No. 17-3120

__________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________

SUN LIFE INSURANCE COMPANY OF CANADA,

 Plaintiff-Appellant,

v.

SIERRA JACKSON,

 Defendant-Appellee.

__________________

On Appeal from the United States District Court

for the Southern District of Ohio

__________________

BRIEF OF THE SECRETARY OF LABOR AS AMICUS CURIAE

IN SUPPORT OF DEFENDANT-APPELLEE

FOR AFFIRMANCE

__________________

NICOLAS C. GEALE THOMAS TSO

Acting Solicitor of Labor Counsel for Appellate

and Special Litigation

G. WILLIAM SCOTT STEPHANIE LEWIS

Associate Solicitor Senior Attorney

for Plan Benefits Security Plan Benefits Security Division

Office of the Solicitor

U.S. Department of Labor

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

(202) 693-5588
i 

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................. iii

QUESTION PRESENTED...................................................................................1 

STATEMENT OF INTEREST ............................................................................1 

STATEMENT OF THE CASE ............................................................................3 

A. Factual Background..........................................................................3 

B. Proceeding Below.............................................................................4 

SUMMARY OF ARGUMENT............................................................................7 

ARGUMENT........................................................................................................8 

I. A Domestic Relations Order Is A QDRO if it is in "Substantial 

Compliance" with 29 U.S.C. § 1056(d)(3)(C)'s Requirements........8 

A. The Purpose of the QDRO Provisions in the Retirement 

Equity Act Support a "Substantial Compliance" 

Approach................................................................................8 

B. Consistent with REA, This Court's Interpretation of 

ERISA Section 206(d)(3) Support a "Substantial 

Compliance" Standard ....................................................... 10 

C. The Text, Context, and Legislative History Compel the 

Conclusion That a Decree is in Substantial Compliance 

When the Fiduciary Can Objectively Determine the 

State Court's Instructions with Respect to Each QDRO 

Requirement....................................................................... 12
ii

TABLE OF CONTENTS-(continued)

D. Other Circuit Court Decisions Support the "Substantial 

Compliance" Standard ....................................................... 18

E. The Decree in This Case Substantially Complies with 

ERISA's Requirements....................................................... 20

II. A Plan Administrator Cannot Disqualify a QDRO Solely Because 

the Parties Did Not Present the Order Before the Participant's 

Death or Satisfy State-Law Requirements That Are Not Required 

by ERISA ...................................................................................... 24

A. The Order Did Not Fail to Be a QDRO Merely Because the 

Plan Administrator Did Not Receive it Before Bruce 

Jackson's Death ................................................................... 25

B. The QDRO Was Not Invalid Because Sierra Jackson's 

Parents Failed to Comply with the Order's Monitoring or 

Enforcement Provisions...................................................... 26

CONCLUSION.................................................................................................. 27

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE
iii

TABLE OF AUTHORITIES

Federal Cases:

Boggs v. Boggs, 

520 US 833 (1997)..................................................................................... 8, 10, 26

Brown v. Cont'l Airlines,

647 F.3d 221 (5th Cir. 2011) .................................................................. 17 n.5, 18

Carland v. Metro. Life Ins. Co.,

480 F.3d 779 (6th Cir. 2007) ......................................................................... 18, 19

Carmark v. Goetz,

935 F.3d 1114 (10th Cir. 1991) ..................................................................... 15 n.4

Egelhoff v. Egelhoff, 

532 U.S. 141 (2001)..............................................................................................26

Einhorn v. McCafferty, 

2016 WL 1273937 (E.D. Pa. 2016)......................................................................19

Files v. ExxonMobil Pension Plan, 

428 F.3d 478 (3d Cir. 2005) .................................................................................26

Hamilton v. Washington State Plumbing & Pipefitting Indus. Pension Plan, 

433 F.3d 1091 (9th Cir. 2006) ....................................................................... 19, 20

Hawkins v. Comm'r of Internal Revenue, 

86 F.3d 982 (10th Cir. 1996) ............................................................. 10, 18, 19, 20

Kennedy v. Plan Adm'r for DuPont Sav. and Inv. Plan, 

555 U.S. 285 (2009)....................................................................................... 24, 26
iv

Federal Cases-(continued):

Kucana v. Holder, 

558 U.S. 233 (2010)..............................................................................................13

Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mut. of Ohio, 

982 F.2d 1031 (6th Cir. 1993) ..............................................................................15

Lincoln Elec. Co. v. St. Paul Fire & Marine Ins. Co., 

210 F.3d 672 (6th Cir. 2000) ................................................................................14

Macaluso v. Myering, 

2013 WL 5530620 (D. Md. 2013)........................................................................19

Mattingly v. Hoge,

260 F. App'x 776 (6th Cir. 2008)................................................................... 11,12

Mehanna v. U.S. Citizenship & Immigration Servs., 

677 F.3d 312 (6th Cir. 2012) ................................................................................13

Metro. Life Ins. Co. v. Bigelow, 

283 F.3d 436 (2d Cir. 2002) .......................................................................... 11, 12

Metro. Life Ins. v. Clark, 

159 F. App'x 662 (6th Cir. 2005)............................................................. 11, 12, 18

Metro. Life Ins. Co. v. Marsh, 

119 F.3d 415 (6th Cir. 1997) ........................................................................ passim

Metro. Life Ins. Co. v. Wheaton,

42 F.3d 1080 (7th Cir. 1994) ................................................................... 18, 21, 24

Perez v. Aetna Life Ins. Co., 

150 F.3d 550 (6th Cir. 1998) ................................................................................14
v

Federal Cases-(continued):

Stewart v. Thorpe Holding Co. Profit Sharing Plan, 

207 F.3d 1143 (9th Cir. 2000) ....................................................................... 18, 20

Yale-New Haven v. Nicholls, 

788 F.3d 79 (2d Cir. 2015) ............................................................ 2, 11, 12, 20, 25

Yates v. United States, 

135 S. Ct. 1074 (2015)..........................................................................................14

Federal Statutes:

Judicial Review of Orders of Removal (Title 8)

8 U.S.C. § 1252(a)(2)(B)(ii) ....................................................................................13

Employee Retirement Income Security Act of 1974, (Title 29),

as amended, 29 U.S.C. et seq.:

