Opposition Brief — McGowan v. NJR Service Service Corp (No. 05-853)

No. 05-853 : FEB 6 ~ 200

1 =) ice oF ; ra WLEAK

| _ SUPREME COURT US

N THE

Supreme Court of the United States

JAMES M. McGOWAN, SR., Palm City, Florida,

Petitioner,

Vv.

NJR SERVICE CORPORATION and

NEW JERSEY NATURAL GAS COMPANY,

Wall Township, New Jersey,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unitep States COuRT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

RICHARD C. MARIANI

Counsel of Record

SABRINA P. ROCKOFF

OGLETREE, DEAKINS, NASH,

Smoak & Stewart, P.C.

Attorneys for Responc.. «ts

10 Madison Avenue, Suite 402

Morristown, New Jersey 07960

(973) 656-1600

199306 g

COUNSEL PRESS

(800) 274-3321 ¢ (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

1. Did the United States Court of Appeals for the Third

Circuit correctly rule that the administrator of an ERISA-

qualified pension plan may not recognize a waiver contained

in a non-QDRO state domestic relations order offered by 4

participant to change his designation of a plan beneficiary

where such change is prohibited by the provisions of the plan?

2. Does the ruling of the Third Circuit Court of Appeals

warrant review by this Court?

ii

LIST OF PARTIES TO THF PROCEEDINGS

James M. McGowan, Sr., Palm City, Florida, Petitioner.

NJR Service Corporation and New Jersey Natural Gas

Company, Wall Township, New Jersey, Respondents.

iti

TABLE OF CONTENTS

Questions Presented For Review ...............

List Of Parties To The Proceedings .............

Table Rie CC OUOIE Via vadesdwnyberbn bil cise.

Table Of Cited Authorities 0.006 oc 0. eee eecres

Citations Of The Official And Unofficial Reports Of

The Opinions And Orders Entered In This Case. .

Basis For U.S. Supreme Court Jurisdiction .......

statutes Invoived Il Case wo. icc ceed vec drcus

Statement Of The Case ..... Me ein awe Gi ee ene

aici For Denying The Petition ..............

Plaintiff’s Petition For A Writ Of Certiorari

Should Be Denied As This Court’s Ruling In

Boggs v. Boggs Controls The Outcome Of

This Case And Indicates That The Minority

mune ts CN 5G eA ese

A. Under Boggs, ERISA must be construed

in the strictest manner possible. ......

1. Under Boggs, Plan Administrators

are Bound by the Terms of the Plan

oo e oe ses Ge © 6 2.2 6 -6.6' 8 26 6.04: 6 a @ 6 US

10

iv

Contents

Page

2. Based on Boggs, the Plan must

follow the designation ~ - the QJSA

Pee hdnn yc eds ae ie ER eee 11

B. Boggs held that the anti-alienation

provisions of ERISA prohibit the

conferring of beneficiary status on non-

plan participants except in certain

SU 5a 56 ERE SK 14

C. Under Boggs the “principle objective”

of ERISA is to protect plan participants

end Bometiciries 2 2 ee. 15

on IS ERR TOS RS Seta eRepep Me ST MEAL eos BR PS 15

TABLE OF CITED AUTHORITIES

Page

Cases:

Boggs v. Boggs,

510 U.S..833, 347 S.C, 1754 C997) oc cic passim

Branco v. UFCW-Northern California

Employers Joint Pension Plan,

ATT Pia TIOM CHROME COUR) de vtineevivess 9

Brandon v. Travelers Ins. Co.,

18 F.3d 1321 (Sth Cir. 1994), cert. denied,

543: US. 1081, 1435 8: Ce 73211995) 0 ccs 9

Compare Hill v. AT&T,

$25 F.56 G40 (Btn Ci AGT} oie cin ie ence 9

Estate of Altobelli

v. International Bus. Mach. Corp.,

FT ie PO NP 5S ee ees ON eb ees 9

Fox Valley & Vicinity Constr. Workers Fund v. Brown,

897 F.2d 275 (7th Cir.) (en banc), cert. denied,

496 13.8. S20; 14.43.44. 67 C1999) i 9

Krishna v. Colgate Palmolive Co..,

Pet ee Ge ST os Chace eda a eee 9

Manning v. Hayes,

2he F506 S00 CR Ci 2000) eo EAs 9

vi

Cited Authorities

Page

Mattei v. Mattei,

126-F.356. 94 (6th Cir, 1997) Si ii cc beens 9

McGowan v. New Jersey Natural Gas Co.,

Civ. A. No. 03-1035 (SRC) (July 23, 2004) .... l

McGowan v. NJR Service Corp.,

S25 F356 241i CSG Cs ZOO) os eos Ca es a

McMillan v. Parrot,

STS P.2G-310 CG. Ci. 1990) 5 fea cccciws 9

Metropolitan Life Ins. Co v. Pettit,

POG FOG Bot CANA, LOO ook ccc nceuntses 9

Statutes:

