                                              Volume 1 of 2

                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 04-55838
               Plaintiff-Appellant,
               v.                            D.C. No.
                                          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
                  UNITED STATES v. NOVAK               1957


                        COUNSEL

Brent A. Whittlesey, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellant.

Martin S. Bakst, Encino, California, for the defendant-
appellee.


                        OPINION

BERZON, Circuit Judge:

   We are asked to determine whether — and if so, under
what circumstances — a criminal defendant’s retirement ben-
efits are available as a source of funds to compensate crime
victims. Answering these questions requires reconciling two
federal statutory schemes — one, the Mandatory Victims Res-
1958                   UNITED STATES v. NOVAK
titution Act of 1996 (“MVRA”), Pub. L. No. 104-132, 110
Stat. 1227, governing the payment of restitution to crime vic-
tims, 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 possi-
ble, 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 implemen-
tation of these two important policies, we conclude that crimi-
nal 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 equip-
ment, 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.
  1
    Unless noted otherwise, all statutory citations are to the 2000 edition
of the United States Code.
                      UNITED STATES v. NOVAK                     1959
§ 7206(1). He received a twenty-four month prison term and
three years of supervised release. The district court also “or-
dered 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 cov-
ered 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 pay-
able as a single life annuity at age 65 was $10,836.00.”2
Under the latter plan, Novak’s various index fund and com-
pany 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 bene-
fits 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 mil-
lion in arrears. The government is responsible for enforcing
  2
   Novak will turn sixty-five in 2012.
  3
   The record does not contain the full term of May’s retirement plans.
1960                   UNITED STATES v. NOVAK
restitution orders and turning the funds collected over to vic-
tims. 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 Jack-
son did not control this case, because Jackson had not consid-
ered 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 ten-
sion 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 defen-
  4
    Because 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 employ-
ees.
                       UNITED STATES v. NOVAK                         1961
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 proce-
      dures 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 judg-
           ment under Federal law;[5]

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

           (3) the provisions of . . . the Consumer
           Credit Protection Act [limiting the garnish-
           ment 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
  5
     A 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).
   6
     Section 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
1962                    UNITED STATES v. NOVAK
   [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 partici-
pant or would otherwise be valid by force of law. Under Sec-
tion 206 of ERISA, “[e]ach pension plan shall provide that
benefits provided under the plan may not be assigned or alien-
ated.” 29 U.S.C. § 1056(d)(1); see also 26 U.S.C.
§ 401(a)(13)(A) (mandating that trusts are entitled to favor-
able retirement plan tax treatment only if they contain an anti-
alienation 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.” Pat-
terson 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 [pro-
vided in 26 U.S.C. §§ 6331-6344].” United States v. Nat’l Bank of Com-
merce, 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 Dis-
sent 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 provi-
sions parallel the language of the tax lien provisions.
                    UNITED STATES v. NOVAK                    1963
    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 pro-
vision and ERISA’s stringent prohibition on alienation of pen-
sion 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” lan-
guage, id. (emphasis added), Congress has made quite clear
that the totality of defendants’ assets will be subject to restitu-
tion 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
1964                UNITED STATES v. NOVAK
other Federal law.” 18 U.S.C. § 3613(a). The Supreme Court
has indicated as a general proposition that statutory “notwith-
standing” 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 imag-
ine.’ ” (omission and alteration in original) (citation and inter-
nal 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 alter-
ation in original)).

