James M. McGOWAN, Sr., Appellant v. NJR SERVICE CORPORATION; New Jersey Natural Gas Company, 423 F.3d 241

OPINION VAN ANTWERPEN, Circuit Judge. Appellant James M. McGowan, Sr., was employed by Appellee New Jersey Natural Gas Company (“NJNG”) for more than 27 years. He participated in NJNG’s Plan for Retirement Allowances for Non-represented Employees (“the Plan”) and initially designated his second wife, Rosemary, the “joint and survivor contingent beneficiary.” On March 5, 2003, McGowan filed an action in the United States District Court for the District of New Jersey, seeking declaratory relief directing NJNG and the Plan to recognize:

(1) Rosemary’s purported waiver of her rights as beneficiary; and

(2) McGowan’s subsequent nomination of his present wife, Donna, as the new beneficiary. Whether the administrators of a retirement plan that is covered by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq., are required to recognize an individual’s waiver of her beneficiary interest under the plan is an issue of first impression in this Circuit, and there is a split among the courts of appeals that have considered the issue. The District Court below denied McGowan’s motion for

summary judgment and granted

summary judgment in favor of NJNG. The court held that Plan administrators are not required to look beyond Plan documents to determine whether a waiver has been effectuated in a private agreement between the participant and his named beneficiary. For the reasons set forth below, we will affirm. I. FACTUAL AND PROCEDURAL HISTORY McGowan was employed by NJNG from May 12, 1969, until his retirement on November 30, 1996. As of the date of his retirement, McGowan was married to his second wife, Rosemary Byrne.

Shortly before his retirement, McGowan elected to receive his retirement benefits in the form of an “automatic surviving spouse option,” creating a 50% survivor annuity for Rosemary. This election remained in effect when he began receiving benefits in 1996. McGowan and Rosemary were divorced in Palm Beach County, Florida, on May 24, 1999. On July 23, 1998, prior to the formal entry of the divorce, they entered into a Marital Settlement Agreement, which was later incorporated into the final judgment of dissolution.

The agreement stated that Rosemary “waives any and all rights, title, interest or claims ... to all bank accounts, life insurance policies and any right to the New Jersey Gas Company Employee Pension Plan of the Husband.” (App. at A61.) Shortly after Rosemary signed this purported waiver, McGowan contacted the Plan to change the named survivor beneficiary. On July 27, 1998, Rosemary signed a form consenting to the election of McGowan’s first wife, Shirley McGowan, as the replacement beneficiary.

In an August 6, 1998, letter, the Plan’s benefits manager, Nancy Renner, informed McGowan that the Plan did not permit changes to his prior contingent beneficiary election once he started receiving benefit payments. Notwithstanding the Plan’s denial of his initial request, McGowan sought to change beneficiaries again after his marriage to his current wife, Donna McGowan, on^ November 3, 2001. NJNG refused to recognize McGowan’s nomination of Donna as the new contingent beneficiary and maintained that Rosemary was still the beneficiary under the Plan.

On February 25, 2002, McGowan filed an appeal with the Plan, which was denied by the Plan Claims Administration Committee on April 30, 2002. McGowan subsequently exhausted all administrative appeals and commenced the present action with a two-count Complaint in the United States District Court for the District of New Jersey on March 5, 2003. In Count I, McGowan sought a declaration directing NJNG to recognize Rosemary’s waiver and the subsequent nomination of Donna as the new beneficiary.

In Count II, McGowan sought the imposition of civil penalties against NJNG for allegedly failing to produce Plan documents within the time period designated by ERISA at 29 U.S.C. § 1132(c). In its July 26, 2004, Order and Opinion, the District Court denied McGowan’s Motion for

Summary Judgment and granted NJNG’s Cross-Motion for

Summary Judgment. Appellant filed a timely Notice of Appeal with this Court on August 23, 2004. II. JURISDICTION AND STANDARDS OF REVIEW NJNG’s retirement plan is an “employee welfare benefit plan” within the meaning of ERISA, 29 U.S.C. § 1002(1). The District Court thus had federal question jurisdiction over the instant dispute pursuant to 28 U.S.C. § 1331.

