Dorn v. International Brotherhood of Electrical Workers

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31046

JANICE BROWN DORN,

Plaintiff-Appellant,

versus

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Etc., et al.,

Defendants,

ELECTRICIANS PENSION TRUST FUND, Substituted Party for
IBEW Local 995, Electricians Health, Welfare and Benefit Plans,

Defendant-Appellee.

--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
--------------------
May 18, 2000

Before JONES, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Janice Brown Dorn ("Janice") appeals the

district court’s grant of summary judgment in favor of the

Defendant-Appellee Electricians Pension Trust Fund ("the Plan"),

dismissing her claim, ostensibly pursuant to a Qualified Domestic

Relations Order (“QDRO”), for continued payment of pension benefits

following the death of her ex-husband, Jack Lee Dorn (“Jack”).

Jack was a former participant and, at death, a retiree and
pensioner under the Plan, which is governed by ERISA1. We affirm

the district court’s judgment dismissing Janice’s claim.

I.

BACKGROUND

A. Applicable Law: ERISA after the Retirement Equity Act of 1984

("REA")2

1. REA Changes Pertinent to this Appeal

After ERISA had been on the books for approximately ten years,

during which period the need for substantial modification had

become apparent, Congress enacted REA. Two innovations wrought by

REA that are particularly pertinent to this case are (1) changes in

mandated retirement plan benefits in the form of a revised version

of the “Qualified Joint and Survivor Annuity” (“QJ&SA”)3 and (2)

creation of a new procedure —— unique and exclusive to ERISA —— for

obtaining otherwise prohibited assignments or alienations of

pension plan benefits in the event of, inter alia, divorce: the

“Qualified Domestic Relations Order” ("QDRO").4 Familiarity with

1
Employee Retirement Income Security Act of 1974, 29 U.S.C.
§ 1001 et seq.
2
Pub.L. No. 98-397, 99 Stat. 1426, (codified at 29 U.S.C. §
1001 et seq.).
3
See generally 29 U.S.C. § 1055. (We recognize that “in the
trade” these annuities are generally referred to as QJSAs, but we
have included the ampersand to aid our readership in distinguishing
the QJSA from the QDRO). REA also dealt with the Qualified Pre-
Retirement Survivor Annuity, another type of ERISA benefit, which
is not at issue here.
4
See generally 29 U.S.C. § 1056(d).

2
the applicable terms of art is important and helpful in

understanding the instant appeal. After surveying the key terms,

we shall examine briefly the nature of the benefits that most ERISA

retirement plans like the Plan are required to provide as automatic

survivor benefits with respect to the retiring participant —— for

our purposes today, Jack’s QJ&SA —— and some of the alternative

elections available. We shall then consider in greater depth the

exception to ERISA’s spendthrift proscription of alienation that

REA brought to the table by creation of the QDRO, a mechanism for

recognizing, inter alia, the interest of the non-participant spouse

in benefits under such plans. Finally, we shall analyze Janice’s

QDRO in light of the foregoing to determine whether it was

correctly interpreted by the Plan’s plan administrator and the

district court.

2. Terminology

• Qualified Joint and Survivor Annuity

ERISA’s QJ&SA is unlike the typical joint and survivor annuity

available in the commercial market, which commonly guarantees

payment of a stipulated or determinable amount to two persons ——

frequently spouses —— while both are living and, after the death of

either person, to whichever of the two survives. ERISA's QJ&SA is

an annuity ——

(1) for the life of the participant[,] with a
survivor annuity for the life of the spouse
which is not less than 50% of (and is not
greater than 100% of) the amount of the

3
 annuity which is payable during the joint
lives to the participant and the spouse, and

(2) which is the actuarial equivalent of a
single annuity for the life of the
5
participant.

