Amicus Curiae Brief — Tracy Guerin, Petitioner v. Mickey Fowler, et al.

Supreme Court briefJul 15, 2019

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No. 18-1545

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In The

Supreme Court of the United States

-----------------------------------------------------------------TRACY GUERIN,

Petitioner,

v.

MICKEY FOWLER, et al.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE STATES OF ALASKA,

IDAHO, HAWAI‘I, LOUISIANA, MONTANA,

OKLAHOMA, AND SOUTH DAKOTA

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------KEVIN G. CLARKSON

Attorney General

STATE OF ALASKA

LAURA WOLFF*

Assistant Attorney General

LAURA FOX

Assistant Attorney General

1031 W. Fourth Ave.

Suite 200

Anchorage, AK 99501

(907) 269-5100

laura.wolff@alaska.gov

*Counsel of Record

[Additional Counsel Listed On Signature Page]

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

II.

III.

The Ninth Circuit’s approval of a claim for

retroactive relief against a state contravenes Edelman v. Jordan and erodes state

sovereign immunity ...................................

4

The Ninth Circuit’s daily interest requirement challenges the legitimacy of public

pension programs nationwide ...................

9

The Ninth Circuit’s daily interest requirement conflicts with the axiom that states

can abrogate common-law rules ................ 18

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

CASES

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 5, 6

Arizona State Legislature v. Arizona

Indep. Redistricting Comm’n,

135 S. Ct. 2652 (2015) .............................................17

Bd. of Trustees of Policemen’s and Firemen’s

Retirement Fund of City of Gadsden v. Cary,

373 So.2d 841 (Ala. 1979) .......................................21

Bd. of Trustees of Pub. Emps.’ Ret. Fund v. Hill,

472 N.E.2d 204 (Ind. 1985) .....................................22

Bowles v. Wash. Dep’t of Ret. Sys.,

847 P.2d 440 (Wash. 1993) ......................................22

Brazelton v. Kansas Pub. Emps. Ret. Sys.,

607 P.2d 510 (Kan. 1980) ........................................22

Davis v. Rowe,

27 Va. 355 (6 Rand. 1828) .......................................20

Edelman v. Jordan,

415 U.S. 655 (1974) ......................................... passim

Federal Maritime Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) ............................................... 4, 5

Florida Sheriffs Ass’n v. Dep’t of Admin.,

Div. of Ret.,

408 So.2d 1033 (Fla. 1981) ......................................22

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ........................................... 4, 5

iii

TABLE OF AUTHORITIES—Continued

Page

Givens v. Ala. Dep’t of Corr.,

381 F.3d 1064 (11th Cir. 2004) ................................21

Hans v. Louisiana,

134 U.S. 1 (1890) .......................................................4

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30 (1994) ................................................. 5, 6

In re State Emps.’ Pension Plan,

364 A.2d 1228 (Del. 1976) .......................................22

Justus v. State,

336 P.3d 202 (Colo. 2014) ........................................22

Leider v. United States,

301 F.3d 1290 (Fed. Cir. 2002) .......................... 23, 24

MacLean v. State Bd. of Ret.,

733 N.E.2d 1053 (Mass. 2000) ................................22

Miller v. State,

557 P.2d 970 (Cal. 1977)..........................................21

Neilson v. Kilgore,

145 U.S. 487 (1892) .................................................20

Pennhurst State School & Hosp. v. Halderman,

465 U.S. 89 (1984) ..................................... 1, 4, 5, 6, 7

Phillips v. Wash. Legal Found.,

524 U.S. 156 (1998) ......................................... passim

Pyle v. Webb,

489 S.W.2d 796 (Ark. 1973) .....................................21

Schneider v. Cal. Dep’t of Corr.,

151 F.3d 1194 (9th Cir. 1998) ............................ 20, 24

iv

TABLE OF AUTHORITIES—Continued

Page

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) .....................................................4

Texas State Bank v. United States,

423 F.3d 1370 (Fed. Cir. 2005) ................................23

United States v. Texas,

507 U.S. 529 (1993) .................................................18

United States Shoe Corp. v. United States,

296 F.3d 1378 (Fed. Cir. 2002) ................................23

United States Trust Co. of N.Y. v. New Jersey,

431 U.S. 1 (1977) .....................................................22

Washlefske v. Winston,

234 F.3d 179 (4th Cir. 2000) ....................................21

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) .................................................18

