s Finding That Melissa Did Not Waive Her QJSA Benefit And Could Not Transfer Her Survivor Benefit Interest To Gaylyn Through A QDRO In its decision, the PBGC Appeals Board determined that the DRO issued by the Texas court could not divest Melissa’s survivor annuity benefit because her rights irrevocably vested upon the annuity starting date. (AR 13

- 18). For the same reasons, the Appeals Board also

Court undertakes here ; at most, these cases stand for the proposition that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989) (cited with approval in Dycus , 133 F.3d at 13 69). And Plaintiffs concede that , for purposes of this case, “the Plan give s the Plan Administrator discretion to construe and interpret the Plan’s terms.” (Pls.’ Mem. at 12). Moreover, Burgin did not even involve claims under ERISA or the actions of PBGC , see generally 120 F.3d 494, and in Air Line Pilots Ass’n , the court did not raise the issue of de novo review whatsoever and actually applied the APA’s arbitrary and capricious standard to the PBGC decision at issue , see 193 F. Supp. 2d at 220.10 rejected Plaintiffs’ arguments that Melissa had waived her right to the survivor annuity benefit, whether through the decree of divorc e or the domestic relations order. While PBGC analyzed these issues separately

— both in the Appeals Board’ s decision and through its briefing in this

case

— in the Court’s view, the two issues turn on the same legal principles for purposes of this decision a nd will therefore be analyzed together

. 6 As PBGC explains, the Appeals Board reached its determination by relying upon decisions from the Fourth, Fifth, and Ninth Circuits, all of which “have found that a survivor benefit irrevocably vests in the benefici ary at the [annuity starting date] and cannot be reassigned thereafter by a [domestic relations order].” (PBCG Mem. at 12). See Carmona , 603 F.3d at 10 48 (“[W]e hold that QJSA surviving spouse benefits irrevocably vest in the participant’s spouse at the time of the annuity start date . . . and may not be reassigned to a subsequent spouse.”) ; Rivers v. Cent. & S.W. Corp. , 186 F.3d 681 , 683 (5th Cir. 1999) ( holding that participant’s “pension benefits irrevocably vested in [his then

- spouse] on the date of his retirement and [his subsequent spouse] is forever barred from acquiring an interest in [his] pension plan”) ; Hopkins v. AT&T Global Info. Solutions Co. , 105 F.3d 153, 1 56 ( 4th Cir. 1997) (“Surviving [s]pouse [b]enefits vest in the spouse married to the participant on the date of retirement.”)

. Given the significant precedential weight afforded to these decisions by PBGC, the Court summarizes each case in some detail.

6 In fact, PBGC described the interconnectedness of the two questions itself in the Appeals Board decision: “PBGC’s determination stated that the DRO cannot be a QDRO because it impermissibly ‘attempts to divest Melissa of her statutory right to the sur vivor benefit after that right had already vested.’ You disagree, asserting that Melissa validly had waived her statutory rights to the survivor benefit in the Divorce Order.” (AR 13). That said, the Court recognizes that Plaintiffs parse out the issue s analytically to some extent

— asserting that Melissa’s purported waiver of the benefits through the divorce decree opened the door for the subsequent DRO that ostensibly assigned the survivor benefit to Melissa. But since PBGC’s rejection of these ar guments turned on the same analysis, the Court considers the issues together.11 First, in Hopkins , the Fourth Circuit , describing the question as one of “first impression in the federal courts,” considered whether an ERISA plan participant’s former wife was entitled to surviving spouse benefits based on a DRO issued by a West Virginia court after the plan participant’s remarriage to his second wife and subsequent retirement date. 105 F.3d at 154

- 155. After closely examining ERISA’s statutory framework, the court answered the question in the negative, conclud ing that “ [s] urviving [s] pouse [ b ] enefits vest in the participant’s current spouse on the date the participant retires.” Id. at 156. In so holding, the Fourth Circuit placed particular emphasis on Congress’ enactment of the Retirement Equity Act (“REA”), which amended ERISA’s requirement that , to qualify for surviving spouse benefits, a spouse must be married to a participant both at the time of the participant’s retirement and at the time of the participant’s death

. Id . Upon passage of the REA, Congress did away with the latter criterion, such that surviving spouse benefits may now “be paid to a spouse who was married to the participant on the date of the participant’s retirement , regardless of whether that spouse is m arried to the participant on the date of the participant’s death.” Id. 7 The court also emphasized that the REA “makes it more difficult to replace a joint and survivor annuity

— along with its [s]urviving [s]pouse [b] enefits,” given that such a change can only be accomplished “during the ninety

- day period prior to retirement, and only with the written consent of the participant’s current spouse.” Id. at 156

- 57. For all these reasons, the Fourth Circuit held that the appellant’s DRO did not entitle her to the surviving spouse benefits because those benefits had vested in the participant’s second

7 These changes did not render the statute without some limitations, however. Even after the passage of the REA , ERISA still requires that the spouse seeking survivor benefits either must have be en married to the participant for at least one year prior to the participant’s retirement, or must have be en married to the participant prior to retirement and for at least a o n e year period prior to the participant’s death. 29 U.S.C. § 1055(f).12 wife upon his retirement. Id. at 157. T wo years later, the Fifth Circuit was confronted with a nearly

- identical set of circumstances in Riv ers and expressly adopted the Fourth Circuit’s rationale in Hopkins. Rivers , 186 F.3d at 683

- 84. More specifically, the Rivers court held that th e surviving spouse benefits at issue had irrevocably vested in the plan participant’s second wif e at the time of his retirement and therefore could not be assigned to his first wife through a DRO : This Circuit agrees with the Fourth Circuit’s decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin’s pension plan by neglectin g to obtain a QDRO prior to Franklin’s retirement date. Consequently, Franklin’s pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin’s pension plan. Id.
R ecently, the Ninth Circuit was presented with a situation even more analogous to the claims pressed by Plaintiffs in this case. See Carmona , 603 F.3d 1041. The salient facts of
Carmona revolved around the QJSA benefits of Lupe Carmona under two separate pension plans and the ensuing litigation between Janis Carmona and Judy Carmona

— Lupe’s eighth and ninth wives , respectively

— as to who was entitled to the survivor annuity portion of those benefits upon Lupe’s death. Id. at 1048

