Yale-New Haven Hospital v. Nicholls

788 F.3d 79, 60 Employee Benefits Cas. (BNA) 1388, 2015 U.S. App. LEXIS 9294, 2015 WL 3498771

• Court: Court of Appeals for the Second Circuit
• Decided: June 4, 2015
• Docket: No. 13-4725-cv
• Status: Published

Opinions

STRAUB, Circuit Judge:

Yale-New Haven Hospital brought this interpleader action pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., to resolve competing claims by Barbara Nicholls and Claire Nicholls to certain funds held in the four retirement and pension plans of the late Harold Nicholls. Barbara Nicholls, the surviving spouse of Mr. Nicholls, argues that the funds are payable to her because she is the named beneficiary in the plan documents. Claire Nicholls, the former spouse of Mr. Nic-holls, contends that a portion of those funds are instead payable to her. She argues that three state court orders — her divorce settlement' agreement and two nunc pro tunc orders entered after Mr. Nicholls’s death — constitute qualified domestic relations orders (“QDROs”) within the meaning of ERISA and thus validly assign those funds to her.- The District Court granted summary judgment in favor of Claire Nicholls on the ground that the divorce settlement agreement constitutes a QDRO applicable to all four retirement plans.

We find that the divorce settlement agreement does not constitute a QDRO because the agreement fails to comply with the requirements of 29 U.S.C. § 1056(d)(3)(C). We conclude, however, that the nunc pro tunc orders constitute valid QDROs that assign funds to Claire Nicholls from the three retirement and pension plans named in the orders. But because the nunc pro tunc orders do not clearly specify the fourth plan, we conclude that the orders do not assign funds from that plan to Claire Nicholls. We therefore affirm the judgment of the District Court with respect to the three plans specified in the nunc pro tunc orders, and reverse the judgment as to the fourth plan.

BACKGROUND

At issue here is whether the domestic relations orders identified by Claire Nic-holls constitute “qualified domestic relations orders” within the meaning of ERISA. Unless they are QDROs, the orders cannot compel the transfer of funds from Mr. Nicholls’s retirement and pension plans to Claire Nicholls. Generally, ERISA precludes the assignment or alienation of benefits under covered plans, 29 U.S.C. § 1056(d)(1), and preempts state laws that “relate to” employee benefits plans, id. § 1144(a). However, ERISA’s anti-assignment and -alienation provisions do not apply to, and ERISA does not preempt, “qualified domestic relations orders.” Id. §§ 1056(d)(3)(A), 1144(b)(7); see also Boggs v. Boggs, 520 U.S. 833, 846-47, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997).

A. Qualified Domestic Relations Orders

The exception of QDROs from ERISA’s alienation and preemption provisions was a product of the Retirement Equity Act of 1984 (“REA”), which took effect for relevant purposes on January 1, 1985. See Pub.L. No, 98-397, 98 Stat. 1426 (1984). Prior to the REA, ERISA had the unintended effect of “disturbing interests and expectations” in state-court matrimonial disputes, in which employment benefits were commonly at issue. Metro. Life Ins. Co. v. Bigelow, 283 F.3d 436, 441 (2d Cir.2002). One of the REA’s “central purposes” was to protect “the spouse and' dependent children in the event of divorce or separation” and the “surviving spouse” in “the event of death,” Boggs, 520 U.S. at 847, 117 S.Ct. 1754, and the REA was thus designed to give effect to divorce decrees and related state-court orders insofar as they pertained to ERISA-regulated plans, see Bigelow, 283 F.3d at 441.

The REA defines a QDRO as a domestic relations order that “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....”¹ 29 U.S.C. § 1056(d)(3)(B)(i)(I). In order to qualify as a QDRO, a domestic relations order must also meet several other requirements. As is relevant here:

(C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies—

(i)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,

(ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,

(iii) the number of payments or period to which such order applies, and

(iv) each plan to which such order applies.

Id. § 1056(d)(3)(C).

B. Harold Nicholls and Claire Nic-holls’s Divorce and Settlement Agreement

On September 5, 2008, the Connecticut Superior Court for the Judicial District of New Haven divorced Harold Nicholls and Claire Nicholls by entering a Judgment for Dissolution of Marriage. A “Settlement Agreement/Stipulation To Judgment” (“Settlement Agreement”), also dated September 5, 2008, was incorporated by reference into the Judgment for Dissolution of Marriage.

