Petition for Writ of Certiorari — Carmona v. Carmona
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Supreme Court, U.S
FILEN
10-784 UEC 9 - 7910
No OFFICE OF THE CLERK
In The
Supreme Court of the dnited States
JANIS CARMONA
Petitioner
JUDY CARMONA,
HILTON HOTELS CORPORATION RETIREMENT PLAN
Respondents
On Petition for Writ of Certiorart to the
United States Court of Appeals for the Ninth Circuct
PETITION FOR WRIT OF CERTIORARI
SCOTTLYNN J HUBBARD IV
Counsel of Record
LAW OFFICES OF LYNN
HUBBARD
12 WILLIAMSBURG LANE
CHICO, CALIFORNIA 95926
(530) 895-3252
lawofchaos@aol.com
December 9, 2010
Counsel for Petitioner
QUESTION PRESENTED
The Rooker-Feldman doctrine recognizes that
federal district courts do not have subject matter
jurisdiction to hear appeals from = state court
decisions. Precisely stated, the doctrine bars “cases
brought by state-court losers complaining of
injuries caused by state-court judgments rendered
before the district court proceedings commenced
and inviting district court review and rejection of
those judgments.” Hxxon Mobil Corp. v. Saud
Basic Inds. Corp., 544 U.S. 280, 284 (2005). A split
has developed between the Courts of Appeal,
however, about whether state court judgments over
subject matter that falls within the federal courts’
exclusive jurisdiction may be collaterally attacked
in a district court, without running afoul of the
doctrine. In an amended published opinion, the
United States Court of Appeals for the Ninth
Circuit, held that Rooker-Feldman barred ERISA
claims brought under 29 U.S.C. § 1132(a)(3), which
fall within the exclusive purview of the federal
courts under 29 U.S.C. § 1182(e)(1), because the
plaintiff failed to timely remove her original state
court divorce proceeding and a judgment had
already been entered.
The question presented is:
Whether the court of appeals correctly applied
the long-settled rule of law that, where Congress
explicitly grants exclusive jurisdiction to federal
courts, Rooker-Feldman cannot bar collateral
review of a state court order that improperly
decided a question falling exclusively within the
jurisdiction of the federal courts.
PARTIES TO THE PROCEEDINGS'!
Pursuant to Rule 14.1(b), the following list
identifies all of the parties appearing here and
before the United States Court of Court of Appeals
for the Ninth Circuit
The petitioner here, and plaintiff below, is Janis
Carmona, eighth wife to decedent Lupe Carmona
The respondents here, and defendants below,
are Judy Carmona, Lupe’s ninth wife, and the
Hilton Hotels Corporation Retirement Plan
Nevada _ Resort Association Internationa)
Alhance of Theatrical and Stage Employees Local
720 Pension Trust filed a cross-claim against Judy
Carmona, who was the cross-defendant to that
action.
| Because they share the same last name, th
Carmonas - viz., Lupe, Janis, and Judy © will be referred to by
their first names in this petition
Lil
TABLE OF CONTENTS
Question Presented
Parties to the Proceedings | ,
Table of Contents ... 1
Table of Authorities \
Petition for Writ of Certiorari
Opimons Below.
Statement Of Jurisdiction
Statutory and Regulatory Provisions
Statement of Case /
Summary of Argument. : | 14
Argument... e ears 16
| Despite this Court’s efforts in Mxxon Mobil
Corp., a Circuit-split remains over whether
the Rooker-Feldman doctrine bars a “state
court loser” from collaterally attacking a
state court judgment in the United States
District Court, when Congress grants
federal courts exclusive jurisdiction over
the subject matter of that judgment. 16
I}. The Ninth Circuit created a circuit-split. by
requiring ERISA participants and
beneficianies to remove their garden-variety
divorce proceedings (within thirty-days of
receiving the complaint) to federal court,
regardless of whether the only federal issue
is a potential conflict preemption defense, or
lose the nght to proceed in federal court. with
Conclusion
Appendix
Appendix A
Appendix B:
Appendix C:
Appendix D:
Appendix It:
Appendix F:
any future ERISA claim. RUM padre Pee ne a9
yA
Ninth Circuit Amended
Opinion (May 4, 2010)............ La
District Court Memorandum,
(Sept. JO, ZUGD)............0........ 448
Nevada Supreme Court Order,
Gjct. Zi. ZOU) ..cecevess. oe.
Ninth Circuit Order re
Rehearing,
(Sept. 10, 2010).....................65a
Ninth Circuit Order Staying
Mandate,
ae 4 eS |) ee 68a
Lupe Complaint for Divorce,
PERG ERED oikicwcsnccsvuney vaceu: 70a
Appendix G:
Janis Answer to Complaint
and Counter-claim,
CPR Be, Be bei ciscascsscassincnccees 76a
TABLE OF AUTHORITIES
Cases
1975 Salaried Retirement Plan for Eligible
Kmployees of Crucible, Inc. v. Nobers,
968 F.2d 401 (8rd Cir. Pa. 1992) ...
Aetna Health Inc. v. Davila,
542 U.S. 200 (2004)............ a
Beneficial Nat'l Bank v. Anderson,
539 U.S. 1 (2008)... cccccccccccceceeeee.
Carmona v. Carmona,
2003 WL 25914267 (Nev. Oct. 21, 2003)
Carmona v. Carmona,
541 U.S. 989 (April 19, 2004).
Carmona v. Carmona,
044 F.3d 988 (9 Cir. Sept. 17, 2008)
Vv vy m
Carmona uv. Carmona,
603 F.3d 1041 (9th Cir. May 4, 2010) ..
Carmona v. Hilton Hotels Corp.
Retirement Plan,
2005 WL 6563968 (D.Nev. Sept. 30, 2005) ...
Caterpillar, Inc. v. Williams,
BS UTES. TH CI io nsevncinsiccnecsesscsece: ineeaes
District of Columbia Court of Appeals v.
Feldman,
BD EF. BG Co csncvccecenicncennss
1, 10
Vi
Exxon Mobil Corp. v. Saudt Basic Inds. Corp.,
544 U.S. 280 (2005)............... 1, 12, 16,
Franchise Tax Bd. v.
Construction Laborers Vacation Trust.
OS Oe eee.
General Motors Corp. v. Buha,
623 F.2d 455 (6th Cir. 1980)
Gilbert v. Burlington Industries, Inc.,
765 F.2d 320 (2nd Cir. 1985)
Henrichs v. Valley View Dev
474 F.3d 609 (9th Cir. 2007)
Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975)...
In re Ferren,
203 F.3d 559 (8th Cir. 2000).
In re Gruniz,
202 F.3d 1074 (9th Cir. 2000) .... ¥?
In re James,
940 F.2d 46 (8rd Cir. 1991)
Lance v. Dennis,
546 U.S. 459 (2006)......
Leonelli v. Pennwalt Corp.,
887 F.2d 1195 (2nd Cir. 1989)...........
Louisville & Nashville R.R. v. Mottley,
911 U.S, 149 (1908) ..noncncceccccsscsssoscocsess:
20
i
Noel v. Hall,
341 F.3d 1148 (9th Cir. 2003) 13
Rivet v. Regions Bank,
522 U.S. 470 (1988) . 19, 20
Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923) ..cccccccccccceee: | 1G
Singleton v. Fifth Third Bank (In re Singleton)
230 B.R. 533 (B.A.P. 6th Cir. 1999). ... 7
Total Plan Services v.
Texas Retailers Association,
925 F.2d 142 (5th Cir. 1991).. ) 14
Verizon Md., Inc. v. Pub. Serv. Comm'n of Md.,
ee OF, GO CI rsdn scvcsesicnsaces: iets vee, 1’
Yoon v. Fordham Univ. Faculty & Admin. Ret.
Plan, 263 F.3d 196 (2nd Cir. 2001)........ ee
Statutes
28 U.S.C. § 1257. 16, 18 4
> AUR 8 eS }. * PR aD ras ae 19
28 U.S.C. § 1441 (a) .eecccccccecceeeeeee- oe yee 19
Le Fem SO eee: ee
28 U.S.C. § 1446(b)....... cradsetaiecnecseeseac ll
28 U.S.C. § 1254 (1) ..ccccccccceeeeeeeee- TR:
Vill
ee oo cave cceccabacncnccacnsceses eet 14
29 U.S.C. § 1132(a)....... AAO .10, 15
29 U.S.C. § 1132(a)(1)(B) | | 10, 13, 22
29 U.S.C. § 1132(a)(3).... eS ee
29 U.S.C. § 1132(e)(1).... 11, 12, 17,18
29 U.S.C. § 1144 (a).... visestedeus yee at
Other Authorities
The Division of Retirement Benefits Through
Qualified Domestic Relations Orders,
United States Department of Labor, Employee
Benefits Security Administration, available
http://www.dol.gov/ebsa/publications/qdros. ht
Statistical Abstract of the United States: 2006,
Table 72, U.S. Census Bureau, available
http://www.census.gov/prod/2005pubs/06statab
PE BI cic cuunsstssortsesavescs FA OO EE DRED 7
Statistical Abstract of the United States: 2008,
Table 57, U.S. Census Bureau, available
http://www.census.gov/compendia/statab/2010/
I nn cssccncpuavdnncs nies eed, 7
PETITION FOR WRIT OF CERTIORARI
Janis Carmona respectfully petitions for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit in
this case.
OPINIONS BELOW
The amended opinion of the court of appeals is
reported at 603 F.3d 1041. Pet. App. la-43a. The
original opinion is reported at 544 F.3d 988. The
relevant opinions of the district court are
unreported but available at 2005 WL 6563968. Pet.
App. 44a-55a. The unpublished Nevada Supreme
Court opinion cited in these opinions can be found
at 2003 WL 25914267. Pet. App. 56a-64a. This
Court denied a petition for writ of certiorari to
review that unpublished Nevada opinion on April
19, 2004, which can be found at 541 U.S. 989.
STATEMENT OF JURISDICTION
The judgment of the court of appeals was stayed
on September 21, 2010. Pet. App. 68a-69a. A
petition for rehearing was denied on September 10,
2010. Pet. App. 65a-67a. The petition was timely
filed on June 16, 2010. The jurisdiction of this
Court rests on 28 U.S.C. § 1254(1).
STATUTORY AND REGULATORY
f PROVISIONS
Section 1257 of Title 28 of the United States
Code provides:
State courts; certiorari
(a) Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had, may be reviewed by the
Supreme Court by writ of certiorari where
the validity of a treaty or statute of the
United States is drawn in question or where
the validity of a statute of any State is drawn
in question on the ground of its being
repugnant to the Constitution, treaties, or
laws of the United States, or where any title,
right, privilege, or immunity is specially set
up or claimed under the Constitution or the
treaties or statutes of, or any commission
held or authority exercised under, the United
States
(b) For the purposes of this section, the term
"highest court of a State" includes the
District of Columbia Court of Appeals.
reese e Reese es
Section 1331 of Title 28 of the United States
Code provides:
Federal question
The district courts shall have _ original
jurisdiction of al! civil actions arising under the
Constitution, laws, or treaties of the United
States.
Section 1441 of Title 28 of the United States
Code provides in pertinent part:
Actions removable generally
(a)
Except as otherwise expressly provided by
Act of Congress, any civil action brought in a
State court of which the district courts of the
United States have original jurisdiction, may
be removed by the defendant or the
defendants, to the district court of the United
States for the district and division embracing
the place where such action 1s pending. For
purposes of removal under this chapter [28
U.S.C. §§ 1441 et seq.], the citizenship of
defendants sued under fictitious names shall
be disregarded.
) Any civil action of which the district courts
have original jurisdiction founded on a claim
or right arising under the Constitution,
treaties or laws of the United States shall be
removable without regard to the citizenship
or residence of the parties. Any other such
action shall be removable only if none of the
parties in interest properly joined and served
as defendants is a citizen of the State in
which such action is brought. ...
Kee KeKe KEKE Kr KEK
Section 1446 of Title 28 of the United States
Code provides in pertinent part:
Procedure for removal
(b) The netice of removal of a civil action or
proceeding shall be filed within thirty days
after the receipt by the defendant, through
service or Otherwise, of a copy of the initial
pleading setting forth the claim for relief
upon which such action or proceeding is
based, or within thirty days after the service
of summons upon the defendant if such
initial pleading has then been filed in court
and is not required to be served on the
defendant, whichever period is shorter
Section 1132 of Title 29 of the United States
Code provides in pertinent part:
Civil enforcement
(a) Persons empowered to bring a civil action. A
civil action may be brought -
(1) by a participant or beneficiary
(A) for the relief provided for in
subsection (c) of this section, or
(B) to recover benefits due to him under
the terms of his plan, to enforce his rights
under the terms of the plan, or to clarify
his rights to future benefits under the
terms of the plan;
(3) by 2 participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which
violates any provision of this subchapter
or the terms of the plan, or (B) to obtain
other appropriate equitable relief (i) to
redress such violations or (11) to enforce
any provisions of this subchapter or the
terms of the plan;
(e) Jurisdiction.
(1) Except for actions under subsection
(a)(1)(B) of this section, the district courts
of the United States shall have exclusive
jurisdiction of civil actions under this title
brought by the Secretary or by a
participant, beneficiary, fiduciary, or any
person referred to in section 101(f)(1) [29
U.S.C. § 1021()01)|. State courts of
competent jurisdiction and district courts
of the United States. shall have
concurrent jurisdiction of actions under
paragraphs (1)(3B) and (7) of subsection (a)
of this section.
Section 1144 of Title 29 of the United States
Code provides in pertinent part:
Other laws
(a) Supersedure; effective date. Except as
provided in subsection (b) of this section, the
provisions of this title and title IV shall
supersede any and all State laws insofar as
they may now or hereafter relate to any
employee benefit plan described in section
4(a) [29 U.S.C. § 1003(a)| and not exempt
under section 4(b) [29 U.S.C. § 1003(b)]. This
section shall take effect on January 1, 1975.
te KKK HK OK
STATEMENT OF CASE
More than 46 million private wage and salary
workers are currently covered by employer
provided retirement plans in the United States.? Of
those workers, roughly 38% over 17 million
Americans - distribute retirement benefits through
divorce proceedings.* Included in this statistic are
Lupe and Janis Carmona (nee Kester). Lupe
worked for the International Alliance of Theatrical
Stage Employees (IATSE) and the Hilton Hotel
Corporation (Hilton), and was eligible for pension
benefits from both employers. Pet. App. 57a. He
elected a qualified joint and survivor annuity
(QJSA) option for married couples from his
pensions, and listed Jants - his then current and
eighth wife as his survivor beneficiary. /bid.
Under the terms of these plans, Janis would receive
a portion of Lupe's monthly pension benefits upon
his death if she survived him. /d at 9a. Lupe retired
in 1992 and began drawing his pensions. But with
2 United States Department of Labor, Employee
Benefits Security Administration, The Division of Retirement
Benefits Through Qualified Domestic Relatuons Orders, at p.
1, available http://www.dol.gov/ebsa/publications/qdros. htm!
(last viewed December 6, 2010) C(QDRO manual’)
3 US. Census Bureau, Statistical Abstract of the
United States 2006, Table 72 available
http://www.census gov/prod/2005pubs/0G6statab/vitstat.pdf
(last viewed Dec. 2, 2010) (roughly 50% of marriages end in
divorce); U.S. Census Bureau, Statistical Abstract of the
United States: 2008, Table 57, available
http://www.census.gov/compendia/statab/20 10/tables/10s0057.
pdf (last viewed Dec. 2, 2010) (roughly 75% of individuals
married or divorced).
8
retirement came the unpleasant realization that
Janis and Lupe did not like each other, and Lupe
filed a complaint for divorce on October 27, 1994,
seeking, inter alia, his pension benefits from [ATSE
and Hilton. Pet. App. 70a-75a. Janis answered that
complaint on November 23, 1994, and counter-
claimed that she had a community property
interest in both pensions. Pet. App. 76a-85a.
Neither party included allegations that their rights
to benefits under the plans, or that their statutory
rights under ERISA, had been violated. /bid. Nor
did the couple name the [ATSE and Hilton plans,
their fiduciaries or their administrators as parties
to the divorce, or join them in later proceedings.
Ibid. Lupe was eventually awarded his pensions as
separate property, but ordered to pay Janis $1,500
for her marital portion. Pet. App. 57a.
Shortly after his divorce from Janis in 1997,
Lupe married Judy Carmona (nee Walkington) and
attempted to change the designation of his survivor
beneficiary from Janis to Judy. Ibid.
Representatives of both Hilton and = IATSE,
however, told Lupe that he could not change his
beneficiary after retiring. Jbid. The Hilton
representative added that ERISA prohibited such a
change unless a qualified domestic relations order
(QDRO), which “waives the spouse’s right to
survivor benefits [if] served on the Plan,” was
issued. Jbid. Lupe asked the Nevada family court to
enter a QDRQO _ ordering his' pension plan
administrators to grant his election of a new
survivor beneficiary. Jbid. At first, it refused. Pet.
App. 58a. But after Lupe's death, the family court
relented, finding that the parties had agreed that
Lupe's retirement benefits, including the survivor
7
benefits, were his sole and separate property. Pet.
App. 58a. The family court thus ordered the plan
administrators to change the survivor beneficiary
in accordance with Lupe's request, and if they did
not, the family court stated that it would “Order
the establishment of a Constructive Trust for the
benefit of Lupe's designated beneficiary wherein
the survivorship funds, if received by Janis, will be
held in trust for receipt by Lupe's designated
beneficiary.” Ibid. Because neither plan had
appeared in the divorce proceedings, Pet. App. 53a,
the family court eventually ordered Janis to
establish a constructive trust of the survivorship
funds from Lupe's-retirement plans for the benefit
of Judy. Pet. App. 58a.