See also 29 U.S.C. § 1132(a)(1)(B) (a plan participant has the right to bring a civil action “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 terms of the plan”). Pursuant to 28 U.S.C. § 1291, this Court has appellate jurisdiction over the District Court’s final order ruling on the parties’ cross-motions for

summary judgment. “The standard of review in an appeal from an order resolving cross-motions for

summary judgment is plenary.” Cantor v. Perelman, 414 F.3d 430, 434 n. 2 (3d Cir.2005) (citing Int’l Union, United Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990)). In reviewing the propriety of a

summary judgment ruling, we apply the same standard that the District Court should have applied. Bucks County Dep’t of Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d 61, 65 (3d Cir.2004). Under Fed.R.Civ.P. 56(c),

summary judgment should be granted where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The material facts of this case are not in dispute, and the issue presented is purely legal: whether NJNG should be compelled to recognize Rosemary’s waiver of her rights as a beneficiary under the Plan.

With respect to McGowan’s claim that NJNG failed to provide Plan documents in a timely manner, we review the District Court’s denial of civil penalties under 29 U.S.C. § 1132(

c) for abuse of discretion. See Bruch v. Firestone Tire & Rubber Co., 828 F.2d 134, 153 (3d Cir.1987), rev’d in part on other grounds, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). III. DISCUSSION A. Waiver of Benefits Under ERISA As noted, there is a circuit split on the issue of whether administrators of an ERISA plan are required to recognize a beneficiary’s waiver of his or her benefits. The majority of circuits that have addressed this issue have held that such waivers are valid under certain circumstances. See, e.g., Altobelli v. Int’l Bus. Mach. Corp., 77 F.3d 78 (4th Cir.1996); Mohamed v.

Kerr, 53 F.3d 911 (8th Cir.1995); Brandon v. Travelers Ins. Co., 18 F.3d 1321 (5th Cir.1994); Metro. Life Ins. Co. v. Hanslip, 939 F.2d 904 (10th Cir.1991); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (7th Cir.1990) (en banc). Only two courts of appeals have disagreed, holding that plan administrators need not look beyond the documents on file with the plan to determine whether there has been a valid waiver effectuated in outside private documents. Krishna v. Colgate Palmolive Co., 7 F.3d 11 (2d Cir.1993); McMillan v.

Parrott, 913 F.2d 310 (6th Cir.1990). “ERISA is an intricate, comprehensive statute.” Boggs v. Boggs, 520 U.S. 833, 841, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997). It is so designed in order to protect “the interests of participants in employee benefit plans and their beneficiaries[.]” 29 U.S.C. § 1001(b); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The majority approach is largely based on the premise that, despite the comprehensive nature of the statute, there are “gaps” that may be filled by reliance on federal common law.

See, e.g., Altobelli, 77 F.3d at 80; Brandon, 18 F.3d at 1325; Fox Valley, 897 F.2d at 278; Lyman Lumber Co. v. Hill, 877 F.2d 692, 693 (8th Cir.1989); see also Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257 n. 8 (3d Cir.1993) (‘Firestone authorizes the federal courts to develop federal common law to fill gaps left by ERISA.” (citing Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989))).

According to the majority approach, because ERISA does not explicitly address “waiver” by a beneficiary, we may turn to federal common law to determine whether, and under what circumstances, an individual may validly waive her benefits in an ERISA plan. See Altobelli 77 F.3d at 81; Brandon, 18 F.3d at 1326; Fox Valley, 897 F.2d at 281; Lyman Lumber, 877 F.2d at 693. Under the federal common law that has developed, an individual’s waiver is valid if, “upon reading the language in the divorce decree, a reasonable person would have understood that she was waiving her beneficiary interest....” Clift v.