The Settlement Agreement provided, inter alia, that: “The Husband shall transfer to the wife one half of that portion of his . PENSION and RETIREMENT ACCOUNTS, which were accumulated during the marriage. This will include the marital portion of annual deposit, if any, for the year 2008, which has not yet been made.” App’x at 26 ¶ 16.2. The Settlement Agreement also provided that:

Since the division,of [the pension and retirement plans] is as of the date of the final decree for dissolution of marriage, the wife shall share, in proportion to her ownership' interest in the asset, in all earnings, gains, losses, appreciation, and/or depreciation, due to market activity from the date of the final decree for dissolution of marriage to the date of the actual assignment and transfer.

Id. at 26 ¶ 16.2(B).

The Settlement Agreement further provided that:

The parties agree that the Court granting the dissolution of their marriage shall retain jurisdiction to amend the aforesaid orders regarding the assignment and transfers to the wife from said retirement plans or retirement accounts for the purposes of establishing or maintaining a Qualified Domestic Relations Order under the Retirement Equity Act of 1984 acceptable to plan administrators and with provisions which carry out the intent of the division of the parties’ retirement assets.

Id. at 27 ¶ 16.6. No funds were transferred from Mr. Nicholls’s pension and retirement plans to Claire Nicholls during his lifetime.

C.Mr. Nicholls’s Remarriage and Death

In 2009, Mr. Nicholls married Barbara Nicholls. Mr. Nicholls died on February 11, 2012. At the time of his death, Mr. Nicholls was a participant in four retirement and pension plans: (1) the Yale-New Haven Hospital Cash Account Pension Plan (“CAP Plan”), (2) the Yale-New Haven Hospital Matching Tax Shelter Annuity Plan (“Matching Plan”), (3) the Yale-New Haven Hospital Section 403(b) Tax-Sheltered Annuity Plan (“403(b) Plan”), and (4) the Yale-New Haven Hospital and Tax-Exempt Affiliates 457 Non-Qualified Deferred Compensation Plan (“457 Plan”). Barbara Nicholls was the named beneficiary of each of these plans.

D. The Posthumous Domestic Relations Orders,

On June 18 and August 1, 2012, Judge Bernadette Conway of the Connecticut Superior Court for the Judicial District of New Haven signed two nunc pro tunc2 “Qualified Domestic Relations Order[s]” directing the plan administrator to distribute to Claire Nicholls her benefit in three of the late Mr. Nicholls’s retirement and pension plans: (1) the CAP Plan, (2) the Matching Plan, and (3) the 403(b) Plan. The fourth plan in which Mr. Nicholls was a participant, the 457 Plan, was not named in either order. Each order specified that “the Court intends that this Order shall be a Qualified Domestic Relations Order ... as that term is used in Section 206(d) of the Employee Retirement Income Security Act of 1974.” App’x at 41, 46.

E. Procedural History

The plan administrator, Yale-New Haven Hospital, received competing claims from Barbara Nicholls and Claire Nicholls for certain funds in the three retirement and pension plans specified in the nunc pro tunc orders, as well as the fourth plan not specified therein. To resolve those claims, the plan administrator filed an in-terpleader complaint in the U.S. District Court for the District of Connecticut.

The District Court granted summary judgment in favor of Claire Nicholls and denied Barbara Nicholls’s motion for summary judgment. In so ordering, the District Court found the September 5, 2008 dissolution of marriage judgment “to be a qualified domestic relations order in that it substantially complies with 29 U.S.C. § 1056(d)(3)(B)(i).” Yale-New Haven Hosp. v. Nicholls, No. 3:12-cv-01319, 2013 WL 6331256, at *3 (D.Conn. Dec. 5, 2013).

This timely appeal followed.

DISCUSSION

Barbara Nicholls raises two arguments on appeal. We agree -with her first argument, but reject her second. First, Barbara Nicholls asserts that the divorce settlement agreement between Claire Nicholls and Mr. Nicholls does not constitute a QDRO because it fails to fully comply with the requirements of 29 U.S.C. § 1056(d)(3)(C). Claire Nicholls, relying on our holding in Metropolitan Life Insurance Co. v. Bigelow, 283 F.3d 436 (2d Cir.2002), responds that the Settlement Agreement is a QDRO because it substantially complies with the statute. Because the “substantial compliance” rule announced in Bigelow does not apply to domestic relations orders — like this one-— which were entered after the 1985 effective date of the REA, the Settlement Agreement does not constitute a QDRO.

