1 Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 et seq

.

2 See Ablamis v. Roper

, 937 F.2d 1450 (9th Cir. 1991). The

Ninth Circu it includes the community property states of Arizona,

California, I daho, Nevada, and Washington. In substantially

similar circumstances, the Department of Labor also has concluded

that ERISA mandates preemption. DOL Advisory Opinion # 90-46A

(December 4, 1990). July 16, 1996

No. 94-30178, Boggs v. Boggs

WIENER, Circuit Judge, with whom POLITZ, Chief J udge, KING,

BENAVIDES, STEWART and PARKER, Circuit Judges, join, dissenting

from failure to grant rehearing en banc.

My concerns about the panel majority opinion in this case

prompted me to request a poll of the active judges of this court to

rehear the case en banc. In the ensuing poll, less than a majority

of the judges voted to rehear the case. With the utmost respect,

I dissent from the refusal of a majority of the active judges of

this court to rehear this case en banc.

I

WHY EN BANC?

The instant appeal forces us to come to grips with the

conundrum that resul ts when the irresistible force of ERISA, 1

particularly its preemption and anti-alienation provisions, meets

the immovable object of a state's community property regime,

particularly its immediate vesting and assignability provisions.

The panel opini on held that the force of ERISA could not budge

Louisiana’s community property regime; and in so holding created a

circuit split with the “other” majority community property

circuit. 2 Despite the split thus created, the monumental and3 29 U.S.C. § 1001(a).

4 U.S. D EP ’ T OF C OMMERCE

, B UREAU OF THE C ENSUS

, S TATISTICAL A BSTRACT OF

THE U NITED S TATES at 383, 535 (115th ed. 1995).

5 E .g.

, Lockheed Corp. v. Spink

, 116 S. Ct. 1783 (1 996);

Varity Corp . v. Howe , 116 S. Ct. 1065 (1996); P eacock v. Thomas

, 116 S. Ct. 862 (1996); New York Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co.

, 115 S. Ct. 1671 (1995);

2 pervasive effect on the great majority of the residents of this

circuit, and the 2-to-1 division of the panel that heard this

appeal, this court refused to rehear the panel opinion en banc. I

write separately not only to voice my disappointment with that

failure of the entire court to consider such an important appeal,

but also to address the merits of this issue of great consequence.

Recognizing that employee benefit plans affect “the continued

w ell-being and security of millions of employees and thei r

depende nts,” 3 Congress enacted the unique and highly pervasive

Employee Income Retirement Security Act (ERISA) in 1974, thus

making the regulation and administration of non-governmental

retirement and benefit plans an exclusively federal c oncern.

Today, over twenty years later, the preeminence and importance of

pension plans and welfare benefit plans in the lives of most

Americans has grown exponentially. With their combined assets

totaling over 4.7 trillion dollars, employee benefit plans cover an

estimated 54 million employees. 4 In addition to its economic

significance, this landmark l egislation plays a dominant role in

present-day federal jurisprudence as reflected, for example, by the

unusually high number of ERISA cases for which the Supreme Court

has granted writs in recent years. 5 In sum, ERISA and employeeCurtiss-Wright Corp. v. Schoonejongen , 115 S. Ct. 1223 (1995).

6 First, we cannot tell why the appellant has not asked for

panel or en banc rehearing: It may be economics , it may be

personal, it may be tactical, etc. Regardless of the reason, such

inaction by the parties should not here control our determination

to rehear a case of this importance. Second, my argument favoring

rehearing this case en banc and the analysis that follows, focuses

on the legal interpretation of ERISA’s preemption and spendthrift

provisions. These are i ssues a nd they have been briefed by both

parties; they are not “new” issues. Moreover, to the extent that

any of my arguments discuss new theories which should not be

entertained

— a proposition with which I disagree

— these arguments

are merely “belt and suspenders” support for the parties’ arguments

on the same issues that are and have been squarely before this

court.

7 Both Texas and Louisiana are community property states.

3 benefit plans are ubiquitous and integral parts of our society.

Within the foregoing framework, the following two factors were

urged by the panel majority as reasons why this case should not be

voted en banc: (1) the parties themse lves had not filed a motion

for panel rehearing or suggestion for rehearing en banc, and (2)

the arguments that I presented in favor of ERISA preemption are not

the arguments that were presented to the district court or to the

panel. In this instance, I find those reasons wholly

unpersu asive. 6 Moreover, they obscure the fact that this case

presents an issue of critical and continuing importance to both

temporary and permanent residents

— past, present, and future

— of

all community property states, a category comprising the two most

populous states of this circuit. 7 Not only is this issue one of

legal primacy, it literally touches the pocketbooks of hundreds of

thousands if not millions of plan participants an d their spouses

during their retirement years. In addition to creating a circuit4

split, the panel opinio n has all the “bombshell” potential of

making an earth-shaking impact on an area of the law as pervasive

as ERISA in general and pensions in particular. A case of this

magnitude should bear the imprimatur of the entire court, even if

the en banc court were ultimately to reach the same result as has

the panel.

II

THE MERITS

I do not suggest that the substantive issues of this case are

easy ones. Indeed, in addition to an understanding of the

complexities of ERISA, an understanding of the nature of retirement

plans, particularly defined benefit plans , is crucial. To begin

with, it is axiomatic that there can be no rights greater than

those created by the retirement plan

, the contents of which, for

ERISA plans, is largely dictated by that statute. That the panel

majority “granted” to the heirs of the predeceased first spouse an

interest in the survivor annuity of the second spouse

— despite the

undeniable fact that this survivor annu ity never even came into

existence during the lifetime of the first spouse, but only upon

her widower’s re-marriage — may suggest that proper consideration

has not been given to the nature of pensions in general or to the

Bell Plan itself.

It is equally axiomat ic that this appeal requires a keen

understanding of the law of ERISA. As this court could not duck

the core issue of preemption which lies at the busy intersection5

where ERISA and community property law collide, I would have had us

conclude that the length and breadth of the preemption mantle in

which Congress has cloaked ERISA gives it the right-of-way. More

specifically, I would have had our court hold that ERISA preempts

Louisiana community property law to the extent that such law would

purport to recognize and enforce an interest of the heirs or

legatees of a deceased nonparticipant spouse as to her "community

interest" in an ERISA-qualified pension plan. As explained more

fully below, I believe that this conclusion is compelled by the

mandate of the federal statute, the intent of Congress, and the

purposes and structur e of ERISA, not the least of which is the

requirement of national uniformi ty of such pension plans in the

private sector of our national economy. Furthermore, that the

state law claims in this case have been brought against the

beneficiaries of the plan, as opposed to the plan itself or the

plan’s fiduciary, in no way circumvents or defeats ERISA’s potent

preemptive force.

A

FACTS AND PROCEEDINGS

Isaac Boggs (Participant) was employed by South Central Bell

from June 18, 1949, until his retirement on September 1, 1985, and

participated in an ERISA-qualified pension pl an (the Bell Plan).

Participant was already married to Dorothy Boggs (First Spouse)

when he went to work for South Central Bell. Their marriage lasted

until her death, which occurred some six years prior to his

retirement. At all relevant times their Louisiana marital property8 Roughly the equivalent of a common law life estate.