- 50. Lupe had married Janis in 1988, and, while they were married, he designated Janis as his survivor beneficiary under the applicable plans. Id. at 1048. Lupe then retired in 1992 and began receiving payments un der the pension plans. Id. In 1994, Lupe and Janis commenced divorce proceedings, through which Lupe sought to remove Janis as the survivor beneficiary ; the Nevada state family court ultimately granted Lupe both pensions “as his sole and separate propert y.” Id. Three years later, in 1997, Lupe married Judy and petitioned the Nevada family court for a QDRO revoking Janis’ designation as the survivor beneficiary, and substituting Judy in her place. Id. at 1049. Lupe died in 1999, survived by both Janis and Judy, and the Nevada court ordered the plan administrators to change the survivor13 beneficiary from Janis to Judy, or, alternatively, ordered that any funds received by Janis under the plans be placed in a constructive trust with Judy as the beneficiary

. Id. Janis appealed the decision, and the Nevada Supreme Court affirmed. Id. Janis then initiated a federal lawsuit against Judy and the pension plans under 29 U.S.C. § 1132(a)(3), and one of the pension plans

cross - claimed against Judy for declarator y relief. Carmona , 603 F.3d at 1049

. The district court dismissed Judy’s claims under the Rooker

- Feldman doctrine and rejected the pension plan’s claims on the merits, “conclud[ing] that ERISA does not preclude a state court from issuing a QDRO substituting an alternate payee for a surviving spouse after a plan participant’s retirement.” Id. at 1050. On appeal, the Ni nth Circuit affirmed t he dismissal of Judy’s claims on Rooker

- Feldman grounds, but it reversed the district court’s holding as to the substitution of surviving spouse beneficiaries: “ [W]e hold that QJSA surviving spouse benefits irrevocably vest in the
par ticipant’s spouse at the time of the annuity start date

— in this case the participant’s retirement

— and may not be reassigned to a subsequent spouse.” Id. at 1047. In reaching this conclusion, the court relied substantially on the Fourth Circuit’s decision in Hopkins , and was “persuaded by the structure and purpose of ERISA that the rule enunciated in Hopkins is the proper rule for QJSA benefits.” Id. at 1057. The court then specifically outlined several bases for its conclusion. First, the court found s ignificant ERISA’s statutory restrictions allowing the participant and spouse to opt out of a QJSA benefit only during the limited election period: It is difficult to see how courts may reassign QJSA surviving spouse benefits at any time given the fact that the statutory scheme so diligently and strictly protects the interests of the participant’s spouse at the time of the participant’s retirement by establishing that the only way to avoid QJSA survivor benefits is by opting out in writing before the retirement date

. Id. at 1057 n.10 (emphasis in original). Second, the Ninth Circuit was convinced, as the Fourth Circui t had been , that the amendments enacted through the REA supported such a result:14 The fact that the REA establishes that surviving spouse benefits may now be paid to a spouse who is married on the day of the participant’s retirement, regardless of whether the participant and spouse are ma rried at the participant’s death, suggests that the retirement date is the crucial date for establishing the rights of the surviving spouse. Following this reasoning, we conclude that once a participant retires, the spouse at the time becomes the “survivi ng spouse” entitled to the QJSA benefits. Id. at 1057

- 58. Third, the court believed “that the ultimate objectives of Congress are served by recognizing the rule that a QDRO may not reassign surviving spouse benefits after a plan participant had retired ,” noting that ERISA’s surviving spouse benefits were designed, in part, “to ensure a stream of income to surviving spouses.” Id. at 1058 (quoting Boggs v. Boggs , 520 U.S. 833, 843 (1997)). Finally, the court concluded that “a vesting rule also promotes one of the principal goals underlying ERISA: ensuring that plans be uniform in their interpretation and simple in their application.” Id. at 1059 (internal citation and quotation marks omitted). For all of these reasons, the Ninth Circuit summed up its deci sion as follows: “Because the retirement of a plan participant ordinarily creates a vested interest in the surviving spouse at the time of the participant’s retirement, we conclude that a DRO issued after the participant’s retirement may not alter or assig n the surviving spouse’s interest to a subsequent spouse.” Id. at 1059

- 60. With these decisions firmly in mind, the Court turns back to the circumstances of the case at bar. Based on the reasoning of these cases

— principally the Ninth Circuit’s analysis in
Carmona

— the Appeals Board concluded that Melissa did not waive her right to the survivor annuity benefit and resolv ed that , even if “Melissa had the authority to disclaim the Plan’s survivor benefit, that benefi t cannot be reassigned to Gaylyn through a QDRO.” (AR 13

- 1 8 ). Because John was married to Melissa at the time of his retirement, and because John and Melissa did not elect to waive the QJSA benefit or elect another benefit option within the 90

- day window under applicable provisions of the Plan and ERISA, PBGC concluded that the survivor annuity benefit irrevocably vested in Melissa at the time of John’s retirement. Consequently, PBGC15 determined that Melissa did not subsequently waive the survivor benefit or assign the benefit to Gaylyn, whether through the divorce decree or the DRO later entered by the Texas court. In view of the thorough explication that PBGC offered for its determinat ion

— including the detailed discussion and application of the above

- de scribed cases to the issues presented in Plaintiffs’ appeal

— the Court finds that PBGC’s decision was b ased upon reasoned decisionmaking and is rationally supported by the record and by applicable law. 8 None of Plaintiffs’ arguments compels any contrary conclusion. To begin with, the Court notes that Plaintiffs failed to include so much as a passing reference to Carmona , Rivers , or Hopkins in their opening brief

. This approach is telling. Indeed, it is not until Plaintiffs’ responsive brief that they even attempt to distinguish and diffuse the impact of these decisions, but , even then, their efforts are unavailing and half

- hearted at best . In essence, Plaintiffs brush aside the careful analysis of the Fourth, Fifth , and Ninth Circuits because, in their view, “neither Congress nor the Plan intended survivor benefits to vest in a spouse at all.” (Pls.’ Reply at 8). According to Plaintiffs, these decisions improperly “inferred that the ASD is the point at which the surviving spouse benefits vest in the participant’s spouse” and “did not consider ERISA’s nonforfeitability provisions.” (Pls.’ Reply at 9

- 10 ). Plaintiffs alternatively argue th at, “[e]ven if Congress intended for survivor benefits to vest in a spouse, it plainly did not intend for those benefits to vest unless and until the spouse actually survived the participant.”

