Amicus Curiae Brief — The ERISA Industry Committee, Petitioner v. City of Seattle, Washington

No. 21-1019

IN THE

Supreme Court of the United States

THE ERISA INDUSTRY COMMITTEE,

Petitioner,

v.

CITY OF SEATTLE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Counsel for Amicus Curiae

John Pagliaro, Staff Attorney

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

150 Lincoln Street, Unit 6B

Boston, Massachusetts 02111

Telephone: (617) 695-3660

jpagliaro@nelfonline.org

Dated: February 18, 2022

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

Table of Authorities ....................................................ii

Interest of Amicus Curiae........................................... 1

Summary of Reasons for Granting the Petition ........ 2

Reasons for Granting the Petition.............................. 3

I.

The Issue Is One Of Urgent National

Importance ..................................................... 3

II.

The Decision Below Was Wrongly

Decided Because It Relied On The

Presumption Against Pre-emption ............... 8

A.

The City and the Lower Courts Put

the Presumption at Issue ...................... 8

B.

The Presumption Has No

Application when Pre-emption is

Express................................................. 10

Conclusion ................................................................. 13

i

TABLE OF AUTHORITIES

Cases

California Div. of Labor Standards Enforcement

v. Dillingham Constr., N. A., Inc.,

519 U.S. 316 (1997) ..........................................6

Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992) .................................12, 13

Coventry Health Care of Missouri, Inc.

v. Nevils, 137 S.Ct. 1190 (2017) .......................6

District of Columbia v. Greater Washington Bd. of

Trade, 506 U.S. 125 (1992) .......................... 6-7

Egelhoff v. Egelhoff ex rel. Breiner,

532 U.S. 141 (2001) ........................................11

English v. General Electric Co.,

496 U.S. 72 (1990) ......................................6, 11

ERISA Industry Comm. v. City of Seattle,

2020 WL 2307481,

(W.D. Wash. May 5, 2020)................................8

ERISA Industry Comm. v. City of Seattle,

840 Fed. Appx. 248 (9th Cir. 2021)..................9

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)........10

Gobeille v. Liberty Mut. Ins. Co.,

577 U.S. 312 (2016) ..................................3, 7, 9

Golden Gate Restaurant Ass’n v. City and Cty. of

San Francisco, 546 F.3d 639

(9th Cir. 2008)...............................................5, 9

ii

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ........................10

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) ..........................................6

Puerto Rico v. Franklin California Tax-Free Trust,

579 U.S. 115 (2016) ....................................9, 11

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) ..................................10, 11

Rutledge v. Pharmaceutical Care Mgmt. Ass’n,

141 S. Ct. 474 (2020) ........................................7

Shaw v. Delta Air Lines, Inc.

463 U.S. 85 (1983) ..........................................11

South Carolina v. Baker, 485 U.S. 505 (1988) .........13

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) ..............10

Statutes

29 U.S.C. §1144(a).......................................................3

Other

Brief of Amici Curiae City and County of San

Francisco et al., No. 20-35472,

2020 WL 6682044, (Nov. 4, 2020) ............ 4-5, 8

Nelson, Caleb, Preemption,

86 Va. L. Rev. 225 (2000) .........................12, 13

Response Brief of Defendant-Appellee, No. 20-35472,

2020 WL 6531093, (Oct. 28, 2020)...................8

Response Brief of Defendant-Appellee, No. 20-35472,

Docket Entry 62, (July 15, 2021) .....................4

iii

Scalia, Antonin & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ....... 12

iv

INTEREST OF AMICUS CURIAE1

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm

incorporated in Massachusetts in 1977 and

headquartered in Boston. Its membership consists

of corporations, law firms, individuals, and others

who believe in NELF’s mission of promoting

balanced economic growth in New England and the

nation, protecting the free-enterprise system, and

defending individual economic rights and the rights

of private property. In fulfillment of its mission,

NELF has filed numerous amicus briefs in this

Court in a great variety of cases.

NELF appears as an amicus here because it

believes that the Petition presents an issue of

singular national importance. NELF therefore urges

this Court to grant certiorari. The ERISA preemption issues presented to the Court in this case

are of the utmost importance to businesses and other

covered employers because the regulatory uniformity

provided by ERISA’s broad, express pre-emption

provision ensures that multi-state and national

employers who offer ERISA-covered plans may do so

in a cost-effective and efficient manner.

This

uniformity enables employers to extend healthcare

coverage and other employee benefits to workers

111

Pursuant to Supreme Court Rule 37.6, NELF states that no

party or counsel for a party authored this brief in whole or in

part and no person or entity other than NELF made any

monetary contribution to its preparation or submission.