Section 206(d)(3), 29 U.S.C. § 1056(d)(3).......................................................1, 26

Section 206(d)(3)(B)(i), 29 U.S.C § 1056(d)(3)(B)(i) ...........................................9

Section 206(d)(3)(B)(ii),2 9 U.S.C. § 1056(d)(3)(B)(ii) ........................................9

Section 206(d)(3)(C), 29 U.S.C. § 1056(d)(3)(C)......................................... 1, 4, 5

Section 206(d)(3)(C)(i),29 U.S.C. § 1056(d)(3)(C)(i) .................................. 16, 21

Section 206(d)(3)(C)(ii), 29 U.S.C. § 1056(d)(3)(C)(ii) ............................... 16, 22

Section 206(d)(3)(C)(iii), 29 U.S.C. § 1056(d)(3)(C)(iii)....................................10

Section 206(d)(3)(C)(iv), 29 U.S.C. § 1056(d)(3)(C)(iv) ....................... 11, 14, 22
vi

Federal Statutes-(continued):

Section 206(d)(3)(D), 29 U.S.C. § 1056(d)(3)(D)......................................... 17 n.5

Section 206(d)(3)(F)(ii), 29 U.S.C. § 1056(d)(3)(F)(ii).......................................15

Section 206(d)(3)(G)(ii), 29 U.S.C. § 1056(d)(3)(G)(ii)......................................26

Section 206(d)(3)(I), 29 U.S.C. § 1056(d)(3)(I)...............................................1, 15

Section 206(d)(3)(J), 29 U.S.C. § 1056(d)(3)(J) ....................................................9

Section 206(d)(3)(K), 29 U.S.C. § 1056(d)(3)(K)............................................9, 16

Section 404(a), 29 U.S.C. § 1104(a).......................................................................1

Section 404(a)(1), 29 U.S.C. § 1104(a)(1) ...........................................................15

Section 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B).................................................15

Section 502, 29 U.S.C. § 1132................................................................................1

Section 504, 29 U.S.C. § 1134................................................................................1

Section 505, 29 U.S.C. § 1135...............................................................................1

Section 514, 29 U.S.C. § 1144...............................................................................8

Section 514(a), 29 U.S.C. § 1144(a)................................................................9 n.3

Section 514(b)(7), 29 U.S.C. § 1144(b)(7).............................................................9

Federal Rules:

29 CFR § 2530.206(c)(2), ex. 1 ...............................................................................25
vii

Miscellaneous:

Pension Protection Act of 2006, 

Pub.L. 109-280, sec. 1001, 120 Stat. 780 (2006).................................................25

Retirement Equity Act of 1984 (REA),

Pub. L. 98-397, 98 Stat. 1426 ................................................................................8

S. Rep. No. 575, 98th Cong. 2d Sess. 19 (1984) .......................................................9

H.R. Rep. 98-655, (pt. 1) (1984)................................................................... 8, 15, 16

Additional technical corrections to the Retirement Equity Act of 1984, The Joint 

Committee on Taxation, JCX-2-86, (March 20, 1986), available at

https://www.jct.gov/publications.html?func=startdown&id=3491............... 16, 17

Restatement (Second) of Contracts § 212 (Am. Law Inst. 1981)............................14

DOL Advisory Opinion 2004-02A, 1990 WL 252962, (Dec.4, 1990) .....................9

DOL Advisory Opinion 2004-02A, 2004 WL 442363, (Feb. 17, 2004).......... 15, 26

DOL Advisory Opinion No. 2002-03, 2002 WL 1426140, (June 7, 2002) ...........17

DOL Advisory Opinion No. 1999-13A, 1999 WL 819020, (Sept. 29, 1999). 17 n.5

Clear, Clearly, Black's Law Dictionary (10th ed. 2014).........................................13

Clear, Clearly, Merriam Webster Dictionary (2017), 

https://www.merriam-webster.com/dictionary/clear............................................13

Clear, Clearly, Webster's New Collegiate Dictionary 1116 (1974)........................13
QUESTIONS PRESENTED

1. Whether a domestic relations order is a qualified domestic relations order 

(QDRO) if the order is in substantial compliance with the requirements in ERISA 

section 206(d)(3)(C), 29 U.S.C. § 1056(d)(3)(C). 

2. Whether the divorce decree in this case is a QDRO even though the parties 

to the decree allegedly failed to perform certain obligations that may be required 

by the state court decree but are not required under ERISA. 

STATEMENT OF INTEREST

The Secretary of Labor has primary authority to interpret and enforce Title I 

of ERISA, including its QDRO provisions, to ensure fair plan administration and 

compliance with ERISA's requirements. See 29 U.S.C. §§ 1132, 1134, 1135. 

Under ERISA section 206(d)(3), 29 U.S.C. § 1056(d)(3), a state-issued domestic 

relations order must meet certain requirements to be a QDRO. If it is a QDRO, the 

plan administrator must distribute all or a portion of a participant's plan benefits to 

a spouse, former spouse, child or other dependent of the participant (an "alternate 

payee") as mandated in the QDRO regardless of the participant’s beneficiary 

designation. The Secretary has a substantial interest in ensuring that plan 

administrators adhere to their fiduciary responsibilities set forth in ERISA section 

404(a), 29 U.S.C. § 1104(a), in determining whether a domestic relations order is a 

QDRO and distributing the benefits accordingly, 29 U.S.C. § 1056(d)(3)(I). 
2

In this case, the district court held, in accord with the statutory text, this 

Court's precedents, the legislative history, and the Department of Labor's 

established view, that "substantial compliance" with the statutory QDRO 

requirements is sufficient and that the order here substantially complied. However, 

the Second Circuit's decision in Yale-New Haven v. Nicholls, 788 F.3d 79, 85 n.3 

(2d Cir. 2015), cited by Sun Life requires literal compliance and mistakenly reads

this Court's decisions as consistent with Nicholls' literal approach. The Secretary 

has a significant interest in establishing that a domestic relations order that is in 

substantial compliance with the statutory requirements is a QDRO and in rejecting 

the Second Circuit's reading of this Court's precedents.