9 Roughly the equivalent of a common law remainder interest.

6 regime was one of community property. Three sons of that

marriage SQ

David Bruce Boggs, Thomas Frank Boggs, and Harry Maurice

Boggs (the Son s), Defendants-Appellees herein S Q survived both of

their parents.

When First Spouse died, her estate included an undivided onehalf interest in all property belonging to the community of acquets

and gains theretofore existing betwe en her and Participant (the

community). By testament, First Spouse left one-third (1/3) of her

estate to Participant outright and confirmed to him for his

lifetime the usufruct 8 of the surviving spouse in the remaining

two-thirds (2/3) of her estate. She left to the Sons the naked

ownership 9 of the two-thirds share of her estate that she burdened

with Participant's usufruct.

Among the assets inventoried in the judicial administration of

First Spouse's succession was a one-half (1⁄2) community interest in

Participant's account in the Bell Plan. As the balance of his

account was valued at $42,388.57, her community half interest was

listed in her succession at $21,194.29.

Within a year after the death of his First Spouse, Participant

remarried. His second and final marriage was to PlaintiffAppellant Sandra Jean Dale Boggs (Surviving Spouse), to whom he was

married and with whom he was residing at the time of his death in

1989.7

The Bell Plan provided several types of retirement benefits to

Participant. The first benefit that he received on retirement was

a lump sum payment of $151,628.94, which he "rolled over" into an

Individual Retirement Account (IRA). It was worth $180,778.05 at

his death. Participant's second retirement benefit was a pension

annuity, which provided monthly payments of $1,777.67 until his

death, then converted automatically to a survivor's ann uity in

favor of Surviving Spouse. That annuity continues to provide

monthly payments to her and is scheduled to do so for her lifetime.

The third benefit that Participant received on retirement consisted

of 96 shares of AT&T stock and a life insurance policy in which

Surviving Spouse was designated as the beneficiary. The fact that

all relevant employee benefit plans of South Central Bell are ERISA

plans is undisputed.

Some time after Participant's death in 1989, the Sons filed an

action in state court seeking an accounting on the usufruct that

their mother had confirmed to Participant in her testament, as well

as a judgment awarding them a portion of his retirement benefits.

Of particular significance to this appeal is the fact that the Sons

have claimed an ownership intere st in past and future annuity

payments to Surviving Spouse.

In response to the Sons’ state court action, Surviving Spouse

filed this suit i n district court seeking a declaratory judgment

that ERISA preempts the Sons' Louisiana community property claims

to the ex tent that they purport to affect either past or future

retirement benefits received or to be received by Participant or by8

Surviving Spo use under the Bell Plan. Specifically, Surviving

Spouse asserted that ERISA alone governs the entitlement to and

payment of benefits under the Bell Plan, and that under ERISA rules

she is the designated beneficiary. The Sons countered, insisting

that this case is not controlled by ERISA , as a consequence of

which the district court lacked jurisdiction. The Sons argued

alternatively that ERISA does not preempt any of the aspects of

Louisiana community property law that are at issue in this case.

As a preliminary matter, the district court determined that it

did have jurisdiction by virtue of 29 U.S.C. § 1132. Proceeding to

the merit s, the district court rejected the contentions of

Surviving Spouse that ERISA preempts the applicable provisions of

Louisiana community property law, and den ied her the declaratory

judgment she sought. On appeal Surviving Spouse asked this court

to review and then reverse that decision. Two of the three judges

on the panel that heard the appeal of that ruling affirmed it, and

I provoked an en banc poll in which a majority of my colleagues

voted against rehearing. It is from that vote that I respectfully

dissent.

B

ANALYSIS

I have no quarrel with the dis trict court’s ruling on

jurisdiction or with the panel’s affirmance thereof. I therefore

proceed directly to the substantive issues of the case. Surviving

Spouse sought a declarato ry judgment that ERISA’s preemption and

its anti-alienation rules trump any state cause of action that1 0 Hook v. Morrison Milling Co. , 38 F.3d 776, 780 (5th Cir.

1994).

1 1 My analysis focuses solely on the preemption of state law

as it applies to ERISA-covered pension plans. As noted above,

Participant “rolled over” a portion of his benefits into an IRA.

An IRA, of course, is not an ERISA-covered pension plan. It is

worth pointing out, however, that at First Spouse’s date of death,

none of the benefits had been “rolled over”; all were still held by

the trusts that were ERISA-covered pension plans. For me, this

fact is reason enough to conclude that the benefits which were

eventually “r olled over” are not excepted from my preemption

analysis. Neither the district court nor the panel majority,

however, addressed this issue. Also not addressed were the nature

and the terms of the plan from which these “rolled over” benefits

were received. My conclusion in favor of preemption, however, in

no way depends on the type of ERISA-covered pension plan involved

(e.g., defined benefit plan, profit sharing plan, etc.) or on its

particular terms.

9 would recognize an interest of the heirs or legatees of the

predeceased nonparticipant spouse in any retirement benefits under

an ERISA plan when the basis of the claims of the heirs or legatees

is the purported "alienation" —— here, a testamentary transfer ——

of such nonparticipant spouse's putative community property

interest in those plan benefits. The district court found no ERISA

preemption and rejected the arguments of the Surviving Spouse. On

appeal, she asked this court to revisit the preemption issue and

reverse the district court. I shall review the district court's

preemption analysis de novo, 10 examining brie fly the pertinent

aspects of Louisiana's community property regime and then, in

greater detail, the pertinent aspects of ERISA. 11

1. Community Property Rights

Louisiana's community property system recognizes the

contribution made by each spouse, employed or une mployed, to the

marriage and to the acquisition of marital property. Under12 Hare v. Hodgins , 586 So.2d 118, 122 (La. 1991).

13 See La. Civ. Code Ann. art. 2369.

14 Hare v. Hodgins

, 586 So.2d 118, 122 (La. 1991).

15 Department of the Treasury and Department of Labor.

1 6 I ngersoll-Rand Co. v. McClendon

, 498 U.S. 133, 137 (1990).

17 Shaw v. Delta Air Lines , 463 U.S. 85, 90-91 (1983).

10 Louisiana community property law, each spouse owns "a present

undivided one-half intere st" in each community asset, which

interest vests from the moment the asset is acquired. 12 Louisiana

law provides that, at the termination of the commun ity property

regime, each spouse owes to the other spouse (or, when the

community is terminated by the death of the spouse, to his or her

heirs or legatees) an accounting for community property under his

or her control. 13 Generally, retirement benefits acquired during

the existence of the community are considered by Louisiana law to

be community assets. 14

2. ERISA - The Statute

Perhaps the most novel and pervasive private civil legislation

enacted by Congress in the last quarter century, ERISA is a

comprehensi ve statute which uniquely is co-administered by two

departments of the federal government 15 and is designed to protect

the interests of part icipating employees and their dependents in

nongovernmental employe e benefit plans. 1 6 Congress adopted ERISA

for the twin purposes of establishing national unifor mity in

employee benefit law and safeguarding r etirement benefits. 1 7 A

fundamental tenet of ERISA is that reti rement benefits are1 8 S ee 29 U.S.C. § 100 1b(a)(2)("The Congress finds that the

continued well-being and retirement income security of millions of

workers, retirees, and their dependen ts are directly affected by

such plans."); Guidry v . Sheet Metal Workers Nat'l Pension Fund

, 493 U.S. 365, 376 (1990) (noting that the decision to safeguard a

stre am of income for pensioners and their dependents is a

considered congressional policy choice).

