# Amicus Curiae Brief — Advocate Health Care Network v. Stapleton, 137 S. Ct. 1248 (2017) (No. 16-74) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0691%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text Nos. 16-74, 16-0, and 16-258 JAN 24 2917 In the Supreme Court of the Glniten Mstatesr | Tecen | ADVOCATE HEALTH CARE NETWORK, ET AL.., PETITIONERS Vv. MARIA STAPLETON, ET AL. SAINT PETER’S HEALTHCARE SYSTEM, ET AL., PETITIONERS v. LAURENCE KAPLAN DIGNITY HEALTH, ET AL., PETITIONERS v. STARLA ROLLINS ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE THIRD, SEVENTH, AND NINTH CIRCUITS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS EDWIN S. KNEEDLER Deputy Solicitor G. ! Counsel of Record — R. BRANDA , tony Assistant Attorney General BRIAN H. FLETCHER Assistant to the Solicitor General MARK B. STERN ALISA B. KLEIN NICOLAS Y. RILEY (202) 514-2217 Additional Counse! Listed on Inside Cover Linney ef Cangumm ROBERT J. NEIS Benefits Tax Counsel Department > Treasury Washington, D.C. 20220 DEBRA K. MOE Deputy Chief Counsel (Operations) Internal Revenne Service Washington, D.C. 20224 KATHERINE E. BISSELL Deputy Solicitor for Regional EF Department of Labor Washington, D.C. 20210 JUDITH R. STARR General Counsel ——— Benefit Guaranty waakegto D.C. 2008 QUESTION PRESENTED Whether an employee benefit plan must he initially established by a church in order to qualify for the “church plan” exemption to the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(33). (1) TABLE OF CONTENTS Page Statutory provisions involved .................00..c.cccssesceeeeeeseeeeesnneenees 2 A. ERISA’s original church-plan exemption..... eaiietiateeeinitinn 2 B. The MPPAA’s -naisen Seamalconimmmnanal C. The present contruversy.... sinctnditaiinibiaeiaiiemaaasenseiiinan I iinsscaceresentennnernesnnntuiieindandteninenansmnnnetns 10 Argument: The IRS, DOL, and PBGC have correctly concluded that a plan need not be established by a church to qualify as a church plan.... ... 18 A. The agencies’ longstanding interpretation reflects the natural reading of the statutory text...................... 14 B. ees Glee aeteoen of the MPPAA amendments .................<--cc..c0ccccc00c0ec0eee 18 C. The agencies’ longstanding interpretation warrants deference under Skid1707 ..............cc00000-00- 24 D. There is no sound reason to reject the agencies’ wr eo anal Conclusion ... SE Appendix — “Statutory and regulatory provisions .. Eacieensteidiioms la TABLE OF AUTHORITIES Cases: Abramski v. United States, 134 8. Ct. 2259 (2014)............ 18 Alaska Dep't of Envtl. Conservation v. EPA, EET CT NR 26, 27 Almendarez-Torres v. United States, 523 U.S. 224 (fT) IV Cases—Continued: Page Barnhart v. Walton, 535 U.S. 212 (2002) ..............cccccceeeeeee 26 Beck v. FUR UES PEN, EE EE. SOE ciancienhiensenistetie 27 CFTC v. Schor, 478 U.S. 833 (1986)... soe OD Corporation of the Presiding Bishop ofthe Church of Jesus Christ of Latter-Day Saints v. Amos, 483 TECTIA eee ao ae aN 33 Donovan v. Dillingham, 688 F.2d 1367 (11th Cir Set ciecicctindicoteiatiabeniabsinsniteniuaiaiseimeeteccntiteigiaasiindninmparenmnaieees 30 Federal Express Corp. v. Holowecki, 552 U.S. 389 ESSER EEE ro cen RE Oe CLR = 26 NLRB vy. Catholic Bishop of Chicago, 440 U.S. 490 ESE SA IRAE EEN aS et 33 Mead Corp. v. Tilley, 490 U.S. 714 (1989).............000+ 26, 27 Medina v. Catholic Health Initiatives, No. 13-cv- 1249, 2014 WL 4244012 (D. Colo. Aug. 26, 2014)............... i] Mertens v. Hewitt Assocs., 508 U.S. 248 (1998) ............. 2, 26 Overall v. Ascension, 23 F . Supp. 3d 816 (E.D. Mich. SUT isinscechinsntiastsininssiasetscipiiejusiiiidinieedeipmieiesaedideieteaitesnabenimes 9, 15 Power Reactor Dev. Co. v. International Union of ee crercerinnintennteaciemitnenatiianienmereencces 26 Raymond B. Yates, M.D., P.C. Profit Sharing Plan NS 27 Rose v. Long Island R.R. Pension Plan, 828 F.2d 910 (2d Cir. 1987), cert. denied, 485 U.S. 936 (1988)....... 32 Ross v. Blake, 136 S. Ct. 1850 (2016) ............-.cccccccensesseeeeveee 14 Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817 ST icnhsetencisdhislalttiaiangebaitataticiabuainteidinguidineabeeidtmannpemunmnitetinn 29 Skidmore v. Swift & Co., 323 U.S. 134 (1944)......... 12, 25, 26 Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983)................ 2 TRW Inc. v. Andrews, 534A U.S. 19 (2001).............c.0scceeeeeee 17 Udall v. Tallman, 380 U.S. 1 (1965) .......2....-ccccccecceececeescseees 26 United States v. Mead Corp., 533 U.S. 218 (2001) ............ 26 Vv Cases—Continued: Page United States v. Menasche, 348 U.S. 528 (1955) ................ 17 Williams v. Taylor, 529 U.S. 362 (2000) .....................-. 11,17 Williams v. WCI Steel Co., 170 F.3d 598 (6th Cir. 1999)... Yates v. Hendon, 541 US. 1.2004)... | SE AR ne 3 — v. United States, 437 U.S. 443 Constitution, statutes and regulations: U.S. Const. Amend. I (Establishment Clause)................... 33 Act of July 10, 2000, Pub. L. No. 106-244, 114 Stat. Act of Dec. 21, 2004, Pub. L. No. 108-476, § (a), 118 Stat. 3901 ... sais a Connie’ Aenventations Act, 2016, P Pub. L. No. 114-113, § 336, 129 Stat. 3109-3113 ... Oe § 336(c), 129 Stat. 3111... ‘ mae Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 10001, 100 Stat. 223.............. 22 Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, § 659, 115 Stat. 139 ............. 28 yy enna temmaltt 29 U.S.C. 1001 et seg. .. aeliaed ibteiitidinivnns Gale 29 U.S.C. 1002(1)-(3) ... ee CTE AOE 29 U.S.C. 1002(16)(B)... ini siaiaicacitia diated train tidal 31 a a 3 29 U.S.C. 1002(33)(A) (1976) .............-ececcecsersseceeeeeees 3, 14 i crcsccnrunscccseenenaii passim 29 U.S.C. 1002(33)(C) (1976)... eeeesseeeseeneeeneenee Ay a passim 29 U.S.C. 1002(33)(C) GID) ..........-nscssersserrenenes 6, 7, 14, VI Statutes and regulations—Continued: Page eT, 6, 7, 15 ne sceielancanaelll AAA RO 0 2, 25 (“Ree a cseteusaaesiesial 3 aaa 29 U.S.C. 1BOZ(DNB) «.--eeeeeeeeveevevsccsccsccsscerscnvceescesecessnne By 25 LAE a eS 3, 8 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, § 402, 110 Stat. 2084- Internal Revenue Code: RTT RRA a RN 3 aaa aici cmesiclipieeiniellleneeinen 3 I ssslongneniiielicniseninaniad 3 TSAI Ee ee a Ee 3, 8 TT a ae aS 7 26 U.S.C. 414(6KB)A) (1976).....0..0cecce---ecerncssesereensneeeesesees 4 ee 4, 7, 16, 29 ee ID ocrccscnsicnrmnsensecennnanesemnimimmnnstndeitie 7 TTT ee TEE Ree 7 SE LR ae ee acre ats 31 celica 6, 14 i tainreeaemaneanilinitii 2, 25 Vil Statutes and regulations—Continued: Page Multiemployer Pension Plan Amendments Act of 1980, Pub. L. No. 96-364, § 407, 94 Stat. 1303.................... 5 TALE 6 National Securities Markets Improvement Act of 1996, Pub. L. No. 104-290, § 508, 110 Stat. 3447.............. 