    In examining specific statutes, we have not, however,
always accorded universal effect to the “notwithstanding” lan-
guage, standing alone. See Or. Natural Res. Council v.
Thomas, 92 F.3d 792, 796 (9th Cir. 1996) (“We have repeat-
edly 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
                    UNITED STATES v. NOVAK                   1965
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 “notwith-
standing” 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 con-
textual aspects of the restitution enforcement provision found
in 18 U.S.C. § 3613(a) — its treatment of other types of oth-
erwise inalienable property and, most importantly, its replica-
tion of the language authorizing tax levies — make it clear
that MVRA’s criminal restitution enforcement orders do over-
ride 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
1966                    UNITED STATES v. NOVAK
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 provi-
sions of this section except to the extent that it does so by
express reference to this section.” Id. § 407(b). MVRA sup-
plies 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 anti-
alienation 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 pre-
vent the seizure of retirement funds once distributed to the
beneficiary and comparing the provision with the more
encompassing anti-alienation restrictions of the Social Secur-
ity 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 proper-
ty” not excepted, 18 U.S.C. § 3613(a) (emphasis added),
  7
    The 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, disre-
gards 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).
                    UNITED STATES v. NOVAK                 1967
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 anti-
alienation 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 res-
titution 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 Ben-
efit Plan, and Supplemental Survivor Benefit Plan). By carv-
ing 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 anti-
alienation 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 ref-
erenced pensions was unnecessary, as the exclusion would
1968                   UNITED STATES v. NOVAK
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 con-
taining 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 Con-
gress 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 sub-
stantial 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) (find-
ing significance in the absence of prisoners from a list of
employees exempt from minimum wage laws).
  8
   The dissent’s attempt to explain these four exceptions, Dissent at 2017-
19, will not wash. The very same specific/general and implied repeal prin-
ciples 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.
                    UNITED STATES v. NOVAK                   1969
   [7] In sum, the treatment in § 3613(a) of other federal statu-
tory 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 lan-
guage and structure of § 3613(a) that the criminal restitution
enforcement provision overrides ERISA’s anti-alienation pro-
vision: 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 judg-
         ment under Federal law;

         (2) [FDCPA procedures for exempting cer-
         tain property] shall not apply to enforce-
         ment under Federal law; and
1970                   UNITED STATES v. NOVAK
           (3) the provisions of . . . the Consumer
           Credit Protection Act [limiting the garnish-
           ment 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 hap-
penstance: 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 assess-
ment, 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 under-
stand the interaction of MVRA and ERISA, for two reasons:

   First, this court has construed the tax levy language as ren-
dering ERISA’s anti-alienation provision inapplicable. McIn-
tyre v. United States (In re McIntyre), 222 F.3d 655, 660 (9th
  9
    The dissent wrongly attributes significance to the “other than the prop-
erty 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.
                    UNITED STATES v. NOVAK                 1971
Cir. 2000). McIntyre’s reasoning rested both on the plain lan-
guage 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 con-
strued to alter, amend, modify, invalidate, impair, or super-
sede 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.”). Rul-
ing otherwise in the face of the “notwithstanding” language,
we said, would “ignore[ ] the specifically stated intent of Con-
gress 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
1972                UNITED STATES v. NOVAK
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 sub-
ject, 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 enforce-
ment of citizens’ monetary obligations through seizure of pen-
sion 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 “not-
withstanding” 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
                    UNITED STATES v. NOVAK                  1973
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 pre-
existing judicial interpretations of statutory language it repli-
cates 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 gar-
nishment 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 “to-
1974                   UNITED STATES v. NOVAK
gether with perfecting amendments.” H.R. REP. No. 104-518,
at 111 (1996) (Conf. Rep.). Nevertheless, in light of the con-
cern about the ERISA anti-alienation provision expressed ear-
lier 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 statu-
tory 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 concern-
ing 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 presump-
tion against implied repeals is mitigated in that (1) a later stat-
ute 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
  10
     We 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 repeal-
by-implication problem” when a “later statute simply addresses one partic-
ular application [of the former statute] and carves out an exception.” Har-
ris 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 implica-
tion a general statute, the . . . amendment simply created a specific, dis-
crete 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 stat-
ute], but whether it intended to carve out [a certain application] from the
reach of that provision.”). We assume for purposes of this opinion, how-
ever, that the implied repeal canon of construction applies to implied limi-
tations as well.
                    UNITED STATES v. NOVAK                  1975
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 par-
ticular 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 conflict-
ing statutes in existence.”). In Lujan-Armendariz, Judge Rein-
hardt 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 “ir-
reconcilable conflict” prong of the implied repeal presump-
tion explained in Radzanower v. Touche Ross & Co., 426 U.S.
148 (1976). 222 F.3d at 743-44. There was no “notwithstand-
ing” clause in Radzanower however, and, as Lujan-
Armendariz indicates, when the question is whether “Con-
gress . . . intend[ed] to bar . . . exceptions to the new [stat-
ute’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’ Compensa-
tion Programs, 147 F.3d 1116 (9th Cir. 1998), the “plain lan-
guage 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
1976                UNITED STATES v. NOVAK
such garnishment.” Id. at 1124. Similarly here, the “notwith-
standing” clause is not the only statutory indication of Con-
gressional 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 suf-
ficiently clear terms to overcome any contrary presumption.

