UNITED METAL PRODUCTS CORPORATION, PETITIONER V. NATIONAL BANK OF DETROIT No. 86-1786 In the Supreme Court of the United States October Term, 1987 On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States as Amicus Curiae This brief is submitted in response to the Court's invitation to Solicitor General to express the views of the United States. TABLE OF CONTENTS Question Presented Statement Argument Conclusion QUESTION PRESENTED Whether the express preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA) and the anti-alienation provisions of ERISA and the Internal Revenue Code permit state law actions to garnish the pension plan accounts of employees who embezzle from their employers. STATEMENT Petitioner, United Metal Products Corporation, maintains a profit sharing retirement plan ("the Plan") for the benefit of its employees (Pet. App. A1). The Plan is a "pension plan" and "qualified trust" governed by the provisions of the Employee Retirement Income Security Act of 1974 (ERISA) and by certain provisions of the Internal Revenue Code. In particular, as is relevant here, Section 514(a) of ERISA, 29 U.S.C. 1144(a), preempts, with certain enumerated exceptions, the application of "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." Also, Section 401(a)(13)(A) of the Internal Revenue Code and Section 206(d)(1) of ERISA both require that qualifying plans provide that benefits under the plan "may not be assigned or alienated." 26 U.S.C. (Supp. III) 401(a)(13)(A); 29 U.S.C. 1056(d)(1). In accordance with these anti-alienation provisions, Section 7.7 of the Plan's governing document states that "'(n)o benefit under th(e) Plan shall in any manner or to any extent be assignable or transferable by any Participant or beneficiary under the Plan or subject to attachment, garnishment or other legal process'" (Pet. App. A2). In late 1984, United Metal Products obtained a Michigan state court judgment, in the amount of $441,408.72, against a former bookkeeper who had embezzled its funds and then disappeared (Pet. App. A1-A2). United Metal Products subsequently obtained from the Michigan court a writ of garnishment against the bookkeeper's account in the Plan (id. at A2). The National Bank of Detroit, the Plan trustee, filed a statement disclosing that it held $35,385.64 in the bookkeeper's Plan account, but refused to comply with the garnishment, arguing that it would violate the federal anti-alienation rules (ibid.). United Metal Products then commenced this action in the United States District Court for the Eastern District of Michigan, seeking declaratory relief that would permit it to garnish the bookkeeper's Plan account and redistribute the funds to the accounts of other Plan participants (Pet. App. A2, B1). The court reviewed the relevant statutory language and its legislative history, and concluded that neither source provided justification for an exception to the anti-alienation provisions for employee embezzlement. Thus, the issue of whether such an exception should exist was, in the court's view, one that "should be addressed to Congress and not the courts" (id. at B2). The court accordingly entered an order dismissing United Metal Products' complaint (id. at B1-B3. On appeal, a divided panel of the Sixth Circuit affirmed (Pet. App. A1-A8). The court declined to follow the Eleventh Circuit's decision in St. Paul Fire & Marine Ins. Co. v. Cox, 752 F.2d 550 (1985), in which the court implied an exception to the anti-alienation provisions in the case of employee embezzlement. The court of appeals instead found persuasive the Second Circuit's conclusion in Ellis National Bank v. Irving Trust Co., 786 F.2d 466 (1986), that such an exception would undermine the fundamental purpose of ERISA, which is the protection of pension benefits (Pet. App. A4). The court also noted that recognizing an implied exception might necessitate "a 'boundless stream of suits and disputes'" to define its scope in varying factual circumstances (id. at A5 (quoting 786 F.2d at 471)). The court observed that creation of such an exception, where a literal interpretation of the statute was not manifestly unreasonable, is "a question for legislative rather than judicial judgment" (Pet. App. A5). The dissenting judge, in contrast, found compelling the Eleventh Circuit's belief that wrongdoers should not profit from their misdeeds (id. at A7). ARGUMENT The judgment of the court of appeals is correct and does not warrant review by this Court. The Sixth Circuit's decision not to imply an exception to the anti-alienation provisions for employee embezzlement is consistent with the preponderant weight of judicial authority interpreting that rule to bar garnishment of pension benefits in the