28 Social Security Protection Act of 2004, Pub. L. No. es i Bs I cece cccccesesensveercsccccccvecess 28 Taxpayer Relief Act of 1997, Pub. L. No. 105-34, ET Miscellaneous: 124 Cong. Rec. (May 2, 1978): SEE IE co 19, 21, 22 a ee 23 125 Cong. Rec. (May 7, 1979) ea 11, 81, 20, 22, 32 ST ich ccdicsinisiiaiiunseiiuttapitiinisanemiorcivennserenenmniiisuiininiteniatls 21 126 Cong. Rec. (July 29, 1980) I iniiasieciieeiciiatinahdethemmisneieparenanannneneinniot 6, 18, 32 iin ciicdetinticatintictniasnimeneiaaminiiinnin 18 149 Cong. Rec. 7380 (Mar. 25, 2008) ........0c00secseccsercnesereees 29 150 Cong. Rec. 24,328-24,331 (Nov. 19, 2004).............0....... 29 DOL Advisory Op. No. 2000-05A, 2000 WL 744359 (May 17, 2000) ... ha and Stes sete Ouen on Svenen. 96th Cong., 2d Sess. (June 12, 1980) ..................cc-000 18, 32 Se ELR. 12,172, 95th Cong., 2d Sess. (1978) .........0.....000000000000 28 IRS GCM 37,288, 1977 WL 46200 (Sept. 22, 1977)... sana i 4, 6.7.23 Vill Miscellaneous—Continued: Page IRS GCM 39,007, 1983 WL 197946 (Nov. 2, 1982)... oe Soo FT IRS GCM 39,793, 1989 WL 592761 (July 6, 1989) GaSe 8, 25 Miscellaneous Pension Bills: Hearings Before the Subcomm. on Private Pension Plans and Employee Fringe Benefits of the Senate Comm. on Finance, 96th Cong., Ist Sess. (1979) .............-.. passim PBGC, 2011 Enrolled Actuaries Meeting, Questions to the PBGC and Summary of Their Responses (Mar. 2011), http://www.pbgc.gov/documents/2011 EE -csecnscenceeaneninipinnaiengnatneninnetenesnctenienenscnmmsscoumeanstes 8 S. 1076, 96th Cong., 1st Sess. (1979)...........-0ereerees 6, 18, 32 S. 1090, 96th Cong., Ist Sess. (1979) ............cecsensseeseeeeesens 23 S. Rep. No. 383, 98d Cong., Ist Sess. (1973) ...........20cs0:000- 3 In the Supreme Court of the Gnited States No. 16-74 ADVOCATE HEALTH CARE NETWORK, ET AL., PETITIONERS Vv. MARIA STAPLETON, ET AL. No. 16-86 SAINT PETER’S HEALTHCARE SYSTEM, ET AL., PETITIONERS Vv. LAURENCE KAPLAN No. 16-258 DIGNITY HEALTH, ET AL., PETITIONERS v. STARLA ROLLINS ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE THIRD, SEVENTH, AND NINTH CIRCUITS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS INTEREST OF THE UNITED STATES These cases concern the “church plan” exemption to the Employee Retirement Income Security Act of (1) 2 1974 (ERISA), 29 U.S.C. 1001 et seg. The Internal Revenue Service (IRS), the Department of Labor (DOL), and the Pension Benefit Guaranty Corporation (PBGC) administer the relevant provisions of ERISA. 26 U.S.C. 7801(a); 29 U.S.C. 1132-1135, 1302(b)(3). The decisions below rejected an interpretation those agen- cies have applied for more than three decades. The United States therefore has a substantial interest in this Court’s resolution of the question presented. STATUTORY PROVISIONS INVOLVED Pertinent statutory and regulatory provisions are reproduced in the appendix to this brief. App., infra, la-24a. STATEMENT ERISA generally exempts “church plans,” a term defined broadly to encompass a plan covering the employees of a religious hospital or other tax-exempt organization associated with a church. The question presented is whether such a plan must be initially “established” by the church itself (as the decisions below held) or whether it is sufficient if the plan is “maintained” by a church-affiliated organization de- scribed in the statute (as the IRS, DOL, and PBGC have long concluded). A. ERISA’s Original Church-Plan Exemption 1. Enacted in 1974, ERISA is a “comprehensive and reticulated statute” regulating employee benefit plans. Mertens v. Hewitt Assocs., 508 U.S. 248, 251 (1993) (citation omitted). ERISA governs both pen- sion plans and welfare plans providing health, disabil- ity, and other benefits. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91-92 (1983); see 29 U.S.C. 1002(1)-(3). 3 ERISA has four titles. Title | imposes reporting and disclosure requirements, standards of fiduciary conduct, vesting and funding schedules, and other substantive rules for pension and welfare plans. 29 U.S.C. 1001 et seg. Title Il, which is codified in the Internal Revenue Code, conditions preferential tax treatment for pension plans on compliance with cer- tain Title I requirements. Title III] governs admin- istration and enforcement. 29 U.S.C. 1201 et seg. And Title IV establishes the PBGC, which administers an insurance program that protects employees against the loss of benefits if an employer’s pension plan ter- minates with insufficient funds. 29 U.S.C. 1301 et seq.; see Yates v. Hendon, 541 U.S. 1, 6 (2004). 2. ERISA generally applies to any benefit plan “established or maintained” by a private employer. 29 U.S.C. 1003(a). But Congress exempted “church plans,” in part because “the examinations of books and rec- ords” required under ERISA “might be regarded as an unjustified invasion of the confidential relationship that is believed to be appropriate with regard to church- es and their religious activities.” S. Rep. No. 383, 93d Cong., Ist Sess. 81 (1973). Unless a church plan elects to be covered under 26 U.S.C. 410(d), it is exempt from Title I of ERISA, from certain related tax provisions, and from the PBGC’s insurance program. 29 U.S.C. 1003(b\(2), 1321(bX3); see, e.g., 26 U.S.C. 410(c)(1)(B). 411(e)(1)(B), 412(e(2)(D). The term “church plan” is defined in 29 U.S.C. 1002(33) and a materially identical provision of the Internal Revenue Code, 26 U.S.C. 414(e). As original- ly enacted in 1974, that definition was narrow, including only a plan “established and maintained for its employees by a church.” 29 U.S.C. 1002(33)(A) 4 (1976).' Congress also adopted a temporary rule spec- ifying that an existing plan covering church employees could be “treated as a church plan” even if it also covered the employees of “one or more agencies” of the church. 29 U.S.C. 1002(33)(C) (1976); see 26 U.S.C. 414(e)(3)(A) (1976). That rule allowing the employees of church agencies to be included in exempt plans was set to expire in 1982. Jbid. 3. In 1977, the IRS issued a General Counsel Memorandum (GCM) applying the church-plan defini- tion to pension plans established by two orders of Catholic sisters for the employees of their hospitals. IRS GCM 37,266, 1977 WL 46200, at *1-*2 (Sept. 22, 1977) (1977 GCM). The IRS concluded that the plans were not church plans because the orders were not themselves “churches.” /d. at *6. The IRS reasoned that a religious order qualifies as a “church” only if it is “principally engaged in religious activities.” Jd. at *3, *6. And the IRS determined that the Catholic orders at issue were not churches because “operating hospitals * * * is not a religious function.” /d. at *5. B. The MPPAA’s Expansion Of The Church-Plan Exemption 1. A broad coalition of religious organizations formed the Church Alliance for the Clarification of ERISA (Church Alliance) to seek changes to the orig- inal church-plan exemption. Miscellaneous Pension Bills: Hearings Before the Subcomm. on Private Pension Plans and Employee Fringe Benefits of the : 1 Sie ttn nein batman en niente ii church-plan definition in ERISA rather than the materially identi- cal definition in the Internal Revenue Code. For brevity, we generally use the term “church” as a shorthand for the statutory phrase “church or convention or association of churches.” 