19 29 U.S.C. § 1144(a).

20 Ingersoll-Rand , 498 U.S. at 137-38.

2 1 I d. at 138 (quoting Allis-Chalmers Corp. v. Lueck

, 471 U.S.

202, 208 (1985)).

22 FMC Corp. v. Holliday , 498 U.S. 52, 58 (1990).

11 protected to assure delivery of retirement income to participants

and their dependents. 18 The overarching device that Congress wrote

into ERISA as an all-encompassing umbrella to protect the operable

provisions of the Act, and as the principal mechanism to ensure

enforcement of those provisions, is preemption : supersedure of any

state law related to an employee benefit plan. 19

3. Preemption

Whether a particular state action is preempted by some federal

law is always a question of Congressional intent. 2 0 "The purpose

of Congress is the ultimate touchstone." 21 In divining

Congressional intent, the starting point is an examination of the

expli cit statutory language and the structure and purpose of the

statute. 22 Before embarking on that examination, though, I note at

the outset, as did the panel majority, that domestic relations law

has long been recognized as the domain of the states. The Supreme

Court has acknowledged that "[s]tate family and family-property law

must do 'major damage' to 'clear and substantial' federal interests2 3 M cCarty v. McCarty

, 453 U.S. 210, 220 (1981) (quoting

Hisquierdo v. Hisquierdo , 439 U.S. 572, 581 (1979)).

24 Ridgway v. Ridgway , 454 U.S. 46, 54-55 (1981).

2 5 This deference accorded the states in the area of domestic

relation law is usually applicable in the context of resolving a

direct conflict between federal and state law rather than in a case implicating statutory preemption, such as ERISA's express preemption provision. Within this framework I nevertheless discern

a distinction between community property law on the one hand SQ which

is at lea st as much "property" law as it is "domestic relations"

law S Q and, on the other hand, those state laws that govern p urely

interspousal aspects of domestic relations, such as marriage,

separation, divorce, dower, curtesy, alimony, support of

dependents, and the like. Thus I recognize the argument that,

unlike the more purely status-r elated domestic relations laws,

community property laws are fair game for ERISA and its preemption.

The discussion infra of REA and its crown jewel, the QDRO,

demonstrates beyond cavil that Congress too saw community property

as fair game.

26 29 U.S.C. § 1144(a).

12 before the Supremacy Clause will demand that the state law be

overridden." 2 3 This has never meant, however, that domestic

relation laws are wholly immune from federal preemption; moreover,

"[t]he relative im portance to the State of its own law is not

material when there is a conflict with a valid federal law, for the

Framers of our Constitution provided that the federal law must

prevail." 24 Nevertheless, for purposes of this preemption analysis,

I assume w ithout granting that the most deferential standard is

applicable and proceed accordingly. 25

Section 514(a) of ERISA 26 declares universally that ERISA shall

"supersede an y and all State laws insofar as they may now or

hereafter relate to any employee benefit plan descr ibed in2 7 I d. (emphasis added). Section 4(b) exemption is not

implicated in this case.

28 I ngersoll-Rand

, 498 U.S. at 138 (internal quotations a n d

citations omitted).

29 Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41, 47 (1987).

30 Shaw , 463 U.S. at 96-97.

3 1 R ozzell v. Security Services, Inc. , 38 F.3d 819, 821 (5th

Cir. 1994) (citing Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41

(1987)).

3 2 D istrict of Columbi a v. Greater Washington Bd. of Trade

, 506 U.S. 125, 131 (1992) (citing Ingersoll-Rand

, 498 U.S. at 140).

13 sec tion 4(a) and not exempt under section 4(b)." 2 7 Courts have

interpreted § 514(a) most broadly, observing that its deliberately

expansive language was designed "to establish pension plan

regulation as exclusively a federal concern." 28

The Supreme Court has given the phrase "relate to" a "broad

common-sense meaning." 29 A state law r elates to an ERISA plan "in

the normal sense of the phrase if it has connection w ith or

reference to such a plan." 30 A state law can relate to an ERISA

plan even if that law was not specifically designed to affect such

plans, and even if its effect is only indirect. 31 The Supreme Court

has held a state law claim to be preempted when it was "premised

on" the mere existence of an ERISA plan. 32

Nevertheless, ERISA preemption is not wholly devoid of outer

limits. The Supreme Court has cautioned that "[s]ome state actions

may affect employee benefit plans in too tenuous, rem ote, or

peripheral a manner to warrant a finding that the law `relates to'33 Shaw , 403 U.S. at 100 n.21, 103 S.Ct. at 2901, n.21.

3 4 As an aid in the preemption inquiry, this court has noted

that preemption of a state law claim is more likely to be found if

"(1) the claim addresses areas of exclusive federal concern, such

as the right to receive benefits under the terms of an ERISA plan,

and (2) the claim dir ectly affects the relationship among the

traditional ERISA entities (i.e., plan administrators/fiduciaries

and plan participants/beneficiaries)." H ook v. Morrison Mi lling

Co.

, 38 F.3d 776, 781 (5th Cir. 1994); see Sommers Drug Stores Co.

v. Corrigan Enterprises, Inc.

, 793 F.2d 1456, 1467 (5th Cir. 1986).

These factors appear to be the result of an attempt at distilling

prior case law. S ee Sommers

, 793 F.2d at 1467. Useful in some

circumstances, it can be no substitute for an independent analysis

of the issue presented. Although I believe a conclusion that ERISA

preemption applies in this case could be reached using the factors

above, the unique issue presented is best analyzed by examining the

s tructure and purpose of the statute and Congressional intent on this point, the "ultimate touchstone" in determining preemption.

14 the plan." 33

So, even though the borderlines that define those outer limits

are not bright, the Court has shown us the approximate boundaries

of the wide band within which a state law may fall and still be

preempted by ERISA: As long as there is s ome relationship between

the effect of a state law and an ERISA plan, the state law can be

said to relate to such plan and ther efore be preempted; only if

that relationship is so tenuous, remote or peripheral as to eschew

any meaningful nexus with the ERISA plan will preemption be

avoided. Even if the asserted effect of state law is premised on

nothing more than the mere existence vel non of an ERISA plan, or

was not overtly intended to affect such plans and only does so

indirectly, ERISA will nevertheless preempt. 34 It is in this

perspective of extreme (but not totally unlimited) ubiquity that I

proceed to examine the state laws here at issue to see if they are

sufficiently related to the Bell Plan to be preempted.35 See Ingersoll-Rand , 498 U.S. at 140.

3 6 S ee Moore v. Philip Morris Cos., Inc.

, 8 F.3d 335, 340 (6th

Cir. 1993) (sta te law that affects eligibility for plan benefits

"relates to" the plan for preemption purposes); B rown v.