Stated more simply, (1) the QJ&SA’s annuity payments cease at the

death of the participant spouse, regardless of whether his death

5
29 U.S.C. § 1055(d). The Plan helps eliminate the tendency
to confuse the QJ&SA with the typical commercial product mentioned
supra by calling its QJ&SA a “50% Husband-and-Wife Pension” and
defining it to mean that “if the Participant dies before his
Qualified Spouse, the latter will receive a monthly benefit for her
lifetime of 50% of the Participant’s monthly benefit” —— such
survivor benefit being referred to in the Plan as the “survivor’s
pension.” The Plan defines “Spouse” as (1) “a person to whom a
Participant is considered married under applicable law” and (2) a
“Participant’s former Spouse” “if and to the extent provided in a
Qualified Domestic Relations Order....” The Plan then defines
“Qualified Spouse” as the person who was married to the Participant
[Jack] “on the date of Participant’s death and had been married
throughout the year ending with the date the Participant’s pension
payments start or, if earlier, the date of death; however, a Spouse
is also a Qualified Spouse if the Participant and his Spouse were
married for at least a year before his death.” Thus, as Janice had
been married to Jack for more than one year, she could have been a
Qualified Spouse if she had been expressly recognized as such in
her QDRO. See 29 U.S.C. § 1056(d)(3)(F)(i), (ii). The Plan
contains an alternative definition of Qualified Spouse: “A person
to whom a Participant was married on the date his pension payments
started [so-called “pay status”] and for at least one year
immediately before that, but who is divorced from the participant
after that date, shall be considered his Qualified Spouse on the
date of [Participant’s] death,” unless a QDRO provides otherwise.
As Janice and Jack were divorced well before his pension payments
started, this alternate definition is inapposite. As shall become
apparent when we review the operable facts of this appeal and the
provisions of Janice’s QDRO, she meets none of the Plan’s
definitions of Qualified Spouse: She was not married to Jack on
the date of his death, and she had not been married to Jack for the
year preceding the commencement of his pension payments or for the
year preceding his death. Most significantly, her QDRO does not
recognize her as Jack’s “Qualified Spouse” for purposes of the
“survivor’s pension” under the Plan.

4
occurs before or after the death of the non-participant spouse; and

(2) if, but only if, the non-participant spouse survives the

participant spouse does the survivor’s annuity kick in.

• Annuity Starting Date “means the first day of the first

period for which an amount is received as an annuity ”6 (whether by

reason of retirement or disability).

• Earliest Retirement Age “means the earliest date on

which, under the plan, the participant could elect to receive

retirement benefits.”7

• Domestic Relations Order “means any judgment, decree, or

order (including approval of a property settlement agreement) which

(I) relates to the provision of...marital property rights to a

spouse [or] former spouse...of a participant, and (II) is made

pursuant to a State domestic relations law (including a community

property law).”8

• Qualified Domestic Relations Order means a domestic

relations order ——

(I) which creates or recognizes the existence
of an alternate payee’s right to, or assigns
to an alternate payee the right to, receive
all or a portion of the benefits payable with
respect to a participant under a plan, and

(II) with respect to which subparagraphs (C)

6
29 U.S.C. § 1055(h)(2)(A)(i)
7
29 U.S.C. § 1055(h)(3).
8
29 U.S.C. § 1056(d)(3)(B)(ii).