Young v. Wall,

642 F.3d 49 (1st Cir. 2011) ......................................21

CONSTITUTIONS

Alaska Const. art. XII, § 7 ..........................................21

Ariz. Const. art. 29, § 1 ...............................................21

Ill. Const. art. 13, § 5 ..................................................22

U.S. Const. amend. V ..................................................18

U.S. Const. amend. XI ...................................................5

v

TABLE OF AUTHORITIES—Continued

Page

STATUTES

5 U.S.C. § 8331(8)(C) ...................................................17

5 U.S.C. § 8401(19)(D) .................................................17

Alaska Stat. § 14.25.145 .............................................13

Alaska Stat. § 39.35.100(b) ............................ 11, 13, 16

Alaska Stat. § 39.35.370(a)(1) ....................................11

Conn. Gen. Stat. § 5-162 .............................................11

Conn. Gen. Stat. § 5-166(b)(2) ....................................16

Conn. Gen. Stat. § 5-166(e) ................................... 11, 21

Idaho Code Ann. § 59-1302(36) ..................................11

Mass. Gen. Laws ch. 32, § 22 ......................................14

Mass. Gen. Laws ch. 32, § 22(6)(c)..............................15

Minn. Stat. § 353.34(1)(a) ..................................... 10, 21

Minn. Stat. § 353.34(2)(a) ..................................... 14, 15

Minn. Stat. § 353.34(2)(b) ...........................................16

Minn. Stat. § 354.49(2)(a) ...........................................16

N.C. Gen. Stat. § 135-1 ...............................................13

N.C. Gen. Stat. § 135-5(f ) ..................................... 10, 21

N.C. Gen. Stat. § 135-7(b) ...........................................13

N.M. Stat. Ann. § 22-11-15(A) ....................................16

NY Retire. & Soc. Sec. Law § 11(b)(4) ........................16

Ohio Rev. Code Ann. § 3307.142(A)(2) .......................14

R.I. Gen. Laws § 36-10-8 ............................................15

vi

TABLE OF AUTHORITIES—Continued

Page

S.D. Codified Laws § 3-12C-108 ........................... 13, 16

Va. Code Ann. § 51.1-147(C) .......................................13

Va. Code Ann. § 51.1-161 ...................................... 10, 21

Wis. Stat. § 40.04(4)(a)(2)–(3) .....................................13

REGULATIONS

Idaho Admin. Code § 59.01.07.101 .............................14

Wash. Admin. Code § 415-02-150(3) ..........................13

OTHER AUTHORITIES

Ala. Emps.’ Ret. Sys., ERS Member Handbook

(2013), available at https://www.rsa-al.gov/

uploads/files/ERS_Member_Handbook_T1_

bookmarked.pdf. ................................................ 12, 14

Alaska Div. of Ret. and Ben., Alaska Pub. Emps.

Ret. Sys. Info. Handbook (2011), available at

http://doa.alaska.gov/drb/pdf/pers/handbook/

2011/PERS_handbook_2011_web.pdf. ...................15

Alaska Div. of Ret. and Ben., Alaska Teachers’

Ret. Sys. Info. Handbook (2011), available at

http://doa.alaska.gov/drb/pdf/trs/handbook/

2011/TRS_handbook_2011_04_membership.

pdf ...................................................................... 12, 15

Black’s Law Dictionary (11th ed. 2019) .....................20

Fla. Ret. Sys., Pension Plan Member Handbook

(2019), available at https://www.rol.frs.state.

fl.us/forms/member_handbook.pdf .........................15

vii

TABLE OF AUTHORITIES—Continued

Page

Kan. Pub. Emps. Ret. Sys., Valuation Report as of

December 31, 2017, available at https://www.

kpers.org/valuationreport123117.pdf .....................12

Kan. Pub. Emps. Ret. Sys., Withdrawal Application, available at https://kpers.org/forms/k

withdrawalbooklet.pdf ................................ 12, 13, 14

Ky. Ret. Sys., Comprehensive Annual Financial

Report (2018), available at https://kyret.ky.

gov/Publications/Books/2018%20CAFR%20

(Comprehensive%20Annual%20Financial%20

Report).pdf......................................................... 13, 16

La. State Emps.’ Ret. Sys., Member’s Guide to

Retirement 11 (2019) available at https://lasers

online.org/wp-content/uploads/2016/07/Members

Guide2Retirement_Full.pdf ....................................15

Nat’l Pub. Pension Coalition, Public Pensions—

Frequently Asked Questions, https://protect

pensions.org/learn/pensions-frequently-askedquestions/ .......................................................... 10, 12

OPM.gov, CSRS Information, https://www.opm.gov/

retirement-services/csrs-information/ .............. 16, 17

OPM.gov, FERS Information, https://www.opm.gov/

retirement-services/fers-information/ .............. 16, 17

Pub. Emps. Ret. Ass’n of N.M., PERA Member

Handbook (2017), available at http://www.

nmpera.org/assets/uploads/forms-kits-handbooks/

2017MemberHandbook_10.2017.pdf .....................13

viii

TABLE OF AUTHORITIES—Continued

Page

S.D. Ret. Sys., Class A Handbook (2018), available at http://sdrs.sd.gov/docs/ClassAFoundation

MemberHandbook.pdf ............................................13

U.S. Census Bureau, 2017 Annual Survey of

Public Pensions: State & Local Tables, available at https://www.census.gov/data/tables/2017/

econ/aspp/aspp-historical-tables.html ................ 9, 10

1

INTEREST OF AMICI CURIAE1

Amici are the States of Alaska, Idaho, Hawai‘i,

Louisiana, Montana, Oklahoma, and South Dakota.

The amici States have a strong interest in safeguarding their sovereign immunity from suit, which

plays a vital role in our federal system. They thus have

an interest in maintaining this Court’s bright-line distinction between suits against state officers for prospective relief—which are allowed under a narrow

exception to sovereign immunity—and suits for retroactive relief—which are not.2 The Ninth Circuit’s ruling etches away that distinction and erodes state

sovereignty.

The amici States also have a strong interest in tailoring their public pension programs to fit their unique

actuarial and administrative needs. The amici States

provide public pensions to hire and retain qualified

public servants. Actuaries and pension administrators

work together to set rates and policies so that these

pensions will be properly funded and efficiently administered. In doing so, they consider when employees can

withdraw money in lieu of receiving normal pension

benefits, and whether, when, and how much interest

should be applied to such withdrawals. The Ninth

1

Timely notice was given to counsel of record pursuant to

Supreme Court Rule 37.

2

See Pennhurst State School & Hosp. v. Halderman, 465

U.S. 89, 106 (1984).

2

Circuit’s ruling undermines the legitimacy of the many

pension systems that are structured to provide interest less frequently than daily.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

The Court should grant certiorari because the

Ninth Circuit’s ruling erodes state sovereign immunity

and undermines the legitimacy of many public pension

programs throughout the country.

Every state administers public pension programs.

Pensions are funded by employee contributions, employer contributions, and returns on the investment of

those contributions. Pension payments are based on an

employee’s years of service and average salary, not her

contributions to the pension fund, so the amount an

employee contributed to the fund is usually not relevant to her pension payments. But when state law allows an employee to withdraw or transfer her

contributions instead of receiving pension payments, it

becomes necessary to know how much she can withdraw or transfer.