eG ee ee oi ob a bebe be NEN SCOR 11

DA AROMRES oo ea Shed ah eee een l

BP ib eas BO OE de S66 ccs aa RR wane REV KO SS 5

Bers TRE 5s a SI EES i ES 10

Ee Rae Oe SUED os po eee WC Che eae eben 1]

eae AEE 0 MEFS CEES RTM ERTS 10

Se as OED oc ok ae Fa Re eke Mecubaw tae 5, 11

vil

Cited Authorities

MWUSC. 61050 i

MUSC. LIOSHORY 62

SUSE CISHEN) 6k

WUSC S10): oe) a |

WUSC CINE. 6

WUSC.4IWMOR) «6. cis

WUC ENGI) 3. ee

USC COME

USK: §1OMS) 6. Boe

29 USC. § HOMORI MD) 50 hice s eevee ,

Other Authorities:

1974 U.S. Code Congressional and Administrative

News 4039, 4050 20.5 20.3 Soe cae eek

Page

14

10

]

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS

ENTERED {N THIS CASE

The decision of the U.S. Court of Appeals for the Third

Circuit is published as McGowan v. NJR Service Corp., 423

F.3d 241 (3rd Cir. 2005). The decision of the U.S. District

Court, District of New Jersey is unpublished. It is captioned

as McGowan v. New Jersey Natural Gas Co., Civ. A.

No. 03-1035 (SRC) (July 23, 2004).

BASIS FOR U.S. SUPREME COURT JURISDICTION

The U.S. Court of Appeals for the Third Circuit ruled in

favor of NJR Service Corp., et al., on September 13, 2005.

McGowan petitioned for rehearing en banc on September 26,

2005. The Court of Appeals denied the petition on October 13,

2005. The United States Supreme Court is authorized to consider

this case pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED IN CASE

29 U.S.C. § 1055(a):

(a) Required contents for applicable plans

Each pension plan to which this section applies shall

provide that —

(1) inthe case of a vested participant who does

not die before the annuity starting date, the accrued

benefit payable to such participant shall be provided

in the form of a qualified joint and survivor annuity,

and

2

(2) in the case of a vested participant who dies

before the annuity starting date and who has a

surviving spouse, a qualified preretirement survivor

annuity shall be provided to the surviving spouse of

such participant.

29 U.S.C. § 1056(d):

(d) Assignment or alienation of plan benefits

(1) Each pension plan shall provide, that

benefits provided under the plan may not be assigned

or alienated.

(3)(A) Paragraph | shall apply to the creation,

assignment, or recognition of a right to any benefit

payable with respect to a participant pursuant to a

domestic relations order, except that paragraph (1)

shall not apply if the order is determined to be a

qualified domestic relations order. Each pension plan

shall provide for the payment of benefits in

accordance with the applicable requirements of any

qualified domestic relations order.

(B) For purposes of this paragraph —

(i) the term “qualified domestic

relations order’ means a domestic relations order —

(1) 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 the plan, and

3

(11) with respect to which the

requirements of subparagraphs (C) and (D) are met,

*x* * * *

(C) A domestic relations order meets the

requirements of this subparagraph only if such order

clearly specifies —

(i) the name and last known mailing

address (if any) of the participant and the name and

mailing address of each alternate payee covered by

the order,

(ii) the amount or percentage of the

participant’s benefits to be paid by the plan to each

such alternate payee, or the manner in which such

amount or percentage is to be determined,

(iii) the number of payments or period to

which such order applies, and

(iv) each plan to which such order applies.

(D) A domestic relations order meets the

requirements of this subparagraph only if such

order —

(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

4

(i1i) 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 qualified

domestic relations order.