5 Senate Comm. on Finance, 96th Cong., 1st Sess. 363- 364, 366 (1979) (Senate Hearing) (Sen. Talmadge). Among other things, the Church Alliance opposed the sunset of the temporary rule allowing church plans to cover the employees of church agencies. Jd. at 384, 387-388 (Church Alliance). It also argued that the original definition’s focus on plans established and maintained by “churches” favored hierarchical denom- inations over congregational denominations, which typically relied on separate pension boards to admin- ister the plans covering the employees of local church- es and church agencies. /d. at 383, 388. And the Church Alliance opposed government inquiries aimed at determining whether particular entities were suffi- ciently religious to qualify as “churches” entitled to establish and maintain exempt plans. Jd. at 384. Congress responded to those concerns by substan- tially expanding ERISA’s church-plan exemption in the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), Pub. L. No. 96-364, § 407, 94 Stat. 1303. The MPPAA amendments preserved the core of the original definition, continuing to provide that “(t]he term ‘church plan’ means a plan established and maintained * * * for its employees (or their benefi- ciaries) by a church.” 29 U.S.C. 1002(33)(A). That approach made clear that any plan that met the origi- nal definition remained exempt. But Congress broad- ened the exemption by adopting provisions deeming additional plans to satisfy that definition even though they did not fall within its literal terms. Two of those provisions are relevant here. First, Congress specified that, for purposes of the church-plan definition, “[t]he term employee of a church * * * includes * * * an employee of an 6 organization, whether a civil law corporation or other- wise, which is exempt from tax under [26 U.S.C. 501] and which is controlled by or associated with a church.” 29 U.S.C. 1002(83)(C)ii)ID. A separate provision provides that “[a] church * * * shall be deemed the employer of any individual included as an employee” under that rule. 29 U.S.C. 1002(33)(C)(iii). Those provisions allow “a church plan to cover em- ployees of a tax-exempt agency controlled by or affili- ated with a church,” such as a religious hospital. 126 Cong. Rec. 20,208 (July 29, 1980) (Joint Explanation of S. 1076, 96th Cong., Ist Sess. (1979)). Second, Congress addressed the concerns of con- gregational denominations by specifying that “[a] plan established and maintained for its employees (or their beneficiaries) by a church”—that is, a church plan— “includes a plan maintained by an organization, whether a civil law corporation or otherwise, the prin- cipal purpose or function of which is the administra- tion or funding of a plan * * * for the employees of a church * * * if such organization is controlled by or associated with a church.” 29 U.S.C. 1002(33)(C)(i). Under that provision, a plan maintained by a church- affiliated pension board or other “principal-purpose” organization is deemed to be a church plan. Congress made the MPPAA amendments retroac- tive to January 1, 1974, ensuring that plans previously excluded from the church-plan exemption would not be liable for any failure to comply with ERISA. MPPAA § 407(c), 94 Stat. 1307. 2. The IRS first addressed the amended church- plan definition in a GCM prepared in 1982 and re- leased to the public in 1983. IRS GCM 39,007, 1983 WL 197946 (Nov. 2, 1982) (1982 GCM). Like the 1977 7 GCM, the 1982 GCM addressed pension plans estab- lished by Catholic religious orders for the employees of their hospitals. /d. at *1-*2. The IRS explained that, under the approach adopted in the 1977 GCM, the orders were not themselves “churches.” /d. at *4. But the IRS concluded that the MPPAA amendments meant that “nonchurch status is not fatal.” Jbid. After parsing the amended definition, the IRS ex- plained that the orders’ plans would qualify as church plans so long as (a) “their employees are deemed em- ployees of the Catholic Church,” and (b) their plans are “administered by one of the organizations de- scribed in the statute.” Jbid. The IRS found both requirements satisfied. It ex- plained that the religious orders’ employees were deemed to be employees of the Catholic Church be- cause the orders were associated with the Church. 1982 GCM at *5; see 26 U.S.C. 414(e)(3)(B)(ii) and (C); 29 U.S.C. 1002(33)(C)(ii)(IT) and (iii). And it conclud- ed that a plan may qualify as a church plan under the MPPAA amendments if it is either “established and maintained * * * by a church,” 26 U.S.C. 414(e)(1); see 29 U.S.C. 1002(33)(A), or “maintained” by a prin- cipal-purpose organization, 26 U.S.C. 414(e)(3)(A); see 29 U.S.C. 1002(33)(C)(i). 1982 GCM at *5. The IRS therefore determined that, although the orders’ plans had not been established by a church, they would qualify as church plans so long as they were maintained by principal-purpose organizations. /d. at *5-*6. 3. In the decades since the 1982 GCM, the IRS has issued hundreds of private letter rulings confirming the exempt status of particular plans based on its conclusion that a plan maintained by a principal- purpose organization need not be “established” by a 8 church to qualify as a church plan. See No. 16-74 (Advocate) Pet. App. 70a-11lla (collecting citations); see also IRS GCM 39,793, 1989 WL 592761, at *5-*7 (July 6, 1989) (reaffirming this interpretation).” DOL has likewise concluded that the identical defi- nition in Title I of ERISA does not require a church to establish a church plan in the first instance. That interpretation is reflected in dozens of DOL opinion letters finding particular plans exempt. See, ¢.g., DOL Advisory Op. No. 2000-05A, 2000 WL 744359, at *1 (May 17, 2000); see also Advocate Pet. App. 64a-69a (collecting citations). The PBGC has similarly adopt- ed the IRS’s interpretation, relying on the IRS to determine whether particular plans qualify as church plans. PBGC, 2011 Enrolled Actuaries Meeting, Ques- tions to the PBGC and Summary of Their Responses 25 (Mar. 2011), http:/Awww.pbgc.gov/documents/2011 bluebook.pdf; see 29 U.S.C. 1321(b)(3) (incorporating 26 U.S.C. 414(e)). C. The Present Controversy 1. Until recently, no court had questioned the agencies’ longstanding interpretation of the church- plan exemption. Since 2013, however, that interpreta- tion has been challenged in dozens of class-action suits filed by employees of religious hospitals and healthcare providers. Petitioners are the defendants in three of those suits. Respondents are current and former employees at petitioners’ healthcare facilities who allege that petitioners’ pension plans are subject * The IRS and the Department of the Treasury issued a regula- tion interpreting the original church-plan definition, but that regu- lation has not been updated to address the MPPAA amendments. 