Janis appealed to the Nevada Supreme Court,
claiming that ERISA, 1e., 29 U.S.C. § 1144(a),
preempted the family court's transfer of her
surviving spouse interest to Judy. Pet. App. 59a-
64a. Recognizing that both of Lupe's pensions were
regulated by ERISA, and admitting that the
interplay between ERISA and state law is not
always clear, the Nevada Supreme Court
nevertheless affirmed the judgment on the grounds
that neither the transfer nor the constructive trust
violated ERISA. Ibid. Specifically, the Nevada
Supreme Court held that Janis had waived her
interest by accepting $1,500 from Lupe and that a
constructive trust was a_ perfectly acceptable
instrument to transfer that interest. Pet. App. 60a
61. The Nevada Supreme Court also affirmed the
family court’s order that Janis pay Judy $15,000 in
attorney fees under state law, based on “the various
and extensive proceedings” surrounding her
opposition to that transfer. Pet. App. 64a. A petition
10)
to this Court met with a similar fate. Pet. App.
48a, citing 541 U.S. 989 (Janis’ petition for
certiorari denied).
While the appeal of her federal conflict
preemption defense was pending in the Nevada
Supreme Court, Janis filed a complaint in the
United States District Court for the District of
Nevada based on an unlawful denial of plan
benefits under 29 U.S.C. § 1132(a)(1)(B). Zbid. But
the district court dismissed that lawsuit under the
Rooker-Feldman doctrine on the grounds that
KRISA permitted state and federal courts to
exercise concurrent jurisdiction over ERISA
lawsuits for benefits, and the district court would
not “relitigate issues where another court had
jurisdiction and made a final determination.” Pet.
App. 48a. Janis then attempted to remove her
divorce proceedings to federal court — even though
neither she nor her ex-husband had alleged an
ERISA claim and the only federal issue was a
conflict preemption defense, (29 U.S.C. §§ 1132(a),
1144(a), respectively) — in an attempt to preserve
her rights under ERISA. Pet. App. 49a. But. she was
again rebuked by the district court, which found
that she had failed to timely remove her divorce
proceedings and, thus, had waived the right to
remove her ERISA claim. Jbid. Once again, the
district court cited to the Rooker-Feldman doctrine
and told Janis that a “United States District Court
does not have the authority to review a final
judgment” of a state court proceeding. bid.
1]
Undaunted, Janis filed a third federal lawsuit to
prevent the unlawful transfer of her surviving
spouse interest in the QJSA. Pet. App. 49a. This
time, however, she alleged that her statutory rights
under ERISA — not her right to benefits under the
terms of the plan — were violated and, thus, she
was entitled to equitable relief under 29 U.S.C. §
1132(a)(3). Jbid. Unlike her previous lawsuits, this
claim could not be prosecuted in state court, as
ERISA grants federal courts exclusive jurisdiction
over these matters. 29 U.S.C. § 1132(e)(1). Pet. App.
49a, 5la. Another distinction was that, for the first
time, Janis named the Hilton and IATSE plans and
fiduciaries as defendants (along with Judy). Having
finally appeared, the IATSE trustees filed a cross-
claim for declaratory relief against Judy averring
parallel ERISA allegations, viz., the Nevada family
court’s involuntary transfer of Janis’ surviving
spouse interest to Judy violated ERISA and was,
thus, preempted. Pet. App. 49a-50a. But, once
again, the district court refused to entertain Janis’
lawsuit because of the Rooker-Feldman doctrine.
et. App. 49a-52a.
Acknowledging that Rooker-Feldman did_ not
apply when Congress grants exclusive jurisdiction
to the federal courts, and that Congress granted
federal courts exclusive jurisdiction over ERISA
claims brought under 29 U.S.C. § 1132(a)(3), the
district court nevertheless dismissed Janis’ third
lawsuit for want of subject matter jurisdiction on
two grounds: First, no matter how artfully Janis
worded her complaint, she was still inviting the
district court to review and reject the Nevada
Supreme Court determinations, which the district
court could not do under this Court’s holding in
12
Exxon Mobil Corporation v. Saudi Basic Inds.
Corp., 544 U.S. 280, 284 (2005). Pet. App. 50a-51a.
Second, because the Nevada family court had
concurrent jurisdiction over her ERISA claim for
benefits, t.e., 29 U.S.C. § 1132(e)(1), Janis implicitly
subjected herself to the final determination of her
29 U.S.C. § 1132(a)(3) claim, and waived the right
to have her ERISA claim heard in federal court by
failing to remove her original divorce proceedings
before the thirty-day deadline expired under 28
U.S.C. § 1446(b). Pet. App. 5la-52a. And even
though it denied Judy’s motion to dismiss IATSE’s
cross-claim under the Rooker-Feldman doctrine on
the grounds that it (the plan) could not qualify as
“state court loser” because it was not a party to the
divorce proceedings, the district court eventually
concluded that the Nevada family court’s transfer
of Janis’ surviving spouse interest in the QJSA was
proper and, thus, dismissed that cross-claim on the
merits. Pet. App. 12a.
Both IATSE and Janis appealed to the Ninth
Circuit, which — in a strange turn of events
agreed that the Nevada family court had violated
ERISA by unlawfully transferring Janis’ surviving
spouse interest in the QJSA and, thus, ran afoul of
ERISA’s conflict preemption. Pet. App. 19a-42a.
But despite affirming IATSE’s cross-claim on the
merits, the court of appeals refused to reverse the
district court’s decline of subject matter jurisdiction
over Janis ERISA claim under the _ Rooker-
Feldman doctrine. Pet. App. 13a-19a. Specifically,
the Ninth Circuit agreed with the district court
that Rooker-Feldman was applicable because, like
Feldman, Janis did not argue that either Judy or
Hilton caused her injury. Pet. App. 16a, citing
13
District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). Rather, Janis complained of a
“harm caused by a state court judgment that
directly withholds a benefit from [her] ... based on
an allegedly erroneous ruling by that court,” and
thus constituted an improper de facto appeal of a
state court judgment. Pet. App. 16a, quoting Noel v.
Hall, 341 F.3d 1148, 1163 (9th Cir. 2003). Finally,
the Ninth Circuit agreed with the district court
that, while her last lawsuit, as pleaded, arose
under the exclusive jurisdiction of federal courts,
when the parties proceeded initially, the state court
had concurrent jurisdiction to hear the ERISA
claim under 29 U.S.C. § 1132(a)(1)(B). Ibid. Since
Janis failed to remove those proceedings to federal
court, she implicitly subjected herself to the final
determination of the state court. Jbid. Because
Congress had established concurrent jurisdiction at
that time, the Ninth Circuit reasoned, it did not
intend to prevent the Rooker-Feldman
jurisdictional bar. /bid. “Although Janis may have
been right on the underlying substantive issue,” the
Ninth Circuit concluded, “she already had her day
in court on the question and, under the
circumstances, is barred under the _ Rooker-
Feldman doctrine from seeking recourse in federal
court at this time.” Pet. App. 42a.
It is from this tortured procedural history that
Janis has, once again, petitioned this Court for
certiorari.
14
SUMMARY OF ARGUMENT
There is a split in the Courts of Appeal over
whether the Rooker-Feldman doctrine prevents
United States District Courts from exercising
jurisdiction over cases brought by “state-court
losers” seeking federal court review of “state-court
judgments” on the grounds that Congress explicitly
granted exclusive jurisdiction of the subject matter
to federal courts.4 This split not only exists in
Bankruptcy appeals, it has now crept its way into
ERISA as the result of the decision handed down by
the Ninth Circuit in the instant action. The net
effect of that decision is to grant to state courts — by
way of a misapplication of the Rooker-Feldman
doctrine — the power to decide matters that fall
squarely within the exclusive purview of the federal
courts.
4 A similar circui:-split exists over the Anti-Injunction
Act, 28 U.S.C. § 2283, which prohibits district courts (with
certain exceptions) from “grant[ing] an injunction to stay
proceedings in a State court,” and whether that Act applies to
state court judgments that conflict with ERISA. See, e.g.,
General Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980),
citing Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 329
(2nd Cir. 1985) (Anti-Injunction Act applies to state
judgments that conflict with ERISA); but see also Total Plan
Services v. Texas Retailers Association, 925 F.2d 142, 145, n.2
(5th Cir. 1991) (rejecting Buha). Accord, 1975 Salaried
Retirement Plan for Eligible Employees of Crucible, Inc. v.
Nobers, 968 F.2d 401 (3rd Cir. Pa. 1992) (recognizing conflict
between circuits without deciding).
15
The panel also created both an intra-circuit split
and an inter-circuit-split — and ran afoul of this
Court’s precedent — by hoiding that Janis could
remove her divorce proceedings to federal court.
Under the removal statute, a case filed in state
court may be removed to federal court when it
“arises under” federal law. Normally, a cause of
action is deemed to arise under federal law only
when issues of federal law appear on the face of the
plaintiffs complaint. Removal is not permitted if
federal law provides only a defense, even if the
defense is that state law is preempted under
conflict preemption or ordinary field preemption
analysis. Under the “complete preemption”
doctrine, however, a claim that is brought under
state law is properly viewed as federal in character
and thus removable to federal court if Congress has
created an exclusive federal cause of action that
occupies the field in which the plaintiffs claim
arises. This doctrine has been applied in the ERISA
context where a state court action that comes
within the scope of 29 U.S.C. § 1132(a) is re-
characterized as an action arising under federal
law for purposes of removal jurisdiction. The Ninth
Circuit, however, carved out an exception for
ERISA cases, requiring plan participants and
beneficiaries to remove their state court divorce
proceedings to federal court within thirty-days of
receiving the complaint or forever lose their right to
have a federal court decide a question Congress
intended be exclusive to the federal courts.
16
ARGUMENT
I. Despite this Court’s efforts, a Circuit-split
remains over whether the Rooker-Feldman
doctrine bars a “state court loser” from
collaterally attacking a_ state court
judgment in the United States District
Court, when Congress grants federal
courts exclusive jurisdiction over the
subject matter of that judgment.
The Rooker-Feldman doctrine recognizes that
federal district courts do not have subject matter
jurisdiction to hear appeals from state court
decisions. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284, (2005); Rooker v. Fidelity
Trust Co., 263 U.S. 4138, 414-16 (1923). Precisely
stated, the doctrine bars “cases brought by state
court losers complaining of injuries caused by state-
court judgments rendered before the district court
proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon,
544 U.S. at 284. This jurisdictional bar is one of
congressional intent and not constitutional
mandate. Exxon, 544 U.S. at 291. The doctrine is
rooted both in 28 U.S.C. § 1257, which restricts the
federal judiciary's direct review of state court
judgments, and in notions of comity and federalism,
which presume that state courts are willing and
able to apply federal law and respect federal rights.
See Feldman, 460 U.S. at 483 n.16; Huffman uv.
Pursue, Ltd., 420 U.S. 592, 610-611 (1975). Despite
this Court’s recent efforts to clarify Rooker-
Feldman, see, e.g., Lance v. Dennis, 546 U.S. 459
(2006), Exxon, 544 U.S. at 284, a split remains in
the Courts of Appeal over whether that doctrine
bars a “state court loser” from collaterally attacking
a state court judgment in the United States District
Court, when Congress grants federal courts
exclusive jurisdiction over the subject matter of
that judgment.
There already exists a split in the circuits over
the question of bankruptcy courts reviewing state
court judgments. Compare, e.g., In re Gruntz, 202
F.3d 1074, 1079 (9th Cir. 2000) (en banc) (Circuits
accepting bankruptcy court exclusive jurisdiction to
review state court judgments under’ Rooker-
Feldman), and Jn re James, 940 F.2d 46, 52 (3rd
Cir. 1991); with, In re Ferren, 203 F.3d 559, 560
(8th Cir. 2000), and Singleton v. Fifth Third Bank
(In re Singleton), 230 B.R. 533 (B.A.P. 6th Cir.
1999). This split has now reached the shores of
ERISA. Under the Ninth Circuit’s holding in this
case, plan participants and beneficiaries lose the
right to have federal courts review state court
judgments — judgments which violate ERISA and
would otherwise be conflict- or field-preempted
despite a clear and unequivocal statement by
Congress that such claims be brought exclusively in
federal court. 29 U.S.C. §§ 1132(e)(1), 1144(a). Such
a decision not only runs afoul of Congressional
intent but also from this Court’s prior instruction,
which suggests that Rooker-Feldman provides no
protection from claims where Congress has
explicitly endowed federal courts with exclusive
jurisdiction. Verizon Md., Inc. v. Pub. Serv. Comm'n
of Md., 535 U.S. 635, 644, n.3, (2002) (noting that
“the Rooker-Feldman doctrine merely recognizes”
Congress’ choice of where to vest original
jurisdiction and appellate jurisdiction regarding
various matters); Exxon, 544 U.S. at 292, n.8&
13
(“Congress, if so minded, may explicitly empower
district courts to oversee certain. state-court
judgments and has done so, most notably, in
authorizing federal habeas review of state
prisoners petitions.”). Accord, Henrichs v. Valley
View Dev., 474 F.3d 609, 614 (9th Cir.), cert
denied, 552 U.S. 1037 (2007), citing Gruntz, 202
F.3d at 1079 (a state court judgment entered in a
case that falls within the federal courts’ exclusive
jurisdiction may be collaterally attacked in a
district court). Moreover, if Congress has the
authority to deny direct review of state court
judgments by United States District Courts under
28 U.S.C. § 1257, then the inference can be made,
and fairly so, that Congress must also have the
authority to grant sole and exclusive jurisdiction
over ERISA ciaims to those same district courts
under 28 U.S.C. § 1132(e)1). The Ninth Circuit
should not have presumed that a review of state
court judgments was inconsistent with the Rooker
Feldman doctrine, especially when those same
judgments clearly violate ERISA. In light of the
current circuit-split, Janis would ask the Court to
grant certiorari, and resolve this dispute once and
for all
19
Il. The Ninth Circuit created a circuit-split by
requiring ERISA participants and
beneficiaries to remove their garden-
variety divorce proceedings (within thirty-
days of receiving the complaint) to federal
court, regardless of whether the only
federal issue is a_ potential conflict
preemption defense, or lose the right to
proceed in federal court with any future
ERISA claim.
The Ninth Circuit also created a circuit-split by
carving-out an exception for plan participants and
beneficiaries initiating garden-variety divorce
proceedings in state court — Le., remove those
proceedings within thirty-days of receiving your
complaint, regardless of whether the only federal
issue is a potential conflict preemption defense — or
lose the right to proceed in federal court. This
exception runs afoul of the basic tenets regarding
removal from state to federal court. A civil action
filed in state court may only be removed to federal
court if the plaintiff's claim “aris[es] under” federal
law. 28 U.S.C. §§ 1331, 1441(a) and (b). An action
arises under federal law when a federal question
appears “on the face of the plaintiffs properly
pleaded complaint.” Caterpillar, Inc. v. Williams,
482 U.S. 386, 392 (1987); see Louisville & Nashville
R.R. v. Mottley, 211 U.S. 149, 152 (1908). A defense
is not part of a well-pleaded complaint; thus, when
federal preemption is only a defense, as is
ordinarily the case, preemption does not provide a
basis for removal. Aetna Health Inc. v. Davila, 542
U.S. 200, 207 (2004). That is so “even if the defense
is anticipated in the plaintiff's complaint, and even
if both parties admit that the defense is the only
20
question truly at issue in the case.” Rivet v. Regions
Bank, 522 U.S. 470, 475 (1988), quoting Franchise
Tax Bd. v. Construction Laborers Vacation Trust,
463 US. 1, 14 (1983). Ordinary preemption,
however pervasive or obvious, “does not transform
the plaintiff's state-law claims into federal claims
but rather extinguishes them altogether.” Rivet,
922 U.S. at 476.
An “independent corollary” to that rule is the
principle that “a plaintiff may not defeat removal
by omitting to plead necessary federal questions.”
Franchise Tax Bd., 463 U.S. at 22. Thus, “if a
federal cause of action completely preempts a state
cause of action any complaint that comes within
the scope of the federal cause of action necessarily
‘arises under’ federal law.” Jd. at 24. In those
circumstances, “a claim which comes within the
scope of that [federal] cause of action, even if
pleaded in terms of state law, is in reality based on
federal law.” Beneficial Nat'l Bank v. Anderson, 539
U.S. 1, 8 (2003).
The term “complete preemption” can_ be
misleading; it differs from ordinary, defensive
preemption not merely in degree, but in kind.
Complete preemption occurs when (1) Congress has
created an exclusive federal cause of action and, (2)
under the facts set out in the complaint, the
plaintiffs claim comes within the scope of that
cause of action. Beneficial Nat'l Bank, 539 U.S. at
8-9; see Franchise Tax Bd., 463 U.S. at 24;
Caterpillar, 482 U.S. at 388-399. That conclusion
follows from the plain language of the removal
statute. When federal law provides a cause of
action that occupies the field in which the plaintiff's
claim arises, the plaintiff's claim can arise only
under federal law. And, as described above, the
text of the removal statute clearly provides that
any action “arising under” federal law “shall be
removable” to federal court. 28 U.S.C. § 1441(b).
Consequently, a state-law claim “may not be
removed to federal court on the basis of a federal
defense, including the defense of pre-emption, even
if the defense is anticipated in the plaintiff's
complaint, and even if both parties concede that the
federal defense is the only question truly at issue.”