Second, Barbara Nicholls argues that the two nunc pro tunc orders do not constitute valid QDROs because they were entered after the death of Mr. Nicholls, However, Congress has made clear that domestic relations orders are not invalid simply because they were entered after the death of the plan participant. We therefore hold that the nunc pro tunc orders are qualified domestic relations orders within the meaning of ERISA.

I. The Settlement Agreement does not constitute a QDRO.

The Settlement Agreement does not constitute a QDRO because it fails to satisfy the requirements of 29 U.S.C. § 1056(d). In particular, the agreement does not “clearly specif[y]” (1) a mailing address for either Claire Nicholls or Mr. Nicholls, see 29 U.S.C. § 1056(d)(3)(C)(i), or (2) the plans to which it applies, see id. § 1056(d)(3)(C)(iv).

Although the Settlement Agreement fails to meet the statutory requirements for QDROs, the District Court held, and Claire Nicholls argues on appeal, that the Settlement Agreement nevertheless constitutes a QDRO because it “substantially complies” with ERISA’s requirements. In holding that “substantial compliance” with the REA’s QDRO provisions was sufficient to effect an assignment of plan benefits, the District Court relied on our holding in Bigelow. See Nicholls, 2013 WL 6331256, at *2-3.

Bigelow involved a settlement agreement that, like the one at issue in this case, failed to specify the mailing addresses of the participant and alternate payees. 283 F.3d at 443. The Bigelow court treated the settlement agreement as if it were a QDRO because it “substantially com-plie[d]” with ERISA’s requirements for QDROs. Id. at 444.

The settlement agreement at issue in Bigelow, however, was entered into in 1983, two years before the REA’s strict QDRO provisions took effect. .See id. at 442-43. Recognizing that many pre-REA divorce settlements and decrees ran afoul of the specificity requirements for QDROs set forth in the statute, Congress expressly provided that plan administrators could treat domestic relations orders entered before January 1,1985 “as a qualified domestic relations order even if such order does not meet the requirements” for a QDRO. Pub.L. No. 98-397, § 303(d), 98 Stat. 1426 (1984). Relying on this exception, we “join[ed] the Sixth Circuit in holding that ERISA does not require ‘literal compliance’ with respect to domestic relations orders entered prior to January 1, 1985.” Bigelow, 283 F.3d at 443 (emphasis added) (quoting Metro. Life Ins. Co. v. Marsh, 119 F.3d 415, 422 (6th Cir.1997)).

Bigelow’s substantial compliance rule does not apply to post-1984 domestic relations orders like the one at issue here. The QDRO exception created by the REA unambiguously states that “[a] domestic relations order meets the requirements of this subparagraph only if such order clearly specifies ” the information identified in subsections (i)-(iv). 29 U.S.C. § 1056(d)(3)(C) (emphases added). The “substantial compliance” rule is therefore in tension with Congress’s clear mandate. Although Congress counseled leniency for noncompliant domestic relations orders entered before the enactment of the QDRO exception, no such basis exists for excluding post-enactment orders from the REA’s explicit requirements.

We therefore follow the clear intent of Congress in holding that the substantial compliance rule announced in Bigelow does not apply to domestic relations orders issued after January 1, 1985. See Hawkins v. Comm’r of Internal Revenue, 86 F.3d 982, 992 (10th Cir.1996) (“To accept anything less than what [the QDRO statute] expressly requires would contravene the Supreme Court’s frequent admonition that courts must not read language out of a statute.”). As a result, the Settlement Agreement here, which failed to fully comply with all of the statutory requirements, is not a QDRO.³

II. The two nunc pro tunc orders are valid QDROs.

Although the Settlement Agreement cannot function as a QDRO, the two nunc pro tunc orders are in fact QDROs, and they provide an independent basis to affirm as to the three plans named therein— the CAP Plan, the Matching Plan, and the 403(b) Plan. However, because a QDRO must “clearly specif[y] ... each plan to which such order applies,” 29 U.S.C. § 1056(d)(3)(C), we must reverse as to the plan, not named in either nunc pro tunc order — the 457 Plan.