aid of third-party creditors. Moreover, the contrary decision of the Eleventh Circuit in St. Paul Fire & Marine Ins. Co. v. Cox, supra, has been rejected by the two other courts of appeals that have addressed the issue, and petitioner concedes that St. Paul Fire & Marine Ins. Co. was wrongfully decided. Although a conflict exists between these decisions, we do not believe that the dispute requires resolution by the Court at this time. In addition, although the court below relied solely on the anti-alienation provisions, the express preemption of state law provided for under Section 514(a) of ERISA also bars the garnishment of plan benefits sought in this case. 1. Congress enacted ERISA in 1974, after nearly ten years of studying the operation of private employee pension and welfare plans. Central States Pension Fund v. Central Transport, Inc., 472 U.S. 559, 569 (1985); Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361 (1980). Based principally on a finding "that the continued well-being and security of millions of employees and their dependents are directly affected by these plans" (Section 2(a), 29 U.S.C. 1001(a); Nachman, 446 U.S. at 362), this comprehensive statute was intended to "assur(e) the equitable character of such plans and their financial soundness," and to "protect * * * the interests of participants * * * and their beneficiaries" (Section 2(a) and (b), 29 U.S.C. 1001(a) and (b)). As this Court has often recognized, a primary goal of ERISA was to "'mak(e) sure that if a worker has been promised a defined pension benefit upon reqirement -- and if he has fulfilled whatever conditions are required to obtain a vested benefit -- he actually will receive it.'" Central States, 472 U.S. at 569 (quoting Nachman Corp., 446 U.S. at 375); see also Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 510 (1981). The statute includes detailed provisions for vesting and nonforfeitability of pension rights, "concepts * * * (that) are critical to the ERISA scheme." Alessi, 451 U.S. at 510. Thus, a number of specific guarantees were included in ERISA to protect the rights of employees and beneficiaries under qualified pension plans. For example, Section 203(a), 29 U.S.C. 1053(a), directs each pension plan to "provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age," and requires pre-retirement vesting of accrued benefits according to a prescribed schedule. These provisions guarantee that, with few exceptions, "no rights, once they are vested, may be lost by the employee under any circumstances * * * ." H.R. Rep. 93-807, 93d Cong., 2d Sess. 60 (1974), reprinted in Senate Comm. on Labor and Public Welfare, 94th Cong., 2d Sess., 2 Legislative History of the Employee Retirement Income Security Act of 1974, at 3121, 3180 (Comm. Print 1976) (hereinafter Leg. Hist.). ERISA also requires that pension plan assets "be held in trust by one or more trustees," and prescribes numerous fiduciary duties, limitations, and responsibilities for the trustees (Sections 403-412, 29 U.S.C. (& Supp. III) 1103-1112). ERISA further provides that pension plan assets "shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan" (Section 403(c)(1), 29 U.S.C. 1103(c)(1)). /1/ In order to avoid interference with the operation of federal law governing the administration of benefit plans, Congress explicitly provided that ERISA "shall supersede" state laws relating to qualifying benefit plans, and enumerated a small number of exceptions from this preemption provision. 29 U.S.C. (& Supp. III) 1144. The Department of Labor has concluded that this express preemption provision generally prohibits garnishment of welfare plans and pension plans. See Op. Dep't of Labor No. 79-90A (Dec. 28, 1979). /2/ As explained more fully in our amicus brief in Mackey v. Lanier Collection Agency & Service, Inc., No. 86-1387, /3/ garnishment of an employee benefit plan as is involved here "relates to" the plan within the meaning of the preemption provision. First, allowance of a garnishment action would permit judgment creditors to appropriate plan assets before they are disbursed as benefits to plan participants or beneficiaries, and thus to effectively determine their distribution. /4/ Second, it would impose significant burdens on plan administrators who must comply with the provisions of the state garnishment procedure. Even absent a dispute about the merits of the garnishment, the trustee would be required to confirm the identity of the participant whose account is being garnished, calculate his or her benefit entitlement, compute and apply any relevant exemptions from garnishment, determine the amount owed to the creditor in question, file timely and complete responses in the judicial proceedings, and