Caterpillar, 482 U.S. at 393.
The complete preemption rule advances the
purposes of the removal _ statute without
encroaching on the legitimate rights of plaintiffs or
offending principles of comity and _ federalism.
Federal question removal jurisdiction is designed
both to promote the accurate and uniform
interpretation of federal law by ensuring the
availability of a forum with special expertise in
that law and to protect the federal rights of
defendants. The complete preemption rule
advances those purposes because it ensures that
defendants retain access to the district courts to
litigate federal claims even when plaintiffs —
artfully or inadvertently — incorrectly characterize
those claims as arising under state law. At the
same time, the rule also respects the autonomy of
state courts. Removal is not permitted if federal
law provides only a defense — even if the defense is
that state law is preempted under conflict
preemption or ordinary field preemption analysis.
‘The complete preemption rule thus preserves both
state court primacy in resolving questions of state
law, and state court authority to determine in the
Fe
first instance whether state law must yield to
contrary federal law, while authorizing removal
when federal law actually provides the plaintiff's
cause of action. In that circumstance, removal is
entirely appropriate, because, in our federal
system, federal courts have primary responsibility
for resolving questions of federal law. The Ninth
Circuit's holding that Janis waived her right to
have her ERSIA claims heard in federal court
because she failed to timely remove her original
divorce proceedings runs. head-long into this
authority.
More importantly, none of the allegations in the
complaint and counter-claim initiating Janis and
Lupe’s divorce aver, much less suggest, that either
spouse was attempting to (1) redress violations of
ERISA's fiduciary provisions, (2) enjoin a practice
that violated ERISA, (3) obtain other cquitable
relief necessary to enforce ERISA or the terms of
the plan, (4) recover benefits due under the terms
of the plan, (5) enforce rights under the terms of a
plan, or (6) clarify rights to future benefits under
the terms of a plan. Nor were the IATSE and
Hilton plans or their fiduciaries named in those
divorce proceedings, further undercutting the
Ninth Circuit’s rationale. Cf, Yoon v. Fordham
Univ. Faculty & Admin. Ret. Plan, 263 F.3d 196,
207 (2nd Cir. 2001), citing 29 U.S.C. § 1132(a)(1)(B)
and quoting Leonelli v. Pennwalt Corp., 887 F.2d
1195, 1199 (2nd Cir. 1989) (“ERISA claims under
that section may be brought only against ‘the plan
and the plan administrators and trustees .. . in
their capacity as such . . .”). Phrased somewhat
differently, for more than thirteen years, Janis was
burdened with an ERISA lawsuit that she never
23
filed, based on an erroneous interpretation of
federal law that was sanctified by the Ninth
Circuit. The harm caused by that error casts a
shadow over the 17 million divorcing (or divorced)
American workers, who will now have to file their
divorce proceedings in, or remove those divorce
proceedings to, federal court; or lose the right to
(exclusive) federal court jurisdiction over any
potential ERISA claim. Such an error cannot be left
to stand.
CONCLUSION
or the foregoing reasons, this Court should
grant this petition for certiorari, reverse the
judgment of the court of appeals, and remand this
back to the Ninth Circuit for further proceedings.
Scottlynn J Hubbard TV
Counsel of Record
Law Offices of Lynn Hubbard
12 Williamsburg Lane
Chico, California 95926
(530) 895-3252
lawofchaos@aol.com
Counsel for Petitioner
December 9, 2010
APPENDIX
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Appendix F:
Appendix G:
APPENDIX
Ninth Circuit Amended Opinion,
atoms Rime 6, DOG avis ceceneancans la
District Court Memorandum,
dated September 30, 2005....... ... 44a
Nevada Supreme Court Order,
dated October 21, 2009 ................ o6a
Ninth Circuit Order re Rehearing,
date September 10, 2010............. 65a
Ninth Circuit Order Staying
Mandate,
dated September 21, 2010............ 68a
Lupe Complaint for Divorce,
dated October 27, 1994 ............. .. 10a
Janis Answer to Complaint
and Counter-claim.,
dated November 23. 1994............ 76a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 06-15581, 06-15938
JANIS CARMONA,
Plaintiff,
JUDY CARMONA: HILTON HOTELS CORPORATION,
RETIREMENT PLAN,
Defendants, |
V.
NEVADA RESORT ASSOCIATION INTERNATIONAL
ALLIANCE OF THEATRICAL AND STATE EMPLOYEES
LOCAL 720 PENSION TRUST (1.A.T.S.E. TRUSTEES),
Cross-Claimant-Appellant,
JUDY CARMONA, SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA DECEASED,
Cross-Defendant-Appellee.
2a
JANIS CARMONA, A.K.A. JANIS KESTER, |
Plaintiff-Appellant,
V.
JUDY CARMONA, SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA DECEASED; HILTON HOTELS
CORPORATION, RETIREMENT PLAN
Defendants-Appellees.
ORDER AMENDING OPINION AND
DENYING REHEARING AND AMENDED
OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
March 11, 2008
Filed Sept. 17, 2008
Amended May 4, 2010
Before: Hawkins, Thomas, and Clifton,
Circuit Judges
Opinion by Judge Clifton
3a
ORDER
This court's opinion, filed September 17, 2008, is
amended as follows:
I. At pages 138098 (2 times), 13099, 13102,
13113 (3 times including 2 times within note 13) of
the slip opinion (544 F.3d at 998 (2 times), 1000,
1007 (3 times including 2 times within note 13)),
replace <anti-alienation> with < antialienation >
(without hyphen) to conform to the usage in
Kennedy v. Plan Administrator for DuPont Savings
& Investment Plan, --- U.S. ----, 129 S.Ct. 865, 172
L.Ed.2d 662 (2009).
2. On page 13090 of the slip opinion (544 F.3d at
993), replace <the Nevada family court, perhaps
without taking into account the nature of the QJSA
Survivor annuities, granted> with <the Nevada
family court, perhaps without taking into account
either the nature of the QJSA survivor annuities or
the terms of the plans, granted>.
3. On page 13097 of the slip opinion (544 F.3d at
998), following <ERISA pension plans must comply
with participation, vesting, and = funding
requirements. /d.> add:
<The statute also established “a
straightforward rule of hewing to the
directives of the plan documents,” imposing
on plan administrators a “bright-line
requirement to follow plan documents in
distributing benefits.” Kennedy v. Plan
Administrator for DuPont Savings &
4a
Investment Plan, ---U.S. ----, 129 S.Ct. 865,
’
875, 876, 172 L.Ed.2d 662 (2009).>
4. Move the following language appearing on
page 13100 of the slip opinion (544 F.3d at 999) to
page 13099 of the slip opinion (544 F.3d at 998),
between and qualified>:
<A valid DRO can be any judgment, decree,
or order which (1) “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,”
and (2) “is made pursuant to a State
domestic relations law.” 29 U.S.C. §
1056(d)(3)(B)(ai).>
5. On page 13099 of the slip opinion (544 F.3d at
998), following Hamilton, 433 F.3d at 1096 (citing
29 U.S.C. § 1056(d)(3)(B)G)(D) Gnternal quotation
marks omitted).>, add a new footnote 6 (and
renumber subsequent footnotes):
To be sure, a party can waive an entitlement
to an interest without expressing that waiver
in the form of a QDRO, as the Supreme
Court recently held. Although the Fifth
Circuit had held a waiver by a divorcing
spouse expressed in a _ divorce decree
ineffective under ERISA's antialienation
provision because it was not expressed in a
QDRO, the Court held that such a waiver of
rights could be effective nonetheless.
Kennedy, 129 S.Ct. at 870-74. That ability to
alter the entitlement to benefits outside of a
QDRO is lmited to a waiver of rights,
however. It does not permit an assignment of
interest to anyone else or an identification of
an alternate payee; that still requires a
QDRO to be effective under ERISA. Id. at
873.
6. On page 13100 of the slip opinion (544 F.3d at
1000), replace <Because Janis was Lupe's spouse at
the time of his retirement, her remainder interests
vested at the time of his retirement and no QDRO
can reassign the benefits.> with <Because Janis
was Lupe's spouse at the time of his retirement,
IATSE argues that her remainder interests vested
at the time of his retirement and no QDRO can
reassign the benefits.>
7. On page 13107 of the slip opinion (544 F.3d at
1003), in the citation to McGowan v. NJR Serv.
Corp. replace with <(omitted), abrogated on other
grounds by Kennedy, --- U.S. ----, 129 S.Ct. 865, 172
L.Ed.2d 662.>.
8. On pages 13110-11 of the slip opinion (544
F.3d at 1005-06), replace the five paragraphs that
begin with also argues that Janis waived her right>
and end before the heading C. The Constructive
Trust> with the following two paragraphs:
Judy also argues that Janis waived her right
to the surviving spouse benefits by the
property settlement when the state court
entered its divorce decree. As the Supreme
Court made clear in Kennedy, ERISA's
antialienation provision does not prohibit a
surviving spouse beneficiary from waiving
his or her interest in plan benefits, but such
ba
a waiver must also conform to. plan
procedures and instruments. Indeed, the
Court concluded that the plan administrator
in that case was not, under the terms of the
plan, required to honor the waiver of benefits
contained in the divorce decree and that the
continued payment of benefits to the prior
spouse was proper. See Kennedy, 129 S.Ct. at
874-78. Under the so-called “plan documents
rule,” plan administrators must “hew[ ] to
the directives of the plan documents” rather
than “examin[ing] a multitude of external
documents that might purport to affect the
dispensation of benefits” and becoming
“drawn into litigation like this over the
meaning and enforceability of purported
waivers. Id. at 876, 877 (internal quotation
marks omitted).
Both the IATSE plan documents and
KRISA's statutory scheme allow for the
waiver of surviving spouse benefits with both
spouses’ written consent during the benefits
election period prior to the participant's
retirement. 29 U.S.C. § 1055(c)(3). That
procedure was not followed here. Judy has
identified nothing in the IATSE plan
documents which” require’ the _ plan
administrator to redirect surviving spouse
benefits to Judy, who was not, at the time of
retirement and vesting, either a present or
former spouse. Even if it is assumed that
Janis had the authority to disclaim benefits,
there is nothing that provides for them to be
assigned instead to Judy.
9. On page 13114 of the slip opinion (544 F.3d at
1007), following the sentence <It may not be that
all constructive trusts instituted by state courts,
particularly those that seek to recover ill-gotten
gains, will have a sufficient connection with or
reference to an ERISA plan to trigger ERISA's
preemption provision.>, add a new footnote 15
In Kennedy, the Court explicitly declined
to express a view on whether an action could
have been brought to obtain benefits from
the fermer spouse after they had been
distributed to her. 129 S.Ct. at 875 n. 10
The opinion, as amended, will thus appear a
attached
With the opinion as amended, the petition for
rehearing en banc, filed October 2, 2008, 1:
DENIED. If any party wishes to file a new petition
for rehearing and/or petition for rehearing en banc,
it may do so within 14 days from the date of thi:
order
OPINION
CLIFTON, Circuit Judge
This case requires us to once again navigate the
complex statutory scheme set out in the Employee
Retirement Income Security Act of 1974 (“ERISA”),
88 Stat. 832, as amended, 29 U.S.C. § 1001 et seq.,
and to answer an open question in this Circuit:
whether or not a participant to an ERISA regulated
Qualified Joint and Survivor Annuity (“QJSA”)
plan may change the surviving spouse beneficiary
Sa
after the participant has retired and the annuity
has become payable.
The conflict here arises between the final two
wives of Lupe Carmona, a participant in two
ERISA regulated pension plans, the Hilton Hotels
Pension Plan (“Hilton”) and the Nevada Resort
Association International Alliance of Theatrical
Stage Employees Local Pension Trust (IATSE”).
Janis Carmona, Lupe's eighth wife and his spouse
at the time of his retirement, appeals the district
court's dismissal of her complaint for lack of
jurisdiction against Hilton and Judy Carmona,
Lupe's ninth wife and his spouse at the time of his
death.! IA‘SE, Lupe's’ second pension plan
provider, appeals the district court's grant of
summary judgment in favor of Judy on its cross-
claim. On the merits, both IATSE and Janis argue
that Janis, as Lupe's spouse at the time of his
retirement, is the nrightful surviving § spouse
beneficiary for the purposes of Lupe's retirement
plan because her interest in surviving spouse
benefits irrevocably vested at the time of Lupe's
retirement.
Joining the Fourth Circuit, as well as a number
of other jurisdictions, we hold that QJSA surviving
spouse benefits irrevocably vest in the participant's
spouse at the time of the annuity start date — in
1 Because they share the same last name, in this
opinion we refer to Lupe, Janis, and Judy by their first
names.
Ya
this case the participant's retirement? — and may
not be reassigned to a subsequent spouse. Applying
that conclusion to the judgment entered by the
district court in this case, we affirm in part and
reverse in part.
I. Background
The essential facts of this case are undisputed.
Lupe Carmona married his eighth wife,? Janis
Carmona (nee Kester), in 1988. While they were
married, Lupe designated Janis as his survivor
beneficiary under two pension plans” which
provided QJSA benefits, Hilton and IATSE. Under
the terms of these plans, Janis would receive a
portion of Lupe's monthly pension benefits upon his
death if she survived him. After naming Janis as
the survivor beneficiary of both plans, Lupe retired
and began collecting pension benefits under the
“Annuity start date” and “retirement date” are the
same date in this case and we use the two. terms
synonymously. For the purposes of QJSA_ benefits, the
retirement date and the annuity start date are often the
same. As a result, most of the cases addressing this issue
have also used “retirement date” synonymously with “annuity
start date.” We recognize that the terms may not always be
synonymous: for example, a participant could retire early, but
he or she may not receive benefit payments until a later date
For the purposes of this opinion, however, we need not
determine what effect an early retirement would have on the
vesting rules. We leave to another day whether the same
vesting ruies apply to a participant's early retirement
3 Although Lupe had many wives, the dispute in this
case only concerns wives number eight and nine. None of the
previous seven wives are involved in the present litigation.
LOa
plans in 1992. Then, in 1994, Lupe and Janis began
divorce proceedings.
Prior to entry of the formal divorce decree, Lupe
inquired into whether he could remove Janis as the
named survivor beneficiary. The two plan
administrators each refused to change’ the
designated survivor spouse’ beneficiary and
indicated that the designation was irrevocable upon
Lupe's retirement. Nonetheless, in its 1997 divorce
decree, the Nevada family court, perhaps without
taking into account either the nature of the QJSA
survivor annuities or the terms of the plans,
granted Lupe both the IATSE and Hilton pensions
as his sole and separate property. The family court
awarded Janis her own pension plan as her sole
and separate property as well. Because there was a
difference between the value of the pension
awarded to Janis and the value of the pensions
awarded to Lupe, the court also ordered that Lupe
pay Janis $1500 “as and for an equalization of the
values of the marital portion of the pensions
divided.”
In 1997, after his divorce from Janis had been
finahzed, Lupe married Judy Carmona (nee
Walkington), his ninth and final spouse. He
petitioned the family court for a Qualified Domestic
Relations Order (“QDRO”) revoking Janis's
designation as the survivor beneficiary of the
IATSE and Hilton pensions and substituting Judy,
his new wife. Lupe died in 1999. Judy survived
him, as did Janis. The day after Lupe's death, the
family court concluded that Janis had waived her
right to Lupe's pension plan benefits by the divorce
decree's allocation of property and that Janis would
lla
be unjustly enriched if she remained the survivor
beneficiary. To avoid an inequitable result, the
court ordered the plan administrators to change the
survivor beneficiary from Janis to Judy.
Alternatively, if the plans refused or were unable to
change the beneficiary, the family court ordered the
funds Janis received to be placed in a constructive
trust with Judy as the beneficiary.
Janis appealed the family court's decision to the
Nevada Supreme Court. In 2003, that court
affirmed the family court order and concluded that
ERISA did not preempt either the family court's
order to change the beneficiaries or the constructive
trust placed on the plan proceeds.4 Janis sought
review of the decision by the United States
Supreme Court, but the Court denied certiorari.
Also during this’ time, Janis’~ declared
bankruptcy. The bankruptcy court also concluded
that Janis did not have a legal or equitable interest
in the survivor benefits from the two QJSAs.
4 While Janis was pursuing her original appeal through
the Nevada system, she also brought suit in Nevada federal
district court seeking to recover benefits under the terms of
the ERISA pension plan. See 29 U.S.C. § 1132(a)(1)(B). Janis
named the family court judge, Judy's attorneys, the Hilton
Plan administrators and Judy in the suit. In 2001, before the
Nevada Supreme Court made its final determination in the
original case, District Judge Philip M. Pro dismissed the suit
against all the defendants except for Hilton, concluding that
the court lacked subject matter jurisdiction under the Rooker-
Feldman doctrine. The district court later dismissed Hilton
because Janis could not join Judy, an indispensable party.
12a
In 2004, after the Nevada Supreme Court
decision, the family court issued another order
requiring Janis to deposit the survivor benefit
funds into a constructive trust. At the same time,
the family court also entered two orders, each
labeled as a “Qualified Domestic Relations Order,”
directing the two plans to pay survivor benefits
either to Judy or to the constructive trust. Janis
attempted to remove the case to federal court but
the federal district court remanded the action back
to the family court, concluding that Janis had failed
to timely file for removal and, in any event, that
the Rooker-Feldman doctrine required the court to
dismiss the suit for lack of jurisdiction.
