United States v. DeCay

Case: 09-30218 Document: 00511238933 Page: 1 Date Filed: 09/20/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 20, 2010

No. 09-30218 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee
v.

KERRY DE CAY; STANFORD BARRE,

Defendants - Appellants

LOUISIANA SHERIFFS PENSION AND RELIEF FUND,

Garnishee - Appellant

Appeals from the United States District Court
for the Eastern District of Louisiana

Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Kerry DeCay, Stanford Barre, and the Louisiana Sheriffs Pension and
Relief Fund (“LSPRF”) appeal the district court’s order granting garnishment of
DeCay’s contributions to and Barre’s monthly benefits from state pension funds
held by the LSPRF. We conclude that the United States may garnish DeCay’s
and Barre’s retirement benefits to satisfy a criminal restitution order, but that
the United States is limited to garnishing twenty-five percent of Barre’s monthly
pension benefit. Accordingly, we REVERSE the district court’s entry of the final
 Case: 09-30218 Document: 00511238933 Page: 2 Date Filed: 09/20/2010

No. 09-30218

garnishment orders as to Barre, AFFIRM as to DeCay, and REMAND for
proceedings consistent with our holding.
I. Factual & Procedural Background
Kerry DeCay and Stanford Barre pleaded guilty to one count each of mail
fraud, conspiracy to commit mail fraud, and obstruction of justice for their roles
in a scheme to defraud the City of New Orleans (“the City”). At sentencing, the
district court determined that the City had suffered an injury compensable
under the Mandatory Victims Restitution Act (“MVRA”), and ordered DeCay and
Barre to pay $1,064,362.15, jointly and severally, in restitution. After judgment
was entered, the United States moved for writs of garnishment under the
Federal Debt Collection Procedures Act (“FDCPA”) seeking seizure of the
defendants’ interests in their pension funds to satisfy the restitution order. The
district court found that the statutory prerequisites to garnishment were
satisfied, see 28 U.S.C. § 3205(b), and issued the writs of garnishment to the
LSPRF.
The LSPRF answered the garnishment orders by stating that DeCay
currently was eligible only for an immediate lump-sum withdrawal of the
$77,898 he had contributed toward his retirement and that Barre was currently
receiving a monthly pension benefit of $2,464.72. The LSPRF asserted that the
pension benefits were exempt from seizure under federal and Louisiana law and
that enforcement of the writs against it as garnishee would violate the Tenth
Amendment to the United States Constitution. The LSPRF also argued that, to
the extent that garnishment is proper, the United States failed to follow the
appropriate formal procedures to withdraw DeCay’s employee contributions.
Regarding Barre, the LSPRF argued that even if garnishment were proper, the
Consumer Credit Protection Act (“CCPA”) limits the United States’ right to
garnish Barre’s pension to twenty-five percent of his monthly benefit.

2
 Case: 09-30218 Document: 00511238933 Page: 3 Date Filed: 09/20/2010

No. 09-30218

DeCay, proceeding pro se, adopted the LSPRF’s brief. Barre also objected
to the writ of garnishment against him, asserting that the Tenth Amendment
precludes the United States from garnishing his pension benefits and, in the
alternative, that the CCPA prohibits the United States from garnishing more
than twenty-five percent of his pension benefits.
The district court overruled the appellants’ objections to the garnishment
writs and held that the United States could garnish the entire amount of
DeCay’s contributions to the LSPRF ($77,898), as well as the full amount of the
monthly benefits paid by the LSPRF to Barre ($2,464.72). Accordingly, the
district court entered final orders of garnishment compelling the LSPRF to
immediately pay the United States $77,898, representing the present cash-out
value of DeCay’s employee contributions to the LSPRF, as well as 100% of any
future distributions of pension funds due to Barre. The LSPRF and Barre filed
motions for a new trial or to alter or amend the judgment. DeCay adopted the
LSPRF’s motion. The district court denied the motions.
The LSPRF, DeCay, and Barre filed the instant appeal.1 They assert that
the garnishment orders violate federal and Louisiana law, including the Tenth
Amendment to the United States Constitution. The appellants argue in the
alternative that, if garnishment is proper, the district court erred by not
requiring the United States to complete certain formalities before withdrawing
DeCay’s employee contributions and by allowing the United States to garnish
the full amount of Barre’s monthly pension benefit.
II. Standard of Review
We review a district court’s construction and application of a statute de
novo. United States v. Williams, 602 F.3d 313, 315 (5th Cir. 2010); see also

1
The LSPRF timely filed an appeal from the final orders of garnishment entered
against DeCay and Barre. Barre timely appealed the final order of garnishment entered
against him. DeCay filed a notice of appeal from the denial of his adopted motion for a new
trial or to alter or amend the judgment.