Connecticut General Life Ins. Co. , 934 F.2d 1193, 1195 (11th Cir.

1991) (state law determination of beneficiary of life insurance

pol icy "relates to" an ERISA-covered employee benefit plan);

Shiffler v. Equitable Life Assurance Soc'y

, 838 F.2d 78, 81-82 (3d

Cir. 1988) ("Thus while [the plaintiff] would have us consider her

claims as setting forth state common law causes of action, clearly

they 'relate to' the employee benefit plans when that phrase is

given its broad common sense meaning, for no matter how her action

is characterized her goal was to recover the proceeds claimed under

the [plan].").

37 See Meeks v. Tullis

, 791 F.Supp. 154, 157 (W.D. La. 1992)

(holding that a claim by the heirs of a nonparticipant spouse

a gainst non-ERISA assets for the value of the community prope rty

interest is preempted by ERISA).

15 a. Application of ERISA Preemption

The essence of the Sons' state action is a determination of

t he ownership of and entitlement to retirement benefits under an

ERI SA pension plan, the Bell Plan. Thus, the Sons’ claims are

necessarily premised on the very existence vel non of the Bell

Plan. 35 The result sought by the Sons would effectively alter the

Participant's beneficiary designation under the plan. 36

The fact that the precipitating state court action happened

to have been brought against the beneficiary only and not directly

against the plan admi nistrator does not immunize it from

preemption. ERISA's broad preemption mandate is not nearly so

limited: The indirect but palpable effect that the result sought

by the Sons would have on the instant ERISA plan is none the less

proscribed. 37

As proof positive of a sufficient nexus between the Plan and38 See Cefalu v. B.F. Goodrich Co.

, 871 F.2d 1290, 1294 (5th

Cir. 1989) (holding that a state contract claim was "related to" an

employee benefit plan and thus preempted when the court must refer

to the pension plan to compute the damages sought, which were equal

to the benefits he would have received under the plan).

16 the state law at issue, one need only observe, for example, that

any calculation of the benefits claimed by the So ns would

unquestionably require an analysis of the terms and conditions of

the Bell Plan, as well as its records and those of its

participants. 38 Moreover, plan administrators would be forced to

take burdensome precautions to protect the rights and interests in

plan benefits not only of the beneficiary but of the he irs and

legatees as well.

In the context of national uniformity, the imposition of such

additional duties, responsibilities, and liabilities on thousands

of ERISA retirement plans and their fiduciaries would impl icate

different rules for each state in which one or more participants

reside, thereby creating a polyglot night mare of administration.

Obviously, th e pertinent provisions of those state property laws

would have a material effect on employee retirement plans. Surely,

their effect cannot be said to be "too tenuous, remote, or

peripheral" to exempt those laws from ERISA's statutory preemption.

And, though ERISA does expressly provide some statutory

exceptions to its preemption provisions, the Sons do not argue that

any are applicable here; and I h ave found none on my own. As

discussed more fully below, the Qualified Domestic Relations Order

(QDRO) exception has not been satisfied; and the fact that Congress

created other exceptions in other areas of the Act but provided39 Ingersoll-Rand , 498 U.S. at 138.

4 0 Retirement Equity Act of 1984, Pub. L. No. 98-397, 98 Stat.

1426.

17 none here is at least persuasive evidence that none was intended.

I therefore harbor no reservations in concluding that the

Sons' putative state causes of action are related to the ERISAcovered Bell Plan and are therefore preempted by ERISA. I submit

that the discussion which follows confirms that this conclusion is

compatible with

—— more accurately, mandated by —— Congressional

intent and the purposes of ERISA, an d demonstrates that, unless

preempted, the states’ laws in question would do "major damage" to

the clear and substantial federal interests embodied in ERISA.

b. Purposes and Structure of ERISA

Not only do the causes of action proffer ed by the Sons come

within the liberal scope of the preemption statute un der the

"related to" test, but a conclusion sustaining preemption comports

with the intent of Congress, the "ultimate to uchstone" 3 9 in

determining preemption. This intent is manifest in the structure

and announced purposes of ERISA and is underscored by REA. 40

(i) Ensuring Retirement Income

Congress enac ted ERISA to protect retirement benefits as a

means of assuring receipt of retirement income by employees and

their dependents

. Conversely, nowhere in ERISA can the securing of

inheritances by or legacies to the heirs or legatees of a

participant employee or a nonparticipant spou se be identified as

anything but antithetical to this purpose. In fact, allowing the41 See Ingersoll-Rand , 498 U.S. at 137.

4 2 For example, in some states the income from separate

property, such as retirement benefits acquired before marriage, is

separa te property, and in other states income from separate

property becomes community property.

18 heirs of a nonparticipant spouse to claim plan benefi ts ——

particularly when doing so violates the congressionally decreed

hierarchy of recipients, at the pinnacle of which sta nds the

surviving spouse SQ would directly undercut the statu te's express

purpose o f ensuring that retirement income reaches participating

employees and their dependents.

(ii) Uniformity

The other of ERISA's twin purposes

—— national uniformity 41

——

would be frustrated if heirs and legatees were allowed to prevail

u nder state laws that would produce results different from th ose

produced by ERISA's rules governing entitlement to and distribution

of benefits. Even though the structures of the various states'

comm unity property laws are generally similar, each community

property state has its own unique set of specific rules affecting

ownership and management of such property, including some notable

differences from state to state. 42 Moreover, all community property

rules differ substantially from the concomitant rules of noncommunity states. As already noted, allowing these disparate laws

to trump ERISA could not help but have a materially adverse impact

on plan administration as well. Unavoidably, the amount of

retiremen t income available for each participant in a given plan

would vary depending solely on the serendipity of a participant's43 Pub. L. No. 98-397, 98 Stat. 1426.

4 4 I do not imply that REA is necessarily applicable to the

instant case; only that it serves to remove doubt about the intent

and purpose of Congress regarding the interplay of community

property rules and ERISA, and the dominance of the latter when they

conflict. The district court, however, expressly indicated that

REA supported its holding. Moreover, even though the panel

majority opinion did not expressly address REA, its holdings leave

little doubt that its decision will be binding on cases in which no uncertainty exists that REA controls. It is important to note,

however, th at even in the instant case, there can be no question

that the rights of Surviving Spouse, not the Sons, are protected by

REA.

19 sta te of residence from time to time. A domiciliary history of

moving in and out of community property jurisdictions would create

an impossible accounting and allocation problem. Quite simply,

ERISA's goal of uniformity would be u nattainable if the ultimate

enjoyment of ERISA plan benefits were left to the vicissitudes of

the varying and disparate marital property laws of the several

states, be they community or separate.

c. Retirement Equity Act of 1984 (REA) 43

Perhaps nothing argues more convincingly for the conclusion I

here advocate than the congressional intent manifested when ERISA

was amended in 1984 by the enactment of REA. 44 As originally

adopted, ERISA failed to express with sufficient clarity the nature

and extent of the interest of a nonparticipant spouse in the

participant s pouse's ERISA-covered retirement plan. After ERISA

had been on the books for a decade, Congress comprehe nsively

amended and supplemented it with REA. One of the express purposes

of REA was to confirm the importance of the financial security of

the non participant spouse and to safeguard his or her interest from45 Ablamis v. Roper , 937 F.2d 1450, 1453 (9th Cir. 1991).