make payment into the court of the amount subject to garnishment. And if the validity of the garnishment were contested, the trustee could be embroiled in litigation. See U.S. Amicus Br. at 12-15, Mackey v. Lanier Collection Agency & Service, Inc., supra. That is contrary to Congress's scheme, since "ERISA's comprehensive preemption of state law (see id. at 7-10) was meant to minimize this sort of interference with the administration of employee benefit plans" (Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 105 n.25 (1983)). Congress also enacted the anti-alienation provisions now codified at 29 U.S.C. 1056(d)(1) and 26 U.S.C. (Supp. III) 401(a)(13)(A) (see pages 1-2, supra) "(t)o further ensure that the employee's accrued benefits are actually available for retirement purposes." H.R. Rep. 93-807, supra, at 68, reprinted in 2 Leg. Hist. 3188. With respect to garnishment in particular, the legislative history establishes that they are to be viewed as assignments, and thus fall squarely within the statutory prohibition. The Conference Report also makes clear that, as involuntary assignments, garnishments do not come within a limited exception to the anti-alienation provisions for certain voluntary assignments. /5/ Consistent with the statutory language and legislative history, a regulation promulgated by the Treasury Department in 1978 states that "benefits provided under (a qualified plan) may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process." 26 C.F.R. 1.401(a)-13(b)(1). /6/ The view that the anti-alienation provisions bar garnishment of pension funds is shared by the Department of Labor. See Op. Dep't of Labor No. 80-3A (Jan. 18, 1980); id. at No. 80-39A (June 27, 1980). The overwhelming majority of courts have reached a similar conclusion. See, e.g., Tenneco, Inc. v. First Virginia Bank, 698 F.2d 688, 689-690 (4th Cir. 1983); General Motors Corp. v. Buha, 623 F.2d 455, 460-463 (6th Cir. 1980); Commercial Mortgage Ins., Inc. v. Citizens National Bank, 526 F. Supp. 510, 516-520 (N.D. Tex. 1981); Christ Hospital v. Greenwald, 82 Ill. App.3d 1024, 1027-1028, 403 N.E.2d 700, 703 (1980); Helmsley-Spear, Inc. v. Winter, 74 A.D.2d 195, 199, 426 N.Y.S.2d 778, 781 (1980), aff'd, 52 N.Y.2d 984, 419 N.E.2d 1078, 438 N.Y.S.2d 79 (1981). Those courts reasoned that the anti-alienation provisions are plainly designed to insulate pension plan accounts from garnishment so that plan participants and their dependents will actually receive their pension benefits. Since it enacted ERISA in 1974, Congress has legislated once to provide a limited exception to the preemption and anti-alienation provisions. In 1984, Congress amended ERISA and the Internal Revenue Code to exempt from those provisions "qualified domestic relations orders." Retirement Equity Act of 1984, Pub. L. No. 98-397, Sections 104(a), 104(b), 204(a), 98 Stat. 1433, 1436, 1445 (codified at 29 U.S.C. (Supp. III) 1056(d)(3), 1144(b)(7), 26 U.S.C. (Supp. III) 401(a)(13)(B)). This amendment was in response to a series of cases in which the courts had recognized an implied exception to the anti-alienation provisions to permit garnishment of pension benefits to satisfy spousal and child support and community property obligations contained in the orders of state domestic relations courts. S. Rep. 98-575, 98th Cong., 2d Sess. 18-19 (1984). /7/ In "carving out an appropriate and well-defined exception for domestic relations orders meeting specific standards" (130 Cong. Rec. H8756 (daily ed. Aug. 9, 1984) (remarks of Rep. Erlenborn), Congress reaffirmed its intent to continue the bar to garnishment of employee retirement benefits in other contexts. Indeed, Congress specifically endorsed the Ninth Circuit's holding in Franchise Tax Board v. Construction Laborers Vacation Trust, 679 F.2d 1307 (1982), vacated, 463 U.S. 1 (1983), stating that ERISA preempts state tax laws insofar as they authorize garnishment of employee benefit plans. H.R. Rep. 98-655, 98th Cong., 1st Sess. Pt. 1, at 42 (1984). See also Andrus v. Glover Construction Co., 446 U.S. 608, 616-617 (1980) (express provision for exceptions to a general statutory prohibition bars additional exception in the absence of contrary legislative intent). 