                             ***

   [10] In sum, all standard principles of statutory construc-
tion support the conclusion that MVRA authorizes the
enforcement of restitution orders against retirement plan ben-
efits, the anti-alienation provision of ERISA notwithstanding.

                               B.

   We do not, however, write on an entirely clean slate regard-
ing the scope and application of ERISA’s anti-alienation pro-
vision. 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 argu-
ment is that Guidry requires us to apply the ERISA anti-
alienation 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
                       UNITED STATES v. NOVAK                       1977
recover its losses by asking the district court to impose a con-
structive 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 excep-
tion: 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 anti-
alienation provision, id. at 376.11

   Noting that the LMRDA contained a “general reference”
stating that those harmed by a union officer’s breach of fidu-
ciary duty could secure “other appropriate relief,” id., the
Supreme Court assumed that such general language “may
authorize, in some circumstances, the imposition of a con-
structive 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 anti-
alienation 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 col-
lected,” while the LMRDA only discussed “what sort of judg-
ment the aggrieved party may obtain.” Id. at 376 (emphasis
omitted). Ruling otherwise “would eviscerate the protections
  11
    ERISA’s fiduciary duty provisions did not apply to the facts of Gui-
dry, 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 liabil-
ity for the breach of fiduciary duty would override the statute’s anti-
alienation provision. Id.
1978                   UNITED STATES v. NOVAK
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 quo-
tation 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 specif-
ic.”), 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 men-
tion the ERISA anti-alienation provision in an ensuing statu-
tory provision in order to negate the ERISA provision. Nor
did Guidry demand that sufficiently specific statutory excep-
tions be codified within the text of ERISA itself. Instead, Gui-
dry’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
  12
    In 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) (argu-
ing that Supreme Court case law dictates that statutory express statement
requirements are invalid).
                        UNITED STATES v. NOVAK                         1979
“traditionally sensitive areas, such as legislation affecting the
federal balance,” where clear statement rules have been judi-
cially 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 anti-
alienation 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 pen-
sion 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
   13
      Patterson 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). Patter-
son’s emphasis on “clarity of the statutory text” in delineating which stat-
ute prevails in case of a conflict, 504 U.S. at 760, thus supports the
conclusion that § 3613(a) does override ERISA’s anti-alienation provi-
sion. 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 methodol-
ogy for creating and interpreting text, that it any longer makes sense to
talk of ‘a government of laws, not of men’ ”).
1980                UNITED STATES v. NOVAK
  [11] 2. Guidry’s holding that general statutory authority,
such as the LMRDA’s private right of action provision, can-
not 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 col-
lected 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 anti-
alienation 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 “not-
withstanding” clause; the breadth of the “all property or rights
to property” language; the express inclusion of Social Secur-
ity 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 statu-
tory 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 perti-
nent either. We are examining a means of enforcement
                    UNITED STATES v. NOVAK                 1981
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 anti-
alienation provision, and with our approval of the Third Cir-
cuit’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 pen-
sion 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 agree-
ment” 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 anti-
alienation 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 par-
ticipant’s benefits provided under an employee pension bene-
fit 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 set-
tlement agreement based on breaching ERISA’s fiduciary
duty provisions. 29 U.S.C. § 1056(d)(4). Contrary to the deci-
sions noted above, the Fifth Circuit had held that Guidry pre-
vented 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 sec-
1982                UNITED STATES v. NOVAK
tion 206(d) of ERISA to resolve the circuit split on the inter-
play 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 Con-
gress’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 amend-
ment 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 pro-
cedure 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 proce-
dural 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 lim-
ited, as is MVRA, to enforcement of restitution orders result-
ing 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