8 It also bears noting that, in addition to the decisions discussed above, courts in other jurisdictions have similarly concluded that a surviving spouse’s benefits vest upon the plan participant’s retirement and cannot thereafter be divested, altered , or assigned. See , e.g. , Anderson v. Marshall , 856 F. Supp. 604, 607 (D. Kan. 1994); Montgomery v. AGC

- Int’l Union of Operating Eng’rs Local 701 Pension Trust Fund , 2010 WL 1406566 (D. Ore. Apr. 5, 2010); Walsh v. Wood s , 638 S.E. 2d. 85, 90

- 91 (S.C. Ct. App. 2006). But see Torres v. Torres , 60 P.3d 798 (Haw. 2003) (holding that surviving spouse benefits did not vest in the then

- current spouse upon the participant’s retirement).16 Th ese argument s miss the mark i n several respects. As PBGC points out, Plaintiffs’ nonforfeitability theory seems to “ conflate [] the concepts of a nonforfeitable claim to a survivor benefit and a benefit payment. ” (Dkt . No. 57 (“PBGC Reply”) at 3

- 4) (emphasis in original). ERISA’s definition of “nonforfeitable” refers to “a cl aim obtained by a participant or his bene ficiary to that part of an immediate or deferred benefit,” and not to the payment of any such benefit, as Plaintiffs’ theory presupposes. 29 U.S.C. § 1002(19); Nachman Corp. v. PBGC , 446 U.S. 359, 371 (1980) (“[I]t is the claim to the benefit, rather than the benefit itself, that must be ‘unconditional’ and ‘legally enforceable against the plan.”). Thus, even if Melissa’s right to payment of the survivor annuity benefit under the Plan did not become “nonforfeitable” until John predeceases her, as Plaintiffs suggest, this would in no way dislodge Melissa’s irrevocable right to a claim for the survivor benefit, which vested upon John’s retir ement. Perhaps m ore significantly, however, even if the Court were to credit Plaintiffs’ interpretation as reasonabl e, this conclusion would not render PBGC’s contrary interpretation unreasonable , which is, of course, the hurdle Plaintiffs must clear to establish that the Appeals Board’s decision was “arbitrary and capricious.” Simply stated, Plaintiffs fail to demonstrate that PBGC’s decision, which was based on dire ctly analogous holdings from three separate Courts of Appeals, fails to evidence a “rati onal connection between the facts found and the choice made.” State Farm , 463
U.S. at 43. 9

9 It also appears that Plaintiffs never advanced this particular line of attack before the Appeals Board, which means that they may well have waived the argument altogether. See, e.g. , Nuclear Energy Inst. , Inc. v. EPA , 373 F.3d 1251, 1297

- 98 (D.C. Cir. 2004) (“It is a hard and fast rule of administrative law, rooted in simple fairness, that issues not raised before an agency are waived and will not be con sidered by a court on review.”). However, since PBGC does not urge such a result

— and since the Ninth Circuit’s amended opinion in Carmona postdated Plaintiffs’ appeal letter

— the Court will not deem the issues waived. Of course, Carmona aside, Plaintiffs’ nonforfeitability argument could have been mounted just as easily against the Hopkins and Price deci sions, which were longstanding precedent at the time of Plaintiffs’ appeal. T o the17 The Court dispatches with Plaintiffs’ remaining arguments on this issue in relatively short order. First, the Court rejects the notion that the Supreme Court’s dec ision in Kennedy dictates reversal o f the Appeals Board’s decision. Plaintiffs repeatedly cite Kennedy for the proposition that “the law certainly is not so absurd to force a man to take an estate against his will.” ( See,
e.g. , Pls.’ Mem. at 15; Pls.’ PB GC Reply at 12). While true, t his principle finds no application in the present case. At its core, Kennedy simply held that ERISA’s antialienation provision, 29 U.S.C. § 1056(d)(1), does not render all waivers of plan benefits null and void

— as the ab ove quoted language illustrates; instead, the Court reiterated the so

- called “plan documents rule,”

e xplain ing that , to be valid, a waive r must adhere to ERISA’s other statutory requirements and the governing procedures and terms of the plan. Kennedy , 555 U.S. at 299

- 304. Put another way, “[a]s the Supreme Court made clear in Kennedy , ERISA’s antialienation provision does not prohibit a surviving spouse beneficiary from waiving his or her interest in plan benefits, but such a waiver must also conform to p lan procedures an d instruments.” Carmona , 603 F.3d at 1060. Here, it is undisputed that Melissa did not waive her surviving spouse benefits in accordance with the Plan’s terms; John and Melissa never executed a waiver within the 90

- day election period pr eceding his retirement

— in fact, John expressly elected otherwise, clearly and affirmatively designating Melissa as the survivor beneficiary in the months leading up to his retirement. (AR 34

- 36). Consequently, PBGC correctly and reasonably determined tha t the “holding in Kennedy does not dictate how the Appeals Board must decide the VanderKam appeals.” (AR 14).

extent that Plaintiffs though t that those courts got it wrong, they could and should have raised th is argument with the PBGC Appeals Board. But at the administrative level , Plaintiffs argued only that the relevant holding in the original Carmona opinion was abrogated by the Supreme Court’s decision in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan , 555 U.S. 285 (2009), without any mention of Hopkins or Price , let alone that those decisions wrongly failed to account for ERISA’s “nonforfeitability provisions.” ( See AR 312

- 317 , 354

- 355 ).18 Similarly, Plaintiffs’ reliance on Treasury Regulation 1.401(a) fails to advance their position. This particular portion of the regulations provides as follows : If a participant dies after the annuity starting date, the spouse to whom the participant was married on the annuity starting date is entitled to the QJSA protection under the plan. The spouse is entitled to this protection (unless waived and consented to by such spouse) even if the participant and spouse are not married on the date of the participant’s death, except as provided in a QDRO. 26 C.F.R. § 1.401(a)

- 20, Q&A

- 25(b)(3) (emphasis added). Plaintiffs seize on the italicized
l anguage to support the unremarkable and unassailable proposition that “Congress intended that QDROs could alter QJSA benefits.” (Pls.’ PBGC Reply at 6). But what Plaintiffs overlook is that this principle is entirely consistent with the holdings of Carmo na , Hopkins , and Price , and, in turn, the decision of the Appeals Board in this case. A valid QDRO can, of course, alter or substitute the beneficiary of surviving spouse benefits, so long as the QDRO is secured prior to the participant’s retirement and the resultant vesting of those benefits in the participant’s then

current spouse. To the extent that Plai ntiffs suggest that a QDRO must be recognized as valid regardless of whether it was obtained before or after the participant’s retirement