2. This case provides no meaningful basis for distinguishing the present suit from a garnishment action by any other creditor in an effort to satisfy a debt. Although, as the court of appeals acknowledged (Pet. App. A5), there is surface appeal to petitioner's claim that an embezzler (particularly an embezzler with no dependents) ought not be able to shield her pension plan from garnishment, nothing in the petition for a writ of certiorari suggests that any provision of ERISA, the Internal Revenue Code, or any other federal law would permit garnishment in this case. /8/ To imply an exception to such a clearly delineated requirement, "'there must be something to make plain the intent of Congress that the letter of the statute is not to prevail.'" TVA v. Hill, 437 U.S. 153, 187 n.33 (1978) (quoting Crooks v. Harrelson, 282 U.S. 55, 60 (1930)). Otherwise, the courts are obliged to "take the statute as (they) find it." Anderson v. Wilson, 289 U.S. 20, 27 (1933). Since there is no basis in the anti-alienation provisions or the preemption provision, or elsewhere in the statute, on which to distinguish the bookkeeper's debt to her employer from any other debt she might have incurred in the course of her business or private life, and Congress plainly barred general creditors from garnishing pension plans to collect debts, the courts below correctly decided that United Metal Products may not garnish the bookkeeper's account. Petitioner argues (Pet. 4-5) that the courts below erred because this case falls within the language of United States v. Rutherford, 442 U.S. 544, 555 (1979), that a court will not countenance "a literal construction of a statute (which) yields results so manifestly unreasonable that they could not fairly be attributed to congressional design." However, far from being unreasonable, the result reached by the courts below is fully consistent with the language of the statute and congressional intent. As noted (pages 4-5, supra), ERISA was enacted primarily for "the protection of individual pension rights." H.R. Rep. 93-533, 93d Cong., 1st Sess. 1 (1973), reprinted in 2 Leg. Hist. 2348. Indeed, Congress's considered judgment was that the economic security of retirees and their dependents was paramount, even against other worthy objectives. The whole point of a provision barring involuntary alienation is to prevent persons with legitimate claims against a person's property from collecting out of the assets protected by the provision. Moreover, Congress enacted ERISA's express preemption provision in part to assure that funds held in trust by employee benefit plans would be used to provide benefits rather than to pay administrative expenses associated with garnishment actions. Thus, it is clear beyond dispute that Congress generally intended that the pension accounts of delinquent debtors should be shielded from creditors other than those enforcing child support and alimony judgments. One may reasonably conclude that Congress intended to shield the prospective pension benefits of employees -- and their dependents -- even under circumstances such as those presented here, since Congress enacted no applicable exception to its general prohibition. /9/ 3. For these reasons, the Sixth Circuit correctly concluded that this garnishment action is barred. We also submit that, notwithstanding the conflict posed by the Eleventh Circuit's decision in St. Paul Fire & Marine Ins. Co., it is not necessary for this Court to grant review of this issue at this time. That decision is clearly wrong, and has generally been recognized as such. Two other circuits have subsequently addressed the issue (the court below and the Second Circuit in Ellis National Bank), and both of them have expressly declined to follow St. Paul Fire & Marine Ins. Co. Moreover, there is reason to expect that any other circuit to address this question in the future would find the latter two courts' opinions more persuasive. The Eleventh Circuit reasoned in St. Paul Fire & Marine Ins. Co. that garnishment of pension plan benefits was permissible because "(t)he legislation provides no indication whatsoever that it is intended to protect the employee against the consequences of his own misdeeds" (752 F.2d at 442). In so doing, the court overlooked Section 514(a)'s express preemption of state remedies relating to benefit plans, as well as the plain language of the anti-alienation provisions, and implied an exception from legislative silence. That silence, however, provides no support for the Eleventh Circuit's assumption that Congress would not have intended to shield the pensions of wrongdoing employees from garnishment. To the contrary, the absence of comment is a more reliable indicator of the drafters' expectation that the language of the statute would apply exactly as written. In looking to its own sense that cases of intentional wrongdoing by an employee should be treated differently, the court was inappropriately reading its own policy imperatives into the statute. See United States v. Locke, 471 U.S. 84, 95-96 (1985); United States v. Rutherford, 442 U.S. at 555. In addition, St. Paul Fire & Marine Ins. Co. is wrong and this case is correctly decided for the additional reason that in both