3
 Case: 09-30218 Document: 00511238933 Page: 4 Date Filed: 09/20/2010

No. 09-30218

United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009) (stating that this
court reviews the constitutionality of a federal statute de novo). Similarly, the
“preemptive effect of a federal statute is a question of law that we review de
novo.” Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir.
2010).
III. Standing
Before we address the merits of the appellants’ arguments, we must
determine whether the LSPRF has standing to assert arguments on appeal.
United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 779 (5th Cir.
2006) (“When standing is placed in issue in a case, the question is whether the
person whose standing is challenged is a proper party to request an adjudication
of a particular issue and not whether the issue itself is justiciable.”) (internal
quotation marks and citation omitted). The United States asserts that the
LSPRF lacks standing to object to the writs of garnishment because the LSPRF
does not have a personal interest in the retirement benefits and thus has not
suffered an injury-in-fact.
In addressing a plaintiff’s standing, the Supreme Court has required:
(1) ‘injury in fact,’ by which we mean an invasion of a legally
protected interest that is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical; (2) a causal
relationship between the injury and the challenged conduct, by
which we mean that the injury fairly can be traced to the
challenged action of the defendant, and has not resulted from the
independent action of some third party not before the court; and
(3) a likelihood that the injury will be redressed by a favorable
decision, by which we mean that the prospect of obtaining relief
from the injury as a result of the favorable ruling is not too
speculative.

Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508
U.S. 656, 663-64 (1993) (internal citations and quotation marks omitted). The
Supreme Court further has observed that the nature and extent of the facts that

4
 Case: 09-30218 Document: 00511238933 Page: 5 Date Filed: 09/20/2010

No. 09-30218

must be alleged to establish standing “depends considerably upon whether the
plaintiff is himself an object of the action . . . at issue. If he is, there is ordinarily
little question that the action or inaction has caused him injury, and that a
judgment preventing or requiring the action will redress it.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561-62 (1992). But when “a plaintiff’s asserted injury
arises from the government’s allegedly unlawful regulation (or lack of
regulation) of someone else, much more is needed.” Id. at 562.
Of course, the LSPRF did not come to court seeking relief. The United
States obtained an order compelling the LSPRF to turn over funds in its
possession representing any interest DeCay and Barre may have in any property
subject to the LSPRF’s control, thus drawing the LSPRF into the instant
litigation. The writs of garnishment compel the LSPRF to take particular action,
and the LSPRF asserts that the ordered action is unconstitutional under the
Tenth Amendment and, as to DeCay, subjects it to potential double exposure in
the future. In essence, the LSPRF is saying to the court “you can’t make me do
this.” Having been brought before the court involuntarily by another party, we
conclude that the LSPRF has the ability to say it cannot be the object of such
court actions. 2 Accordingly, the LSPRF, as the object of the writ of garnishment
and as a sovereign entity, has standing to assert that the United States lacks the

2
Of course whether LSPRF has standing to make the argument is distinct from
whether the argument has merit, a matter we address later.

5
 Case: 09-30218 Document: 00511238933 Page: 6 Date Filed: 09/20/2010

No. 09-30218

constitutional authority to compel it to release the funds.3 See Lujan, 504 U.S.
at 561; Holy Land Found., 445 F.3d at 780.4
We need not decide whether the LSPRF has standing to raise the
remaining objections to garnishment because DeCay and Barre plainly have
standing to assert exemptions to the garnishment of their property. Because
DeCay and Barre raise the same objections to garnishment that the LSPRF
makes, this court has jurisdiction to decide the case. See Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 263-64 (1977) (“In the ordinary case, a
party is denied standing to assert the rights of third persons. But we need not
decide whether the circumstances of this case would justify departure from that
prudential limitation . . . [f]or we have at least one individual plaintiff who has
demonstrated standing to assert these rights as his own.”); see also Horne v.
Flores, 129 S. Ct. 2579, 2592 (2009) (“Because the superintendent clearly has
standing to challenge the lower courts’ decisions, we need not consider whether
the Legislators also have standing to do so.”). Having concluded that the
appellants possess standing to challenge the final orders of garnishment, we now
turn to the merits of this dispute.

