# United States v. Raymond P. Novak

> Court of Appeals for the Ninth Circuit · February 22, 2007 · 476 F.3d 1041

URL: https://www.frixlaw.com/law-library/cases/9499472

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Raymond P. NOVAK, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 22, 2007
- **Citations:** 476 F.3d 1041; 39 Employee Benefits Cas. (BNA) 2825; 99 A.F.T.R.2d (RIA) 1385; 2007 U.S. App. LEXIS 3804; 2007 WL 528717
- **Precedential status:** Published
- **Opinion:** Dissent by Fletcher
- **Judges:** Schroeder, Pregerson, Reinhardt, Kleinfeld, Hawkins, Thomas, Silverman, McKeown, Wardlaw, Fletcher, Paez, Berzon, Rawlinson, Clifton, Bybee
- **Cited by:** 117 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499472

## How later opinions describe it (automated extraction)

- holding that even though ERISA’s anti-alienation provision conflicts with § 3613(a) of the MVRA, the MYRA resolves this conflict by specifying that all property is covered “[n]otwithstanding any other Federal law” (alteration in original)
- recognizing that Congress may use a “notwithstanding any other law” clause to “demonstrate that it ‘intended to partially repeal’” a prior law (quoting Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000))
- explaining that § 3613(a) overrides ERISA’s anti-alienation provision and allows the Government to “reach defendants’ ERISA-covered retirement plan benefits when enforcing criminal restitution orders”
- holding that the government could enforce its restitution judgment under § 3613(a) against funds of the defendant in a pension plan covered by an ERISA anti-alienation provision
- noting in dicta that there is “no repeal-by-implication problem when a later statute simply addresses one particular application[of the former statute] and carves out an exception” (alteration in original and internal quotation marks omitted)

## Opinion text

W. FLETCHER, Circuit Judge,
with whom Judges PREGERSON, REINHARDT, THOMAS, and RAWLINSON join, dissenting:
The question in this case is whether the Mandatory Victim Restitution Act (MVRA), codified in relevant part at 18 U.S.C. § 8613 , abrogates ERISA’s strict prohibition on alienation of pension benefits. The majority holds that it does. For two reasons, the majority is mistaken.
First, the majority fails to recognize that our task in this case is limited. We are not called upon to clear up ambiguities of the MVRA. Rather, we are asked to decide whether that Act evinces an unmistakable intention to override ERISA’s anti-alienation provision. As the Supreme Court explained in Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365 , 110 S.Ct. 680 , 107 L.Ed.2d 782 (1990), ERISA’s anti-alienation provision “reflects a considered congressional policy choice,” and only a clear and specific legislative directive is sufficient to defeat it. Id. at 376 , 110 S.Ct. 680 . Moreover, it is settled law, wholly apart from Guidry, that Congress cannot repeal a prior law by implication unless it expresses a “clear and manifest” intention to do so. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 , 96 *1065 S.Ct. 1989 , 48 L.Ed.2d 540 (1976); see also Moyle v. Dir., OWCP, 147 F.3d 1116, 1119-21 (9th Cir.1998) (using the doctrine of implied repeals to determine when a statute that purports to apply “notwithstanding” any other law actually displaces a pre-existing statute).
Second, once our role is properly understood, it is apparent that the MVRA is not sufficiently clear. The relevant text of the MVRA is a relatively short “notwithstanding any other federal law” clause. The clause does not mention ERISA. Nor does the clause amend the Internal Revenue Code.
The legislative history clearly indicates that Congress did not intend to abrogate ERISA’s anti-alienation provision when it adopted the MVRA. In 1996, prior to the passage of the MVRA, Senator McCain proposed a bill that would have done what the majority contends the MVRA has done through its “notwithstanding” clause. Unlike the MVRA, Senator McCain’s bill expressly amended ERISA’s anti-alienation clause to allow attachment of ERISA-covered pension benefits. His bill also expressly amended the Internal Revenue Code to allow the preservation of tax-exempt status of ERISA plans for all plan participants despite the newly introduced possibility of alienation. Senator McCain’s bill required 128 lines of text to accomplish these tasks. Senator McCain’s bill was never made part of the Senate version of what became the MVRA. The “notwithstanding” clause of the MVRA was introduced without discussion during Conference Committee deliberations. No reference was made to the McCain bill, or to ERISA, in the Conference Report.
In 1997, after the passage of the MVRA, Congress expressly amended ERISA to permit restitution orders to reach ERISA-covered pension benefits for crimes committed against the plan itself. Again, unlike the MVRA’s “notwithstanding” clause (and, like the unsuccessful McCain bill), the 1997 amendment expressly amended ERISA’s anti-alienation clause, and expressly amended the Internal Revenue Code to allow the preservation of ERISA plans’ tax-exempt status. The 1997 amendment required 161 lines of text to accomplish this. The obvious reason for the 1997 amendment was that Congress believed that these ERISA-covered pension benefits could not otherwise be reached to satisfy restitution orders, even after the passage of the MVRA. The Senate Report accompanying the 1997 amendment clearly expressed this belief. It stated that “[t]here is no specific exception under the Employment Retirement Income Security Act of 1974 ... which would permit the offset of a participant’s[ERISA pension] benefit against the [restitution-ary] amount owed.”