cases it is the employer seeking to garnish the benefits of the employee. In enacting ERISA, Congress took care to ensure that employers would not exercise control over pension plans once trusts had been established. In conferring on trustees the duty to administer pension plans, Congress emphasized that "the assets of a plan shall never inure to the benefit of any employer." Section 403(c)(1), 29 U.S.C. 1103(c)(1). /10/ Petitioner in fact concedes (Pet. 3) that the St. Paul Fire & Marine Ins. Co. decision was incorrect because the employer in that case garnished an employee's pension account. It is clear that Section 403(c)(1) similarly bars United Metal Products from garnishing its employee's account. United Metal Products' offer to return any recaptured funds to the Plan for distribution among the remaining participants does not alter the legal basis for the garnishment, which is the judgment entered on United Metal Products' claim against the bookkeeper. Any subsequent undertaking to return those funds to the Plan would be completely gratuitous. Accordingly, this is a poor case to decide whether an exception to the anti-alienation provisions should be implied in cases involving criminal wrongdoing, since a separate provision of ERISA, which would not be relevant in a case not involving embezzlement from the employer that established the pension plan, prohibits garnishment here. The fact that petitioner agrees that the only court of appeals' decision in conflict with the decision below was wrongly decided demonstrates that there is no pressing need to resolve the conflict. A more difficult question would be presented in a case where a participant in a pension plan had been convicted of a crime and ordered to make restitution. Since ERISA does not preempt other federal laws (see Section 514(d), 29 U.S.C. 1144(d)), there is a question as to whether a restitution order entered pursuant to 18 U.S.C. (& Supp. III) 3579-3580 /11/ may be enforced despite the anti-alienation provisions, just as federal tax levies may be enforced by garnishing pension plans under 26 C.F.R. 1-401(a)-13(b)(2) (see note 6, supra). Similarly, since ERISA does not preempt "any generally applicable criminal law of a State" (Section 514(b)(4), 29 U.S.C. 1144(b)(4)), it may be that restitution orders entered pursuant to state criminal proceedings are not preempted. /12/ But this case does not present the question whether a pension plan is subject to garnishment to enforce a criminal restitution order. /13/ While we believe that this case does not merit this Court's plenary review, a closer question is presented as to whether it is appropriate to hold this case for disposition in light of the Court's decision in Mackey v. Lanier Collection Agency & Service, Inc., No. 86-1387. Like Mackey, this case involves an attempt by a creditor to garnish an employee benefit plan covered by ERISA. In both cases, we submit that the garnishment is barred by ERISA's express preemption provision, and it is possible that a decision in Mackey adopting that view would rely on reasoning that is persuasive in the present case. At the same time, however, the garnishment sought in this case, unlike that in Mackey, is in compensation for a criminal embezzlement, and petitioner here would no doubt argue on that basis that an exception from preemption should be allowed here whatever the outcome in Mackey. Also, since this case involves a pension rather than a welfare benefit plan, as is involved in Mackey, it implicates the anti-alienation provisions as an additional bar to garnishment not involved in Mackey. Thus a decision in Mackey allowing garnishment as not preempted would be unlikely to address the additional issue present here -- indeed the only ground relied on by the court below -- of whether garnishment is nonetheless barred by the anti-alienation provisions. In summary, the Court's decision in Mackey may bear significantly on issues presented, but appears unlikely to be dispositive of this case. CONCLUSION The petition for a writ of certiorari should, accordingly, be denied, or, in the alternative, held for disposition in light of the Court's decision in Mackey v. Lanier Collection Agency & Service, Inc., No. 86-1387. Respectfully submitted. CHARLES FRIED Solicitor General DONALD B. AYER Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General GEORGE R. SALEM Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor JEFFREY A. HENNEMUTH Attorney Department of Labor SEPTEMBER 1987 /1/ In fulfillment of Congress's intent to provide appropriate remedies, sanctions, and ready access to the Federal courts to effectuate these guarantees, participants are entitled to bring civil actions against plans or