5
 and (D) are met....9

Note that determination of whether a domestic relations order,

which a state court renders, is “qualified” is made by the Plan

Administrator, not by the court that granted the order.10

• Alternate Payee “means any spouse [or] former

spouse...who is recognized by a domestic relations order as having

a right to receive all, or a portion of, the benefits payable under

a plan with respect to” the participant.11 Note that “[a] person

who is an alternate payee under a [QDRO] shall be considered for

purposes of any provision of [ERISA] a beneficiary under the

plan;”12 only the employee who is a member of the plan is a

9
29 U.S.C. § 1056(d)(3)(B)(i)(I) (emphasis added). Subparagraph
(C) provides that a domestic relations order be a QDRO only if it
“clearly specifies,” inter alia, the name and address of the
participant and the alternate payee, the amount or percentage to be
paid to the alternate payee, the plan or plans to which the order
applies, etc.; and subparagraph (D) provides that a domestic
relations order can be a QDRO only if it “(i) does not require a
plan to provide any type or form of benefit, or any option, not
otherwise provided under the plan, (ii) does not require the plan
to provide increased benefits (determined on the basis of actuarial
value), and (iii) does not require the payment of benefits to an
alternate payee which are required to be paid to another alternate
payee under another order previously determined to be” a QDRO.
10
29 U.S.C. § 1056(d)(3)(G)(i)(II)(“the plan administrator
shall determine whether such [domestic relations] order is a
qualified domestic relations order” (emphasis added)).
11
29 U.S.C. § 1056(d)(3)(K)(emphasis added). Use of the
phrase “with respect to” makes clear that alienability under a QDRO
is not limited to those benefits that are “payable to” a
participant, i.e., only the participant’s life annuity, but may
also make other plan benefits, such as the surviving spouse’s
annuity available to an alternate payee.
12
29 U.S.C. § 1056(d)(3)(J)(emphasis added).

6
"participant."

3. Framework for Analysis

Employing the foregoing terms and paraphrasing the pertinent

portions of the legislative history of REA13 —— those regarding the

QJ&SA and the QDRO —— establishes the appropriate framework within

which this case should be analyzed. Since the enactment of REA,

ERISA pension plans have been required to provide automatic

survivor benefits, principally a QJ&SA, to participants who retire

under such plans. As noted by the district court, a QJ&SA

comprises two separate and distinct benefits: (1) An annuity for

the life of the participant, and (2) a succeeding annuity for the

life of the surviving spouse (if there is one) of not less than 50%

of the participant annuity.14

To implement the importation of the QDRO procedure for

accommodating situations such as divorce, community property

partition, and the like, REA expressly exempted from ERISA's

otherwise preemptive proscription of alienation of plan benefits,

a narrowly limited set of permissible assignments to a similarly

limited set of transferees, denominated “alternate payee,” such as

13
[S. Rep. No. 98-575 (1984), reprinted in 1984 U.S.C.C.A.N.
2547.
14
Although not applicable here, the participant can waive the
QJ&SA in favor of an alternate benefit permitted by the plan, but
only with spousal consent and only during the applicable election
period, being a reasonable time before the annuity starting date,
not to exceed ninety (90) days. 29 U.S.C. § 1055(c)(1)(A)(i),
(2)(A)(i), (7)(A).

7
a surviving spouse, of specified plan benefits that are payable

with respect to the participant.15 The QDRO is the REA-created

mechanism employed to facilitate this REA-recognized, tightly

circumscribed set of non-preempted assignments of benefits.

To be a QDRO, a domestic relations order must designate, inter

alia, the spouse or former spouse as an alternate payee. A

domestic relations order can only be "qualified" (and thus can only

become a QDRO), however, if it creates or recognizes the existence

of an alternate payee's right, or assigns to an alternate payee the

right, to receive all or a portion of the benefits payable with

respect to a participant under one of the expressly designated

types of ERISA retirement plans, and meets the other requirements

of the statute.

To be an alternate payee under a QDRO, the spouse or former

spouse of a plan participant must be recognized in a state court’s

domestic relations order as having a right to receive all, or a

portion of, the benefit or benefits under the plan with respect to

the participant. Moreover, to be "qualified," a domestic relations

order must clearly specify the nature and portion of the benefits

to be received by the alternate payee. Even then, the order cannot

be qualified if it requires the plan to provide any type or form of

benefit not otherwise provided under the plan, or if it requires

the plan to provide increased benefits. And, as noted in the

15
See, e.g., Critchell v. Critchell, No. 98-FM-1304, (D.C.
Cir. Feb. 10, 2000).

8
foregoing definitions, determination whether a domestic relations

order is qualified and thus a QDRO is the job of a plan

administrator.16

B. Facts and Proceedings

Jack and Janice married in 1968. Neither prior to nor during

their marriage did Jack and Janice elect out of Louisiana’s legal

regime —— the community of acquets and gains —— for matrimonial

property in that State; rather, they remained under the community

regime at all pertinent times.17 Throughout the time that Jack and

Janice were married to each other, he was a participant in the

Plan, an ERISA employee pension benefit plan for union workers.