26 C.F.R. 1.414(e)-1; see 45 Fed. Reg. 20,796 (Mar. 31, 1980). 9 to ERISA and that those plans do not satisfy ERISA’s funding, vesting, disclosure, and other requirements. As relevant here, respondents contend that petition- ers’ plans do not qualify as church plans because the plans were not established by a church. Advocate Pet. App. 4a-5a; No. 16-86 (St. Peter’s) Pet. App. 6a-7a; No. 16-258 (Dignity) Pet. App. 4a-6a. The district courts denied petitioners’ motions to dismiss, agreeing with respondents that a plan must be established by a church to be a church plan. Advocate Pet. App. 30a-50a; St. Peter’s Pet. App. 29a-5la; Digni- ty Pet. App. 26a-42a. All three courts then certified the issue for interlocutory appeal, recognizing that other district courts had reached the opposite conclusion. Advocate Pet. App. 51a-53a; St. Peter’s Pet. App. 54a- 63a; Dignity Pet. App. 6la-72a; see Overall v. Ascen- sion, 23 F. Supp. 3d 816, 826-829 (E.D. Mich. 2014); Medina v. Catholic Health Initiatives, No. 13-cy-1249, 2014 WL 4244012, at *2-*3 (D. Colo. Aug. 26, 2014). 2. The courts of appeals affirmed. Advocate Pet. App. 1la-29a; St. Peter’s Pet. App. la-26a; Dignity Pet. App. 1la-25a. The first appellate decision was issued by the Third Circuit, which concluded that, under the “plain text” of the church-plan definition, “only a church can es- tablish a plan that qualifies for an exemption.” Sz. Peter’s Pet. App. 6a. The court emphasized that the statute defines a “church plan” as “a plan established and maintained * * * by a church.” Z/d. at 9a-10a (quoting 29 U.S.C. 1002(33)(A)). The court recognized that the MPPAA expanded that definition by specify- ing that a plan “established and maintained * * * by a church * * * includes a plan maintained by” a principal-purpose organization. /d. at 1la (quoting 29 10 U.S.C. 1002(83)(C)(i)). The court concluded that this amendment “provided an alternate way of meeting the maintenance requirement,” allowing a _principal- purpose organization, rather than a church, to main- tain an exempt church plan. /d. at 13a. But the court held that the MPPAA “did not do away with the re- quirement that a church establish a plan in the first instance.” Jbid. (emphasis added). The court stated that it found support for that reading in several can- ons of construction, id. at 14a-18a, and in the MPPAA’s legislative history, id. at 18a-22a. And because the court believed that the agencies’ interpre- tation “is at odds with the statutory text,” it gave “no deference” to their longstanding view. /d. at 23a. The subsequent decisions by the Seventh and Ninth Circuits relied on similar reasoning, likewise concluding that the statutory text and legislative his- tory demonstrate that a church plan must be “estab- lished” by a church, and likewise declining to defer to the agencies’ contrary view. Advocate Pet. App. 6a- 29a; Dignity Pet. App. 7a-24a. SUMMARY OF ARGUMENT In 1980, Congress amended ERISA to allow the employees of a religious hospital or other church- affiliated nonprofit organization to be covered by an exempt church plan. Ever since, the agencies respon- sible for administering ERISA’s complex regulatory scheme have consistently concluded that such a plan need not be initially established by a church to qualify as exempt. That longstanding interpretation is correct. A. The agencies’ interpretation is the natural read- ing of the statutory text. In the MPPAA, Congress preserved ERISA’s basic definition of a church plan as a plan “established and maintained * * * by a 11 church.” 29 U.S.C. 1002(33)(A). But Congress ex- panded that definition by specifying that “[a] plan established and maintained * * * by achurch * * * includes a plan maintained by [a principal-purpose organization].” 29 U.S.C. 1002(33)(C)(i). Section 1002(33)(C)(i) is most naturally read to provide that a plan “maintained” by a principal-purpose organization is deemed to be both “established” and “maintained” by a church. Any other reading would render the words “established and” superfluous, violating the “cardinal principle of statutory construction” that requires courts to “give effect, if possible, to every clause and word of a statute.’” Williams v. Taylor, 529 U.S. 362, 404 (2000) (citation omitted). B. The context, history, and purpose of the MPPAA amendments reinforce the natural reading of the text. One of Congress’s fundamental goals was to accom- modate congregational denominations, which typically relied on pension boards to administer plans covering the employees of local churches and church agencies. That goal could not have been achieved merely by allowing pension boards to maintain plans established by churches. Some pension boards for congregational denominations established their own plans, and in other cases it was unclear which entities had “estab- lished” plans that long pre-dated ERISA. The MPPAA amendments thus sought to eliminate any uncertainty stemming from questions about “whether [a] plan is established by a church * * * or by a pension board.” 125 Cong. Rec. 10,052 (May 7, 1979) (Sen. Talmadge) (emphasis added). And the drafting history confirms that Congress achieved that objective by deeming a plan maintained by a pension board or other principal-purpose organization to satis- 12 fy the requirement of church establishment, not mere- ly the requirement of church maintenance. C. If there were any doubt about the best interpre- tation of the church-plan definition, it would be re- solved by the position adopted and consistently ap- plied by the IRS, DOL, and PBGC. Those agencies have been charged by Congress with administering ERISA, and their implementation of the church-plan exemption “constitute[s] a body of experience and informed judgment” entitled to a measure of defer- ence. