RALPH B. GUY, Jr., Circuit Judge.

Plaintiff appeals the trial court's adverse decision in this declaratory judgment action. The issue below and on appeal is whether we should create an implied exception to the anti-alienation provisions of ERISA, 29 U.S.C. § 1056(d), and the Internal Revenue Code, 26 U.S.C. § 401(a)(13), and allow an employer to garnish an employee's pension or profit sharing fund when that employee commits fraud against the employer. The trial court declined to do so. We agree and therefore affirm.

Plaintiff United Metal Products maintains a profit sharing plan for the benefit of its employees. Defendant is the trustee of the plan. Blandina Coelho, plaintiff's bookkeeper for many years, was a participant in the plan. On December 19, 1984, plaintiff obtained a judgment against Coelho in the amount of $441,408.72, arising from Coelho's embezzlement and conversion of funds belonging to plaintiff.

On January 15, 1985, plaintiff secured a writ of garnishment issued by the Oakland County Circuit Court directed to defendant. Defendant responded by filing a disclosure showing that it held $35,385.64 in an account in Coelho's name. At the same time, defendant refused to comply with the garnishment, contending that the account was not subject to garnishment under I.R.C. § 401(a)(13).

Plaintiff then brought this declaratory judgment action, asking that the court create an implied exception to the pension anti-alienation provisions, 29 U.S.C. § 1056(d) and 26 U.S.C. § 401(a)(13), applicable in the case of employee embezzlement. The court below denied relief, concluding that whether such an exception is warranted is a question to be addressed by Congress, not the courts. On appeal, plaintiff urges us to reverse the trial court.

Nearly identical provisions in ERISA, 29 U.S.C. § 1056(d)(1), and the Internal Revenue Code, 26 U.S.C. § 401(a)(13), require profit sharing plans to contain a provision that "benefits provided under the plan may not be assigned or alienated." General Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980). Section 7.7 of the United Metal Plan accordingly provides that "[n]o benefit under the 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." In Buha, this court held that pension or profit sharing plan benefits were not subject to garnishment. 623 F.2d 463. Nevertheless, plaintiff urges that in the case of fraud, conversion, and embezzlement, as is the case here, there is an implied exception to the anti-alienation rule.

Plaintiff relies on St. Paul Fire Marine Ins. Co. v. Cox, 752 F.2d 550 (11th Cir. 1985). Cox, a former bank president who had been convicted of criminal fraud, sought to preclude garnishment of funds held in his name in a pension and profit sharing plan. The court created a fraud exception to ERISA, holding that Congress did not intend the anti-alienation provision to create a windfall for employees who engage in criminal acts at the expense of their employers. The Eleventh Circuit concluded that there was no reason to hold that ERISA required the abrogation of the equitable principle that a wrongdoer should not benefit from his misdeeds. Id. at 552. See also Guidry v. National Sheet Metal Workers', 641 F. Supp. 360 (D.Colo. 1986) (constructive trust on pension benefits imposed in favor of union where union official embezzled union pension funds).

Defendant, on the other hand, relies on Ellis National Bank of Jacksonville v. Irving Trust Co., 786 F.2d 466 (2d Cir. 1986). The Second Circuit held that the anti-alienation provision prohibited the employer from reclaiming, through the imposition of a constructive trust, funds contributed to the employee's pension plan even though the funds represented monies derived from fraudulent practices for which the employee was convicted and for which the employer became liable to defrauded customers. The court followed the reasoning of Vink v. SHV North American Holding Corp., 549 F. Supp. 268 (S.D.N.Y. 1982), in determining that a theft or fraud exception to ERISA's anti-alienation provision would conflict with Congressional intent.

The Vink court, while recognizing that some courts had, in the past, created an exception to the anti-alienation provision in order for families to collect support obligations, distinguished those cases because they involved domestic relations, an area traditionally within the realm of state police powers. In comparison, the refusal to allow an employer to retain vested pension benefits of an employee who has been convicted of fraudulent activity in the course of his employment does not usurp any state function. 549 F. Supp. at 271. Second, while the family support exception rested on the fundamental purpose of ERISA to provide income to workers and their families, the court noted that "in no way would creating a fraud exception promote the well-being of the dependants of faithless employees whose pension benefits are taken away." Id. Third, the Vink court noted that unlike the family support exception, the fraud exception was not recommended by the Labor and Treasury Departments, "which are charged with enforcement and interpretation of ERISA and whose interpretation of the Act, though not controlling, is entitled to great weight." Id. at 272. Finally, the court recognized that there was abundant case law supporting the family support exception, but few cases accepting the fraud exception. Id.

Accordingly, the Second Circuit expressly declined to follow Cox, finding that the fraud exception adopted there undermined a fundamental purpose of ERISA to ensure that "if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit . . . he actually receives it." 786 F.2d at 471 (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 510, 101 S.Ct. 1895, 1899, 68 L.Ed.2d 402 (1981)). The court was also concerned with the scope of the proposed exception, which would likely be resolved only through a "boundless stream of suits and disputes." 786 F.2d at 471.

We find the reasoning and authority of the Second Circuit persuasive, although we would also add an additional, significant reason. While plaintiff's position is most appealing, the simple fact is that, as a policy matter, whether an exception should be created is a question for legislative rather than judicial judgment. United States v. Rutherford, 442 U.S. 544, 559, 99 S.Ct. 2470, 2479, 61 L.Ed.2d 68 (1979). Only when a literal construction of a statute yields results so manifestly unreasonable that they could not fairly be attributed to congressional design will an exception to statutory language be judicially implied. Id. at 555, 99 S.Ct. at 2477. We believe Congress could have reasonably concluded that stability and certainty of pension and profit sharing plans, as well as the avoidance of delay or non-receipt of promised benefits, are important and legitimate goals of ERISA.

We recognize that plaintiff has presented an almost ideal case for creation of an implied exception to pension anti-alienation laws. Coelho's criminal conduct reduced plaintiff's profits and thereby adversely affected her coworkers. Plaintiff now seeks access to Coelho's funds to return them to the plan for use by its loyal employees injured by Coelho's wrongdoing. Apparently, Coelho has no dependents who would be left wanting by the forfeiture of her funds and, indeed, it is unclear whether Coelho will ever appear to collect the money.

Nevertheless, while the instant case is most compelling, we can conceive of countless factual situations that would present equally persuasive opportunities to create exceptions to the anti-alienation laws. We need not limit such exceptions to cases of employee fraud; other situations could be equally convincing. It is highly unlikely, however, that the majority of those cases would present the uncomplicated facts we see here. As a result, presented with competing applicants for pension funds, courts would find themselves engaging in a sensitive balancing of factual equities and conflicting policies. While courts are undoubtedly up to the task of such balancing, we feel that the call to do so should come from Congress, and not this court.

Accordingly, we hold that there is no fraud exception to ERISA's anti-alienation provision, 29 U.S.C. § 1056(d) or to the Internal Revenue Code, 26 U.S.C. § 401(a)(13), due to an employee's fraudulent or criminal conduct directed against an employer. The judgment of the district court is AFFIRMED.