This appeal originates from the most recent
federal suit filed by Janis against Judy, Hilton, and
IATSE. Janis brought suit under 29 U.S.C. §
1132(a)(3) seeking “to enjoin any act or practice
which violates any provision [of ERISA] or the
terms of the plan.” In response to Janis's suit,
[ATSE Trustees filed a cross-claim against Judy
seeking declaratory relief.
The district court concluded that the Rooker-
Feldman doctrine barred Janis's suit against Judy
and Hilton. The court also concluded that neither
Rooker-Feldman nor res judicata barred IATSE's
claim because it was not a party to the prior suits
and was not in privity with Janis. On the merits,
the district court concluded that ERISA does not
preclude a state court from issuing a QDRO
substituting an alternate payee for a surviving
spouse after a plan participant's retirement. IATSE
appeals the district court's denial of summary
judgment and subsequent dismissal of its
l3a
complaint against Judy. Janis appeals the district
court's decision that it lacked subject matter
jurisdiction over Janis's claims against Hilton and
Judy. We consider both appeals together because
they arise from the same factual background.
II. Discussion
We review an application of the fRooker-
Feldman doctrine de novo. Noel v. Hall, 341 F.3d
1148, 1154 (9th Cir.2003). The interpretation of
ERISA, including whether ERISA preempts state
law, is a question of law which we also review de
novo. Metropolitan Life Ins. Co. v. Parker, 436 F.3d
1109, 1113 (9th Cir.2006); Cleghorn v. Blue Shield
of California, 408 F.3d 1222, 1225 (9th Cir.2005).
A. The Rooker-Feldman Doctrine and Preclusion
We first consider whether any preclusion
doctrine prevents Janis from bringing her claims
against Judy and Hilton, or IATSE from bringing
its declaratory judgment action. We agree with the
district court and conclude that the district court
lacked jurisdiction, under the fFooker-Keldman
doctrine, to adjudicate Janis's claims against Judy
and Hilton, but that IATSE is not precluded from
asserting its cross-claim here.
The Rooker-Feldman doctrine takes its name
from two Supreme Court cases: Rooker v. Fidelity
Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362
(1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d
206 (1983). It stands for the © relatively
straightforward principle that federal district
14a
courts do not have jurisdiction to hear de facto
appeals from state court judgments. Noel, 341 F.3d
at 1155. The jurisdictional prohibition arises from a
negative inference drawn from 28 U.S.C. § 1257
which grants jurisdiction to review state court
decisions in the United States Supreme Court.
Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th
Cir.2004) (citation omitted). Because it grants
jurisdiction to the Supreme Court, section 1257
impliedly prohibits lower federal courts from
reviewing state court decisions. /d.
[1] Stated simply, the Rooker-Feldman doctrine
bars suits “brought by state-court losers
complaining of injuries caused by state-court
judgments rendered before the district court
proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S.
280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).
In practice, the Rooker-Feldman doctrine is a fairly
narrow preclusion doctrine, separate and distinct
from res judicata and collateral estoppel. See Noel,
341 F.3d at 1162-64.
We have previously explained how federal
courts should distinguish a forbidden de facto
appeal of a state court decision that is barred by
Rooker-Feldman from a suit that is barred by other
preclusion principles. A suit brought in federal
district court is a “de facto appeal” forbidden by
Rooker-Feldman when “a federal plaintiff asserts
as a legal wrong an allegedly erroneous decision by
a state court, and seeks relief from a state court
judgment based on that decision.” Jd. at 1164. In
contrast, if a plaintiff “asserts as a legal wrong an
lda
allegedly illegal act or omission by an adverse
party, Rooker-Feldman does not bar jurisdiction.”
Id.
[2] Although it is often misapplied, we agree
with the district court that Rooker-Feldman is
applicable in this case, and therefore the district
court was correct in dismissing Janis's claims for
lack of jurisdiction. According to her amended
complaint, Janis claimed that the family court
orders were based upon an erroneous application of
KRISA preemption law and that the family court
unlawfully reassigned benefits in which she had an
irrevocable vested interest. She sought relief from
the state court orders and prayed for the federal
district court to “order that the proceedings in
Family Court in case number D181580_ be
dismissed with prejudice” and to enjoin
enforcement of the orders. Thus she was asserting
both that her injury was caused by a “legal error or
errors by the state court” and that the appropriate
remedy was “relief from the state court judgment.”
Kougasian, 359 F.3d at 1140.
The types of claims Janis presented in this case
parallel those asserted in Feldman, 460 U.S. 462,
103 S.Ct. 1303, 75 L.Ed.2d 206, one of the cases
from which the doctrine takes its name. In
Feldman, the federal plaintiffs sought admission to
the District of Columbia bar. The local court
refused to grant the plaintiffs waivers from the
local rule that only graduates from accredited law
schools could sit for the bar exam. The plaintiffs
then filed suit in federal court. The plaintiffs
sought declaratory judgments that the rule violated
the Fifth Amendment, and injunctions that would
l6a
require the defendants to permit them to take the
examination. One of the plaintifis also sought the
alternative relief of admission to the bar or a
determination of whether his training provided him
the same competence as graduates of accredited
law schools. See Feldman, 460 U.S. at 468-69, 103
S.Ct. 1303. Th» appeals were consolidated and the
Supreme Court held that the suit was a de facto
appeal of the local court order to the extent that it
sought review of the local court's denial of waiver.
As such the district court lacked subject matter
jurisdiction to hear the appeal. Jd. at 482, 103 S.Ct.
1303.
[3] Like Feldman, Janis did not argue that
either Judy or Hilton caused her injury, claims that
would not be within the limits of Rooker-Feldman.
See Noel, 341 F.3d at 1163. Rather, Janis
complained of a “harm caused by a state court
judgment that directly withholds a_ benefit
from{her] ... based on an allegedly erroneous ruling
by that court.” Jd. Her claim therefore fits within
the narrow constraints of the Ninth Circuit's
application of the Rooker-Feldman doctrine. We
agree with the district court that it lacked
jurisdiction to hear the merits of Janis's claims
against Hilton and Judy because Janis's suit was a
forbidden de facto appeal of a state court judgment.
[4] Janis also argues that Rooker-Feldman does
not apply to state court orders that conflict with
ERISA because ERISA grants exclusive jurisdiction
to the federal courts. Rooker-Feldman's
jurisdictional bar is one of congressional intent and
not constitutional mandate. Mozes v. Mozes, 239
F.3d 1067, 1085 n. 55 (9th Cir.2001). Where
l7a
Congress explicitly grants exclusive jurisdiction to
federal courts, Rooker-Feldman cannot’ bar
collateral review of a state court order in federal
court. See In re Gruntz, 202 F.3d 1074, 1078-79 (9th
Cir.2000) (en banc) (establishing that collateral
review of state court proceedings in habeas and
bankruptcy cases is not jurisdictionally barred
under Rooker-Feldman ); see also Mozes, 239 F.3d
at 1085 n. 55; G.C. and K.B. Inv., Inc. v. Wilson,
326 F.3d 1096, 1103 n. 4 (9th Cir.2003).
[5] Although the present suit, as pleaded, arises
under the exclusive jurisdiction of federal courts,
when the parties proceeded initially, the state court
had concurrent jurisdiction to hear the ERISA
claim under 29 U.S.C. § 1132(a)(1)(B). In the state
court proceedings, Janis failed to remove the
proceedings to federal court and thus implicitly
subjected herself to the final determination of the
state court. Because Congress had established
concurrent jurisdiction at that time, we conclude
that it did not intend to prevent the Rooker-
Feldman jurisdictional bar.
[6] Although Janis’s claims are barred, IATSE's
cross claim against Judy is not, even though it
raises the same legal issue. Neither the law of the
case doctrine nor state law res judicata principles
bar IATSE's cross claim. The law of the case
doctrine only applies to successive appeals in the
same suit. See Hsu v. County of Clark, 123 Nev.
625, 173 P.3d 724, 730 n. 26 (2007). Where the suit
involves a new party and new claims, as it does
here, it 1s only res judicata, and not the law of the
case doctrine, that may apply. See id.
l8a
[7] Similarly, res judicata does not preclude
IATSE from establishing its obligations with
respect to Judy and Janis. Under Nevada law, the
party asserting res judicata must establish (1) the
identical issue was already decided, (2) there was a
final judgment on the merits, and (3) the suit
involved the same party or their privies. See
Holcombe v. Hosmer, 477 F.3d 1094, 1097-98 (9th
Cir.2007); Bennett v. Fid. & Deposit Co. of Md., 98
Nev. 449, 652 P.2d 1178, 1180 (1982). Res judicata
does not apply here because IATSE was not a party
to the first state court suit nor was it in privity
with Janis. Although they advance _ similar
arguments with a similar goal in mind-to establish
that Lupe was precluded from changing Janis's
beneficiary status after his retirement-they each
maintain unique interests. IATSE must concern
itself with the correct administration of its pension
plans, and it has fiduciary duties distinct from the
interests of the wives in this case. See, e.g., 29
U.S.C. § 1104. Janis's interest is merely in
receiving the remainder benefits to which she feels
she is entitled. Because Janis and IATSE do not
share an identity of interests, Janis's prior suits
have no preclusive effect on IATSE's claim that the
state court QDROs were insufficient to transfer
benefits.5 See Taylor v. Sturgell, 553 U.S. 880, 128
5 In addition to illustrating the pitfails of interpreting
ERISA, this case also illustrates the problems that arise when
a plan trustee fails to join litigation until the eleventh hour
despite the plan's ongoing interest in the outcome. Although
we conclude that no legal doctrine prohibits [ATSE from
bringing the’ present declaratory judgment action, we agree
with the district court that the plan trustee's failure to join
itself to the litigation earlier was unnecessary and could have
19a
S.Ct. 2161, 171 L.Ed.2d 155 (2008) (overruling
Kourtis vu. Cameron, 419 F.3d 989, 998 (9th
Cir.2005) and narrowly construing circumstances
in which a non-party may be bound by prior
judgment); LaForge v. State, Univ. and Cmty.
College Sys. of Nev., 116 Nev. 415, 997 P.2d 130,
133 (2000). We turn now to the merits of the case,
and the heart of the ERISA question.
B. The Effect of a Domestic Relations Order on
Survivor Benefits
Congress originally enacted ERISA to protect
the rights of workers who earn pension benefits
and to encourage plan participation. PAUL J.
SCHNEIDER, BRIAN M. PINHEIRO, ERISA: A
COMPREHENSIVE GUIDE § 1.02 (3d ed.2008). In
addition to protecting plan participants, Congress
also sought to protect plan beneficiaries. See Boggs
v. Boggs, 520 U.S. 833, 845, 117 S.Ct. 1754, 138
L.Ed.2d 45 (1997). In order to meet those ends
Congress enacted an intricate, comprehensive
statute that governs both pension and welfare
plans. /d. at 841, 117 S.Ct. 1754. ERISA pension
plans must comply with participation, vesting, and
funding requirements. /d. The’ statute also
established “a straightforward rule of hewing to the
spared the parties involved great time and expense. We also
note that while the result here may seem anomalous-IATSE
may pay out benefits to Janis while Hilton may pay out
benefits to Judy-we conclude that this is the result dictated by
the unusual circumstances before us. The application of
preclusion doctrines and jurisdictional bars cannot turn on
the outcome of the underlying arguments on the merits
2VUa
directives of the plan documents,” imposing on plan
administrators a “bright-line requirement to follow
plan documents in distributing benefits.” Kennedy
v. Plan Administrator for DuPont Savings &
Investment Plan, --- U.S. ----, 129 S.Ct. 865, 875
876, 172 L.Ed.2d 662 (2009).
More recently, Congress further refined the
statutory framework with the Retirement Equity
Act of 1984 (“REA”), Pub.L. No. 98-397, 98 Stat.
1426, which particularly sought to protect the
rights of surviving spouses. These amendments
modified and strengthened the expansive coverage
for surviving spouses by providing economic
security through “a stream of income to surviving
spouses,” even after the participant's death. Boggs,
520 U.S. at 843, 117 S.Ct. 1754
In order to protect surviving spouses in the
event of the plan participant's death or divorce,
ERISA provides for two types of survivor annuity
benefits. See Hamilton v. Wash. State Plumbing &
Pipefitting Indus. Pension Plan, 433 F.3d 1091,
1095 (9th Cir.2006). If a vested participant dies
before the annuity start date and the participant is
survived by a spouse, the surviving spouse is
entitled to a qualified preretirement survivor
annuity (“QPSA”). 29 U.S.C. § 1055(a)(2). Because
Lupe died after retirement, his annuity benefits
were paid in the form of the second type, a qualified
joint and survivor annuity or “QJSA.” 29 U.S.C. §
1055(a)(1). QJSA benefits arise when the
participant does not die before the annuity starting
date. Id. These benefits are payable to the plan
participant for his lifetime after the annuity start
date and, if the plan participant dies before his
spouse, the surviving spouse will receive no les
than 50 percent of the amount of the annuity for
the remainder of her lfetime. See 29 U.S.C. §
1055(d)(1)(A).
[8] “ERISA requires that every[QJSA] include
an annuity payable to a nonparticipant surviving
spouse. Boggs, 520 U.S. at 842, 117 S.Ct. 1754
These QJSA benefits are particular to the surviving
spouse and may not be waived by the participant
alone. /d. In order for a participant's spouse to
waive her interests in QJSA benefits, the spouse
must consent in writing, and in the presence of a
plan representative or notary public, during the
applicable election period. See 29 U.S.C. § 1055(c)
Under these provisions, Janis, as Lupe's surviving
spouse at the time of his retirement, was entitled to
his QJSA benefits after his death. She did not
waive her interest in the surviving spouse benefit:
during the applicable election period or consent to
have Judy designated as the beneficiary. See Boggs,
520 U.S. at 842, 117 S.Ct. 1754. We must
determine, then, whether other provisions of
ERISA permit the Nevada family court to reassign
the QJSA survivor benefits from Janis to Judy
ERISA contains an antialienation provision and
a preemption provision that restrict the ability of
state courts and plan participants to transfer and
alter interests in ERISA-governed retirement
benefits. See 29 U.S.C. § 1056(d)(1) (Each pension
plan shall provide that benefits provided under the
plan may not be assigned or alienated.”); 29 U.S.C
§ 1144(a) (establishing that ERISA “supercede[s]
any and all State laws insofar as they may ... relate
to any employee benefit plan ). Despite this
broad preemption and antialienation scheme,
Congress has recognized that states, in some
circumstances, should be able to enforce their own
domestic relations laws with respect to ERISA
pensions. As a result, state domestic relations
orders (“DROs”) that comply with = statutory
requirements are exempt from both the
antialienation and preemption. provisions of
ERISA. 29 U.S.C. § 1144(b)(7); 29 U.S.C. §
1056(d)(3); Hamilton, 433 F.3d at 1096 n.5. A valid
DRO can be any judgment, decree, or order which
(1) “relates to the provision of child support,
alimony payments, or marital property rights to a
spouse, former spouse, child, or other dependant of
a participant,” and (2) “is made pursuant to a State
domestic relations law.” 29 US.C. §
1056(d)(3)(B)(i). The qualfied domestic relations
order, or QDRO, “is a subset of domestic relations
orders that recognizes the right of an alternate
payee to receive all or a portion of the benefits
payable with respect to a participant under the
pian.” Hamilton, 433 F.3d at 1096 (citing 29 U.S.C.
§ 1056(d)(3)(B)G)(D) Gnternal quotation marks
omitted).®
6 To be sure, a party can waive an entitlement to an
interest without expressing that waiver in the form of a
QDRO, as the Supreme Court recently held. Although the
Fifth Circuit had held a waiver by a divorcing spouse
expressed in a divorce decree ineffective under ERISA's
antialhenation provision because it was not expressed in a
QDRO, the Court held that such a waiver of rights could be
effective nonetheless. Kennedy, 129 S.Ct. at 870-74. That
ability to alter the entitlement to benefits out-side of a QDRO
is limited to a waiver of rights, however. It does not permit an
Although state courts, via DROs, may create
enforceable interests in the proceeds of an ERISA
plan, there are limitations on the ability of state
courts to create enforceable property interests in
alternate payees. See Trs. of the Dirs. Guild of Am.-
Producer Pension Benefits Plans v. Tise, 234 F.3d
415, 420 (9th Cir.2000). First, in order for a DRO to
be considered a QDRO, the state courts must fulfill
certain specificity requirements. These
requirements allow a plan administrator to more
easily administer the plan and reduce the risk of
making improper payments. See Hamilton, 433
F.3d at 1096-97 (citing In re Gendreau, 122 F.3d
815, 817-18 (9th Cir.1997)). A DRO meets the
requirements of a QDRO and thus is enforceable
only if the order “clearly specifies” (1) the name and
mailing address of both the participant and the
alternate payees, (2) the amount or percentage of
the participant's benefits to be paid to each
alternate payee, (3) the number of payments to
which the order applies, and (4) the plan to which
the order apphes. 29 U.S.C. § 1056(d)(3)(C). If the
state court fails to substantially comply with the
statutory QDRO _ requirements, even a_e valid
domestic relations order is not enforceable against
a pension plan. See Hamilton, 433 F.3d at 1097.7
assignment of interest to anyone else or an identification of
an alternate payee; that still requires a QDRO to be effective
under ERISA. /d. at 873
7 It was argued in this appeal! that the relevant orders
entered by the Nevada family court did not satisfy this
specificity requirement, but we do not need to resolve that
Second, the DRO itself must create an
enforceable interest that is permitted under
ERISA's statutory scheme. See Hamilton, 433 F.3d
at 1097-99. Among other things, a DRO is valid
under ERISA only if it recognizes the existence of
an alternate payee's right to receive benefits
“payable with respect to a participant under a
plan.” Id. at § 1056(d)(3)(B)Q)(1). Additionally, a
DRO may not require a plan to provide any type or
form of benefit, or any option not otherwise
provided by the plan, or to provide increased
benefits to an alternate payee. Jd. at §8
1056(d)(3)(D).