46 See 29 U.S.C. §§ 1056(d)(3), 1144(b)(7).

4 7 29 U.S.C. § 1055. The nonparticipant spouse can consent

to waive this right if done in writing.

4 8 C ompare Stone v. Stone

, 663 F.2d 740 (9th Cir. 1980)

(holding that spousal community property rights on divorce were not

preempted) with Francis v. United Technology Corp.

, 458 F.Supp. 84

(N.D. Cal. 1978) (holdi ng that ERISA preemption prevents the

application of state community property law permitting attachment

of plan benefits for family support purposes).

20 the havoc that could be visited on it by the death of or divorce

from the participa nt spouse. 4 5 The primary way that REA achieves

these intended results is by (1) inventing the QDRO as the one SQ but

only one SQ

mechanism for allocating plan benefits between spouses, 46

and (2) manda ting that ERISA pension plans include automatic

survivor benefits in favor of the nonparticipant spouse. 47

Significant to the instant case is the widely recognized fact

that a central impetus to Congress's adoption of REA was the

burgeoning body of conflicting jurisprudence addressing spousal

rights in plans and p lan benefits, particularly under community

property regimes. During the ten years of ERISA’s existence that

preceded REA, disagreements developed among the various courts as

to whether ERISA preempted state community property law claims to

the extent that such laws related to the respective rights of the

participant and n onparticipant spouses in and to benefits under

ERISA plans. 48 REA deliberately S Q and, I believe,

definitively SQ settled the issue by creating the QDRO and making it

the one and only mechanism by which, inter alia, a nonparticipant

spouse's community interest in an ERISA plan can be recognized in49 A QDRO is any judgment, decree, or order made pursuant to

a state domestic relations law (including community property) which

(1) "creates or recognize s the existence of an alternate payee's

right to, o r assigns to an alternate payee the right to, receive

all or a portion of the b e nefits payable with respect to a participant under a plan," and (2) "relates to the provision of

child support, alimony payments, or marital property rights to a

spouse, former spouse, child, or other dependent of a participant."

29 U.S.C. § 1056(d)(3)(B).

5 0 S ee, e.g.

, Ablamis v. Roper

, 937 F.2d 1450 (9th Cir. 1991)

(Fletcher, J., dissenting).

51 For example, the district court cites H isquierdo v. Hisquierdo

, 439 U.S. 572 (1979), a case in which the Supreme Court

held that federal law preempted division of benefits under the

Railroad Retirement Act pursuant to community property laws. The

Boggs district court relied on the statem ent in H isquierdo that

"[d]ifferent considerations might well apply where Congress has

remained silent on the subject of benefits for spouses," and cited

ERISA. In addition to the fact that this statement is dicta, this

rationale is unpersuasive b ecause, after the enactment of REA,

Congress can no longer be said to have remained silent on the

subject of benefits for spouses.

The Boggs district court also relied on Carpenters Pension

Trust Fund v. Campa , 89 Cal.App.3d 113, 152 Cal.Rptr. 362 (1979),

appeal dismissed

, 444 U.S. 1028 (1980). In C ampa

, the state court

held that ERISA did not preclude the division of pension rights in

state marital dissolution proceedings. The district court stated

that the Supreme Court's dismissal of Campa for want of a federal

question serves as a decision on the merits that ERISA's preemption

provision does not override community property law. Even assuming

that Campa provides a fede ral common law exception to the

preemption and anti-al ienation provisions of ERISA to allow the

heirs of a nonparticipant spouse to acquire an interest in the

pension plan SQ

and I do not b elieve that it does S Q the enactment of

REA displaces any such exception.

21 law. 49 I think that in the instant case the district court fell

into the same trap that a number of other courts have fallen into

since 1984 50 SQ

citing and relying on now-obsolete pre -REA case law in

a post -REA world SQ to support their erroneous conclusions that ERISA

does not preempt causes of action of the nature instituted here by

the Sons. 51 It seems unavoidable to me, though, that the passage5 2 S ee 29 U.S.C. § 1056(d)(3)(B)(ii)(II) (defining a domestic

relation order to include one made "pursuant to a State domestic

relation law ( including a commu nity property law ) .") (emphasis

added).

5 3 S.Rep. No. 98-575, 2d Sess. 19, r eprinted in 1984

U.S.C.C.A.N. 2547, 2565.

54 Id. (emphasis added).

22 of REA rendered nugatory the case law on point that was decided

before passage of these amendments.

Although the QDRO was not developed to cope exclusively with

community property issues under ERISA, both REA and its legislative

history make absolutely clear that this imaginative invention was

intended in large measure to deal with the recognition or partition

of any communit y property interests o f the spouses in plan

benefits. 52 Indeed, the official legislative history of REA

specifically notes that "[t]here is a divergence of opinion among

t he courts as to whether ERISA preempts State community prope rty

laws insofar as they relate to th e rights of a married couple to

benefits under a pension, etc., plan." 53

In the instant acronym, no letter is more important than "Q,"

for only when an [O]rder of a state [D]omestic [R]elations court is

"[Q ]ualified" does the post-REA version of ERISA permit an

exception to the preemption rules in general and the antialienation ("spendthrift") rules in particular. The legislative

history of REA states that "the Committee believes that conforming

changes to the ERISA preemption provision are necessary to ensure

that only those orders that are excepted from the spendthrift

provisions are not preempted by E RISA

. " 54 Thus, if a state court5 5 Of course, a dependent child can be an "alternate payee"

under the statute with respect to orders relating to the provision

of child support. See 29 U.S.C. § 1056(d)(3)(B), (K). Providing

for child support, however, is in no way implicated in this case.

56 See Ablamis , 937 F.2d at 1456.

23 order that purports to divide spousal rights in an ERISA- covered

plan does not meet the detailed, technical requirements of the

federal statute, it is not "qualified" and therefore is afforded no

exemption from ERISA's omnipotent preemption or anti-alienation

rules. Quite c learly, I believe, with the advent of the QDRO,

Congress purposefully provided an exclusive mechanism with which a

nonparticipant spouse may obtain recognition of a community

property right in the participant spouse's retirement plan.

What is also quite limited is the category of persons eligible

to seek and obtain a QDRO: only spouses! 55 Not their heirs, not

their legatees, not their executors, not their trustees, not their

creditors. 56 Akin to standing, the r ight of action to obtain a QDRO

is strictly personal to the spouse qua sp ouse; and only a l iving

spouse (or, in the event of divorce, a living ex-spouse) can obtain

a QDRO.

Congress carefully crafted the QDRO to consti tute a narrow

exception to ERISA's otherwise all-encompassing preemption and

spendthrift provisions. Any court order that purports to recognize

the interest of a nonparticipant spouse —— or of any other party,

for that matter

—— in an ERISA plan o r in the benefits of such a

plan but fails to meet "qualification" muster under REA, in both

form and substance, remains vulnerable to ERISA preemption. Here,57 Ablamis v. Roper , 937 F.2d 1450 (9th Cir. 1991).

