Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-55838 Plaintiff-Appellant,

D.C. No.

v.  CV-03-06706-CBM

RAYMOND P. NOVAK,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Chief District Judge, Presiding

Argued and Submitted

October 3, 2006—San Francisco, California

Filed February 22, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Harry Pregerson, Stephen Reinhardt, Andrew J. Kleinfeld,

Michael Daly Hawkins, Sidney R. Thomas,

Barry G. Silverman, M. Margaret McKeown,

Kim McLane Wardlaw, William A. Fletcher,

Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson,

Richard R. Clifton, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge W. Fletcher

1953
COUNSEL

Brent A. Whittlesey, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellant. 

Martin S. Bakst, Encino, California, for the defendantappellee. 

OPINION

BERZON, Circuit Judge: 

We are asked to determine whether — and if so, under

what circumstances — a criminal defendant’s retirement benefits are available as a source of funds to compensate crime

victims. Answering these questions requires reconciling two

federal statutory schemes — one, the Mandatory Victims ResUNITED STATES v. NOVAK 1957
titution Act of 1996 (“MVRA”), Pub. L. No. 104-132, 110

Stat. 1227, governing the payment of restitution to crime victims, and the other, the Employee Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461,1 regulating

private pension plans. Underlying each statute is a weighty

policy determination: MVRA rests on the recognition that

“[i]t is essential that the criminal justice system recognize the

impact that crime has on the victim, and, to the extent possible, ensure that [the] offender be held accountable to repay

these costs.” S. Rep. No. 104-179, at 18 (1995). ERISA is

meant to assure that “[r]etirement funds shall remain inviolate

until retirement.” Boggs v. Boggs, 520 U.S. 833, 851 (1997)

(quoting JOHN H. LANGBEIN & BRUCE A. WOLK, PENSION AND

EMPLOYEE BENEFIT LAW 547 (2d ed. 1995)) (internal quotation

mark omitted). Taking a close look at the statutory implementation of these two important policies, we conclude that criminal restitution orders can be enforced by garnishing retirement

funds, but with the funds only payable when the defendant

has a current, unilateral right to receive payments under the

terms of the retirement plan.

I.

From 1995 to 1999, Raymond Novak and his former wife,

Norma Ortega Nance, engaged in a scheme to steal telephone

equipment from the Nestlé Food Company, resell the equipment, and pocket the proceeds. Nance, a Nestlé employee,

had access to the equipment, which she then passed along to

Novak to sell. The scheme cost Nestlé over $3.3 million.

Unsurprisingly, Novak did not report the earnings from this

illicit trade on his federal tax returns. 

In December 2002, Novak pleaded guilty, pursuant to a

plea agreement, to Conspiracy to Transport Stolen Goods, 18

U.S.C. § 371, and Filing a False Tax Return, 26 U.S.C.

1Unless noted otherwise, all statutory citations are to the 2000 edition

of the United States Code. 

1958 UNITED STATES v. NOVAK
§ 7206(1). He received a twenty-four month prison term and

three years of supervised release. The district court also “ordered that the defendant shall pay restitution in the total

amount of $3,360,051.67 pursuant to [MVRA].” Novak was

required to make an initial $25,000 restitution payment within

three months of the plea hearing, with the balance “due during

the period of imprisonment.” He did not appeal that judgment.

Novak was employed by The May Department Stores

Company from 1990 to 2003, during which time he was covered by the company’s retirement plans. In July 2003, the

U.S. Attorney’s Office began asking May for records of

Novak’s interests in the company’s retirement plans. May

responded that Novak had earned benefits under two plans:

The May Department Stores Company Retirement Plan

(“May Retirement Plan”) and The May Department Stores

Company Profit Sharing Plan (“May Profit Sharing Plan”).

Under the former plan, “Novak’s annual accrued benefit payable as a single life annuity at age 65 was $10,836.00.”

2

Under the latter plan, Novak’s various index fund and company stock holdings had a total value of $142,245.11 as of

September 30, 2003. May also noted that “[i]n accordance

with the terms of the Plans, as a result of his termination,

[Novak] is entitled to receive distributions of his benefits in

The May Department Stores Company Retirement Plan and

his accounts under The May Department Stores Company

Profit Sharing Plan. In order to receive payment of his benefits and accounts, [Novak] must complete and submit an

Application for Payment of Benefits (Form EB-50) . . . to the

Plan Administrator.”

3

 Both plans come within the scope of

ERISA. 

As of September 2003, Novak’s restitution payments were,

under the terms of the restitution order, more than $3.3 million in arrears. The government is responsible for enforcing

2Novak will turn sixty-five in 2012. 

3The record does not contain the full term of May’s retirement plans.

UNITED STATES v. NOVAK 1959
restitution orders and turning the funds collected over to victims. See 18 U.S.C. §§ 3664(m)(1)(A)(i), 3612(c)(2). To

implement this responsibility, the government moved for

enforcement against Novak’s assets by applying for and

receiving a writ of garnishment directed to May, pursuant to

the Federal Debt Collection Procedures Act (“FDCPA”). See

28 U.S.C. § 3205. Novak moved to quash the writ, arguing

that the anti-alienation provision found in section 206(d)(1) of

ERISA, 29 U.S.C. § 1056(d)(1), prevented such garnishment.

The district court ruled that our interpretation of the ERISA

anti-alienation provision in United States v. Jackson, 229 F.3d

1223 (9th Cir. 2000), which held that ERISA’s anti-alienation

provision applies to criminal restitution orders, prevented

such garnishment. It therefore quashed the writ. 

On the government’s appeal, a divided panel held that

MVRA overrides ERISA’s anti-alienation provision. 441 F.3d

819 (9th Cir. 2006). The panel majority determined that Jackson did not control this case, because Jackson had not considered MVRA’s statutorily mandated criminal restitution

provisions. We reheard this appeal en banc to determine

whether the government can garnish retirement plans covered

by ERISA as a means of enforcing criminal restitution orders.4

457 F.3d 981 (9th Cir. 2006). 

II.

To address that question, we must resolve the apparent tension between a pair of statutory provisions that, on first

glance, suggest different answers. 

[1] On the one hand, the 1996 enactment of MVRA made

criminal restitution orders enforceable against all of a defen4Because ERISA’s coverage extends well beyond traditional pension

plans, this opinion generally uses the term “retirement plans” to refer to

all plans covered by ERISA that offer post-retirement income to employees. 

1960 UNITED STATES v. NOVAK
dant’s property, not excepting from its reach ERISA-covered

retirement benefits. After dictating that restitution orders are

enforceable in the same manner as criminal fines, 18 U.S.C.

§§ 3663A(d), 3664(m)(1)(A)(i), section 206(c)(3) of MVRA

states:

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 [certain enumerated] section[s]

of the Internal Revenue Code of 1986 shall

be exempt from enforcement of the judgment under Federal law;[5]

(2) [FDCPA procedures for exempting

certain property] shall not apply to enforcement under Federal law; and

(3) the provisions of . . . the Consumer

Credit Protection Act [limiting the garnishment of disposable earnings] shall apply to

enforcement of the judgment under Federal

law or State law. 

18 U.S.C. § 3613(a) (emphasis added).6

5A set of annuity and retirement payments made to former members of

the Armed Services and railroad workers are included in this exemption.

26 U.S.C. § 6334(a)(6). 

6Section 3613 also allows unpaid MVRA restitution orders to serve as

“a lien in favor of the United States on all property and rights to property

UNITED STATES v. NOVAK 1961
[2] At the same time, ERISA broadly protects covered

retirement benefits from dissipation through payment to third

parties, even if the payments are authorized by a plan participant or would otherwise be valid by force of law. Under Section 206 of ERISA, “[e]ach pension plan shall provide that

benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1); see also 26 U.S.C.

§ 401(a)(13)(A) (mandating that trusts are entitled to favorable retirement plan tax treatment only if they contain an antialienation provision). Section 206 includes two exceptions,

for domestic relation orders and for offsets to recover for

wrongs committed against the retirement plan. To “give[ ] full

and appropriate effect to ERISA’s goal of protecting pension

benefits,” the Supreme Court has “declined to recognize any

[other] exceptions to ERISA’s antialienation provision.” Patterson v. Shumate, 504 U.S. 753, 764 (1992). In doing so, the

Court has explained:

Section 206(d) reflects a considered congressional

policy choice, a decision to safeguard a stream of

of the person fined as if the liability of the person fined were a liability

for a tax assessed under the Internal Revenue Code of 1986.” 18 U.S.C.

§ 3613(c). “A federal tax lien, however, is not self-executing. Affirmative

action by the IRS is required to enforce collection of the unpaid taxes. The

Internal Revenue Code provides two principal tools for that purpose. The

first is the lien-foreclosure suit [provided in 26 U.S.C. § 7403]. . . . The

second tool is the collection of the unpaid tax by administrative levy [provided in 26 U.S.C. §§ 6331-6344].” United States v. Nat’l Bank of Commerce, 472 U.S. 713, 720 (1985). Collection under FDCPA is an alternate

means of collecting money due the United States, independent of the tax

lien provisions. See 28 U.S.C. §§ 3001(b), 3003(b)(1). 

In this case, the U.S. Attorney’s Office used FDCPA’s procedures. The

interplay between ERISA’s anti-alienation provision and the statutes

authorizing tax liens and detailing the procedures to enforce such liens is

thus not directly pertinent to this case, and the dissent’s references to the

limitations of § 3613(c) therefore do not affect our interpretation. See Dissent at 2019-20. As noted below, however, ERISA’s treatment of tax liens

is relevant to the extent that the language of MVRA’s enforcement provisions parallel the language of the tax lien provisions. 