The unsuccessful McCain bill and the successful 1997 amendment show us that when congressional drafters intended to override ERISA’s anti-alienation provision, they knew how to do it. In both cases, the drafters expressly amended ERISA’s anti-alienation provision, and expressly amended the Internal Revenue Code to allow the preservation of tax-exempt status. The drafters of the MVRA’s short “notwithstanding” clause did neither of these things, as they surely would have done had they intended to amend ERISA. The successful 1997 amendment shows us something more. It shows us that in 1997, after the passage of the MVRA, Congress itself did not believe that the MVRA’s “notwithstanding” clause had abrogated ERISA’s anti-alienation provision.
I
ERISA states unequivocally that ERISA-covered pension benefits “may not be assigned or alienated.” 29 U.S.C. § 1056 (d)(1). This anti-alienation provi *1066 sion protects pension funds from diminution prior to retirement by preventing transfers to third parties. It implements “a [legislative] decision to safeguard a stream of income for pensioners (and their dependents who may be, and perhaps usually are, blameless), even if that decision prevents others from securing relief for the wrongs done them.” Guidry, 493 U.S. at 376 , 110 S.Ct. 680 .
According to the Supreme Court, neither ambiguous statutory language nor equitable considerations are sufficient to override § 1056(d)(1). Instead, the onus is on Congress to legislate clearly and precisely when it wishes to create exceptions to the anti-alienation provision. The Court in Guidry provided an example of what it had in mind: In section 104(a) of the Retirement Equity Act of 1984, 29 U.S.C. § 1056 (d)(3), Congress explicitly amended ERISA to exempt “qualified domestic relations orders” from ERISA’s anti-alienation provision. Guidry, 493 U.S. at 376 n. 18, 110 S.Ct. 680 . Because of the complexity of the issues involved in such an amendment, section 104(a) occupies six full pages of the U.S.Code Annotated. In other words, when the Supreme Court sought to show how Congress should express its intention to override the anti-alienation provision, it cited a directive that explicitly, carefully, and unambiguously permitted alienation of ERISA-covered pension benefits.
By contrast, the Court held in Guidry that the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) did not abrogate ERISA’s anti-alienation provision. The LMRDA authorized union members to sue union officials “to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization.” 29 U.S.C. § 501 (b) (emphasis added). The Court recognized that allowing labor organizations to seize pension benefits would facilitate recovery under the LMRDA. It also recognized that ERISA includes a savings clause, which provides that the Act shall not “be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States.” 29 U.S.C. § 1144 (d). ERISA was, of course, adopted long after the LMRDA.
Nevertheless, the Court concluded that the LMRDA did not supersede ERISA’s anti-alienation provision:
It is an elementary tenet of statutory construction that “[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one.... ” We do not believe that congressional intent would be effectuated by reading the LMRDA’s general reference to “other appropriate relief’ as overriding an express, specific congressional directive that pension benefits not be subject to assignment or alienation.
Guidry, 493 U.S. at 375-76 , 110 S.Ct. 680 (alterations in original, emphases added) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 , 94 S.Ct. 2474 , 41 L.Ed.2d 290 (1974)).
Subsequent cases confirm that Guidry requires an unambiguous legislative command to create an exception to ERISA’s anti-alienation provision. In Boggs v. Boggs, 520 U.S. 833 , 117 S.Ct. 1754 , 138 L.Ed.2d 45 (1997), the Court wrote,
ERISA’s pension plan anti-alienation provision is mandatory and contains only two explicit exceptions, see §§ 1056(d)(2), (d)(3)(A), which are not subject to judicial expansion. The anti-alienation provision can “be seen to bespeak a pension law protective policy of special intensity: Retirement funds shall remain inviolate until retirement.”
Id. at 851, 117 S.Ct. 1754 (citationl omitted) (quoting John H. Langbein & Bruce A. Wolk, Pension and Employee Benefit Law 547 (2d ed.1995)). The Court continued, *1067 “The axis around which ERISA’s protections revolve is the concepts of participant and beneficiary. When Congress has chosen to depart from this framework, it has done so in a careful and limited manner.” Id. at 854 , 117 S.Ct. 1754 ; see also Patterson v. Shumate, 504 U.S. 753, 760 , 112 S.Ct. 2242 , 119 L.Ed.2d 519 (1992) (noting that the Supreme Court “vigorously has enforced ERISA’s prohibition on the assignment or alienation of pension benefits, declining to recognize any implied exceptions to the broad statutory bar”).
The majority discounts these precedents by claiming that they focus on equitable rather than statutory exceptions to § 1056(d)(1). Majority at 1055. That is incorrect. These cases stand for the general proposition that courts should protect ERISA-covered pension funds by refusing to recognize exceptions to ERISA’s anti-alienation provision unless they are certain Congress intended to create them. The threat to ERISA-covered pension benefits — and to the innocent dependents who rely on those benefits — is the same whether a court construes an ambiguous statute to allow alienation or whether it creates an equitable exception out of whole cloth. As we have explained, under Guidry, “any exceptions to the anti-alienation provision must be expressly mandated by Congress.” Ablamis v. Roper, 937 F.2d 1450, 1454 (9th Cir.1991) (emphasis added).
