FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE W. ANDERSON,
Plaintiff-Appellant,
v.
SUBURBAN TEAMSTERS OF NORTHERN No. 07-15532
ILLINOIS PENSION FUND BOARD OF
TRUSTEES, in its capacity as D.C. No.
CV-05-01377-DGC
Administrator of the Suburban
Teamsters of Northern Illinois OPINION
Pension Plan; SUBURBAN
TEAMSTERS OF NORTHERN ILLINOIS
PENSION PLAN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
September 14, 2009—San Francisco, California
Filed December 1, 2009
Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges,
and Suzanne B. Conlon,* District Judge.
Opinion by Judge Trott
*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
15639
15642 ANDERSON v. SUBURBAN TEAMSTERS
COUNSEL
Andrea A. Ambrose and Colin B. Vandell, Latham & Watkins
LLP, Los Angeles, California, for the plaintiff/appellant.
Barry G. Collins, Asher, Gittler, Greenfield & D’Alba, Ltd.,
Chicago, Illinois, for the defendants/appellees.
OPINION
TROTT, Circuit Judge:
Bruce Anderson appeals the district court’s determination,
following a bench trial, that the Suburban Teamsters of North-
ern Illinois Pension Fund Board of Trustees (“the Trustees”)
ANDERSON v. SUBURBAN TEAMSTERS 15643
did not abuse their discretion in partially denying his claim for
disability benefits pursuant to a plan maintained under the
Employee Retirement Income Security Act (“ERISA”). In the
past, the Plan specified one way to calculate disability bene-
fits. Before Anderson applied for benefits, the Plan was
amended to change the formula for calculating benefits
depending on the date the employee became disabled. Ander-
son claims the Trustees improperly determined the date of his
disability, resulting in a lower benefit. Anderson claims also
that if the Trustees appropriately determined the date of his
disability, then the 1999 amendment violates ERISA’s anti-
cutback rule. Finally, Anderson claims the Trustees improp-
erly applied a Qualified Domestic Relations Order
(“QDRO”), allocating half of his pre-divorce disability bene-
fits to his ex-wife. We affirm.
I
BACKGROUND
For much of his life, Anderson worked as a mechanic. In
July 1996, Anderson suffered an on-the-job knee injury that
required surgery. In December 2006, Anderson was diag-
nosed with osteoarthritis. In addition to his bad knee, Ander-
son suffers from degenerative disk disease, carpal tunnel
syndrome, tinnitus, depression, and bone spurs in his shoul-
ders.
Believing that he might be able to find a job that would
allow him to work despite his injury, Anderson went to school
from 1997 to 2001 and did not work. He earned a degree in
Business Administration and hoped to work in the computer
field.
Anderson and his wife divorced in 1999. The QDRO
entered in the Andersons’ state court divorce proceeding pro-
vided that Anderson’s ex-wife was to receive the actuarial
equivalent of fifty percent of Anderson’s accrued pension as
15644 ANDERSON v. SUBURBAN TEAMSTERS
of February 25, 1999. The payments to Anderson’s ex-wife
were to begin “at her election following the Participant attain-
ing his earliest retirement age as defined by the Plan.”
Unable to find a job in the computer field, Anderson went
back to union employment in 2001. From June to October, he
worked fifty-one days as a truck driver. Finding himself
unable to continue to perform this work because of his pain,
Anderson stopped working and has not worked since. In
August 2003, Anderson applied to the Suburban Teamsters of
Northern Illinois Pension Fund (“the Fund”) for disability
benefits under its pension plan (“the Plan”). The applicable
version of the Plan at that time was the Plan as amended on
January 1, 1999 (“1999 Plan”).
The Fund is a multi-employer benefit trust fund. Participat-
ing employers contribute to the Plan pursuant to various col-
lective bargaining agreements. The Board of Trustees —
which administers the Plan — is made up of both employer
and employee representatives.
The Plan provides for several different types of pensions.