The two limitations work together. The first
limitation concerns the form of the state court
order: the state DRO may create an alternate
payee's enforceable interest, but the alternate
payee may not enforce that interest unless and
until he or she has complied with the QDRO
specificity provisions. See Tise, 234 F.3d at 421.
The second limitation is_ substantive: certain
alterations to the benefits provided by a plan
governed by ERISA are forbidden. Thus, in certain
respects, ERISA limits what a state family court
can order. See Hamilton, 433 F.3d at 1098-1110.
‘
Based on these limitations, IATSE argues that
the family court's orders cannot be valid QDROs
and thus cannot divest Janis of her interest in the
QJSA's survivor benefits because the state court
issue, given our conclusion that the Nevada court's DROs did
not create interests enforceable under ERISA's scheme.
25a
orders were issued after Lupe's retirement.
According to IATSE, surviving spouse benefits
pursuant to a QJSA irrevocably vest in_ the
participant's spouse at the time of the participant's
retirement and cannot be altered or assigned.
Because Janis was Lupe's spouse at the time of his
retirement, IATSE argues that her remainder
interests vested at the time of his retirement and
no QDRO can reassign the benefits. Judy argues in
response that ERISA contains no_ provisions
limiting when a state court can issue a DRO to
transfer QJSA benefits from a surviving spouse to
an alternate payee, and therefore so long as the
state court fulfills the specificity requirements of a
QDRO it may create an enforceable interest at any
time, even after a participant's retirement.
[9] This case presents an issue of first
impression in this Circuit: whether a “plan
participant's retirement cuts off a _ putative
alternate payee's right to obtain an enforceable
QDRO” with regard to the surviving spouse
benefits of a QJSA. TJise, 234 F.3d at 423 n. 6. We
are persuaded that IATSE's interpretation is
correct and that the answer to this question is
“Yes.”
In Hopkins v. AT&T Global Info. Solutions Co..,
105 F.3d 153 (4th Cir.1997), the Fourth Circuit
addressed a set of circumstances similar to the one
presented here. In Hopkins, the ERISA plan
participant divorced his first wife, Vera, in 1986
and was ordered to pay her alimony. /d. at 154. In
order to collect the alimony, Vera obtained a
judgment allowing her to attach her ex-husband's
wages. /d. After his divorce from Vera, the
26a
participant married his’ second wife, Sherry.
Thereafter, in 1993, he retired. At that time Vera
attempted to attach both his portion of the QJSA
benefits and Sherry's surviving spouse benefits
under the QJSA. Id.
The court closely examined 29 U.S.C. § 1056
and 29 U.S.C. § 1055, which regulate QDROs and
QJSAs respectively, and concluded that surviving
spouse benefits under a QJSA vest at the time of
the participant's retirement. Jd. at 155-156. In
order to be “qualified,” and thus enforceable, a DRO
must create an alternate payee's right to benefits
“payable with respect to a participant under a
plan.” Id.; 29 U.S.C. § 1056(d)(3)(B). According to
Hopkins, if the surviving spouse benefits vested
upon the participant's retirement, the DRO would
relate to a benefit payable with respect to a
beneficiary, not payable “with respect to a
participant.” Jd. at 156. Thus, if the spouse's
interest in the benefits vested upon the
participant's retirement, the domestic relations
order could not be qualified and could not be an
exception to the preemption and antialienation
provisions. /d.
[10] The court then analyzed 29 U.S.C. § 1055
and concluded that the participant spouse's QJSA
surviving spouse rights “vest” upon the participant
spouse's retirement.® /d. Various changes to ERISA
8 The Hopkins court did not distinguish between the
annuity start date and the participant's retirement date.
Indeed, in Hopkins, like the case before us, the two dates are
the same
21a
created by the REA indicate that the participant's
retirement or the start of the annuity establishes a
vesting point for the surviving spouse benefits.
First, the REA changed the QJSA surviving spouse
benefits so that benefits may be paid to a spouse
who was married to a _ participant at the
participant's retirement, regardless of whether they
were married at the participant's death. Jd. Second,
the REA made it more difficult for a participant to
replace a QJSA with another type of benefit. The
participant could only change the benefit within
ninety days prior to retirement and with the
spouse's written consent.9 Jd. at 156-57. Unless the
participant changes the form of benefit with his
current spouse's written permission, the
participant is locked into a QJSA at retirement. /d.
at 157. Moreover, after the retirement date, the
form of benefit cannot be changed even with the
spouse's consent. Jd. Based upon the language in
ERISA, as well as the changes made under the
REA, the Fourth Circuit concluded that the plan
participant's retirement created a vested interest in
the surviving spouse, and thus Vera's DRO could
never be “qualified” for the purposes of a QDRO. Id.
Judy contends that we should not rely upon the
Fourth Circuit's reasoning in Hopkins because
another Ninth Circuit case compels an outcome in
her favor here. In 7ise, we addressed the question
whether an otherwise valid QDRO assigning other
ERISA benefits (i.e., not QJSA benefits) can issue
9 Now, the applicable time period for an election of
benefits is 180 days prior to retirement. See § 1055(c){7)(A).
28a
after the death of the plan participant. 234 F.3¢4 at
415. The plaintiff, the mother of the _ plan
participant's children, obtained a child support
judgment against the participant prior to his death.
Id. at 417-19. The plan participant died before
retirement (and after marrying the surviving
spouse), but before Tise was able to establish that
the state court order met the — specificity
requirements for a QDRO. Jd. We held that a state
court order obtained prior to a participant's death
or retirement creates an enforceable interest in the
participant's surviving spouse benefits even if the
alternate payee is unable to qualify the DRO before
the participant's death. Jd. at 423.
We came to this conclusion by analyzing the
complex ERISA framework and _ meticulously
considering the provisions of the statute that
contemplate a situation in which a valid QDRO
does not issue until after benefits become payable.
We concluded that ERISA “specifically provides for
situations in which no valid QDRO issues until
after benefits become payable. Once the pension
plan is on notice that a domestic relations order has
issued that may be a QDRO, the plan may take a
reasonable period to determine whether the order
is a QDRO....” Id. at 421. Furthermore, ERISA
provides for further state court proceedings after
the initial DRO is issued to clarify and fix any
technical defects in the original DRO. Jd. at 422
(citing 29 U.S.C. § 1056(d)(3)). Therefore, we have
held that so long as a valid DRO creates an
alternate payee's legally enforceable property
interest in QPSA benefits, a QDRO can be obtained
even after the plan participant's death. Jd. at 423.
29a
In holding that an alternate payee may obtain a
valid QDRO even after a plan participant's death,
we rejected the first part of Hopkins's logic, that
once a spouse's rights to an annuity have vested a
DRO cannot become a QDRO because the order can
no longer be “payable with respect to a participant
under a plan.” Jd. at 423-24. We concluded that
“payable with respect to a participant” includes
benefits payable to a participant as well as benefits
payable to any beneficiaries that may be eligible to
receive such benefit. See td. at 423, 423 n. 7.
Therefore, section 1056(d)(3)(B)(I) does not, in and
of itself, prohibit the assignment of surviving
spouse benefits to an alternate payee, even after a
plan participant has retired.
[11] While we recognize that 7ise expressly, and
we believe rightly, rejected part of the Fourth
Circuit's reasoning in Hopkins, we are nonetheless
persuaded by the structure and purpose of ERISA
that the rule enunciated in Hopkins is the proper
rule for QJSA benefits. Indeed, we expressly left
open this possibility. See id. at 423 n. 6, 423 n. 7
(“Whether a QDRO issued after a plan participant's
retirement may affect the distribution of surviving
spouse benefits pursuant to 29 U.S.C. § 1055
implicates statutory provisions and _ policy
considerations other than those here applicable.”).
First, ERISA's statutory scheme for QJSA
benefits establishes the importance of the annuity
start date, which is often the _ participant's
retirement date, on the benefits at issue. The plan
providers must provide participants and their
spouses with a QJSA. § 1055(a)(i). Under section
1055(c), QJSA benefits are automatically provided
30a
to employees in all ERISA-governed plans. The
only way for the participant to opt out of the QJSA
is for the participant and his spouse together to
waive the QJSA benefit plan in writing. See 29
U.S.C. § 1055(c)(1)-(2). Both spouses, if they are
going to decline QJSA benefits, may only do so
during the applicable election period which is
defined as “the 180-day period ending on the
annuity starting date.”!9 Jd. at § 1055(c)(2), (7).
Thus, the annuity starting date, which in this case
is Lupe's retirement date, is the point at which the
surviving spouse benefits vest in the participant's
spouse.!!
10 This statutory construction makes it difficult to adopt
the alternative rule that Judy urges. It is difficult to see how
courts may reassign QJSA surviving spouse benefits at any
time given the fact that the statutory scheme so diligently
and strictly protects the interests of the participant's spouse
at the time of the participant's retirement by establishing
that the only way to avoid QJSA survivor benefits is by opting
out in writing before the retirement date.
11 The terms of the IATSE plan itself also suggest that
the surviving spouse's interest vests at the time of Lupe's
retirement. The plan informed Lupe that he would
automatically be paid in the form of a QJSA if he was married
at least 12 months prior to the benefit starting date (his
retirement) unless he chose otherwise. It also established that
the exact amount of monthly benefits payable to him and his
spouse under the QJSA depended upon “the relative ages of
you and your spouse at the time of your retirement
(emphasis added). Thus the plan established both that the
type of plan and the amount of benefits were calculated at the
time of retirement and the amount was calculated based on
the relative ages co him and his spouse. This structure
3la
[12] We are also persuaded, as was the Fourth
Circuit in Hopkins, that a number of changes in
ERISA, effectuated by the REA, established the
importance of the participant's date of retirement
as the moment at which the surviving spouse
benefits vest. The fact that the REa established
that surviving spouse benefits may now be paid toa
spouse who is married on the day of the
participant's retirement, regardless of whether the
participant and spouse are married at the
participant's death, suggests that the retirement
date is the crucial date for establishing the rights of
the surviving spouse. Hopkins, 105 F.3d at 156.
Following this reasoning, we conclude that once a
participant retires, the spouse at the time becomes
the “surviving spouse” entitled to the QJSA
benefits.
In addition to finding support for the Hopkins
rule from the statutory scheme, we are also
persuaded that the ultimate objectives of Congress
are served by recognizing the rule that a QDRO
may not reassign surviving spouse benefits after a
plan participant has retired. See Hamilton, 433
F.3d at 1099 (noting that congressional intent
ultimately determines whether or not a particular
statutory interpretation applies to surviving spouse
benefits); Boggs, 520 U.S. at 843, 117 S.Ct. 1754
(considering congressional intent when analyzing
qualified joint and survivor annuity benefits).
suggests that the benefits vested at retirement in the
surviving spouse.
32a
ERISA's surviving spouse benefits established
in section 1055 were created in part “to ensure a
stream of income to surviving spouses.” Boggs, 520
U.S. at 843, 117 S.Ct. 1754. Specifically, Congress
was concerned with providing for spouses that were
not able to accrue their own set of retirement
benefits independent from their working spouses.
Prior to ERISA there was no requirement that
retirement plans provide for an employec's spouse
in the event that the employee predeceased a
spouse not working outside the home (“non-working
spouse’). Congress concluded that such a regime
“{could] result in a hardship where an individual
primarily dependent on his pension as a source of
retirement income is unable to make adequate
provision for his spouse's retirement years should
he predecease her.” H.R.Rep. No. 93-807, at 4732
(1974), reprinted in 1974 U.S.C.C.A.N. 4670, 4732.
Likewise, in amending ERISA through the REA,
Congress adopted changes to the statutory scheme
to take into account “changes in work patterns, the
status of marriage as an economic partnership, and
the substantial contribution to that partnership of
spouses who work both in and outside the home.”
Retirement Equity Act of 1984, Pub.L. No. 98-397,
98 Stat. 1426 (codified as amended in scattered
sections of 29 U.S.C.). Congress created surviving
spouse benefits, like those found in QJSAs, to
protect non-participant spouses, particularly those
that may not work outside the home and thus may
not have independent retirement benefits.
The Hopkins rule applied in this case may not
clearly protect a non-working spouse whose interest
in the surviving spouse benefits may have accrued
over time, since Lupe was not married to either
33a
Janis or Judy during most of his working years
when he earned the pension benefits. Nonetheless,
such a rule would protect a non-working spouse in
many situations involving a_ post-retirement
attempt to transfer surviving spouse benefits. The
finely tuned congressional scheme would not be
served by state court DROs that attempt to divest a
non-working spouse's interest in her surviving
spouse benefits. Similarly, congressional intent is
not advanced by permitting a subsequent post-
retirement spouse to collect benefits accrued during
an economic partnership she or he was not a part
of.}2
Additionally, a vesting rule also promotes one of
the principal goals underlying ERISA: “ensuring
that plans be uniform in their interpretation and
simple in their application.” McGowan v. NJR Serv.
Corp., 423 F.3d 241, 246 (3d Cir.2005) (internal
12 We note that this view is advanced by the legislative
history of the REA. The Senate Report notes that in theory “a
qualified domestic relations order could provide that the
former spouse is not entitled to any survivor benefits under
the plan.” S.Rep. No. 98-575, at 15 (1984), reprinted in 1984
U.S.C.C.A.N. 2547, 2562. While we recognize that this
passing note contradicts our conclusion that Janis's surviving
spouse benefits vested at Lupe's retirement, we are
nonetheless convinced that the structure of the statute, the
purposes and policies undergirding ERISA, and the authority
from other jurisdictions following this interpretation support
our conclusion. Furthermore the note does not contradict the
outcome here because Lupe did not seek to divest Janis of her
surviving spouse rights, but rather attempted to replace her
with Judy, something that neither the statutory language nor
the legislative history permits.
34a
quotation marks and citations omitted), abrogated
on other grounds by Kennedy, --- U.S. ----, 129 S.Ct.
865, 172 L.Ed.2d 662. While administrative
convenience is not entirely determinative of what is
required of pension plans under ERISA, we are
convinced that it should be a consideration when
deciding whether the statutory scheme requires
pension plans to act in a certain way.
Both the participant's post-retirement pension
benefits and surviving spouse benefits under the
QJSA are calculated based upon the life of the two
spouses at the time the benefits become payable.
The benefits payable to each are computed based
upon the “actuarial equivalent of a single annuity
for the life of the participant.” 29 U.S.C. §&
1055(d){1)(A)-(B) (establishing that the participant
receives pension benefits “for the life of the
participant with a survivor annuity for the life of
the spouse which is not less than 50 percent of ...
the amount of the annuity which is payable during
the joint hves of the participant and the spouse’).
The calculation and payment of the _ pension
benefits mean that it is important for the plan
administrators to know, with some finality, who the
spouse 1s at the time that the benefits become
payable:
Because the disbursement of plan benefits is
based on actuarial computations, the plan
administrator must know the life expectancy
of the person receiving the Surviving Spouse
Benefits to determine the _ participant's
monthly Pension Benefits. As a result, the
plan administrator needs to know, on the
ae,
wiere
day the participant retires, to whom the
Surviving Spouse Benefit is payable
Hopktns, 1O5 F.3d_sat 157 on / Allowing
participants to change surviving spouse
beneficiaries after the participant has retired and
already begun receiving benefit payments would
make it difficult for trustees to administer plan:
based on the actuarial value of both the participant
and the surviving spouse. We therefore agree with
Hopkins, as well as with other courts that have
either implicitly or explicitly concluded that the
surviving spouse benefits irrevocably vest in the
current spouse when the plan participant retires
See Hopkins, 105 F.3d at 157; see also Rivers |
Central and South West Corp., 186 F.3d 681 (5th
Cir.1999); Walsh v. Woods, 371 S.C. 319, 638 S.E.2d
85 (2006): Hamilton, 433 F.3d at 1096 (noting that
problems in QDROs often go undetected “until the
participant dies or retires, that is, when the
survivor benefits irrevocably vest in the current
spouse and it 1s too late to do anything about it”)
(quotation omitted); Anderson v. Marshall, 856
F Supp. 604, 607 (D.Kan.1994):; cf. Fox Valley &
Vicinity Constr. Workers Pension Fund v. Brown,
$97 F.2d 275 (7th Cir.1990) (en banc) (allowing the
waiver of surviving spouse benefits as required in a
divorce decree entered prior to the participant’
retirement); but see Torres v. Torres, 100 Hawaii
397, 60 P.3d 798 (Haw.2003)
[13] Because the retirement of a plan
participant ordinarily creates a vested interest in
the surviving spouse at the time of the participant’:
retirement, we conclude that a DRO issued after
the participant's retirement may not alter or assign
36a
the surviving spouse's interest to a subsequent
spouse. The Nevada family court's attempted
transfer of interests in Janis's surviving spouse
benefits to Judy is prohibited
It is important to note that this opinion does not
disturb our prior holding in TJise. Fundamentally,
Tise answers a very different question from the one
presented here. In Tise, we determined when a
DRO, which creates an enforceable interest in an
alternate payee, can be “qualified” for QPSA
benefits. Tise established that a _ state court
domestic relations order may be qualified even
after a participant's death, “[b]ecause a QDRO only
renders enforceable an already-existing interest.”