                    UNITED STATES v. NOVAK                 1983
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 res-
titution); United States v. James, 312 F. Supp. 2d 802, 805
(E.D. Va. 2004) (holding that “ERISA is no bar to garnish-
ment of a qualified pension plan to collect a criminal restitu-
tion order” in rejecting a defendant’s motion to quash a
garnishment writ seeking to collect MVRA restitution pay-
ments); United States v. Sowada, No. 03-420, 2003 WL
22902613, at *2 (E.D. La. Dec. 8, 2003) (rejecting a defen-
dant’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 gar-
nishment 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 over-
ruled, 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
1984                UNITED STATES v. NOVAK
F.3d 110 (2d Cir. 2006), which held that MVRA allows a dis-
trict 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 govern-
ment 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 statu-
tory 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 Fed-
eral 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 spe-
cial 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,
                       UNITED STATES v. NOVAK                         1985
which only demanded clear congressional intent after deter-
mining 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 anti-
alienation clauses but not for ERISA. See supra notes 7-8. It
also refuses to interpret MVRA’s language in the same man-
ner as the tax levy statute Congress, quite apparently, deliber-
ately 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 Bank-
ruptcy 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 distinc-
  14
      Even 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)).
   15
      Moreover, assigning such significance to the statutory sequence is in
tension with Guidry. There, the statute that conflicted with ERISA’s anti-
1986                   UNITED STATES v. NOVAK
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 numer-
ous other indicia of statute’s scope, override ERISA’s anti-
alienation 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 prin-
ciple 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.
                        UNITED STATES v. NOVAK                          1987
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 Sena-
tor 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 infer-
ring 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
  16
    Notably, 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 retire-
ment plan payments could not be used to satisfy criminal restitution
orders. Dissent at 2007-09. Although, in construing a statute we may prop-
erly 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 pro-
posed 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 infer-
ences’ 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 lan-
guage 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.
1988                  UNITED STATES v. NOVAK
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 wrong-
doing 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 gov-
  17
    It is not entirely clear whether the government believes it has the
authority to reach only Novak’s holdings in the May Profit Sharing Plan,
                        UNITED STATES v. NOVAK                          1989
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 garnish-
ment pursuant to MVRA can require retirement plans imme-
diately 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 becom-
ing disabled — occurs. Determining whether such a contin-
gent 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 dis-
trict 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 immedi-
ately available at the time of garnishment.
   18
      It 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 account-
ing 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.
   19
      For 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)
1990                    UNITED STATES v. NOVAK
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. Rod-
gers, 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 retire-
ment 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 mini-
mum 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 ‘prop-
erty’ or ‘rights to property’ within the compass of the federal tax lien leg-
islation.”).
                       UNITED STATES v. NOVAK                        1991
the terms of the plan or, if the plan provides the option of
receiving a lump sum payment in lieu of those annual pay-
ments, 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 partici-
pant’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 partici-
pants 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 “non-
forfeitable” 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).
  20
      ERISA does not forbid retirement plans from making payments to par-
ticipants before that point. Under certain circumstances, however, partici-
pants who receive payments before they attain age 59 must pay a ten-
percent penalty tax. 26 U.S.C. § 72(t).
   21
      ERISA requires that most retirement plans provide such spousal annu-
ities. 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).
1992                    UNITED STATES v. NOVAK
   [17] A participant’s right to receive cash from his retire-
ment 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 partici-
pant could presently demand.22