5 8 29 U.S.C. § 1055. This requirement applies to most, but

n ot all, ERISA-covered plans. S ee 29 U.S.C. § 1055(b). I in no

way suggest

— and, indeed, would strongly disagree

— that the

conclusion in favor of preemptio n is applicable only to those

ERISA-covered pension plans subject to this requirement.

5 9 For example, if a vested participant dies after the annuity

starting date, the accrued benefits payable to her will be paid to

her surviving spouse in the form of a "qualified joint and survivor

annuity" (QJSA). A QJSA is an annuity:

(1) for the life of the participant with a survivor annuity

for the life of the spouse which is not less that 50 percent of

(and is not greater than 100 percent of) the amount of the annuity

which is payable during the joint lives of the participant spouses,

and

(2) which is the actuarial equivalent of a single annuity for

the life of the participant.

24 neither a probate order nor a judgment in the suit filed by the

Sons to obtain an accounting could even come close to meeting the

stringent definition of a QDRO. 57 The fact that Congress surgically

carved out this single exception to preemption and restricted its

availability to living spouses or ex-spou ses, counsels ever so

strongly against allowing the heirs or legatees or creditors or

trustees of a spouse to obtain partition of a putative community

property interest in an ERISA plan in any manner other than the one

expressly sanctioned by the statute. To do otherwise would be to

turn this preeminent post-REA feature of ERISA on its head.

Neither did REA pave a one-way street. By way of tradeoff and

consistency, REA brings to ERISA both parity and protection for the

nonparticipant spouse. It does so by mandating survivorship rights

for the nonparticipant spouse in and to pl an benefits. 5 8 Any

surviving nonparticipant spouse SQ whether first or subsequent S Q i s the

automatic successor beneficiary under the plan, 59 unless he or she29 U.S.C. § 1055(d).

The survivor beneficiar y rules also apply to certain

individual account plans unless, in ter alia, the vested account

balance is payable in full, upon the death of the participant, to

the participant's survivi ng spouse. S ee 29 U.S.C. § 1055(b)(1).

That a particular plan may be one of the plans excepted from these

rules, however, would not affect the conclusion that ERISA preempts

the Louisiana community property law claims at issue.

25 shall have ex ecuted an express and technically correct written

consent in conformity with the statute.

Here again, I believe that the district court erred by relying

o n pre -REA case law. It did so in an effort to support the

statement that ERISA does not display any particular interest in

preserving benefits for any particular beneficiary. But that

statement is simply wrong: The exact opposite is true. Ever since

the enactment of REA, ERISA has exhibited an extraordinary interest

in protecting the surviving spouse of the parti cipant employee,

going so far as to trump the participant employee's own beneficiary

designation if, absent spousal consent, the designee is not the

participant’s surviving spouse. By statutory enactment, then,

Congress has elected to designate for each and every participant in

an ERISA pl an precisely who the "natural objects of his or her

bounty" must be. And, in making that election, Congress has opted

to elevate the nonparticipant spouse (or, in the case of divorce,

the nonparticipant ex-spouse) above such presumptive candidates as

the descendants or other heirs, legatees or assigns of either

spouse. In and of itself, this apparently arbitrary "prioritizing"

might be viewed by some as an unusual federal intrusion into state

marital property rights. But, if so, it is nevertheless an6 0 Ironically, if the Sons' cause of action were allowed to

prevail, it would give a nonparticipant spouse greater ability than

that of the participant t o designate third parties as plan

benefici aries. That a participant spouse could thus be

"disinherited" without his or her consent, whereas a nonparticipant

spouse could not, would be both inconsistent and incompatible with

the purposes of both ERISA and REA.

26 intrusion that Congress manifestly and expressly determined to be

warranted SQ

nay, required SQ to accomplish the ends of ERISA. And that

is the prerogative of Congress, not of the courts.

Thus ERISA's survivor annuity rules unquestionably established

protection of spouses as the top priority under the statute. These

provisions reinforce the conclusion that no heritable right exists

in the heirs of a predeceased spo use, whether participant or

nonparticipant, particularly when such right could act to deprive

a surviving spouse of the benefits expressly granted by the

statute. 60 Moreover, these provisions illuminate the fact that in

the instant litigation neither First Spouse nor her heirs and

legatees have any property interest whatsoever in the payme nts

received or to be received by Surviving Spouse as a survivor

annuitant. Any right in personam that First Spouse might have had

with respect to survivor annuity payments was con ditioned on her

outliving Participant; and even t hen she would have received

payments from the plan only for the duration of her life. When

First Spouse died, her right to a survivor annuity evaporated

.

Additionally, if Participant had thereafter remained single

until his death, no survivor annuity would have existed at all.

The survivor annuity payments made and to be made to Surviving

Spouse are the result of federal law’s automatically creating this61 Ablamis v. Roper , 937 F.2d 1450, 1457.

27 brand new right as a consequence of her marriage to Participant

——

his second marriage. Such a right has nothing whatsoever to do

with the community that previously existed between Participant and

First Spouse. Thus, with respect to survivor annuity benefits of

Surviving Spouse, there is simply no property or personal interest

which First Spouse or her heirs can claim and no right of action

against Surviving Spouse as the statutorily recognized beneficiary

of the Bell Plan’s survivor annuity.

REA's amendments to and augmentation of ERISA also reinforce

the constant refrain that "pensions are for the living." 61 Both the

QDRO mechanism and the survivor annuity rules accomplish this clear

purpose of protecting a living dependent of the parti cipant,

regardless of whether the participa nt himself is living or

deceased. And Congress in its wisdom has designated the

nonparticipant spouse as the one among all of the emp loyee's

potential "dependents" who is to be thus protected. Again, in

addition to a chieving national uniformity, the other central

pu rpose of ERISA is to protect pension benefits in the way best

calculated to p rovide r etirement income to employees and their

living dependents —— especially their surviving spouses —— not to

provide, ensure, or preserve legacies or inheritances, or the

putative testamentary power of a nonparticipant spouse to alienate

an interest in pl an benefits. It seems certain to me that, when

properly analyzed, a cause of action that would allow the heirs or

legatees of a nonparticipant spouse to claima state domestic6 2 Although in the instant case Participant married Surviving

Spouse after the death of his First Spouse, I am satisfied that REA

supports preemption in all cases, including situations in which the

plan participant remains single.

63 29 U.S.C. § 1056(d)(1).

28 property law interest in benefits otherwise payable t o the

participant or his congressio nally favored dependent(s) flies in

the face of congressional intent and does "major damage" to the

purposes of ERISA. 62

4. Anti-Alienation

Thus far I have examined ERISA preemption in relatively broad,

conceptual terms, implicating primarily Congressional intent and

statutory goals. But one must also ask if there is not something

specific in ERISA that must be upheld or enforced, through the

exercise of preemptio n, to ensure the attainment of those goals

while maintaining the integrity of the statute as a cohesive whole.