For example, an employee might be eligible for a Normal
Retirement Pension under § 5.01, an Early Retirement Pen-
sion under § 5.02, a 30-Year Pension under § 5.03, or a “25
and Out” Pension under § 5.06.
In addition to these types of pensions, Article 6 of the Plan
provides disability benefits — called a “disability retirement
pension” — for employees who become “totally and perma-
nently disabled.” The Plan defines “totally and permanently
disabled” as follows:
A Participant shall be considered totally and perma-
nently disabled only if he suffers from a physical or
mental condition which will continue for a long and
indeterminate period of time and which will prevent
him from pursuing any and all gainful occupations
ANDERSON v. SUBURBAN TEAMSTERS 15645
and from performing any work for compensation or
benefit during that period of time.
1999 Plan, § 6.03.
The Plan calculates benefits based on Benefit Credits par-
ticipants earn during their employment. Normally, an
employee receives Benefit Credits only for periods when the
employee actually works. However, before the Plan was
amended in 1999, employees were covered by the 1995 ver-
sion of the Plan (“1995 Plan”). Under the 1995 Plan, if an
employee became disabled,
[t]he amount of such Disability Retirement Benefit
shall be equal to 100% of the amount of Age Retire-
ment Benefit to which the Participant would be enti-
tled at his Normal Retirement Age, calculated as if
he remained in Covered Employment continuously
from the onset of his total and permanent disability
until his Normal Retirement Age, except that with
respect to a Participant whose Disability Retirement
Benefit becomes effective on or after April 1, 1977,
each payment prior to his Normal Retirement Age
shall be equal to 75% of such Age Retirement Bene-
fit, increasing to 100% of such Age Retirement Ben-
efit at the Participant’s Normal Retirement Age.
1995 Plan, § 6.02 (emphasis added). Thus, the disabled
employee was allocated Benefit Credits for future years even
though the employee would not be working.
The 1999 Plan, in contrast, contains two different ways to
calculate a disability benefit. If an employee became disabled
prior to May 1, 1998, the employee’s benefit would be deter-
mined using the same calculation described above: the
employee would receive extra Benefit Credits for years not
actually worked. 1999 Plan, § 6.02(b).
15646 ANDERSON v. SUBURBAN TEAMSTERS
If, however, an employee became disabled after May 1,
1998, the disability benefit would be equal to “100% of the
amount of Age Retirement Benefit to which the Participant
would be entitled at his Normal Retirement Age, based on
Benefit Credits actually earned.” 1999 Plan, § 6.02(a)
(emphasis added). Under this formula, the employee would
not receive any extra Benefit Credits for future years of unem-
ployment due to disability.
Anderson claimed he was disabled as of June 1, 1997. The
Trustees, however, determined that Anderson was totally and
permanently disabled as of November 2001 and partially
denied his application. The Trustees informed Anderson they
could not “reconcile a disability date prior to November 2001
with the fact that you worked for a significant period from
June through October 2001.” Because Anderson became dis-
abled after May 1, 1998, the Trustees applied § 6.02(a) of the
1999 Plan instead of § 6.02(b). Anderson’s disability benefit
was based only on those Benefit Credits he actually earned
while he was working. Anderson earned 11.3 Benefit Credits
before 1997 and 0.3 Benefit Credits in 2001. Based on this
number of Benefit Credits, the Trustees found that the amount
of Anderson’s disability benefit was $878.08 per month. This
amount consisted of $869.31 attributable to his pre-1997
employment, and $8.77 attributable to his 2001 employment.
The Trustees then applied Anderson’s QDRO to divide
Anderson’s portion and his ex-wife’s portion of his benefits.
They split the $869.31, which accrued while Anderson was
married, by fifty percent. Anderson was therefore entitled to
$434.66 (half of the amount attributable to his pre-divorce
employment) plus the $8.77 from his 2001 employment, for
a total monthly benefit of $443.43.
Anderson appealed the partial denial of his claim, as well
as the QDRO reduction, but the Trustees came to the same
conclusion on appeal. Anderson then filed a complaint in the
Arizona District Court. After a bench trial, the district court
ANDERSON v. SUBURBAN TEAMSTERS 15647
entered judgment in favor of the Trustees. The court also
denied Anderson’s motion for a new trial. Anderson timely
appealed to this court.