Pursuant to Supreme Court Rule 37.2(a), NELF has given

timely 10 days notice to Paul Clement, counsel of record for

Petitioner, as noted in the latter’s February 4th letter to the

Court; on behalf of Petitioner, Attorney Clement has also filed

a blanket consent to the filing of amicus briefs. On February 7,

undersigned counsel sent an email to Respondent’s counsel to

give notice and ask consent. On February 9, counsel responded

by email and granted consent.

without regard to their place of residence or

employment. The ordinance at issue here disrupts

congressionally mandated ERISA uniformity. If the

decision below is not corrected, the ordinance will

serve as a model to cities and towns throughout the

country, further jeopardizing the operation of ERISA

as envisioned by Congress.

NELF has therefore filed this brief to assist the

Court in deciding whether to grant certiorari in this

important case.

SUMMARY OF REASONS FOR

GRANTING THE PETITION

Lower courts do not agree on whether play-or-pay

laws, like the Seattle ordinance in this case, are preempted by ERISA. Continued uncertainty will prove

costly to covered employers and disruptive to their

ERISA plans. As it has in the past, the Court should

resolve the uncertainty surrounding this question

before State laws of questionable legality spring up

throughout the nation and disrupt the uniformity of

thousands of ERISA plans.

The decision below erroneously relied on a

presumption against pre-emption in favor of State

laws that are exercises of the police power in

“traditional” areas of State regulation.

The

presumption should not be adopted when, as here,

pre-emption is express. As this case reveals, the

presumption remains so ingrained in courts that

only the clearest statement of this Court will end its

misuse.

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REASONS FOR

GRANTING THE PETITION

I. The Issue Is One

Importance.

Of

Urgent National

In enacting ERISA Congress sought to achieve

the goals of uniformity and affordability in employer

benefit plans as regards both their regulation and

administration. The ruling of the lower court here

undermines these goals. If the Seattle ordinance

upheld below is not invalidated by this Court, the

ordinance will surely become a model for other local

governments to enact similar laws, greatly eroding

Congress’s twin goals nationwide.

Only a few years ago this Court observed of the

effects that would flow from such a disruption of the

uniformity so key to ERISA:

Requiring ERISA administrators to

master the relevant laws of 50 States and

to contend with litigation would

undermine the congressional goal of

minimizing the administrative and

financial burdens on plan administrators

—burdens ultimately borne by the

beneficiaries.

Gobeille v. Liberty Mutual Ins. Co., 577 U.S. 312, 321

(2016) (cleaned up).

Hence, in Gobeille, the Court ruled that “ERISA’s

express pre-emption clause require[d] invalidation

. . . [of a] state statute [that] imposes duties that are

inconsistent with the central design of ERISA.” Id.

at 326. See 29 U.S.C. §1144(a). The fact that the

law in question might impose requirements

“parallel” to those of ERISA itself did not alter the

result. Gobeille, 577 at 326-27.

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Because of the strong likelihood that the Seattle

ordinance will serve as a model for other local playor-pay laws, the question of the correctness of the

decision below is of urgent national significance and

should be determined now. The decision below

therefore amply warrants review by this Court.

In its attempt to defeat en banc review, the City

sought to downplay the significance of the decision,

however. Despite receiving the enthusiastic amicus

support of eight local governments (cities and

counties) from across the nation, the City declared to

the court of appeals that it is “purely speculative

whether any of these cities will enact legislation that

might be subject to ERISA preemption challenges.”

Response Brief of Defendant-Appellee, No. 20-35472,

Docket Entry 62, at 13 (July 15, 2021). The City

concluded, “Such speculation does not create an

issue of national importance.” Id.

NELF begs to disagree.

The City calls it

“speculative”; NELF calls it the handwriting on the

wall. The amici local governments could barely

contain their enthusiasm for Seattle’s victory in this

case, and they made no secret of their intention to

follow in that city’s footsteps. “[S]uch ordinances,”

they told the Ninth Circuit, “play an integral role in

the well-being of a locality’s residents and the

management of the healthcare costs these localities

bear[.]” Brief of Amici Curiae City and County of

San Francisco et al., No. 20-35472, 2020 WL

6682044, at *1-2 (Nov. 4, 2020). For that reason,

they informed the appeals court, “[m]unicipalities

across the country have studied the San Francisco

model,” which “paved the way for [the] Seattle

Municipal Code” ordinance. Id. at *1, 29. They

assured the court of appeals that “more [cities] will

pursue

innovative

experiments

in

social

responsibility like [that of San Francisco].” Id. at

*29. In their closing words, the amici themselves

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directly tied these emerging local reforms to the fate

of this case, telling the court, “Invalidating Seattle’s

ordinance, as ERIC proposes, would devastate these

reform efforts . . . . in amici’s jurisdictions.” Id. (also

noting four other major cities interested in such

reform).