234 F.3d at 421. In contrast, here we ask whether
there are any restrictions as to when a state can
create an enforceable interest in an alternate payee
for QJSA surviving spouse benefits. We hold here
only that a state DRO may not create an
enforceable interest in surviving spouse benefits to
an alternate payee after a participant's retirement,
because ordinarily at retirement the surviving
spouse's interest irrevocably vests.}%
13° We say “ordinarily” because we recognize that there
may be other situations, not present in this case, in which a
contrary result may be appropriate. For example, it is
possible that a former spouse could obtain a DRO prior to the
annuity start date and present it to the plan, but the actual
determination of whether the DRO is a QDRO might not be
finalized prior to the date on which the benefit would
normally become payable. See, e.g., 29 U.S.C. § 1056(d)(3)(H).
37a
Additionally, ERISA only permits state court
DROs to reassign surviving spouse benefits if they
meet the requirements of 29 U.S.C. § 1056(d)(3)(F).
Hamilton, 433 F.3d at 1099. Section 1056(d)(3)(F)
governs the use of QDROs to reassign benefits
pursuant to 29 U.S.C. § 1055 and states that “to the
extent provided in any qualified domestic relations
order the former spouse of a participant shal! be
treated as a surviving spouse of such participant....”
We have interpreted this provision as permitting a
transfer of surviving spouse benefits established
under section 1055 only if the QDRO expressly
assigns surviving spouse rights to a former spouse.
See Hamilton, 433 F.3d at 1099. Here, Judy is nota
“former spouse” but rather is a “future” or
“subsequent spouse” because she married Lupe
after his retirement. See Hopkins, 105 F.3d at 157
n. 6. No part of ERISA contemplates reassignment
of surviving spouse benefits to a _ future or
subsequent spouse. We take Congress's silence with
respect to the rights of a future or subsequent
spouse to obtain control of surviving spouse
benefits as “powerful support for the conclusion
that the right does not exist.” Boggs, 520 U.S. at
847-48, 117 S.Ct. 1754.
Judy also argues that Janis waived her right to
the surviving spouse benefits by the property
settlement when the state court entered its divorce
decree. As the Supreme Court made clear in
Kennedy, ERISA's antialienation provision does not
prohibit a surviving spouse beneficiary from
waiving his or her interest in plan benefits, but
such a waiver must also conform to plan procedures
and instruments. Indeed, the Court concluded that
the plan administrator in that case was not, under
38a
the terms of the plan, required to honor the waiver
of benefits contained in the divorce decree and that
the continued payment of benefits to the prior
spouse was proper. See Kennedy, 129 S.Ct. at 874-
78. Under the so-called “plan documents rule,” plan
administrators must “hew[ ] to the directives of the
plan documents” rather than “examin{ing] a
multitude of external documents that might
purport to affect the dispensation of benefits” and
becoming “drawn into litigation like this over the
meaning and enforceability of purported waivers.”
Id. at 876, 877 (internal quotation marks omitted).
Both the IATSE plan documents and ERISA's
statutory scheme allow for the waiver of surviving
spouse benefits with both spouses' written consent
during the benefits election period prior to the
participant's retirement. 29 U.S.C. § 1055(c)(8).
That procedure was not followed here. Judy has
identified nothing in the IATSE plan documents
which require the plan administrator to redirect
surviving spouse benefits to Judy, who was not, at
the time of retirement and vesting, either a present
or former spouse. Even if it is assumed that Janis
had the authority to disclaim benefits, there is
nothing that provides for them to be assigned
instead to Judy.
C. The Constructive Trust
[ATSE also contends that it was impermissible
for the state court to create a constructive trust on
the annuity proceeds. We agree that a state law
constructive trust cannot be used to contravene the
dictates of ERISA.
39a
ERISA preemption supercedes “any and all
state laws insofar as they may now or hereafter
relate to any employee benefit plan” covered by
ERISA. 29 U.S.C. § 1144(a). The Supreme Court
has observed that the preemption provision 1s
“clearly expansive” but that it cannot be taken “te
extend to the furthest stretch of its indeterminacy.”
Egelhoff v. Egelhoff, 532 U.S. 141, 146, 121 S.Ct.
1322, 149 L.Ed.2d 264 (2001) (citations and
internal quotation marks omitted). A state law
“relates to an ERISA plan if it has a connection
with or reference to such a plan.” Jd. at 147, 121
S.Ct. 1322 (citations and internal quotation marks
omitted). To determine whether a state law is
preempted because it relates to an ERISA plan, the
courts look to the nature and effect of the state law
on ERISA plans as well as the objectives of the
ERISA statute. Jd.
In Melton v. Melton, the Seventh Circuit
observed that “Egelhoff stands for the proposition
that a state law cannot invalidate an ERISA plan
beneficiary designation by mandating distribution
to another person.” 324 F.3d 941, 945 (7th
Cir.2003) (citations omitted). The court applied that
proposition to conclude that ERISA preempted a
state court law that permitted the imposition of a
constructive trust on ERISA proceeds. It concluded
that the imposition of a constructive trust to
subvert ERISA-mandated beneficiaries was directly
controlled by Egelhoff and preempted by ERISA. Id.
Thus the court held that state law doctrines
(including constructive trusts) may not be invoked
to assign benefits to parties other than those
designated as beneficiaries under ERISA. Jd.
40a
Furthermore, as the Supreme Court concluded
in Boggs, ERISA can preempt state law even after
benefits have been disbursed to beneficiaries. 520
U.S. at 842 (rejecting the argument that state law
can apply when it affects “only the disposition of
plan proceeds after they have been disbursed by
[the plan] and thus nothing is required of the
plan”). Therefore a state court cannot achieve
through a constructive trust on the proceeds of a
pension plan what this court maintains it cannot
achieve through a QDRO. Any alternative rule
would allow for an end-run around ERISA's rules
and Congress's policy objective of providing for
certain beneficiaries, thereby greatly weakening, if
not entirely abrogating, ERISA's broad preemption
provision.
Judy relies upon our decision in Emard uv.
Hughes Aurcraft Co., 153 F.3d 949 (9th Cir.1998),
for the proposition that once a plan distributes
proceeds to the proper ERISA beneficiary, a state
law created constructive trust is too attenuated to
fall within the mandatory preemption provision. Id.
at 954. Emard, however, was abrogated by
Egelhoff, 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d
264, and thus Emard's holding, to the extent it can
be interpreted as an end-run around ERISA's
mandates, no longer survives.!4
14 Additionally, Emard addressed insurdaiice benefits
and not pension plan benefits. Emard, 153 F.3d at 953. As
noted in Guidry v. Sheet Metal Workers Nat'l Pension Fund,
493 US. 365, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990), ERISA's
antialienation provision applies only to pension benefits and
not welfare benefits. Thus an independent reason (the
4la
[14] In this case, the constructive trust that the
state court created was explicitly an attempt to
avoid ERISA's QDRO, preemption, and
antialienation provisions. We conclude _ that
Congress did not intend to permit the reassignment
of surviving spouse benefits and, therefore the
constructive trust remedy that the state court tried
to impose is also preempted by ERISA. It may not
be that all constructive trusts instituted by state
courts, particularly those that seek to recover ill-
gotten gains, will have a sufficient connection with
or reference to an ERISA plan to trigger ERISA's
preemption provision.!® But when a state court
creates a constructive trust with the explicit
purpose of avoiding ERISA's rules, it too must be
preempted.
antialienation provision) prohibits the use of constructive
trusts to garnish pension benefits in this case. See id. at 371-
72, 110 S.Ct. 680. In Guidry, the Supreme Court concluded
that a constructive trust could not be used to disgorge a
pension plan fiduciary's ill-gotten gains because it was
prohibited by the antialienation provision of ERISA and did
not meet any of the statutory exceptions to the ERISA
provision. See id. at 372-376, 110 S.Ct. 680. On remand, the
Tenth Circuit upheld the imposition of a constructive trust
and concluded that ERISA did not prohibit post-payment
garnishment of ill-gotten gains. See Guidry v. Sheet Metal
Workers Nat'l. Pension Fund, 39 F.3d 1078 (0th Cir.1994)
(en banc). This decision, too, preceded both Egelhoff and
Boggs, and may not survive.
15 In Kennedy, the Court explicitly declined to express a
view on whether an action could have been brought to obtain
benefits from the former spouse after they had_ been
distributed to her. 129 S.Ct. at 875 n. 10.
42a
Congress, through ERISA, has created a set of
fixed property rules state courts are bound to work
within. State family courts can and_ should
distribute property in an equitable manner upon
divorce, but they must take into account ERISA's
rules. ERISA prohibits the state family court from
steering the surviving spouse benefits from Janis to
Judy, but ERISA did not prohibit the state court
from dividing other property or making other
adjustments mindful of the benefits provided under
the ERISA plan. In this instance, the state family
court provided for a transfer of $1500 from Lupe to
Janis based upon the premise that Lupe and Janis
would each retain their pension benefits as
separate property. That premise may have been
faulty, but that does not justify disregarding the
ERISA limitations.
lil. Conclusion
We conclude that Janis's lawsuit against both
Hilton and Judy was properly dismissed by the
district court for lack of subject matter jurisdiction.
Although Janis may have been right on the
underlying substantive issue, she already had her
day in court on the question and, under the
circumstances, 1s barred under the Rooker-Feldman
doctrine from seeking recourse in federal court at
this time.
IATSE’'s similar argument is not’ barred,
however. We agree with its contention that it is not
required to make payment of the surviving spouse
benefits to Judy or to the constructive trust ordered
by the Nevada family court. Under ERISA, Janis's
interest in the surviving spouse benefits vested at
Lupe's retirement and federal law preempted the
state court orders directing the plans to change the
beneficiaries and creating a constructive trust.
We remand the matter to the district court for
whatever further proceedings may be necessary
and appropriate. Each party is to bear its own costs
on appeal.
AFFIRMED in part, REVERSED in part,
and REMANDED.
44a
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
No. CV-S-04-1310-KJD-RJJ
JANIS CARMONA, A.K.A. JANIS KESTER.
Plaintiff,
HILTON HOTELS CORPORATION, RETIREMENT PLAN:
JUDY CARMONA,
Defendants,
September 30, 2005
ORDER
Presently before the Court is Defendant Judy
Carmona's Motion to Dismiss the Amended
Complaint and Cross-Claim (# 31). Plaintiff filed a
response in opposition (## 33). Defendant Trustees
of the Nevada Resort Association International
Alliance of Theatrical and Stage Employees
45a
(““IATSE Trustees”) also filed a response in
opposition (# 32). Defendant Judy Carmona's
motion and the oppositions all incorporated by
reference the previous filings on Defendant Judy
Carmona's Motion to Dismiss the Complaint # 4)
and Motion to Dismiss the Cross-Claim (# 18). The
Court has considered all the briefs and exhibits
filed in opposition to those motions and _ the
corresponding replies and sur-replies.
The Court has also considered Defendant Judy
Carmona's Motion for Extension of Time to File
Opposition to the Motions for Summary Judgment
(# 39). The Court GRANTS the motion to the
extent that it seeks an extension of time to file an
opposition to the IATSE Trustees’ Motion for
Summary Judgment (# 34). The remaining portions
of the motion are DENIED as moot, because
Defendant Judy Carmona voluntarily withdrew
them.
I. Facts and Procedural History
This dispute concerns the survivorship benefits
from Lupe N. Carmona's (“LUPE”) pension plans
with the IATSE ‘Trustees and Hilton Hotels
Retirement Plan (“HILTON”). Lupe originally
designated Plaintiff Jamis Carmona as_ the
beneficiary of these plans, but he later petitioned
the Clark County District Court, Family Division
(“Family Court’) for an order directing the pension
plans to pay those benefits to Defendant Judy
Carmona. Since that time the parties have litigated
this issue at every level of state court as well as in
Federal District Court, Federal Bankruptcy Court,
the United States Supreme Court, and no doubt,
46a
will argue the merits of this order before the Ninth
Circuit Court of Appeals.
Lupe and Plaintiff married on March 7, 1988.
On September 3, 1992, Lupe named Plaintiff as the
beneficiary of survivor benefits on both fire
HILTON and IATSE plans. Lupe retired on
October 1, 992. On October 27, 1994, Lupe filed for
divorce in Family Court. Prior to the divorce, both
Lupe and Plaintiff contacted IATSE and HILTON
to inquire whether he could change her as
beneficiary. The providers informed them verbally
and in writing that Plaintiffs designation as
beneficiary was irrevocable.
Pursuant to a settlement conference, the Famuly
Court granted Lupe both his I[ATSE and HILTON
pensions as his sole and separate property. During
the marriage, Lupe's benefits in his pension plans
had increased more than Plaintiff's own pension.
The Family Court ordered Lupe to pay Plaintiff
$1,500.00 “as and for an equalization of the values
of the marital portion of the pensions divided
herein.” After the divorce, Lupe petitioned the
Family Court for a Qualified Domestic Relations
Order (“QDRO”) revoking Plaintiffs designation as
the beneficiary.
Lupe and Defendant Judy Carmona were
married on November 30, 1997. That same month,
Lupe filed a motion asking the Family Court to
create a constructive trust for the benefit of his new
wife, Defendant Judy Carmona. Lupe contended
that the divorce decree awarded him the entirety of
both pension plans, including the survivor benefits.
He further asserted that Plaintiff would be unjustly
enriched if she dispossessed him of this property.
Plaintiff claimed that survivor benefits are not
death benefits, but an irrevocable interest unde:
both the IATSE and HILTON plans, and thus they
were her sole property. On March 25, 1998, the
Family Court held Plaintiff had not waived he:
rights to the survivor benefits, but the providers
could change Defendant's designation as
beneficiary if they chose.
However, one day after Lupe's death on April
15, 1999, the Family court ordered’ the
administrators of the IATSE and HILTON plans to
change the beneficiary designation pursuant to
Lupe's directions. The Family Court stated that it
would order the establishment of a constructive
trust for Defendant Judy Carmona's benefit if the
administrators failed to make the change. Plaintiff
argued that after Lupe's death, he and his estate
were divested of any further interest in the pension
plans, leaving Defendant Judy Carmona with no
interest in the survivor benefits because those
benefits were now vested in Plaintiff.
Plaintiff appealed the Family Court's orders to
the Nevada Supreme Court. @n October 21, 2003,
the Nevada Supreme Court affirmed the Family
Court's order establishing a constructive trust. It
found the divorce decree awarded Lupe his pension
rights including the survivor benefits. The Court
also addressed Plaintiff's argument that the
Employee Retirement Income _ Security Act
(“ERISA”) preempted the Family Court's creation of
a constructive trust relating to ERISA regulated
benefits. The Court stated that although ERISA
prohibits alienation of benefits other than to the
4a
designated participant or survivor beneficiary, the
Retirement Equity Act (“REA”) of 1984 provided an
exception to ERISA's anti-alienation provision,
which allowed the designation of an alternate
payee through a QDRO
The Nevada Supreme Court also found Plaintiff
had waived her rights to the survivor benefits from
Lupe's plans upon her receipt of the $1,500.00
payment. Additionally, it found the Family Court's
creation of the constructive trust was essential to
effectuate Lupe's wishes and it would be
inequitable to allow Plaintiff to retain the benefits
because she was no longer married to Lupe at the
time of his death
Plaintiff appealed this decision to the United
States Supreme Court. On April 19, 2004, the
United States Supreme Court denied certiorari. In
addition to Plaintiffs appeals to the Nevada
Supreme Court and the United States Supreme
Court, on February 4, 2004, a United State
Bankruptcy Court held that Plaintiff did not have a
legal or equitable interest in the survivor benefits
Further, in two separate prior actions, this Court
has denied Plaintiff relief. On August 14, 2001,
Chief Judge Philip M. Pro held that because ERISA
permitted state and federal courts to exercise
concurrent jurisdiction, the Court would not
“relitigate issues where another court had
jurisdiction and made a@ final determination.’
Kester 1 Gaston. Case No CV-S-01-0431-PMP
(PAL), Order, Doc. # 36 at 4 (D.Nev. Aug. 14, 2001)
49a
Then, on April 2, 2004, the Family Court issued
an order requiring Plaintiff to deposit the survivor
benefit funds she received into a constructive trust
The Family Court noted that both the Bankruptcy
Court and the Nevada Supreme Court had ruled
the funds in question were not Plaintiff's property
That same day, the Family Court entered two
QDRO's ordering the two plans to pay the survivor
benefits either to Defendant Judy Carmona or to a
constructive trust account for Defendant Judy
Carmona's benefit. On April 28, 2004, Plaintiff filed
a Notice of Removal in Federal District Court for
the District of Nevada. See Carmona v. Carmona,
Case No. CV-S-04-0534-PMP (RJJ), Petition for
Removal, Doc. # 1 (D.Nev.)
On August 25, 2004, the Court remanded the
action back to Family Court. The Court found that
Plaintiff had failed to timely remove the case, and
had waived her right to remove the ERISA claim
See id. at 6. The Court recited part of its previous
order in CV-S-01-0431-PMP notifying Plaintiff that
a “United States District Court does not have the
authority to review a final judgment” of a state
court proceeding citing Rooker vu. Fidelity Trust Co.,
263 U.S. 413 (1923) and Dist. of Columbia Court o/
Appeals v. Feldman, 460 U.S. 462 (1983). Id. at 7
Now, Plaintiff has filed suit in Federa] District
Court for the third time. In an attempt to avoid the
results of claim and issue preclusion as well as the
Rooker-Feldman doctrine, Plaintiff has brought suit
alleging exclusive federal court jurisdiction and has
named the two pension trust funds as defendants
In addition to Defendant Judy Carmona
Additionally, the [ATSE ‘Trustees have filed
50a
cross-claim against Defendant Judy Carmona
seeking declaratory relief. Defendant Judy
Carmona has filed a motion to dismiss Plaintiff's
complaint and IATSE's cross-claim. Essentially,
Defendant Carmona asserts that res judicata and
the Rooker-Feldman doctrine preclude’ those
claims.