Some states give employees interest on their withdrawn contributions, while others do not. The states

that do give interest calculate it at different frequencies and rates.

In this case, the Ninth Circuit concluded that because daily interest is a traditional common-law rule,

employees have a constitutionally protected property

3

right to daily interest on their withdrawn or transferred contributions, notwithstanding any statecreated pension program calculating interest less

frequently. The Ninth Circuit also allowed employees

to sue the State of Washington for interest it believed

should have been earned, but was not.

This ruling weakens state sovereign immunity

and conflicts with this Court’s decision in Edelman v.

Jordan, 415 U.S. 655 (1974), by allowing a claim for

retroactive monetary relief to proceed against a state

in federal court.

This ruling also calls into question the many state

and federal pension programs that do not provide daily

interest on contribution withdrawals. In doing so, it

conflicts with the long-standing axiom that statutes

can abrogate common law rules. Although in Phillips

v. Washington Legal Foundation, 524 U.S. 156 (1998),

this Court carved out a narrow exception from that axiom by holding that interest earned on the principal

belongs to the owner of the principal, notwithstanding

state law to the contrary, this Court has never suggested that interest must be calculated daily. Nor has

this Court ever suggested that interest is owed on the

principal even if interest is never earned. Whereas the

Ninth Circuit has unduly expanded the “interest follows principal” exception, other circuits have narrowed

it. The Court should grant certiorari to resolve this

conflict and curb an onslaught of litigation challenging

the country’s many varied public pension programs.

------------------------------------------------------------------

4

ARGUMENT

I.

The Ninth Circuit’s approval of a claim for

retroactive relief against a state contravenes Edelman v. Jordan and erodes state

sovereign immunity.

The Ninth Circuit’s dismissive treatment of state

sovereign immunity directly conflicts with Edelman v.

Jordan3 and will pave the way for other creatively reframed lawsuits for damages against states. If the

relief the plaintiffs seek in this case counts as “prospective,” the Ex parte Young exception will swallow the

state sovereign immunity rule. The Court should not

allow the Ninth Circuit to erode such a fundamental

principle of federalism.

The Court has recognized the “vital role” state sovereign immunity plays in “our federal system.”4 For

“over a century” the Court has “reaffirmed that federal

jurisdiction over suits against unconsenting States

‘was not contemplated by the Constitution when establishing the judicial power of the United States.’ ”5 “After independence, the States considered themselves

fully sovereign nations,” and “ ‘[a]n integral component’ of the States’ sovereignty was ‘their immunity

from private suits.’ ”6 This is “a fundamental aspect” of

3

415 U.S. 655 (1974).

Pennhurst, 465 U.S. at 99.

5

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)

(quoting Hans v. Louisiana, 134 U.S. 1, 15 (1890)).

6

Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1493

(2019) (quoting Federal Maritime Comm’n v. S.C. State Ports

Auth., 535 U.S. 743, 751–752 (2002)).

4

5

the states’ “inviolable sovereignty” that was “well established and widely accepted at the founding.”7 “A

state’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it

may be sued.”8 Thus, sovereign immunity “largely

shields States from suit in federal court without their

consent, leaving parties with claims against a State to

present them, if the State permits, in the State’s own

tribunals.”9 The Eleventh Amendment—which confirms the states’ pre-existing immunity—was enacted

“not to change but to restore the original constitutional

design.”10

State sovereign immunity serves two principal

functions in our federal system. First, its “preeminent

purpose” is “to accord States the dignity that is consistent with their status as sovereign entities.”11 Second, it protects the states’ “financial integrity.”12 “[A]t

the time of the founding, many of the States could have

been forced into insolvency but for their immunity

from private suits for money damages.”13 And the Eleventh Amendment was adopted in response to state

fears that “federal courts would force them to pay their

7

Id.

Pennhurst, 465 U.S. at 99 (emphasis in original).

9

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39

(1994).

10

Franchise Tax Bd., 139 S. Ct. at 1493 (quoting Alden v.

Maine, 527 U.S. 706, 722 (1999)).

11

S.C. State Ports Auth., 535 U.S. at 760.

12

Alden, 527 U.S. at 750.

13

Id.

8

6

Revolutionary War debts, leading to their financial

ruin.”14 “[T]he allocation of scarce resources among

competing needs and interests lies at the heart of the

political process,” and this delicate balance “must be

reached after deliberation by the political process established by the citizens of the State, not by judicial

decree mandated by the Federal Government and invoked by the private citizen.”15 These functions of state

sovereign immunity remain as vital today as they were

at the founding.

In this case, the Ninth Circuit bypassed state sovereign immunity by shoehorning this case into the Ex

parte Young exception, which allows suits for prospective injunctive relief against state officers to stop them

from violating federal law in the future. But the Ex

parte Young exception is narrow, and this case does not

fit it.16 Allowing federal courts to stop future violations

“has been accepted as necessary to permit the federal

courts to vindicate federal rights and hold state officials responsible to” federal law.17 But the “need to

promote the supremacy of federal law must be accommodated to the constitutional immunity of the States.

This is the significance of Edelman v. Jordan.”18

14

Hess, 513 U.S. at 39 (quoting Pennhurst, 465 U.S. at 151

(Stevens, J., dissenting)).

15

Alden, 527 U.S. at 751.

16

See Pennhurst, 465 U.S. at 102 (explaining that the Ex

parte Young exception “has not been provided an expansive interpretation”).

17

Id. at 105.

18

Id.