— essenti ally trumping the vesting date of surviving spouse benefits

— the Court rejects this premise, both because it runs directly counter to the holdings of the Fourth, Fifth, and Ninth Circuits, a nd because Plaintiffs provides no contr ary authority to support the ir position. Finally, the Court is unpersuaded by the string

- cite of cases Plaintiffs pr offer for the proposition that “[f]ederal courts have long held that language in parties’ divorce decrees can serve as federal common

- law waivers of their rights to ER ISA

- plan benefits.” (Pls.’ Mem. at 13

- 14). As PBGC points out, none of those cases considered whether a surviving spouse can waive QJSA benefits after the participant’s retirement, or even concerned QJSA benefits whatsoever. See Lyman Lumber Co. v. Hill , 877 F.2d 692 (8th Cir. 1989) (analyzing profit

- sharing plan); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown , 897 F.2d 275 (7th Cir. 1990)19 (considering lump

- sum death benefit); Brandon v. Travelers Ins. Co. , 18 F.3d 1321 (5th Cir. 1994) (eva luating life insurance proceeds); Melton v. Melton , 324 F.3d 941 (7th Cir. 2003) (same); Clift v. Clift , 210 F.3d 268 (5th Cir. 2000) (same). Moreover, two of these decisions

— Fox Valley and Brandon

— were expressly abrogated by the Supreme Court’s holding i n Kennedy that a “federal common law waive r of plan benefits is [ in]effective where that waiver is inconsistent with plan documents.” Kennedy , 555 U.S. at 291

- 92 & n.5

. Instead, the Court finds PBGC’s reliance on the Carmona , Hopkins , and Price decisions

— which squarely wrestled with the unique statutory framework governing QJSA benefits, and which concluded that surviving spouse benefits vest upon the participant’s retirement date

— to be reasonable and amply supported by the Administrative Record in this matter.

3. PBGC’s Finding That T he DRO Did Not Qualify As A Valid QDRO The Appeals Board also found that Gaylyn could not be substituted as the beneficiary for the survivor annuity benefits for the separate and independent reason that the DRO issued b y the
Texas court did not qualify as a QDRO because it would have improperly required “the payment of a type of benefit not otherwise provided under the Plan’s terms,” in contravent ion of ERISA section 206(d)(3)(i ). (AR 11

- 13). In reaching this conclusio n, the Appeal s Board recognized that the DRO did not “change either the total monthly amounts or the timing of the benefit payment s that PBGC is required to make, ” given that the survivor benefit would only be paid to Gaylyn for the duration of Melissa’s life. (AR 11). But in PBGC’s view, these were not the only relevant considerations: Although the DRO does not change the amount and/or timing of the required payments, it changes the recipient of the payments. If John dies before Melissa, the DRO would require PBGC to pay the survivor benefit to Gaylyn (rather than Melissa) for as long as Melissa lives. The Plan does not contain a provision under which a survivor benefit is paid to one beneficiary based on the remaining lifetime of another individual.20 (AR 12) (emphasis added). The Appeals Board also noted the additional administrative burdens the DRO would impose upon PBGC, explaining that it “would need to monitor whether or not Melissa remains alive (even though PBGC is not paying her benefits) becau se PBGC’s payments to Gaylyn would end upon Melissa’s death.” (AR 12). PBGC’s decision also pointed out the novel issue of what would occur if Gaylyn predeceases Melissa

— “a contingency not addressed in the DRO.” (AR 12). For these reasons, the Appeals Board concluded that the DRO issued by the Texas court could not be qualified as a QDRO for purposes of ERISA. 10
Plaintiffs take issue with PBGC’s conclusion , arguing that its “assertion is unfounded.” (Pls.’ Mem. at 17). In Plaintiffs’ view, there is “nothing remarkable” about a DRO that changes the recipient of benefits, “as the purpose of a QDRO is to create or recognize an alternate payee’s right to plan benefits.” ( Id. ). They argue that because the survivor benefit is payable to Gaylyn for the life of Melissa, and because the amount of the benefit remains unchanged by the DRO,

“ the type of benefit the Texas Order directs the Plan to pay is indisputably a type of benefit the Plan provides.” (Pls.’ PBGC Reply at 3). Plaintiffs assert that the st atutory requirement invoked by PBGC

— ERISA section 206(d)(3) ( i)

— i s limited in application to circumstances when a DRO “would require benefits to be paid in a specific manner or time frame that is not provided for in the terms of the plan.” ( Id. (quoting Bro wn v. Cont ’ l Airlines , 647 F.3d 221, 226

- 27 (5th Cir. 2011) ) ). This, Plaintiffs urge, is not such a circumstance.
As this issue turns on a question of statutory interpretation, the familiar Chevron framework governs, yet both sides inexplicably fail to ap proach the argument from a Chevron

10 In its “initial determination,” PBGC also concluded that the DRO could not be qualified because it failed the “sp ecificity” requirements of ERISA section 206(d)(3)(C)(ii), (iii). (AR 29

- 31). However, the Appeals Board expressly declined to reach this issue in its decision and it therefore did not serve as a basis for the final agency action under review. (AR 12 at n.5). Correspondingly, this Court need not and does not pass on the issue.21 perspective. See Chevron, U.S.A., Inc. v. NDRC, Inc. , 467 U.S. 837 ( 1984)

. It is well settled that “PBGC generally receives Chevron deference for its authoritative interpretation of ambiguous provisions of ERISA.” Davis v. PBGC , 571 F.3d 1288, 1293 (D.C. Cir. 2009) (citing LTV Cor p. , 496 U.S. at 651

- 52 ; Mead Corp. v. Tilley , 490 U.S. 714, 722 (1989)); see also Page v. PBGC , 968 F.2d 1310, 1315 (D.C. Cir. 1992) (applying Chevron deference to PBGC’s interpretation of
ERISA’ s statutory provisions)

. Moreover, our Court of Appeals has held that such deference applies with equal force regardless of whether PBGC is acting in its guarantor role or its trustee role. Davis , 571 F.3d at 1293. Under Chevron , the Court must first determine “whether Congress has directly spoken to the questio n at issue , ” Chevron, 467 U.S. a t 845

— i.e., Chevron Step One. If so, then the Court’s inquiry ends, and the clear and ambiguous statutory language controls. If not, then the analysis shifts to Chevron Step Two, whereby the Court must consider “whether the agency’s [interpretation] is based on a permissible construction of the statute.” Id. at 843; Page , 968 F.2d at 1315 ( framing the issue as whether “PBGC’s interpretation of [the statute was] a reasona ble one in view of the policies that underlie ERISA”). Here, since ERISA section 206(d)(3)(i) does not clearly define the phrase “ any type or form of benefit, or any option, not otherwise provided under the plan ”