Not only can the effects of the decision below not

be contained geographically or by jurisdiction, they

also cannot be confined to only certain industries.

Here hotels and a variety of businesses “ancillary” to

hotels are affected, but the decision below did not

depend on features unique to those industries.

Indeed, the lower courts relied on Golden Gate

Restaurant Ass’n v. City and Cty. of San Francisco,

546 F.3d 639 (9th Cir. 2008), a case involving a playor-pay law imposed on restaurants.

The

consequences of this case are therefore especially

troubling because they are doubly far-reaching,

extending both across the nation and across

industries.

In addition, this Court can scarcely overlook the

fact that this important issue comes before it at a

pivotal moment for the economy. Over the past two

years countless businesses in many industries have

been financially strained close to the breaking point

by the highly restrictive protocols put in place in

response to the pandemic. Many now seem to be

enjoying a fragile recovery from sharply curtailed

operations and diminished bottom lines. Under the

circumstances, new, costly local laws like the Seattle

ordinance should not be imposed on them unless this

Court has first pronounced authoritatively on their

lawfulness under ERISA. Review a few years from

now may come too late.

This last point strongly reinforces Petitioner’s

argument calling attention to the circuit split on this

issue and the urgent need for this Court to resolve it.

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Petition at 16-21. In the past, this Court has not

hesitated to grant certiorari in order to clarify the

lawfulness of a State law in relation to federally

regulated employer benefit plans; it has thereby

forestalled the nationwide problems that would arise

from prolonged uncertainty about the relationship of

State laws to such plans.

Recognizing how

widespread and how important to millions of

employees these plans are, the Court has frequently

required only a minimal split among lower courts.

See Coventry Health Care of Missouri, Inc. v. Nevils,

137 S.Ct. 1190 (2017) (split of two federal circuits

versus one state court on pre-emption issue in

Federal Employees Health Benefit Act); California

Div. of Labor Standards Enforcement v. Dillingham

Constr., N. A., Inc., 519 U.S. 316 (1997) (two to one

split of federal circuits on ERISA pre-emption); New

York State Conference of Blue Cross & Blue Shield

Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) (two

circuit split on ERISA pre-emption); English v.

General Electric Co., 496 U.S. 72 (1990) (same).

So, too, in District of Columbia v. Greater

Washington Board of Trade, this Court granted the

petition to resolve a simple two-circuit split on an

ERISA pre-emption issue. 506 U.S. 125 (1992).

There the D.C. Circuit and the Second Circuit

disagreed about two different laws (one from the

District of Columbia and the other from Connecticut)

that were “substantially similar” in their workings

as relates to ERISA plans. Id. at 128-29. One court

of appeals found that such laws were pre-empted

because they “‘could have a serious impact on the

administration and content of the ERISA-covered

plan,’” while the other court of appeals ruled to the

contrary. Id. (quoting lower court). This Court

granted certiorari in order to resolve the issue before

more statutes of uncertain validity could spring up,

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and the Court ruled that the kind of laws at issue in

that case were pre-empted. Id.

Indeed, so imperative has the Court deemed the

uniformity and clarity of ERISA law to be that it has

granted certiorari in the absence of any split at all.

See Rutledge v. Pharmaceutical Care Mgmt. Ass’n,

141 S. Ct. 474 (2020); Gobeille, supra.

Contrary to the City’s view, then, Petitioner is

entirely justified in portraying this case as one of

national importance:

The importance of this issue cannot be

overstated. By allowing Seattle to impose

burdensome, locality-specific obligations

on employers, the decision below

threatens a return to the pre-ERISA state

of affairs, when employers faced the

prospect of overlapping and conflicting

regulations across the country.

****

A circuit split over the meaning of a

federal statute would be undesirable in

any circumstance, but it is especially

problematic in the context of ERISA’s

preemption provision—the entire purpose

of which is to provide nationwide

uniformity for plans and plan sponsors.

Petition at 4, 16.

The pre-emption issues presented in this ERISA

case are of the utmost importance nationally, both to

businesses and other covered employers that rely on

ERISA’s promise of regulatory uniformity. The

Court should therefore grant certiorari.