Barbara Nicholls does not dispute that the nunc pro tunc orders satisfy the requirements of 29 U.S.C. § 1056(d) with respect to the three named plans; rather, she argues that the orders are invalid because they were entered after Mr. Nic-holls’s death.

Domestic relations orders entered after the death of the plan participant can be QDROs. In the Pension Protection Act of 2006, Congress made clear that a QDRO will not fail solely because of the time at which it is issued, see Pub.L. No. 109-280, § 1001, 120 Stat. 780 (2006), although several of our sister circuits had already reached that conclusion, see, e.g., Files v. ExxonMobil Pension Plan, 428 F.3d 478, 490-91 (3d Cir.2005) (finding that a posthumous order constituted a QDRO), cert. denied, 547 U.S. 1160, 126 S.Ct. 2304, 164 L.Ed.2d 834 (2006); Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir.2003) (same); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir.2002) (same); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23 (9th Cir.2000) (same). In the Pension Protection Act, Congress mandated that the Secretary of Labor issue regulations under ERISA clarifying that:

a domestic relations order otherwise meeting the requirements to be a qualified domestic relations order ... shall not fail to be treated as a qualified domestic relations order solely because—

(A) the order is issued after, or revises, another domestic relations order or qualified domestic relations order; or

(B) of the time at which it is issued [.]

Pub.L. No. 109-280, § 1001 (emphasis added). The Department of Labor subsequently codified Congress’s intent, and issued regulations providing that “a domestic relations order shall not fail to be treated as a qualified domestic relations prder solely because of the time at which it is issued.” 29 C.F.R. § 2530.206. The regulations provide the following example of the rule’s application, entitled “Orders issued after death”:

Participant and Spouse divorce, and the administrator of Participant’s plan receives a domestic relations order, but the administrator finds the order deficient and determines that it is not a QDRO. Shortly thereafter, Participant dies while actively employed. A second domestic relations order correcting the defects in the first order is subsequently submitted to the plan. The second order does not fail to be treated as a QDRO solely because it is issued after the death of the Participant. The result would be the same even if no order had been issued before the Participant’s death, in other words, the order issued after death were the only order.

Id. It is therefore clear that the posthumous nature of the two nunc pro tunc orders does not affect their validity.

The dissent suggests that the posthumous orders could not have properly assigned plan benefits to Claire Nicholls because those benefits had already vested in Barbara Nicholls at the time of Mr. Nicholls’s death. See Dissent at 91-96. However, this concern is unwarranted for two. reasons.

First, the purpose of a nunc pro tunc order is to render that order effective as of a previous date. See In re World Trade Ctr., 758 F.3d at 214. The nunc pro tunc orders here are intended to be effective as of September 5, 2008 — the date the Judgment for Dissolution of Marriage was entered. The orders were based on a settlement agreement entered before Mr. Nicholls’s death that specifically contemplated the drafting and issuance of a QDRO at a later time and that provided for the court’s continuing jurisdiction over that later proceeding. Cf. In re Gendreau, 122 F.3d 815, 818 (9th Cir.1997) (“The QDRO provisions of ERISA do not suggest that [the former spouse] has no interest in the plans until she obtains a QDRO, they merely prevent her from enforcing her interest until the QDRO is obtained.” (emphasis omitted)), cert. denied, 523 U.S. 1005, 118 S.Ct. 1187, 140 L.Ed.2d 318 (1998). The nunc pro tunc orders, as valid QDROs, therefore effectively assign benefits to Claire Nicholls before Mr. Nicholls’s death and before any interest in the plans could vest with Barbara Nicholls.⁴

Second, where a plan administrator must determine whether a domestic relations order is a QDRO, any interest in plan benefits does not vest automatically with a surviving spouse. See 29 U.S.C. § 1056(d)(3)(H). Indeed, ERISA, provides for certain procedures that require a plan administrator to protect an alternate payee’s potential interest in plan funds:

During any period in which the issue of whether a domestic relations order is a qualified domestic relations order is being determined (by the plan administrator, by a court of competent jurisdiction, or otherwise), the plan administrator shall separately account for the amounts ... which would have been payable to the alternate payee during such period if the order had been determined to be a qualified domestic relations order.

