Collection of Criminal Fine Does Not Violate Anti-Alienation Provision of ERISA

Irving, a former chief pediatrician for a New York school district, was convicted, among other crimes, of traveling abroad for the purpose of engaging in sexual acts with minors. Besides imprisonment, the federal district judge imposed a $200,000 fine. On appeal, besides challenging the conviction, Irving asserted that the $200,000 fine levied against him should be vacated because it violated ERISA’s anti-alienation provision. In making this particular argument, Irving relied primarily on a 1990 Supreme Court decision, in which the Court refused to create an exception to ERISA’s anti-alienation provision, even for criminal misconduct, and held that only Congress could create such an exception. Apparently, Congress accepted the Supreme Court’s invitation by enacting the Mandatory Victim Restitution Act of 1996, 18 U.S.C. § 3613(a). U.S. district courts across the country have found that MVRA permits courts to consider ERISA protected assets in determining appropriate fines and restitution. Nothing in the text of the ERISA anti-alienation provision suggests that it needs to be specifically cited to in MVRA to justify such interpretation. Thus, the appellate court rejected Irving’s claim that the $200,000 fine levied against him violated ERISA’s anti-alienation provision. United States v. Irving, 432 F.3d 401 (2d Cir. 2005).

—Stephen H. Cypen, Cypen & Cypen,