3
The LSPRF’s position in this case is similar to that of a garnishee asserting that the
district court lacks personal jurisdiction over it or a foreign garnishee asserting immunity as
a defense to the garnishment order. We have never held that a garnishee in either of those
situations lacks standing to object to the garnishment proceeding. See, e.g., FG Hemisphere
Assocs., LLC v. Republique du Congo, 455 F.3d 575, 584 (5th Cir. 2006) (“The sovereign
immunity claim may be raised by a garnishee as well as a foreign sovereign.”); Stena Rederi
AB v. Comision de Contratos del Comite Ejecutivo Gen., 923 F.2d 380, 391-92 (5th Cir. 1991)
(holding that the district court lacked personal jurisdiction over the garnishee and that the
garnishee, as an agency of a foreign state, was “entitled to invoke the shield of sovereign
immunity, whether against direct claims or an indirect writ of garnishment”).
4
Because of our conclusion that the double exposure question is not ripe, see infra at
Section IV.C., we do not decide whether LSPRF has standing to urge its argument that the
court’s order subjects it to double exposure.

6
 Case: 09-30218 Document: 00511238933 Page: 7 Date Filed: 09/20/2010

No. 09-30218

IV. Merits
The MVRA makes restitution mandatory for certain crimes, “including any
offense committed by fraud or deceit,” 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), and
authorizes the United States to enforce a restitution order in accordance with its
civil enforcement powers.5 The MVRA broadly permits the United States,
notwithstanding any other federal law, to enforce a restitution order “against all
property or rights to property of the person fined.” § 3613(a). Section 3613 of
the MVRA sets forth several enumerated exceptions to the United States’
authority to garnish any and all of the debtor’s property to satisfy a restitution
order; however, the statute does not exempt state-run pension plans.6 Further,
§ 3613(a)(2) explicitly states that the exemptions contained in the FDCPA, 28
U.S.C. § 3014, do not apply to the enforcement of a federal criminal judgment.
The appellants collectively make three arguments why the district court
erred in issuing the final garnishment orders against Barre and Decay. First,
the appellants assert that the defendants’ pension benefits are exempt from
garnishment under federal and state law. Second, Barre argues that, if the
United States may garnish his retirement benefits, the CCPA limits the United
States to garnishment of twenty-five percent of his monthly pension benefits.
Third, the LSPRF, joined by DeCay, asserts that, if the United States is allowed
to garnish Decay’s contributions into his retirement, the United States is

5
The FDCPA sets forth the civil enforcement procedures used by the United States to
recover monies owed under a restitution order. 28 U.S.C. § 3001(a)(1).
6
The MVRA incorporates most of the exemptions contained in § 6334(a)of the Internal
Revenue Code, which exempts particular property from levy for payment of federal taxes. The
only § 6334 exemption relevant to pension plans applies to four types of federally authorized
pension plans, including Railroad Retirement Act pensions, Railroad Unemployment
Insurance Act pensions, and pensions received by certain military-service persons. I.R.C.
§ 6334(a)(6). None of these exemptions are applicable to the pension benefit plan at issue in
the instant case.