The answer is "yes"; and in this case that “something” is ERISA's

prohibition of alienation, its so-called "spendthrift" rules. For,

in ERISA's un ique and complex structure, "anti-alienation" is an

indispensable, load-bearing element, and the one specifically at

issue in this case. It is also key to understanding both the

tension between ERISA and the community property p rovisions

involved in this case, and the broader role of preemption as well.

ERISA's spendthrift provision unequi vocally and

unconditionally commands that "benefits provided under the plan may

not be assigned or alienated." 63 Similar to (but not congruent

with) the trust law concept from which it was borrowed, ERISA's6 4 G uidry v. Sheet Metal Workers Nati onal Pension Fund , 493

U.S. 365, 376 (1990).

6 5 The court raised this anti-alienation argument s ua sponte

.

29 uniquely crafted spendt h rift provision is designed to protect

retirement income and all other pension benefits not only from the

claims of creditors and other third parties (such as heirs and

legatees), i.e.,"involuntary alienation," but from the

participant's own foolishness and profligacy as well, i.e.,

"voluntary aliena tion." The Supreme Court has recognized that

ERISA'S spendthrift provision "reflects a considered congressional

policy choice to safeguard a stream of income for pensioners (and

their dependents ...), even if that decision prevents others from

securing relief for the wrongs done them." 64

The district court concluded that "ERISA's anti-alienation

provision does not operate to preempt Louisiana community property

law. " 65 I could not disagree more strongly: ERISA's antialienation rule is directly implicated in and "inextricably

intertwined" with the instant circumstances.

The district court grounded that conclusion on what appears to

be two fallacious premises. First, citing p re -REA case law, the

court stated that Congress did not intend to alter familial and

support obligations when it enacted the anti-alienation provision.

Here, the district court's undoing is, again, its reliance on cases

made obsolete by the enactmen t of REA. As discussed in detail

above, REA amended ERISA for the express purpose of cleaning up the

mess created by prior inconsistent and misapprehending66 See 29 U.S.C. § 1056(d)(3).

6 7 S. Rep. No. 98-575 at 19, r eprinted in 1984 U.S.C .C.A.N.

at 2565 ("The Committee b elieves that . . . the ERISA preemption

provisions are necessary to ensure that only those orders that are

excepted from the spendthrift pro visions [i.e., QDROs] are not

preempted.") (emphasis added).

30 jurisprudence; REA crea ted the unique concept of the QDRO and

commissioned it to serve as the exclusive exception to antialienation. 66 Since the adoption of REA, it is only by obtaining

a QDRO that the nonparticipant spouse or ex-spouse can avoid the

spendthrift provisions of ERISA and have a community interest in an

ERISA plan recognized. 67 The Sons do not argue, nor could they,

that the QDRO requirements have been complied with in this case.

The district court's first reason seems anachronistic at best, and

clearly inapposite.

The second reason given by the district court for holding that

the spendthrift provision is not implicated by the operation of

Louisiana's community property law is that the First Spouse's

interest was "acquired by her directly at the outset and did not

represent a transfer to her of rights which had previously accrued

to [Participant]." I see that pronouncement as simply irrelevant.

Indeed, the relevant “transfer” inquiry is not whether the F irst

Spouse acquired her interest by way of a transfer, but whether the

Sons ' causes of action depend on the efficacy of the attempted

transfer —— f rom First Spouse to the Sons

—— of her co mmunity

interest in the plan. Obviously it does, and just as obviously her

attempted alienation is proscribed by ERISA's spendthrift

provision, making it a nullity.68 Ablamis v. Roper , 937 F.2d 1450 (9th Cir. 1991).

31 The Sons' action in Louisiana state court seeks an accounting

of their father's usufruct. Apparently without analysis, the Sons

implicitly assume that, among the interests that were included in

their mother’s legacy to them of the naked ownership of two-thirds

of her half of all community assets, was some fractional interest

in their father's account in th e Bell Plan. Based on that

erroneous assumption, the Sons proceed to seek an accounting, plus

a judicial recognition of an ownership interest in past and future

Bell Plan benefits. The district court appears to have proceeded

on the same flawed assumption, i.e., that the First Spouse's legacy

to the Sons effected a transfer of, inter alia, her community

interest in the Bell Plan.

But, given ERISA's ban on both voluntary and involuntary

alienation, the First Spouse had no legal power, whether inter

vivos or testamentary, to effectuate a transfer SQ an alienation SQ

of

any interest in an ERISA plan. The Sons' asserted cause of action

and the district court's reasoning presupposes that Participant's

testamentary usufruct from First Spouse actually incl uded an

interest in Bell Plan retirement benefits. Yet he could not have

received such an interest f rom her any more than could the Sons

have received from her a naked ownership interest in the plan

benefits. As ERISA's spendthrift provision absolutely bars

alienation, 68 a bequest of a usufruct in the plan benefits would be

a prohibited transfer, just as would a bequest of the naked

ownership. It thus seems indisputable that one asset that the6 9 A designated beneficiary is not a debtor of the old

community. Thus, the proceeds of a retirement plan payable to a

des ignated beneficiary, like the proceeds of an insurance policy

payable to a designated beneficiary, are not subject to execution

in satisfaction of the debts of the decedent or his estate, whether

owed to the heirs of his deceased spouse or otherwise. In

addition, as explained above, First Spouse and her heirs have no property interest whatsoever in survivor annuity benefits payable

to Surviving Spouse.

32 testamentary usufruct never covered was the interest of the

community in the Bell Plan or its benefits, regardless of the

purported effects of the First Spouse's testament or her succession

representative’s t r eatment of such interests in her Louisiana

succession.

Although not entirely clear, the Sons' asserted cause of

action may also be grou nded in the proposition that the

Participant, as spouse, has an obligation to account for First

Spouse's community property. Of course, as a designated

beneficiary, Surviving Spouse would owe no such obligation to First

Spouse's estate. 69 Thus, with respect to the cause of action

against Surviving Spouse, this argument is simply irrelevant.

Framing the cause of action against Participant's estate as an

obligation to account should not compel a different conclusion. In

reality, the Sons' accounting action is a thinly disguised attempt

to obtain ownership of “property” that they contend was bequeathed

to or inherited by them. An absolute prerequisite of the heirs'

right of action or standing to compel such an accounting, however,

is that they have an interest in the property for which an

accounting is sought. But, again, the Sons cannot have acquired

such a prerequisite interest in these retirement benefits because70 Proponents of the Sons' position contend that, because a

spendthrift provision generally ceases to shield funds after they

have been distributed from the trust, no violatio n of this

provision has occurred in the instant case. This reasoning is

unconvincing. The Sons' claims are inextricably tied to an

attempted alienation of the benefits at a time when those benefits

remained in the plan and could not be alienated. These claims are

readily distinguishable from those of a creditor against the

distributed benefits that are unrelated to an asserted ownership

claim of the benefits themselves.

