Boggs v. Boggs

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before WISDOM, KING and DUHE; PER CURIAM; WIENER, Circuit Judge, with whom POLITZ, Chief Judge, and KING, BENAVIDES, STEWART and PARKER
• Citation: Boggs v. Boggs, 89 F.3d 1169 (5th Cir. 1996)
• Decision Date: 16 July 1996
• Docket Number: No. 94-30178,94-30178
• Parties: Sandra Jean Dale BOGGS, Plaintiff-Appellant, v. Thomas F. BOGGS, Harry P. Boggs, and David B. Boggs, Defendants-Appellees.

Page 1169

89 F.3d 1169

Sandra Jean Dale BOGGS, Plaintiff-Appellant, v. Thomas F. BOGGS, Harry P. Boggs, and David B. Boggs Defendants-Appellees.

No. 94-30178.

United States Court of Appeals Fifth Circuit.

July 16, 1996.

Marian M. Livaudais, Livaudais & Livaudais, Mandeville, LA, James F. Willeford, New Orleans, for Appellant.

Susan Rees, Plan Benefits Security Division, N-4611, Office of Solicitor, U.S. Dept. of Labor., Washington, D.C., for Amicus-Dept. of Labor.

Thomas F. Boggs, Monroe, LA, pro se.

Guy L. Deano, Jr., Deano & Deano, Mandeville, LA, for Harry Boggs and David Boggs.

Appeal from the United States District Court for the Eastern District of Louisiana; A.J. McNamara, Judge.

(Opinion April 17, 1996, 5th Cir., 1996, 82 F.3d 90)

Before WISDOM, KING and DUHE, Circuit Judges.

PER CURIAM:

A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor, rehearing en banc is DENIED.

WIENER, Circuit Judge, with whom POLITZ, Chief Judge, and KING, BENAVIDES, STEWART and PARKER, Circuit Judges, join, dissenting from failure to grant rehearing en banc.

My concerns about the panel majority opinion in this case prompted me to request a poll of the active judges of this court to rehear the case en banc. In the ensuing poll, less than a majority of the judges voted to rehear the case. With the utmost respect, I dissent from the refusal of a majority of the active judges of this court to rehear this case en banc.

I WHY EN BANC?

The instant appeal forces us to come to grips with the conundrum that results when the irresistible force of ERISA, ¹ particularly its preemption and anti-alienation provisions, meets the immovable object of a state's community property regime, particularly its immediate vesting and assignability provisions. The panel opinion held that the force of ERISA could not budge Louisiana's community property regime; and in so holding created a circuit split with the "other" majority community property circuit. ² Despite the split thus created, the monumental and pervasive effect on the great majority of the residents of this circuit, and the 2-to-1 division of the panel that heard this appeal, this court refused to rehear the panel opinion en banc. I write separately not only to voice my disappointment with that failure of the entire court to consider such an important appeal, but also to address the merits of this issue of great consequence.

Recognizing that employee benefit plans affect "the continued well-being and security of millions of employees and their dependents," ³ Congress enacted the unique and highly pervasive Employee Income Retirement Security Act (ERISA) in 1974, thus making the regulation and administration of non-governmental retirement and benefit plans an exclusively federal concern. Today, over twenty years later, the preeminence and importance of pension plans and welfare benefit plans in the lives of most Americans has grown exponentially. With their combined assets totaling over 4.7 trillion dollars, employee benefit plans cover an estimated 54 million employees. ⁴ In addition to its economic significance, this landmark legislation plays a dominant role in present-day federal jurisprudence as reflected, for example, by the unusually high number of ERISA cases for which the Supreme Court has granted writs in recent years. ⁵ In sum, ERISA and employee benefit plans are ubiquitous and integral parts of our society.

Within the foregoing framework, the following two factors were urged by the panel majority as reasons why this case should not be voted en banc: (1) the parties themselves had not filed a motion for panel rehearing or suggestion for rehearing en banc, and (2) the arguments that I presented in favor of ERISA preemption are not the arguments that were presented to the district court or to the panel. In this instance, I find those reasons wholly unpersuasive. ⁶ Moreover, they obscure the fact that this case presents an issue of critical and continuing importance to both temporary and permanent residents--past, present, and future--of all community property states, a category comprising the two most populous states of this circuit. ⁷ Not only is this issue one of legal primacy, it literally touches the pocketbooks of hundreds of thousands if not millions of plan participants and their spouses during their retirement years. In addition to creating a circuit split, the panel opinion has all the "bombshell" potential of making an earth-shaking impact on an area of the law as pervasive as ERISA in general and pensions in particular. A case of this magnitude should bear the imprimatur of the entire court, even if the en banc court were ultimately to reach the same result as has the panel.