1962 UNITED STATES v. NOVAK
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. If exceptions to this policy

are to be made, it is for Congress to undertake that

task. 

Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S.

365, 376 (1990).

A.

Our effort to reconcile the broad MVRA enforcement provision and ERISA’s stringent prohibition on alienation of pension benefits begins with the language of MVRA, allowing

the enforcement of criminal restitution orders against “all

property or rights to property,” “[n]otwithstanding any other

Federal law.” 18 U.S.C. § 3613(a) (emphases added). 

[3] By its use of the “all property or rights to property” language, id. (emphasis added), Congress has made quite clear

that the totality of defendants’ assets will be subject to restitution orders. The Supreme Court emphasized the breadth of the

“all property or rights to property” phrase in the context of tax

collection statutes: “The statutory language ‘all property and

rights to property,’ . . . is broad and reveals on its face that

Congress meant to reach every interest in property. . . .”

United States v. Nat’l Bank of Commerce, 472 U.S. 713, 719-

20 (1985) (emphasis added) (quoting 26 U.S.C. § 6321). This

language, so read, requires that retirement plan benefits can

be garnished to fulfill criminal restitution orders. Because

ERISA’s anti-alienation provision conflicts with this crystal

clear command of § 3613(a), we must determine how to

square the statutory conflict. 

[4] The MVRA statutory language not only establishes this

conflict but also provides guidance on how to resolve it, by

specifying that all property is covered “[n]otwithstanding any

UNITED STATES v. NOVAK 1963
other Federal law.” 18 U.S.C. § 3613(a). The Supreme Court

has indicated as a general proposition that statutory “notwithstanding” clauses broadly sweep aside potentially conflicting

laws. See Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18

(1993) (“As we have noted previously in construing statutes,

the use of such a ‘notwithstanding’ clause clearly signals the

drafter’s intention that the provisions of the ‘notwithstanding’

section override conflicting provisions of any other section.

Likewise, the Courts of Appeals generally have interpreted

similar ‘notwithstanding’ language . . . to supersede all other

laws, stating that ‘[a] clearer statement is difficult to imagine.’ ” (omission and alteration in original) (citation and internal quotation marks omitted)); see also Student Loan Fund of

Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155, 1166 (9th

Cir. 2001) (“[T]he ‘[n]otwithstanding any other provision of

law’ clause demonstrates that Congress intended to supersede

any previously enacted conflicting provisions.” (second alteration in original)). 

In examining specific statutes, we have not, however,

always accorded universal effect to the “notwithstanding” language, standing alone. See Or. Natural Res. Council v.

Thomas, 92 F.3d 792, 796 (9th Cir. 1996) (“We have repeatedly held that the phrase ‘notwithstanding any other law’ is

not always construed literally.” (citing E.P. Paup Co. v. Dir.,

Office of Workers Comp. Programs, 999 F.2d 1341, 1348 (9th

Cir. 1993); Kee Leasing Co. v. McGahan (In re The 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))). Instead, we have determined the reach of each

such “notwithstanding” clause by taking into account the

whole of the statutory context in which it appears. See id. at

797 (“[O]ther subsections of the . . . Act suggest Congress did

not intend the phrase ‘notwithstanding any other law’ to

require the agency to disregard all otherwise applicable laws.

. . . ‘[M]indful . . . of the common-sense principle of statutory

construction that sections of a statute generally should be read

to give effect, if possible, to every clause,’ we decline to

1964 UNITED STATES v. NOVAK
adopt the broadest possible interpretation of ‘notwithstanding

any other provision of law’ . . . .” (third omission in original)

(quoting Heckler v. Chaney, 470 U.S. 821, 829 (1985))); see

also Nw. Forest Resource Council v. Pilchuck Audubon

Soc’y, 97 F.3d 1161, 1167 (9th Cir. 1996) (holding that a

“notwithstanding” phrase is not dispositive where the second

statute incorporates other laws by using terms that refer to

them); Glacier Bay, 944 F.2d at 582 (holding that a “notwithstanding” phrase is not independently dispositive where the

second statute incorporates “other applicable” laws). 

The overall context of MVRA dictates giving full effect to

its use of the “notwithstanding” language as applied to

ERISA’s anti-alienation requirement. In particular, two contextual aspects of the restitution enforcement provision found

in 18 U.S.C. § 3613(a) — its treatment of other types of otherwise inalienable property and, most importantly, its replication of the language authorizing tax levies — make it clear

that MVRA’s criminal restitution enforcement orders do override ERISA’s alienation restrictions. Our interpretation also

accords with case law concerning how to reconcile statutes

enacted at different times. 

1. MVRA explicitly approved the government’s authority

to reach some post-retirement payments in the restitution

enforcement provision, and did so in a manner that suggests

a general intention to override federal statutory anti-alienation

provisions except as otherwise specified in MVRA itself. 

[5] Section 3613(a) specifies that one of the federal laws

“includ[ed]” within the “notwithstanding” clause is section

207 of the Social Security Act. 18 U.S.C. § 3613(a) (emphasis

added). Similar to ERISA’s anti-alienation provision, section

207 of the Social Security Act dictates that “[t]he right of any

person to any future payment . . . shall not be transferable or

assignable, at law or in equity, and none of the moneys paid

or payable or rights existing . . . shall be subject to execution,

levy, attachment, garnishment, or other legal process, or to the

UNITED STATES v. NOVAK 1965
operation of any bankruptcy or insolvency law.” 42 U.S.C.

§ 407(a). Unlike ERISA, however, the Social Security Act

further specifies that “[n]o other provision of law . . . may be

construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by

express reference to this section.” Id. § 407(b). MVRA supplies that “express reference,” stating that the

“[n]otwithstanding any other Federal law” override “includ-

[es] section 207 of the Social Security Act.” 18 U.S.C.

§ 3613(a). 

[6] There was no need similarly to specify other antialienation statutes, such as section 206(d) of ERISA, that do

not mandate a clear statement for override.7 The “all property”

and “notwithstanding” clauses, taken together, were sufficient

to accomplish that end. Indeed, Congress has afforded greater

protections to Social Security benefits against alienation than

those afforded to retirement plans covered by ERISA. See

Wright v. Riveland, 219 F.3d 905, 920-21 (9th Cir. 2000)

(holding that ERISA’s anti-alienation provision does not prevent the seizure of retirement funds once distributed to the

beneficiary and comparing the provision with the more

encompassing anti-alienation restrictions of the Social Security Act). It would thus be anomalous to interpret § 3613(a) as

abandoning the protection of Social Security benefits but not

of retirement plans covered by ERISA. We conclude that by

making clear that the “notwithstanding” clause “includes” the

one federal anti-alienation provision that demands explicit

statutory override, Congress manifested that § 3613(a) means

what it says — that it reaches “all property or rights to property” not excepted, 18 U.S.C. § 3613(a) (emphasis added),

7The dissent’s suggestion that MVRA’s failure expressly to include the

ERISA anti-alienation clause as well as section 207 of the Social Security

Act signifies an intent to exclude the former, Dissent at 2018-19, disregards the special feature of section 207 of the Social Security Act — that

it explicitly requires that any modification be “by express reference to this

section,” 42 U.S.C. § 407(b). 

1966 UNITED STATES v. NOVAK
including property otherwise covered by federally mandated

anti-alienation provisions. Cf. Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 114-15 (2001) (invoking the statutory

canon of ejusdem generis so as to interpret the general terms

in a statute with reference to specific examples given in the

statute). 

This conclusion is reinforced by another structural feature

of § 3613(a): Not only did Congress expressly override the

one anti-alienation provision that it could remove only

through such a reference, but it also specified that restitution

orders could not be enforced against certain retirement plans

even though those plans were already covered by antialienation statutes. 

Four narrow types of federally-authorized pensions —

Railroad Retirement Act pensions, Railroad Unemployment

Insurance Act benefits, pensions received by those on the

Armed Forces Medal of Honor rolls, and certain pensions

paid to military servicemembers in lieu of retirement pay —

are excluded from the “notwithstanding” language of the restitution enforcement provision. 18 U.S.C. § 3613(a)(1) (citing

26 U.S.C. § 6334(a)(6)). The federal statutes that establish all

four of those pension programs already contain anti-alienation

provisions similar to that found in ERISA. See 45 U.S.C.

§ 231m(a) (Railroad Retirement Act); id. § 352(e) (Railroad

Unemployment Insurance Act); 38 U.S.C. § 1562(c) (Medal

of Honor pensions); 10 U.S.C. §§ 1440, 1450(i), 1460a(b)

(Retired Serviceman’s Family Protection Plan, Survivor Benefit Plan, and Supplemental Survivor Benefit Plan). By carving out these retirement plans from the operation of § 3613(a),

Congress indicated that, in light of the “notwithstanding”

clause and the breadth of the “all property” language, the antialienation provisions in the federal pension statutes would not

suffice to protect retirement benefits from garnishment and

similar orders enforcing criminal fines and restitution orders.

Except on this understanding the explicit exclusion of the referenced pensions was unnecessary, as the exclusion would

UNITED STATES v. NOVAK 1967
have been accomplished by the anti-alienation provisions in

the statutes establishing the pension plans. 

We avoid whenever possible statutory interpretations that

result in superfluous language. See TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001). Applying that precept, we regard the

express and specific § 3613(a)(1) retirement plan exclusions

as indicating that other federally regulated pension plans containing anti-alienation provisions, such as those covered by

ERISA, are covered by the statutory trump worked by the

broad “all property” and “notwithstanding” guidance.8

The inclusion of Social Security benefits and exclusion of

certain retirement plans from the operation of § 3613(a) is

important to our inquiry for another, related reason: Inclusion

of these two references in § 3613(a) demonstrates that Congress focused quite directly upon the problem of allowing the

enforcement of restitution orders against retirement plan

assets and determined to allow such enforcement except as

specified. The failure to include retirement plans covered by

ERISA on the list of excluded retirement plans thus has substantial significance. See Tang v. Reno, 77 F.3d 1194, 1197

(9th Cir. 1996) (“[A]n item which is omitted from a list of

exclusions is presumed not to be excluded.” (alteration in

original) (quoting Qi-Zhuo v. Meissner, 70 F.3d 136, 139

(D.C. Cir. 1995)) (internal quotation marks omitted)); Hale v.