— and since neither side suggests that th is language is clear and unambiguous

— the Court proceeds to Step Two. Applying this rubric, the Court concludes that PBGC’s application of Section 206(d)(3)(i)
to this case was based upon a reasonable and permissible interpretation of ERISA . While Plaintiffs correctly argue (and PBGC rightly concedes) that the Texas DRO did not alter the
amount or timing of the survivor benefit under the Plan, PBGC nevertheless determined that paying a survivor benefit based on the life of someone other tha n the bene ficiary

— i.e., paying22 Gaylyn the benefit for the remainder of Melissa’s life

— was a form of benefit unavailable under the Plan

. A s PBGC points out, the Plan does not define or contemplate such a benefit; it instead identifies the “normal” form of benefits for married participants as “an immediate annuity for the life of the [participant] with a survivor annuity for the life of the [ participant’s ] spouse.” (AR 201 at ¶ 6.2). Alternatively, participants could elect alternative “Optional Forms of Be nefits,” but none of those options contemplated a benefit payable to a beneficiary for the life of someone other than the beneficiary. (AR 201 at ¶ 6.3). Thus, under PBGC’s interpretation, the DRO would have afforded a type of benefit “not ot herwise prov ided under the plan, ” 29 U.S.C. § 1156(d)(3)(i), and therefore could not be qualified as a QDRO for purposes of ERISA. Plaintiffs fail t o mount any compelling argument that calls into question the reasonableness of PBGC’s interpretation, par ticularly given their inability to identify any authority or precedent squarely addressing the precise issue presented here. At best, Plaintiffs argue that courts have interpreted this subsection of ERISA to prohibit a DRO from being qualified as a DRO wh ere it “would require benefits to be paid in a specific manner or time frame that is not provided for in the terms of the plan,” such as where a DRO “requires the payment of benefits i n a lump sum while the plan only permits payment over the course of

seve ral years,” or “requires a plan to pay benefits before they are otherwise payable under the plan.” (Pls.’ PBGC Reply at 3) (citing cases). Maybe so. But none of those cases undermine s PBGC’s interpretation that the change mandated by the DRO in this cas e

— directing that surviving spouse benefits be paid for the lifetime of someone other than the beneficiary

— also
contravenes this aspect of ERISA. T he Court also agrees that the administrative anomalies presented by the DRO

— e.g. , the “need to monitor whethe r or not Melissa remains alive (even through PBGC is not paying her benefits) because PBGC’s payments to Gaylyn would end upon23 Melissa’s death,” (AR 12)

— support the conclusion t hat PBGC’s interpretation is a permissible construction of the statut e and s hould be accorded deference under Chevron Step Two

. Thus, in view of PBGC’s reasonable interpretation of ERISA section 206(d)(3)(i), and its reasoned application of this statutory provision to the issues presented in this case, Plaintiffs simply fail to establish that PB GC’s decision was arbitrary or capricious. 11

4. PBGC’s Determination As To The Common
- Law Doctrine Of Waiver As a final theory dispatched agains t PBGC , Plaintiffs contend that, separate and apart from the merits of the Appeals Board’s analysis on the above

- discussed issues, the common

- law doctrine of waiver precludes PBGC from now arguing that the DRO cannot be qualified as a QDRO, or that Gaylyn should not otherwise be recognized as the proper survivor beneficiary

u nder the Plan. As Plaintiffs see it, because the former Plan administrator approved the Texas court’s DRO as a valid QDRO and substituted Gaylyn as the beneficiary

— even going so far as to draft the applicable language for the DRO in the first place

— the Plan waived any argum ents to the contrary. (Pls.’ Mem. at 23

- 24). Inasmuch as PBGC simply steps into the shoes of th e Plan administrator upon becoming statutory trustee of the Plan , Plaintiffs argue, this means that PBGC is equally bound by the effect of the Plan’s purported waiver. At the outset, there is no question that “Congress intended federal courts to fashion a federal common

- law under ERISA,” Heller v. Fortis Benefits Ins. Co. , 142 F.3d 487, 495 (D.C.

11 Plaintiffs also pled an “anti

- cutback” claim under 29 U.S.C. § 1054(g)(1) through Count II of their Second Amended Complaint, but it appears that they jettisoned this claim at the summary judgment stage. Not only did Plaintiffs fail to affirmatively move for summary judgment on Count II in the opening brief, but they also completely failed to respond to PBGC’s arguments seeking summary judgment on their “anti

- cutback” claim. ( See generally Pls.’ Mem., Pls.’ PBGC Reply). Consequently, the Court will deem this argument conceded and grant summary judgment in PBGC’s favor on Count II of Plaintiffs’ Second Amended Complaint as a result. See, e.g. , Hopkins v. Women’ s Div., Gen. Bd. of Global Ministrie s, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citing FDIC v. Bender , 127 F.3d 58, 67

- 68 (D.C. Cir. 19 9 7)).24 Cir. 1998), but the D.C. Circuit has never decided whether this body of common law incorporates the principle of waiver. In addition, a s the parties ’ briefing makes clear, the Courts of Appeals that have addressed the issue are divided. On one end of the spectrum, the Fifth Circuit has expressly and approvingly appl ied the doctrine of waiver in the ERISA context. See Pitts v. Am. Security Life Ins. Co. , 931 F.2d 351, 356

- 57 (5th Cir. 1991). The Fourth Circuit, by
contrast, has held the opposite. See White v. Provident Life & Accident Ins. Co

. , 114 F.3d 26, 29 (4th Cir. 1997) (“[T]he federal common law under ERISA . . . does not incorporate the principles of waiver and estoppel.”). And the Second, Seventh, and Eleventh Circuits have adopted a middle ground and recogniz e that , on a case - by

- case basis, the doctrine o f waiver might apply to the specific circumstances of a particular action. See Lauder v. First UNUM Life Ins. Co. , 284 F.3d 375, 380

- 82 (2d Cir. 2002); Thomason v. Aetna Life Ins. Co. , 9 F.3d 645, 650 (7th Cir. 1993); Glass v. United of Omaha Life Ins. Co