7
 Case: 09-30218 Document: 00511238933 Page: 8 Date Filed: 09/20/2010

No. 09-30218

required to apply for a withdrawal of DeCay’s employee contributions. We
address each of these arguments in turn.
A. Garnishment of Pension Benefits Under the MVRA
The appellants assert that the United States may not garnish pension
benefits under the MVRA because (1) § 401(a)(13) of the Internal Revenue Code
(“IRC”) makes pension benefits inalienable; (2) the Tenth Amendment to the
United States Constitution precludes the United States from garnishing pension
funds controlled by the LSPRF; and (3) Louisiana constitutional and statutory
law exempt pension benefits from garnishment.
1. IRC § 401(a)(13)
The LSPRF argues that the defendants’ pension benefits are exempt from
garnishment because the IRC prohibits the assignment or alienation of
retirement benefits. I.R.C. § 401(a)(13)(A). Section 401(a)(13)(A) states that “[a]
trust shall not constitute a qualified trust under this section unless the plan of
which such trust is a part provides that benefits provided under the plan may
not be assigned or alienated.” This circuit has never addressed whether
§ 3613(a) of the MVRA overrides § 401(a)(13) of the IRC.
Section 3613(a) of the MVRA states that “Notwithstanding any other
Federal law . . . a judgment imposing a fine may be enforced against all property
or rights to property of the person fined.” (emphasis added). This language is
qualified only by the enumerated exceptions contained in § 3613(a)(1)–(3). We
conclude that the language in § 3613(a) authorizing the United States to enforce
a garnishment order against “all property or rights to property” of the debtor,
“[n]otwithstanding any other Federal law,” is sufficient to override the anti-
alienation provision of the IRC. Several factors compel us to conclude that the
MVRA allows garnishment of a defendant’s retirement benefits to satisfy a
criminal restitution order.

8
 Case: 09-30218 Document: 00511238933 Page: 9 Date Filed: 09/20/2010

No. 09-30218

First, the Supreme Court has recognized that the use of a
“notwithstanding” clause signals Congressional intent to supersede conflicting
provisions of any other statute. Caseros v. Alpine Ridge Group, 508 U.S. 10, 18
(1993) (“[T]he 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.”) (internal quotation
marks and citations omitted).
The appellants argue that the “notwithstanding” clause is insufficient to
override the anti-alienation language in § 401(a)(13) of the IRC under the
Supreme Court’s decision in Guidry v. Sheet Metal Workers National Pension
Fund, 493 U.S. 365 (1990). In Guidry, the Supreme Court was faced with the
question of whether § 501(b) of the Labor-Management Reporting and Disclosure
Act of 1959 (“LMRDA”)—which provided pension funds with a private right of
action to “recover damages or secure an accounting or other appropriate relief
for the benefit of the labor organizations”—allowed the government to create a
constructive trust on a defendant’s pension benefits. The Court held that the
“other appropriate relief” language in the LMRDA was insufficient to override
the anti-alienation provision in § 206(d) of the Employee Retirement Income
Security Act (“ERISA”). Id. at 375-76 (“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.”).
Unlike the general “other appropriate relief” language contained in the
LMRDA, the “notwithstanding any other Federal law” clause signals a clear
Congressional intent to override conflicting federal law. Indeed, we agree with
our sister circuit that “it appears that Congress accepted the Supreme Court’s

9
 Case: 09-30218 Document: 00511238933 Page: 10 Date Filed: 09/20/2010

No. 09-30218

invitation in Guidry by enacting the [MVRA].” United States v. Irving, 452 F.3d
110, 126 (2d Cir. 2003); see also United States v. Novak, 476 F.3d 1041, 1053 (9th
Cir. 2007) (en banc) (“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.”). Our conclusion is bolstered by the fact that Congress
exempted certain retirement plans from garnishment under the MVRA, see
§ 3613(a)(1) (incorporating the exemptions in IRC § 6334(a)(6) for certain federal
annuity and pension payments), but did not include state-run pension plans in
the list. Cf. Waggoner v. Gonzales, 488 F.3d 632, 636 (5th Cir. 2007) (“The canon
of statutory construction ‘expressio unius est exclusio alterius (the expression of
one thing is the exclusion of another)’ indicates that [the listed ground] is the
only requirement.”) (citation omitted).
Second, reading § 3613(a) to allow garnishment of the defendants’
retirement benefits is consistent with the MVRA’s statutory scheme and
purpose. The only property exempt from garnishment under § 3613(a) is
property that the government cannot seize to satisfy the payment of federal
income taxes. 18 U.S.C. § 3613(a). Section 3613(c) underscores the
Congressional directive that restitution orders should be satisfied in the same
manner as tax liabilities. 18 U.S.C. § 3613(c) (stating that an order of restitution
imposed under this chapter “is a lien in favor of the United States on all property
and rights to property 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")
(emphasis added). As we have already recognized, pension plan benefits are
subject to levy under the IRC to collect unpaid taxes. See Shanbaum v. United
States, 32 F.3d 180, 183 (5th Cir. 1994); see also Irving, 452 F.3d at 126 (“ERISA
pension plans are not exempted from payment of taxes under 26 U.S.C. § 6334
[of the IRC], and thus they should not be exempted from payment of criminal