II THE MERITS

I do not suggest that the substantive issues of this case are easy ones. Indeed, in addition to an understanding of the complexities of ERISA, an understanding of the nature of retirement plans, particularly defined benefit plans, is crucial. To begin with, it is axiomatic that there can be no rights greater than those created by the retirement plan, the contents of which, for ERISA plans, is largely dictated by that statute. That the panel majority "granted" to the heirs of the predeceased first spouse an interest in the survivor annuity of the second spouse--despite the undeniable fact that this survivor annuity never even came into existence during the lifetime of the first spouse, but only upon her widower's re-marriage--may suggest that proper consideration has not been given to the nature of pensions in general or to the Bell Plan itself.

It is equally axiomatic that this appeal requires a keen understanding of the law of ERISA. As this court could not duck the core issue of preemption which lies at the busy intersection where ERISA and community property law collide, I would have had us conclude that the length and breadth of the preemption mantle in which Congress has cloaked ERISA gives it the right-of-way. More specifically, I would have had our court hold that ERISA preempts Louisiana community property law to the extent that such law would purport to recognize and enforce an interest of the heirs or legatees of a deceased nonparticipant spouse as to her "community interest" in an ERISA-qualified pension plan. As explained more fully below, I believe that this conclusion is compelled by the mandate of the federal statute, the intent of Congress, and the purposes and structure of ERISA, not the least of which is the requirement of national uniformity of such pension plans in the private sector of our national economy. Furthermore, that the state law claims in this case have been brought against the beneficiaries of the plan, as opposed to the plan itself or the plan's fiduciary, in no way circumvents or defeats ERISA's potent preemptive force.

A FACTS AND PROCEEDINGS

Isaac Boggs (Participant) was employed by South Central Bell from June 18, 1949, until his retirement on September 1, 1985, and participated in an ERISA-qualified pension plan (the Bell Plan). Participant was already married to Dorothy Boggs (First Spouse) when he went to work for South Central Bell. Their marriage lasted until her death, which occurred some six years prior to his retirement. At all relevant times their Louisiana marital property regime was one of community property. Three sons of that marriage--David Bruce Boggs, Thomas Frank Boggs, and Harry Maurice Boggs (the Sons), Defendants-Appellees herein--survived both of their parents.

When First Spouse died, her estate included an undivided one-half interest in all property belonging to the community of acquets and gains theretofore existing between her and Participant (the community). By testament, First Spouse left one-third ( 1/3) of her estate to Participant outright and confirmed to him for his lifetime the usufruct ⁸ of the surviving spouse in the remaining two-thirds ( 2/3) of her estate. She left to the Sons the naked ownership ⁹ of the two-thirds share of her estate that she burdened with Participant's usufruct.

Among the assets inventoried in the judicial administration of First Spouse's succession was a one-half ( 1/2) community interest in Participant's account in the Bell Plan. As the balance of his account was valued at $42,388.57, her community half interest was listed in her succession at $21,194.29.

Within a year after the death of his First Spouse, Participant remarried. His second and final marriage was to Plaintiff-Appellant Sandra Jean Dale Boggs (Surviving Spouse), to whom he was married and with whom he was residing at the time of his death in 1989.

The Bell Plan provided several types of retirement benefits to Participant. The first benefit that he received on retirement was a lump sum payment of $151,628.94, which he "rolled over" into an Individual Retirement Account (IRA). It was worth $180,778.05 at his death. Participant's second retirement benefit was a pension annuity, which provided monthly payments of $1,777.67 until his death, then converted automatically to a survivor's annuity in favor of Surviving Spouse. That annuity continues to provide monthly payments to her and is scheduled to do so for her lifetime. The third benefit that Participant received on retirement consisted of 96 shares of AT & T stock and a life insurance policy in which Surviving Spouse was designated as the beneficiary. The fact that all relevant employee benefit plans of South Central Bell are ERISA plans is undisputed.

Some time after Participant's death in 1989, the Sons filed an action in state court seeking an accounting on the usufruct that their mother had confirmed to Participant in her testament, as well as a judgment awarding them a portion of his retirement benefits. Of particular significance to this appeal is the fact that the Sons have claimed an ownership interest in past and...