In Ablamis , we considered whether the exception for qualified domestic relations orders (QDROs), 29 U.S.C. § 1056 (d)(3)(B), included probate orders. Petitioner argued that reading “domestic relations” to cover probate matters was both textually permissible and consistent with legislative intent, but we held that we were required to construe the QDRO exception narrowly:
We are bound by the specific use of the term “domestic relations” and the notable failure to include the term “probate” in section 1056(d). If Congress had intended to create an exception to the prohibition on alienation that would permit a deceased spouse to bequeath her purported interests in a surviving employee’s pension benefits to a third party, it would undoubtedly have expressly excepted probate orders in addition to domestic relations orders.... That is a choice we are bound to respect.
Ablamis, 937 F.2d at 1456 ; cf. John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 97 , 114 S.Ct. 517 , 126 L.Ed.2d 524 (1993) (noting that courts should be “inclined, generally, to tight reading of exemptions from comprehensive schemes” such as ERISA).
The majority is also wrong to suggest that the “specific-versus-general” canon of statutory construction invoked in Guidry is not relevant here. In Guidry , the Court held that the fact that the LMRDA created a “general” entitlement to “appropriate relief’ did not allow the garnishment of ERISA-covered pension benefits, even if such relief would otherwise have been appropriate. Guidry, 493 U.S. at 375-76 , 110 S.Ct. 680 . In this case, the fact that the MVRA creates a general entitlement to restitution is not sufficient, standing alone, to override a statutory provision that specifically prohibits the alienation of ERISA-covered pension benefits.
Because the majority gives short shrift to Guidry and its progeny, it misapprehends our interpretive task. We must determine whether Congress expressed a clear intention to override ERISA’s anti-alienation provision when it adopted the MVRA. With that task in mind, I turn to the text of the provisions at issue here.
II
As its name implies, the principal objective of the Mandatory Victim Restitution Act was to ensure that restitution would be *1068 mandatory, rather than discretionary, in some criminal cases. In order to find the MVRA’s supposedly clear exception to ERISA’s anti-alienation provision, the majority travels a long and circuitous path. The journey begins with 18 U.S.C. § 3663A, which provides that courts “shall order” that a defendant convicted of certain enumerated offenses make restitution. 18 U.S.C. § 3663A(a)(l). Section 3663A requires courts to “issue[ ] and enforce[ ]” restitution orders “in accordance with section 3664.” Id. § 3663A(d). Section 3664, in turn, provides that “[a]n order of restitution may be enforced by the United States in the manner provided for in sub-chapter C of chapter 227 and subchapter B of chapter 229.” Id. § 3664(m)(l)(A)(i). Subchapter B of chapter 229, in turn, includes 18 U.S.C. § 3613 , which contains a “notwithstanding” clause. According to the majority, this clause clearly states that restitution orders can reach undistributed ERISA-covered pension benefits.
Unfortunately for the majority, neither § 3613, nor indeed any other provision of the MVRA, makes any reference whatsoever to ERISA. Section 3613 provides, in relevant part:
The United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law. Notwithstanding any other Federal law (including section 207 of the Social Security Act), a judgment imposing a fine may be enforced against all property or rights to property of the person fined, except that—
(1) property exempt from levy for taxes pursuant to section 6334(a)(1), (2), (3), (4), (5), (6), (7), (8), (10), and (12) of the Internal Revenue Code of 1986 shall be exempt from enforcement of the judgment under Federal law;
18 U.S.C. § 3613 (a) (emphasis added). Despite the majority’s assertions to the contrary, this general “notwithstanding” language fails to demonstrate a clear intention to abrogate ERISA’s anti-alienation provision. See, e.g., Morton, 417 U.S. at 550-61 , 94 S.Ct. 2474 (“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.”).
The majority concedes, as it must, that we do not give conclusive weight to “notwithstanding” clauses. Congress often uses such clauses as a shorthand way of ensuring that unspecified prior laws do not subvert a new enactment in unanticipated ways. However, holding that “ ‘notwithstanding’ language preempts all [laws] that ‘obstruct the subsequent statute’s objectives’ ... goes too far.” Nw. Forest Res. Council v. Pilchuck Audubon Soc’y, 97 F.3d 1161 , 1166 (9th Cir.1996). Instead, “[w]e have repeatedly held that the phrase ‘notwithstanding any other law’ is not always construed literally.” Or. Natural Res. Council v. Thomas, 92 F.3d 792 , 796 (9th Cir.1996) (citing E.P. Paup Co. v. Dir., OWCP, 999 F.2d 1341 , 1348 (9th Cir.1993); see also Kee Leasing Co. v. McGahan (In re Glacier Bay), 944 F.2d 577, 582 (9th Cir.1991); Golden Nugget, Inc. v. Am. Stock Exch., Inc., 828 F.2d 586 , 588-89 (9th Cir.1987) (per curiam)). The presence of “notwithstanding” language, though relevant, is only one of many factors that courts must consider when determining the proper relationship between two particular legislative enactments. Recognizing this, the majority asserts that the “overall context” of the MVRA reveals an intent to abrogate ERISA’s anti-alienation provision. Majority at 1047. The problem is that the majority, wholly apart from its failure to follow Guidry , ignores our usual approach for deciding when a “notwith *1069 standing” clause overrides pre-existing statutory language.