In this case, the district court also correctly rejected Sun Life's argument that 

a QDRO loses its validity if it is not presented to the ERISA plan before the plan 

participant’s death, or if the parties to the decree violate the state decree's own 

monitoring or enforcement mechanisms. An approach that permits plan 

administrators to consider non-ERISA requirements to find that orders do not 

qualify as QDROs would be contrary to existing law and undermine the uniformity 

of ERISA’s requirements.
3

STATEMENT OF THE CASE

A. Factual Background1

From about November 1993 until his death in February 2013, Bruce Jackson 

participated in his employer's life insurance plan which provided $48,000 in basic 

life insurance and $191,000 in supplemental life insurance. Sun Life Assurance 

Co. of Canada v. Jackson, No. 3:14CV41, --- F.Supp.2d ---, 2016 WL 4184444, at 

*1 (S.D. Ohio Aug. 5, 2016) ("Sun Life"). Throughout this period, his uncle,

Richard Jackson, was Bruce's designated beneficiary. Id. at *1-2. Bruce was 

married to Bridget Jackson until January 2006. Id.

In January 2006, Bruce and Bridget Jackson obtained a divorce decree, 

incorporating their separation agreement, which required that they both "maintain, 

unencumbered, all employer-provided life insurance, now in existence at a 

reasonable cost, or later acquired at a reasonable cost, naming their minor child as 

primary beneficiary during her minority, and the obligation to do so shall continue 

until she (a) reaches the age of eighteen (18) or graduates from high school, 

whichever occurs last." Sun Life, 2016 WL 4184444, at *2. Bruce and Bridget 

had only one child, Sierra, born February 1995, who was a high school student at 

the time of Bruce's death. Id. at *1-2. The divorce decree also required Bruce and 

Bridget to monitor their beneficiary designations for benefits covered by the order 

 1 The Factual Background is based on the district court's August 5, 2016 decision.
4

and contact insurers about changing any beneficiary designations to Sierra. Id. at 

*8. Notwithstanding the divorce decree, Bruce Jackson died without ever having 

changed his beneficiary designation to his daughter. Id. 

In July 2013, Sierra Jackson's attorney sought benefits on her behalf under 

the life insurance policy from Bruce's employer, who forwarded the request to Sun 

Life. Sun Life, 2016 WL 4184444, at *2. Richard Jackson filed a competing 

claim. Id. In August 2013, Sierra's attorney informed Sun Life that his client was 

the lawful beneficiary pursuant to a divorce decree, which he attached. Id. 

Nonetheless, Sun Life paid the proceeds to Richard Jackson. Id. Sierra's attorney 

expressed his client's objection and requested information about appealing the 

decision. Id. at *3.

B. Proceeding Below

Sun Life brought suit seeking a declaratory judgment that it properly paid

the proceeds to Richard Jackson. Sierra Jackson filed a cross-motion. Sun Life, 

2016 WL 4184444, at *1. The district court issued a decision in Sierra's favor. It 

held that "as a matter of law, the [divorce decree] substantially complied with 29 

U.S.C. § 1056(d)(3)(C), [and] is a QDRO[.]" Id. at *7.

The district court noted that, as a threshold matter, the domestic relations 

order must specify the elements required under 29 U.S.C. § 1056(d)(3)(C) to be a 

QDRO. Sun Life, 2016 WL 4184444, at *5. That provision requires that the order
5

clearly specif[y]--

(i) the name and the last known mailing address (if any) of the participant 

and the name and mailing address of each alternate payee covered by the 

order,

(ii) the amount or percentage of the participant's benefits to be paid by the 

plan to each such alternate payee, or the manner in which such amount or 

percentage is to be determined,

(iii) the number of payments or period to which such order applies, and

(iv) each plan to which such order applies.

29 U.S.C. § 1056(d)(3)(C). 

The district court found that the order substantially complied with clause (i)

because the decree listed Bruce Jackson's name and mailing address, the decree

referred to "their minor child" as the primary beneficiary, and Sierra Jackson was 

their only child. Sun Life, 2016 WL 4184444, at *5. The court further concluded 

that while the decree did not list Sierra Jackson's address, the addresses of both of 

her parents, who shared custody, were sufficient. Id. at *5-*6 (citing Metro. Life 

Ins. Co. v. Marsh, 119 F.3d 415, 422 (6th Cir. 1997)). 

The court also found that the decree was in substantial compliance with 

clause (ii) which requires the order to clearly specify the amount or percentage of 

the benefits to be paid to the alternate payee. Sun Life, 2016 WL 4184444, at *6. 

Because Sierra was the only child, it was clear that she would receive 100 percent 

of the proceeds. Id. The court held that clause (iii) was satisfied because the 
6

decree "specifies the period to which Article IX [of the order] applied: 'until the 

later of Sierra's eighteenth birthday or her graduation from high school, whichever 

is later.'" Id.

The court disagreed with Sun Life's argument that the decree failed to satisfy 

clause (iv) because the decree did not specifically name Bruce's life insurance 

policy.

2 Instead, the decree required each parent "to designate Sierra as the 

beneficiary of 'all employer-provided life insurance, now in existence at a 

reasonable cost, or later acquired at a reasonable cost.'" Sun Life, 2016 WL 

4184444, at *6 (emphasis added). The court noted that the Sixth Circuit does not 

require the decree to provide a specific policy name as long as the order "permit[s] 

identification of the plan and is not ambiguous." Id. (citing Marsh, 119 F.3d at 

422). The court also rejected Sun Life's arguments that Bruce and Bridget 

Jackson's failure to comply with the decree's requirements to monitor and report 

changes in beneficiaries disqualifies the decree as a QDRO. Id. at *7-*9. The

court reasoned that any requirements to become a QDRO are derived solely from 

 2 The Department does not address the preliminary question whether the QDRO 

provisions, which were adopted as an exception to ERISA's prohibition on the 

alienation or assignment of pension benefits and as an exception to preemption 

with respect to ERISA plans, are also applicable to life insurance or other welfare 

benefits, because the parties here do not dispute that under this Court's precedent, 

Marsh, 119 F.3d at 421, the QDRO requirements are applicable here and the 

Department is not a party to this case. 
7

ERISA not state law. Id. at *8. Consequently, the court concluded that each of the 

required elements was clearly specified. Id. at *6. 