fiduciaries to recover benefits due, enforce benefit rights or clarify rights to future benefits, and remedy breaches of fiduciary obligation under the statute. Section 502(a), 29 U.S.C. 1132(a). /2/ All rulemaking and interpretive authority with respect to ERISA's minimum funding, participation, and vesting standards for employee benefit plans is consolidated in the Secretary of the Treasury (in practice, the Internal Revenue Service (IRS)). Reorg. Plan No. 4 of 1978, Section 101(a), 3 C.F.R. 332 (1979), reprinted in 5 U.S.C. App. at 1163, and in 92 Stat. 3790. The Secretary of Labor, however, retains authority under Section 502 of ERISA, 29 U.S.C. 1132, to bring civil actions to enforce fiduciary obligations under such plans consistent with IRS interpretations of those standards. Reorg. Plan No. 4 of 1978, Section 104, 3 C.F.R. 333 (1979). Thus, both agencies have responsibility for enforcement of the anti-alienation provisions. In addition to pension plans, ERISA governs welfare benefit plans, which include, inter alia, plans providing sickness, accident, disability, death, unemployment, severance, and vacation benefits (Section 3(1), 29 U.S.C. 1002(1)). Welfare plans are excluded from the coverage of the anti-alienation provisions (Section 201(1), 29 U.S.C. 1051(1)), but the express preemption provision applies both to welfare and pension plans. /3/ We are serving a copy of that brief on counsel for petitioner and respondent. /4/ Such an effort not only "relates to" the plan, but also directly contradicts the express statutory command that trustees hold and expend trust funds "for the exclusive purpose of providing benefits" and "defraying reasonable expenses of administering the plan." 29 U.S.C. 1103(a)(1), 1104(a)(1)(A). /5/ The express language of both anti-alienation provisions exempts from their prohibition voluntary and revocable assignments that do not exceed ten percent of any benefit payment and loans from a plan to its participants and beneficiaries that are secured by the participant's nonforfeitable benefits. 26 U.S.C. (Supp. III) 401(a)(13)(A); 29 U.S.C. 1056(d)(2). The Conference Report explains that "(f)or purposes of this rule, a garnishment or levy is not to be considered a voluntary assignment." H.R. Rep. 93-1280, 93d Cong., 2d Sess. 280 (1974), reprinted in 3 Leg. Hist. 4547. /6/ The regulation provides, however, for garnishment to enforce federal tax levies. 26 C.F.R. 1.401(a)-13(b)(2). As the Internal Revenue Service explained in promulgating the regulation (43 Fed. Reg. 6942 (1978)), that exception to the general rule prohibiting garnishment of pension plans is based on express provisions of ERISA and the Internal Revenue Code. Section 514(d), 29 U.S.C. 1144(d), provides that ERISA "shall not be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States * * * ." Accordingly, the provisions of the Internal Revenue Code authorizing federal tax levies do not appear to be preempted. That is made particularly clear by 26 U.S.C. (& Supp. III) 6334, which provides in subsection (c) that "(n)otwithstanding any other law of the United States * * * , no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)." Section 6334(a), in turn, contains nine exemptions, including an exemption for pension payments to railroad employees and military personnel (Section 6334(a)(6)), but contains no general exemption for pension funds. It is, therefore, clear that Congress intends pension plan accounts other than those listed in Section 6334(a)(6) to be subject to federal tax levies. /7/ See, e.g., AT&T v. Merry, 592 F.2d 118 (2d Cir. 1979); Stone v. Stone, 450 F. Supp. 919 (N.D. Cal. 1978), aff'd, 632 F.2d 740 (9th Cir. 1980), cert. denied, 453 U.S. 922 (1981). The exceptions for family obligations were "premised upon (ERISA's) broad purpose to provide protection for employees and their families." Tenneco, Inc. v. First Virginia Bank, 698 F.2d at 690 (emphasis added). /8/ Other than the Eleventh Circuit in St. Paul Fire & Marine Ins. Co., the courts that have recognized exceptions from the anti-alienation provisions have found a basis for the exception in federal law. The courts that allowed garnishment to satisfy certain family obligations (see note 7, supra) prior to ERISA's amendment in 1984 based that conclusion on ERISA's stated purpose to protect the security "of millions of employees and their dependents" (Section 2(a), 29 U.S.C. 1001(a) (emphasis added)). Likewise, the regulatory exception authorizing garnishment of pension plans to enforce federal tax levies (see note 6, supra) is based on provisions of ERISA and the Internal Revenue Code that make clear that Congress intended that pension plans may not be used to shield money from federal tax