As we have previously held, we determine the effect of “notwithstanding” language according to the doctrine of implied repeals. That is because “notwithstanding” clauses do not “specifically refer[ ]” to the statutes they supposedly supersede. Moyle v. Dir., OWCP, 147 F.3d 1116 , 1119 n. 4 (9th Cir.1998); see also Norman J. Singer, 1A Sutherland Statutory Construction § 23:8 (6th ed. 2000) (“A general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed.”). It is well known that “repeals by implication are not favored.” Branch v. Smith, 538 U.S. 254, 273 , 123 S.Ct. 1429 , 155 L.Ed.2d 407 (2003) (plurality opinion) (citations and internal quotation marks omitted); see also United States v. United Cont’l Tuna Corp., 425 U.S. 164, 168 , 96 S.Ct. 1319 , 47 L.Ed.2d 653 (1976) (“It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored.”). “An implied repeal will only be found [1] where provisions in two statutes are in ‘irreconcilable conflict,’ or[2] where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’ ” Branch, 538 U.S. at 273 , 123 S.Ct. 1429 (citations omitted). “ ‘[I]n either case, the intention of the legislature to repeal must be clear and manifest.’ ” Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 , 96 S.Ct. 1989 , 48 L.Ed.2d 540 (1976) (quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503 , 56 S.Ct. 349 , 80 L.Ed. 351 (1936)) (emphasis added).
Because the MVRA does not cover the “whole subject” of pension benefit alienation, the only question here is whether there is an “irreconcilable conflict” between the MVRA and ERISA’s anti-alienation provision. There is no such conflict. ERISA’s anti-alienation provision is simply a “minor exception” to the MVRA’s general restitution requirement. Even if undistributed ERISA-covered pension funds are not subject to garnishment under the MVRA, the government may still enforce restitution orders on behalf of crime victims. See Lujan-Armendariz v. INS, 222 F.3d 728, 744 (9th Cir.2000) (noting that “[b]oth this court and the Supreme Court have found no irreconcilable conflict where, by creating minor exceptions to later enacted statutes based on earlier ones, both statutes can be preserved”). Offenders who have undistributed funds in an ERISA-covered pension plan will often have other assets. Even if they do not, the government is free to enforce restitution orders once the ERISA benefits have been distributed to the offender. See Wright v. Riveland, 219 F.3d 905, 919-21 (9th Cir.2000). The government could, of course, secure restitution payments more rapidly if ERISA’s anti-alienation provision were set aside, but it is up to Congress to decide whether the tradeoff between faster restitution and diminished pension security is worth making. If that is Congress’s intent, Guidry tells us that it must be clearly expressed.
Ill
The legislative history provides two strong indications that Congress did not intend to subject undistributed ERISA-covered pension funds to MVRA restitution orders. First, Congress chose not to incorporate into the MVRA express language from a bill proposed by Senator McCain that would have unmistakably overridden ERISA’s anti-alienation provision. Second, one year after the passage of the MVRA, Congress passed legislation specifically providing that restitution orders can reach ERISA-covered pension funds when a defendant’s crime involves that pension plan. I discuss these indicia of legislative intent in turn.
*1070 A
On December 22, 1995, the Senate debated the bill that would eventually become the MVRA. Senator McCain lamented that “the bill does not include all of the provisions I would like to see.” 141 Cong. Rec. S19273, S19281 (daily ed. Dec. 22, 1995). He elaborated:
I had intended to offer an amendment to the Employee Retirement Income Security Act [ERISA] which would allow pension income to be garnished to pay outstanding restitution or criminal debt orders. Under current law, retirement benefits can only be attached to pay delinquent child support. The collection of victim compensation and criminal debt should be priorities as well.
Id. at S19282. Senator McCain “decided to withhold” his amendment based on “assurances from the committee that the initiative[ ] ... will be considered next year.” Id. Senator Hatch confirmed that “[t]he committee intends to take up an enforcement bill next year.” Id. The bill then passed the Senate, without Senator McCain’s amendment, by voice vote. Id.
Two months later, on February 20,1996, Senator McCain introduced S. 1570, “[a] bill to amend the Employee Retirement Income Security Act of 1974 ... to provide that the restriction on the assignment or alienation of pension plan benefits shall not apply to court-ordered criminal fines or victim restitution.” 142 Cong. Rec. S1276 (daily ed. Feb. 20, 1996). McCain’s bill would have amended ERISA itself. It would have added a paragraph to ERISA’s anti-alienation provision, 29 U.S.C. § 1056 (d), providing that the rule “shall not apply to a qualified criminal restitution order and each pension plan shall provide for payments in accordance with the applicable requirements of a qualified criminal restitution order.” S. 1570, 104th Cong. § 1(a)(1) (1996). The bill included a detailed definition of a “qualified criminal restitution order.” Id. It also expressly amended the Internal Revenue Code to permit pension plans to alienate funds pursuant to qualified criminal restitution orders without losing their tax-favored status. Id. § 1(b).
Senator McCain offered the following explanation of why he believed his bill was necessary:
Mr. President, today I am introducing legislation that would provide crime victims a real opportunity to receive their due restitution from convicted criminals. This bill would enhance collections on criminal restitution orders for crime victims by allowing the Federal Government to garnish the pension plan benefits of convicted felons.