SUMMARY OF ARGUMENT

As the district court correctly decided, a divorce decree can be qualified as a 

QDRO if it is in substantial compliance with the statutory requirements to "clearly 

specify" certain essential information about the parties to the decree and the 

allocation of benefits. The plain text, ERISA's design, its object and policy, its 

legislative history, and the Department of Labor's views all support a "substantial 

compliance" standard for the QDRO requirements. Importantly, Congress imposed 

fiduciary duties on the determination process, which requires a determination that 

is both diligent and prudent. A "substantial compliance" standard rejects a "magic 

words" approach, and instead requires the plan fiduciary to understand the order's 

context when determining whether the statutorily required information is clearly 

conveyed. Otherwise, a mere technicality would defeat a state court order. The 

daughter of the plan participant in this case presented the plan fiduciary with a 

valid state court order, with enough identifying information to unambiguously and 

objectively determine the state court's intent to allocate to the daughter the 

proceeds from the participant's life insurance policy and to convey all of the 

information required by the statute. In these circumstances, the order was in 

"substantial compliance" with the statutory requirements.
8

Further, any application of state requirements beyond those requirements 

found in ERISA to disqualify an order as a QDRO is contrary to established 

Supreme Court precedent and undermines ERISA's goals of uniformity

ARGUMENT

I. A Domestic Relations Order is a QDRO if it is in "Substantial 

Compliance" with 29 U.S.C. § 1056(d)(3)(C)'s Requirements

A. The Purpose of the QDRO Provisions in the Retirement Equity Act 

Supports a "Substantial Compliance" Approach

In 1984, Congress enacted the Retirement Equity Act of 1984 (REA), Pub. 

L. 98-397, 98 Stat. 1426, in part to ensure ERISA plans honored the intent of state 

domestic decrees when allocating employee benefits. Boggs v. Boggs, 520 US 

833, 846-847 (1997). At the time, Congress noted that "[w]hen benefits are 

granted in divorce situations, [benefits are] vulnerable because the former spouse's 

benefit is tied to the benefit of the participant [and] nonparticipant spouses have 

had difficulty receiving a share . . . because their ability to receive payments often 

is dependent upon the actions of the participant." H.R. Rep. No. 98-655 (pt. 1), at 

31 (1984). Before REA, the courts were conflicted about whether ERISA's broad 

preemption provision, ERISA Section 514, 29 U.S.C. § 1144, preempted state 

domestic relations orders which allocated some or all of a plan participant's 

benefits to persons not designated by the participant as beneficiaries in plan 
9

documents.3 Consequently, plan fiduciaries could be legally vulnerable whether

they complied with a state order dividing and distributing some or all of a 

participant's benefit to such persons or ignored the order and distributed the 

benefits to the beneficiary designated by the participant. 

In response to this dilemma, REA amended ERISA to except from ERISA 

preemption domestic relations orders that meet the definition of "qualified 

domestic relations orders," 29 U.S.C § 1056(d)(3)(B)(i). See S. Rep. No. 575, 98th 

Cong. 2d Sess. 19 (1984); DOL Advisory Opinion 2004-02A, 1990 WL 252962, at 

*2-*3 (Dec. 4, 1990); 29 U.S.C. § 1144(b)(7). "Domestic relations orders" are 

judgments, decrees, or orders issued under state domestic relations laws which 

address child or family support, alimony payments, or marital property rights. 29

U.S.C. §1056(d)(3)(B)(ii). A QDRO allocates to an "alternate payee" all or a

portion of a participant's plan benefits regardless of whom the participant otherwise

designated in plan documents to receive benefits upon his or her retirement or 

death. 29 U.S.C. § 1056(d)(3)(B)(i), (J), (K).

REA thus honors the instructions of the state authority that determined the 

disposition of property upon the dissolution of a marriage. "[O]ne of REA's central 

 3 ERISA section 514(a) provides, with certain exceptions, that Title I of ERISA 

preempts "any and all State laws insofar as they may now or hereafter relate to any 

employee benefit plan." 29 U.S.C. § 1144(a). 
10

purposes . . . is to give enhanced protection to the spouse and dependent children in 

the event of divorce or separation." Boggs, 520 U.S. at 847. In light of REA's 

purposes, a strict reading of REA's text "has the potential to frustrate [an] 

important Congressional purpose by making it unreasonably difficult for domestic 

relations orders to qualify as QDROs." Hawkins v. Comm'r of Internal Revenue, 

86 F.3d 982, 991 (10th Cir. 1996). As fully explained below, rejecting QDROs 

based on technical noncompliance undermines REA's intended protections.

B. Consistent with REA, this Court's Interpretation of ERISA Section 

206(d)(3) Supports a "Substantial Compliance" Standard 

Consistent with REA's purposes, this Court set forth a "substantial 

compliance" standard in Marsh, noting, "we should not demand literal compliance 

where Congress' intent has been to give effect to domestic relations orders where it 

is clear what the decree intended." 119 F.3d at 422. A substantial compliance test 

includes an examination of the substance of the document, and under Marsh, an 

order qualifies if the order as a whole provides the "essential information" required 

by ERISA in a "clear" and "unambiguous" manner. Id. 

Marsh provides two pertinent examples. First, this Court found that an order 

substantially complied with the requirement to "specify 'the number of payments or 

periods for which such order applies'" in 29 U.S.C. § 1056(d)(3)(C)(iii):

"[Because] [t]his was a life insurance policy to be paid in a lump sum on 

decedent's death and not payments from a pension plan, there was no need to 
11

specify the number of payments or periods for which the order applies." Marsh,

119 F.3d at 422. Second, "[w]hile the divorce decree did not specify where 

deceased was employed, the decree identified the policy as one through 

Metropolitan Life Insurance Company maintained at his place of employment.

This permitted identification of the plan and is not ambiguous," thereby complying 

with 29 U.S.C. § 1056(d)(3)(C)(iv). Id.