Jack and Janice divorced on April 25, 1991. At that time,

Jack was still a participant in the Plan: His annuity starting

16
The instant QDRO was obtained before Jack’s annuity starting
date, so there is no issue of timeliness here. But cf. Rivers v.
Central & Southwest Corp. et al, 186 F.3d 681 (5th Cir. 1999)
(holding failure to obtain QDRO before death of retired participant
and before vesting of second spouse’s survivor benefit under plan
prevents recovery by former spouse); cf. also Hopkins v. AT&T
Global Info. Solutions Co., 105 F.3d 153 (4th Cir. 1997) (holding
former spouse cannot obtain a QDRO for surviving spouse annuity
after participant’s retirement, as benefits vest in current spouse
on retirement). Absent a pre-existing QDRO expressly recognizing
a former spouse as the alternate payee of the survivor’s pension,
the person who is the spouse of the participant at his retirement
need not obtain a QDRO to establish the right to the survivor’s
pension; neither would a subsequent divorce divest that spouse of
such right. If the spouses were to divorce after a pension plan
has gone into pay status, the non-participant spouse might be
entitled to obtain a QDRO for a portion of the former participant
spouse’s lifetime annuity, assuming the applicable domestic
relations laws of the cognizant state would support such a claim.
17
See La. Civ. Code Ann. arts. 2326-28.

9
date had not arrived; indeed, he did not become eligible for

pension benefits under the Plan until March 1, 1993 and did not

receive his first check until August of that year. On the day in

1991 when they divorced, Jack and Janice executed an agreement

settling their community property. It stipulated that Jack

assigned to Janice “her” interest in his benefits under the Plan.

This settlement agreement likely met REA’s definition of a

“domestic relations order” but it clearly failed to specify details

sufficient to be deemed a QDRO; and neither party contends that it

was or should have been.

Later that year, on September 27, 1991, Jack married Geraldine

T. Duck ("Geraldine"). Jack and Geraldine were still married to

each other (and had been for more than a year) when he retired for

plan purposes and when his annuity starting date arrived. And,

they were still married to each other on May 31, 1997 when he died.

On January 22, 1993, however, after Jack had married Geraldine

but while he was still working and still a participant in the Plan,

Janice obtained a domestic relations order from a state court in

Louisiana. That order is labeled "Qualified Domestic Relations

Order for Electricians' Pension Plan IBEW 995." It purports to

divide and assign benefits accumulated under the Plan during the

existence of Jack and Janice's community, identifying the benefits

as marital property, designating Janice as "Alternate Payee,"

referring to Jack as "Participant," and otherwise making all

recitations required for the domestic relations order to be

10
recognized by a plan administrator as a QDRO.

The order specifies that, as alternate payee, Janice "shall

receive payment from [the Plan] of Participant...pursuant to the

Participant's assignment of benefits to the alternate payee in the

amount of...$302 per month....as of February 27, 1991, the date on

which the community of acquets and gains ceased to exist...." The

order also specifies:

This assignment of benefits does not require
the Plan to provide any type or form of
benefit, or any option, not otherwise provided
under the Plan. This assignment does not
require the Plan to provide increased benefits
determined on the basis of actuarial value.
This assignment does not require the Plan to
provide benefits to the Alternate Payee under
another order previously determined to be a
Qualified Domestic Relations Order.

The order declares that from its date

the alternate payee shall have, with respect
to the alternate payee's interest in the Plan,
the exclusive right to receive such funds
specified above and in the event of alternate
payee's death, her estate shall receive those
funds to which the alternate payee is
entitled, in the event of survivor
beneficiaries not named by alternate payee.

In reference to the designation of monthly payments of $302 to

Janice, the order contains the following footnote:

Division of Benefits: Sims v. Sims, 248 So.2d
919 (La. 1978) All funds accumulated under
this Plan were accumulated during the
existence of the community of acquets and
gains. The community of acquets and gains
existing between the parties hereto ceased as
of February 27, 1991.