Clift, 210 F.3d 268, 271-72 (5th Cir.2000); see also Mohamed, 53 F.3d at 914-15 (“a property settlement agreement entered into pursuant to a dissolution may divest former spouses of beneficiary rights in each other’s [ERISA benefits], if the agreement makes it clear that the former spouses so intend.”). Moreover, “any waiver must be voluntarily made in good faith.” Clift, 210 F.3d at 272. We disagree with McGowan’s argument that the situation presented by this case is not resolved by looking to the express terms of ERISA, and we therefore decline to follow the federal common law approach. 1.

ERISA’s Requirement that Plans Be Administered in Accordance with the Plan Documents ERISA imposes a fiduciary duty on plan administrators to discharge their duties “in accordance with the documents and instruments governing the plan....” 29 U.S.C. § 1104(a)(1)(D). As such, the statute dictates that it is the documents on file with the Plan, and not outside private agreements between beneficiaries and participants, that determine the rights of the parties. McMillan, 913 F.2d at 311-12 (“This clear statutory command, together with the plan provisions, answer the question; the documents control cf. Egelhoff v.

Egelhoff, 532 U.S. 141, 150, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (noting “ERISA’s requirements that plans be administered, and benefits be paid, in accordance with plan documents.”). The Plan documents in this case designate Rosemary as the beneficiary, and any requirement imposed on Plan administrators to look beyond these documents would go against the specific command of § 1104(a)(1)(D). Because this case is resolved by reference to the terms of ERISA and the Plan documents alone, federal common law should simply have no place in our analysis.

Our holding is not only required by the terms of § 1104(a)(1)(D), but it is also necessary to promote one of the principal goals underlying ERISA — ensuring that “plans be uniform in their

interpretation and simple in their application.” McMillan, 913 F.2d at 312 (citing H.R.Rep. No. 93-533 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4650); see also Krishna, 7 F.3d at 16 (noting the “strong interest in uniform, uncomplicated .administration of ERISA plans.”). This extremely important policy goal is best served by the conclusion that, under § 1104(a)(1)(D), outside waivers are not binding on Plan administrators.

Cf Fox Valley, 897 F.2d at 284 (Ripple, J., dissenting) (noting that § 1104(a)(1)(D) “embodies a strong federal policy that all parties — participant, trustee, and beneficiary — be able to ascertain their rights and liabilities with certainty.”). As Judge Wilkinson stated in his dissenting opinion in Altobelli: Strict adherence to § 1104(a)(1)(

D) ensures that all interested parties, including participants, beneficiaries, and plan administrators, can identify their rights and duties with certainty, a primary objective of ERISA. This in turn limits costly disputes over the effect of outside documents on the distribution of plan benefits. Altobelli, 77 F.3d at 82 (Wilkinson, C.J., dissenting) (internal citations omitted).

The Supreme Court similarly relied on the need for certainty and uniformity in the administration of ERISA plans when it held in Egelhoff, 532 U.S. at 148-51, 121 S.Ct. 1322, that ERISA preempts a state statute whereby a former spouse’s beneficiary designation was automatically revoked upon divorce. The Court also relied on “the congressional goal of ‘minimizing] the administrative and financial burden[s]’ on plan administrators.... ” Id. at 150, 121 S.Ct. 1322 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)).

The Court noted that, if ERISA did not preempt the state law at issue, a burden would be created for administrators to “familiarize themselves with state statutes so that they can determine whether the named beneficiary’s status has been ‘revoked’ by operation of law” rather than “simply ... identifying the beneficiary specified by the plan documents.” Id. at 148-49, 121 S.Ct. 1322.

These same concerns counsel against requiring administrators to familiarize themselves with the various private agreements that might exist between participants and beneficiaries to determine whether they contain valid waivers under federal common law. My colleagues accept McGowan’s assertion that requiring Plan administrators to recognize waivers does not in fact undermine certainty or uniformity, and that it would not create any administrative burden that is not already imposed by ERISA itself.

