1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOHN VANDERKAM and 

GAYLYN DIERINGER,

Plaintiffs, 

v. 

PENSION BENEFIT GUARANTY 

CORPORATION and 

MELISSA VANDERKAM,

Defendants. 

 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 that time, John was married to Melissa VanderKam, whom he had

designated as the survivor beneficiary under the Plan. John and Melissa divorced eight years 

later, 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

 The Plan initially approved the DRO as a Qualified 

Domestic Relations Order (“QDRO”) and substituted Gaylyn as an alternate survivor 

beneficiary. In 2005, however, the 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 remained 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 that 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 upholds PBGC’s decision, the Court should 

impose a constructive trust under Texas common law on any survivor benefits 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 during 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. 46, 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 Joint 
3

and Survivor Annuity” (“QJSA”) for purposes of ERISA 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 final 

decree of divorce was entered in Texas state court. (AR 232). Pursuant to this decree, 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 drafted 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 her 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 the 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 survivor 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 QDRO for purposes of ERISA, and the Plan administrator thus designated Gaylyn as an 

alternate payee with respect to the survivor benefits in August 2003. (AR 43). 

In August 2005, the 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 his 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 private-sector American workers who participate 

in plans covered by the 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 plans. 

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 to 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 the 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 this

beneficiary 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 designate 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 follows:

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 VanderKam.

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 Divorce 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 VanderKam’s entitlement and eventual receipt of the survivor annuity.

(AR 310-311). 

 4 PBGC’s reasoning at that time is further elucidated by an internal “Service Request 

Details” form, which summarizes the history as follows:

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 benefit 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

John 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 issued 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 exhausted 

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, Plaintiffs 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. § 

2201(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 claim for anticipatory breach of 

contract (Count V). The parties settled on a briefing schedule for cross-motions for summary 
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judgment, and the Court subsequently heard arguments from the parties during a hearing on 

April 29, 2013, at which time it took the matter under advisement. 

ANALYSIS

This action presents two distinct sets 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 Plaintiffs’ 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 that Melissa could not have waived her survivor 

benefit through a QDRO, in any event, because her survivor benefits irrevocably vested upon the 

annuity starting date and therefore could not be divested through a subsequent DRO. While 

PBGC addressed these issues 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 was a valid QDRO. Finally, 
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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 became statutory 

trustee of the Plan. 

1. Standard of Review

Pursuant to its authority as statutory trustee, PBGC 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 such 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. § 4003.59(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); United 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).

Under 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 some 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 de novo standard governs the review of a PBGC Appeals Board decision, as the 
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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 Court 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), and 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, 1565 (D.C. Cir. 1991). The Court must uphold PBGC’s decision “so long 

as the agency ‘engaged in reasoned decisionmaking 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 1369). And Plaintiffs concede that, for 

purposes of this case, “the Plan gives 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.
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rejected Plaintiffs’ arguments that Melissa had waived her right to the survivor annuity benefit, 

whether through the decree of divorce 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 and 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 beneficiary 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

1048 (“[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, 156 (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 survivor 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 issues 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 

arguments turned on the same analysis, the Court considers the issues together.
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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, concluding 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 married 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 DROdid 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 been married to the participant for at least one year prior to the participant’s 

retirement, or must have been married to the participant prior to retirement and for at least a oneyear period prior to the participant’s death. 29 U.S.C. § 1055(f). 
12

wife upon his retirement. Id. at 157. Two years later, the Fifth Circuit was confronted with a 

nearly-identical set of circumstances in Rivers and expressly adopted the Fourth Circuit’s 

rationale in Hopkins. Rivers, 186 F.3d at 683-84. More specifically, the Rivers court held that 

the surviving spouse benefits at issue had irrevocably vested in the plan participant’s second wife 

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 

neglecting 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. 

Recently, 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 under 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 property.” 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 survivor 
13

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 declaratory 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 Ninth Circuit affirmed the 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 

participant’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 significant 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 

Circuit 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 married 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 “surviving 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 decision 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 assign 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 resolved that, even if “Melissa had the authority to disclaim the Plan’s 

survivor benefit, that benefit cannot be reassigned to Gaylyn through a QDRO.” (AR 13-18). 

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, PBGC 
15

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 determination—including the detailed 

discussion and application of the above-described cases to the issues presented in Plaintiffs’ 

appeal—the Court finds that PBGC’s decision was based 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 that, “[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. Woods, 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

These arguments miss the mark in 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 claim obtained by a participant or his 

beneficiary 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 retirement. Perhaps more

significantly, however, even if the Court were to credit Plaintiffs’ interpretation as reasonable, 

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 directly analogous holdings from three separate Courts of Appeals, fails to 

evidence a “rational 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 considered 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 decisions, which were longstanding precedent at the time of Plaintiffs’ appeal. To the 
17

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 decision in Kennedy dictates 

reversal of 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.’ PBGC Reply at 12). While true, this 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 abovequoted language illustrates; instead, the Court reiterated the so-called “plan documents rule,” 

explaining that, to be valid, a waiver 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 plan procedures and 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 preceding 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 that the 

“holding in Kennedy does not dictate how the Appeals Board must decide the VanderKam 

appeals.” (AR 14). 