   This dual understanding accords with judicial and adminis-
trative 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 pay-
ment 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 author-
ity to demand annuity and retirement funds when the benefi-
ciary 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 liq-
uidate his IRA and withdraw the funds therefrom (even if sub-
ject 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 liqui-
date 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 immedi-
  22
    Retirement 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).
                        UNITED STATES v. NOVAK                          1993
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 subse-
quent payments or distributions that will become due thereun-
der, 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 post-
retirement 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
  23
    In light of these judicial rulings interpreting the term “right to proper-
ty” 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.
1994                   UNITED STATES v. NOVAK
that they do not violate the tax laws by responding to garnish-
ment 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 govern-
ment steps into the shoes of the taxpayer . . . .” Id. at 12, 2004
PLR LEXIS 315, at *23.25 “Though letter rulings are not bind-
ing, 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” depen-
dents. 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
  24
      The 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.
   25
      Pursuant 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.
                    UNITED STATES v. NOVAK                  1995
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 deter-
mine 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 uni-
laterally.

   [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 evi-
dence when the relevant legal standard was clarified only
after the district court’s decision). Once Novak’s retirement
1996                UNITED STATES v. NOVAK
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.
UNITED STATES v. NOVAK            1997
                         Volume 2 of 2
1998                UNITED STATES v. NOVAK
W. FLETCHER, Circuit Judge, with whom Judges PREGER-
SON, REINHARDT, THOMAS, and RAWLINSON join, dis-
senting:

   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 alien-
ation 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. Radza-
nower 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
                    UNITED STATES v. NOVAK                   1999
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 bene-
fits. 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 “notwith-
standing” 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 pen-
sion] 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
2000                UNITED STATES v. NOVAK
ERISA’s anti-alienation clause, and expressly amended the
Internal Revenue Code to allow the preservation of tax-
exempt status. The drafters of the MVRA’s short “notwith-
standing” 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, Con-
gress itself did not believe that the MVRA’s “notwithstand-
ing” 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 trans-
fers to third parties. It implements “a [legislative] decision to
safeguard a stream of income for pensioners (and their depen-
dents 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 statu-
tory language nor equitable considerations are sufficient to
override § 1056(d)(1). Instead, the onus is on Congress to leg-
islate clearly and precisely when it wishes to create excep-
tions 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 pro-
vision. Guidry, 493 U.S. at 376 n.18. Because of the complex-
ity of the issues involved in such an amendment, section
104(a) occupies six full pages of the U.S. Code Annotated. In
other words, when the Supreme Court sought to show how
Congress should express its intention to override the anti-
alienation provision, it cited a directive that explicitly, care-
                   UNITED STATES v. NOVAK                     2001
fully, and unambiguously permitted alienation of ERISA-
covered pension benefits.

   By contrast, the Court held in Guidry that the Labor-
Management Reporting and Disclosure Act of 1959
(LMRDA) did not abrogate ERISA’s anti-alienation provi-
sion. 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 recog-
nized 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 congres-
    sional intent would be effectuated by reading the
    LMRDA’s general reference to “other appropriate
    relief” as overriding an express, specific congressio-
    nal 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 unambig-
uous legislative command to create an exception to ERISA’s
2002               UNITED STATES v. NOVAK
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 excep-
    tions, 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 pro-
    tective 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 excep-
tions 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 depen-
dents who rely on those benefits—is the same whether a court
construes an ambiguous statute to allow alienation or whether
it creates an equitable exception out of whole cloth. As we
have explained, under Guidry, “any exceptions to the anti-
alienation provision must be expressly mandated by Con-
gress.” Ablamis v. Roper, 937 F.2d 1450, 1454 (9th Cir. 1991)
(emphasis added).
                    UNITED STATES v. NOVAK                    2003
   In Ablamis, we considered whether the exception for quali-
fied 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 “do-
    mestic 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) (not-
ing that courts should be “inclined, generally, to tight reading
of exemptions from comprehensive schemes” such as
ERISA).