. , 33 F.3d 1341, 1347

- 48 (11th Cir. 1994). On balance, however, the Court need not wrestle with this thorny question to resolve Plaintiffs’ waiver argument in this case. Even assuming that our Court of Appeals would i ncorporate the principle of waiver as part of ERISA’s common law, Plaintiffs fail to present any authority that would permit them to take the principle a step further by foist ing a former p lan administrator ’s purported waiver onto PBGC , as they strive to d o here

. While Plaintiffs cite a number of cases that have applied the waiver doctrine in ERISA benefits cases , ( see Pls.’ Mem. at 20

- 22) (collecting cases) , in none of those cases did a court apply the insurer’s waiver against any party other than the orig inal plan insurer

. See Pitts , 931 F.2d at 356

- 57 (applying w aiver to preclude insurer from denying coverage under policy provision that required an insured group to consist of at least ten employees, where insurer collected premiums for five months after “learning beyond all doubt” that there was only one25 employee remaining on the policy); Lauder , 284 F.3d at 380

- 82 (finding that insurer waived ability to assert defen se to liability for long

- term disability benefits where insurer “knew of [plaintiff’s] claim for disability, chose not to investigate it, and chose not to challenge it”); Rhorer v. Raytheon Eng’rs & Constructors , 181 F.3d 634, 644

- 45 (5th Cir. 1999) (holdi ng similarly and concluding that insurer waived ability to deny benefits coverage); Burger v. Life Ins. Co. of N. Am. , 103 F. Supp. 2d 1344, 1348

- 49 (N.D. Ga. 2000) (applying waiver against
insurer seeking to recalculate benefit amounts after years of paym ent). Cf. Loyola Univ. of Chi.
v. Humana Ins. Co. , 996 F.2d 895, 901

- 02 (7th Cir. 1993) (considering application of waiver doctrine against health insurer , but ultimately finding no waiver of insurer’s right to require pre

approval of surgical procedure); Glass , 33 F.3d at 1341 (similar); Thomason , 9 F.3d at 648

- 50 (similar). In this case, however, Plaintiffs ask the Court to go beyond the bounds of those decisions , applying the Plan’s purported waiver against PBGC acting as statutory trustee . In the
Cour t’s view , this is a significant distinction and would extend the doctrine a step too far. 12 Through its statutory trusteeship role, PBGC is charged with unique and important objectives . Congress created PBGC, in part, “to encourage the continuation and mai ntenance of voluntary private pension plans for the benefit of their participants,” and “to provide for the timely and uninterrupted payment of pension benefits to participants and beneficiaries.” 29 U.S.C. § 1302(a)(1), (2); Textile Workers Pension Fund v. Standard Dye & Finishing Co. , 725 F.2d 843, 847 (2d Cir. 1984) (“ One of Congress ’ central purposes in enacting ERISA was to prevent the great personal tragedy suffered by employees whose vested pension benefits were lost when plans were terminated .”)

. Stated another way, “PBGC’s purpose is to ensure that

12 While couched slightly differently, PBGC rightly draws this distinction in its brief. ( See PBGC Mem. at 21) (“There simply is no authority supporting Plaintiffs’ proposition that PBGC’s ability to pay benefits under Title IV of ERISA is circumscribed by a former plan administrator’s misinterpretations of ERISA.”).26 retirees receive pension benefits they have earned, even if their employer has termi nated their pension plan or is otherwise unwilling or unable to pay. ” S ara Lee Corp. v. Am. Bakers Ass’ n Ret. Plan , 5 12 F. Supp. 2d 32, 34

- 35 (D.D.C. 2007) ( citing Mead Corp. , 490 U.S. at 717

- 18 ). If PBGC were bound by erroneous benefits determinations made by plan administrators before it ever assumed statutory trusteeship responsibilities over a plan, this would frust rate Congress’ intent and would impede PBGC’s ability to exercise its fiduciary responsibilities in the interests of all of the plan’s participants and the plan as a whole. Indeed, as PBGC points out, upon becoming trustee of a terminated plan, PBGC assum es a wide range of fiduciary responsibilities, including the duty to rescind and remedy actions that violate ERISA

. See Stephens v. US Airways Gr p . , 555 F. Supp. 2d 112, 119 (D.D.C. 2008), rev ’ d in part on other grounds , 644 F.3d 437 (D.C. Cir. 2011) (“[A] predecessor’s breach that continues to have effect on beneficiaries during the term of a successor trustee must be remedied to the extent practicable under § 1105(a)(3). ”); Weisler v. Metal Polishers Union & Metal Prod. & Novelty Workers Union 8A

28A , 533 F. Supp. 209, 215

- 16 (S.D.N.Y. 1982) (“29 U.S.C. § 1105(a)(3) requires the Trustees to examine and if necessary rescind prior actions if such actions violated provisions of ERISA.”)

. 13 Indeed, the Court notes that, on at least one occasion, the Supre me Court has declined to bind federal agencies to prior determinations and actions of private parties before the agency’s involvement. See, e.g. , EEOC v. Waffle House, Inc. , 534 U. S. 279, 294 (2002) (finding that the EEOC was not bound by arbitration clause when bringing action in its own name, despite individual plaintiff’s prior agreement to arbitrat e disputes with employer )

. The Court thus concludes that the Plan’ s purported wai ver , if any, of the arguments discussed above cannot

13 Moreover, although not dispositive by any means, it bears noting that PBGC’s Operating Policy Manual expressly contemplates that it may examine DROs that were qualified by prior plan administrators, to ensure compliance with ERISA. (AR 52) (“PBGC may review QDROs that a prior plan administrator qualified before PBGC became trustee of a plan.”).27 operate to bind PBGC from ensuring that its administration of the Plan comports with ERISA’s statutory mandates

. 14

B. Plaintiffs’ Claims Against Melissa VanderKam Along with their challenges to the PBGC Appeals Board’s decision, Plaintiffs alternatively seek r elief against Melissa directly, asking the Court to impose a c onstructive trust under Texas common law. Specifically, Plaintiffs argue that, even if the Court upholds PBGC’s determination, it should nevertheless issue a declaratory judgment directing that Melissa “will hold in trust and must transfer to John’s successors any Survivor Benefit payments she received” from PBGC under the Plan, and that she “will ow e John’s successors fiduciary obligations in the handling of any Survivor Benefit payments.” (Pls.’ Mem. at 25