Arizona, 993 F.2d 1387, 1392 (9th Cir. 1993) (en banc) (finding significance in the absence of prisoners from a list of

employees exempt from minimum wage laws). 

8The dissent’s attempt to explain these four exceptions, Dissent at 2017-

19, will not wash. The very same specific/general and implied repeal principles upon which the dissent relies — incorrectly, as we will explain —

would apply to the four anti-alienation provisions specifically excepted.

Had Congress intended to exclude the ERISA provision as well, there is

no reason it would have treated the ERISA provision differently from the

others as a matter of legislative drafting. 

1968 UNITED STATES v. NOVAK
[7] In sum, the treatment in § 3613(a) of other federal statutory anti-alienation provisions indicates that Congress

intended to override ERISA’s anti-alienation provision and

allow the government to reach defendants’ ERISA-covered

retirement plan benefits when enforcing criminal restitution

orders. 

[8] 2. There is a second, critical indication in the language and structure of § 3613(a) that the criminal restitution

enforcement provision overrides ERISA’s anti-alienation provision: Section 3613(a) contains language nearly replicating

language used in a parallel statute specifying the property

subject to tax levy. That language was understood before the

enactment of § 3613(a) to permit levying on ERISA-covered

retirement plan benefits. 

The tax levy statute provides that “[n]otwithstanding 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).” 26 U.S.C. § 6334(c). MVRA, once

again, states:

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 [certain enumerated] section[s]

of the Internal Revenue Code of 1986 shall

be exempt from enforcement of the judgment under Federal law; 

(2) [FDCPA procedures for exempting certain property] shall not apply to enforcement under Federal law; and 

UNITED STATES v. NOVAK 1969
(3) the provisions of . . . the Consumer

Credit Protection Act [limiting the garnishment of disposable earnings] shall apply to

enforcement of the judgment under Federal

law or State law. 

18 U.S.C. § 3613(a). The primary linguistic distinction

between these two provisions is that the tax levy statute

speaks in the negative — specifying that “no property or

rights to property shall be exempt” — while MVRA makes

precisely the same point affirmatively — “a fine may be

enforced against all property or rights to property.”

9

The similarity between these statutory phrases is not happenstance: Before Congress enacted the current language of

§ 3613 in 1996 as part of MVRA, the enforcement statute had

cross-referenced the tax levy provisions. 18 U.S.C. § 3613(c)

(1994) (“The provisions of section[ ] . . . 6334 . . . of the

Internal Revenue Code . . . apply to a fine . . . as if the liability

of the person fined were for an internal revenue tax assessment, except to the extent that the application of such statutes

is modified by regulations issued by the Attorney General to

accord with differences in the nature of the liabilities.”). This

similar use of language is critical to our endeavor to understand the interaction of MVRA and ERISA, for two reasons:

First, this court has construed the tax levy language as rendering ERISA’s anti-alienation provision inapplicable. McIntyre v. United States (In re McIntyre), 222 F.3d 655, 660 (9th

9The dissent wrongly attributes significance to the “other than the property specifically made exempt by subsection (a)” language of 26 U.S.C.

§ 6334(c). Dissent at 2020. Section 6334 codifies the tax levy exemptions

in a separate subsection, while MVRA codifies the restitution exceptions

in the same subsection. This drafting difference required a cross-reference

in § 6334 absent in § 3613, but does not suggest that one list of exceptions

is exclusive while the other is not. To the contrary, our case law dictates

that when Congress provides a list of exceptions in a statute, that list is

presumed exclusive. See Tang, 77 F.3d at 1197; Hale, 993 F.2d at 1392.

1970 UNITED STATES v. NOVAK
Cir. 2000). McIntyre’s reasoning rested both on the plain language of the tax levy provision and on ERISA’s saving clause

provision, which specifies “[n]othing in this subchapter

[which includes the anti-alienation provision] shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States.” Id. (second alteration in

original) (quoting 29 U.S.C. § 1144(d)) (internal quotation

marks omitted). 

Our decision in McIntyre is consistent with our earlier

observation that “courts have construed the plain language of

§ 6334 literally and have refused to exempt property from IRS

levy which is not specifically exempted by the statute.” Beam

v. IRS (In re Beam), 192 F.3d 941, 944 (9th Cir. 1999); see

also United States v. Mitchell, 403 U.S. 190, 205 (1971)

(“This language [of § 6334(c)] is specific and it is clear and

there is no room in it for automatic exemption of property that

happens to be exempt from state levy under state law.”). Ruling otherwise in the face of the “notwithstanding” language,

we said, would “ignore[ ] the specifically stated intent of Congress to limit the instances where an IRS levy may not

attach.” Beam, 192 F.3d at 945. McIntyre’s understanding of

the combination of the “notwithstanding” phrase and the

broad substantive coverage of the tax levy provision also

accords with that adopted by other federal courts. See United

States v. Taylor, 338 F.3d 947, 950 n.3 (8th Cir. 2003) (“The

IRS has authority to proceed against [pensioner’s] interest in

any ERISA plan benefits and is not constrained by ERISA’s

anti-alienation provision.” (quoting McIntyre, 222 F.3d at

660) (internal quotation marks omitted)); Shanbaum v. United

States, 32 F.3d 180, 183 (5th Cir. 1994) (per curiam) (holding

a taxpayer’s argument that the anti-alienation provision

affects the tax levy authority of the IRS to be “without

merit”); id. at 183 n.4 (citing a number of district court and

bankruptcy court decisions that come to the same conclusion).

The reasoning in McIntyre equally applies in the restitution

order context. The reference in 18 U.S.C. § 3613(a) to “all

UNITED STATES v. NOVAK 1971
property” is no less plain than the “no property” reference in

26 U.S.C. § 6334(c). And prohibiting the garnishment of

retirement plan benefits would just as clearly “modify” the

government’s authority under 18 U.S.C. § 3613(a) to enforce

criminal restitution orders against “all property” as would

such a prohibition “modify” the government’s authority under

26 U.S.C. § 6334(c) to enforce tax liens. 

Moreover, courts generally interpret similar language in

different statutes in a like manner when the two statutes

address a similar subject matter. See Metro. Life Ins. Co. v.

Taylor, 481 U.S. 58, 65 (1987) (noting a presumption that

similar language in two statutes both addressing the same subject, labor law, would have a similar meaning); Northcross v.

Bd. of Educ., 412 U.S. 427, 428 (1973) (per curiam) (holding

that the “strong indication that the two statutes should be

interpreted pari passu” because of a similarity in language

was reinforced by the fact that “the two provisions share a

common raison d’être” (quoting Johnson v. Combs, 471 F.2d

84, 86 (5th Cir. 1972)) (internal quotation marks omitted)).

Here, the two statutes both address the government’s enforcement of citizens’ monetary obligations through seizure of pension benefits and are historically linked. The broad

interpretation of the “notwithstanding” language in the tax

levy statute to include coverage of retirement plans should

therefore carry over to the criminal restitution provision. 

Second, Congress’s choice to import the tax levy language

into the restitution order enforcement statute is significant,

independent of the propriety of our decision in McIntyre,

because courts had uniformly construed the tax levy statute to

supersede ERISA’s anti-alienation provision before the “notwithstanding” language was added to § 3613(a). Shanbaum,

32 F.3d at 183; Travelers Ins. Co. v. Rattermann, No. C-1-94-

466, 1996 WL 149332, at *3-4 (S.D. Ohio Jan. 12, 1996)

(“Although ERISA’s anti-alienation clause prevents ordinary

creditors from attaching pension payments, the courts that

have dealt with the particular issue . . . have unanimously held

1972 UNITED STATES v. NOVAK
that a federal tax lien or levy may be imposed upon private

ERISA-qualified pension plan funds.” (emphasis added));

Jacobs v. IRS (In re Jacobs), 147 B.R. 106, 108-09 (Bankr.

W.D. Pa. 1992); see also Treas. Reg. § 1.401(a)-13(b)(2)

(interpreting, in a provision promulgated in 1978, the parallel

anti-alienation provision under the Internal Revenue Code to

allow tax levies). We presume that Congress is aware of preexisting judicial interpretations of statutory language it replicates in later statutes, and that it seeks to import those

interpretations into the new statute. See Cannon v. Univ. of

Chi., 441 U.S. 677, 696-98 (1979). 

It is particularly noteworthy, given this close replication of

earlier-construed statutory language, that Congress was aware

of the ERISA anti-alienation issue when MVRA was under

consideration. During the Senate’s December 1995 debate on

MVRA, Senator McCain detailed faults he found with the

bill, including its failure to amend ERISA to allow the garnishment of retirement plans to satisfy restitution orders. 141

CONG. REC. S19,282 (daily ed. Dec. 22, 1995). The version of

MVRA under consideration at that time did not include the

language of the present 18 U.S.C. § 3613(a). See H.R. 665,

104th Cong. § 106(c)(3) (as passed by Senate, Dec. 22, 1995).

Significantly, Senator Hatch informed Senator McCain that

the Judiciary Committee intended to consider such concerns.

141 CONG. REC. S19,282 (daily ed. Dec. 22, 1995). Senator

McCain also introduced freestanding legislation in February

1996 to amend ERISA to permit retirement plan garnishment

as a means of enforcing restitution orders. See S. 1570, 104th

Cong. (1996). 