   The majority is also wrong to suggest that the “specific-
versus-general” canon of statutory construction invoked in
Guidry is not relevant here. In Guidry, the Court held that the
fact that the LMRDA created a “general” entitlement to “ap-
propriate relief” did not allow the garnishment of ERISA-
covered pension benefits, even if such relief would otherwise
have been appropriate. Guidry, 493 U.S. at 375-76. In this
case, the fact that the MVRA creates a general entitlement to
restitution is not sufficient, standing alone, to override a statu-
tory 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
2004                UNITED STATES v. NOVAK
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 Manda-
tory Victim Restitution Act was to ensure that restitution
would be mandatory, rather than discretionary, in some crimi-
nal 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 accor-
dance 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 “notwithstand-
ing” clause. According to the majority, this clause clearly
states that restitution orders can reach undistributed ERISA-
covered pension benefits.

  Unfortunately for the majority, neither § 3613, nor indeed
any other provision of the MVRA, makes any reference what-
soever to ERISA. Section 3613 provides, in relevant part:

      The United States may enforce a judgment impos-
    ing a fine in accordance with the practices and pro-
    cedures 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
                    UNITED STATES v. NOVAK                      2005
    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” lan-
guage 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 gen-
eral one, regardless of the priority of enactment.”).

   The majority concedes, as it must, that we do not give con-
clusive weight to “notwithstanding” clauses. Congress often
uses such clauses as a shorthand way of ensuring that unspeci-
fied prior laws do not subvert a new enactment in unantici-
pated ways. However, holding that “ ‘notwithstanding’
language preempts all [laws] that ‘obstruct the subsequent
statute’s objectives’ . . . goes too far.” Nw. Forest Res. Coun-
cil 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 liter-
ally.” 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 enact-
2006                UNITED STATES v. NOVAK
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 Gui-
dry, ignores our usual approach for deciding when a “notwith-
standing” clause overrides pre-existing statutory language.

   As we have previously held, we determine the effect of
“notwithstanding” language according to the doctrine of
implied repeals. That is because “notwithstanding” clauses do
not “specifically refer[ ]” to the statutes they supposedly
supersede. Moyle v. Dir., OWCP, 147 F.3d 1116, 1119 n.4
(9th Cir. 1998); see also Norman J. Singer, 1A Sutherland
Statutory Construction § 23:8 (6th ed. 2000) (“A general
repealing clause cannot be deemed an express repeal because
it fails to identify or designate any act to be repealed.”). It is
well known that “repeals by implication are not favored.”
Branch v. Smith, 538 U.S. 254, 273 (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 con-
struction 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 excep-
tion” to the MVRA’s general restitution requirement. Even if
undistributed ERISA-covered pension funds are not subject to
                    UNITED STATES v. NOVAK                 2007
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 distrib-
uted to the offender. See Wright v. Riveland, 219 F.3d 905,
919-21 (9th Cir. 2000). The government could, of course,
secure restitution payments more rapidly if ERISA’s anti-
alienation provision were set aside, but it is up to Congress to
decide whether the tradeoff between faster restitution and
diminished pension security is worth making. If that is Con-
gress’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 ERISA-
covered pension funds to MVRA restitution orders. First,
Congress chose not to incorporate into the MVRA express
language from a bill proposed by Senator McCain that would
have unmistakably overridden ERISA’s anti-alienation provi-
sion. Second, one year after the passage of the MVRA, Con-
gress passed legislation specifically providing that restitution
orders can reach ERISA-covered pension funds when a defen-
dant’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
2008                UNITED STATES v. NOVAK
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 collec-
    tion 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 Sen-
ate, 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 Retire-
ment 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 vic-
tim 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 restitu-
tion order.” Id. It also expressly amended the Internal Reve-
nue Code to permit pension plans to alienate funds pursuant
to qualified criminal restitution orders without losing their
tax-favored status. Id. § 1(b).
                    UNITED STATES v. NOVAK                   2009
  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 crimi-
    nals. This bill would enhance collections on criminal
    restitution orders for crime victims by allowing the
    Federal Government to garnish the pension plan ben-
    efits of convicted felons.