Il. Rooker-Feldman Doctrine
A. Application to Plaintiff's Complaint
The Rooker-Feldman doctrine is based on the
statutory proposition that federal district courts are
courts of original, not appellate jurisdiction. See In
re Sasson, 2005 WL 2210195 (9th Cir.2005)(citing
28 U.S.C. § 1331, 1332). Therefore, federal district
courts have “no authority to review the final
determinations of a_ state court in_ judicial
proceedings.” Worldwide Church of God v. McNair,
805 F.2d 888, 890 (9th Cir.1986). Only the Supreme
Court has original jurisdiction to review the final
judgments or decrees rendered by the highest state
court of a state in which a decision could be had.
See Sasson at 5 (citing 28 U.S.C. § 1257(a)).
The United States Supreme Court has recently
clarified the limit of the Rooker-Feldman doctrine:
“The Rooker-Feldman doctrine ... is confined to
cases of the kind from which the doctrine acquired
its name: cases brought by state-court losers
complaining of injuries caused by state-court
judgments rendered before the district court
proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon
Mobil Corporation v. Saudi Basic Inds. Corp., 125
5la
S.Ct. 1517, 1521-22 (2005). Therefore, three factors
must exist in the present action for the Court to
find that it lacks subject matter jurisdiction over
the claims raised by Plaintiff. First, the case must
be brought by a state-court loser. Second, the state-
court loser must be complaining of injuries caused
by state-court judgments rendered before the
district court proceedings commenced. Finally, the
complaint must invite review and rejection of the
state-court judgments.
All three factors are satisfied in this case, and
thus, this Court lacks subject matter jurisdiction
over Plaintiff's complaint. First, Plaintiff is a state-
court loser. Plaintiff is complaining of’ injuries
caused by the state court judgments: primarily, the
Nevada Supreme Court's determination that the
state court action was not preempted by ERISA
and that Plaintiff had executed a valid waiver of
her spousal interest in Lupe's pension. That
determination was rendered on October 21, 2003
before Plaintiffs claim was filed in this action on
September 20, 2004. Finally, though Plaintiff
attempts to artfully draft the complaint, it is clear
from the pleadings that Plaintiff is inviting this
Court to review and reject the determinations of
the Nevada Supreme Court. Plaintiff's complaint is
the classic case where the Rooker-Feldman doctrine
declares such suits “out of bounds”,! and it must be
1 Plaintiff has asserted that as pled the complaint
arises under the exclusive jurisdiction of this Court and as
such, an exception applies barring application of the Rooker-
Feldman doctrine. See G.C. and K.B. Investments v. Wilson,
326 F.3d 1096, 1103 n. 4 (9th Cir.2003). However, that
argument ignores the fact that concurrent jurisdiction existed
52a
dismissed for want of subject-matter jurisdiction
See id. at 1521.
B. Application to IATSE's Cross-claim
However, Rooker-Feldman does not bar IATSE's
cross-claim. Despite Defendant Judy Carmona's
strident assertions that the IATSE Trustees should
be considered in privity with Plaintiff, Defendant
Judy Carmona has not cited the Court to any
relevant legal authority that leads to that
conclusion. Rooker-Feldman bars only the losing
party in the state suit, and has no application to a
federal suit brought by a nonparty to the state suit.
See id. at 1523 (citing Johnson v. De Grandy, 512
U.S. 997, 1005-1006 (1994)).
Furthermore, the principles of res judicata do
not bar IATSE's cross-claim for the same reason. A
federal action may be barred by the doctrine of res
judicata where an earlier lawsuit: (1) involved the
same claim as the present suit; (2) reached a final
judgment on the merits; and (3) involved the same
parties or their privies. See Blonder-Tongue
Laboratories v. Univ. Of Ill. Found., 402 U.S. 313,
323-324 (1971). A person may be precluded from
pursuing a claim if a prior party so closely
represented his legal interests as to be his virtual
when the action was proceeding in state court Inexplicably,
the parties failed to remove the action before the thirty-day
limit expired leading this Court to find in CV-S-04-0534-PMP
that Plaintiff had waived her right to removal of the ERISA
claim Thus Plaintiff implicitly subjected herself to the final
determination of the state court.
53a
representative. See Nordhorn v. Ladish Co., Inc ., 9
F.3d 1402 (9th Cir.1993). Defendant Judy Carmona
has not adequately established that Plaintiff so
closely represented the IATSE Trustees' legal
interests as to be their virtual representative.
Therefore, the Court declines to dismiss the [ATSE
Trustees’ cross-claim.
However, the Court recognizes that the IATSIK
Trustees and HILTON could have prevented some
of the extensive and unnecessary litigation in this
matter simply by interpieading the funds in issue
and seeking a determination as to whether their
determinations that the domestic relations orders
in dispute were qualified or not were accurate.
Certainly such a course of action would have been
more prudent than filing a cross-claim that could
subject the pension funds to an award of attorney's
fees by taking an adversarial stance rather than by
proceeding as a “neutral stakeholder in a typical
statutory interpleader action.” Trustees of the
Directors Guild of America-Producer Pension
Benefits Plans v. Tise, 234 F.3d 415, 427 (9th
Cir.2000). In fact, the parties seem to be
positioning themselves to resolve the issue of
whether the plan participant's retirement cuts off a
putative alternate payee's right to obtain an
enforceable QDRO, an issue the Tise court
2 29 USC. § 1056(d)(3)CGH)d) allows a court of
competent jurisdiction to determine whether a state court's
order meets the statutory requirements to be a QDRO. See,
also, Trustees of the Directors Guild of America-Producer
Pension Benefits Plans v. Tise, 234 F.3d 415, 421, 426 (9th
Cir.2000).
54a
recognized was unresolved in the Ninth Circuit. See
id. at 423 n. 6.
IIL. Conclusion
Accordingly, IT IS HEREBY ORDERED that
Defendant Judy Carmona's Motion to Dismiss (# 4)
is DENIED as moot;
IT IS FURTHER ORDERED that Defendant
IATSE Trustee's Motion to Expedite Diuspositive
Motion Practice (# 8) is GRANTED;
IT IS FURTHER ORDERED that Defendant
IATSE Trustee's Motion to Stay State Court
Proceedings (# 9) is DENIED;
IT IS FURTHER ORDERED that Defendant
Judy Carmona's Motion to Dismiss Cross-claim (#
18) :s DENIED as moot;
IT IS FURTHER ORDERED that Defendant
Judy Carmona's Motion to Exceed Length of Reply
(# 21) is GRANTED;
IT IS FURTHER ORDERED that Defendant
Judy Carmona's Motion to Dismiss Amended
Complaint and Cross-claim (# 31) is GRANTED in
part and DENIED in part;
IT IS FURTHER ORDERED that Plaintiff's
complaint is DISMISSED;
IT IS FURTHER ORDERED that Defendant
Judy Carmona's Motion to Dismiss the Cross-claim
is DENIED;
Iva
IT IS FURTHER ORDERED that Plaintifi's
Motion for Summary Judgment (# 35) is DENIED
as moot;
IT IS FURTHER ORDERED that Defendant
Judy Carmona's Motion for Extension of Time to
File an Opposition to Cross-Claimant's Motion for
Summary Judgment (# 39) is GRANTED;
IT IS FURTHER ORDERED that Motions (# 41,
42. 43, 52, 57 and 62) are DENIED as moot;
IT 1S FURTHER ORDERED that Defendant
Judy Carmona's Motion to Withdraw
Countermotion (# 44) is GRANTED.
DATED this 30th day of September 2005.
si,
Kent J. Dawson
United States District Judge
56a
APPENDIX C
SUPREME COURT OF -TEVADA
No. 35851
JANIS CARMONA, A.K.A. JANIS KESTER,
Plaintiff, |
JUDY CARMONA. AS SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA, DECEASED,
Respondent. |
October 21, 2003.
ORDER OF AFFIRMANCE
These are two consolidated appeals from several
district court orders in the same district court case.
The orders appealed from impose a constructive
trust on survivor benefits, designate a successor
representative, and award attorney fees.
ry
Sila
Lupe Carmona was formerly married _ to
appellant Janis Carmona. Before marring Janis,
Lupe worked for the International Alliance of
Theatrical Stage Employees (IATSE). During
marriage, both Lupe and Jamis worked for the
Hilton Hotel Corporation. Lupe was eligible for
pension benefits with IATSE and the Hilton Hotel
Corporation and elected the qualified joint and
survivor annuity (QJSA) option for married couples
on his pensions. Janis was lsted as his survivor
beneficiary for both plans. Lupe retired in 1992 and
began receiving payments from his pensions.
In November 1997, Lupe and Janis divorced. In
the divorce decree, Lupe was awarded his pensions
as his separate property, but was ordered to pay
Janis $1,500 for her marital portion of his pension.
After Lupe married respondent Judy
Walkington shortly after his divorce from Janis, he
tried to change the designation of his survivor
beneficiary from Janis to Judy. However,
representatives of both Hilton Hotel and IATSE
informed Lupe that a change of beneficiary after
commencement of retirement is prohibited. The
Hilton Hotel representative added that the
Employee Retirement Income Security Act (RISA)
prohibits such a change, unless a Qualified
Domestic Relations Order (QDRO) “which waives
the spouse's right to survivor benefits is served on
the Plan.” Accordingly, Lupe requested the district
court to enter a QDRO ordering his pension plan
administrators to grant his election of a new
survivor benef ciary.
58a
At first, the district court refused to issue a
QDRO that changed the _ beneficiary. But
subsequently, after Lupe's death, the district court
found that the parties had agreed that Lupe's
retirement benefits, including the survivor benefits,
were his sole and separate property. The district
court ordered the plan administrators to change the
survivor beneficiary in accordance with Lupe's
request, and if they did not, the district court
stated that it “will Order the establishment of a
Constructive Trust for the benefit of Lupe's
designated beneficiary wherein the survivorship
funds, if received by Janis, will be held in trust for
receipt by Lupe's designated beneficiary.” The
district court subsequently issued an order
directing Janis to establish a constructive trust of
the survivorship funds from Lupe's-retirement
plans for the benefit of Judy. Janis appeals.!
Janis's argument that the district court's first
order refusing to impose a QDRO is res judicata
has no merit. In the first order, the district court
refused to issue the QDRO, but with additional
information and arguments, the court could and did
issue a QDRO. The first order was not final as is
required for res judicata to apply. There was
nothing inconsistent between the two orders, either
in law or fact.
1 ~=6dudy argues that Janis's appeal of the district court's
April 16, 1999 order and constructive trust order of June 22,
1999, should be dismissed because Janis's notice of appeal of
March 21, 2000, was untimely pursuant to NRAP 4. Judy's
argument is without merit as Janis's motions were tolling
motions under NRCP 52(b) and NRCP 59. See NRAP 4(a)(2).
59a
Janis's argument that the constructive trust
unlawfully modifies the divorce decree is also
without merit. The constructive trust does not
modify the divorce decree since the district court
concluded that in the divorce decree, Lupe's
pension rights, including the survivor benefits,
were awarded as his sole and separate property.
Janis argues that all district court orders
entered during the period in which there was no
designated successor representative for Lupe are
void. Before a judgment may affect a deceased
party's estate, the personal representative of the
deceased party must be substituted as a party.”
Without such substitution, a judgment is voidable.*
However, in this case, two months after Judy was
substituted, the district court reconsidered all the
orders issued during the time there was no
successor representative. Therefore, the district
court's orders are not void.
Janis's most important argument is that ERISA
preempts the district court's orders and _ the
constructive trust relating to ERISA-regulated
benefits. Both of Lupe's pensions are regulated by
ERISA, and interplay between ERISA and state
law is not always clear. ERISA specifically provides
that it “shall supercede any and all State laws
insofar as they may now or hereafter relate to any
2 Koester v. Estate of Koester, 101 Nev. 68, 72, 693 P.2d
569, 572 (1985).
oe | 2
60a
employee benefit plan.”4 ERISA also prohibits
alienation of benefits other than to the designated
participant or survivor’. beneficiary.6 The
Retirement Equity Act of 1984 provides an
exception to the anti-alienation provisions of
ERISA by allowing designation of an alternate
payee through the issuance of a QDRO.& The
statute defines a QDRO, in relevant part, as a
domestic relations order “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.”’
The pension plang offered by Lupe's employers
were required by ERISA to offer married employees
survivor benefits.2 One of ERISA's provides that
the joint and survivor annuity form of benefit can
be waived by the participant, Lupe, with the
spouse's written consent in the 90-day period prior
4 29 Us. § 1144(a) (Lexis 1998): see also Villescas
CNS Ins. Co., 109 Nev. 1075, 1080, 864 P.2d 288, 292 (1993);
Marcoz v. Summa Corporation, 106 Nev. 737, 748, 801 P.2d
1346, 1350 (1990).
29 U.S.C.S. § 1056(d)(1) (Lexis 1998)
6 29US.CS. § 1056(d)(3).
7 929US.CS. § 1056(d)(3)(B)(i)().
8 29 U.S.C.S. § 1055(a)(1) & (b)(1) (Lexis 1998); see also
Ronald J. Cooke, ERISA Practice and Procedure § 4:44, 4-174
(2d ed.2002).
bla
to the retirement date. Here, Lupe retired and
began receiving payments from his pensions in
1992, at which time he was still married to Janis.
Therefore, it is Janis's contention that the survivor
benefits irrevocably vested in her as Lupe's named
beneficiary upon the date of his retirement.
Judy responds that Janis waived her survivor
beneficiary benefits in the divorce decree. Federal
courts disagree as to whether ERISA authorizes a
claim of waiver, but a majority of federal circuits
have concluded that “ERISA does not preempt an
explicit waiver of interest by a nonparticipant
beneficiary” of KE RISA-regulated benefits. !°
Common law is employed to effectuate the clear
intent of the parties as to who is the beneficiary.!!
“[W]ho is entitled to the proceeds of an ERISA plan
may depend upon more than merely the plan
documents, and may be _ properly defined by
reference to ... the particular facts of the case.”!”
In this case, the district court found that Janis
agreed in the divorce action that Lupe would
receive the entirety of his retirement plans upon
paying her $1,500. Once Lupe paid Janis the
9 29 LJ S r § LO55i(c)
10 Melton v. Melton, 324 F.3d 941, 945 (7th Cir.2003); see
also Manning v. Hayes, 212 F.3d 866, S71 (5th Cir.2000), cert
denied. 532 U.S. 941 (2001)
1! Manning, 212 F.3d at 871; Silber v. Silber, 786 N.E.2d
1263, 1268 (N.Y.2003)
i2 Id
62a
$1,500, she had no more interest in his retirement
plans, including the survivor benefits. The district
court found that the survivor benefits were not an
omitted asset in the divorce decree, but were
contemplated by the parties and that each received
the total benefit package of their respective pension
plans. The district court's findings are supported by
substantial evidence. Since the pension plan
administrators would not recognize Lupe's change
of beneficiary and payments were being made to
Janis, the district court ordered that Janis hold the
proceeds received in constructive trust for Judy
Janis also argues that the imposition of a
constructive trust relating to an employee benefit
plan is preempted by ERISA. However, ERISA does
not preclude the imposition of a constructive trust
after benefits are distributed to a_ beneficiary
according to the pension plan.'' Additionally, we
agree with the Hawai Supreme Court that ERISA
does not govern our interpretation of the divorce
decree
‘3. Central States, SK & SW Areas Pension Howell, 22
I 3d 672, 678-79 (6th Cir.2000) (holding that a constructi,
trust could be imposed on employee welfare plan benefit
after distribution to beneficiary). The anti-ahenation clause
does “not protect private pension benefits once paid to and
received by the beneficiary.” Guidry v. Sheet Metal Workers
Nat. Pension Fund, 39 F.3d 1078, 1081 (10th Cir.1994): see
also Emard v. Hughes Aircraft Co., 153 F.3d 949, 955 (9th
Cir.1998), overruled on other grounds by Egelhoff v. Egelhof/
532 U.S. 141, 146, 151-52 (2001)
63a
The resolution of competing claims involving
such matters as alimony, child support, and
property (including pension interests)
accrued during a marriage is entirely with
the province of state domestic relations law
ERISA's ‘qualification’ of such domestic
relations orders is concerned solely with
enabling the plan to fulfill its fiduciary
duties by ensuring that its obligations are
clear and its liabilities are kept within the
bounds of its contract and federal law.'4
A constructive trust may be imposed if: “(Ja
confidential relationship exists between the parties:
(2) retention of legal title by the holder thereof
against another would be inequitable; and (3) the
existence of such a trust 1s essential to the
effectuation of justice.”!® In this case, there was a
confidential relationship between Janis and Lup:
as they were previously married and Jams was
designated as Lupe's survivor beneficiary. ‘Th
district court found that Janis's retention of the
pension benefits would be inequitable since Lupe
was no longer married to Janis at the time of hi:
death, and he specifically requested that Judy be
named beneficiary of his survivor benefits. The
pension plan administrators would not change the
beneficiary because of formal plan requirements. A
constructive trust is essential to effectuate the
Torre lorre 60 P d 79 817 (Haw 2002
Loc hey mit Lor hee rl, Yrs Nev 309. i 650 ? Z0 0.3 405
(1982)
64a
wishes of the plan participant. The district. court's
imposition of a constructive trust was proper
Janis disputes the district court's award. of
attorney fees of $15,000 to Judy as arbitrary and
lacking a= statutory basis. Pursuant to NERS
125.150(3), a district court has wide discretion in
awarding attorney fees in an action for divorce
when such fees are raised in the pleadings, and its
determination will-not be disturbed upon appeal
absent abuse.'© We have previously concluded tha
the district court has discretion to award attorney
fees in post-divorce proceedings.'? Upon a review of
the various and = extensive’ proceedings, we
determine that the district court did not abuse its
discretion in granting attorney fees
We ORDER the judgment of the district court
AFFIRMED.