[9] The language of the present § 3613(a), including the

“notwithstanding” phrase, first appeared in the bill that

became MVRA when it emerged from the joint House/Senate

Conference Committee in April 1996. S. 735, 104th Cong.

§ 207(c)(3) (as reported by Conference Committee, Apr. 15,

1996). The Conference Report does not explain this addition,

noting merely that the bill adopted the Senate’s language “toUNITED STATES v. NOVAK 1973
gether with perfecting amendments.” H.R. REP. No. 104-518,

at 111 (1996) (Conf. Rep.). Nevertheless, in light of the concern about the ERISA anti-alienation provision expressed earlier in the legislative process, the assurance that such concerns

would be considered, and the existing interpretation of similar

language addressing the closely parallel tax levy situation, the

strong likelihood is that the sudden appearance of the current

§ 3613(a) language at the end of the legislative process was

linked to the earlier-expressed concern. 

3. In light of these considerations, that MVRA followed

rather than preceded ERISA is of no moment. Because statutory repeals by implication are disfavored, courts presume

that by passing a new statute Congress ordinarily does not

intend to displace laws already in effect. See Posadas v. Nat’l

City Bank, 296 U.S. 497, 503 (1936). Our case law concerning application of this presumption against implied repeals,

however, supports rather than detracts from our interpretation

of MVRA.10 Our implied repeal cases indicate that when a

“notwithstanding” clause is present, then, the usual presumption against implied repeals is mitigated in that (1) a later statute that conflicts with an earlier one should be considered to

supersede the earlier statute if the only way that earlier one

can stand is as a limited exception to the broad terms of the

10We are not sure that a latter-enacted statute effects an implied repeal

by merely creating a limited category of cases in which the earlier statute

does not apply. The Tenth Circuit has observed that it “see[s] no repealby-implication problem” when a “later statute simply addresses one particular application [of the former statute] and carves out an exception.” Harris v. Owens, 264 F.3d 1282, 1296 (10th Cir. 2001); see also Strawser v.

Atkins, 290 F.3d 720, 733 (4th Cir. 2002) (“Rather than repeal by implication a general statute, the . . . amendment simply created a specific, discrete exception to that statute.” (citation omitted)); Greenless v. Almond,

277 F.3d 601, 608 (1st Cir. 2002) (“The ‘implied repeal’ argument is an

odd one because at issue is not whether Congress totally repealed [the statute], but whether it intended to carve out [a certain application] from the

reach of that provision.”). We assume for purposes of this opinion, however, that the implied repeal canon of construction applies to implied limitations as well. 

1974 UNITED STATES v. NOVAK
later one; and (2) the “notwithstanding” clause, combined

with other convincing indices of statutory intent, will suffice

to make manifest that there is indeed an irreconcilable conflict

such that the two statutes dictate opposite results as to a particular matter. 

As to the first point: We have recognized that “including a

‘notwithstanding any other law’ provision” is a method —

akin to an express reference to the superseded statute — by

which Congress can demonstrate that it “intended to partially

repeal [an] Act.” Lujan-Armendariz v. INS, 222 F.3d 728, 747

(9th Cir. 2000); see also Bank of New Eng. Old Colony, N.A.

v. Clark, 986 F.2d 600, 604 (1st Cir. 1993) (“The . . . statute

began by stating ‘[n]otwithstanding any other provision of

law . . . ,’ manifesting a clear intent to override any conflicting statutes in existence.”). In Lujan-Armendariz, Judge Reinhardt explained that in some circumstances an earlier

enactment will be understood as a minor exception to the later

one so as to avoid a repeal by implication, relying on the “irreconcilable conflict” prong of the implied repeal presumption explained in Radzanower v. Touche Ross & Co., 426 U.S.

148 (1976). 222 F.3d at 743-44. There was no “notwithstanding” clause in Radzanower however, and, as LujanArmendariz indicates, when the question is whether “Congress . . . intend[ed] to bar . . . exceptions to the new [statute’s] literal terms,” a “notwithstanding” clause can serve as

an “indication . . . that the new law was intended to displace”

the old one. Id. at 747. 

As to the second implied repeal limitation summarized

above: In Moyle v. Director, Office of Workers’ Compensation Programs, 147 F.3d 1116 (9th Cir. 1998), the “plain language of the [later statutory] provision and its legislative

history demonstrate[d] the legislature’s ‘clear and manifest’

intent to repeal the [earlier] Anti-Alienation provision,” in a

case in which “two provisions irreconcilably conflict because

the [later] provision permits garnishment of [certain pension]

benefits and the [earlier] Anti-Alienation provision prohibits

UNITED STATES v. NOVAK 1975
such garnishment.” Id. at 1124. Similarly here, the “notwithstanding” clause is not the only statutory indication of Congressional intent on § 3613. Giving effect to the

“notwithstanding” clause in conjunction with the breadth of

the “all property or rights to property” language; the express

inclusion of Social Security retirement benefits in the reach of

“all property or rights to property”; the specific exclusion of

certain federal pensions that have their own anti-alienation

provisions; and the use of language derived from the tax levy

statute, previously construed by courts to allow seizure of

ERISA-covered retirement plan benefits, we conclude that

Congress has expressed its intent to override the statute in sufficiently clear terms to overcome any contrary presumption.

* * *

[10] In sum, all standard principles of statutory construction support the conclusion that MVRA authorizes the

enforcement of restitution orders against retirement plan benefits, the anti-alienation provision of ERISA notwithstanding.

B.

We do not, however, write on an entirely clean slate regarding the scope and application of ERISA’s anti-alienation provision. Guidry, decided by the Supreme Court in 1990,

reviewed the intersection of section 206(d) of ERISA, the

anti-alienation provision, with another federal statute, the

Labor-Management Reporting and Disclosure Act of 1959

(“LMRDA”), 29 U.S.C. §§ 141-187. Novak’s principal argument is that Guidry requires us to apply the ERISA antialienation provision to the enforcement of restitution orders

under MVRA. We do not agree. To explain why, we first

examine Guidry in detail and then consider its application to

this case. 

1. Guidry involved an individual convicted of embezzling

funds from a union. 493 U.S. at 367-68. The union sought to

1976 UNITED STATES v. NOVAK
recover its losses by asking the district court to impose a constructive trust on benefits owed Guidry by two pension funds,

“so that the benefits would be paid to the Union rather than

to petitioner.” Id. at 369. Considering such a constructive trust

as akin to garnishment, the Supreme Court held that such a

remedy is “prohibited by § 206(d)(1) unless some exception

to the general statutory ban is applicable.” Id. at 371-72. The

Court then considered two possible sources of such an exception: the provision of the LMRDA permitting, “under certain

conditions, a private right of action ‘to recover damages or

secure an accounting or other appropriate relief for the benefit

of the labor organization,’ ” id. at 374 (quoting 29 U.S.C.

§ 501(b)), and a “generalized equitable exception” to the antialienation provision, id. at 376.11

Noting that the LMRDA contained a “general reference”

stating that those harmed by a union officer’s breach of fiduciary duty could secure “other appropriate relief,” id., the

Supreme Court assumed that such general language “may

authorize, in some circumstances, the imposition of a constructive trust,” id. at 374. Invoking the “elementary tenet of

statutory construction” that a general statute will not alter a

more specific one, however, the Court held that ERISA’s antialienation provision controlled, so that the trust remedy was

not available. Id. at 375-76 (citing Morton v. Mancari, 417

U.S. 535, 550-51 (1974)). ERISA’s anti-alienation provision

is more specific, held the Court, because it delineated the

“particular means” through which “judgment[s] may be collected,” while the LMRDA only discussed “what sort of judgment the aggrieved party may obtain.” Id. at 376 (emphasis

omitted). Ruling otherwise “would eviscerate the protections

11ERISA’s fiduciary duty provisions did not apply to the facts of Guidry, because the beneficiary embezzled funds not from the pension fund

but from the legally distinct union. 493 U.S. at 373. The Supreme Court

therefore chose not to decide whether ERISA provisions that create liability for the breach of fiduciary duty would override the statute’s antialienation provision. Id. 

UNITED STATES v. NOVAK 1977
of § 206(d),” because “ERISA’s anti-alienation provision

would be inapplicable whenever a judgement creditor relied

on the remedial provisions of a federal statute.” Id. at 375. 

As our discussion to this point indicates, Guidry simply

relied upon the generally applicable principle that “[w]here

there is no clear intention otherwise, a specific statute will not

be controlled or nullified by a general one.” Id. (alteration in

original) (quoting Mancari, 417 U.S. at 550-51) (internal quotation marks omitted); see also Coar v. Kazimir, 990 F.2d

1413, 1420 (3d Cir. 1993) (“Guidry did not state that section

206(d)(1) is immutable. Rather, the Court’s main reason for

not overriding the anti-alienation provision through the

LMRDA was that the LMRDA’s provision was general

whereas the anti-alienation provision in ERISA was specific.”), cited with approval in Parker v. Bain, 68 F.3d 1131,

1140 (9th Cir. 1995). Notably, Guidry did not apply a special

plain statement rule, requiring that Congress explicitly mention the ERISA anti-alienation provision in an ensuing statutory provision in order to negate the ERISA provision. Nor

did Guidry demand that sufficiently specific statutory exceptions be codified within the text of ERISA itself. Instead, Guidry’s premises were, first, that the LMRDA does not address

at all the enforcement of judgments obtained under § 501(b),

let alone garnishment of retirement benefits, and second, that

there was no “clear intent,” however expressed, that the very

general provision of § 501(b) override the specific language

of section 206(d)(1) of ERISA. 