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Such an administrative interpretation carries special force where, as here, it reflects a contempora- neous and longstanding construction of a complex statutory scheme. And the agencies’ oft-applied in- terpretation of the church-plan definition is entitled to even greater weight because Congress has left it un- disturbed even as it has repeatedly refined the treat- ment of church plans under ERISA, the Internal Revenue Code, and related laws. D. Neither respondents nor the courts of appeals identified any sound reason to upset decades of reli- ance interests by imposing a requirement that a church plan be initially “established” by a church. The courts appeared to assume that such a require- ment would ensure that a church retained control of or responsibility for the plan, but that is mistaken. Those powers and responsibilities may fall on the entity that maintains a plan, not the entity that estab- lished it in the first instance. Respondents have also suggested that Congress did not intend to exclude the employees of large healthcare providers like petitioners from ERISA’s protections. But the MPPAA amendments unambigu- 13 ously allow the employees of any tax-exempt organiza- tion controlled by or associated with a church to be covered under an exempt church plan—indeed, Con- gress expressly deemed such employees to be employ- ees of a church. There is thus no dispute that the employees of a church-affiliated nonprofit organiza- tion can be covered under an exempt plan—the only question is the mechanism by which that result may be achieved. As the administering agencies have long concluded, Congress did not require a church to estab- lish such a plan in the first instance. ARGUMENT THE IRS, DOL, AND PBGC HAVE CORRECTLY CON- CLUDED THAT A PLAN NEED NOT BE ESTABLISHED BY A CHURCH TO QUALIFY AS A CHURCH PLAN There is no dispute that the employees of a reli- gious hospital or other nonprofit organization associ- ated with a church may be covered under an ERISA- exempt church plan. There is also no dispute that a church plan need not be “maintained” by a church, and may instead be maintained by an organization the principal purpose of which is the administration or funding of a church plan. The only question before the Court is whether an otherwise-qualifying plan maintained by a principal-purpose organization must be “established” by a church in the first instance. As the agencies responsible for administering ERISA have concluded for more than three decades, the an- swer to that question is no.’ * The courts of appeals held that petitioners’ plans are not church plans because they were not “established” by a church. Respondents have separately argued that petitioners’ plans are not church plans because petitioners are not controlled by or 14 A. The Agencies’ Longstanding Interpretation Reflects The Natural Reading Of The Statutory Text Like any inquiry into the meaning of a federal stat- ute, the interpretation of ERISA’s church-plan ex- emption “begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). That text is most naturally read to provide that a plan maintained by a principal- purpose organization described in Section 1002(33)(C)(i) qualifies as a church plan whether or not it was initial- ly established by a church. 1. Since its enactment in 1974, ERISA has defined a “church plan” as a plan “established and maintained * * * for its employees * * * by a church.” 29 U.S.C. 1002(33)(A); see 29 U.S.C. 1002(33)(A) (1976). In the MPPAA, however, Congress enacted amend- ments that expanded the reach of that definition be- yond its literal terms. Two of those amendments combine to allow a plan covering the employees of a religious hospital or other church-affiliated organiza- tion to qualify as a church plan even if the plan was not established by a church. First, Congress specified that “[t]he term employ- ee of a church” includes “an employee of an organiza- tion * * * which is exempt from tax under [26 U.S.C. 501] and which is controlled by or associated with a church.” 29 U.S.C. 1002(33)(C)(ii)(II). Congress further provided that, for purposes of the church-plan associated with a church and because the entities that maintain petitioners’ plans do not qualify as principal-purpose organizations under Section 1002(83)(C)i). Advocate Br. in Opp. 36-87; St. Peter’s Br. in Opp. 28-30; Dignity Br. in Opp. 36-38. We do not address those separate issues because they were not passed upon by the courts of appeals and are not encompassed within the question presented. 15 definition, “[a] church * * * shall be deemed the em- ployer” of such employees. 29 U.S.C. 1002(33)(C)(iii). Thus, a plan providing benefits for the employees of a tax-exempt organization controlled by or associated with a church qualifies as a plan providing benefits for the employees of a “church.” Second, Congress enacted Section 1002(33)(C)(i) to address plans maintained by pension boards or other principal-purpose organizations. That provision speci- fies that “[a] plan established and maintained for its employees * * * by achurch * * * includes a plan maintained by [a principal-purpose organization].” 29 U.S.C. 1002(33)(C)(i). That provision is naturally read to provide that a plan “maintained” for church em- ployees by a principal-purpose organization is deemed to be a plan “established and maintained for its em- ployees * * * by a church”—that is, a church plan. Ibid. As one court put the point, “if A is exempt and A includes C, then C is also exempt.” Overall v. Ascen- sion, 23 F. Supp. 3d 816, 828 (E.D. Mich. 2014) (cita- tion omitted). Applying that logic here: Because a plan “established and maintained for its employees * * * by a church” is exempt, 29 U.S.C. 1002(33)(A)—and because such a plan “includes a plan maintained by [a principal- purpose organization],” 29 U.S.C. 1002(83)(C)(i)—it follows that a plan maintained by a principal-purpose organization is also exempt.‘ * The same point can be made in a slightly different way. Sec- tion 1002(33)(C)(i) states that a phrase in Section 1002(33)(A)’s definition of “church plan” “includes” additional plans described in Section 1002(33)(C)(i). The relevant phrase in Section 1002(33)(A) can therefore be replaced with the text from Section 1002(33\C)<(i), with this result: 16 That natural reading of Section 1002(33)(C)(i)’s text is reinforced by the title of the materially identi- cal provision of the Internal Revenue Code, 26 U.S.C. 414(e)(3)(A). Cf. Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (observing that “the heading of a section” may resolve doubt over its meaning) (citation omitted). The Internal Revenue Code provi- sion is entitled “(treatment as church plan,” 26 U.S.C. 414(e)(3)(A), which confirms that the plans described in Section 1002(33)(C)(i) and its Internal Revenue Code counterpart are deemed to be church plans. 