29 U.S.C. § 1103(c):

(1) Except as provided in paragraph (2), (3), or

(4) or subsection (d) of this section, or under sections

1342 and 1344 of this title (relating to termination

of insured plans), or under section 420 of Title 26

(as in effect on October 22, 2004), the assets of a

plan shall never inure to the benefit of any employer

and shall be held for the exclusive purposes of

providing benefits to participants in the plan and their

beneficiaries and defraying reasonable expenses of

administering the plan.

29 U.S.C. § 1104(a):

(a) Prudent man standard of care

(1) Subject to sections 1103(c) and (d),

1342, and 1344 of this title, a fiduciary shall

discharge his duties with respect to a plan solely in

the interest of the participants and beneficiaries and

— (D) in accordance «ith the documents and

instruments governing the plan insofar as such

documents and instruments are consistent with the

provisions of this subchapter and subchapter III of

this chapter.

5

STATEMENT OF THE CASE

From May 12, 1969 to November 30, 1996, James M.

McGowan, Sr. (“Plaintiff’ or “McGowan’’) was employed

by New Jersey Natural Gas Company (“the Company’”’).

During his employment, Plaintiff accrued benefits under the

New Jersey Natural Gas Company Plan For Retirement

Allowances For Non-Represented Employees (“the Plan’’).

The Company was the Administrator of the Plan.

On August 1, 1996, shortly before his retirement,

Plaintiff completed a beneficiary designation form, wherein

he designated Rosemary Byrne McGowan (hereinafter

referred to as “Ms. Byrne”), his wife at that time, as his

beneficiary under the Plan.' On October 16, 1996, Plaintiff

executed a form wherein he elected to receive his retirement

benefit under the Plan in the form of the “Automatic

Surviving Spouse Option,” which is an annuity for his life,

with a 50% survivor annuity payable to his spouse, ‘s.

Byrne, who happened to be Plaintiff’s second wife. Under

the Employee Retirement Income Security Act of 1974, as

amended, 29 U.S.C. ¢ 1001, et seq. (“ERISA”), this form of

retirement benefit is referred to as a “qualified joint and

survivor annuity” or “QJSA”. 29 U.S.C. § 1055. Following

Plaintiff’s retirement on December 1, 1996, Plaintiff’s

monthly Plan benefits commenced.

In 1998 Plaintiff contacted the Company’s Manager of

Benefits and Compensation and inquired as to whether he

could change his beneficiary under the Plan. Plaintiff was

advised that the terms of the Plan prohibited the designation

1. Technically, Ms. Byrne was a “contingent participant” under

the terms of the Plan.

6

of a new contingent beneficiary as his benefit payments had

already commenced. Shortly thereafter, Plaintiff and Ms.

Byrne executed a Marital Settlement Agreement dated July

23, 1998, in which Ms. Byrne “waive[d] any and all rights,

title, interest or claims. . . to all bank accounts, life insurance

policies and any right to the New Jersey Natura, Gas

Company Employee Pension Plan of [Plaintiff].” On July

27, 1998, Ms. Byrne executed a form wherein she consented

to the naming of Shirley McGowan, Plaintiff’s first wife, as

Plaintiff’s beneficiary under the Plan. On August 6, 1998,

an attorney representing Mr. McGowan wrote to the Company

reiterating McGowan’s request to change his beneficiary

under the Plan from Ms. Byrne to Shirley McGowan. The

Company denied this request and Plaintiff did not pursue

the matter further. Plaintiff subsequently was legally divorced

from Ms. Byrne. The Final Judgment of Dissolution of

Marriage dated May 24, 1999 incorporated by reference the

Marital Settlement Agreement.

On November 3, 2001, Plaintiff married Donna

McGowan (referred to herein as “the Current Wife”) and

again sought to change his designation of beneficiary—this

time to make the Current Wife the beneficiary. The Company

again informed Plaintiff that he could not change his

beneficiary. The Plaintiff appealed. The Company’s Benefits

Administration Committee upheld the decision to deny

Plaintiff's request to change his beneficiary.

On March 5, 2003, McGowan commenced the within

action by filing a two-count Complaint against NJR Service

Corporation in the U.S. District Court for the District of New

Jersey. Only the first count, which sought declaratory relief

in the form of an order directing the Company to designate

J

the Current Wife as Plaintiff’s contingent beneficiary under

the Plan, is the subject of this appeal.’