7

Edelman v. Jordan makes clear that the Ex parte

Young exception does not allow retroactive relief to

remedy past violations of federal law.19 In Edelman,

the plaintiffs sought both prospective relief—an injunction requiring future compliance with federal time

limits for processing and paying certain benefits—and

retroactive relief—payment of past benefits wrongly

withheld.20 But the Court barred the latter claim, declining “to extend the fiction of Young to encompass

retroactive relief, for to do so would effectively eliminate the constitutional immunity of the States.”21 The

Court rejected the theory that ordering retroactive

payment of the wrongly withheld benefits was permissible because it could be characterized as “equitable

restitution” rather than “damages.”22 The Court has

since observed that “Edelman’s distinction between

prospective and retroactive relief fulfills the underlying purpose of Ex parte Young while at the same time

preserving to an important degree the constitutional

immunity of the States.”23

The Ninth Circuit’s decision upsets this careful

balance and conflicts with Edelman. If the relief sought

here counts as “prospective,” the Ex parte Young exception will swallow the sovereign immunity rule.

The plaintiffs here, just like the plaintiffs in Edelman,

19

Id. at 102–03.

Edelman, 415 U.S. at 655.

21

Pennhurst, 465 U.S. at 105.

22

Edelman, 415 U.S. at 666.

23

Pennhurst, 465 U.S. at 106.

20

8

seek not just forward-looking relief, but also backwardlooking relief. They seek correction of an alleged wrong

that happened in the past: they argue that the State of

Washington should have, but did not, credit their retirement accounts with a certain amount of interest,

and they want the federal courts to fix this. Of course,

this requested fix would happen in the future, but if

that were enough to make relief “prospective,” then

even a run-of-the-mill damages remedy would be “prospective.”

Nor is any principled distinction to be found in the

Ninth Circuit’s observation that the relief would “involve applying a computerized formula” to “electronic

records.” Pet. App. 37a. This could be said of any modern financial transaction, but the essence is the same

either way: just like the plaintiffs in Edelman, the

plaintiffs here want to be credited with money that

they believe should have been credited to them in the

past, but was not. The Ninth Circuit also does not succeed in analogizing the requested relief to the return

of cars towed and held by the State. Pet. App. 37a.

Here, it is undisputed that the interest the plaintiffs

seek was never either in their possession or credited to

their accounts. The plaintiffs thus are not asking the

State to “return” their “towed cars”—they are asking

the State to give them new cars that they believe they

should have been given in the past but have never actually possessed. Such relief is undeniably retroactive,

is indistinguishable from classic monetary damages,

and is thus barred by state sovereign immunity under

Edelman.

9

Edelman’s limit on the scope of the Ex parte Young

exception is far more administrable and respectful of

the states’ vital sovereignty if maintained as a clear

line between prospective and retroactive relief. The

Court should grant review to reinforce this line.

II.

The Ninth Circuit’s daily interest requirement challenges the legitimacy of public

pension programs nationwide.

The states’ status as “sovereign entities” gives

them not only immunity from suit, but also the power

to govern themselves, including by creating and administering public pension systems as they see fit. The

Ninth Circuit’s rule unduly restricts that freedom and

will—as Judge Bennett’s dissent observes—“cast significant doubt on the legitimacy of retirement systems

administered by numerous states and the federal government that apportion interest less frequently than

daily.” Pet. App. 21a. The Court should settle this issue

now to curb an onslaught of litigation challenging the

country’s many varied public pension programs.

There are nearly 300 state pension systems.24

Over 20 million people are members of state

24

U.S. Census Bureau, 2017 Annual Survey of Public Pensions: State & Local Tables, available at https://www.census.gov/

data/tables/2017/econ/aspp/aspp-historical-tables.html.

10

pensions.25 In 2017, state pensions paid out $6.23 billion in withdrawals.26

Each state administers its pension programs differently, but the frameworks are the same. Employees

all contribute portions of their paychecks towards a

pension fund; employers make contributions as well;

those contributions are transmitted to the state, or an

arm of the state; the state invests those contributions

in a diversified investment fund; and that fund is used

to pay pensions to eligible retirees.27

In general, an employee cannot simply withdraw

or transfer her contributions at will—rather, states

dictate if, how, and when contributions may be withdrawn. For example, when employee contributions are

mandatory, an employee cannot withdraw her contributions until her employment ceases.28 And some pension programs do not allow an employee to withdraw

25

Id.

Id. This represents approximately two percent of total payments from state pensions that year. Id.

27

See Nat’l Pub. Pension Coalition, Public Pensions—Frequently Asked Questions, https://protectpensions.org/learn/pensionsfrequently-asked-questions/ (last visited July 9, 2019).

28

See, e.g., Minn. Stat. § 353.34(1)(a) (“Application for a refund may not be made before the date of termination of public

service.”); N.C. Gen. Stat. § 135-5(f ) (permitting return of accumulated contributions after employment ceases and upon application for a refund); Va. Code Ann. § 51.1-161 (permitting refunds

for members who are no longer employed).

26

11

her contributions at all once she becomes eligible for

retirement.29

Although the purpose of pensions is to provide a

steady stream of income for retirees, many employees

choose to withdraw their contributions instead of receiving pensions. Withdrawing contributions is often

the most prudent option for employees who did not

work enough years to become eligible to receive pensions.30 Some members who would otherwise be eligible for pensions prefer to withdraw their contributions

and invest the money themselves. Others choose lumpsum payouts in the face of financial hardships. And

others, like the Washington employees in this case,

choose to transfer their contributions from one statesponsored retirement plan to another. Pet. 9.

Although all contributions to a pension fund are

pooled and invested together, states keep track of each

employee’s individual contributions for accounting

purposes.31 Once an eligible retiree begins receiving

29

See, e.g., Conn. Gen. Stat. § 5-166(e) (“A member who is

eligible for retirement when he leaves state service may not elect

to withdraw his retirement contributions in lieu of receiving retirement income payments at such time as they are payable . . . .”).

30

See, e.g., Alaska Stat. § 39.35.370(a)(1) (requiring five

years of service before becoming eligible for pension); Idaho Code

Ann. § 59-1302(36) (defining “vested member” as member with at

least five years of service); Conn. Gen. Stat. § 5-162 (requiring ten

years of state service to retire between the ages of 55 and 65 and

receive monthly retirement income).