When the specific-versus-general canon does not apply and

therefore Guidry’s holding is inapplicable, there is nothing in

the language of ERISA’s anti-alienation provision that

demands that Congress act with special clarity in altering its

coverage.12 Nor does the anti-alienation provision involve

12In fact, it is an open question whether Congress could validly impose

such a clear statement rule even if it wanted to do so. See Lockhart v.

United States, 126 S. Ct. 699, 703-04 (2005) (Scalia, J., concurring) (arguing that Supreme Court case law dictates that statutory express statement

requirements are invalid). 

1978 UNITED STATES v. NOVAK
“traditionally sensitive areas, such as legislation affecting the

federal balance,” where clear statement rules have been judicially created to protect bedrock constitutional principles such

as separations of powers or federalism. Gregory v. Ashcroft,

501 U.S. 452, 461 (1991) (quoting United States v. Bass, 404

U.S. 336, 349 (1971)). 

After discussing the LMRDA issue, Guidry went on to

reject a generalized equitable exception to ERISA’s antialienation provision. The Court held it inappropriate to create

an exception that Congress did not provide. Guidry, 493 U.S.

at 376-77. It is this portion of Guidry that the Supreme Court

has emphatically reiterated in later opinions. See Boggs, 520

U.S. at 851 (“ERISA’s pension plan anti-alienation provision

is mandatory and contains only two explicit exceptions which

are not subject to judicial expansion. See Guidry v. Sheet

Metal Workers Nat. Pension Fund, 493 U.S. 365, 376

(1990).” (emphasis added) (citation omitted)); Patterson, 504

U.S. at 760 (“[T]his Court itself 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. See Guidry v. Sheet Metal Workers

Nat. Pension Fund, 493 U.S. 365 (1990).” (emphasis added)).13

13Patterson addressed a situation in which the second statute — there,

the Bankruptcy Code — states that it does not operate when “applicable

nonbankruptcy law” dictates otherwise. 504 U.S. at 757 (quoting 11

U.S.C. § 541(c)(2)) (internal quotation marks omitted). The second statute

in the case before us states quite the opposite — that it applies

“[n]otwithstanding any other Federal law.” 18 U.S.C. § 3613(a). Patterson’s emphasis on “clarity of the statutory text” in delineating which statute prevails in case of a conflict, 504 U.S. at 760, thus supports the

conclusion that § 3613(a) does override ERISA’s anti-alienation provision. See id. at 766 (Scalia, J., concurring) (noting that courts of appeals

decisions disregarding the explicit designation in a statute of the statutory

hierarchy “call[ ] into question whether our legal culture has so far

departed from attention to text, or is so lacking in agreed-upon methodology for creating and interpreting text, that it any longer makes sense to

talk of ‘a government of laws, not of men’ ”). 

UNITED STATES v. NOVAK 1979
[11] 2. Guidry’s holding that general statutory authority,

such as the LMRDA’s private right of action provision, cannot overcome ERISA’s anti-alienation provision when the

ERISA provision is more specific has no application here, for

two reasons: 

[12] First, while the LMRDA addressed only “what sort of

judgment the aggrieved party may obtain,” MVRA addresses

precisely the question of “whether [the] judgment may be collected through a particular means.” Guidry, 493 U.S. at 376

(emphasis omitted). MVRA specifies that criminal restitution

“may be enforced against all property or rights to property of

the person fined.” 18 U.S.C. § 3613(a) (emphases added).

MVRA is therefore much more specific than is the LMRDA

in addressing the same issue addressed by the ERISA antialienation provision. 

[13] Second, even if one were to consider the LMRDA

relief and the MVRA enforcement provisions to be at the

same level of generality — which they are not — MVRA,

unlike the LMRDA, expresses a “clear intention,” Guidry,

493 U.S. at 375 (quoting Mancari, 417 U.S. at 550), that

MVRA supersede the ERISA anti-alienation provision. That

“clear intention,” as we have seen, is expressed in the “notwithstanding” clause; the breadth of the “all property or rights

to property” language; the express inclusion of Social Security retirement benefits in the reach of “all property or rights

to property”; the specific exclusion of certain federal pensions

that have their own anti-alienation provisions; and, perhaps

most importantly, the use of language derived from the tax

levy statute, previously construed by courts to allow seizure

of ERISA-covered retirement plan benefits. Guidry’s statutory canon discussion thus does not support holding that

ERISA overrides MVRA’s enforcement provision. 

Guidry’s holding concerning the creation of equitable

exceptions to ERISA’s anti-alienation provision is not pertinent either. We are examining a means of enforcement

1980 UNITED STATES v. NOVAK
expressly authorized by MVRA, not one implied without a

statutory basis. There is no question that the government

would have the statutory right to garnish retirement benefits

were it not for the ERISA anti-alienation provision. 

3. Our analysis of Guidry, we note, is consistent with the

Third Circuit’s examination of that decision in a case holding

that ERISA’s fiduciary duty provisions override the antialienation provision, and with our approval of the Third Circuit’s holding. Addressing the question that the Supreme

Court explicitly declined to answer in Guidry, see supra note

11, the Third Circuit cautioned against “constru[ing] Guidry’s

holding too broadly and plac[ing] insufficient emphasis on the

wording” of the conflicting statutory provisions. Coar, 990

F.2d at 1419. Abiding by that caution, Coar allowed a pension plan to set off the benefits it owed to a trustee by the

amount of injury his breach of fiduciary duty caused to the

plan. See id.; see also Crawford v. La Boucherie Bernard

Ltd., 815 F.2d 117, 121-22 (D.C. Cir. 1987) (adopting the

same holding pre-Guidry). We have “note[d] . . . our agreement” with the holding of Coar. Parker, 68 F.3d at 1140. 

Coar, along with the similar holdings of our court and the

D.C. Circuit, is relevant to this case for an additional reason:

It explains why a statutory exemption from ERISA’s antialienation provision enacted in 1997, after Guidry, does not

detract from our interpretation of § 3613(a). That exemption

allows ERISA-covered retirement plans to “offset . . . 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” on account of a conviction for

committing a crime against the plan or a civil judgment or settlement agreement based on breaching ERISA’s fiduciary

duty provisions. 29 U.S.C. § 1056(d)(4). Contrary to the decisions noted above, the Fifth Circuit had held that Guidry prevented plans from setting off benefits owed to malfeasant

fiduciaries. Herberger v. Shanbaum, 897 F.2d 801, 803-04

(5th Cir. 1990). Congress added a statutory exception to secUNITED STATES v. NOVAK 1981
tion 206(d) of ERISA to resolve the circuit split on the interplay between the statutory provisions authorizing plans to use

self-help to recover for the breach of fiduciary duty and the

anti-alienation provision by overturning Herberger. See H.R.

REP. NO. 105-220, at 757 (1997) (Conf. Rep.). Given Congress’s focus in adding the offset exemption, that provision

has no bearing on whether MVRA allows judicially approved

garnishment of retirement benefits by third parties. 

Moreover, by their very terms, MVRA and the exception in

section 206(d)(4) address different issues. Unlike MVRA, the

offset exception in section 206(d)(4) of ERISA does not

address the government’s right judicially to enforce restitution

orders against retirement plans. See Coar, 990 F.2d at 1421

(distinguishing between set-offs and garnishment on the basis

of third-party involvement). Instead, the 1997 ERISA amendment concerns the remedies a plan can use to recover for

crimes perpetrated against it — without having to obtain the

assistance of the U.S. Attorney’s Office or to follow the procedure of FDCPA (or other statutes) that detail the steps the

government must take to seize property. The fact that these

offsets do not have to comply with such procedural statutes

explains Congress’s decision to include independent procedural safeguards in section 206(d)(4) but not in MVRA. 

The 1997 exception to the ERISA anti-alienation provision

is not informative concerning the reach of § 3613(a) for

another reason: Section 206(d)(4)(A)(i) of ERISA is not limited, as is MVRA, to enforcement of restitution orders resulting from federal criminal convictions. It also provides

retirement plans an offset right based on state court restitution

orders. See generally Commonwealth v. Federico, 419 N.E.2d

1374, 1377-78 (Mass. 1981) (“[A] State is not precluded [by

ERISA] from prosecuting, under a theft statute applicable to

the entire population, an employer who steals money from an

employee benefit plan, simply because the theft involved such

a plan.”); State v. Pulasty, 612 A.2d 952, 958 (N.J. Super. Ct.

App. Div. 1992) (“[G]eneral [state] criminal laws, such as

1982 UNITED STATES v. NOVAK
those which punish larceny and theft, survive ERISA even

where the subject of the theft is a pension plan or provider.”),

aff’d on other grounds, 642 A.2d 1392 (N.J. 1994). 

[14] We therefore find nothing in Guidry or in post-Guidry

congressional enactments to affect our conclusion that the

government may enforce MVRA restitution orders against

retirement benefits. 

C.

Our interpretation of the interplay of MVRA and ERISA

accords with the unanimous interpretation by federal district

courts around the country. United States v. Lazorwitz, 411 F.

Supp. 2d 634, 636-37 (E.D.N.C. 2005) (rejecting a retirement

plan’s objection to a garnishment order to enforce MVRA restitution); United States v. James, 312 F. Supp. 2d 802, 805

(E.D. Va. 2004) (holding that “ERISA is no bar to garnishment of a qualified pension plan to collect a criminal restitution order” in rejecting a defendant’s motion to quash a

garnishment writ seeking to collect MVRA restitution payments); United States v. Sowada, No. 03-420, 2003 WL

22902613, at *2 (E.D. La. Dec. 8, 2003) (rejecting a defendant’s objection to the garnishment of his retirement plan to

enforce a restitution order); United States v. Garcia, No. 96-

10049-01-JTM, 2003 WL 22594362, at *1-3 (D. Kan. Nov.