With no dispute existing as to any material fact, both

parties moved for summary juc zment. On July 23, 2004, the

District Court issued its opinion and order denying Plaintiff's

motion for summary judgment, granting the Company’s

cross-motion for summary judgment and dismissing

Plaintiff’s action. The District Court held that under ERISA,

the Company was required to administer the pension plan

strictly in accordance with the terms of the written plan

documents and could not look to documents outside of the

plan such as the Marital Settlement Agreement, which

contained Ms. Byrne’s purported waiver of her beneficiary

rights. The District Court further ruled that under the express

terms of the Plan, a participant may not change his or her

contingent participant after benefits commence.

A three-judge panel of the U.S. Court of Appeals for the

Third Circuit affirmed the District Court’s ruling. McGowan

v. NJR Service Corp., 423 F.3d 241 (3rd Cir. 2005). The

majority of the Court, relying in part upon guidance provided

by this Court in Boggs v. Boggs, 510 U.S. 833, 117 S. Ct.

1754 (1997), held that the Plan Administrator was not

required to recognize Ms. Byrne’s waiver of her beneficiary

interest under the Plan. Additionally, one member of the

panel, Judge Becker, in a concurring opinion also affirmed

on the same ground as the District Court’s opinion,

specifically that plan administrators may not look beyond

the plan documents in connection with the administration of

2. On July 7, 2003, Plaintiff filed an Amended Complaint that

is substantially the same as his original Complaint except that it

correctly named New Jersey Natural Gas Company, the Administrator

of the Plan, as the defendant.

8

an ERISA qualified plan, citing 29 U.S.C. § 1104(a)(1)(D).

Judge Becker explained that a rule which permitted

consideration of documents outside the plan would

undermine one of the principle goals of ERISA that “plans

be uniform in their interpretation and simple in their

application,” citing H.R. Report 93-533 (1974), 1974 US.

Code Congressional and Administrative News 4639, 4650.

One member of the panel, Judge Fuentes, dissented, finding

that, under federal common law, waivers that are sufficiently

specific may be recognized by plan administrators.

Plaintiff filed a petition for rehearing en banc. By Order

dated October 13, 2005, the petition was denied.

REASONS FOR DENYING THE PETITION

PLAINTIFF’S PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED AS THIS

COURT’S RULINGIN BOGGS v. BOGGS CONTROLS

THE OUTCOME OF THIS CASE AND INDICATES

THAT THE MINORITY RULE IS CORRECT

Certiorari should be denied in this case because this

Court in Boggs v. Boggs has already resolved the central issue

in this case as to which the circuits are split, and the Third

Circuit, following Boggs, correctly ruled in the case at bar.

As Plaintiff pointed out in his Petition, the Circuit Courts of

Appeals are split regarding the issue of whether plan

administrators may recognize a waiver contained in a divorce

decree as a basis for changing the participant’s designation

of a plan beneficiary. A so-called “majority rule” and

“minority rule” have developed on the issue — under the

majority rule, the courts look to federal common law to

determine whether an external waiver is sufficiently specific

9

to be valid; under the minority rule, the courts require

administrators to adhere strictly to plan documents and ignore

external waivers except in limited circumstances specified in

ERISA. Compare Hill v. AT&T, 125 F.3d 646, 650 (8th Cir.

1997); Estate of Altobelli v. International Bus. Mach. Corp.,77

_ F.3d 78, 80 (4th Cir. 1996); Brandon v. Travelers Ins. Co., 18

F.3d 1321, 1326 (Sth Cir. 1994), cert. denied, 513 U.S. 1081,

115 S. Ct. 732 (1995); Fox Valley & Vicinity Constr. Workers

Fund v. Brown, 897 F.2d 275, 280 (7th Cir.) (en banc), cert.

denied, 498 U.S. 820, 111 S. Ct. 67 (1990), with Krishna v.

Colgate Palmolive Co., 7 F.3d 11, 16 (2d Cir. 1993); and

McMillan v. Parrot, 913 F.2d 310 (6th Cir. 1990).

However, this Court’s decision in Boggs v. Boggs resolved

the “split” among the circuits and clearly indicated that the

minority rule is the correct one. Further, Circuit Courts

considering this and similar issues since Boggs have relied upon

it for guidance. See, e.g., Branco v. UFCW-Northern California

Employers Joint Pension Plan, 279 F.3d 1154 (9th Cir. 2002);

Metropolitan Life Ins. Co. v. Pettit, 164 F.3d 857 (4th Cir. 1998);

Mattei v. Mattei, 126 F.3d 794 (6th Cir. 1997).