Jack became eligible for retirement on March 1, 1993, less

11
than two months after Janice had obtained that domestic relations

order. The annuity starting date came and went, and pursuant to

Janice’s QDRO, the Plan began paying $302 per month to her. The

remaining $321 balance of Jack's monthly pension benefit of $623

was paid to him, beginning August 1, 1993.18 The total of these

payments equaled the total amount of Jack's monthly participant's

annuity under the Plan, i.e., his lifetime pension of $623 per

month.

Effective at Jack's death on May 31, 1997, the Plan

discontinued making monthly payments to Jack and to Janice that

clearly were being paid to them from the participant's portion of

Jack's QJ&SA. Also effective at Jack's death, the Plan began

paying Geraldine the “survivor’s pension” of $312 per month, being

50% of the participant’s pension under Jack’s QJ&SA.

Shortly after Jack’s death, the Plan wrote to Janice advising

of the cessation of payments to her as a result of (1) the

termination of the participant's annuity at Jack’s death and (2)

the absence in the QDRO of a designation of Janice as Jack’s

Qualified Spouse for purposes of the survivor’s pension. In July,

1997, through her attorney, Janice appealed to the Plan in writing

to reinstate payment of the benefits that it had been paying to her

before Jack’s death; and, in September she appeared with her

18
Given the Plan’s disbursements to Janice, we infer that the
Plan Administrator determined that the domestic relations order of
January 22, 1993 was “qualified” and thus a QDRO. Neither party
contends otherwise.

12
attorney before the Plan’s Board of Trustees —— its plan

administrator —— to re-urge her appeal. The Board of Trustees

advised Janice by a September 24 letter to her attorney that her

appeal had been denied. Janice filed the instant lawsuit a month

later.

In her complaint, Janice asserted that the Plan's refusal to

continue benefit payments to her (1) violated ERISA; (2) was

unconstitutional under the Fifth Amendment; and (3) constituted

conversion of her property. In June, 1998 the Plan filed a motion

for summary judgment on all counts, maintaining that Janice was not

entitled to payments of benefits following Jack's death because (1)

the participant's annuity, out of which she had been receiving a

$302 portion, terminated at participant's death, and (2) neither

the Plan nor the 1993 QDRO provided for the payment of any other

benefit to Janice after Jack's death, the only benefit remaining

being the annuity of the surviving spouse, who was not Janice, but

Geraldine, Jack’s “Qualified Spouse.” The Plan also asserted that

Janice's Fifth Amendment claim was baseless and that her state law

claim of conversion was preempted by ERISA.

In September, 1998, the district court granted the Plan's

motion for summary judgment, rejecting all of Janice's claims and

dismissing her suit. This appeal followed.

II.

ANALYSIS

A. Standard of Review

13
 We review the district court’s grant of summary judgment under

the well known de novo standard. Here, there are no disputed

issues of material fact, only issues of law. Like the district

court, we review a plan administrator’s denial of benefits under a

de novo standard, unless the plan gives the administrator

discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.19 Neither Janice nor the Plan has

asserted that the Plan’s Board of Trustees, as plan administrator,

has discretionary authority to determine eligibility for benefits;

thus, any plan interpretation made by the Board when denying

Janice’s appeal for continued benefits is reviewed de novo.20 More

to the point, even if the Plan does vest its administrator with

maximum discretion and that authority includes discretion to decide

whether a domestic relations order meets the requirements for

recognition as a QDRO, we would still review de novo the Board of

Trustees’ interpretation of the substantive provisions of Janice’s

QDRO. “Although we allow a plan administrator discretion to

determine whether [a domestic relations order] constitutes a QDRO

under the plan, we otherwise review de novo a plan administrator’s

interpretation of the meaning of a QDRO.”21

19
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989).
20
Id.
21
Matassarin v. Lynch, 174 F.3d 549, 563 (5th Cir.
1999)(internal citation and quotation omitted). See Samaroo v.
Robichaud, 193 F.3d 185, 189 (3rd Cir. 1999).