10
 Case: 09-30218 Document: 00511238933 Page: 11 Date Filed: 09/20/2010

No. 09-30218

fines. . . . Moreover, § 3613(c) [of the MVRA] demands that criminal fines in
favor of the United States should be enforced in the same manner as a tax
liability would be enforced.”).
Third, other circuit and district courts have concluded that the United
States may garnish a defendant’s pension benefits to satisfy a restitution order,
despite similar anti-alienation language contained in § 206(d) of ERISA. See
Irving, 452 F.3d at 126; Novak, 476 F.3d at 1053; United States v. Lazorwitz, 411
F. Supp. 2d 634, 637 (E.D.N.C. 2005) (holding that “neither ERISA’s anti-
alienation provision, 29 U.S.C. § 1056(d)(1), nor the anti-alienation provision in
the Internal Revenue Code, 26 U.S.C. § 401(a)(13), provide a bar to the
garnishment of a qualified pension plan”). Section 206(d) of ERISA states: “Each
pension plan shall provide that benefits provided under the plan may not be
assigned or alienated.” 29 U.S.C. § 1056(d)(1). We find these cases persuasive,
see Patterson v. Shumate, 504 U.S. 753, 759 (1992) (referring to IRC § 401(a)(13)
and ERISA § 206(d) as “coordinate section[s]” containing “similar restrictions”),
and conclude that § 3613(a) of the MVRA authorizes the United States to
garnish retirement benefits, notwithstanding the anti-alienation provision in
§ 401(a)(13) of the IRC.
2. The Tenth Amendment
The appellants also argue that the garnishment writs violate the Tenth
Amendment to the United States Constitution. This claim hinges on the
appellants’ contention that federal law does not govern state-run benefit plans
and the MVRA does not supersede Louisiana’s broad police powers. We reject
the appellants’ Tenth Amendment argument.
The Tenth Amendment declares that “powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” U.S. C ONST. amend. X. When Congress
properly exercises its authority under an enumerated constitutional power, the

11
 Case: 09-30218 Document: 00511238933 Page: 12 Date Filed: 09/20/2010

No. 09-30218

Tenth Amendment is not implicated. See New York v. United States, 505 U.S.
144, 156 (1992); Deer Park Indep. Sch. Dist. v. Harris County Appraisal Dist.,
132 F.3d 1095, 1099 (5th Cir. 1998). The appellants do not contest that Congress
passed the MVRA and FDCPA pursuant to an enumerated constitutional power.7
Nor do the appellants contest that the Necessary and Proper Clause grants
Congress the authority to craft appropriate penalties to enforce its criminal laws.
United States v. Comstock, 130 S. Ct. 1949, 1958 (2010) (“Neither Congress’
power to criminalize conduct, nor its power to imprison individuals who engage
in that conduct, nor its power to enact laws governing prisons and prisoners, is
explicitly mentioned in the Constitution. But Congress nonetheless possesses
broad authority to do each of those things in the course of ‘carrying into
Execution’ the enumerated powers ‘vested by’ the ‘Constitution in the
Government of the United States,’ Art. I, § 8, cl. 18 - - authority granted by the
Necessary and Proper Clause.”).8
The appellants assert that allowing the United States to garnish pension
benefits administered by the LSPRF violates the Tenth Amendment because the
federal government is interfering with state administration of pension benefits.
The appellants argument here is misdirected. Garnishing DeCay’s and Barre’s
pension benefits has no effect on Louisiana state law; rather it penalizes DeCay
and Barre for violating federal law. While the LSPRF is implicated as a
garnishee, its pension system is not altered by requiring the LSRPF to pay the

7
It is also undisputed that Congress had the authority to convict Barre and DeCay of
the predicate crimes underlying the restitution order. See, e.g., United States v. Brumley, 116
F.3d 728, 730 (5th Cir. 1997) (holding that the Commerce Clause supports the mail fraud
criminal statute).
8
The parties submitted letters briefing the impact of the Supreme Court’s decision in
Comstock on the instant case. See FED . R. APP . P. 28(j). We agree with the Government that
Comstock supports a conclusion that Congress properly exercised its authority to enact the
MVRA making restitution mandatory for particular crimes and that, pursuant to this
authority, the United States may garnish a defendant’s state pension benefits.