2. The courts of appeals adopted a different read- ing of Section 1002(33)(C)(i). In their view, that provi- sion “provided an alternate way of meeting the maintenance requirement” in Section 1002(33)(A)’s original church-plan definition, but “did not do away with the requirement that a church establish a plan in the first instance.” St. Peter’s Pet. App. 13a (empha- sis added); see Advocate Pet. App. 1la-12a; Dignity Pet. App. 10a-lla. That reading is unpersuasive. If Congress had intended to eliminate the “mainte- nance” requirement alone, it would have provided that The term “church plan” means [a plan maintained by an organ- ization, whether a civil law corporation or otherwise, the prin- cipal purpose or function of which is the administration or funding of a plan or program for the provision cf retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such or- ganization is controlled by or associated with a church or a convention or association of churches] which is exempt from tax under section 501 of title 26. 29 U.S.C. 1002(33)(A) (text from Section 1002(33)(C)(i) bracketed). The two provisions thus combine to define a “church plan” to include a plan maintained by a principal-purpose organization, whether or not that plan was established by a church. 17 “a plan maintained by a church includes a plan main- tained by a principal-purpose organization.” But Con- gress did not do that. Instead, it specified that “(a] plan established and maintained * * * by a church * * * includes a plan maintained by [a principal- purpose organization].” 29 U.S.C. 1002(33)(C)i) (em- phasis added). The natural implication is that a plan “maintained” by a principal-purpose organization is deemed to be both “established” and “maintained” by a church. In fact, any other reading would render the words “established and” superfluous, violating “the cardinal principle of statutory construction” that courts “must ‘give effect, if possible, to every clause and word of a statute.’” Williams v. Taylor, 529 U.S. 362, 404 (2000) (quoting United States v. Menasche, 348 U.S. 528, 538-539 (1955)). The courts of appeals failed even to acknowledge this superfluity, much less to identify any textual consideration sufficient to overcome this Court’s “reluctan[ce] to treat statutory terms as surplusage in any setting.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation omitted).° * The Third and Seventh Circuits erroneously assumed that their reading avoided a different surplusage problem. Those courts be- lieved that, under the agencies’ interpretation, the “church establish- ment requirement” in Section 1002(33)(A) “would be superfluous” because even a plan that was not established by a church “would be eligible for an exemption as long as it is maintained by [a prin- cipal-purpose organization}.” St Peter’s Pet. App. 14a; see Advo- cate Pet. App. 1la-12a. But that consequence does not render Sec- tion 1002(33)(A) “superfluous.” Just as before the MPPAA, Sec- tion 1002(33)(A) exempts plans that are both established and main- tained by a church. Section 1002(33\C)(i), in contrast, exempts only plans maintained by principal-purpose organizations; it does not address plans maintained by churches. 18 B. The Agencies’ Longstanding Interpretation Is Sup- ported By The Context, History, And Purpose Of The MPPAA Amendments The natural reading of Section 1002(33)(C)(i)’s text is reinforced by the “context,” “history,” and “purpose” of the MPPAA amendments. Abramski v. United States, 134 S. Ct. 2259, 2267 (2014) (citation omitted). 1. Under ERISA’s original definition of “church plan,” the employees of church agencies could be cov- ered under an exempt plan only until 1982, and only if the plan also covered employees of the church. 29 U.S.C. 1002(33)(C) (1976). One central purpose of the MPPAA’s church-plan amendments was to replace that temporary rule with a permanent provision allow- ing the employees of church agencies to be covered under exempt plans. See, e.g., 126 Cong. Rec. 20,208 (July 29, 1980) (Joint Explanation of S. 1076, 96th Cong., Ist Sess. (1979)). Both proponents and opponents of the MPPAA amendments recognized that the amended definition would exempt plans covering the employees of church agencies. Proponents advocated that result on the ground that “[cjhurch agencies are essential to the churches’ mission” and “are, in fact, part of the churches.” 125 Cong. Rec. 10,052 (May 7, 1979) (Sen. Talmadge). Opponents, including the Department of the Treasury, objected to the fact that the amend- ments would “exclude church agencies from the pro- tection of ERISA.” Exec. Sess. of the Senate Comm. on Finance, 96th Cong., 2d Sess. 41 (June 12, 1980) (Executive Session) (Daniel Halperin, Deputy Assis- tant Secretary, Dep’t of Treasury); see 126 Cong. Rec. at 20,180 (Sen. Javits) (“As to the church pension plans, I might say that I am not too happy about [the 19 amendment] as it exempts those who work for schools and similar institutions which are church-related.”). 2. The courts of appeals acknowledged that Con- gress sought to allow exempt church plans to cover the employees of church agencies, but concluded that Congress intended to exempt such plans only if they were initially established by a church. Advocate Pet. App. 18a-22a; St. Peter’s Pet. App. 18a-22a; Dignity Pet. App. lla-15a. That conclusion rests on a misun- derstanding of another fundamental purpose of the MPPAA amendments: to make the church-plan ex- emption available on equal terms to the local churches and church agencies of decentralized congregational denominations. One of the central criticisms of ERISA’s original church-plan definition was that it failed to account for “the structural differences” between religious denom- inations and thereby disadvantaged “congregational denominations.” 124 Cong. Rec. 12,107 (May 2, 1978) (Rep. Conable). In “hierarchical churches such as the Roman Catholic Church,” there are “clear lines of responsibility, control and authority” through which the national church controls local churches and church agencies. Senate Hearing 399 (Gary Nash, Annuity Bd. of the Southern Baptist Convention). In congre- gational denominations, by contrast, “the national or regional bodies do not control the local congrega- tions.” Jd. at 405 (John Ordway, Pension Bds. of the United Church of Christ); see 124 Cong. Rec. at 12,107 (Rep. Conable) (“In the congregational type of denom- ination, the local churches and agencies are self- governing.”). In a hierarchical denomination, the bodies adminis- tering benefit plans for the employees of churches and 20 church agencies could be integrated into the national church structure. Senate Hearing 405 (John Ordway, Pension Bds. of the United Church of Christ). Con- gregational denominations, however, typically relied on pension boards that were “separately incorporated from, but controlled by, the denomination.” 