collectors. See also Op. Dep't of Labor No. 80-39A (June 27, 1980). Similarly, in Crawford v. La Boucherie Bernard, Ltd., 815 F.2d 117, 121 (D.C. Cir. 1987), petition for cert. pending sub nom. Goldstein v. Crawford, No. 87-281 (filed Aug. 18, 1987), in permitting a pension plan to draw upon the pension account balance of a plan fiduciary as compensation for adjudicated losses resulting from his breaches of trust, the court concluded that such action was "consistent with ERISA's purpose of providing effective remedies for fiduciary breaches" (815 F.2d at 120). In Guidry v. National Sheet Metal Workers' National Pension Fund, 641 F. Supp. 360, 362-363 (D. Colo. 1986), where the district court ordered that a union official's pension account be held in constructive trust until the union's judgment against the official (who had embezzled from the union) was satisfied, its decision was based on the fact that Congress, through the Labor Management Relations Act of 1947 and the Labor Management Reporting and Disclosure Act of 1959, had made clear that union members must be protected from corrupt union officials. /9/ Moreover, a bar to recovery from pension benefits does not eliminate the societal remedy of criminal penalties, perhaps including restitution (see pages 15-16, infra). Nor do the anti-alienation provisions prevent an employer from pursuing assets in the possession of an employee who embezzled from it, including those received by the regular distribution of moneys from a benefit plan to that participant. /10/ In addition, the general prohibition against forfeiture of vested benefits (see discussion at pages 4-5, supra) was partly aimed at the "bad boy" clauses in pre-ERISA plans that denied benefits "because the employee later went to work for a competitor, or in some other way was considered 'disloyal' to the employer." H.R. Rep. 93-807, supra, at 60 (footnote omitted), reprinted in 2 Leg. Hist. 3180; see also 120 Cong. Rec. 29197 (1974) (remarks of Rep. Dent), reprinted in 3 Leg. Hist. 4669. The drafters there intended to prevent the cancellation of retirement benefits as a tool for punishing employees for real or imagined offenses against the employer, even when the funds in question would not consequently pass to the employer. See Fremont v. McGraw-Edison Co., 606 F.2d 752 (7th Cir. 1979) (ERISA forbids enforcement of plan provision mandating forfeiture of benefits payable to an employee guilty of theft from the employer), cert. denied, 445 U.S. 951 (1980); Winer v. Edison Bros. Stores Pension Plan, 593 F.2d 307 (8th Cir. 1979) (same). /11/ Federal courts entering restitution orders have considerable discretion, and are specifically instructed to take into account "the financial needs and earning ability of the defendant and the defendant's dependents." 18 U.S.C. 3580(a). It therefore seems that in appropriate cases a court could decline to order restitution, or order only partial restitution, or order restitution but insulate a defendant's pension account from collection, in order to protect the pension benefits due to a defendant or his dependents. /12/ However, as noted (see note 6, supra), the federal tax levy statutes deal specifically with pension plan benefits and are particularly emphatic that no property other than that enumerated in 26 U.S.C. 6334(a) is exempt from garnishment. In contrast, the federal criminal restitution provision merely provides that a restitution order may be enforced "in the same manner as a judgment in a civil action" (18 U.S.C. 3579(h)), so that Congress has not unambiguously stated that pension plans may be garnished to enforce restitution orders. Nor has it clearly expressed its intent that pension plans are subject to garnishment to enforce state criminal restitution orders. We are aware of no case involving an attempt to garnish a pension plan to enforce a criminal restitution order, and no regulation specifically addresses that issue. /13/ This case involves unusual circumstances which may make it impossible to obtain a criminal judgment. An arrest warrant was issued for the bookkeeper, but her whereabouts are unknown and she is believed to be residing in Brazil (Pet. App. A2 n.1). Thus, she has not been convicted of embezzlement and may never be tried. The Eleventh Circuit's decision in St. Paul Fire & Marine Ins. Co. is distinguishable from this case on the basis that the embezzler there had been criminally convicted (752 F.2d at 551). However, it does not appear that the insurance company that bore the loss and then recovered from the embezzler's pension account had obtained a criminal restitution order. Accordingly, that decision cannot be explained as being within an exception for criminal restitution orders.