14
B. ERISA Claim

From the record on appeal and Janice’s appellate brief, it is

clear to us that she is seeking a continuation, for her lifetime,

of the monthly $302 payment out of Jack’s participant annuity only,

from which she had received it during his lifetime by virtue of her

QDRO; and that, because in the QDRO she is not designated as the

surviving spouse (or “qualified spouse”), she is not asserting a

claim to any part of Jack’s QJ&SA that constitutes the survivor

annuity (the “survivor’s pension”), which Geraldine began to

receive at Jack’s death. As the district court in its ruling on

motion for summary judgment touched on both possibilities, however,

we shall as well.

1. Validity of QDRO

First, there is no dispute about the propriety of the plan

administrator’s having treated the state court’s domestic relations

order in this case as a QDRO: Not only does the order touch all of

the bases from the standpoint of required contents under § 1056(d)

by recognizing Janice as an alternate payee, expressing that it

relates to marital property rights, and specifying the factual

information required under subsection (3)(C); at least facially it

also does not violate subsection (3)(D)’s prohibition of requiring

the Plan to provide (1) any type or form of benefit or option not

otherwise provided under the Plan or, (2) on the basis of actuarial

value, any increased benefits. Neither does the order require

payment of benefits to an alternate payee other than Janice (there

15
were no prior QDROs). Moreover, the instant QDRO was applied for

and obtained before Jack’s (1) annuity starting date, (2)

retirement, or (3) death.

2. Surviving Spouse Annuity

Regarding any claim that Janice could possibly have asserted

to all or any portion of the survivor’s pension —— again, it does

not appear to us that she is asserting any such claim —— the

district court correctly determined that neither under any

provision of the Plan nor under ERISA generally could Janice be

deemed a surviving spouse in the context of Jack’s QJ&SA: She was

no longer married to Jack (1) during the “applicable election

period,” (2) on the “annuity starting date,” or (3) at his death.

In fact, they had been divorced for more than a year prior to any

of those events. The district court correctly determined that as

an alternate payee (and thus a beneficiary) by virtue of her QDRO,

Janice did not obtain status as a surviving spouse (“Qualified

Spouse”) or any interest in the survivor annuity under the

provisions of Jack’s QJ&SA. Section 1056(d)(3)(C) requires that a

domestic relations order “clearly” specify, inter alia, the amount

or percentage of the “participant’s” benefits to be paid to the

alternate payee. The QDRO is silent on the issue of survivor’s

rights; the only Plan benefit of Jack’s addressed in the QDRO is

the one from which the QDRO specifies Janice’s $302 per month was

16
to be paid, unmistakably the participant annuity.22 Conversely, the

monthly payment specified in the QDRO had no relationship

whatsoever to the surviving spouse annuity facet of Jack’s QJ&SA.23

The domestic order nowhere designates her as the surviving or

“qualified” spouse for purposes of any survivor benefit that is

specifically allowed under the Internal Revenue Code.24

3. Participant Annuity

Regarding Janice’s insistence that, following Jack’s death,

the Plan continue making monthly payments of $302 to her, the

district court correctly determined that (1) the domestic relations

order granted to Janice by the state court nowhere “clearly” states

that she would continue to receive such payments after Jack’s death

(presumably for the remainder of her lifetime), and (2) had that

22
See Samaroo, 193 F.3d at 187, n.2 (“[T]he original decree
was silent on the issue of a survivor’s rights. Congress has
required QDROs to be quite specific in order to convey ERISA
benefits. The statute requires a QDRO to state specifically the
extent of the alternate payee’s interest in the plan”).
23
The question whether a domestic relations order that purports
to designate a former spouse of the participant as the “surviving
spouse” alternate payee under a pension plan can still “qualify”
for purposes of becoming a QDRO is not before us, for Janice’s QDRO
contains no such provision. The availability of such a
specification is well settled by the Internal Revenue Code,
provided the participant and the former spouse had, at some time in
the past, been married to each other for a period of at least one
year. See supra n.4. In such circumstances, the designation of
the former spouse as the alternate payee of the surviving spouse
annuity trumps any claims thereto by another person who
subsequently becomes the de facto surviving spouse of the
participant. See, e.g., Treas. Reg. § 1.401(a)-20 Q&A 25(b)(3).
24
See § 414(p)(5), I.R.C.