II
STANDARD OF REVIEW
We face first a threshold question: what standard of review
applies to the Trustees’ determination regarding the date of
disability and thus their decision partially to deny Anderson’s
application? The court will review de novo the district court’s
decision to apply an abuse of discretion standard to the Trust-
ees’ decision. Abatie v. Alta Health & Life Ins. Co., 458 F.3d
955, 962 (9th Cir. 2006) (en banc).
When a court reviews an ERISA plan administrator’s deci-
sion to grant or deny benefits, de novo is “the default standard
of review.” Id. at 963. However, if the plan grants discretion
to the plan administrator “to determine eligibility for benefits
or to construe the terms of the plan,” the court reviews the
administrator’s decision for an abuse of discretion. Id. (quota-
tion omitted).
Even if a plan grants discretion to the administrator, the
standard of review shifts to de novo if the administrator
engages in “wholesale and flagrant violations of the proce-
dural requirements of ERISA, and thus acts in utter disregard
of the underlying purpose of the plan as well.” Id. at 971.1
1
In Abatie, the plan administrator added a new reason on appeal for its
denial of the participant’s benefits such that the participant never had the
opportunity to respond to that reason for the denial. Id. at 961. Sitting en
banc, we concluded that error was not so flagrant as to preclude abuse of
discretion review. Id. at 972. As an example of “that rare class of cases”
in which a procedural violation crosses the line so as to warrant de novo
review, id., the court cited Blau v. Del Monte Corp., 748 F.2d 1348 (9th
Cir. 1984), abrogation on other grounds recognized by Dytrt v. Mtn.
15648 ANDERSON v. SUBURBAN TEAMSTERS
That is, de novo review is justified if the administrator’s deci-
sion was so plagued with errors and “so far outside the stric-
tures of ERISA” that we cannot say the administrator actually
exercised discretion. Id. at 972. Most procedural errors do not
alter the abuse of discretion standard, but the court should
consider such errors when deciding whether the administrator
abused its discretion. Id.
The parties agree that the Plan grants discretion to the
Trustees. Therefore, unless the Trustees committed wholesale
and flagrant procedural violations, the court will review their
decision for an abuse of discretion.
[1] The Trustees did not comply with all of ERISA’s proce-
dural requirements.2 ERISA provides that:
States Tel. & Tel. Co., 921 F.2d 889 (9th Cir. 1990). In Blau, the ERISA
administrator kept the plan details secret from employees, provided no
claims procedure, and never gave employees in writing the details of the
plan: the administrator “ ‘failed to comply with virtually every applicable
mandate of ERISA.’ ” Abatie, 458 F.3d at 971 (quoting Blau, 748 F.2d at
1353).
2
ERISA plans established pursuant to collective bargaining agreements
are exempt from certain of ERISA’s claims procedures, including those
that Anderson alleges the Trustees violated in this case. See 29 C.F.R.
§ 2560.503-1(b)(6) (explaining that for certain plans established pursuant
to collective bargaining, certain of ERISA’s procedural regulations will
not apply if the collective bargaining agreement “sets forth or incorporates
by specific reference — (A) [p]rovisions concerning the filing of benefit
claims and the initial disposition of benefit claims, and (B) [a] grievance
and arbitration procedure to which adverse benefit determinations are sub-
ject.”).
For two reasons, however, we assume the standard regulations apply.
First, the Trustees have not contended that the Plan falls under this excep-
tion. See Bard v. Boston Shipping Ass’n, 471 F.3d 229, 239 n.11 (1st Cir.
2006). Second, the record lacks the collective bargaining agreement under
which the Plan was established, so we cannot decide whether the agree-
ment suffices to trigger the exemption.