Currently, courts may not garnish pension benefits provided under the Employee Retirement Income Security Act [ERISA] to satisfy criminal restitution orders. As a result, criminals can avoid paying fines or making restitution to their victims when their only income consists of pension money. In fact, in most cases, criminals have pension money as their only source of income, and therefore, they never pay off their debt.
Id. (emphasis added). The Senate did not adopt Senator McCain’s bill. Nor did it incorporate any of the bill’s language into the final version of the MVRA, which passed in April 1996 following reconciliation by a House-Senate Conference Committee. See Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214.
The majority attempts to blunt the impact of this adverse legislative history by noting that the final bill differed somewhat from the version passed by the Senate in December 1995. Most notably, the “notwithstanding” clause appeared in the legislation for the first time when it emerged from the Conference Committee in April *1071 1996. The majority surmises that the Conference Committee might have added the “notwithstanding” language in order to address Senator McCain’s concerns. But that is very unlikely.
First, the Conference Report offers no suggestion that the conferees intended to alter the substance of the bill in order to override ERISA’s anti-alienation provision. The Report simply states:
Senate recedes to [the House version], with modification. The modification includes the Senate amendments to the bill H.R. 665, passed by the Senate on December 22, 1995, together with perfecting amendments. The managers intend that the Report of the Senate Committee on the Judiciary to accompany H.R. 665 (S.Rept.104-179) should serve as the legislative history for this subtitle.
H.R.Rep. No. 104-518, at 111-12 (1996) (Conf.Rep.). Neither the Conference Report nor the Senate Report says anything whatsoever about ERISA-covered pension benefits. See S.Rep. No. 104-179 (1995).
Second, it is difficult to believe that the Conference Committee would have attempted to abrogate ERISA’s anti-alienation provision in such an offhand and summary manner. We must assume that the Committee was aware that, under both Guidry and the doctrine of implied repeals, it had to express its intention clearly if it intended to override ERISA’s anti-alienation provision. See Lorillard v. Pons, 434 U.S. 575, 580 , 98 S.Ct. 866 , 55 L.Ed.2d 40 (1978). Had the Committee wanted to amend ERISA, it easily could have included the clear, direct, and detailed language of Senator McCain’s bill instead of a short and cryptic “notwithstanding” clause. At the very least, the Committee could have explained the function of the “notwithstanding” clause in the Conference Report. Because it did neither of these things, I am unable to read the “nothwithstanding” language to mean the same thing as the McCain bill. As the Supreme Court has observed, “ ‘Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.’ ” INS v. Gardoza-Fonseca, 480 U.S. 421, 442-43 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987) (quoting Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 392-93 , 100 S.Ct. 1723 , 64 L.Ed.2d 354 (1980)); see also Hamdan v. Rumsfeld, — U.S.-, -, 126 S.Ct. 2749, 2754 , 165 L.Ed.2d 723 (2006) (“Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation.”).
B
Legislation passed after the MVRA confirms that the “notwithstanding” clause did not authorize the garnishment of undistributed ERISA-covered pension benefits. In 1997, a year after the MVRA’s enactment, Congress expressly amended ERISA’s anti-alienation provision to allow a narrow subset of restitution orders to reach ERISA-covered pension benefits. The 1997 amendment expressly authorized restitution when the crime involved the pension plan itself. See 29 U.S.C. § 1056 (d)(4) (providing that ERISA’s anti-alienation provision “shall not apply to any offset of a participant’s benefits provided under an employee pension benefit plan against an amount that the participant is ordered or required to pay to the plan if ... the order or requirement to pay arises ... under a judgment of conviction for a crime involving such plan”). Further, the 1997 amendment expressly amended the Internal Revenue Code to ensure that alienation under these circumstances would not have unfavorable tax consequences for pension plans. Had the *1072 MVRA generally abrogated ERISA’s anti-alienation provision the year before, this amendment almost certainly would not have taken the form that it did.
The 1997 amendment was included in the Taxpayer Relief Act of 1997, Pub.L. No. 105-34, § 1502 , 111 Stat. 788 , 1058-59. The Senate Report plainly indicates that Congress did not understand the MVRA to have already created an exception to ERISA’s anti-alienation provision:
Under present law, amounts to be held in a qualified retirement plan for the benefit of a participant are not, except in very limited circumstances, assignable or available to personal creditors of the participant....
There is no specific exception under the Employee Retirement Income Security Act of 1971 ... which would permit the offset of a participant’s benefit against the amount owed to a plan by the participant as a result of a breach of fiduciary duty to the plan or criminality involving the plan....
Reasons for Change
The Committee believes that the assignment and alienation rules should be clarified by creating a limited exception that permits participants’ benefits under a qualified plan to be reduced under certain circumstances including the participant’s breach of fiduciary duty to the plan.
Explanation of Provision
The bill permits a participant’s benefit in a qualified plan to be reduced to satisfy liabilities of the participant to the plan due to ... the participant being convicted of committing a crime involving the plan....
S.Rep. No. 105-33, at 310 (1997) (emphasis added); see also H.R. Rep. No. 105-220, at 756-57 (1997) (Conf.Rep.) (same).