31

See, e.g., Alaska Stat. § 39.35.100(b) (requiring maintenance of individual account to record employee’s mandatory contributions); Kan. Pub. Emps. Ret. Sys., Valuation Report as of

December 31, 2017, 13 (describing plan that requires keeping “a

12

periodic pension payments, the amount she contributed to the fund usually becomes irrelevant because

her benefits are calculated based on her salary and

years of service, not her past contributions.32 But if an

employee withdraws or transfers her contributions,

the state needs to know how much she contributed.

Sometimes states credit interest to individual employee contribution accounts so that when an employee

withdraws or transfers her contributions, she also receives accrued interest on them—but whether, when,

and how much interest accrues varies from state to

state, and even within states. Over a dozen states

credit interest on individual accounts less frequently

than daily. Some states, like Alabama, Alaska, Kansas,

Kentucky, New Mexico, North Carolina, South Dakota,

Virginia, and Wisconsin credit interest annually.33

hypothetical account” for each member with employee contribution credits, employer pay credits, and interest credits), available

at https://www.kpers.org/valuationreport123117.pdf.

32

Nat’l Pub. Pension Coalition, Public Pensions—Frequently

Asked Questions, https://protectpensions.org/learn/pensions-frequentlyasked-questions/ (last visited July 9, 2019).

33

Ala. Emps.’ Ret. Sys., ERS Member Handbook 9 (2013)

(“[I]nterest is credited on the previous year’s average balance at

the rate of four percent per annum.”), available at https://www.

rsa-al.gov/uploads/files/ERS_Member_Handbook_T1_bookmarked.

pdf; Alaska Div. of Ret. and Ben., Alaska Teachers’ Ret. Sys. Info.

Handbook 6 (2011) (posting to employee contribution accounts 4.5

percent interest, compounded annually, on July 31), available

at http://doa.alaska.gov/drb/pdf/trs/handbook/2011/TRS_

handbook_2011_04_membership.pdf; Kan. Pub. Emps. Ret. Sys.,

Withdrawal Application 3 (“KPERS 1 & KPERS 2 members: Interest is credited annually on June 30. If you withdraw before

June 30, you will not receive your interest for the current year.”),

13

States like Alaska and Kansas, which administer multiple types of pension plans, credit interest at different

frequencies, depending on the plan.34 Other states, like

Washington, credit interest quarterly.35 Minnesota applies interest only “to the first day of the month in

available at https://kpers.org/forms/kwithdrawalbooklet.pdf;

Ky. Ret. Sys., Comprehensive Annual Financial Report 37 (2018)

(“Interest is paid each June 30 on members’ accounts at a rate

of 2.5%.”), available at https://kyret.ky.gov/Publications/

Books/2018%20CAFR%20(Comprehensive%20Annual%20Financial

%20Report).pdf; Pub. Emps. Ret. Ass’n of N.M., PERA Member

Handbook 11 (2017) (“Each year, interest on your employee contributions is credited to your account balance as of June 30.”),

available at http://www.nmpera.org/assets/uploads/forms-kitshandbooks/2017MemberHandbook_10.2017.pdf; N.C. Gen. Stat.

§§ 135-1 (defining “accumulated contribution” as compensation

deductions accredited to member’s individual account plus “regular interest”), 135-7(b) (crediting regular interest annually); S.D.

Codified Laws § 3-12C-108; S.D. Ret. Sys., Class A Handbook 7–

8 (2018) (“For administrative efficiencies, interest is credited annually on June 30.”), available at http://sdrs.sd.gov/docs/ClassA

FoundationMemberHandbook.pdf; Va. Code Ann. § 51.1-147(C)

(interest accrues annually and is credited annually to members’

contribution accounts); Wis. Stat. § 40.04(4)(a)(2)–(3) (crediting

interest on Dec. 31).

34

See, e.g., Kan. Pub. Emps. Ret. Sys., Withdrawal Application 3 (KPERS 1 & KPERS 2 credited annually; KPERS 3 credited

quarterly), available at https://kpers.org/forms/kwithdrawalbooklet.

pdf; Alaska Stat. § 39.35.100(b) (crediting interest to public employee contribution accounts semi-annually); Alaska Stat.

§ 14.25.145 (crediting interest to teacher contribution accounts

annually).

35

See, e.g., Wash. Admin. Code § 415-02-150(3).

14

which the refund is processed.”36 And Idaho and Massachusetts credit interest on a monthly basis.37

Some states limit whether and when they refund

any interest at all on contributions that an employee

withdraws or transfers. For instance, Alabama does

not refund any interest on contributions if an employee

works less than three years.38 Alabama credits interest

to individual employee contribution accounts, but

when an employee withdraws her contributions—even

if that employee worked more than three years—Alabama does not refund the full amount of interest credited.39 In Kansas, when an employee ceases service

before she has worked enough years to become eligible

for regular pension payments, interest accrues for either two or five years after the end of her employment,

depending on her pension plan, but then stops accruing.40 Ohio credits interest to teachers’ retirement accounts, but only when teacher contributions are

refunded at retirement.41 And some states, such as

36

Minn. Stat. § 353.34(2)(a).

Idaho Admin. Code § 59.01.07.101 (“Regular interest . . .

shall accrue to and be credited monthly to a member’s accumulated contributions.”); Mass. Gen. Laws ch. 32, § 22 (interest on

“completed months”).

38

Ala. Emps.’ Ret. Sys., ERS Member Handbook 7, 9 (2013),

available at https://www.rsa-al.gov/uploads/files/ERS_Member_

Handbook_T1_bookmarked.pdf.

39

Id. (correlating the percentage of credited interest that an

employee is refunded with the employee’s years of service).

