Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit

No. 17-2179

LINNEA GARCIA-TATUPU,

Plaintiff, Appellant,

v.

BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN; NFL PLAYER SUPPLEMENTAL DISABILITY PLAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Selya, and Lipez, Circuit Judges.

Edward J. McCormick, III, with whom McCormick & Maitland was on brief, for appellant. Michael L. Junk, with whom Groom Law Group, Grace V.B. Garcia, and Morrison Mahoney LLP were on brief, for appellees.

January 14, 2019 Per Curiam. We have carefully considered the parties'

briefs and the record on appeal and conclude that the district

court's judgment should be affirmed essentially for the reasons

articulated by the district court and argued by appellees.

In summary, our de novo review of the pertinent state

court domestic relations orders, in light of the Employee

Retirement Income Security Act of 1974 ("ERISA"), as amended, and

the Tatupus' marital separation agreement, demonstrates that the

orders impermissibly sought to "require the [NFL retirement] plan

to provide increased benefits."

(d)(3)(D)(ii).

Appellant has provided us with no legal authority to support her

contention that these nunc pro tunc, postmortem orders should be

treated as Qualified Domestic Relations Orders ("QDROs") under

ERISA. Unlike in Files v. ExxonMobil Pension Plan,

(3d Cir. 2005), the primary case cited by appellant, she is not

"seek[ing] to enforce an interest created prior to [her ex-

husband]'s death,"

, but is instead attempting to rewrite

the separation agreement to posthumously create new interests in

his retirement benefits.

Given this disposition, we do not opine upon the

circumstances in which nunc pro tunc state court domestic relations

orders entered after the death of a plan beneficiary may be treated

as QDROs. We merely hold that, on the specific facts of this case

-- in particular, the language of the separation agreement and the

- 2 - status of Mr. Tatupu's election and receipt of benefits at the

time of his death -- the domestic relations orders at issue may

not be so treated.

Affirmed. See 1st Cir. Rule 27.0(c).

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