1b furr uv. Burr, 96 Nev. 480, 482, 611 P.2d 623, 624
(1980)
17 Jlalbrook v. Halbrook, 114 Nev. 1455, 1460-61, 971
P 2d 1262, 1266 (1998)
Oba
APPIENDIX D
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 06-15581, 06-15938
JANIS CARMONA,
Plaintiff, |
JUDY CARMONA: HILTON HOTELS CORPORATION.
RETIREMENT PLAN,
Defendants, |
NEVADA RESORT ASSOCIATION INTERNATIONAL
ALLIANCE OF THEATRICAL AND STATE IESMPLOYEES
LOCAL, 720 PENSION ‘TRUST (1L.A.T.S.E. TRUSTEES),
Cross-Claimant-Appellant,
JUDY CARMONA, SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA DECEASED.
Cross-Defendant-Appellee.
OG6a
JANIS CARMONA, A.K.A. JANIS KESTER.
|
|
Plaintif{f-Appellant, |
}
JUDY CARMONA, SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA DECEASED: LLTON HOTELS
CORPORATION, RETIREMENT PLAN, |
Defendants-Appellees. |
september 10, 2010
Before: Hawkins. Thomas. and Clifton,
Circuit Judges
ORDER
The panel has voted to deny (1) Cross
defendant-Appellee Judy Carmona's Petition for
Rehearing Kn Banc, filed May 17, 2010, and (2)
Plaintiff-Petitioner Janis Carmona's Petition for
Panel Rehearing and for Rehearing En Banc, filed
June 16, 2010. Judges Thomas and Clifton have
voled to deny the petitions for rehearing en banc;
and Judge Hawkins so recommends.
The full court has been advised of the petitions
for rehearing en banc and no judge of the court has
requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 35.
The petition for rehearing and the petitions for
rehearing en banc are DENIED.
Ola
The Motion for Leave to File Amicus Curiae
Brief Supporting Appellee's Petition for Rehearing
or Rehearing En Bane and Motion to Extend the
Time of to File Amicus Curiae Brief, filed August
20, 2010, is DENIED
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 06-15581, 06-159388
JANIS CARMONA,
Plainttff,
JUDY CARMONA: HILTON HOTELS CORPORATION,
RETIREMENT PLAN,
Defendants,
NEVADA RESORT ASSOCIATION INTERNATIONAL
ALLIANCE OF THEATRICAL AND STATE EMPLOYEES
LOCAL 720 PENSION TRUST (L.A.T.S.E. TRUSTEES),
Cross-Claimant- Appellant,
JUDY CARMONA, SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA DECEASED,
Cross-Defendant-Appellee.
69a
JANIS CARMONA, A.K.A. JANIS KESTER
Plaintiff-Appellant,
JUDY CARMONA, SUCCESSOR REPRESENTATIVE OF
LUPE N. CARMONA DECEASED: HILTON HOTELS
CORPORATION, RETIREMENT PLAN,
Defendants-Appellees.
September 21, 2010
Before: Hawkins, Thomas, and Clifton,
Circuit Judges
ORDER
The motion for stay of mandate pending filing of
a petition for certiorari, filed on behalf of Janis
Carmona on September 16, 2010, is GRANTED.
Pursuant to Fed. R. App. P. 41(d)(2)(B), the stay
will not extend more than 90 days from the date of
denial of the petition for rehearing unless the
period is extended for good cause or unless the
party who obtained the stay files a petition for the
writ and so notifies the Clerk of this court in
writing within the period of the stay. In that case,
the stay continues until the Supreme Court’s final
disposition.
70a
APPENDIX F
DISTRICT COURT
CLARK COUNTY, NEVADA
No. D181580
LUPE CARMONA,
Plaintiff,
V.
JANIS CARMONA,
Respondent.
October 27, 1994
COMPLAINT FOR DIVORCE
COMES NOW Plaintiff, LUPE N. CARMONA,
by and through his counsel, GERALD F. NEAL,
ESQ., and for cause of action states:
Tila
For more than six (6) weeks preceding the
commencement of this action, Plaintiff has been,
and now is, an actual and bona fide resident and
domiciliary of the State of Nevada.
IT.
Plaintiff and Defendant were intermarried in
the City of Las Vegas, State of Nevada, on or about
the 7th day of March 1988, and ever since have
been, and now are, husband and wife.
IIT.
That there are no minor children born the issue
of said marriage; there are no adopted children;
and to the best of Plaintiffs knowledge, Defendant
is not pregnant at this time.
IV.
That there is community property of the parties
hereto consisting of but not. limited to the following:
(a) 1989 Toyota Cressida automobile to which
there are no encumbrances;
(b) 1990 Toyota 4x4 V-6 Pick Up Truck with
encumbrances thereon;
V.
That there is sole and separate property of the
Plaintiff described as follows:
79,
(La
(a) The family residence situated at 7928
Wishing Well Road, Las Vegas, Nevada 89123, with
encumbrance thereon;
(b) The residence situated at 4208 Sheppard
Drive, Las Vegas, Nevada 89121, with
encumbrance thereon;
(c) The residence situated at 2115 San Simeon
Street, Las Vegas, Nevada 89108, with
encumbrance thereon:
(d) The residence situated at 204 Potential
Drive, Hollister, Missouri, with encumbrance
thereon:
(e) 1978 Chevy 4x4 Pick Up Truck to which
there are no encumbrances;
(f) Social Security Benefits;
(¢) Pension through the Hilton Hotels;
(h) Pension through the Carpenter's Union;
Gi) L.A.S.T.E. Pension;
(j) Any and all shares of stock through Merrill
Lynch;
(k) Any and all shares of stock through Ozark
Mountain Bank.
T3a
VI.
That there is community debts of the parties
hereto consisting of but not limited to the following
to be awarded to Plaintiff as his sole and separate
obligations holding Defendant harmless there from:
(a) Dovenmuehle Mortgage Company, account #
158707-0, approximate balance of $19,841.44 as
and for the lst mortgage on the family residence
situated at 7928 Wishing Well Road, Las Vegas,
Nevada 89123:
(b) I1.A.S.T.E. Mortgage Company, account #
452003, approximate balance of $5,450.57 as and
for the 2nd mortgage on the family residence
situated at 7928 Wishing Well Road, Las Vegas,
Nevada 89123:
(c) Metmor Financial, Inc., account # 931635-7,
approximate balance of $62,393.55 as and for the
mortgage on the residence situated at 4208
Sheppard Drive, Las Vegas, Nevada 89121;
(d) IFT ResidentiaV/Capital Servicing, Inc.,
account # 5486085, approximate — balance
$50,582.46 as and for the residence situated at
2115 San Simeon Street, Las Vegas, Nevada 89108;
(d) Ozark Mountain Bank, account # 002011369,
approximate balance of $108,567.95 as and for the
mortgage on the residence situated at 204 Potential
Drive, Hollister, Missouri.
(e) I.A.S.T.E., account # 1198001, approximate
balance of $4.093.10 as and for the obligation on
the 1990 Toyota 4x4 V-6 Pick Up Truck.
l4a
Vil.
That any debt incurred by either party from and
after the date of separation of the parties being
October 26, 1994, shall be the sole and separate
debt of the party incurring that debt, and each
party shall hold the other harmless from any such
debt.
VILL.
That the parties hereto are incompatible in
marriage.
WHEREFORE, Plaintiff prays for judgment
against Defendant as follows:
1. That the bonds of matrimony now and
heretofore existing between the Plaintiff and
Defendant be dissolved, and that the Plaintiff be
granted an absolute Decree of Divorce and that
each of the parties hereto be restored to the status
of a single unmarried person.
2. That the court enter an order dividing the
community property of the parties in an equitable
manner as follows:
To Plaintiff:
(a) 1990 Toyota 4x4 V-6 Pick Up Truck with
encumbrances thereon;
(b) Personal items and effects now in Plaintiffs
possession.
To Defendant:
(a) 1989 Toyota Cressida automobile to which
there is no encumbrances;
(b) Personal items and effects not in Defendant’s
possession.
2. That this Court confirm Plaintiffs sole and
separate property as set forth in the complaint
hereinabove.
3. That Plaintiff assume the community debts of
the parties as set forth in the complaint
hereinabove holding Defendant harmless
therefrom.
4. That any debt incurred by either party from
and after the date of separation of the parties being
October 26, 1994, shall be the sole and separate
debt of the party incurring that debt, and that each
party shall hold the other harmless from any such
debt.
5. For Such other and further relief as the Court
may deem just and proper.
GERALD F. NEAL, ESQUIRE
| | RS eter
GERALD F. NEAL, ESQ.
Bar No. 000353
P.O. Box 93118-98
Las Vegas, Nevada 89183-3118
ATTORNEY FOR PLAINTIFF
76a
APPENDIX G
DISTRICT COURT
CLARK COUNTY, NEVADA
No. D181580
LUPE N. CARMONA
Plaintiff,
JANIS CARMONA, |
Defendant
JANIS CARMONA.
|
Counterclaimant, |
|
LUPE N. CARMONA
Counterdefendant. |
November 23, 1994
lla
ANSWER TO COMPLAINT FOR DIVORCE
AND COUNTERCLAIM
COMES NOW, the Defendant/Counterclaimant,
JANIS CARMONA, (hereinafter referred to as
Defendant) by and through her attorney PETER J.
BELLON, ESQ., and answers the
Plaintiff/Counterdefendant's (hereinafter referred
to as Plaintiff) Complaint and makes _ her
Counterclaim for divorce as follows:
I.
Defendant admits each and every allegation in
Paragraphs I, II, and III of Plaintiff's Complaint for
Divorce.
IT.
Defendant denies Paragraphs V, VII and VIII of
Plaintiff's Complaint for Divorce
ITT.
Defendant admits to the allegation that there is
community property of the Parties but denies each
and every ether allegation contained in Paragraph
[V of Plaintiff's Complaint.
[V.
Defendant herein admits that there are
community debts of the Parties but denies each and
every other allegations contained in Paragraph VI
of Plaintiff's Complaint.
T8a
COUNTERCLAIM
COMES NOW, Counterclaimant, JANIS
CARMONA, and for her claim for relief against the
Counterdefendant, LUPE N. CARMONA, alleges a:
follows
That the Counterclaimant, JANIS CARMONA
is, and for more than six weeks immediately prior
to the filing of this action been, an actual, bona fide
resident and. domiciliary of the County of Clark,
State of Nevada, actually, physically and corporally
present and residing and being domiciled therein
during all of said period
That the Counterclaimant, JANIS CARMONA
and Counterdefendant, LUPE N. CARMONA
intermarried at I.as Vegas, Nevada on the 7th day
of March, 1988, and ever since said date have been
and now are husband and wife
IT]
That there are no minor children born the issue
of this marriage; no children were adopted during
the course of this marriage and to the best of her
knowledge Counterclaimant is not pregnant at thi:
Lime
79a
IV.
rT. - . ~
That there is community property of the parties
hereto that need be adjudicated by the Court,
including, but not limited to, the following:
|. 1989 Cressida automobile:
2. 1990 Toyota 4X4 V-6 Pickup Truck, subject to
encumbrances;
3. 1978 Chevy 4X4 Pickup Truck;
4. Community interest in the equity in the
property located at 7928 Wishing Well Road, Las
Vegas, Nevada, 89123, subject to encumbrances;
©. Community interest in the equity in the
property located at 4208 Sheppard Drive, Las
Vegas, Nevada, 89121, subject to encumbrances:
6. Real property located at 2115 San Simeon
Street, Las Vegas, Nevada, 89108, subject to
encumbrances:
7. Real property located at 204 Potential Drive,
Hollister, Missouri, subject to encumbrances:
8. Plaintiffs pension through the Hilton Hotel,
9. Any and all shares of stock through Merril
Lynch;
10. Any and all shares of stock through Ozark
Mountain Bank;
11. Plaintiff's 1.A.S.T.I. Pension:
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12. Household furniture and furnishings located
in the Hollister, Missouri, residence; and
13. Proceeds from the U.S. Gypsum Lawsuit
That Plaintiff believes that a fair and equitable
division of the community property 1s as follows
Plaintiff 1s to receive as her sole and separate
property the following items
1. 1989 Cressida automobile
One-half of the community interest in the
equity in the property located at 7928 Wishing Well
Koad, Las Vegas, Nevada, 89123, subject to
encumbrance
3. One-half of the community interest ip the
equity in the property located at 4208 Sheppard
Drive, Las Vegas, Nevada, 89121 ubject to
encumbrances
4. One-half the equity in the real property
located at 2115 San Simeon Street, Las Vegas,
Nevada, 89108, subject to encumbrances;
5. One-half the equity in the real property
located at 204 Potential Drive, Hollister, Missouri,
subject to encumbrances;
6. Pro Rata share of Plaintiffs pension through
the Hilton Hotel;
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7. Pro Rata share of Plaintiff's LAST IE
Pension;
8. One-half of any and all shares of stock
through Merril Lynch;
9. One-half of any and all shares of stock
through Ozark Mountain Bank:
10. One-half of the furniture and furnishings
located in the Hollister, Missouri, residence; and
} ¢
11. Pro Rata share of the proceeds from the U.S
Gypsum [.awsuit.
Defendant is to receive as his sole and separate
property the following items:
1. 1990 ‘Toyota 4X$ v-6 Pickup Truck, subject to
encumbrances:
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1978 Chevy 4X4 Pickup Truck;
3. Remaining equity in the property located at
7928 Wishing Well Road, Las Vegas, Nevada
89123, subject to encumbrances;
4. Remaining equity in the property located at
4208 Sheppard Drive, Las Vegas, Nevada, 89121,
subject to encumbrances;
5. One-half the equity in the real property
located at 2115 San Simeon Street, Las Vegas,
Nevada, 89108, subject to encumbrances;
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6. One-half the equity in the real property
located at 204 Potential Drive, Hollister, Missouri,
subject to encumbrances;
7. Remainder of his pension through the Hilton
Hotel:
8. Remainder of his 1.A.S.T.E. Pension:
9. One-half of any and all shares of stock
through Merril Lynch;
10. One-half of any and all shares of stock
through Ozark Mountain Bank;
11. One-half of the furniture and furnishings
located in the Hollister, Missouri, residence: and
12. Remainder of the proceeds from the U.S.
Gypsum Lawsuit
VI
That there are community debts of the parties
hereto that need be adjudicated by the Court
including, but not limited to, the following
1. Dovenmuehle Mortgage Company, Account
#158707-0, approximate balance of -$19,841.44;
2. LAS.T.E. Mortgage Company, Account
#452003, approximate balance of $5,450.57;
3. Metmor Financial, Inc., Account #931635-7.
?
approximate balance of $62,393.55;
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4. ITT Residential/Capital Servicing, Inc.,
Account #5486085, approximate’ balance of
$50,582.46:
5. Ozark Mountain Bank, Account #002011369,
approximate balance of $108,567.95;
6. LAS.T.E. Account #1198001, approximate
balance of $4,093. 10;
7. Various credit cards including but not limited
to the following:
(a) Dillards;
(b) First Interstate Bank Mastercard:
(c) Sears;
(d) J.C Penneys;
(ce) Texaco card;
(f) First Interstate Bank Visa;
(z) Union Privilege Mastercard;
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There exists between Counterclaimant, JANIS
CARMONA, and Counterdefendant, LUPE N.
CARMONA, conflicts in_ personalities and
dispositions which are so deep as_ to. be
irreconcilable and irremediable, and which render
it impossible for the parties to continue to live
together in a normal marital relationship as
husband and wife; and therefore, the
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Counterclaimant and Counterdefendant have
become, and continue to be, incompatible in
marriage.
VIII.
That Counterclaimant desires that her maiden
name of Kester be restored to her.
IX.
That iS has become necessary for
Counterclaimant to engage the services of an
attorney to prosecute this action; and therefore
Counterclaimant is entitled to recover reasonable
attorney's fees, together with costs of suit.
WHEREFORE, Counterclaimant, JANIS
CARMONA, prays judgment as follows:
1. That the bonds of matrimony heretofore and
now existing between Counterclaimant and
Counterdefendant be dissolved; that the
Counterclaimant be granted an absolute decree of
divorce and that each of the parties hereto be
restored to the status of a single, unmarried
person;
2. That the Court make an equitable division of
the community property of the parties as' described
above;
3. That the Court make an equitable division of
the community debts and obligations of the parties:
4. That Counterclaimant's maiden name of
Kester be restored to her.
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5. That the Counterclaimant be awarded
reasonable attorney's fees, costs and allowances for
prosecution of this action; and
6. For such other and further relief as the Court
may deem meet and proper.
The Law Office of
Peter J. Bellon, Esq.
By: __ s/ /
PETER J. BIEELLON, ESQ
Nevada Bar No. 004528
804 South Sixth Street
Las Vegas, Nevada 89101
Attorney for Counterclaimant
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