The Ninth Circuit Court of Appeals today released an opinion in USA v. NOVAK, No. 04-55838, an appeal in a civil action brought by the United States. The panel consisted of 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.
BERZON, Circuit Judge:
We are asked to determine whether — and if so, under what circumstances — a criminal defendant’s retirement benefits are available as a source of funds to compensate crime victims. Answering these questions requires reconciling two federal statutory schemes — one, the Mandatory Victims Res. . .
W. FLETCHER, Circuit Judge, with whom Judges PREGERSON, REINHARDT, THOMAS, and RAWLINSON join, dissenting:
The question in this case is whether the Mandatory Victim Restitution Act (MVRA), codified in relevant part at 18 U.S.C. Â§ 3613, abrogates ERISA’s strict prohibition on alienation of pension benefits. The majority holds that it does. For two reasons, the majority is mistaken. First, the majority fails to recognize that our task in this case is limited. We are not called upon to clear up ambiguities of the MVRA. Rather, we are asked to decide whether that Act evinces an unmistakable intention to override ERISA’s anti-alienation provision. As the Supreme Court explained in Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365 (1990), ERISA’s anti-alienation provision “reflects a considered congressional policy choice,” and only a clear and specific legislative directive is sufficient to defeat it. Id. at 376. Moreover, it is settled law, wholly apart from Guidry, that Congress cannot repeal a prior law by implication unless it expresses a “clear and manifest” intention to do so. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976); see also Moyle v. Dir., OWCP, 147 F.3d 1116, 1119-21 (9th Cir. 1998) (using the doctrine of implied repeals to determine when a statute that purports to apply “notwithstanding” any other law actually displaces a pre-existing statute). Second, once our role is properly understood, it is apparent that the MVRA is not sufficiently clear. The relevant text of the MVRA is a relatively short “notwithstanding any other federal law” clause. The clause does not mention ERISA. Nor does the clause amend the Internal Revenue Code. The legislative history clearly indicates that Congress did not intend to abrogate ERISA’s anti-alienation provision when it adopted the MVRA. In 1996, prior to the passage of the MVRA, Senator McCain proposed a bill that would have . . .