17
domestic relations order contained such a provision as to Jack’s

participant annuity —— as distinct from the surviving spouse

annuity —— it could not (or at least should not) have been

recognized as a QDRO. On the first point, any fair reading of the

words of Janice’s domestic relations order confirms that it did

nothing more or less than carve a $302 portion out of Jack’s $623

monthly benefit under his lifetime participant’s annuity. Nowhere

in the QDRO is a reference to Janice’s payments modified by “for

life” or “for her lifetime” or any other such phrase. Her payments

had to be co-terminus with his which, by definition, ceased as of

his death. This expectation is confirmed by its obverse: Under

one express provision of her QDRO, Janice’s death before Jack’s

would not have terminated her $302 monthly payments; rather,

following her death the $302 payments would have continued, month

after month, until his death, and would have been paid either to

her designated successor or to her estate, i.e., her heirs or

legatees.25

Janice’s domestic relations order specifies that she “shall

receive payment from [the pension plan] of Participant, Jack Lee

Dorn....” The only benefit that Jack had under the Plan was a

25
Janice’s QDRO specifies that “in the event of the Alternate
Payee’s death, her estate shall receive those funds to which the
Alternate Payee is entitled, in the event a survivor beneficiary is
not named by Alternate Payee.” As that provision deals with
payments beyond her lifetime, the QDRO obviously contemplated the
payment of her $302 until Jack’s death in the event he should
outlive her, but not after his death.

18
QJ&SA which comprised (1) his lifetime annuity (which was not, as

in some commercial products, payable for as long as either spouse

lived), and (2) the “survivor’s pension,” i.e., the surviving

spouse annuity, equal to 50% of the Participant’s lifetime pension.

As already noted, the surviving spouse annuity is not addressed

anywhere in the subject domestic relations order, and Janice has

not expressly demanded any part of it.

In conclusion, we agree completely with the district court:

The pension benefit component [of Jack’s
QJ&SA] in which [Janice] did receive payments,
terminated upon the death of the participant.
The survivor’s annuity is the only benefit
currently payable under the [Plan]. It vested
in [Jack’s] current wife on the date he became
eligible for benefits.

C. Fifth Amendment Claim

Dorn also argues that the district court’s interpretation of

ERISA is a taking of her vested property without due process of law

prohibited by the Fifth Amendment. There is no set formula for

identifying a “taking” forbidden by the Fifth Amendment; rather,

courts use an “ad hoc, factual inquir[y] into the circumstances of

[the] case.”26 Dorn has not met her burden to show that she had any

private property which has been the subject of a taking.

D. Conversion Claim

Dorn’s last argument is that the Fund converted Janice’s

property to its own use. A state law claim, such as Dorn’s claim

26
Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224
(1986).

19
for conversion, addressing the right to receive benefits under the

terms of an ERISA plan necessarily “relates to” an ERISA plan and

is thus preempted.27 Additionally, to the extent Dorn attempts to

use the Louisiana law of conversion to interfere with a surviving

spouse’s benefits, that law is preempted.28

III.

CONCLUSION

Dorn has failed to show that the district court erred by

granting summary judgment in favor of the Plan on all counts. The

judgment of the district court is, in all respects,

AFFIRMED.

27
See, Dowden v. Blue Cross & Blue Shield of Tex., Inc., 126
F.3d 641, 643 (5th Cir. 1997); see also Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 47-48 (1987) (common law cause of action
alleging improper decision on claim for benefits undoubtedly meets
criteria for ERISA preemption).
28
Boggs v. Boggs, 520 U.S. 833, 844 (1997).

20