Though Marsh applied the substantial compliance test to determine whether 

a pre-REA domestic relations order complied with the QDRO requirements, which

did not exist when the order was entered, 119 F.3d at 422, this Court continued to 

apply Marsh's substantial compliance standard for post-REA orders. See, e.g., 

Metro. Life Ins. v. Clark, 159 F. App'x 662, 665 (6th Cir. 2005) (unpublished)

(applying Marsh to a "virtually identical" post-REA order); Mattingly v. Hoge, 260 

F. App'x 776, 780 (6th Cir. 2008) (unpublished). For example, in Clark, 159 F. 

App'x at 664 n.1, the Court understood from the context and the order as a whole

the number of children covered by the state order despite a "clerical mistake" in the 

state order, and affirmed the dismissal of a stepson's claim. 

Recently, the Second Circuit read the Marsh decision narrowly to only apply 

to pre-REA orders. Nicholls, 788 F.3d at 84-85. Following Marsh, the Second 

Circuit previously concluded that a substantial compliance standard applied to preREA orders. Metro. Life Ins. Co. v. Bigelow, 283 F.3d 436, 444 (2d Cir. 2002) 
12

(relying on Marsh). Unlike this Court's unpublished decisions in Clark and Hoge, 

however, the Second Circuit in Nicholls decided that this same standard should not 

apply to post-REA decrees, noting that Bigelow applied a substantial compliance 

standard for pre-REA orders because Congress completely exempted pre-REA 

orders from REA's requirements. Bigelow, 283 F.3d at 443 ("Congress made clear 

that a domestic relations order . . . entered before January 1, 1985 may be treated 

as a QDRO 'even if such order does not meet the [REA] requirements[.]'") (quoting 

Pub. L. No. 98–397 § 303(d)); Nicholls, 788 F.3d at 84. In contrast, the Nicholls

court emphasized Congress's use of the phrase "clearly specifies" in REA as a basis 

to apply a stricter compliance standard to post-REA orders. 788 F.3d at 85. Sun 

Life relies on Nicholls to support its argument that ERISA requires strict or literal 

compliance for the post-REA order in this case despite Marsh. Plaintiff-Appellant

Br. 13. This Court should confirm its prior unpublished decisions holding that 

Marsh's reasoning applies to both pre- and post-REA orders. 

C. The Text, Context, and Legislative History Compel the Conclusion 

That a Decree is in Substantial Compliance When the Fiduciary Can 

Objectively Determine the State Court’s Instructions with Respect to 

Each QDRO Requirement

Contrary to Nicholls, this Court's "substantial compliance" rule should 

continue to apply post-REA. A "substantial compliance" standard is dictated by 

the structure Congress intended for QDRO determinations, REA's legislative 
13

history, other circuit case-law, and the Department's guidance, and is consistent 

with the statutory language. 

The plain meaning of the term "clearly specifies" supports a substantial 

compliance standard. "Clear" is defined as "[f]ree from doubt; sure" or 

"[u]nambiguous." Black's Law Dictionary (10th ed. 2014) ("clear"); see also

Merriam Webster Dictionary (defining "clearly" as "free from obscurity or 

ambiguity" or "easily understood"). "'[S]pecify' means 'to name or state explicitly 

or in detail.'" Kucana v. Holder, 558 U.S. 233, 243 n.10 (2010) (quoting Webster's 

New Collegiate Dictionary 1116 (1974)). In Mehanna v. U.S. Citizenship & 

Immigration Servs., 677 F.3d 312, 316 (6th Cir. 2012), this Court considered 

Congress's use of the term "specifies" in an immigration provision, which had 

insulated from judicial review only executive decisions that Congress clearly 

"specified" (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)). The Court recognized that the 

"specifies" standard does not turn on the use of magic words but, instead, turns on 

the "substance" of the executive decision and how it relates to judicial review. Id. 

Consistent with these definitions, Marsh indicated that as long as the substance or 

the "essential information" required by ERISA can be determined without 

ambiguity, an order is in "substantial compliance" and, thus, must be qualified as a 

QDRO. 119 F.3d at 422. Conveying this substance unambiguously does not 

require the use of "magic words," or, in this context, certain requisite text, such as 
14

the exact name of the benefits plan, see 29 U.S.C. § 1056(d)(3)(C)(iv). Cf. Perez 

v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998) (applying this principle in 

construing a grant of discretion to ERISA plan administrators which must be 

"clear") (en banc). Instead, in discerning unambiguous language, this Court 

recognizes that context matters. Cf. id. at 557 (recognizing that the dissent's 

contrary reading was "implausible" given the structure of the plan). 

In analogous areas of textual interpretation, whether a text is unambiguous is 

determined not only by the language itself but also by the specific context in which 

that language is used and the broader context of the entire text. Cf. Yates v. United 

States, 135 S. Ct. 1074, 1081-82 (2015) (statutory interpretation). Similarly, for 

contract interpretation, the Restatement (Second) of Contract states that "[i]t is 

sometimes said that extrinsic evidence cannot change the plain meaning of a 

writing, but meaning can almost never be plain except in a context . . . . Any 

determination of meaning or ambiguity should only be made in the light of the 

relevant evidence of the situation and relations of the parties, the subject matter of 

the transaction . . . ." Restatement (Second) of Contracts § 212 (1981) (emphasis 

added); see, e.g., Lincoln Elec. Co. v. St. Paul Fire & Marine Ins. Co., 210 F.3d 

672, 686 (6th Cir. 2000). 

A plan administrator has a duty to understand the context of the order 

because the determination of whether a domestic relations order is a QDRO is a 
15

fiduciary decision. Under 29 U.S.C. § 1056(d)(3)(I), a fiduciary's obligations with 

respect to the distribution of benefits are discharged if the fiduciary's QDRO 

determinations and distributions accord with the fiduciary responsibility provisions 

of ERISA, codified at 29 U.S.C. §§ 1104(a)(1), 1056(d)(3)(I). See DOL Advisory 

Opinion 2004-02A, 2004 WL 442363, at *4; see also H.R. Rep. No. 98-655 (pt. 1) 

at 41 (1984).4 These duties include the duty of prudence, defined by statute as 

discharging duties with "the care, skill, prudence, and diligence . . . that a prudent 

man . . . familiar with such matters would use[.]" 29 U.S.C. § 1104(a)(1)(B)

(emphasis added). In light of these duties, Congress requires the plan's procedures 

for making the determination be "reasonable." 29 U.S.C. § 1056(d)(3)(F)(ii). 