Despite this unambiguous legislative history, the majority attempts to reconcile the 1997 amendment with the MVRA by explaining that the two provisions are different in scope. According to the majority, Congress therefore might have had reason to adopt the 1997 amendment even if the MVRA had already abrogated ERISA’s anti-alienation provision. It is true 2012 that the 1997 amendment is not limited to restitution orders issued by federal courts pursuant to criminal convictions. However, the amendment includes several important restrictions, applicable to both federal and state restitution orders, that do not appear in the MVRA. The 1997 amendment shows that when Congress wants to create an exception to ERISA’s anti-alienation provision, it knows how to convey its intention in clear, direct, and detailed language, comparable to the language of the failed McCain bill.
The 1997 amendment describes in detail when and how a restitution order can reach pension benefits. The “notwithstanding” clause of the MVRA, by contrast, provides no such specification. Consequently, the majority is forced to include a lengthy discussion “to clarify the extent to which garnishment pursuant to MVRA can require retirement plans immediately to turn over the entire present value of a participant’s interest.” Majority at 1060. The majority’s use of the word “clarify” reveals the essential weakness of its position: The majority is supplying the clarity that Congress was required to provide, but did not.
Three features of the 1997 amendment, which are entirely absent from the MVRA, illustrate this point. First, the 1997 amendment abrogates ERISA’s anti-alienation provision only when “the judgment ... expressly provides for the offset of all or part of the amount ordered or required to be paid to the plan against the partici *1073 pant’s benefits provided under the plan.” 29 U.S.C. § 1056 (d)(4)(B). In other words, ERISA-covered pension benefits may not be attached unless the restitution order itself specifically authorizes such attachment. The MVRA contains no similar limitation. The restitution order in this case (as opposed to the subsequent writ of garnishment) did not mention Novak’s pension benefits.
Second, the 1997 amendment does not permit garnishment without appropriate spousal consent. Id. § 1056(d)(4)(C). The McCain bill included similar limitations. See S. 1570, 104th Cong. § 1(a)(1) (1996). The majority imposes an analogous rule by judicial construction of the MVRA, but no such limitation appears in the MVRA’s text.
Third, the 1997 amendment allows attachment only of “the participant’s benefits” and of “distributions from the plan to the participant.” 29 U.S.C. § 1056 (d)(4)(B) & (C). Similarly, the McCain bill authorized attachment of “benefits payable with respect to the participant under a plan.” See S. 1570, 104th Cong. § 1(a)(1) (1996). By contrast, the majority construes the MVRA to allow restitution orders to reach the undistributed corpus of an individual’s pension fund in at least some circumstances. Again, no such rule appears in the text of the MVRA.
For two reasons, the restrictions on attachment contained in the 1997 amendment show that Congress in 1997 could not have understood the MVRA to have abrogated ERISA’s anti-alienation provision. First, the restrictions contained in the 1997 amendment and in the majority’s judicial construction of the MVRA are not identical. Under the majority’s reading, the MVRA remains somewhat less restrictive than the 1997 amendment. As a result, the majority creates a world in which it is more difficult to attach the ERISA-covered pension benefits of individuals who have committed crimes against pension funds than it is to garnish the ERISA-covered pension benefits of individuals who have committed other offenses. That is almost certainly contrary to Congress’s intent in passing the 1997 amendment. Congress did not intend to make it harder to get restitution for crimes involving ERISA-covered pension plans. Congress intended precisely the opposite. It intended to make it easier to get restitution in such cases.
Second, by judicial construction of the MVRA, the majority has imposed restrictions on the government’s ability to attach undistributed ERISA-covered pension funds. The majority has imposed these restrictions for good reason. It knows that Congress, in adopting ERISA’s anti-alienation 2014 provision, sought to provide some protection for innocent family members who may depend on an offender’s pension. But the very fact that the majority has felt compelled to impose by judicial construction restrictions that are not contained in the text of the MVRA tells us that Congress did not intend that the MVRA abrogate the anti-alienation provision. In both the failed McCain bill and the successful 1997 amendment, comparable restrictions were expressly provided in the text of the legislation. That the text of the MVRA contains no such restrictions tells us that Congress was not thinking about, and did not intend to abrogate, ERISA’s anti-alienation provision when it added the simple “notwithstanding” clause to the MVRA.
The majority also must contend with the fact that both the 1997 amendment and the McCain bill expressly amended (or would have amended) § 401(a)(13) of the Internal Revenue Code, but that the MVRA did not do so. Section 401(a)(13) provides that an ERISA plan cannot be “qualified” — that is, *1074 cannot be eligible for favorable tax treatment — unless it guarantees that “benefits provided under the plan may not be assigned or alienated.” I.R.C. § 401(a)(13)(A); see also Treas. Reg. § 1.401 (a) — 13(b)(1) (providing that a plan “will not be qualified unless [it] provides that benefits may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process”). The 1997 amendment (and the McCain bill) explicitly stated that this provision would not apply to certain restitution orders involving a pension plan. See I.R.C. § 401(a)(13)(C). A similar exemption exists for the domestic relations orders to which the Supreme Court pointed, in Guidry , as an example of a clearly expressed exception to ERISA. See id. § 401(a)(13)(B); see also Guidry, 493 U.S. at 376 n. 18, 110 S.Ct. 680 . By contrast, the MVRA did not amend § 401(a)(13), and nothing in the text of that section expressly authorizes plan administrators to attach benefits pursuant. to a restitution order without disqualifying the plan for tax purposes.