125 Cong. Rec. at 10,052. Those separate boards administered pension and benefit plans for ministers and lay em- ployees working in local churches and in church agen- cies, including hospitals, schools, and charities.° After ERISA was enacted, congregational denomi- nations argued to the IRS that plans administered by their pension boards satisfied the requirements of the original church-plan definition (at least so long as the temporary rule allowing coverage of church agencies remained in effect) because the pension boards them- selves qualified as “churches” that could establish and maintain exempt church plans. See, e.g., Senate Hear- ing 394 (Church Alliance); id. at 420 (Dean Wright, Ministers and Missionaries Bd. of the Am. Baptist Churches). But, as the Senate sponsor of the MPPAA’s church-plan amendments explained, “there [wa]s a question whether” a plan administered by a pension board “is established by a church, as it must be, or by a pension board.” 125 Cong. Rec. at 10,052 (Sen. Talmadge). The House sponsor of a predecessor bill made the same point, observing that “[ijt is not clear whether a plan administered by a pension board of a ® See, eg., Senate Hearing 376-377, 468-469 (Charles Cowsert, Bd. of Annuities and Relief, Presbyterian Church in the U.S.) (des- cribing plans administered by a pension board for a congregational denomination); id. at 379 (Leo Landes, Retirement Bd. of United Synagogue of Am.) (same); id. at 413-417 (Dean Wright, Ministers and Missionaries Benefit Bd. of the Am. Baptist Churches) (same). 21 congregational church is a plan established and main- tained for its employees by a church.” 124 Cong. Rec. at 12,107 (Rep. Conable). The sponsors emphasized that the MPPAA amend- ments resolved this uncertainty by making clear that “{a] plan or program funded or administered through a pension board * * * will be considered a church plan” if the board meets the requirements for a principal- purpose organization in Section 1002(33)(C)(i). 125 Cong. Rec. at 10,053 (Sen. Talmadge); see 124 Cong. Rec. at 12,107 (Rep. Conable) (same). Nothing in those statements indicated that a plan maintained by a pension board had to be “established” by a church to be exempt. 3. The lack of support for a church-establishment requirement in the legislative record is not surprising, because such a requirement would have excluded plans that Congress sought to treat as church plans. Some congregational denominations took the position that their plans were “established” by churches and merely “maintained” by pension boards, while recog- nizing that such boards might not be regarded as part of the church for purposes of the original exemption. Senate Hearing 461 (John Ordway, Pension Bds. of the United Church of Christ). But other denomina- tions believed that their plans were both “established and maintained through church pension boards.” /d. at 400-401 (Gary Nash, Annuity Bd. of the Southern Baptist Convention) (emphasis added); see Pet. Br. 35-36 (collecting additional examples). And even for denominations that could argue that their plans were “established” by churches and merely “maintained” by pension boards, a church-establishment requirement would have perpetuated the “question whether [such 22 a] plan is established by a church * * * or by a pen- sion board”—an uncertainty the MPPAA amendments were designed to eliminate. 125 Cong. Rec. at 10,052 (Sen. Talmadge); see 124 Cong. Rec. at 12,107 (Rep. Conable). Furthermore, Congress was aware that many plans administered by pension boards had been created long before ERISA was enacted. See 125 Cong. Rec. at 10,052 (Sen. Talmadge) (“The average age of a church plan is at least 40 years.”); Senate Hearing 411 (Dean Wright, Ministers and Missionaries Benefit Bd. of the Am. Baptist Churches) (“Virtually all of these pension boards were established and in operation many years prior to the enactment of ERISA.”). It is implausible to think that Congress intended the MPPAA’s amend- ed church-plan definition to turn on an uncertain in- quiry into the identity of the organization that had “established” a plan decades earlier. Preserving a church-establishment requirement would, moreover, have perpetuated problems that the MPPAA amendments were crafted to avoid. Such a requirement would have been more easily satisfied by hierarchical denominations than by their congrega- tional counterparts, which lacked centralized govern- ing bodies that could readily “establish” plans for the employees of church agencies. See 124 Cong. Rec. at 12,107 (Rep. Conable); Senate Hearing 399 (Gary Nash, Annuity Bd. of the Southern Baptist Conven- tion); Senate Hearing 405 (John Ordway, Pension Bds. of the United Church of Christ). And a church- establishment requirement would have placed far greater significance on the question whether a partic- ular religious entity qualified as a “church” entitled to establish an exempt plan, requiring inquiries like the 23 one reflected in the 1977 GCM. See IRS GCM 37,266, 1977 WL 46200, at *1-*2 (Sept. 22, 1977). The need for such inquiries had prompted criticism of ERISA’s original definition, and supporters of the changes that were enacted by the MPPAA amendments emphasized that those changes would “eliminate[] the need to determine what organizations may be considered as parts of a church.” Senate Hearing 458 (John Ord- way, Pension Bds. of the United Church of Christ); see id. at 375, 463; id. at 471 (Charles Cowsert, Bd. of Annuities and Relief of the Presbyterian Church in the U.S.). 4. The drafting history of the MPPAA amend- ments confirms that a plan maintained by a principal- purpose organization under Section 1002(33)(C)(i) need not be established by a church. The language that became the MPPAA amendments was originally introduced in stand-alone bills in 1978 and 1979. See Senate Hearing 101 (quoting S. 1090, 96th Cong., Ist Sess. (1979)); 124 Cong. Rec. at 12,108 (quoting H.R. 12,172, 95th Cong., 2d Sess. (1978)). The initial draft of Section 1002(33)(C)(i) in those bills expressly con- templated that pension boards and other principal- purpose organizations would “establish” exempt plans. It provided that “[a} plan established and maintained by achurch * * * shall include a plan established and maintained by [a principal-purpose organiza- tion].” Senate Hearing 102 (quoting S. 1090) (empha- sis added); see 124 Cong. Rec. at 12,108 (quoting H.R. 12,172) (same). As the Third and Seventh Circuits acknowledged, that original language made it “quite clear that church establishment of a plan would no longer be a prerequi- site for the exemption.” St. Peter’s Pet. App. 15a; see 2A Advocate Pet. App. 20a. But those courts erroneously assumed that the sponsors reintroduced a church- establishment requirement in the version that was ultimately enacted into law. As relevant here, the final version reflected the following change from the initial proposal: A plan established and maintained * * * bya church * * * shal includes a plan established and maintained by [a principal-purpose organi- zation]. 