Generally, "[p]rinciples of trust law do apply to ERISA" and inform the statutory 

interpretation of ERISA's fiduciary obligations. Libbey-Owens-Ford Co. v. Blue 

Cross & Blue Shield Mut. of Ohio, 982 F.2d 1031, 1036 (6th Cir. 1993). Simply 

requiring the plan administrator to check only for literal compliance with the words 

of the statute misunderstands the nature and context of the statutory provisions 

governing this fiduciary decision.

Legislative history supports the view that Congress did not intend plan 

fiduciaries to make determinations without understanding the context of an order

 4 Department of Labor advisory opinions warrant deference when they are 

persuasive and consistent with applicable law. Caremark v. Goetz, 480 F.3d 779, 

789 (6th Cir. 2007).
16

after a diligent reading of the entire order to discern its context and intent. 

Congress's intent, in part, in enacting REA was to protect spouses, ex-spouses, and 

dependents from a deprivation of rights legitimately granted by a state order, 

especially when these rights to benefits are often dependent on a plan participant. 

E.g., H.R. Rep. No. 98-655 (pt. 1), at 23, 31 (1984) (intending to remove "any 

ambiguity in ERISA which might permit a pension plan to refuse to honor a 

legitimate state domestic relations order," because the "ability to receive payments 

often is dependent upon the actions of the participant."); Id. at 42 (1984) ("The 

Committee intends that plan administrators make every effort to assure that 

alternate payees receive the benefits which have been awarded them by the State 

domestic relations courts."). Congress thus intended a fiduciary to bear in mind the 

intent of the state order and to be flexible in qualifying legitimate orders. For 

example, Congress intended the "alternate payee" requirement, 29 U.S.C. § 

1056(d)(3)(C)(i), (ii), (K), to be determined by context. The legislative history of 

the requirement shows that "[t]he qualified domestic relations provisions would not 

prevent the payment of amounts to a State agency that is an agent of an alternate

payee[,]" even though the agency is not technically an "alternate payee" under a 

stringent application of the literal text. See Additional technical corrections to the 

Retirement Equity Act of 1984, The Joint Committee on Taxation, JCX-2-86, at 3 

(March 20, 1986), available at
17

https://www.jct.gov/publications.html?func=startdown&id=3491. Accordingly, in 

an Advisory Opinion, DOL Advisory Opinion No. 2002-03, 2002 WL 1426140, at 

*2 (June 7, 2002), the Department recognized that while a government agency is 

not technically an "alternate payee" under the statute, the plan fiduciary may 

examine the "circumstances" described in the order, including the agency's legal 

role as "an agent for the child" for child support payments, to determine if the court 

order satisfies the requirement to list an "alternate payee" and to clearly specify the 

payee's information. Id. Consistent with the administrator's fiduciary obligations, 

legislative intent, and Departmental guidance, an administrator must, at a 

minimum, objectively understand the context of an order by examining all of the 

information provided in the order.

5

The Department acknowledges, however, that the substantial compliance 

standard has limits. To the extent such a determination is based on subjective 

 5 We are not addressing or defining the full scope of what fiduciaries' duties apply 

to QDRO determinations under a different set of facts. See, e.g., DOL Advisory 

Opinion No. 1999-13A, 1999 WL 819020, at *5 (Sept. 29, 1999); Brown v. Cont'l 

Airlines, 647 F.3d 221, 228 (5th Cir. 2011) (discussing fiduciary obligations when 

confronted with allegations of fraudulent orders). For example, Congress requires 

the plan administrator to examine plan records and documents related to the plan 

participant for a QDRO determination to ensure the order does not require the plan 

to provide benefits not allowed under the plan. See, e.g., 29 U.S.C. § 

1056(d)(3)(D). Nor are we addressing if it is consistent with ERISA's fiduciary 

standards for Sun Life as plan administrator to have distributed the contested 

benefit without giving the alternate payee the opportunity to correct the deficiency 

and resubmit the DRO.
18

knowledge or conjecture as to the parties' or the state court's intent, the order 

would not meet the "clearly specifies" standard. See Hawkins, 86 F.3d at 991. Cf.

Brown v. Cont'l Airlines, 647 F.3d 221, 228 (5th Cir. 2011) (not requiring inquiry 

into "subjective motives and intentions" in relation to alleged "sham divorces"); 

see also Clark, 159 F. App'x at 666 (finding the intent unclear).

Distilling these principles, the decree was in "substantial compliance" with

the required elements of the statute because the plan administrator could

objectively determine Sierra's entitlement to the benefits provided in the order. A 

fiduciary may determine that an order satisfies the "substantial compliance" test

based on his examination of the content and context conveyed by the information 

provided in the order.

6

 

D. Other Circuit Court Decisions Support the "Substantial Compliance" 

Standard 

A substantial compliance standard has also been applied to post-REA orders 

by three other circuits. Metro. Life Ins. Co. v. Wheaton, 42 F.3d 1080, 1084–86 

(7th Cir. 1994); Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 

1153 (9th Cir. 2000). The Tenth Circuit has a slightly more restrictive view of 

"substantial compliance." Hawkins, 86 F.3d at 991 (relying on Carland v. Metro.

 6 The type of plan benefits described in the order, for example, is relevant to the 

context of the order. In both this case and Marsh, the fact that the benefit was life 

insurance was pertinent to the court's analysis of whether the information in the 

order was ambiguous. 
19

Life Ins. Co., 935 F.3d 1114 (10th Cir. 1991)); see also Hamilton v. Washington 

State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1097 (9th Cir. 

2006) (agreeing with some aspects of Hawkins). Some district courts in other 

circuits have also adopted the rule. See, e.g., Einhorn v. McCafferty, 2016 WL 

1273937 (E.D. Pa. 2016); Macaluso v. Myering, 2013 WL 5530620 (D. Md. Oct. 

4, 2013).