The majority’s answer is to treat restitution orders like tax levies. Although § 401(a)(13) does not expressly exempt tax levies from the anti-alienation requirement, applicable Treasury regulations do. See Treas. Reg. § 1.401 (a)-13(b)(2). I detail the problems with the tax levy analogy below. For now, it is enough to say that the majority is once again attempting to provide clarity through judicial construction where none exists in the text of the statute. As the 1997 amendment reveals, Congress knew that abrogating ERISA’s anti-alienation provision would have unwanted tax consequences unless an exception was added to § 401(a)(13). Had Congress intended to abrogate ERISA’s anti-alienation provision when it enacted the MVRA, it is difficult to imagine why it would not also have amended § 401(a)(13). Congress’s failure to do so is particularly striking, given that express language in the McCain bill would have done so, and that express language in the 1997 amendment in fact did do so.
Finally, the majority attempts to downplay the significance of the 1997 amendment by insisting that Congress was merely attempting to resolve a circuit split over whether ERISA’s anti-alienation provision applied to offenses involving a pension plan. But that argument does nothing to bolster the majority’s reading of the MVRA, for the cases cited by the majority as evidence of a circuit split were decided prior to the enactment of the MVRA. See, e.g., Coar v. Kazimir, 990 F.2d 1413 (3d Cir.1993) (abrogating the anti-alienation provision in cases involving an offense against a pension plan); Herberger v. Shanbaum, 897 F.2d 801 (5th Cir.1990) (upholding the anti-alienation provision in such cases).
In sum, the fact that Congress adopted the 1997 amendment confirms that Congress did not intend for the MVRA’s “notwithstanding” language to abrogate ERISA’s anti-alienation provision. Instead, Congress faced a clear choice when it considered the 1997 amendment: Should it override ERISA’s anti-alienation provision with respect to all criminal restitution orders, or should it override the anti-alienation provision only for offenses involving pension plans? Congress chose the latter option, “creating a limited exception” for offenders who breached their fiduciary duties to a plan. S.Rep. No. 105-33, at 310 (1997).
TV
Despite these strong indications that Congress did not intend to authorize the garnishment of ERISA-covered pension benefits when it adopted the MVRA, the majority contends that two “contextual as *1075 pects” of 18 U.S.C. § 3613 reveal that the MVRA defeats ERISA’s anti-alienation provision. Majority at 1047. First, the majority argues that because ERISA-cov-ered pension benefits do not appear in the list of property exempted from § 3613, such benefits must be subject to garnishment. Second, the majority argues that the MVRA applies to ERISA-covered pension benefits because the language of § 3613 parallels a tax levy statute that has been construed to reach such benefits. Given the contrary indications of legislative intent described above, the burden on the majority is a heavy one, and these “contextual” clues do not suffice.
A
Section 3613 provides that “property exempt from levy for taxes pursuant to section 6334(a)(1), (2), (3), (4), (5), (6), (7), (8), (10), and (12) of the Internal Revenue Code of 1986 shall be exempt from enforcement” of a judgment imposing a fine. 18 U.S.C. § 3613 (a)(1). These enumerated exemptions include certain
[ajnnuity or pension payments under the Railroad Retirement Act, benefits under the Railroad Unemployment Insurance Act, special pension payments received by a person whose name has been entered on the Army, Navy, Air Force, and Coast Guard Medal of Honor roll (38 U.S.C. 1562), and annuities based on retired or retainer pay under chapter 73 of title 10 of the United States Code.
26 U.S.C. § 6334 (a)(6). Based on the maxim expressio unius est exclusio c^p-rius, the majority infers that, by explicitly exempting some property from enforcement under § 3613, Congress demonstrated its intention to reach all other property, including ERISA-covered pension benefits. However, as the Supreme Court has emphasized, expressio unius “is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives.” United States v. Vonn, 535 U.S. 55, 65 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002); see also Bums v. United States, 501 U.S. 129, 136 , 111 S.Ct. 2182 , 115 L.Ed.2d 123 (1991) (“An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.”). The canon has force only when we can fairly infer “that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 , 123 S.Ct. 748 , 154 L.Ed.2d 653 (2003).
For two reasons, an omission from the exemptions listed in § 3613(a)(1) does not signify an affirmative decision by Congress to reach ERISA-covered pension benefits. First, when it adopted the MVRA, Congress was aware that, under both Guidry and the doctrine of implied repeals, a clear expression of intent was required to abrogate ERISA’s anti-alienation provision. That is, Congress was aware that a failure to mention ERISA would have the effect of leaving its anti-alienation provision intact.