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II. The Decision Below Was Wrongly Decided

Because It Relied On The Presumption

Against Pre-emption.

A. The City and the Lower Courts Put the

Presumption at Issue.

The presumption against pre-emption is a

interpretive principle put centrally at issue in this

case, and not just by Petitioner. See Petition at 4,

10-11, 15, 31-33. The City has made it a pillar of its

defense. In its brief in the court of appeals, the City

spent about fourteen pages arguing for the vitality

and relevance of the presumption, discussing the

traditional State powers at stake in this case and

discounting any statement of this Court that may

appear to limit use of the presumption. Response

Brief of Defendant-Appellee, No. 20-35472, 2020 WL

6531093, at *17-30 (Oct. 28, 2020). In short, the City

declared, “courts must read the express preemption

provision so as not to tread on States’ traditional

authority to regulate safety and health and to

provide for the general welfare.”

Id. at *19.

Appearing as amici, the eight local governments

from around the country echoed Seattle at even

greater length. Brief of Amici Curiae City and

County of San Francisco et al., 2020 WL 6682044, at

*2-19 (Nov. 4, 2020).

The lower courts, too, emphasized the importance

of the presumption. The district court declared that,

as against the presumption, nothing in ERISA

indicates Congress’s intention to displace local

regulation of such an area of traditional state

concern as health care. The ERISA Industry Comm.

v. City of Seattle, 2020 WL 2307481, at *3 (W.D.

Wash. May 5, 2020). “Thus,” the court concluded,

“the Ordinance is entitled to a presumption against

preemption by federal law.” Id.

8

The Ninth Circuit, citing its decision in Golden

Gate, stated bluntly that, “[c]ontrary to ERIC’s

argument,” local laws like the ordinance enjoy the

protection of the presumption. The ERISA Industry

Comm. v. City of Seattle, 840 Fed. Appx. 248, 248

(9th Cir. 2021). Back in 2008, in Golden Gate itself,

the Ninth Circuit was no less certain: “We begin by

noting that state and local laws enjoy a presumption

against preemption when they clearly operate in a

field that has been traditionally occupied by the

States. . . . This presumption informs our preemption

analysis.” 546 F.3d at 647 (cleaned up).

Even though defending the presumption in the

face of an express pre-emption provision, none of

these statements delved any deeper into the

rationale behind it than to defend state sovereignty.

Apparently, this Court’s statement on the subject in

Gobeille, an ERISA case, sounds to some too oblique

to induce them to overcome an ingrained adherence

to the presumption. 577 U.S. at 325-26. (“Any

presumption against pre-emption, whatever its force

in other instances, cannot validate a state law that

enters a fundamental area of ERISA regulation and

thereby counters the federal purpose in the way this

state law does.”). Yet Gobeille was cited in Puerto

Rico v. Franklin California Tax-Free Trust, where

the Court was still clearer, though apparently not

categorical enough for those who cavil that Franklin

was not itself an ERISA case. 579 U.S. 115, 125

(2016) (“because the statute contains an express preemption clause, we do not invoke any presumption

against pre-emption”) (cleaned up). Hence, both

cases were cited in vain by Petitioner in the lower

courts.

9

B. The Presumption Has No Application

when Pre-emption is Express.

Pre-emption traces its constitutional source

primarily to the Supremacy Clause, article VI, cl. 2

of the U.S. Constitution. This Court’s earliest cases

dealing with Supremacy Clause pre-emption were

decided without recourse to, or even mention of, a

presumption against the pre-emption of State laws

regulating areas of traditional State concern. See,

e.g., Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.)

304 (1816); Ware v. Hylton, 3 U.S. (3 Dall.) 199

(1796). Rather, in those cases the Court recognized

that “the acts of the State Legislatures . . . though

enacted in the execution of acknowledged State

powers, . . . though enacted in the exercise of powers

not controverted, must yield to [the acts of

Congress].” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

82 (1824).

It was not until 1947 that this Court first

acknowledged openly the working “assumption” that

the “historic police powers of the States” should not

be deemed to be superseded when “Congress

legislate[s] . . . in [a] field which the States have

traditionally occupied” unless to do so was “the clear

and manifest purpose of Congress.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947).

Unfortunately, quickly lost sight of later was the fact

that the Rice Court illustrated prior uses of the

presumption with cases it described as based on

various kinds of implied pre-emption. See id. at 23031. In other words, the presumption may have a use

when the Court must determine the meaning of a

statute that fails to speak expressly on the question

of pre-emption.