ANDERSON v. SUBURBAN TEAMSTERS 15649
In accordance with regulations of the Secretary,
every employee benefit plan shall —
(1) provide adequate notice in writing to
any participant or beneficiary whose claim
for benefits under the plan has been denied,
setting forth the specific reasons for such
denial, written in a manner calculated to be
understood by the participant, and
(2) afford a reasonable opportunity to any
participant whose claim for benefits has
been denied for a full and fair review by the
appropriate named fiduciary of the decision
denying the claim.
29 U.S.C. § 1133. Pursuant to § 1133, the Secretary promul-
gated 29 C.F.R. § 2560.503-1(h)(3)(ii), which states that a
plan must provide for a review of disability benefit determina-
tions “conducted by an appropriate named fiduciary of the
plan who is neither the individual who made the adverse ben-
efit determination . . . nor the subordinate of such individual.”
As the express terms of the Plan provided for them to do, the
Trustees decided both Anderson’s initial application and his
appeal of that decision.
[2] This procedural violation, however, was not so egre-
gious as to fall into “that rare class of cases” in which de novo
review should apply. Abatie, 458 F.3d at 972. Assuming with-
out deciding that the term “individual” in 29 C.F.R.
§ 2560.503-1(h)(3)(ii) applies to a deliberative body,3 we find
that Anderson has not shown that in deciding both his initial
3
See Johnston Envt’l Corp. v. Knight (In re Goodman), 991 F.2d 613,
619 (9th Cir. 1993) (“ ‘[I]ndividual’ means individual, and not a corpora-
tion or other artificial entity.”). But see United States v. Middleton, 231
F.3d 1207, 1210 (9th Cir. 2000) (“Neither is ‘individual’ a legal term of
art that applies only to natural persons.”).
15650 ANDERSON v. SUBURBAN TEAMSTERS
claim and his appeal, the Trustees committed “wholesale and
flagrant violations of the procedural requirements of ERISA,
and thus act[ed] in utter disregard of the underlying purpose
of the plan as well.” Abatie, 458 F.3d at 971. In their decision
on both Anderson’s initial claim and his appeal, the Trustees
provided detailed reasons for their denial and did not appear
substantively to defer to their initial decision. The minutes of
the Trustees’ meeting on Anderson’s appeal reflect their
detailed consideration of all the evidence before them. That
the result of both meetings was the same does not itself show
that the Trustees flagrantly disregarded ERISA’s requirement
that individuals receive full and fair review of claim denials,
because Anderson did not submit additional evidence — only
argument — between the two meetings of the Trustees on his
claim. Finally, both the composition of the board and the
attendance at the meetings changed such that three of the
eight members of the Board of Trustees present at the meeting
considering Anderson’s appeal were not present at the meet-
ing on his initial claim. Therefore, the Court will review for
an abuse of discretion the Trustees’ partial denial of Ander-
son’s application for disability benefits, taking into account
the Trustees’ procedural errors.
III
CONFLICT OF INTEREST
[3] We must also decide whether the Trustees had a conflict
of interest. If a plan administrator labors under a conflict of
interest, the court must consider that conflict of interest as a
factor in determining whether the administrator abused its dis-
cretion. Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___,
128 S. Ct. 2343, 2348 (2008).
[4] A conflict of interest exists “where it is the employer
that both funds the plan and evaluates the claims.” Id. This is
because “ ‘every dollar provided in benefits is a dollar spent
by . . . the employer; and every dollar saved . . . is a dollar
ANDERSON v. SUBURBAN TEAMSTERS 15651
in [the employer’s] pocket.’ ” Id. (quoting Bruch v. Firestone
Tire & Rubber Co., 828 F.2d 134, 144 (3d Cir. 1987), aff’d
in part, rev’d in part, 489 U.S. 101 (1989)) (omissions and
alteration in original). The Plan here does not meet that stan-
dard.