       Currently, courts may not garnish pension bene-
    fits 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 lan-
guage into the final version of the MVRA, which passed in
April 1996 following reconciliation by a House-Senate Con-
ference 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 some-
what 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 “not-
withstanding” language in order to address Senator McCain’s
concerns. But that is very unlikely.
2010                UNITED STATES v. NOVAK
  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 modi-
    fication. The modification includes the Senate
    amendments to the bill H.R. 665, passed by the Sen-
    ate 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 leg-
    islative history for this subtitle.

H.R. Rep. No. 104-518, at 111-12 (1996) (Conf. Rep.). Nei-
ther the Conference Report nor the Senate Report says any-
thing whatsoever about ERISA-covered pension benefits. See
S. Rep. No. 104-179 (1995).

   Second, it is difficult to believe that the Conference Com-
mittee would have attempted to abrogate ERISA’s anti-
alienation provision in such an offhand and summary manner.
We must assume that the Committee was aware that, under
both Guidry and the doctrine of implied repeals, it had to
express its intention clearly if it intended to override ERISA’s
anti-alienation provision. See Lorillard v. Pons, 434 U.S. 575,
580 (1978). Had the Committee wanted to amend ERISA, it
easily could have included the clear, direct, and detailed lan-
guage 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” lan-
guage 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 lan-
guage that it has earlier discarded in favor of other lan-
                     UNITED STATES v. NOVAK                    2011
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 “not-
withstanding” 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 restitu-
tion 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 ben-
efits 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 circum-
stances would not have unfavorable tax consequences for pen-
sion 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 quali-
    fied retirement plan for the benefit of a participant
2012               UNITED STATES v. NOVAK
    are not, except in very limited circumstances, assign-
    able or available to personal creditors of the partici-
    pant. . . .

      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 lim-
    ited 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 quali-
    fied 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
                    UNITED STATES v. NOVAK                 2013
that the 1997 amendment is not limited to restitution orders
issued by federal courts pursuant to criminal convictions.
However, the amendment includes several important restric-
tions, 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 lan-
guage of the failed McCain bill.

   The 1997 amendment describes in detail when and how a
restitution order can reach pension benefits. The “notwith-
standing” 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 garnish-
ment pursuant to MVRA can require retirement plans imme-
diately 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, ERISA-
covered pension benefits may not be attached unless the resti-
tution 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
2014                UNITED STATES v. NOVAK
Cong. § 1(a)(1) (1996). The majority imposes an analogous
rule by judicial construction of the MVRA, but no such limi-
tation 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 con-
strues the MVRA to allow restitution orders to reach the
undistributed corpus of an individual’s pension fund in at
least some circumstances. Again, no such rule appears in the
text of the MVRA.

    For two reasons, the restrictions on attachment contained in
the 1997 amendment show that Congress in 1997 could not
have understood the MVRA to have abrogated ERISA’s anti-
alienation provision. First, the restrictions contained in the
1997 amendment and in the majority’s judicial construction of
the MVRA are not identical. Under the majority’s reading, the
MVRA remains somewhat less restrictive than the 1997
amendment. As a result, the majority creates a world in which
it is more difficult to attach the ERISA-covered pension bene-
fits of individuals who have committed crimes against pen-
sion 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 pass-
ing 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 major-
ity 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
                    UNITED STATES v. NOVAK                  2015
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 con-
tained 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 amend-
ment, 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 provi-
sion 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 guar-
antees 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 antici-
pated, assigned (either at law or in equity), alienated or sub-
ject 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 Gui-
dry, 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.
2016                UNITED STATES v. NOVAK
   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 Trea-
sury regulations do. See Treas. Reg. § 1.401(a)-13(b)(2). I
detail the problems with the tax levy analogy below. For now,
it is enough to say that the majority is once again attempting
to provide clarity through judicial construction where none
exists in the text of the statute. As the 1997 amendment
reveals, Congress knew that abrogating ERISA’s anti-
alienation provision would have unwanted tax consequences
unless an exception was added to § 401(a)(13). Had Congress
intended to abrogate ERISA’s anti-alienation provision when
it enacted the MVRA, it is difficult to imagine why it would
not also have amended § 401(a)(13). Congress’s failure to do
so is particularly striking, given that express language in the
McCain bill would have done so, and that express language
in the 1997 amendment in fact did do so.