It has long been acknowledged by this Court that

whether a law of Congress pre-empts the exercise of

State lawmaking over a given subject is a question of

10

congressional intent.

This Court has stated

pointedly that “[p]re-emption fundamentally is a

question of congressional intent and when Congress

has made its intent known through explicit statutory

language, the courts’ task is an easy one.” English,

496 U.S. at 78-79 (citing ERISA case Shaw v. Delta

Air Lines, Inc., 463 U.S. 85, 95–98 (1983)) (emphasis

added). That is to say, when Congress has included

an express pre-emption provision in a statute, the

provision obviates the need for the presumption

because the provision peremptorily establishes the

fact of pre-emption as Congress’s intent.

It is for this reason that the presumption against

pre-emption has no application outside cases of

implied pre-emption. Rice limited the application of

the presumption in this way for good reason. As the

Court observed in Egelhoff v. Egelhoff ex rel. Breiner,

an ERISA case, the presumption against preemption in areas of traditional State regulation is

“overcome where . . . Congress has made clear its

desire for pre-emption” by writing pre-emption into a

statute expressly, as it did in ERISA. 532 U.S. 141,

151 (2001). Rather than “overcome,” it might be

more accurate to say that, in the face of an express

pre-emption provision, use of the presumption is

dispensed with from the start. As the Court stated

in 2016, when a “statute contains an express preemption clause, we do not invoke any presumption

against pre-emption but instead focus on the plain

wording of the clause, which necessarily contains the

best evidence of Congress’ pre-emptive intent.”

Franklin, 579 U.S. at 125 (cleaned up).

From that point on, “the courts’ task is an easy

one” because the scope of the pre-emption may then

be determined by the text itself. Addressing the

presumption, Justice Scalia wrote that “it seems to

me that assumption dissolves once there is

conclusive evidence of intent to pre-empt in the

11

express words of the statute itself.” Cipollone v.

Liggett Group, Inc., 505 U.S. 504, 545 (1992)

(concurring in the judgment in part and dissenting

in part) (internal quotation marks and further

citation omitted). He went on to observe:

The proper rule of construction for

express pre-emption provisions is, it

seems to me, the one that is customary

for statutory provisions in general: Their

language should be given its ordinary

meaning. . . . When this suggests that the

pre-emption provision was intended to

sweep broadly, our construction must

sweep broadly as well. . . . And when it

bespeaks a narrow scope of pre-emption,

so must our judgment.

Id. at 548; see also id. at 545. See also Antonin

Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts at 293 (2012).

Of misuse of the presumption, one commentator

has observed: “If the Court’s normal rules of

statutory interpretation are designed to give effect to

congressional intent, then the Court’s insistence on

giving express preemption clauses a narrower-thanusual

interpretation

[through

use

of

the

presumption] will drive preemption decisions away

from that intent.” Caleb Nelson, Preemption, 86 Va.

L. Rev. 225, 292 (2000).

The same author also remarks that because the

judicially fashioned presumption against preemption narrows interpretation, it wrongly gives the

“safeguards of federalism a kind of double weight”

beyond that intended by Congress when it drafted

and enacted the federal law.

Once Congress has decided upon the

proposal that it will enact, however, the

12

political safeguards of federalism have

done their work. For courts always to

adopt narrowing constructions of the

language that Congress enacts would be

to give the political safeguards of

federalism a kind of double weight.

Id. at 300. Cf. South Carolina v. Baker, 485 U.S.

505, 512 (1988) (“States must find their protection

from congressional regulation through the national

political process, not through judicially defined

spheres of unregulable state activity”).

In short, when an express pre-emption provision

is present, “[u]nder the Supremacy Clause, [a

court’s] job is to interpret Congress’s decrees of preemption neither narrowly nor broadly, but in

accordance

with

their

apparent

meaning.”

Cipollone, 505 U.S. at 544 (Scalia, J. concurring in

the judgment in part and dissenting in part)

(citation omitted). Whatever scope of pre-emption

Congress wishes to assert when it expressly declares

federal pre-emption should be sought in the text of

what Congress actually wrote rather than through

use of a presumption better suited to statutory

silence.

CONCLUSION

For the reasons given above, this Court should

grant the petition for certiorari.

13

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION,

By its attorneys,

/s/

John Pagliaro

John Pagliaro, Staff Attorney

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

150 Lincoln Street, Unit 6B

Boston, Massachusetts 02111

Telephone: (617) 695-3660

jpagliaro@nelfonline.org

Dated: February 18, 2022

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