- 31). Melissa opposes Plaintiffs’ request and seeks the dismissal of all of their claims under Texas common law (Counts III, IV, and V) on the g rounds that these state law claims are preempted by ERISA . The Court agrees. By its terms, ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a) ; see also Stewart v. Nat’l Educ. Ass’n , 471 F.3d 169, 172 (D.C. Cir. 2011) (“ERISA sets out an interlocking, interrelated, and interdependent remedial scheme.”) (internal citation and quotation omitted) . The Supreme Court has “observed repeatedly that this bro adly worded provision is clearly expansive.” Egelhoff v. Egelhoff , 532 U.S. 141, 146 (2001) ( internal citations and quotation marks omitted); see also Moralez v. Trans World Airlines, Inc. , 504 U.S. 374, 384

14 Given this holding, the Court does not have occasion to address the parties’ argument s as to whether the Plan’s purported waiver was a “knowing” waiver

. Moreover, the Court re emphasizes that it expresses no opinion as to whether the Plan did, in fact, waive these arguments in the first place, or whether Plaintiffs could successfully marshal their waiver argument against the Plan directly. Relatedly, while Plaintiffs originally argued to the PBGC Appeals Board that the estoppel doctrine applied to their appeal, (AR 21

- 22, 350), they do not press any estoppel argument in this case and the Court therefore need not pass on the issue.28 (1992) (collecting cases describing ERISA’s broad preemptive reach). “Under this ‘broad

common - sense meaning,’ a state law may ‘relate to’ a benefit plan, and thereby be pre

- empted, even if the law is not specifically designed to affec t such plans, or the effect is only indirect.” Ingersoll

- Rand Co. v. McClendon , 498 U.S. 133, 139 (1990) (quoting Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41, 47 (1987)). Moreover, as explained by our Court of Appeals, “ even general common law causes of action, such as breach of contract, which were not specifically intended to apply to benefit plans covered by ERISA, will nonetheless be preempted insofar [as] they affect ERISA

- protected rights.” Bd. of Tru stees of the Hotel & Rest. Employees Local 25 v. Madison Hotel, Inc. , 97 F.3d 1479, 1486

- 87 (D.C. Cir. 1996). Applying this framework, Melissa argues that “[t]he Texas state laws cited by the Plaintiffs should be preempted because the method by which a former spouse may secure an interest in plan benef its is provided under ERISA.” (Dkt. No. 46

- 1 (“MV Mem.”) at 15). She insists that Plaintiffs’ common law claims are an effort to “contravene the plain and unambiguous plan terms that provide to whom QJSA benefits are paid upon John’s death.” ( Id. at 17) . For their part, Plaintiffs concede that ERISA preempts state laws and state

- law claims relating to ERISA plans , but they argue that Congress did not intend such a sweeping preemptive effect over all aspects of plan benefits . (Dkt. No. 52 (“Pls.’ MV Reply”) at 3

- 4). Seizing on this distinction, Plaintiffs maintain that their claims against Melissa concern benefits, an d do not implicate an employee benefit plan ; they argue that the “central issue . . . is whether Melissa is entitled to retain the Surv ivor Benefits, not whether the Plan is required to pay them to her.” ( Id. at 4). If they prevail on their claims, Plaintiffs emphasize that “the constructive trust they seek would only come into play after the Plan follows its administrative scheme,” and that nothing “would prevent the PBGC from acting in strict accordance with its preferred administrative29 scheme.” ( Id. at 4

- 5). In turn, Plaintiffs contend that their state law claims against Melissa fall outside of ERISA’s preemptive reach. In support of this plan/benefits dichotomy, Plaintiffs rely on the Supreme Court’s decision in Fort Halifax Packing Co. v. Coyne , in which the Court held that “a Maine statute requiring employers to provide a one

- time severance payment to employees in the event of a plant closing” was not preempted by ERISA. 482 U.S. 1, 3 (1987). In Fort Halifax , the petitioner employer argued that, even though the payment was not encompassed by any plan covered by ERISA, the statute was preempted nevertheless simply because it “pe rtain[ed] to a type of employee benefit listed in ERISA.” Id. at 7. Stated another way , the Court understood the petitioner’s argument to be that “ERISA forecloses virtually all state legislation regarding employee benefits.” Id. Unsurprisingly, the Court rejected this premise and, in so doing, used language upon which Plaintiffs now seize

— that “ERISA’s pre

- emption provision does not refer to state laws relating to ‘employee benefits,’ but to state laws relating to ‘employee bene fit plans ’ . . . .” Id. (emphasis in original). But this principle, which Plaintiffs wrest out of context, is not as wide

- reaching as they would suggest, and subsequent decisions from the Supreme Court have made clear that statutes interfering with the p ayment of benefits covered by an ERISA plan

are frequently preempted under the statute. See, e.g. , Boggs , 520 U.S. at 835 (holding that ERISA preempts “a state law allowing a nonparticipant spouse to transfer by testamentary instrument an interest in undi stributed pension plan benefits ”) (emphasis added); Egelhoff , 532 U.S. at 150 (“[T]he statute at issue here directly conflicts with ERISA’s requirement that plans be administered, and benefits be paid , in accordance with plan documents . . . and is therefore
pre - empted ”) (emphasis added)

.30 Nonetheless , this case is a far cry from the circumstances confronting the Supreme Court
in Fort Halifax

. There is no dispute that the benefits Plaintiffs seek to recove r through the requested constructive trust are benefits being paid out by PBGC pursuant to a plan covered by ERISA. Thus, unlike in Fort Halifax , the benefits at the center of the relief Plaintiffs seek indubitably “relate to [an] employee benefit plan” c overed by ERISA. 29 U.S.C. § 1144(a)

. Moreover, finding Plaintiffs’ claims against Melissa preempted does not and could not have the impact of “foreclosing virtually all state legislation relating to employee benefits,” Fort Halifax , 482 U.S. at 7, and any suggestion to the contrary strains credulity. Instead, Plaintiffs’ state law claims are nothing more than an effort to make an end

- run around ERISA’s statutory prescriptions and the plain terms and requirements of the Plan. Through their constructive tr ust claims, Plaintiffs seek to achieve what they otherwise cannot accomplish under the statute itself

— to divest Melissa of the survivor annuity benefit paid to her by PBGC under the terms of the Plan and to reassign that benefit to John and/or Gaylyn . Thi s they cannot do. And, as Melissa rightly points out, other courts have rebuffed this approach before.
In Carmona , the Ninth Circuit soundly rejected the very same type of fallback argument that Plaintiffs present here, holding that “a state law constructive trust cannot be used to contravene the dictates of ERISA.” 603 F.3d at 1061. In so holding, the court disagreed with the plaintiff’s assertion that “a state law created constructive trust is too attenuated to fall within the mandatory preemp tion provision,” and noted that the constructive trust was “explicitly an attempt to avoid ERISA’s QDRO, preemption, and antialienation provisions.” Id. at 1062. Consequently, the Carmona court concluded that: [A] . . . court cannot achieve through a con structive trust on the proceeds of a pension plan what . . . it cannot achieve through a QDRO. Any alternative rule would allow for an end