Second, the first point is amplified by the fact that Congress expressly provided for the inclusion of Social Security benefits as part of the “notwithstanding” clause: “Notwithstanding any other Federal law (including section 207 of the Social Security Act) ...” 18 U.S.C. § 3613 (a) (emphasis added). According to the majority, Congress mentioned section 207 of the Social Security Act because that section requires modifications to be made by “express reference.” 42 U.S.C. § 407 (b). The majority notes that ERISA’s anti-alienation provision does not contain the same “express reference” requirement. However, Guidry was already on the books and served the same function as the “express reference” requirement of section *1076 207. In fact, the Court in Guidry had drawn a direct parallel between ERISA’s anti-alienation provision and section 207 of the Social Security Act. See Guidry, 493 U.S. at 372 & n. 13, 110 S.Ct. 680 (noting that 29 U.S.C. § 1056 (d) is “consonant with other statutory provisions designed to safeguard retirement income,” including section 207). Had Congress, legislating post-Gm<árí/, intended to reach ERISA-covered pension benefits, one would expect an express reference to ERISA along with its reference to the Social Security Act. But there is no such reference.
B
Section 3613 states that “an order of restitution ... is a lien in favor of the United States on all property and rights to property ... as if the liability ... were a liability for a tax assessed.” 18 U.S.C. § 3613 (c). The majority maintains that we should read § 3613 to have the same effect as a tax lien statute that we have held reaches ERISA-covered pension benefits. See McIntyre v. United States (In re McIntyre), 222 F.3d 655 (9th Cir.2000). However, as the majority concedes, the applicable enforcement mechanism in the present case is the Fair Debt Collection Practices Act (FDCPA) rather than an action to enforce a lien under § 3613(c). See Majority at 1045-46 n. 6. That creates a serious problem for the majority. As discussed above, § 401(a)(13) of the Internal Revenue Code provides pension plans with favorable tax treatment only if they guarantee the inalienability of benefits. While Treasury regulations create an express exception for tax levies, there is no similar regulatory exception for criminal restitution orders.
Even if restitution were sought in this case under § 3613(c), this section provides only that tax lien procedures are applicable to enforce restitution orders. It nowhere states that restitution orders are the functional or substantive equivalent of tax liens. Nor does it state that the property subject to a lien to satisfy a restitution order must be the same as the property subject to a lien to satisfy a tax liability. Cf. Guidry, 493 U.S. at 376 , 110 S.Ct. 680 (holding that “the LMRDA determines what sort of judgment the aggrieved party may obtain, while ERISA governs the narrow question whether that judgment may be collected through a particular means — a constructive trust placed on the pension ”) (emphasis in original).
The majority nevertheless insists that it is appropriate under our earlier decision in McIntyre to draw a general parallel between the MVRA and tax lien provisions. I disagree. First, the tax lien provision at issue in McIntyre uses more precise and detailed language than the MVRA to describe the sort of property that is subject to garnishment. Under the Internal Revenue Code, a tax may be collected “by levy upon all property and rights to property (except such property as is exempt under section 6334).” 26 U.S.C. § 6331 (a). Section 6334, in turn, lists thirteen types of property that aré exempt from levy. Id. § 6334(a). It then declares that, “[n]ot-withstanding any other law of the United States (including section 207 of the Social Security Act), no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a).” Id. § 6334(c) (emphasis added). The MVRA, by contrast, nowhere states that its list of exemptions is meant to be exclusive.
Second, the tax levy provisions were enacted as part of the Internal Revenue Code of 1954 and thus long pre-date ERISA. For this reason, the presumption against implied repeals does not come into play. Instead, the situation is reversed. The question is whether the later-enacted ERISA operates as a limitation on the preexisting tax statute. In McIntyre, we ex *1077 plicitly recognized the force of ERISA’s savings clause, which leaves pre-existing law undisturbed. The savings clause provides that nothing in ERISA “shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States.” 29 U.S.C. § 1144 (d); see McIntyre, 222 F.3d at 660 . Thus, to the extent that the Internal Revenue Code provides for tax levies on ERISA-covered pension benefits, it does so because of ERISA’s savings clause.
The majority attempts to downplay this important distinction between the tax code and the MVRA by insisting that ERISA’s savings clause broadly applies to statutes enacted after ERISA. Majority at 1058. Neither the text of the savings clause nor our case law supports such a sweeping conclusion. The language used in § 1144(d) — “alter,” “amend,” “modify,” etc. — strongly suggests that the provision focuses exclusively on ERISA’s relationship to pre-existing statutes. See, e.g., Air Line Pilots Ass’n v. Nw. Airlines, Inc., 627 F.2d 272, 276 (D.C.Cir.1980) (“ERISA is not to be read as displacing by implication any pre-existing federal legislation.”) (emphasis added). We would not typically say that a statute enacted in 1974 “amend[s]” a statute enacted two decades later. When Congress passed the Internal Revenue Code in 1954, it could not possibly have expressly stated an intention to abrogate ERISA’s later-enacted anti-alienation provision. However, it was both possible, and necessary, for Congress expressly to state its intention to do so when it adopted the MVRA in 1996.
Conclusion
The Supreme Court’s decision in Gui-dry, coupled with the presumption against implied repeals, requires that Congress convey its intent clearly in order to override ERISA’s anti-alienation provision. The majority takes 54 manuscript pages of complex argument to explain why a short and cryptic “notwithstanding” clause in the MVRA clearly abrogates this provision.
I conclude that Congress did not act with the requisite level of clarity when it adopted the MVRA. The relevant statutory text makes no reference whatsoever to ERISA, or to possible tax consequences of an abrogation of its anti-alienation provision. Further, the legislative history indicates that Congress did not intend for the MVRA to abrogate the anti-alienation provision.
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499472. Public record. Not legal advice.