40

Kan. Pub. Emps. Ret. Sys., Withdrawal Application 3,

available at https://www.kpers.org/forms/kwithdrawalbooklet.pdf.

41

Ohio Rev. Code Ann. § 3307.142(A)(2).

37

15

Florida, Louisiana, and Rhode Island, provide no interest at all when refunding contributions.42

Not only do states vary in whether and how often

they provide interest on employee contributions, but

they also vary in how often they compound interest.

Some states compound interest when they credit interest to individual accounts.43 But other states—like

Massachusetts and Minnesota, which credit interest

on a monthly basis—compound interest annually.44

42

See, e.g., Fla. Ret. Sys., Pension Plan Member Handbook

22 (2019) (“Your refund will not include contributions made by

your employer, nor will it include interest earnings.”), available

at https://www.rol.frs.state.fl.us/forms/member_handbook.pdf;

La. State Emps.’ Ret. Sys., Member’s Guide to Retirement 11

(2019), (“Accumulated contributions include all employee contributions paid by a member, excluding interest paid on the repayment of a refund.”), available at https://lasersonline.org/wpcontent/uploads/2016/07/MembersGuide2Retirement_Full.pdf;

R.I. Gen. Laws § 36-10-8 (“A member who withdraws from service

or ceases to be a member for any reason other than death or retirement shall be paid on demand a refund consisting of the accumulated contributions standing to his or her credit in his or her

individual account, without interest.”).

43

See, e.g., Alaska Div. of Ret. and Ben., Alaska Teachers’

Ret. Sys. Info. Handbook 6 (2011) (posting interest, compounded

annually, to employee contribution accounts on July 31), available at http://doa.alaska.gov/drb/pdf/trs/handbook/2011/TRS_

handbook_2011_04_membership.pdf; Alaska Div. of Ret. and

Ben., Alaska Pub. Emps. Ret. Sys. Info. Handbook 6 (2011) (posting interest, compounded semi-annually, to employee contribution account on June 30 and December 31), available at

http://doa.alaska.gov/drb/pdf/pers/handbook/2011/PERS_handbook_

2011_web.pdf.

44

See, e.g., Mass. Gen. Laws ch. 32, § 22(6)(c); Minn. Stat.

§ 353.34(2)(a).

16

States also vary the interest rates that they apply.45

And those rates can vary from year to year.46

Just as states have their own individual methods

for administering their pension systems, so too does

the federal government. The federal government administers two different pension systems: the Civil Service Retirement System and the Federal Employees

Retirement System. Retired and vested members of

both systems may receive a pension based on their

earnings and years of service.47

45

See, e.g., Alaska Stat. § 39.35.100(b) (giving Alaska Retirement Management Board discretion to determine rate of interest); Conn. Gen. Stat. § 5-166(b)(2) (crediting interest for

withdrawals at a rate of five percent per year, and for a partial

year at a rate of five-twelfths of one percent multiplied by the full

number of months completed during that year); Ky. Ret. Sys.,

Comprehensive Annual Financial Report 37 (2018) (paying interest annually at a rate of 2.5 percent), available at https://kyret.ky.

gov/Publications/Books/2018%20CAFR%20(Comprehensive%20

Annual%20Financial%20Report).pdf; N.M. Stat. Ann. § 22-1115(A) (giving Educational Retirement Board discretion in setting

interest rate for refunds).

46

See, e.g., S.D. Codified Laws § 3-12C-108 (requiring Board

each year to set rate of interest applicable to withdrawals); Minn.

Stat. §§ 353.34(2)(b), 354.49(2)(a) (providing for different annual

compound interest rates on refunds during different years); NY

Retire. & Soc. Sec. Law § 11(b)(4) (requiring comptroller to engage

an actuary to promulgate rates of interest at least every five

years).

47

OPM.gov, CSRS Information: Computation, https://www.opm.

gov/retirement-services/csrs-information/computation/ (last visited

July 9, 2019); OPM.gov, FERS Information: Computation, https://

www.opm.gov/retirement-services/fers-information/computation/

(last visited July 9, 2019).

17

Alternatively, federal employees can withdraw

their contributions in lieu of receiving a pension.48

When an employee under the Federal Employees Retirement System chooses to withdraw contributions instead of receiving a pension, the federal government

provides interest, compounded annually, but does not

include interest if an employee worked a year or less,

and no interest is included for a fractional part of a

month that an employee worked.49 When an employee

under the Civil Service Retirement System receives a

refund of contributions, the federal government includes interest only if the employee worked more than

one but less than five years.50

The variety of public pension programs in the

United States exemplifies this Court’s recognition that

states are “laboratories” of experimentation.51 The

Court should grant review because the Ninth Circuit’s

rule strips states of the power to choose how to administer their own pension systems and calls into question

many pension systems throughout the country.

48

OPM.gov, FERS Information: Former Employees, https://

www.opm.gov/retirement-services/fers-information/former-employees/

(last visited July 9, 2019); OPM.gov, CSRS Information: Former

Employees, https://www.opm.gov/retirement-services/csrs-information/

former-employees/ (last visited July 9, 2019).

49

5 U.S.C. § 8401(19)(D).

50

5 U.S.C. § 8331(8)(C); see also OPM.gov, CSRS Information: Former Employees, https://www.opm.gov/retirement-services/

csrs-information/former-employees/ (last visited July 9, 2019).

51

See Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015).

18

III. The Ninth Circuit’s daily interest requirement conflicts with the axiom that states

can abrogate common-law rules.

The Court has repeatedly acknowledged that a

statute may abrogate a common-law rule.52 The Court

carved out a narrow “interest follows principal” exception to that general axiom in Phillips v. Washington Legal Foundation,53 but the Ninth Circuit’s daily interest

requirement unduly broadens this exception. The

Ninth Circuit’s decision (1) ignores the Court’s instruction in Phillips that states have discretion in determining how interest is earned, (2) disregards the broader

axiom that states may generally abrogate common-law

rules, and (3) conflicts with other circuits’ narrow interpretations of Phillips.