[5] The Plan is a multi-employer benefit trust fund main-
tained under the Taft-Hartley Act. The various participating
employers — not the Trustees — fund the Plan. The Trustees
have no personal economic interest in the decision to grant or
deny benefits. Additionally, the Board of Trustees consists of
both employer and employee representatives, who determine
employee eligibility under the Plan. Both sides are at the
table. See Jones v. Laborers Health & Welfare Trust Fund,
906 F.2d 480, 481 (9th Cir. 1990) (“Because the Board of
Trustees consists of both management and union employees,
there is no conflict of interest to justify less deferential
review.”). For these reasons, the Trustees did not have a con-
flict of interest.
IV
THE DATE OF ANDERSON’S DISABILITY
[6] We must now determine whether the Trustees abused
their discretion when they determined the date of Anderson’s
disability. A plan administrator abuses its discretion if it ren-
ders a decision without any explanation, construes provisions
of the plan in a way that conflicts with the plain language of
the plan, or fails to develop facts necessary to its determina-
tion. Schikore v. BankAmerica Supplemental Ret. Plan, 269
F.3d 956, 960 (9th Cir. 2001).
The date of Anderson’s disability is crucial to his benefits
calculation. If Anderson became disabled after May 1, 1998,
he would receive disability payments based on Benefit Credits
he actually earned during his years of employment. However,
if Anderson became disabled before May 1, 1998, he would
15652 ANDERSON v. SUBURBAN TEAMSTERS
receive disability payments calculated as if he continued to
work from the date of his disability all the way up until his
normal retirement age. All of the future years Anderson
would not be working would still count toward his accumula-
tion of Benefit Credits. Based on this enhanced number of
Benefit Credits, Anderson would receive a greater monthly
payment than if he were disabled after May 1, 1998.
The Trustees did not abuse their discretion in determining
the date of Anderson’s disability. The standard for disability
in both the 1995 Plan and the 1999 Plan requires that the dis-
ability prevent the employee “from pursuing any and all gain-
ful occupations and from performing any work for
compensation or benefit.” 1995 and 1999 Plans, § 6.03
(emphasis added).
[7] Although he claims to have been disabled as of June 1,
1997, Anderson worked for fifty-one days from June to Octo-
ber in 2001. His employment was a “gainful occupation.” In
return for his work, he earned a paycheck and even received
Benefit Credits under the Plan. Following the plain language
of the Plan, the Trustees had a reasonable basis to conclude
that Anderson was not “totally and permanently disabled”
until the end of his employment in 2001.4 The Trustees did
not abuse their discretion in applying § 6.02(a) of the Plan and
calculating Anderson’s benefits based on the Benefit Credits
he actually earned.
4
In his reply brief, Anderson argues that the Summary Plan Description
contains a more lenient standard of disability than the Plan. See Bergt v.
Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1145 (9th
Cir. 2002). However, Anderson forfeited this argument by failing to raise
it in his opening brief. See Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir.
1995). Additionally, Anderson’s counsel did not argue this point at oral
argument.
ANDERSON v. SUBURBAN TEAMSTERS 15653
V
THE ANTI-CUTBACK RULE
Anderson argues alternatively that if he did not become dis-
abled until November 2001 — which he did not — then the
1999 Plan amendment is invalid under 29 U.S.C. § 1054(g).
Anderson raised this issue in the district court, but the court
did not address it. Anderson v. Suburban Teamsters of N. Ill.
Pension Fund Bd. of Trustees, No. CV-05-1377-DGC (D.
Ariz.), Memorandum in Support of Plaintiff’s Complaint
(Docket No. 97) at 1-2; Order (Docket No. 106).
[8] Section 1054(g) is ERISA’s so-called “anti-cutback”
provision. It states that “[t]he accrued benefit of a participant
under a plan may not be decreased by an amendment of the
plan,” subject to certain exceptions not applicable here. 29
U.S.C. § 1054(g)(1) (2006). The purpose of the anti-cutback
rule is to “prevent employers from pulling the rug out from
under plan participants by eliminating or reducing certain
forms of benefits through a plan amendment.” McDaniel v.
Chevron Corp., 203 F.3d 1099, 1119 (9th Cir. 2000) (quota-
tion omitted).