   Finally, the majority attempts to downplay the significance
of the 1997 amendment by insisting that Congress was merely
attempting to resolve a circuit split over whether ERISA’s
anti-alienation provision applied to offenses involving a pen-
sion 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 pro-
vision 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 “not-
withstanding” language to abrogate ERISA’s anti-alienation
provision. Instead, Congress faced a clear choice when it con-
sidered the 1997 amendment: Should it override ERISA’s
anti-alienation provision with respect to all criminal restitu-
tion orders, or should it override the anti-alienation provision
                    UNITED STATES v. NOVAK                    2017
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 pen-
sion benefits when it adopted the MVRA, the majority con-
tends that two “contextual aspects” of 18 U.S.C. § 3613
reveal that the MVRA defeats ERISA’s anti-alienation provi-
sion. 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 lan-
guage of § 3613 parallels a tax levy statute that has been con-
strued to reach such benefits. Given the contrary indications
of legislative intent described above, the burden on the major-
ity 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 Unem-
    ployment 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
2018                UNITED STATES v. NOVAK
    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 prop-
erty, 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 indica-
tions 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 Con-
gress 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 men-
tion ERISA would have the effect of leaving its anti-
alienation provision intact.

   Second, the first point is amplified by the fact that Con-
gress expressly provided for the inclusion of Social Security
benefits as part of the “notwithstanding” clause: “Notwith-
standing 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 sec-
tion 207 of the Social Security Act because that section
                     UNITED STATES v. NOVAK                    2019
requires modifications to be made by “express reference.” 42
U.S.C. § 407(b). The majority notes that ERISA’s anti-
alienation provision does not contain the same “express refer-
ence” 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 pro-
vision 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 safe-
guard retirement income,” including section 207). Had Con-
gress, legislating post-Guidry, intended to reach ERISA-
covered pension benefits, one would expect an express refer-
ence 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 lev-
ies, there is no similar regulatory exception for criminal resti-
tution orders.

   Even if restitution were sought in this case under § 3613(c),
this section provides only that tax lien procedures are applica-
2020                UNITED STATES v. NOVAK
ble to enforce restitution orders. It nowhere states that restitu-
tion 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 gov-
erns the narrow question whether that judgment may be col-
lected 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 prop-
erty 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 exemp-
tions 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 sav-
ings clause, which leaves pre-existing law undisturbed. The
savings clause provides that nothing in ERISA “shall be con-
                    UNITED STATES v. NOVAK                 2021
strued to alter, amend, modify, invalidate, impair, or super-
sede 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 pen-
sion benefits, it does so because of ERISA’s savings clause.

   The majority attempts to downplay this important distinc-
tion 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 anti-
alienation provision. The majority takes 54 manuscript pages
of complex argument to explain why a short and cryptic “not-
withstanding” clause in the MVRA clearly abrogates this pro-
vision.

   I conclude that Congress did not act with the requisite level
of clarity when it adopted the MVRA. The relevant statutory
2022               UNITED STATES v. NOVAK
text makes no reference whatsoever to ERISA, or to possible
tax consequences of an abrogation of its anti-alienation provi-
sion. Further, the legislative history indicates that Congress
did not intend to allow criminal restitution orders to abrogate
the anti-alienation provision.

  I respectfully dissent.