In Carland, for example, the Tenth Circuit held that the plan administrator 

had a duty to consider the context when making a QDRO determination. In that 

case, the order stated that the alternate payee was to receive "the 'current value' of 

the policy, less one thousand dollars." 935 F.2d at 1120. The administrator argued 

that it was ambiguous as to whether current value related to the value at the time of 

divorce or the participant’s death. Id. The Tenth Circuit reasoned that since the 

alternate payee was described as the irrevocable and sole primary beneficiary "the 

term 'current value' has only one meaning in this context – the value of the policy

at the time of [the participant’s] death." Id. The court also noted that the policy 

had no value when the order was entered into and the insurer had conceded that it 

was not under any obligation to pay the beneficiary before the participant's death, 

thus concluding that current value could not mean the value when they divorced. 

Id. Similarly, in this case, the domestic relations order "clearly contains the 

information specified in the statute that a plan administrator would need to make 
20

an informed decision" based on information provided to him within the text of the 

order. Stewart, 207 F.3d at 1154. 

In contrast, Nicholls (and Sun Life) rely primarily on the fact that Congress 

exempted pre-REA orders from REA's requirements. Nicholls, 788 F.3d at 84-85. 

Congress's exemption of all of REA's requirements merely prevents REA's 

retroactive application generally; it does not dictate any level of compliance, literal 

or substantial, or the scope of a substantial compliance standard, for post-REA 

orders. Before Nicholls, "'[w]hile there [wa]s some disagreement over the extent 

to which [the Tax Code's and ERISA's] specificity requirements may be relaxed, 

the cases in this area all seem to allow some degree of latitude.'" Stewart, 207 F.3d 

at 1153 (citation omitted); see also Hamilton, 433 F.3d at 1097. An order can 

achieve that clarity even where it "fail[s] to track the language of the statute," so 

long as "the criteria of the statute [are] satisfied in substance." Hawkins, 86 F.3d at 

991. Nicholls does not provide any basis for Sun Life's argument that an inflexible 

literal compliance regime applies. This Court should confirm its prior unpublished 

decisions that Marsh's reasoning applies to both pre- and post-REA orders. 

E. The Decree in This Case Substantially Complies with ERISA's 

Requirements

In this case, the fiduciary can unambiguously and objectively identify from 

the order the essential information for each statutory requirement from the 

information provided by the order. 
21

Sun Life's arguments on the deficiencies of the decree in this case run 

counter to the "substantial compliance" standard. Sun Life argues that, even under 

a "substantial compliance" standard, the domestic relations order at issue is not a 

QDRO because it does not "state Sierra's last known mailing address or even state 

with which parent she would primarily reside," as required by 29 U.S.C. § 

1056(d)(3)(C)(i). Plaintiff-Appellant Br., at 17. At the time of the divorce decree, 

she was only ten years old and the decree explicitly stated that her parents would 

share custody and listed both parents' addresses. Sun Life, 2016 WL 4184444, at 

*2. This Court has held that providing the custodial parents' address is sufficient 

information and equally serves as the child's mailing address. See Marsh, 119 F.3d 

at 422; see also Wheaton, 42 F.3d at 1084. While Sierra relied on an Ohio state 

case, see Sun Life, 2016 WL 4184444, at *6, the district court relied on Marsh. As 

with Marsh, because the decree established shared custody of the minor alternate 

payee and listed both parents' addresses, it satisfied the requirement to list the 

mailing address of the alternate payee at that time. The information within the 

order provided a clear context that unambiguously conveyed the “essential 

information,” Sierra’s address at the time of the order, as required by the statute. 

Sun Life's rule leads to impractical, if not impossible, results; an alternate payee 

would have had to hire a lawyer, go to state court, and change the state court order 

every time she changed addresses in order to preserve her rights. 
22

As to the requirement that the order state the amount or percentage of 

benefits to be paid to each alternate payee, 29 U.S.C. § 1056(d)(3)(C)(ii), the 

district court correctly concluded that the QDRO clearly requires that "100% of the 

benefits of any policy should be paid to her[.]" Sun Life, 2016 WL 4184444, at *5.

The order at issue is far less complex than the order the Court considered in Marsh. 

In that case, the Court found a circumstance in which the order stated that 'the two 

minor children should receive two-thirds of the policy,' without explicitly stating 

how much each should receive. Marsh, 119 F.3d at 422. In this case, the order 

provided for Bruce and Bridget's "minor child as primary beneficiary during her 

minority...until she (a) reach(es) the age of eighteen (18) or graduates from high 

school, whichever occurs last..." Sun Life, 2016 WL 4184444, at *2. Sierra was 

Bruce and Bridget's only child, and thus, the only alternate payee under the order.

Though the order does not explicitly state that Sierra will receive 100% of the 

policy proceeds, it is the only natural reading of the order.

With respect to the requirement that an order clearly specify the benefit 

plan(s) to which the order applies, 29 U.S.C. § 1056(d)(3)(C)(iv), the district court 

here correctly concluded that the order's statement that it applied to "all employerprovided life insurance, now in existence at a reasonable cost, or later acquired at a 

reasonable cost" was unambiguous. Sun Life, 2016 WL 4184444, at *2 (emphasis 

added). The order plainly covers all life insurance plans under which the 
23

participant is covered by his employer "now in existence" or "later acquired." Id. 

It does not limit the insurance to any specific insurer with which the plan may have 

contracted to provide benefits. This information can also be objectively 

determined by the plan. 

Sun Life argues the order is unclear because certain life insurance policies 

may be provided at unreasonable cost or are not provided or subsidized by the 

employer. Plaintiff-Appellant Br. 14-16. However, as the district court correctly 

recognized, Sun Life cites no basis to suggest that the specific life insurance policy 

at issue here was ever acquired at an unreasonable cost, that it was not part of an 

employer-sponsored ERISA plan, or that it was purely funded by employee 

contributions. Sun Life, 2016 WL 4184444, at *7 ("In sum, the contingencies 

listed in the Decree, which could have resulted in uncertainty regarding whether 

the Policy was covered by the Decree, never occurred, and thus do not render the 

Decree ambiguous.") (listing "loss of employer subsidy" as a contingency that 

"never occurred" here). Sun Life's argument, again, results in impractical and 

dangerous consequences. Insurers, like Sun Life, or competing claimants, will

attempt to create ambiguity by suggesting hypothetical situations for which the 

decree may not clearly apply. Any decree could be defeated by such a challenge. 