 

extent that Plaintiffs thought that those courts got it wrong, they could and should have raised 

this 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

language 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 Carmona, 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 thencurrent spouse. To the extent that Plaintiffs suggest that a QDRO must be recognized as valid 

regardless of whether it was obtained before or after the participant’s retirement—essentially 

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, and 

because Plaintiffs provides no contrary authority to support their position. 

Finally, the Court is unpersuaded by the string-cite of cases Plaintiffs proffer 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 ERISA-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) (evaluating 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 in Kennedy 

that a “federal common law waiver 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 The 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 by 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 contravention of ERISA 

section 206(d)(3)(i). (AR 11-13). In reaching this conclusion, the Appeals Board recognized 

that the DRO did not “change either the total monthly amounts or the timing of the benefit 

payments 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) because 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 statutory requirement invoked 

by PBGC—ERISA section 206(d)(3)(i)—is 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 Brown 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 approach the argument from a Chevron

 10 In its “initial determination,” PBGC also concluded that the DRO could not be qualified 

because it failed the “specificity” 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 Corp., 

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 question at issue,” Chevron, 467 U.S. at 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 reasonable 

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 this 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 than the beneficiary—i.e., paying 
22

Gaylyn the benefit for the remainder of Melissa’s life—was a form of benefit unavailable under 

the Plan. As 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 Benefits,” 

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 otherwise provided 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 to mount any compelling argument that calls into question the 

reasonableness of PBGC’s interpretation, particularly 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 where 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 in a lump sum while the plan only permits payment over the course of 

several 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 undermines

PBGC’s interpretation that the change mandated by the DRO in this case—directing that 

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

contravenes this aspect of ERISA. The Court also agrees that the administrative anomalies 

presented by the DRO—e.g., the “need to monitor whether or not Melissa remains alive (even 

through PBGC is not paying her benefits) because PBGC’s payments to Gaylyn would end upon 
23

Melissa’s death,” (AR 12)—support the conclusion that PBGC’s interpretation is a permissible 

construction of the statute and should 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 PBGC’s decision was arbitrary or capricious.11 

4. PBGC’s Determination As To The Common-Law Doctrine Of Waiver

As a final theory dispatched against 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 

under 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 arguments 

to the contrary. (Pls.’ Mem. at 23-24). Inasmuch as PBGC simply steps into the shoes of the 

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 Ministries, 284 F. Supp. 2d 15, 25 

(D.D.C. 2003) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)).
24

Cir. 1998), but the D.C. Circuit has never decided whether this body of common law 

incorporates the principle of waiver. In addition, as 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 applied 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 recognize that, on a case-by-case basis, the doctrine of 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 incorporate 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 foisting a former plan administrator’s 

purported waiver onto PBGC, as they strive to do 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 original plan insurer. See Pitts, 931 

F.2d at 356-57 (applying waiver 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 one 
25

employee remaining on the policy); Lauder, 284 F.3d at 380-82 (finding that insurer waived 

ability to assert defense 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) (holding 

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 payment). 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 preapproval 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 

Court’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 maintenance 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 terminated their 

pension plan or is otherwise unwilling or unable to pay.” Sara Lee Corp. v. Am. Bakers Ass’n 

Ret. Plan, 512 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 frustrate 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 assumes a wide range of fiduciary responsibilities, 

including the duty to rescind and remedy actions that violate ERISA. See Stephens v. US 

Airways Grp., 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 8A28A, 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 Supreme 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 arbitrate disputes with employer). The Court 

thus concludes that the Plan’s purported waiver, 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 relief against Melissa directly, asking the Court to impose a constructive 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 owe 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 grounds 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 broadly 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’ arguments as 

to whether the Plan’s purported waiver was a “knowing” waiver. Moreover, the Court 

reemphasizes 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 affect 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 Trustees 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 benefits 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, and do not 

implicate an employee benefit plan; they argue that the “central issue . . . is whether Melissa is 

entitled to retain the Survivor 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 administrative 
29

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 “pertain[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 benefit 

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 payment 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 undistributed 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 recover 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” covered 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 trust 

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. This 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 preemption 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 constructive 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 policy 
31

objective of providing for certain beneficiaries, thereby greatly weakening, 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 944-

45. And in circumstances very similar to those in the case at bar, the Fourth Circuit rejected an 

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. Pettit, 164 F.3d 857, 863-64 (4th Cir. 

1997). In deeming the claim preempted, the Pettit 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 goal 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 with 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 conflicts 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). In the Court’s view, however, neither of these cases lends any considerable strength to 

Plaintiffs’ 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 that 

“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 to 
32

not addressed this issue, this Court adopts the reasoning espoused by the Fourth, Seventh, and 

Ninth Circuits in these decisions. Because 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 Plaintiffs’ 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 effect, 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 this theory essentially just repackages Plaintiffs’ earlier

arguments and claims—both with respect to the decision of the PBGC Appeals Board, and also 

with respect to Plaintiffs’ alternative state law claims—and the Court rejects those arguments for 

the reasons stated. Plaintiffs cannot simply tee up these 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 Pettit, which was decided on facts much closer to those presented 

here. See 164 F.3d at 865 (“We believe Congress made 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 trust 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

For 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 Order 

accompanies this Memorandum Opinion.

Date: May 7, 2013

 

 ROBERT L. WILKINS

United States District Judge