In Boggs, this Court made three important pronouncements

regarding ERISA that effectively decided the issues in the case

at bar. First, this Court ruled that ERISA must be construed in

the strictest possible manner and departures from the strict terms

of the statute cannot be allowed. Boggs, 520 U.S. at 841. Second,

this Court ruled that beneficiary status may be conferred on

non-plan participants only in narrow circumstances, namely by

way of a QJSA or a Qualified Domestic Relations Order

3. But cf. Manning v. Hayes, 212 F.3d 866, 872-74 (Sth Cir.

2000) (continuing to follow majority rule in case involving life

insurance proceeds, distinguishing Boggs on the basis that Boggs

concerned an annuity in a community property state).

10

(“QDRO”). /d. at 851. Finally, the Court ruled that the “principle

objective” of ERISA is to protect plan participants and

beneficiaries. /d. at 845. As will be explained more fully below,

applying these principles in the context of the instant case

demonstrates that a plan administrator may not recognize a

waiver contained in a non-QDRO state domestic relations order,

such as the divorce decree issued to Mr. McGowan and Ms.

Byrne in Florida in 1999.

A. Under Boggs, ERISA must be construed in the

strictest manner possible.

In Boggs, this Court acknowledged that ERISA is an

intricate and comprehensive statute the provisions of which

must be carefully followed and strictly construed. /d. at 841.

This Court also instructed that ERISA was carefully and

deliberately created by Congress to protect the economic

security of surviving spouses, and its provisions must be

strictly construed with that goal in mind.‘ /d. at 843.

1. Under Boggs, Plan Administrators are

Bound by the Terms of the Plan

In the case at bar, it is undisputed that the Plan is an

“employee pension benefit plan,” see 29 U.S.C. § 1002(2),

and is thus governed by ERISA’s provisions. 29 U.S.C.

§ 1003. Under ERISA, “every employee benefit plan” must

be “established and maintained pursuant to a written

instrument.” 29 U.S.C. § 1102(a)(1). In addition, ERISA

4. Of note, prior to Boggs, cases following the majority rule

held that resorting to federal common law was proper because ERISA

is silent as to what constitutes a valid waiver. Boggs shows that this

rationale is flawed. ERISA is silent as to what constitutes a waiver

because it prohibits plan administrators from looking at external

documents other than a QDRO.

11

specifies the responsibilities that fiduciaries, such as the

Company,° owe to plan participants and beneficiaries. In

particular, ERISA requires that fiduciaries, in administering

qualified plans, discharge their duties “in accordance with

the documents and instruments governing the plan insofar

as such documents and instruments are consistent with the

provisions of this [statute].” 29 U.S.C. § 1104(a)(1)(D). Thus,

in light of this Court’s instruction in Boggs that ERISA must

be carefully followed and strictly construed, the Company is

required to operate the Plan strictly in accordance with the

terms of the Plan and may not exercise its discretion to

administer the Plan in any other manner.

2. Based on Boggs, the Plan must follow the

designation on the QJSA

ERISA requires the Plan to pay benefits to plan

participants who are married on their annuity starting date

in the form of a QJSA. 29 U.S.C. § 1055. A QJSA is defined

as an annuity for the life of a married 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 annuity which is payable during the joint lives of the

participant and spouse. 29 U.S.C. § 1055(d); 26 U.S.C.

§ 417(b). In the case at bar, Plaintiff received his retirement

benefit in the form of a QJSA. ERISA contains specific rules

as to when and how a QJSA payable to a spouse can be

waived and revoked (so that the spouse is no longer the

‘contingent participant).

ERISA provides that a participant “may elect at any time

during the applicable election period” to waive the QJSA

5. The Company is a fiduciary of the Plan due to its status as

Plan Administrator. See 29 U.S.C. § 1002(21): the Plan Section 9.1.

12

form of benefit. 29 U.S.C. § 1055(c)(1). For purposes of the

QJSA, the “applicable election period” is defined as the “90-

day period ending on the annuity starting date.” 29 U.S.C.

§ 1055(c)(7) (emphasis added).

Regulations promulgated under ERISA underscore the

requirement that any spousal waiver of a QJSA form of benefit

must occur in advance of the annuity starting date:

The annuity starting date is . . . used to determine

when a spouse may consent to and a participant may

waive a QJSA. A waiver is effective only if it is

made... before the annuity starting date.

Treas. Reg. Section 1.401(a)-20, Q&A-10(a) (emphasis added).