McGowan points to 29 U.S.C. § 1056(d)(3), which allows the designation of an alternate payee by obtaining a qualified domestic relations order (“QDRO”). Administrators are already required to review domestic relations orders, such as divorce decrees and property settlement agreements, to determine whether they are “qualified” under the requirements set forth in 29 U.S.C. §§ 1056(d)(3)(C) & (D). Thus, McGowan claims that the enforcement of waivers would place no burden on administrators that does not already exist.

Cf Altobelli, 77 F.3d at 81; Fox Valley, 897 F.2d at 282 (“No such additional burdens will be imposed.... Our decision only requires plan administrators to continue their current practice of thoroughly investigating the marital status of a participant”). I disagree. Sections 1056(d)(3)(C) & (

D) provide very specific, objective elements that must be present for a domestic relations order to be “qualified.” Thus, to determine if a document is a QDRO, administrators can essentially utilize a checklist and easily ascertain whether, for example, the document “specifies the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,” 29 U.S.C. § 1056(d)(3)(C)®.

Under the majority approach, on the other hand, administrators have to interpret documents that could otherwise be summarily discarded as non-QDROs, applying less concrete standards, to determine whether they were (1) voluntarily entered into, (2) in good faith, and (3) specific enough that a “reasonable person” would see them as valid waivers.

It cannot be denied that requiring administrators to review contractual language under an amorphous “reasonable person” standard will create a risk of litigation and administrative burdens beyond what is created by requiring them to review orders under the uncomplicated set of objective elements set forth in § 1056(d)(3). Nevertheless, McGowan argues that there is no data suggesting that plans in jurisdictions that enforce waivers have actually experienced greater administrative burdens.

On the contrary, we need look no further than Eighth Circuit precedent for evidence that the majority approach creates the prospect of extensive litigation that is not created under the QDRO provision. Since that court’s ruling in Lyman Lumber, it has been faced with multiple cases involving the issue of whether particular divorce settlement agreements contained sufficiently specific language to constitute valid waivers under the federal common law. See, e.g., Hill v. AT & T Corp., 125 F.3d 646, 649-50 (8th Cir.1997); Nat’l Auto. Dealers & Assoc. Ret.

Trust, 89 F.3d 496, 501 (8th Cir.1996); Mohamed, 53 F.3d at 915. The fact that the Eighth Circuit has repeatedly re-visited this issue belies the notion that ERISA’s goals of certainty, simplicity and uniformity can be achieved through the establishment of a uniform federal common law.

In sum, the express terms of ERISA, as well as the policies underlying the Act, require us to affirm the District Court. “Rules requiring payment to named beneficiaries yield simple administration, avoid double liability, and ensure that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.” Fox Valley, 897 F.2d at 283 (Easterbrook, J., dissenting). We recognize that our holding produces the somewhat strange result whereby Rosemary continues to enjoy the benefits of McGowan’s survivor annuity, even after purportedly signing away her rights under the Plan.

However, Congress has carefully laid out the requirements for designating (and changing) beneficiaries under ERISA plans and has specifically required benefits to be paid in accordance with plan documents. As such, our holding “is a decision already made by legislation.” Id. at 284. 2. ERISA’s Prohibition on the Alienation or Assignment of Benefits Recognition of Rosemary’s waiver in this case would also contravene ERISA’s anti-alienation provision, 29 U.S.C. § 1056(d)(1).

McGowan argues that “waiver” is a distinct concept from “assignment” or “alienation” and that waiver is therefore not expressly prohibited by § 1056(d)(1). Cf. Altobelli, 77 F.3d at 81; Brandon, 18 F.3d at 1324; Fox Valley, 897 F.2d at 279. We agree as a general matter that “waiver” is not the same thing as assignment or alienation. Assignment or alienation involves an affirmative transfer of benefits to another person, whereas waiver usually involves only a refusal of benefits on the part of the individual slated to receive them. Cf. Fox Valley, 897 F.2d at 279.