6, 2003) (overruling a retirement plan’s objection to its garnishment to fund restitution); United States v. Tyson, 242 F.

Supp. 2d 469, 470-74 (E.D. Mich.) (depending on § 3613 to

reject a defendant’s and a retirement plan’s objection to a writ

of garnishment to enforce a restitution order), objections overruled, 265 F. Supp. 2d 788 (E.D. Mich. 2003); United States

v. Rice, 196 F. Supp. 2d 1196, 1200-02 (N.D. Okla. 2002)

(depending on § 3613 to reject a retirement plan’s argument

that its assets were not subject to garnishment to enforce a

restitution order). 

Although no circuit courts have decided the precise issue

here, our decision accords with United States v. Irving, 452

UNITED STATES v. NOVAK 1983
F.3d 110 (2d Cir. 2006), which held that MVRA allows a district court to consider a defendant’s retirement plans as a

source of funds to pay restitution when issuing a restitution

order in the first instance. Id. at 126. The Second Circuit’s

analysis depended on its view that MVRA allows the government to enforce restitution orders against such plans. Id. 

[15] Our decision does conflict with the holding of the

three-judge panel in Jackson. The Jackson panel, however,

did not have the benefit of any briefing on the interaction of

the ERISA anti-alienation provision with MVRA. Having

now had the opportunity to survey in detail the pertinent statutory landscape in its entirety, we conclude that the decision in

Jackson was in error, albeit understandably so. We therefore

overrule Jackson to the extent it conflicts with today’s ruling.

D.

Nothing in the dissenting opinion undermines our analysis.

The dissent engages in an exegesis on why the command that

MVRA restitution orders “[n]otwithstanding any other Federal law . . . may be enforced against all property or rights to

property,” 18 U.S.C. § 3613(a) (emphases added), in fact

means that another Federal law limits the application of

MVRA restitution orders to some property not covered by any

MVRA exception. This proposition not only flies in the face

of the common sense meaning of the statutory text but also

lacks legal support. 

First, the dissent relies upon Guidry as creating a very special plain statement rule applicable to any statutory conflict

involving ERISA’s anti-alienation provision. See Dissent at

1998 (“As the Supreme Court explained in Guidry . . . only

a clear and specific legislative directive is sufficient to defeat

it.” (emphasis added)); id. at 2001-02 (“Guidry requires an

unambiguous legislative command to create an exception to

ERISA’s anti-alienation provision.” (emphasis added)). As we

have explained, this interpretation is inconsistent with Guidry,

1984 UNITED STATES v. NOVAK
which only demanded clear congressional intent after determining that the general-versus-specific statutory canon was

relevant to the conflict in that case — which it is not here.14

Second, the dissent claims that standard textual analysis

principles support its position. To reach this result, the dissent

invites us to ignore provisions of MVRA inconsistent with its

interpretation, including the “notwithstanding” clause, the “all

property” coverage, and the limited exceptions for some antialienation clauses but not for ERISA. See supra notes 7-8. It

also refuses to interpret MVRA’s language in the same manner as the tax levy statute Congress, quite apparently, deliberately copied — for the sole reason that the tax provision

predates ERISA, while MVRA was added later. Dissent at

2020. 

In so doing, the dissent assigns unsupportable significance

to the sequence of enactment and misreads the ERISA saving

clause. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 102

(1983) (holding ERISA’s saving clause applies when ERISA

otherwise would “ ‘modify’ and ‘impair’ ” “the enforcement

scheme contemplated” by the Pregnancy Discrimination Act

of 1978); John Hancock Mut. Life Ins. Co. v. Watson (In re

Kincaid), 917 F.2d 1162, 1164 (9th Cir. 1990) (holding

ERISA’s saving clause applies in a conflict with the Bankruptcy Act of 1978). Such a reading would broaden the scope

of ERISA preemption to cover federal laws. See Kincaid, 917

F.2d at 1164 (noting, according to its interpretation, that the

ERISA saving clause “expressly prohibits ERISA preemption

of other federal laws”).15 Also, even if this temporal distinc14Even if the dissent were correct that Guidry created a clear statement

rule, its reliance on the fact that § 3613 does not “make[ ] any reference

whatsoever to ERISA” cannot bear the weight placed on it. Dissent at

2004. A clear statement rule does not require an explicit reference to the

overridden provision. See Gregory, 501 U.S. at 467 (citing Dellmuth v.

Muth, 491 U.S. 223, 233 (1989) (Scalia, J., concurring)). 

15Moreover, assigning such significance to the statutory sequence is in

tension with Guidry. There, the statute that conflicted with ERISA’s antiUNITED STATES v. NOVAK 1985
tion would otherwise matter, the dissent fails to account for

Congress’s choice to copy the tax levy language after courts

had interpreted it to override section 206 of ERISA. Using

statutory language previously construed as dictating a certain

result in this manner provides the “unambiguous legislative

command” that the dissent insists is lacking here. See Dissent

at 2001. 

Clarifying that these features of MVRA’s language cannot

be ignored exposes the critical flaw in the dissent’s textual

analysis: It fails to accord any import to the statute’s choice

of language. The dissent’s analysis, based on its conclusion

that “we determine the effect of ‘notwithstanding’ language

according to the doctrine of implied repeals,” Dissent at 2006,

would be exactly the same had MVRA entirely lacked the

“notwithstanding” language. If § 3613 contained only the

statement that “a judgment imposing a fine may be enforced

against all property or rights to property of the person fined,”

the presumption against implied repeals might render such

language insufficient to overcome ERISA’s anti-alienation

provision. As we explained in Section II.A.3, however, the

“notwithstanding” language, in combination with the numerous other indicia of statute’s scope, override ERISA’s antialienation provision. The dissent’s failure to give this effect

to the “notwithstanding” language, while construing section

206(d) of ERISA as an exception to the literal language of

MVRA, runs counter to both Lujan-Armendariz and the principle that we must try to avoid construing statutory provisions

as superfluous, see TRW, 534 U.S. at 31. 

Third, the dissent scours legislative history looking for any

shred of evidence that Congress did not intend MVRA to

affect ERISA. The dissent initially focuses on Senator

alienation provision predated the enactment of ERISA. Yet, the Supreme

Court neither gave any priority to the preexisting statute nor invoked the

precept against repeal by implication when construing the more recent

ERISA provision. See Guidry, 493 U.S. at 374-76. 

1986 UNITED STATES v. NOVAK
McCain’s actions in December 1995 and February 1996, even

though the relevant language of MVRA did not emerge until

later — after Senator McCain was assured that his concern

would be accommodated, as it was. Nonetheless, the dissent

dismisses our explanation of the critical legislative history —

the Conference Committee’s change — without offering any

alternate explanation for the decision to add an entirely new

subsection into the United States Code whose plain meaning,

already construed by courts, worked the very result that Senator McCain desired. Dissent at 2009-11.16

The dissent then turns to the 1997 enactment of section

206(d)(4) of ERISA. The Supreme Court has cautioned that

“subsequent legislative history is a ‘hazardous basis for inferring the intent of an earlier’ Congress,” Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting

United States v. Price, 361 U.S. 304, 313 (1960)). The dissent

nonetheless places near-determinative weight in explaining

the intent of Congress in 1996 on Congress’s 1997 decision

to add ERISA section 206(d)(4). Dissent at 2011-16. This

16Notably, the dissent’s use of legislative history is far more speculative

than ours. It credits the fact that the Senate Judiciary Committee never

acted on one proposed bill as Congress’s definitive decision that retirement plan payments could not be used to satisfy criminal restitution

orders. Dissent at 2007-09. Although, in construing a statute we may properly consider Congress’s rejection of amendments to the bill that became

that statute, see Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2766 (2006), a

committee’s failure to consider an entirely separate piece of legislation

while altering the bill it is considering in a manner consistent with the proposed amendment has no such significance. See Pension Benefit Guar.

Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (“Congressional inaction

lacks ‘persuasive significance’ because ‘several equally tenable inferences’ may be drawn from such inaction . . . .” (quoting United States v.

Wise, 370 U.S. 405, 411 (1962))). Here, the most likely inference is that,

given realities of the legislative process, it was much easier to attach language with settled meaning into MVRA in conference than to enact an

amendment to an entirely separate statute, ERISA, and that Senator

McCain likely so understood and was satisfied that his concerns had been

met. 

UNITED STATES v. NOVAK 1987
analysis is a particularly unsupportable inference in light of

our explanation in section II.B.3 — that the 1997 provision

focused on the inapposite circuit split about the scope of

ERISA’s fiduciary duty provision, and dealt with a different

means of restitution that applies to a broader range of wrongdoing than MVRA. Moreover, the significance the dissent

places on Congress’s amendment of the tax statutes is belied

by the fact that the tax statutes had already been interpreted

to allow retirement plans to respond to tax levies, without any

statutory provision, United States v. Sawaf, 74 F.3d 119, 123-

24 (6th Cir. 1996), and by the IRS’s own understanding that

the tax laws do allow retirement plans to respond to MVRA

restitution orders, see infra note 24 and accompanying text. 

When all of the dissent’s efforts to respond to our analysis

are laid bare, the proper resolution of this case is all the more

apparent: Congress actually meant what it said in specifying

that enforcement of MVRA restitution would apply to “all

property or rights to property” and “notwithstanding any other

Federal law.” 18 U.S.C. § 3613(a) (emphases added).

III.

[16] Our holding that the criminal restitution enforcement

provision allows for the garnishment of retirement benefits

covered by ERISA does not, however, resolve this case. A

key question remains: When is a participant’s interest in a

retirement plan “property or [a] right[ ] to property” under 18

U.S.C. § 3613(a)? Only if the defendant’s interest is properly

so categorized can that interest be reached by the government

when enforcing a restitution order under MVRA. 