12
 Case: 09-30218 Document: 00511238933 Page: 13 Date Filed: 09/20/2010

No. 09-30218

United States, rather than the judgment-debtors. Further, to the extent that a
state desires to participate in the management of pension benefits, it must
submit to federal criminal and civil laws allowing for debt-collection measures.
28 U.S.C. § 3003(d) (stating that the FDCPA “shall preempt State law to the
extent such law is inconsistent with a provision of this chapter”). The federal
government’s inability to garnish state-run pension benefits would substantially
impair the effectiveness of the FDCPA and MVRA. See United States v. Phillips,
303 F.3d 548, 551 (5th Cir. 2002) (“The FDCPA . . . provides a uniform system
for prosecutors to follow rather than resorting to the non-uniform procedures
provided by the states.”). Because the United States has the constitutional
authority to impose mandatory restitution for particular federal crimes and seek
garnishment of any available resources to satisfy that restitution order, we reject
the appellants’ Tenth Amendment challenge.
3. Louisiana Law
The appellants assert that the United States lacks the authority to garnish
DeCay’s and Barre’s pension benefits because Louisiana law precludes
enforcement of a restitution order against pension benefits. See L A. C ONST. art.
X, § 29(E)(5)(a) (1974); L A. R EV. S TAT. § 11:2182 (1991). To the extent Louisiana
law is inconsistent with the FDCPA and MVRA, Louisiana law is preempted.
28 U.S.C. § 3003(d); see also United States v. Wilson, No. CR-305-008, 2007 WL
4557774, at *1 n.2 (S.D. Ga. Dec. 20, 2007) (“To the extent that state law . . .
conflicts with federal law authorizing the garnishment of Defendant’s pension
benefits, it is preempted.”); United States v. McClanahan, No.3:03-00053, 2006
WL 1455698, at *4 (S.D. W. Va. May 24, 2006) (“Although West Virginia
prohibits the garnishment of state pensions, federal law expressly preempts
state exemptions when the federal government is attempting to collect a fine or
restitution.”).

13
 Case: 09-30218 Document: 00511238933 Page: 14 Date Filed: 09/20/2010

No. 09-30218

In sum, the MVRA authorizes the United States to use its civil
enforcement powers to garnish a defendant’s retirement plan benefits,
notwithstanding the fact that pension benefits are generally inalienable under
federal and state law.
B. The CCPA’s Limitation on Garnishment of Disposable Earnings
The LSPRF and Barre assert that, even if Barre’s retirement benefits are
subject to garnishment, the United States cannot garnish more than twenty-five
percent of Barre’s monthly pension benefits under § 303 of the CCPA. Section
3613(a)(3) of the MVRA states that the protections of the CCPA shall apply to
enforcement of the judgment under either federal or state law. The CCPA
provides that
the maximum part of the aggregate disposable earnings of an
individual for any workweek which is subjected to garnishment may
not exceed
(1) 25 per centum of his disposable earnings for that
week, or
(2) the amount by which his disposable earnings for
that week exceed thirty times the Federal minimum
hourly wage prescribed by section 206(a)(1) of Title 29
in effect at the time the earnings are payable,
whichever is less. In the case of earnings for any pay
period other than a week, the Secretary of Labor shall
by regulation prescribe a multiple of the Federal
minimum hourly wage equivalent in effect to that set
forth in paragraph (2).

15 U.S.C. § 1673(a).
The parties dispute whether Barre’s monthly benefit payments constitute
“earnings” under the CCPA. The CCPA defines “earnings” as “compensation
paid or payable for personal services, whether denominated as wages, salary,
commission, bonus, or otherwise, and includes periodic payments pursuant to a
pension or retirement program.” 15 U.S.C. § 1672(a) (emphasis added).