Id. § 1056(d)(3)(H)(i); see also Files, 428 F.3d at 489 (“[Pjursuit of a QDRO posthumously comes within the ambit of the ‘qualification’ process contemplated by 29 U.S.C. § 1056(d).”). If the order is determined to be a QDRO within eighteen months of the date on which “the first payment would be required to be made under the domestic relations order,” the plan administrator must pay the required amounts to the alternate payee.⁵ 29 U.S.C. § 1056(d)(3)(H)(ii)-(v); see also Tise, 234 F.3d at 422 (“[T]he evident purpose of the 18-month period was to provide a time in which any defect in the original [domestic relations order] could be cured.”).⁶

A surviving spouse therefore does not gain an irrevocable right to plan benefits until after the plan administrator has determined that a domestic relations order is not qualified. Up until that point, a surviving spouse can “lose” his or her putative interest to an alternate payee. Thus, Barbara Nicholls did not gain an automatic and irrevocable interest in Mr. Nicholls’s plan benefits on the date of his death.⁷

The nunc pro tunc orders properly assign funds from the three plans named in the orders — the CAP Plan, the Matching Plan, and the 403(b) Plan — to Claire Nic-holls. However, the orders have no such effect with respect to the 457 Plan, which is not specified in either order. See 29 U.S.C. § 1056(d)(3)(C)(iv).⁸

CONCLUSION

We AFFIRM in part and REVERSE in part the judgment of the District Court. Specifically, we affirm as to the three plans named in the nunc pro tunc orders and reverse with respect to the fourth plan, which is not named in the nunc pro tunc orders. The case is REMANDED with directions to enter judgment accordingly.

Judge WESLEY concurs in part and dissents in part, in a separate opinion.

1 . “The term ‘alternate payee’ means any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” 29 U.S.C. § 1056(d)(3)(K).

2 . “Nunc pro tunc, Latin for 'now for then,’ refers to a court’s inherent power to enter an order having retroactive effect.” In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 758 F.3d 202, 214 (2d Cir.2014) (internal quotation marks omitted).

3 . To the extent that certain of our sister circuits have found post-1984 domestic relations orders to constitute QDROs without satisfying the clear requirements of 29 U.S.C. § 1056(d)(3)(C), see Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1151— 53 (9th Cir.2000), cert. denied, 531 U.S. 1074, 121 S.Ct. 768, 148 L.Ed.2d 668 (2001); Metro. Life Ins. Co. v. Wheaton, 42 F.3d 1080, 1084-85 (7th Cir.1994), we find their opinions to be in conflict with the statute's plain meaning and therefore unpersuasive, see Stewart, 207 F.3d at 1160 (O'Scannlain, J., dissenting) ("[C]ourts are without authority to revise the [QDRO] statute as it was enacted by Congress.”); Hawkins, 86 F.3d at 992 ("[R]elaxing the requirements of [the QDRO provision] — or, as Wheaton seems to suggest, eliminating them altogether in some cases— does violence to the plain meaning of the statute.”).

4 . The dissent suggests that nunc. pro tunc QDROs may permit "federal time travel at the stroke of a state judge’s pen.” Dissent at 92. We respectfully disagree. See Samaroo v. Samaroo, 193 F.3d 185, 194 (3d Cir.1999) (Mansmann, J., dissenting) ("Imposing a cutoff date by which a state court’s orders must be in prescribed form — a cut-off that does not appear anywhere in the text of ERISA— would unnecessarily impede those courts’ efforts to provide for a just disposition of marital assets.”); Gary A. Shulman, Qualified Domestic Relations Order Handbook § 7.06 (3d ed. 2014) ("Although some ... might consider a nunc pro tunc QDRO to be an attempt to rewrite history, this is hardly the function of the nunc pro tunc QDRO. It is meant to clarify the entitlements already memorialized in the parties’ judgment entry. In short, the nunc pro tunc QDRO is a necessary tool of the court to effectuate a previously awarded property right.”); see also Howard A. Massler & Linda M. Wallimann, 3 Valuation and Distribution of Marital Property § 47.17 (2014) (“Equitable considerations ... favor recognizing QDROs issued nunc pro tunc. If an alternate payee automatically lost any right to plan proceeds once an event occurred that, absent an enforceable QDRO would make the proceeds payable to someone else, then a plan participant's retirement, the vicissitudes of court scheduling, or a plan participant’s death, all events beyond the control- of the alternate payee, could determine the parties’ substantive rights.” (emphasis added)).