First, the Ninth Circuit’s mandatory daily interest

requirement conflicts with the very case it relies on—

Phillips v. Washington Legal Foundation. In that case,

the Court considered whether interest earned on client

funds held in lawyers’ trust accounts was “private

property” subject to the Takings Clause of the Fifth

Amendment.54 The Court concluded that states may

not “legislatively abrogat[e] the traditional rule that

‘earnings of a fund are incidents of ownership of the

fund itself and are property just as the fund itself is

property.’ ”55 The Court held that “the interest that does

52

See, e.g., United States v. Texas, 507 U.S. 529, 534 (1993).

524 U.S. 156 (1998).

54

Id.

55

Id. at 167 (quoting Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 164 (1980)).

53

19

accrue attaches as a property right incident to the ownership of the underlying principal.”56 In other words,

“interest follows principal.”57 But the Court also explicitly recognized that “the government has great latitude

in regulating the circumstances under which interest

may be earned.”58 That “great latitude” gives states

discretion in regulating when, how, and at what rate

interest accrues. The Ninth Circuit’s decision removes

this discretion.

Second, the Ninth Circuit’s expansive view of Phillips’ “interest follows principal” exception eviscerates

the general axiom that states can abrogate common

law rules by statute. This Court has not extended the

“interest follows principal” exception beyond Phillips.

And it has not articulated what other “traditional

rules,” if any, might be immune to legislative change.

The Ninth Circuit concluded that “core” property

rights that cannot be abrogated by statute include

rights that are “deeply ingrained in our common law

tradition.” Pet. App. 34a. And because daily interest

has an “impressive common law pedigree,” the Ninth

Circuit considered daily interest to be one of those

“core” property rights. Pet. App. 34a. But that a commonlaw property right is old cannot be the sole measure for

whether it can be abrogated. Legislation has abrogated

numerous ancient common-law property rights, such

as primogeniture—“the common-law right of the

56

Phillips, 524 U.S. at 168 (emphasis in original).

Id. at 165.

58

Id.

57

20

firstborn son to inherit his ancestor’s estate”59—and a

husband’s right to his wife’s estate upon marriage.60

Moreover, as the Petition points out, nearly every state

has abrogated the common-law right to daily interest

as applied to successive interests. Pet. 23.

Third, in contrast to the Ninth Circuit, other circuits have given proper attention to context, and narrowly construed Phillips’ “interest follows principal”

exception to the general axiom that states can abrogate common-law rules. This is best illustrated in cases

concerning whether the interest earned on prison inmate trust accounts belongs to prisoners. Pet. 20 n.6.

The Ninth Circuit has held that prisoners have a right

to the interest on their accounts, applying Phillips’ “interest follows principal” exception without considering

the idiosyncratic context that prison presents.61 But

the three other circuits to have considered this same

issue have paid careful attention to the context of the

59

Black’s Law Dictionary (11th ed. 2019) (non-paginated

electronic version) (defining “primogeniture” and dating the term

to the fifteenth century); see Davis v. Rowe, 27 Va. 355 (6 Rand.

1828) (recognizing that the 1785 Act of Descents abrogated the

common law course of descents).

60

Neilson v. Kilgore, 145 U.S. 487, 491 (1892) (“The relation

of husband and wife is therefore formed subject to the power of

the state to control and regulate both that relation and the property rights directly connected with it, by such legislation as does

not violate those fundamental principles which have been established for the protection of private and personal rights against illegal interference.”).

61

See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1201

(9th Cir. 1998).

21

property right.62 Instead of looking at trust accounts

generally, they analyzed prisoners’ rights at common

law, and concluded that the common-law rule that “interest follows principal” does not apply to prisoners,

who have historically had lesser property rights.63

Here, as in the prisoner’s trust account case, the

Ninth Circuit has again disregarded context in applying Phillips’ “interest follows principal” exception. The

Ninth Circuit failed to consider that an employee’s

right to withdraw her contributions at all is limited by

statute—otherwise, her right is only to receive pension

benefits upon attaining eligibility.64 The right to receive interest on withdrawn contributions—much less

daily interest—derives from the limited right to withdraw contributions, and can likewise be limited by

statute.

The Ninth Circuit’s daily interest requirement

also disregards the contractual nature of pensions.65

62

See Young v. Wall, 642 F.3d 49 (1st Cir. 2011); Givens v.

Ala. Dep’t of Corr., 381 F.3d 1064 (11th Cir. 2004); Washlefske v.

Winston, 234 F.3d 179 (4th Cir. 2000).

63

Id.

64

See supra notes 28–29.

65

See, e.g., Bd. of Trustees of Policemen’s and Firemen’s Retirement Fund of City of Gadsden v. Cary, 373 So.2d 841, 842 (Ala.

1979) (per curiam) (analogizing compulsory pension system to a

unilateral contract); Ariz. Const. art. 29, § 1 (“Membership in public retirement system is a contractual relationship . . . .”); Alaska

Const. art. XII, § 7 (“Membership in employee retirement systems

of the State or its political subdivisions shall constitute a contractual relationship.”); Pyle v. Webb, 489 S.W.2d 796, 798 (Ark. 1973)

(calling teacher pension program a contract between teacher and

State); Miller v. State, 557 P.2d 970, 974 (Cal. 1977) (“[P]ension

22

When a person enters into an employment contract, he

agrees to the terms of employment. When a state offers

employment that includes a mandatory employeecontribution pension program, the state offers the

opportunity to receive a pension in exchange for contributions and fulfillment of a certain number of years

of state service.66 Although employees have a limited

right to withdraw their contributions if they do not receive a pension, any interest—and when that interest

is credited and compounded and at what rate—is a

laws . . . establish contractual rights.”); Justus v. State, 336 P.3d

202, 211 (Colo. 2014) (distinguishing parts of pension statutes

that create contractual right from parts of pension statutes that

do not); In re State Emps.’ Pension Plan, 364 A.2d 1228, 1234 (Del.