14
 Case: 09-30218 Document: 00511238933 Page: 15 Date Filed: 09/20/2010

No. 09-30218

The Supreme Court has cautioned that the terms “earnings” and
“disposable earnings” under the CCPA are “limited to ‘periodic payments of
compensation and (do) not pertain to every asset that is traceable in some way
to such compensation.’” Kokoszka v. Belford, 417 U.S. 642, 651 (1974) (citation
omitted). Here, the question is whether payments made from an employer’s
retirement program to an employee are too attenuated to be considered
“earnings” under the CCPA.
The district courts around the country have divided over whether monthly
pension-benefit payments constitute “earnings” under the CCPA. Several
district courts have concluded that “once passed to a retirement account or
annuity in the hands of the employee, the funds in the account or annuity are
not ‘earnings’ under the CCPA, and thus not subject to the 25% cap, even if they
are distributed in periodic payments—in other words, the distributions from the
fund to the defendant are not ‘disposable earnings’ under § 303.” United States
v. Belan, No. 2:07-x-50979, 2008 WL 2444496, at *3 (E.D. Mich. June 13, 2008);
see also United States v. Crawford, F-04-0200, 2006 WL 2458710, at *2-3 (E.D.
Cal. Aug. 22, 2006); United States v. Laws, 352 F. Supp. 2d 707, 713-14 (E.D. Va.
2004). However, at least one district court has reached the opposite conclusion
and held that periodic payments of retirement benefits are “earnings” under the
CCPA. McLanahan, 2006 WL 1455698, at *3 (holding that “under clear
statutory language, it appears that the Government may garnish only 25% of the
Defendant’s pension”).
We find the statutory language unambiguous and hold that the United
States may garnish only twenty-five percent of Barre’s monthly pension benefits.
The statute explicitly defines “earnings” to include “periodic payments made
pursuant to a pension or retirement program.” 15 U.S.C. § 1672(a)(emphasis
added). The term “pursuant to” is generally defined as “in compliance with; in
accordance with; under [or] . . . as authorized by . . . [or] in carrying out.”

15
 Case: 09-30218 Document: 00511238933 Page: 16 Date Filed: 09/20/2010

No. 09-30218

B LACK’S L AW D ICTIONARY (8th ed. 2004).9 The parties do not dispute the terms
of the pension plan or that the plan entitles Barre to monthly pension-benefit
payments. Because the United States does not dispute that the terms of the
pension plan authorize Barre to receive monthly pension benefits, we conclude
that the payments are being made “pursuant to” the pension fund and therefore
constitute “earnings” under the CCPA.10 Accordingly, we conclude that the
United States may not garnish more than twenty-five percent of Barre’s monthly
pension benefits under the CCPA.
C. Formalities of DeCay’s Cash-Out
Finally, the LSPRF asserts that the district court erred by allowing the
United States to cash-out DeCay’s contributions to his retirement account
without applying for a refund. The LSPRF asserts that the garnishment order
as to DeCay is either improper or incomplete because the United States did not
apply for a withdrawal of DeCay’s benefits. The final garnishment order issued
by the district court compels the LSPRF to “immediately pay to the United

9
We observe that the cases cited by the United States misquote the statutory language
defining “earnings” in concluding that payments to a pension fund are earnings, whereas
payments from a pension fund are not. Those cases mistakenly quote the statutory definition
of earnings as limited to “periodic payments to a pension or retirement program.” See Belan,
2006 WL 2444496, at *3, Laws, 352 F. Supp. 2d at 713; Aetna Cas. & Sur. Co., 965 F. Supp.
104, 109 (D. Mass. 1996). We conclude that the “pursuant to” phrase includes periodic
payments from the pension fund to the employee if the payments are being made in
accordance with the terms of the plan.
10
Our conclusion is also consistent with the legislative history and Congressional intent
behind the passage of § 303 of the CCPA. In passing the CCPA, Congress was attempting to
combat the problems of unemployment and bankruptcy that frequently resulted from the
unrestricted garnishment of a debtor’s wages. H.R. REP . NO . 1040, 90th Cong., 2d Sess. (1968),
reprinted in 1968 U.S.C.C.A.N. 1962, 1979. The Committee explicitly recognized that
unrestricted garnishment of a debtor’s wages frequently resulted in “a disruption of
employment, production, and consumption,” harming the debtor and interstate commerce. Id.
at 1063. Retirement benefits, like wages, are intended to provide a “continued means of
support” and subsistence for a judgment-debtor and his family. Congress incorporated § 303
of the CCPA into the MVRA, recognizing that the purpose of a restitution order would be
thwarted if it simultaneously turned the judgment-debtor into a ward of the state and denied
the debtor the ability to “insure a continued means of support” for him and his family.