5 . ERISA provides that, if a QDRO determination is not made within the eighteen-month period discussed above, the plan administrator must pay the person "who would have been entitled to such amounts if there had been no order.” 29 U.S.C. § 1056(d)(3)(H)(iii)(II). If the order is determined to be a QDRO after that eighteen-month period, the payments to the alternate payee are to be made prospectively. Id. § 1056(d)(3)(H)(iv).

6 . The dissent suggests that Tise is distinguishable because — unlike this case — "the plan administrator was placed on notice of the alternate payee's state DRO-created interest ... before the participant's death.” Dissent at 95. However, the Department of Labor has expressly rejected this argument: "A number of commenters were concerned that Example (1) ... could be interpreted as requiring a plan fiduciary to reject a posthumous order if the plan fiduciary was not given notice of that order before the death of the participant. The Department does not agree with that interpretation of the example.... Nothing in the example should be construed as a requirement under section 206 of ERISA that an otherwise valid posthumous order fails to be a QDRO merely because the plan was not put on notice of the order while the participant was alive.” Final Rule Relating to Time and Order of Issuance of Domestic Relations Orders, 75 Fed.Reg. 32,846, 32,848 (June 10, 2010) (to be codified at 29 C.F.R. pt. 2530).

7 . The dissent cites to “numerous courts” that have concluded — in the dissent's view — that "spouse benefits vest in the participant’s spouse at the time of the participant’s retirement or preretirement death.” Dissent at 93. However, we see three problems with the authorities offered by the dissent. First, those cases are in tension with ERISA procedures which protect the potential interest of an alternate payee in plan funds even after the start date of an annuity. See, e.g., 29 U.S.C. § 1056(d)(3)(H). Second, the dissent's cases address only the distribution of annuity benefits and do not involve qualified preretirement survivor annuity benefits, which appear to be the type of annuity benefits at issue in this case. See Dissent at 90. Third, two of the three court of appeals cases on which the dissent relies—Rivers v. Central & South West Corp., 186 F.3d 681 (5th Cir.1999) and Hopkins v. AT & T Global Information Solutions Co., 105 F.3d 153 (4th Cir.1997) — were decided before the Pension Protection Act of 2006. Furthermore, in Hopkins, on which the dissent principally relies, see Dissent at 93-94, the former spouse — unlike Claire Nicholls here — “was not awarded a portion of the pension in the equitable distribution of the marital assets.” Hopkins, 105 F.3d at 154; see also id. at 157 (recognizing that “a former spouse can.obtain an interest in the participant’s Pension Benefits by obtaining a QDRO at any time” (emphasis added)).

8 . The dissent faults us for not deciding whether the two nunc pro tunc orders "trigger reannuitization of [Mr. Nicholls’s] plan annuity benefits,” Dissent at 97, and tentatively concludes that the orders “appear to violate surviving spouse annuity benefit regulations,” id. at 96. Because Barbara Nicholls does not rely upon these regulations or claim that the two nunc pro tunc orders will "trigger reannuitization,” we need not address these contentions. See United States v. Greer, 285 F.3d 158, 170 (2d Cir.2002) (holding that failure to include argument in appellate brief waives argument on appeal). In any event, we note that the two nunc pro tunc orders, by their terms, cannot — as the dissent fears — "reallocated an already-allocated benefit.” Dissent at 96; see App’x at 43 ("Nothing contained in this Order shall be construed to require the Plan or Plan Administrator to provide the Alternate Payee with any type or form of benefit or any option not otherwise available under the Plan; to alter the amount or form of benefits of the Participant under the Plan; to require the Plan to pay increased benefits; or to pay benefits to the Alternate Payee which are required to be paid to another alternate payee under another order determined by the Plan Administrator to be a QDRO before this Order is determined by the Plan Administrator to be a QDRO.”); App’x at 48 (same).