Section 8.1 of the Plan conforms to this requirement in

that it provides that the period during which a participant may

select an optional form of benefit (which requires written consent

of spouse) begins not more than 90 days before a married

participant may commence receipt of his retirement allowance,

and ends on the date his benefits are to commence.

Thus, even if the language in Plaintiff’s Marital Settlement

Agreement could be interpreted as a valid waiver of Ms. Byrne’s

right to be the contingent participant of any death benefits

payable under the Plan (which Defendant contends is not the

case), Defendant cannot recognize the waiver because Plaintiff's

benefits had already commenced.

The Treasury Regulations specifically contemplate this

result, even wherein a participant is divorced subsequent to his

or her annuity starting date:

If a participant dies after the annuity starting date,

the spouse to whom the participant was -

13

married on the annuity starting date is entitled

to the QJSA protection. The spouse is entitled

to this protection (unless waived and consented

to by such spouse) even if the participant and

spouse are not married on the date of the

participant’s death, except as provided in a

[qualified domestic relations order].

Treas. Reg. Section 1.401(a)-20, Q&A-25(b)(3) (emphasis _

added). As underscored above, the Regulations clearly

provide that the spouse to whom a participant is married on

his annuity starting date is entitled to joint and survivor

annuity protection even if a divorce subsequently occurs.

While the Regulations do recognize that the spousal

protection can be “waived and consented to” by the spouse,

that waiver is effective only if it is made before the annuity

starting date or pursuant to a QDRO, as provided in the

Regulations cited supra. See Treas. Reg. Section 1.401(a)-

20, Q&A-10.°

In Boggs, this Court recognized that the provisions of

ERISA must be strictly construed. Thus, under Boggs, a plan

participant cannot change his beneficiary designation unless

(1) that participant designates a new contingent beneficiary

in accordance with the applicable requirements of the plan

prior to the commencement of benefits, or (2) he thereafter

obtains a QDRO.

6. It is undisputed that Plaintiff could have obtained a QDRO,

but, for reasons never disclosed, he elected not to do so.

14

B. Boggs held that the anti-alienation provisions of

ERISA prohibit the conferring of beneficiary

status on non-plan participants except in certain

circumstances.

This Court recognized in Boggs that the anti-alienation

provisions of ERISA prohibit the conferring of beneficiary

status under an ERISA plan on non-participants except in

narrow circumstances, namely by way of a QJSA ora QDRO.

See Boggs, 520 U.S. at 847 (“Apart from these detailed

provisions, ERISA does not confer beneficiary status on non-

participants by reason of their marital or dependent status.”’).

The Court emphasized that the QJSA and the QDRO are the

only exceptions to the anti-alienation provisions of ERISA,

which provide that “each pension plan shall provide that

benefits provided under the plan may not be assigned or

alienated.” 29 U.S.C. § 1056(d)(1). According to Boggs,

“ERISA’s pension plan anti-alienation provision is mandatory

and contains only two explicit exceptions, [the QJSA and

QDRO], which are not subject to judiciz" expansion.”

Boggs, 520 U.S. at 851 (emphasis added).

Thus, according to Boggs, non-QDRO state domestic

relations orders (such as the divorce judgment in the instant

case) cannot confer beneficiary status on a non-participant,

no matter how clear the waiver language is in such order. In

light of Boggs, the cases following the “majority rule” and

holding that waivers in non-QDRO state domestic re sitions

orders can confer beneficiary status on non-participants

clearly were wrongly decided.

15

C. Under Boggs the “principle objective” of ERISA

is to protect plan participants and beneficiaries

Boggs exp'icitly holds that the “principle object of

[ERISA] is to protect plan participants and beneficiaries.

Id. at 845. Therefore, any holding that would allow a non-

participant/non-beneficiary, such as Plaintiff’s Current Wife,

to acquire an interest in benefits under « “lan other than by

way of a QJSA would conflict with this “principle objective

of ERISA.”

CONCLUSION

Plaintiff’s Petition for Writ of Certiorari should be denied

because in Boggs v. Boggs this Court already settled the split

among the circuits referenced in Plaintiff’s Petition, and the

Third Circuit properly followed Boggs in the case at bar.

Respectfully submitted,

RICHARD C. MARIANI

Counsel of Record

SABRINA P. ROCKOFF

OGLETREE, DEAKINS, NASH,

SMOAK & Stewart, P.C.

Attorneys for Respondents

10 Madison Avenue, Suite 402

Morristown, New Jersey 07960

(973) 656-1600