16
 Case: 09-30218 Document: 00511238933 Page: 17 Date Filed: 09/20/2010

No. 09-30218

States of America the amount of $77,898.00, which represents the present cash-
out value of DeCay’s pension account with the LSPRF.”
The parties do not dispute that DeCay is currently entitled to cash-out his
employee contributions, and the LSPRF does not suggest that DeCay’s right to
cash-out his contributions is in any way conditional. Instead, the LSPRF
asserts that the United States must apply for a refund of DeCay’s contributions
because the LSPRF may be subject to future liability if the United States is not
forced to execute paperwork waiving DeCay’s future pension benefits. Louisiana
law requires a pension beneficiary to apply for a reimbursement of his employee
contributions, thereby extinguishing the employee’s rights in the pension fund.
See L A. R EV. S TAT. A NN. § 11:2175(C)(1) (1995) (stating that an eligible member
“may apply for and obtain a refund of the amount of his contributions by making
application on the form furnished by the fund . . . A refund automatically cancels
all rights in the fund”).
The United States argues that DeCay is adequately protected from future
litigation by the FDCPA, and thus its failure to abide by Louisiana law is
inconsequential. Section 3206 of the FDCPA states:
A person who pursuant to an execution or order issued
under this chapter by a court pays or delivers to the
United States . . . money or other personal property in
which a judgment debtor has or will have an interest,
or so pays a debt such person owes the judgment
debtor, is discharged from such debt to the judgment
debtor to the extent of the payment or delivery.

The United States thus asserts that it was not required to apply formally for a
withdrawal of DeCay’s employee contributions because § 3206 insulates the
LSPRF from litigation and waives DeCay’s rights to any future pension benefits.

17
 Case: 09-30218 Document: 00511238933 Page: 18 Date Filed: 09/20/2010

No. 09-30218

We conclude that LSPRF has not sufficiently established that it is
currently subject to a risk of double exposure upon payment of the $77,898;11
accordingly, the matter is not ripe for our resolution at this point.
V. Conclusion
We conclude that the United States may garnish the defendants’
retirement benefits to satisfy a criminal restitution order, but the CCPA limits
the United States’ authority to garnish Barre’s pension benefits to twenty-five
percent of his monthly payment. Accordingly, we REVERSE the final orders of
garnishment entered against Barre, AFFIRM as to DeCay, and REMAND the
case to the district court for entry of final garnishment orders consistent with
our holding in this case.

11
The United States clearly has the right to obtain the cash-out in question. The fact
that DeCay possessed the option to either cash-out his retirement account or wait and receive
future monthly benefits allows the United States to seek an order compelling the LSPRF to
cash-out DeCay’s benefits. Cf. United States v. Nat’l Bank of Commerce, 472 U.S. 713, 724-26
(1985) (holding that the right to withdraw funds under state law is a right to property and the
IRS may secure—and thus withdraw the funds—by executing a levy); Kane v. Capital
Guardian Trust Co., 145 F.3d 1218, 1223 (10th Cir. 1998) (“In the notice of levy, the IRS
exercised Kane’s right to receive the cash value of his mutual fund shares when it directed [the
garnishee] to liquidate the IRA and send it the cash proceeds.”); United States v. Metro. Life
Ins., 874 F.2d 1497, 1500 (11th Cir. 1989) (“[U]nder state law the taxpayer had the right to
withdraw the full value of the annuity. The issue is whether the right is sufficient to obligate
the [garnishee] under section 6332(a) to surrender the funds subject to the withdrawal right
to the IRS upon receipt of the notice of levy. We hold that it is.”).

18