33 ERISA's spendthrift provisions interdict absolutely any attempted

alienation that is not in "qualified" form. Even a cursory reading

of the requirements for qualifying as a QDRO reflects that neither

intestate nor testamentary transfers can qualify. I thus believe

that, as a matter of law, the premise on which the Sons' cause of

action is based, i.e., one transfer from their mother to their

father and a second, contemporaneous transfer from her to them, is

non-existent. 70

I therefore find inescapable the conclusion that ERISA's antialienation provision preempts those provisions of Louisiana

community property law that are pertinent to this decision. As

such, ERISA’s proscription of transfer functioned to prevent the

Sons

—— and, for that matter, Participant

—— from obtaining from

First Spouse, by testament or otherwise, any interest in the share

of the community's putative interest in Participa nt's retirement

plan or its benefits claimed by the Sons. To reach this

conclusion, I had to determin e which law prevails, ERISA's

"spendthrift" canon or Louisiana's comm unity property law. In

giving the nod to ERISA, I plainly recognize its preemptive effect.

When, as here, some aspect of state law "relates to" an ERISA plan71 La. Rev. Stat. Ann. §13:3881(D).

34 —— particularly when it directly conflicts with a key provision of

ERISA, such as anti-alienation

—— the latter trumps by virtue of

preemption. Only through the terrible swift sword of preemption is

the frustrating of Congress's announced goals trampled.

The QDRO is an exception to both statutory preemption in

general and to anti-alienation in particular. It is therefore not

surprising that both provisions are apposite to this case. Given

both the posture of this case and its importance, however, I do not

rest my conclusion exclus ively on the anti-alienation provision.

Assuming, but certain ly not conceding, that the anti-alienation

provision alone might not preclude the Sons' asserted cause of

actio n, I remain convinced that the express statutory preemption

provision surely does.

5. Civilian Sanctity Does Not Compel A Different Result

Louisiana's community regime is a time-honored Civilian

institution; it is not, for example, the result of a belated effort

of a common law state to obtain some federal tax advantage or

parity. Notwithstanding the venerability of Louisiana's community

property law and the implication of public policy that others might

argue are embodied in some facets of that regime, I observe that in

other areas of its private law, which are equally steeped in

tradition and intertwined with public policy, Louisiana has carved

out exceptions for ERISA-qualified employee benefit plans. For

example, qualified plans are found on Louisiana's list of property

that is exempt from claim s of creditors in bankruptcy. 7 1 A more72 La. Civ. Code Ann. art. 1505.

7 3 S ee La. Const. ar t. XII, § 5 (amended 1995) ("[n]o law

shall abolish forced heirship."); Suc cession of Lauga , 624 So.2d

1156 (La. 1993) (declaring legislative revamping of forced heirship

law unconstitutional). B ut see La. Const. art. XII § 5 (effective

November 23, 1995) (removing constitutional protection for forced

heirship except for children under 23 years of age or disabled).

7 4 Neither can I ignore the purely suppletive, non-mandatory

nature of Louisiana's community property regime. Both before and

during the marriage, a couple is entitled to select the marital

property regime of their choice, including not only the community

regime but also, inter alia, a regime of separate property that is

essentially identical to the common law system. S ee La. Civ. Code

Ann. art. 2336. I question just how sacrosanct a purely optional

property system can be.

35 instructive example is found in the law of forced heirship, under

which the decedent's interest in a qualified plan is exempt from

claims of forced heirs 72 despite the fact that, at least until quite

recently, no Civilian cow was more sacred in Louisiana. 73

Admittedly, there are distinguishing differences between these

examples and the instant case, but they serve to illustrate that

even under the Civil Law of Louisiana, ERISA-covered employee

benefit plans are reco gnized as being s ui generis and are

frequently treated as such. 74

But most of all, I cannot ignore the mandate of the federal

statute, the intent of Congress, and the purposes and structure of

ERISA. I therefore would have had this court conclude that ERISA

—— its expressed purposes and its p articular provision against

alienation —— preempts Louisiana community property law to the

extent that such law would recognize and enforce a probate interest

of the heirs or legatees of a predeceased nonparticipant spouse in

an ERISA-qualified pension plan. To hold otherwise would seem to75 Ablamis v. Roper , 937 F.2d 1450 (9th Cir. 1991).

36 frustrate ERISA's ultimate purposes of providing nationally uniform

governance of employee benefit law an d ensuring receipt of

retirement benefits by participating employees and their

dependents.

6. No "End Runs" to Defeat the Effects of Preemption

The Sons sought —— and have now obtained —— a result that is

the equivalent of a decree of ownership of retirement benefits

under an ERISA plan. In a thinly veiled effort to get around

ERISA's anti-alienation bar, the Sons argue tha t an accounting,

with recovery in the form of a money judgment, does not violate

anti-alienation because the judgm ent would be payable from funds

that have been distributed and commingled with other assets, and

therefore no longer protected by the spendthrift provision's

shield.

I have already demonstrated why such a result cannot be

achieved by direct means: ERISA's anti-alienation provisions

r ender nugatory the First Spouse's purported transfer of "her"

community interest in the Bell Plan benefits. Anti-alienation thus

interdicts any efforts by the Sons to compel a plan administrator

to turn over to the Sons directly a portion of the benefits, simply

by virtue of their status as heirs of a nonparticipant spouse. 7 5

And, I have also demonstrated that ERISA's preemption will enforce

anti-alienation over the laws of the state that are here at work.

I am satisfied that permitting the Sons to achieve the results they

desire by indirect means is likewise proscribed.7 6 S ee Free v. Bland

, 369 U.S. 663 (1962) (holding that

federal la w creating a right of survivorship in United States

Savings Bonds registered in co-ownership form preempted Texa s community property law).

77 Id. at 669.

7 8 M eeks v. T ullis , 791 F.Supp. 154, 157 (W.D. La. 1992)

(holding that a claim by the heirs of a nonparticipant spouse against non-ERISA assets for the value of the community property

interest is preempted because to allow this claim would little

different than allowing a claim to the ERISA assets, which is

prohibited).

37 In other federal preemption contexts, the courts have stricken

efforts to employ indirect means to circumvent or undermine federal

l aw. 76 In the context of United States bonds, the Supreme Court

stated that "[i]f the State can frustrate the parties' attempt to

use the bonds' survivorship provision through the simple expedient

of requiring the survivor to reimburse the estate of the deceased

co-owner as a matter of law, the State has interfered directly with

a legitimate exercise of the power of the Federal Government to

borrow money." 77 Relying on that reasoning by analogy, at least one

district court has recognized that what ERISA prohibits directly

cannot be accomplished indirectly. 78 The extraordinary protections

and policies embodied in ERISA could be emasculated to the point of

impotence were they so easily circumvented by enforcing indirectly

otherwise p reempted claims or prohibited alienations under the

guise of an accounting action or claim of inheritance rights

against the plan beneficiary, or eventually the plan’s fiduciary.

C

CONCLUSION38

Based on the foregoing reasons, I am firmly convinced that

ERISA preempts Louisiana community property law to the extent that

such law would purport to recognize and enforce an interest of the

hei rs of a nonparticipant spouse in an ERISA-qualified pension

plan. Whether the en banc court would have reached this same

conclusion cannot be said. What can be said, however, is that the

magnitude and importance of the issue presented by this case made

it worthy of review by the entire court. I regret that a majority

of my colleagues did not see it this way; that is why I

respectfully dissent from the decision not to rehear this most

important case en banc.