The government here seeks to require The May Department

Stores Company immediately to cash out at least a portion of

the retirement accounts it holds on Novak’s behalf:17 The gov17It is not entirely clear whether the government believes it has the

authority to reach only Novak’s holdings in the May Profit Sharing Plan,

1988 UNITED STATES v. NOVAK
ernment has stated its “inten[t] to get the money now so that

it’s available to the victim of the defendant’s offense,” instead

of waiting “until the defendant is entitled to retire, entitled to

receive retirement benefits, or makes application for them.”

We therefore proceed 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.18

The matter is far from straightforward, as retirement plans

differ widely in their terms. Plans often include promises of

future benefits not convertible to cash in whole or part until

some contingency — such as reaching a certain age or becoming disabled — occurs. Determining whether such a contingent interest has become “property or [a] right[ ] to property”

within the meaning of § 3613(a) is a necessary prerequisite to

enforcement of a restitution order under MVRA. 

Even though state law ordinarily informs the delineation of

“property,”

19 the interpretation of the term “property or [a]

or both those holdings and also Novak’s interest in the May Retirement

Plan. Although the record is not plain, the latter plan appears to entitle

Novak to receive an annuity upon attaining age sixty-five. Before the district court, the government only made reference to the $142,245.11 in the

May Profit Sharing Plan. At oral argument on appeal, government counsel

somewhat inconsistently asserted that the government was not seeking to

receive more than what the defendant-participant is entitled to presently

under the terms of his retirement plan, but also that the government’s right

to garnish was not restricted to plans under which a cash-out is immediately available at the time of garnishment. 

18It is possible for a garnishment order to require that a person owing

money to a judgment debtor turn over proceeds as they become due. Cf.

28 U.S.C. § 3205(a), (c)(9) (specifying that a writ of garnishment under

FDCPA is “continuing” and that the government must provide an accounting to a judgment debtor at least once each year while the writ is in effect).

The government, however, does not view its garnishment order as limited

to receiving any periodic payments Novak is owed in the future, once he

retires. 

19For instance, state law is usually determinative of what “property” is

subject to tax levy. See Drye v. United States, 528 U.S. 49, 58 (1999)

UNITED STATES v. NOVAK 1989
right[ ] to property” in the current context must be determined

by taking into account federal law. Retirement plans covered

by ERISA, the species of property rights that here concerns

us, are governed exclusively by federal law. See 29 U.S.C.

§ 1144(a) (dictating that, with certain exceptions, ERISA

“shall supersede any and all State laws insofar as they . . .

relate to any employee benefit plan”). We therefore look to

ERISA to determine the extent and nature of the rights a

retirement plan participant holds in the plan. 

A.

Instructively, the Supreme Court has directly addressed the

analogous issue in the tax levy context: “In a levy proceeding,

the IRS steps into the taxpayer’s shoes. The IRS acquires

whatever rights the taxpayer himself possesses.” Nat’l Bank

of Commerce, 472 U.S. at 725 (quoting United States v. Rodgers, 461 U.S. 677, 691 n.16 (1983)) (internal quotation

marks and citations omitted). 

The question, then, is how far the interest of a criminal

defendant who is a participant in an ERISA-covered retirement plan extends. The answer varies with the type of plan at

issue. ERISA provides an employee a nonforfeitable right to

the “accrued benefit derived from his own contributions” and

to the “accrued benefit derived from employer contribution”

once he or she has completed a statutorily prescribed minimum years of service, thereby “vesting.” 29 U.S.C.

§ 1053(a)(1)-(2). For defined benefit plans, the traditional

type of retirement plan in which participants are promised “an

annual benefit commencing at normal retirement age,” the

accrued benefit is a right to the annual payments promised by

(“We look initially to state law to determine what rights the taxpayer has

in the property the Government seeks to reach, then to federal law to

determine whether the taxpayer’s state-delineated rights qualify as ‘property’ or ‘rights to property’ within the compass of the federal tax lien legislation.”). 

1990 UNITED STATES v. NOVAK
the terms of the plan or, if the plan provides the option of

receiving a lump sum payment in lieu of those annual payments, to their actuarial equivalent. Id. §§ 1002(23)(A),

1054(c)(3). For defined contribution plans, in which benefits

are “based solely upon the amount contributed to the participant’s account, and any income, expenses, gains and losses”

on those contributions, id. § 1002(34), the accrued benefit is

“the balance of the individual’s account,” id. § 1002(23)(B).

Under ERISA, a retirement plan participant need not have

the right to receive his accrued benefits as an immediate cash

payment at any time. Instead, ERISA only guarantees participants a right to begin receiving payments sixty days after the

close of the year in which they turn sixty-five, complete ten

years of service with the company, or leave the company,

whichever occurs latest.20 Id. § 1056(a). Even after that point,

ERISA only guarantees the right to receive payments at the

rate specified in the plan. See id. § 1002(19) (defining “nonforfeitable” in terms of the benefit owed “under a pension

plan”); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504,

511 (1981) (“[W]hat defines the content of the benefit that,

once vested, cannot be forfeited? ERISA leaves this question

largely to the private parties creating the plan.”). A plan may

provide for payment of accrued benefits in one lump sum,

although only with the participant’s consent when the total

payment exceeds five thousand dollars. 29 U.S.C. § 1053(e).

For plans required to provide an annuity to the employee’s

surviving spouse,21 the spouse also must consent to lump sum

payments that exceed five thousand dollars. Id. § 1055(g). 

20ERISA does not forbid retirement plans from making payments to participants before that point. Under certain circumstances, however, participants who receive payments before they attain age 59 must pay a tenpercent penalty tax. 26 U.S.C. § 72(t). 

21ERISA requires that most retirement plans provide such spousal annuities. There is an exception for certain defined contribution plans that,

upon the death of the participant, pay all remaining accrued benefits to

survivors. 29 U.S.C. § 1055(b)(1). 

UNITED STATES v. NOVAK 1991
[17] A participant’s right to receive cash from his retirement plan at any given time is thus limited to the right to

receive the amount then available under the terms of the plan.

Because that is so, under the “steps into the taxpayer’s shoes”

principle, see Nat’l Bank of Commerce, 472 U.S. at 725, a tax

levy can demand (1) that a retirement plan directly pay to the

IRS any post-retirement payments that otherwise would have

automatically gone to the taxpayer; and (2) if the plan allows

the participant to demand payment before retirement or at a

different rate — including immediate payment of the entire

present value of benefits — the full amount that the participant could presently demand.22

This dual understanding accords with judicial and administrative interpretations of the tax levy power. On the one hand,

we have noted that “the IRS cannot . . . enforce its liens on

[a taxpayer’s] interest in his ERISA plan until the plan enters

pay-out status,” if the taxpayer “has no right to demand payment from the plan trustee until that time” under the plan’s

terms. U.S. IRS v. Snyder, 343 F.3d 1171, 1175 (9th Cir.

2003). On the other hand, although we have not addressed the

question, other circuits have held that the IRS has the authority to demand annuity and retirement funds when the beneficiary has the contractual right immediately to withdraw the

money sought. See Kane v. Capital Guardian Trust Co., 145

F.3d 1218, 1223 (10th Cir. 1998) (“[Taxpayer’s] right to liquidate his IRA and withdraw the funds therefrom (even if subject to some interest penalty) undoubtedly constituted a ‘right

to property’ subject to the IRS’ administrative levy power

under 26 U.S.C. § 6331(a). Upon [the plan’s] receipt of the

notice of levy, the IRS stepped into [the taxpayer’s] shoes and

acquired all his rights in the IRA, including his right to liquidate the mutual fund shares in his IRA and withdraw the cash

proceeds.”); United States v. Metro. Life Ins., 874 F.2d 1497,

1500 (11th Cir. 1989) (holding that the IRS had the immedi22Retirement plan distributions to satisfy a tax levy are not subject to the

ten-percent penalty tax. 26 U.S.C. § 72(t)(2)(A)(vii). 

1992 UNITED STATES v. NOVAK
ate right to levy the full value of an annuity when the taxpayer

“had the right to withdraw the full value of the annuity”).23

The IRS makes a similar distinction in the publications that

explain its levy powers. See Rev. Rul. 55-210, 1955-1 C.B.

544 (“[I]t is the position of the Internal Revenue Service that

where a taxpayer has an unqualified fixed right, under a trust

or a contract, . . . to receive periodic payments or distributions

of property . . . a notice of levy . . . is effective to reach, in

addition to payments or distributions then due, any subsequent payments or distributions that will become due thereunder, at the time such payments or distributions become due.”);

IRS, INTERNAL REVENUE MANUAL § 5.11.6.2 (Mar. 15, 2005)

(“The taxpayer may be able to withdraw money in a lump

sum from a [retirement] plan. If the taxpayer has the right to

do so, a levy can reach that right. However, remember that a

levy only reaches the taxpayer’s present rights.”).

B.

[18] As with our earlier analysis of the effect of ERISA’s

anti-alienation provision, we follow the tax levy analysis in

determining the scope of the property subject to enforcement

under the nearly identically worded restitution enforcement

provision. Applying that analogy, we hold the government

can immediately garnish the corpus of a retirement plan to

satisfy a MVRA judgment — rather than merely obtain postretirement payments that otherwise would have gone to the

defendant — if, but only if, the terms of the plan allow the

defendant to demand a lump sum payment at the present time.

Our reliance on the tax levy analogy accords with the IRS’s

view on this precise question. In advising retirement plans

23In light of these judicial rulings interpreting the term “right to property” in the tax levy context, the dissent’s accusation that we are exceeding

our judicial authority by similarly construing the same undefined language

as contained in MVRA is hard to fathom. See Dissent at 2012-13. 