1976) (discussing that participation in pension creates contractual relationship between the State, as the employer, and the employee); Florida Sheriffs Ass’n v. Dep’t of Admin., Div. of Ret., 408

So.2d 1033, 1036 (Fla. 1981) (discussing contractual relationship

established by retirement statutes); Ill. Const. art. 13, § 5 (membership in pension system creates contractual relationship); Bd.

of Trustees of Pub. Emps.’ Ret. Fund v. Hill, 472 N.E.2d 204 (Ind.

1985) (concluding judge’s participation in retirement fund created

contract); Brazelton v. Kansas Pub. Emps. Ret. Sys., 607 P.2d 510,

514 (Kan. 1980) (recognizing that members of retirement systems

have contractual rights based on retirement statutes); MacLean

v. State Bd. of Ret., 733 N.E.2d 1053, 1058 (Mass. 2000) (recognizing a “relaxed” contract that arises in the context of pension

benefit plans); Bowles v. Wash. Dep’t of Ret. Sys., 847 P.2d 440,

446 (Wash. 1993) (“[P]ublic employee pension rights are contractual in nature.”).

66

See United States Trust Co. of N.Y. v. New Jersey, 431 U.S.

1, 17 n.14 (1977) (“In general, a statute is itself treated as a contract when the language and circumstances evince a legislative

intent to create private rights of a contractual nature enforceable

against the State.”).

23

product of contract. And contracts need not track the

common law.

The idea that there is always a property right to

interest—daily or otherwise—regardless whether interest is earned also conflicts with the Federal Circuit’s

interpretation of Phillips’ “interest follows principal”

exception. Phillips did not hold that a person always

has a right to receive interest on a principal sum that

is held by another. Rather, the Court stressed that “the

interest that does accrue attaches as a property right

incident to the ownership of the underlying principal.”67 Following Phillips, the Federal Circuit has repeatedly held that there is no property right to

“interest” on a non-interest bearing account.68 For instance, in Leider v. United States,69 the Federal Circuit

concluded that a creditor in a bankruptcy proceeding

did not have a property right to interest that “never

was generated.”70 In that case, a creditor failed to cash

his check for a distributive share, and the uncashed

check was returned to the bankruptcy court and

67

524 U.S. at 168 (emphasis in original).

See, e.g., Texas State Bank v. United States, 423 F.3d 1370,

1380 (Fed. Cir. 2005) (concluding that Texas State lacked a property interest in a share of the earnings generated by its mandated

reserves in the Federal Reserve); United States Shoe Corp. v.

United States, 296 F.3d 1378, 1384 (Fed. Cir. 2002) (concluding

that exporter had no private right to interest on tax refund, reasoning that “[f]or the accrued interest to rise to the level of private

property, the principal must be held in an identified private account”); Leider v. United States, 301 F.3d 1290 (Fed. Cir. 2002).

69

301 F.3d 1290 (Fed. Cir. 2002).

70

Id. at 1297.

68

24

deposited with the United States.71 When the creditor

petitioned the bankruptcy court for his money two

years later, he received his distributive share, but no

interest.72 He sued, arguing that the government’s failure to pay interest constituted a taking.73 The Federal

Circuit concluded that “because there existed no interest, there was nothing that could be taken.”74

By contrast, the Ninth Circuit’s ruling here suggests that interest must accrue in the first place. The

Ninth Circuit has previously espoused this idea of

“constructive interest.”75 But the fact that states track

employee contributions to pension funds and sometimes pay interest when contributions are withdrawn

does not mean that the contributions actually earn interest. Employee contributions are pooled and invested. The pooled funds grow as the investments grow.

But no interest—much less daily interest—is earned

on the contributions. Nonetheless, according to the

Ninth Circuit, and in conflict with the Federal Circuit,

employees have a property right to interest that constructively should have been earned. Reading the

Ninth Circuit’s decision in this case in any other way

would lead to an absurd result: it would permit a state

to circumvent the Ninth Circuit’s mandatory daily interest rule simply by providing no interest at all.

71

Id. at 1293.

Id.

73

Id. at 1297.

74

Id.

75

Schneider, 151 F.3d 1201.

72

25

The Ninth Circuit’s broad expansion of the “interest follows principal” exception to the general axiom

that states may abrogate common-law rules is untethered from context and diverges from other circuits’

more nuanced, contextually-based understanding of

Phillips.

------------------------------------------------------------------

CONCLUSION

For these reasons, this Court should grant the petition.

Respectfully submitted,

KEVIN G. CLARKSON

Attorney General

STATE OF ALASKA

LAURA WOLFF*

Assistant Attorney General

LAURA FOX

Assistant Attorney General

1031 W. Fourth Ave.

Suite 200

Anchorage, AK 99501

(907) 269-5100

laura.wolff@alaska.gov

*Counsel of Record

26

LAWRENCE G. WASDEN

Attorney General

STATE OF IDAHO

P.O. Box 83720

Boise, ID 83720-0010

CLARE E. CONNORS

Attorney General

STATE OF HAWAI‘I

425 Queen Street

Honolulu, HI 96813

JEFF LANDRY

Attorney General

STATE OF LOUISIANA

1885 North Third Street

Baton Rouge, LA 70802

TIMOTHY C. FOX

Attorney General

STATE OF MONTANA

215 N. Sanders

P.O. Box 201401

Helena, MT 59620

MIKE HUNTER

Attorney General

STATE OF OKLAHOMA

313 NE 21st Street

Oklahoma City, OK 73105

JASON RAVNSBORG

Attorney General

STATE OF SOUTH DAKOTA

1302 E. Hwy. 14, Suite 1

Pierre, SD 57501

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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