That said, McGowan’s argument on this point is similar to an argument rejected by the Supreme Court in Boggs. In that case, the Supreme Court reversed the Fifth Circuit’s ruling that ERISA did not preempt a state law allowing a beneficiary to transfer her interests in her former spouse’s pension plan by testamentary instrument. The court of appeals had addressed whether the testamentary transfer was prohibited by § 1056(d)(1) and attempted to distinguish that transfer from an “assignment or alienation”: [Section 1056(d)(1) ] was not intended to affect support obligations among the members of a family.

Furthermore, a non-participant spouse’s ownership of an interest in the participant spouse’s retirement benefits involves neither an alienation nor an assignment. Under community property law, ownership vests immediately in the non-earning spouse, and no transaction is needed to convey ownership. Thus, no transaction prohibited by the ERISA spendthrift provision has occurred. Boggs v. Boggs, 82 F.3d 90, 97 (5th Cir.1996), rev’d, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45.

The Supreme Court disagreed, stating that the testamentary transfer at issue was indeed prohibited under § 1056(d)(1), as it fell within the regulatory definition of “assignment or alienation.” Boggs, 520 U.S. at 851, 117 S.Ct. 1754 (quoting 26 C.F.R. § 1.401(a) — 13(c)(l)(ii)).

The regulation defines “assignment or alienation” as “[a]ny direct or indirect arrangement ... whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” 26 C.F.R. § 1.401(a)-13(c)(l)(ii) (emphasis added). Boggs thus demonstrates that actions which may be semantically distinguishable from “assignment or alienation” may nevertheless be prohibited by § 1056(d)(1). Similarly, although the common

definitions of “waiver” and “assignment” may diverge, McGowan seeks to use the concept of waiver in order to effectuate what is the functional equivalent of an assignment of benefits from his former wife to his current wife. As Judge Easterbrook pointed out in his dissenting opinion in Fox Valley, a “waiver” in the ERISA context is not merely a refusal of benefits, but also functions as “an anticipatory gift, to whoever is next in line under the [Plan’s] rules[.]” 897 F.2d at 282-83 (Easterbrook, J., dissenting).

Rosemary’s “waiver” here, if recognized, creates an “indirect arrangement” whereby the Plan benefits are transferred to Donna, who in turn gains an “interest enforceable against the plan.” These actions therefore fit within the definition of “assignment or alienation” provided in 26 C.F.R. § 1.401(a)-13(c)(l)(ii). Thus, even though ERISA does not expressly state that “waivers” are prohibited, recognition of the waiver sought in this case would undermine § 1056(d)(1).

Finally, it is worth noting that any concern for the ability of individuals to freely and voluntarily relinquish certain rights in their former spouses’ ERISA plan benefits upon divorce has already been addressed by Congress through the passage of the QDRO provision in 1984. The Supreme Court in Boggs emphasized the care with which Congress created the QDRO mechanism in order “to give enhanced protection to the spouse and dependent children in the event of divorce or separation[.]” Boggs, 520 U.S. at 847, 117 S.Ct. 1754.

The Court also made clear that the QDRO exception to § 1056(d)(1) is to be narrowly construed and is “not subject to judicial expansion.” Id. at 851, 117 S.Ct. 1754. As such, recognition of additional methods of dispersing ERISA benefits in the event of a divorce would be inconsistent with this comprehensive scheme. The surviving spouse annuity and QDRO provisions, which acknowledge and protect specific pension plan community property interests, give rise to the strong implication that other community property claims are not consistent with the statutory scheme.

ERISA’s silence with respect to the right of a nonparticipant spouse to control pension plan benefits by testamentary transfer provides powerful support for the conclusion that the right does not exist. Id. at 847-48, 117 S.Ct. 1754 (emphasis added) (citing Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147-48, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)). Applying this reasoning to the case at hand, ERISA’s silence with respect to the right to waive benefits supports the conclusion that such a right does not exist.

The comprehensive nature of the QDRO provision suggests that Congress provided only one option to individuals in McGowan’s position. In other words, the QDRO provision, which recognizes the right to designate alternate payees under certain circumstances, “give[s] rise to the strong implication that” the designation of alternate payees under other circumstances (i.e. through waivers) is “not consistent with the statutory scheme,” Id.