UNITED STATES v. NOVAK 1993
that they do not violate the tax laws by responding to garnishment demands pursuant to MVRA,24 IRS Priv. Ltr. Rul.

200426027, at 11 (June 25, 2004), 2004 PLR LEXIS 315, at

*20-21, the IRS noted that “the government is subject to the

same constraints when enforcing its garnishment order that

the Service is subject to when collecting a tax. The government steps into the shoes of the taxpayer . . . .” Id. at 12, 2004

PLR LEXIS 315, at *23.25 “Though letter rulings are not binding, we think the Commissioner’s position makes eminent

sense.” Jombo v. Comm’r, 398 F.3d 661, 665 (D.C. Cir. 2005)

(citation omitted). 

We note that because the government’s right is to step into

the defendant’s shoes, it will not be able unilaterally to cash

out a retirement plan when ERISA requires that lump sum

payments be made payable only with spousal consent. See

I.R.S. Priv. Ltr. Rul. 200426027, at 12, 2004 PLR LEXIS

315, at *23-24. This limitation accords with the congressional

intent, highlighted in Guidry, to protect “blameless” dependents. 493 U.S. at 376; see also 18 U.S.C. § 3664(f)(2)(C)

(requiring MVRA restitution orders to account for financial

obligations to dependents). Conversely, to the extent that

ERISA does not require certain retirement plans to provide

survivor annuities, see 29 U.S.C. § 1055(b)(1)(C) (detailing

24The Internal Revenue Code contains an anti-alienation provision,

identically worded to section 206(d) of ERISA, which retirement plans

must follow to receive favorable tax treatment. 26 U.S.C. § 401(a)(13)(A).

Although this case does not call on us to determine the tax treatment of

MVRA garnishment orders, the identical language of the two provisions

supports the IRS’s advice that pension plans can maintain favorable tax

treatment after complying with such orders notwithstanding the dissent’s

parsing of the tax code, Dissent at 2019. 

25Pursuant to the Tax Court’s ruling that the ten-percent penalty tax is

not owed when a defendant forfeits his retirement plan as part of the terms

of a criminal plea, Murillo v. Comm’r, 75 T.C.M. (CCH) 1564 (1998),

acq. in result, 1999-1 C.B., at xix, it does not appear that the tax applies

to retirement plan proceeds garnished to satisfy MVRA restitution orders

either. See IRS Priv. Ltr. Rul. 200426027, at 12-13, 2004 PLR LEXIS

315, at *24-25. 

1994 UNITED STATES v. NOVAK
conditions under which defined contribution plans do not

need to provide survivor annuities), the government does not

need to receive spousal consent to cash out these plans (unless

the plan itself provides otherwise). In other words, there are

some circumstances in which the government under MVRA

can reach plan assets without obtaining spousal consent, but

that is because Congress has chosen in those instances not to

protect spouses against a participant’s decision to squander

any lump sum due. See id. § 1055(g).

C.

As it turns out, ascertaining the applicable legal principles

is not sufficient to allow us, on the record before us, to determine the extent of Novak’s property rights in The May

Department Stores Company’s retirement plans. 

The burden is on Novak, as the party seeking to quash the

writ of garnishment, to prove its invalidity. 28 U.S.C.

§ 3205(c)(5). The record does not contain the terms of May’s

retirement plans; only a cursory statement from the company

about Novak’s current right to receive plan benefits upon the

completion of the necessary paperwork. That statement does

not suffice to allow us to ascertain whether Novak is entitled

under the plans to exercise the immediate payment option unilaterally. 

[19] Until today, however, we have not specified the need

to identify with precision the rights to payment provided

under a retirement plan when determining the scope of the

government’s garnishment rights under MVRA. Fairness

therefore dictates that we remand to the district court so that

the parties can introduce the pertinent terms of the retirement

plans into the record. See Playboy Enters., Inc. v. Netscape

Commc’ns Corp., 354 F.3d 1020, 1033 (9th Cir. 2004)

(remanding and allowing the parties to introduce new evidence when the relevant legal standard was clarified only

after the district court’s decision). Once Novak’s retirement

UNITED STATES v. NOVAK 1995
benefit rights are clear, the district court will be in a position

to determine the extent of the government’s right to garnish,

consistent with our foregoing analysis. 

VACATED and REMANDED. The parties shall bear their

own costs on appeal. 

1996 UNITED STATES v. NOVAK
Volume 2 of 2

UNITED STATES v. NOVAK 1997
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. § 3613, 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 (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. 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 (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

1998 UNITED STATES v. NOVAK
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 [restitutionary] amount owed.” 

The unsuccessful McCain bill and the successful 1997

amendment show us that when congressional drafters

intended to amend ERISA’s anti-alienation clause, they knew

how to do it. In both cases, the drafters expressly amended

UNITED STATES v. NOVAK 1999
ERISA’s anti-alienation clause, and expressly amended the

Internal Revenue Code to allow the preservation of taxexempt 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 provision 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. 

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. 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 antialienation provision, it cited a directive that explicitly, care2000 UNITED STATES v. NOVAK
fully, and unambiguously permitted alienation of ERISAcovered pension benefits. 

By contrast, the Court held in Guidry that the LaborManagement 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 (alterations in original, emphases

added) (quoting Morton v. Mancari, 417 U.S. 535, 550-51

(1974)). 

Subsequent cases confirm that Guidry requires an unambiguous legislative command to create an exception to ERISA’s

UNITED STATES v. NOVAK 2001
anti-alienation provision. In Boggs v. Boggs, 520 U.S. 833

(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 (citation omitted) (quoting John H. Langbein &

Bruce A. Wolk, Pension and Employee Benefit Law 547 (2d

ed. 1995)). The Court continued, “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; see also Patterson v. Shumate, 504 U.S. 753, 760

(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 1979. 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 antialienation provision must be expressly mandated by Congress.” Ablamis v. Roper, 937 F.2d 1450, 1454 (9th Cir. 1991)

(emphasis added). 

2002 UNITED STATES v. NOVAK
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 (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 “specificversus-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 ERISAcovered pension benefits, even if such relief would otherwise

have been appropriate. Guidry, 493 U.S. at 375-76. 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

UNITED STATES v. NOVAK 2003
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 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)(1). 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 subchapter

C of chapter 227 and subchapter B of chapter 229.” Id.

§ 3664(m)(1)(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 ERISAcovered 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

2004 UNITED STATES v. NOVAK
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 550-51 (“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 enactUNITED STATES v. NOVAK 2005
ments. Recognizing this, the majority asserts that the “overall

context” of the MVRA reveals an intent to abrogate ERISA’s

anti-alienation provision. Majority at 1965. The problem is

that the majority, wholly apart from its failure to follow Guidry, ignores our usual approach for deciding when a “notwithstanding” 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 (2003) (plurality opinion)

(citations and internal quotation marks omitted); see also

United States v. United Cont’l Tuna Corp., 425 U.S. 164, 168

(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 (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 (1976) (quoting Posadas v.

Nat’l City Bank, 296 U.S. 497, 503 (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

2006 UNITED STATES v. NOVAK
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 antialienation 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.

III

The legislative history provides two strong indications that

Congress did not intend to subject undistributed ERISAcovered 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.

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

UNITED STATES v. NOVAK 2007
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). 

2008 UNITED STATES v. NOVAK
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 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. 

UNITED STATES v. NOVAK 2009
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 antialienation 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 (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 lan2010 UNITED STATES v. NOVAK
guage.’ ” INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43

(1987) (quoting Nachman Corp. v. Pension Benefit Guar.

Corp., 446 U.S. 359, 392-93 (1980)); see also Hamdan v.

Rumsfeld, 126 S. Ct. 2749, 2754 (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 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

UNITED STATES v. NOVAK 2011
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 1974 . . . 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 UNITED STATES v. NOVAK
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 1989. 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 participant’s benefits provided under the

plan.” 29 U.S.C. § 1056(d)(4)(B). In other words, ERISAcovered 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

UNITED STATES v. NOVAK 2013
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 antialienation 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 UNITED STATES v. NOVAK
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,

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. 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. 

UNITED STATES v. NOVAK 2015
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 antialienation 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

2016 UNITED STATES v. NOVAK
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). 

IV

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 aspects” of 18 U.S.C. § 3613

reveal that the MVRA defeats ERISA’s anti-alienation provision. Majority at 1965. First, the majority argues that because

ERISA-covered 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 

[a]nnuity 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

UNITED STATES v. NOVAK 2017
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 alterius, 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 (2002); see also Burns

v. United States, 501 U.S. 129, 136 (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 (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 antialienation 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

2018 UNITED STATES v. NOVAK
requires modifications to be made by “express reference.” 42

U.S.C. § 407(b). The majority notes that ERISA’s antialienation 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 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 (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-Guidry, intended to reach ERISAcovered 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

1961-62 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 applicaUNITED STATES v. NOVAK 2019
ble 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 (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 are exempt from levy.

Id. § 6334(a). It then declares that, “[n]otwithstanding 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 pre-existing tax statute. In

McIntyre, we explicitly recognized the force of ERISA’s savings clause, which leaves pre-existing law undisturbed. The

savings clause provides that nothing in ERISA “shall be con2020 UNITED STATES v. NOVAK
strued 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 1985. 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.,

Airline 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 Guidry, coupled with the

presumption against implied repeals, requires that Congress

convey its intent clearly in order to override ERISA’s antialienation 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

UNITED STATES v. NOVAK 2021
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 to allow criminal restitution orders to abrogate

the anti-alienation provision. 

I respectfully dissent.

2022 UNITED STATES v. NOVAK