However, the only relevant question, as the district court correctly recognized, is 

whether the decree clearly applies to the benefits at hand; Sun Life's appeal does 
24

not offer any basis to suggest that the policy at issue was not "employer-provided" 

or acquired at a "reasonable cost." This order falls well within the substantial 

compliance standard.

Sierra’s status as alternate payee is sound regardless of the breadth of the 

substantial compliance standard. The plan administrator is not subject to 

inappropriate "litigation-fomenting ambiguities" by a requirement that it pay the 

benefits to the payee that the parties objectively intended to receive the benefits 

based on the clear text, substance, and context of the order. Cf. Kennedy v. Plan 

Administrator for DuPont Savings and Investment Plan, 555 U.S. 285, 302 (2009)

(citing Wheaton, 42 F.3d at 1084). Nor would the court serve equity or legislative 

intent by insisting on perfect or near-perfect compliance, so that even slight 

technical deficiencies would defeat the parties' unambiguous intent as reasonably 

and objectively reflected in the text of the court's domestic relations order. The 

district court objectively and correctly determined the order's clear intent based on 

the substance of the order, which satisfied the statute's requirements in this case. 

II. A Plan Administrator Cannot Disqualify a QDRO Solely Because the 

Parties Did Not Present the Order Before the Participant's Death or 

Satisfy State-Law Requirements That Are Not Required by ERISA

Sun Life also argues that the QDRO is not valid because (a) Sun Life was

not aware of it before Bruce Jackson's death and (b) the parties to the order 

allegedly did not comply with its monitoring and enforcement provisions. Sun 
25

Life's fiduciary duty was to assess the order based on ERISA's requirements. 

Imposing additional substantive standards on ERISA's definition of a QDRO is 

contrary to established law. The district court correctly held that the order did not 

fail to be a QDRO based on those grounds.

A. The Order Did Not Fail to Be a QDRO Merely Because the Plan 

Administrator Did Not Receive it Before Bruce Jackson's Death

The law is clear that a domestic relations order does not fail to be a QDRO 

simply because it was not presented to the plan administrator before the 

participant's death. In 2006, Congress directed the Secretary of Labor to issue 

regulations clarifying that a domestic relations order does not fail to be a QDRO 

solely because of the time at which it is issued. Pension Protection Act of 2006, 

Pub.L. 109-280, sec. 1001, 120 Stat. 780 (2006). The regulations provide several 

examples clarifying that a domestic relations order may still be a QDRO even if it 

was issued after the participant's death. 29 CFR § 2530.206(c)(2), ex. 1. 

Logically, an order issued before the participant's death but presented to the plan 

administrator after his death is likewise still a QDRO. Other circuit courts have 

already said as much. E.g., Files v. ExxonMobil Pension Plan, 428 F.3d 478, 488 

(3d Cir. 2005); see generally Nicholls, 788 F.3d at 85-86 (compiling earlier circuit 

court cases). 
26

B. The QDRO Was Not Invalid Because Sierra Jackson's Parents Failed 

to Comply With the Order's Monitoring or Enforcement Provisions 

Just as Sun Life cannot disqualify this order because the order was not 

presented before the participant's death, Sun Life cannot invalidate a QDRO 

because the order contains monitoring and enforcement provisions unrelated to 

ERISA, which were allegedly not honored. ERISA requires plans to have 

reasonable procedures "to determine the qualified status of domestic relations 

orders and to administer distributions under such qualified orders." 29 U.S.C. § 

1056(d)(3)(G)(ii). In carrying out these "reasonable procedures," plan 

administrators cannot, of course, alter the statutory definition of what constitutes a 

QDRO. 

As the Department has previously stated in Advisory Opinion No. 2004-02A 

(Feb. 17, 2004), 2004 WL 442363, at *4, "[a] plan administrator may determine 

that an order is not qualified only on the basis of the requirements set forth in 

section 206(d)(3) of ERISA[.]" The overarching thrust of the Supreme Court's 

decisions in Boggs, Egelhoff, and Kennedy is that states, including individual state 

courts, cannot insert additional conditions or rules that would disqualify otherwise 

legitimate QDROs under ERISA. Boggs, 520 U.S. at 850; Egelhoff v. Egelhoff, 

532 U.S. 141, 147-48 (2001) ("Uniformity is impossible, however, if plans are 

subject to different legal obligations in different States."); Kennedy, 555 U.S. at 

876-877. Allowing plan administrators or their delegates to add their own 
27

additional elements to the definition of what constitutes a QDRO similarly 

undermines efforts at uniformity and serve as a further barrier to state efforts to 

draft orders intended to meet ERISA's requirements. 

Consistent with existing law, the district court correctly held that the QDRO 

was not disqualified even if it had not been presented to the plan before Bruce 

Jackson's death or the parties to the order had not conformed to certain monitoring 

and enforcement provisions in the state order.

CONCLUSION

The Secretary respectfully requests this Court uphold the district court’s 

decision. 

Respectfully Submitted,

NICOLAS C. GEALE

Acting Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor

for Plan Benefits Security

THOMAS TSO

Counsel for Appellate

and Special Litigation

/s/Stephanie Lewis

STEPHANIE LEWIS

Senior Attorney

Plan Benefits Security Division

Office of the Solicitor

U.S. Department of Labor
28

Room N-4611

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 693-5588 – Phone

(202) 693-5610 - Fax
CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 29(d) and 32(a)(7), I certify that this

amicus brief contains 6,375 words.

Dated: July 12, 2017

/s/ Stephanie Lewis 

STEPHANIE LEWIS

Senior Attorney

United States Department of Labor

Plan Benefits Security Division

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

Telephone: (202) 693-5588

Email: lewis.stephanie@dol.gov
CERTIFICATE OF SERVICE

I hereby certify that on this day, July 12, 2017, I electronically filed the 

foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF THE DEFENDANT-APPELLEE FOR AFFIRMANCE with the 

Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by 

using the CM/ECF system. I certify that all participants in this case are registered 

CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/ Stephanie Lewis 

STEPHANIE LEWIS

Senior Attorney

United States Department of Labor

Plan Benefits Security Division

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

Telephone: (202) 693-5588

Email: lewis.stephanie@dol.gov