In sum, McGowan was required to satisfy the very specific requirements of § 1056(d)(3) in order to change beneficiaries, and he has provided no reason why he could not have obtained a QDRO from the Florida state courts effectuating Rosemary’s intent to be removed as the beneficiary under the Plan at the time of the divorce. He should not now be able to circumvent the requirements of § 1056(d)(3), as well as the requirements of § 1104(a)(1)(D), by couching this change of beneficiaries in “waiver” terms. B. Civil Penalties Under 29 U.S.C. § 1132(

c) Count II of McGowan’s Complaint alleged that NJNG violated ERISA by failing to furnish requested Plan documents within 30 days of his initial request and sought civil penalties under 29 U.S.C. § 1132(c). NJNG concedes that McGowan’s attorney made an initial request for copies of relevant Plan documents on June 19, 2002. NJNG also concedes that the company failed to comply with this request until October 28, 2002 (five days after McGowan’s attorney made a second request). NJNG argues, however, that they were acting under a good faith (but mistaken) belief that the June 19th letter did not put them on notice of McGowan’s request for documents.

Section 1132(

c) grants the District Court broad discretion in deciding whether to impose civil penalties for delayed discovery. Bruch, 828 F.2d at 153. This Court has held that a district court “would be well within its discretion in setting damages at $0” if, for example, “the employee’s claim for benefits is not colorable, and if the employer displayed no bad faith in responding to the claim.... ” Id. Here, the District Court based its decision to set damages at zero on the determination that NJNG did not act in bad faith.

Even though the District Court held that the June 19th letter, when objectively viewed, was a valid request under § 1132(c), the court determined that NJNG was under a subjective good faith belief that they did not yet have to furnish the requested documents. Nothing has been presented to this Court which would cause us to question the District Court’s conclusion that the NJNG did not act in bad faith. We therefore find no abuse of discretion on the part of the District Court in this case. IV.

CONCLUSION For the foregoing reasons, we will affirm the July 26, 2004, Order and Opinion of the District Court denying McGowan’s Motion for

Summary Judgment and granting

summary judgment in favor of NJNG. McGowan v. NJR Service Corporation; New Jersey Natural Gas Company, No. 04-3620 . Although this Opinion represents the Opinion of the Court in affirming the lower court’s decision, Judge Becker has declined to join in the reasoning contained in

Part III.A.l, infra. See Concurring Op. at 250. . Although this is an issue of first impression in this Court, the District Court’s decision in this case is the fourth time that a district court within this Circuit has addressed waivers under ERISA. Including decision below, two district court decisions in this Circuit have sided with the minority view, see also Zienowicz v. Metro. Life. Ins. Co., 205 F.Supp.2d 339 (D.N.J.2002), and two others have applied the majority approach, John Hancock Mut. Life Ins. Co. v. Timbo, 67 F.Supp.2d 413 (D.N.J.1999); Trustees of Iron Workers Local 451 Annuity Fund v.

O’Brien, 937 F.Supp. 346 (D.De.1996). . All parties agree that the Florida state judgment of dissolution, which incorporated McGowan's Marital Settlement Agreement and Rosemary’s waiver, does not qualify as a QDRO. . ERISA defines a “domestic relations order” as: [A]ny judgment, decree, or order (including approval of property settlement agreement) which— (

I) 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 (II) is made pursuant to a State domestic relations law (including a community property law). 29 U.S.C. § 1056(d)(3)(B)(ii). .

Section 1056(d)(1) reads, in relevant part, "Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” The Plan in this case states, in turn: No benefit payable under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any such action shall be void and of no effect; nor shall any such benefit be in any manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled to such benefit, except as specifically provided in the Plan. (App. at A133.) .

McGowan is actually asking this Court to enforce two successive assignments — the first being the consent form that Rosemary signed in 1998 allowing Shirley, his first wife, to be named as beneficiary, and the second being his present action seeking to replace Shirley with Donna, his current wife.