- run around ERISA’s rules and Congress’s policy31 objective of providing for certain beneficiaries, thereby greatly wea kening, if not entirely abrogating, ERISA’s broad preemption provision. Id. at 1061. Other courts have reached the same conclusion. In Melton v. Melton , the Seventh Circuit held that a state law constructive trust claim was preempted by ERISA. 324 F.3d at 94 4

- 45. And i n circumstances very similar to those in the case at bar, the Fourth Circuit rejected a n attempt by a participant’s spouse to impose a constructive trust over benefits paid from an
ERISA

- governed plan. See Metropolitan Life Ins. Co. v. Pet t it , 164 F.3d 857, 863

- 64 (4th Cir. 1997) . In deeming the claim preempted, the Pet t it court explained that : [The] constructive trust claim, which is based upon a property settlement agreement, if allowed to stand, would directly conflict with ERISA’s g oal of providing a nationally uniform plan administration and reduce the QDRO provisions to a meaningless footnote in the preemption context. Undoubtedly, this claim would also reduce the certainty of plan administration and increase litigation, along wit h the associated costs that Congress sought to decrease. There could hardly be a more striking example of a state claim hindering the full accomplishment of congressional objectives. Because the claim interferes with Congress’s clear objectives and confl icts with the plain language of ERISA, it must fall victim to the ERISA preemption provision. Id. at 864 ; see also Metropolitan Life Ins. Co. v. Cline , 388 F. App’x 690, 692 (9th Cir. 2010) (“The imposition of a constructive trust simply cannot be used to circumvent ERISA preemption except in the limited circumstances when a valid QDRO exists.”)

. 15 While the D.C. Circuit has

15 On April 26, 2013, Plaintiffs filed a Notice of Supplemental Authority (Dkt. No. 62) , proffering two additional decisions they deem supportive of their claims: US Airways, Inc. v. McCutchen , --- U.S.

--- , 133 S. Ct. 1537 (2013), and Andochick v. Byrd , 709 F.3d 296 (4th Cir. 2013). I n the Court’s view, however, neither of these cases lends any considerable strength to Plaintiff s ’ position. First, in McCutchen , the Supreme Court held that equitable defenses cannot override the terms of an ERISA plan, but went on to explain that where a plan is “silent on the allocation of attorney’s fees . . . the common

- fund doctrine provides the appropriate default.” Id. at 1548

- 49. The Court fails to glean how Plaintiffs perceive the McCutchen decision as relevant to this case, let alone beneficial to their cause. The Fourth Circuit’s decision in Andochick provides somewhat of a closer analogue , but a crucial distinction remains: the court held th at “ERISA does not preempt post

- distribution suits against ERISA beneficiaries.” 709 F.3d at 300

- 01 (expressly distinguishing claims to “ undistributed plan benefits”) (emphasis in original). By contrast, the tug

- of

- war over the survivor benefits in this case obviously involves as

- yet undistributed benefits and thus implicates different considerations. Moreover, were the Court to32 not addressed this issue, this Cou rt adopts the reasoning espoused by the Fourth, Seventh, and Ninth Circuits in these decisions. Be cause Plaintiffs’ claims for a constructive trust under Texas state law would circumvent the carefully

- crafted statutory scheme implemented by Congress through ERISA, those claims are preempted and cannot stand. 16 Finally, the Court finds unavailing Plai ntiffs’ arguments that the doctrines of res judicata and collateral estoppel “bar[] Melissa from re

- litigating the issue of whether the Survivor Benefits were awarded to John as part of the divorce” and that “she never intended to waive her interest in the Survivor Benefit

. ” (Pls.’ Mem. at 28 n.10). 17 In e ffect, Plaintiffs argue that the divorce decree and the DRO entered by the Texas state court constitute final judgments that bind Melissa on the waiver issue. But t his theory essentially just repackages Plaintiffs’ earlier arguments and claims

— both with r espect to the decision of the PBGC Appeals Board, and also with respect to Plaintiffs’ alternative state law claims

— and the Court rejects those arg uments for the reasons stated. Plaintiffs cannot simply tee up the se issues with a slightly different label and expect a different result

. interpret Andochick in the manner Plaintiffs seem to suggest, it would run headlong into the Fourth Circuit’ s decision in Petti t , which was decided on facts much closer to those presented here

. See 164 F.3d at 865 (“ We believe Congress m ade itself clear on this point

— unless a domestic relations settlement complies with the QDRO requirements, ERISA preempts its enforcement through a state law mechanism such as a constructive trust. ”). Thus, the supplemental authorities filed by Plaintiffs ultimately do not impact the resolution of this case. 16 This ruling plainly applies to Counts III and IV of Plaintiffs’ Second Amended Complaint, which seek a declaratory judgment imposing a constructive trust against Melissa, and a constructive t rust to remedy Melissa’s alleged unjust enrichment, respectively. Plaintiffs also pled a claim against Melissa for anticipatory breach of contract through Count V, but they failed to brief or otherwise mention that claim whatsoever in their summary judgment papers. While their breach of contract claim under Texas law would not survive the Court’s preemption analysis either, the Court finds that Plaintiffs also abandoned this claim by failing to raise it during cross

- briefing

. See, e.g. , Ctr. for Biological Diversity v. Blank , --- F. Supp. 2d

---- , 2013 WL 1248288, at *2 n. 5 (D.D.C. Mar. 28, 2013); Hainey v. U.S. Dep’t of Interior , --- F. Supp. 2d.

---- , 2013 WL 659090, at *8 n.8 (D.D.C. Feb. 25, 2013). 17 Indeed, there may be some significance to the fact that these arguments were relegated to a few sentences in a footnote in Plaintiffs’ opening brief.33 CONCLUSION
F or the foregoing reasons, the Court concludes that Plaintiffs’ Motion for Summary Judgment is DENIED , and that PBGC’s Cross

- Motion for Summary Judgment and Melissa Vanderkam’s Cross

- Motion for Summary Judgment are both GRANTED

. An appropriate O rder accompanies this Memorandum Opinion.

Date: May 7 , 201 3

ROBERT L. WILKINS Unite d State s Distric t Judge