[9] However, § 1054(g) does not apply to “employee wel-
fare benefit plans.” 29 U.S.C. § 1051(1) (2006) (excluding
such plans from Part 2 of ERISA). An “employee welfare
benefit plan,” or “welfare plan,” is defined as
any plan, fund, or program which was heretofore or
is hereafter established or maintained by an
employer or by an employee organization, or by
both, to the extent that such plan, fund, or program
was established or is maintained for the purpose of
providing . . . benefits in the event of sickness, acci-
dent, disability, death or unemployment . . . .
29 U.S.C. § 1002(1) (2006) (emphasis added).
15654 ANDERSON v. SUBURBAN TEAMSTERS
A welfare plan is distinguished from an “employee pension
benefit plan” in that the latter is
established or maintained by an employer or by an
employee organization, or by both, to the extent that
by its express terms or as a result of surrounding cir-
cumstances such plan, fund, or program —
(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees
for periods extending to the termination of covered
employment or beyond . . . .
29 U.S.C. § 1002(2)(A) (2006).
[10] The question here is whether disability benefits such
as those provided by the Plan constitute an employee welfare
benefit plan that ERISA permits employers to cut. The Sec-
ond, Sixth, and Eleventh Circuits have all answered, “Yes.”
The Second Circuit case of Rombach v. Nestle, USA, Inc.,
211 F.3d 190 (2d Cir. 2000), is quite similar to Anderson’s.
The plan in Rombach was a comprehensive plan that provided
for several different pensions, including a normal retirement
pension, an early retirement pension, and a “disability retire-
ment pension.” Id. at 191 n.1.
The plan had previously calculated the amount of the dis-
ability retirement pension as if the disabled employee’s “pe-
riod of service as an Employee had been extended from the
commencement date of such pension up to his or her Normal
Retirement Date.” Id. at 192. Under this provision, the
employee received credit not only for actual service, but also
for service the employee would have performed had the
employee not become disabled. The plan was amended to cal-
culate the disability retirement pension in accordance with
“the normal retirement benefit accrued by the [employee] as
ANDERSON v. SUBURBAN TEAMSTERS 15655
of the date of retirement due to disability.” Id. (alteration in
original). This calculation allowed no credit for service not
actually performed.
Rombach, an employee covered by the plan, became dis-
abled and applied for benefits. In accordance with the amend-
ment, the plan administrator calculated the amount of her
disability pension with reference only to her actual service.
Rombach argued that the amendment violated § 1054(g) by
failing to follow the requirements necessary for an exception
to the anti-cutback rule. Id. at 191-92.
The Second Circuit held that “the disability provisions of
the Pension Plan are an ‘employee welfare benefit plan’ under
29 U.S.C. § 1002(1), to which the protections of § 1054(g) do
not apply.” Id. at 192. The court emphasized that the statutory
definition of a welfare plan includes within its scope any plan
“to the extent” the plan provides “benefits in the event of . . .
disability”:
In our view, it does not matter that Nestle called the
disability retirement pension portion of its plan a
“pension benefit” and made it part of its master
“pension plan.” Its meaning and function remained
clear; it was a benefit triggered by disability. And,
under the plain language of the statute, “to the
extent” that Nestle’s Pension Plan provides benefits
that are triggered by disability, that portion of the
plan is a welfare plan under § 1002(1).
Id. at 194 (emphasis added). See also Robinson v. Sheet Metal
Workers’ Nat’l Pension Fund, 441 F. Supp. 2d 405, 417-18
(D. Conn. 2006), aff’d in part, dismissed in part, 515 F.3d 93
(2d Cir. 2008). The Eleventh Circuit relied on Rombach in
holding that § 1054(g) did not apply to a no-interest award of
retroactive disability benefits. Green v. Holland, 480 F.3d
1216, 1228 (11th Cir. 2007).
