United States v. Raymond P. Novak

BETTY B. FLETCHER, Circuit Judge,

dissenting:

I respectfully dissent.

The majority holds that the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, in conjunction with 18 U.S.C. § 3613, constitutes a statutory exception to ERISA’s anti-alienation provision. However, Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990), as well as our decision in United States v. Jackson, 229 F.3d 1223 (9th Cir.2000), require Congress to issue a clear statement of its intent to abrogate ERISA. Neither the MVRA nor 18 U.S.C. § 3613 contains such directive.

Section 206(d) of ERISA provides that benefits under its pension plans “may not be assigned or alienated.” See 29 U.S.C. *826§ 1056(d)(1). Guidry takes an uncompromising approach, finding no exceptions to ERISA’s anti-alienation provision without a clear directive from Congress. “If exceptions to this policy are to be made, it is for Congress to undertake that task.” Guidry, 493 U.S. at 366, 110 S.Ct. 680. Congress — not courts — determine the exceptions to the statutory bar.1

In Jackson, we reversed a district court decision that ordered a defendant to pay immediate restitution out of the proceeds of his undistributed ERISA pension plan. We followed Guidry’s unequivocal rejection of any generalized equitable exception to ERISA’s anti-alienation provision, holding that no exception to ERISA’s anti-alienation provision shall lie unless Congress says so.

The few exceptions to this rule are clearly indicated within the statutory text. For instance, § 104(a) of the Retirement Equity Act of 1984, see 29 U.S.C. § 1056(d)(3), clearly mandates that the anti-alienation provision does not apply to a qualified domestic relations order. See Guidry, 493 U.S. at 376 & n. 18, 110 S.Ct. 680. ERISA contains an explicit, narrow exception to the anti alienation provision in cases of crimes against the pension plan itself. See 29 U.S.C. § 1056(d)(4)(A)(l) (noting that the anti-alienation provision in § 1056(d)(1) “shall not apply ... if ... the order or requirement to pay arises ... under a judgment of conviction for a crime involving such plan .... ”); see also Jackson, 229 F.3d at 1225.

The majority holds that statutory amendments enacted after Guidry but pri- or to Jackson constitute an exception to the Guidry principle. First, the MVRA requires district courts to order restitution for victims in cases involving loss of property. 18 U.S.C. § 3663A(a)(l). Second, under 18 U.S.C. § 3613(a), 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.” The provision takes effect “[njotwithstand-ing any other Federal law,” id., and “all provisions of this section are available to the United States for the enforcement of an order of restitution.” Id. at § (f).

This statutory scheme does not evidence a clear statement to abrogate ERISA’s anti-alienation provision.2 Although the statutory text does mandate restitution, it lacks any express statement (as it does for Social Security, see 18 U.S.C. § 3613(a)) that restitution owed to victims can be collected from ERISA pensions.3 And, as noted previously, there is nothing within ERISA calling for an exception for orders of restitution. Without an express directive in the restitution statute to seize ERISA pensions or a specific carve-out within ERISA’s anti-alienation provision, we should not create one through judicial fíat.

*827The MVRA determines a certain kind of penalty the government can enforce, but it does not resolve “the narrow question whether that judgment may be collected through a particular means — a [restitution order] placed on the pension.” Guidry, 493 U.S. at 376, 110 S.Ct. 680 (emphasis added). To create such an exception without clear intent is “especially problematic in the context of an antigarnishment provision. Such a provision acts, by definition, to hinder the collection of a lawful debt.” Id.

As the Supreme Court noted in Guidry, “[i]t 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.’” Id. at 375, 110 S.Ct. 680 (citing Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Thus, unless and until Congress amends either the ERISA statute to explicitly provide an exception for restitution orders or the restitution statute to explicitly permit the seizure of ERISA pension assets, the general restitution statute cannot trump ERISA’s more specific anti-alienation provision.

The majority cites a handful of out-of-circuit precedents supporting its conclusion that § 3613 constitutes an exception to the anti-alienation provision. But interpretations of courts in sister jurisdictions are not controlling, especially where, as here, Jackson dictates the contrary outcome. See United States v. Martinez, 967 F.2d 1343, 1347 (9th Cir.1992) (“we are obliged to follow the law of our circuit over inconsistent law from other circuits”). Unless and until we review that decision en banc, it remains good law, see United States v. Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir.2005), and the majority is obligated to apply it.

Our opinion in Jackson, decided after codification of the MVRA, cannot so easily be brushed aside. Jackson clearly holds that undistributed ERISA funds cannot be used to make restitution payments unless, as per ERISA, the underlying crime involved the particular ERISA plan in question.

The majority sidesteps Guidry’s requirement of a clear congressional statement to carve out exceptions to ERISA’s anti-alienation provision and sets up irreconcilable conflict with Jackson. I cannot support such an outcome and therefore dissent from the majority’s holding.

. The Guidry decision honors Congress' "considered ... policy choice ... to safeguard a stream of income for pensioners ... even if that decision prevents others from securing relief for the wrongs done them.” Id. at 376, 110 S.Ct. 680. And it notes that those social-policy objectives "sometimes take[] precedence over the desire to do equity between particular parties.” Id. at 376, 110 S.Ct. 680.

. Neither does the legislative history of the MVRA support the majority's analysis. Although Congress recognized the importance of compensating victims for their losses, the history contains no mention of ERISA or a desire to undermine the anti-alienation provision or the Supreme Court's holding in Gui-dry.

.The majority notes that § 3613 contains no exception for ERISA pension plans. However, the provision does not explicitly include it, either (as in the case of Social Security). It falls short of Guidry's requirement of an explicit statement abrogating the anti-alienation provision.