15656 ANDERSON v. SUBURBAN TEAMSTERS
In a similar context, the Sixth Circuit has also held that the
disability portion of a master plan was a welfare plan. McBar-
ron v. S & T Indus., Inc., 771 F.2d 94, 97 (6th Cir. 1985). The
plan in McBarron provided for a disability benefit, but the
disabled employee was not entitled to that benefit if the
employee was also receiving payments from Workmen’s
Compensation. Id. at 96. The employee argued this provision
violated 29 U.S.C. § 1053(a), ERISA’s anti-forfeiture provi-
sion. Like the anti-cutback rule, the anti-forfeiture provision
does not apply to welfare plans. 29 U.S.C. § 1051(1) (2006).
The court, relying on the “to the extent” language of
§ 1002(1), held that the disability benefits constituted a wel-
fare plan, and therefore ERISA’s anti-forfeiture rule did not
apply to them. McBarron, 771 F.2d at 97.
[11] We agree with our sister circuits. The statute specifies
that a plan is a welfare plan “to the extent” that it provides
“benefits in the event of . . . disability.” 29 U.S.C. § 1002(1)
(2006). The “to the extent” language evidences Congress’s
intent that the definition encompass any portion of a plan in
which the employee’s disability triggers the right to the bene-
fit. Rombach, 211 F.3d at 194. The disability benefit here fits
this mold. We hold that Anderson’s disability retirement pen-
sion is not subject to the anti-cutback rule because it is an
employee welfare benefit plan.
VI
THE QDRO
Finally, Anderson argues that the Trustees improperly
applied the QDRO to reduce his disability benefit in favor of
his ex-wife, the alternate payee. Anderson claims that until his
ex-wife elects to begin receiving her portion of the benefit, he
is entitled to the full amount, without any reduction pursuant
to the QDRO. We review de novo a decision regarding obli-
gations under a QDRO. Owens v. Auto. Machinists Pension
Trust, 551 F.3d 1138, 1142 (9th Cir. 2009).
ANDERSON v. SUBURBAN TEAMSTERS 15657
[12] A QDRO requires a plan administrator to provide part
or all of an employee’s pension to an ex-spouse. 29 U.S.C.
§ 1056(d)(3)(B) (2006). According to the Department of
Labor, there are two basic types of QDROs: “separate inter-
est” QDROs and “shared payment” QDROs. U.S. Dep’t of
Labor, The Division of Pensions Through Qualified Domestic
Relations Orders, http://www.dol.gov/ebsa/publications/
qdros.html, Question 3-3. A separate interest QDRO divides
the benefit into two different pensions, one for the plan partic-
ipant and one for the alternate payee. Because there are two
pensions, the alternate payee can receive her benefit “at a time
and in a form different from that chosen by the participant.”
Id.
On the other hand, a shared payment QDRO assigns the
alternate payee a portion of each monthly payment. “Under
this approach, the alternate payee will not receive any pay-
ments unless the participant receives a payment or is already
in pay status.” Id.
The Trustees found the QDRO to be a separate interest
QDRO creating two separate pensions. Once the pension was
split, they reasoned, Anderson no longer had an interest in any
of his ex-wife’s pension.
[13] The Trustees were correct. The QDRO grants the alter-
nate payee half of Anderson’s pension as of February 25,
1999. It allows Anderson’s ex-wife to begin receiving her
payments at Anderson’s earliest retirement age: thus, she
could be paid even if Anderson were still working. This is
impossible with a shared payment QDRO, where the ex-
spouse receives a payment only when the plan participant
does. For these reasons, Anderson’s QDRO was a separate
interest QDRO, and he cannot share in any of the benefits
allocated to his ex-wife.
15658 ANDERSON v. SUBURBAN TEAMSTERS
VII
CONCLUSION
The Trustees did not abuse their discretion in finding
Anderson disabled as of November 2001 and correctly
applied the QDRO to reduce the amount of Anderson’s bene-
fits in favor of his ex-wife. Further, Anderson’s disability
retirement pension is an employee welfare benefit plan, even
though it is only part of a comprehensive ERISA plan and
even though the Plan refers to it as a “pension.” As a welfare
plan, the disability retirement pension is not subject to the
anti-cutback rule.
AFFIRMED.