29 U.S.C. 1002(33)(C)(i). That change actually broad- ened the exemption: Whereas the original language limited Section 1002(33)(C)(i) to plans that were both established and maintained by a principal-purpose organization, the final version encompassed any plan maintained by such an organization. Such a modifica- tion was necessary to achieve the MPPAA amend- ments’ purpose, because the original draft would have excluded plans that were “established” by churches but then “maintained by a separate corporation” or pension board. Senate Hearing 461 (John Ordway, Pension Bds. of the United Church of Christ). It would thus be anomalous to treat that change in lan- guage as narrowing the exemption and re-imposing the church-establishment requirement that the origi- nal version of the amendments would have abolished. C. The Agencies’ Longstanding Interpretation Warrants Deference Under Skidmore If there were any doubt about the best reading of the church-plan exemption, it would be resolved by the longstanding interpretation applied by the IRS, DOL, and PBGC, the expert agencies charged by Congress with administering ERISA’s complex statu- 25 tory scheme. That construction should carry particu- lar weight because Congress has repeatedly revisited the treatment of church plans under ERISA and re- lated statutes without disturbing the agencies’ inter- pretation. 1. Congress assigned responsibility for administer- ing and enforcing the relevant provisions of ERISA to the IRS, DOL, and PBGC. 26 U.S.C. 7801(a); 29 U.S.C. 1132-1135, 1302(b)(3). For more than three decades, those agencies have consistently concluded that a plan maintained by a principal-purpose organiza- tion described in Section 1002(33)(C)(i) need not be established by a church to qualify as a church plan. See, e.g., DOL Advisory Op. No. 2000-05A, 2000 WL 744359, at *1 (May 17, 2000); IRS GCM 39,793, 1989 WL 592761, at *5-*7 (July 6, 1989); IRS GCM 39,007, 1983 WL 197946, at *4-*5 (Nov. 2, 1982). That inter- pretation is reflected in hundreds of private letter rulings and opinion letters confirming the exempt status of particular plans. Advocate Pet. App. 64a- 111a (citing 568 examples). Although the agencies’ interpretation is not embod- ied in notice-and-comment regulations, the agencies’ implementation of the statute “constitute[s] a body of experience and informed judgment” that, under the circumstances present here, should be accorded con- siderable deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Under Skidmore, the weight due to such an administrative construction “depend([s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earli- er and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Jbid. 26 The agencies’ interpretation of the church-plan ex- emption originated in the IRS’s 1982 GCM, which recognized that “because of the passage of the MPPA[A]” two years earlier, “church plan status no longer hinges on whether [a religious] order is a church.” 1982 GCM at *6. The IRS explained that the absence of a church-establishment requirement fol- lowed from the text of the amended statute, which had superseded the IRS’s own prior approach reflected in the 1977 GCM. Id. at *4-*6. Deference to an agency’s interpretation is “[pJarticularly” appropriate where, as here, “the administrative practice at stake involves a contemporaneous construction of a statute.” Udall v. Taliman, 380 U.S. 1, 16 (1965) (quoting Power Reactor Dev. Co. v. International Union of Elec., 367 U.S. 396, 408 (1961)). The agencies have, moreover, consistently adhered to that construction for more than three decades. This Court “normally accord[s] particular deference to an agency interpretation of ‘longstanding’ duration,” Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 487 (2004) (ADEC) (quoting Barnhart v. Walton, 535 U.S. 212, 220 (2002)), and to agency positions applied “with consistency,” Federal Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008). And there are particularly strong reasons not to disturb a long- settled administrative interpretation where, as here, it has generated “substantial reliance” by parties who have structured their affairs based on a position con- sistently and frequently reaffirmed by the responsible agencies. Zenith Radio Corp. v. United States, 437 U.S. 443, 457 (1978). Deference is also appropriate “where [a] regulatory scheme is highly detailed.” United States v. Mead 27 Corp., 533 U.S. 218, 235 (2001). That principle applies with special force to ERISA, “an enormously complex and detailed statute.” Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993). This Court has thus traditionally deferred to the IRS, DOL, and PBGC when interpret- ing ERISA because “to attempt to answer these ques- tions without the views of the agencies responsible for enforcing ERISA, would be to embark upon a voyage without a compass.” Mead Corp. v. Tilley, 490 U.S. 714, 726 (1989) (brackets and citation omitted); see Beck v. Pace Int'l Union, 551 U.S. 96, 104 (2007) (same). And the Court has extended such deference even where, as here, the relevant administrative in- terpretation was reflected in opinion letters rather than notice-and-comment regulations. See, e.g., Ray- mond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 17-18 (2004) (DOL advisory opin- ion); Mead, 490 U.S. at 722-725 (PBGC opinion let- ters). 2. Congress’s subsequent treatment of church plans confirms that the Court should not “reject as impermissible [the agencies’] longstanding, consist- ently maintained interpretation.” ADEC, 540 U.S. at 488. In the decades since enacting the MPPAA, Con- gress has repeatedly revisited the legal status of church plans to refine their treatment under ERISA, the Internal Revenue Code, and related laws. In 2015, for example, Congress enacted a detailed provision modifying the application of a variety of tax provisions to church plans. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 336, 129 Stat. 3109-3113. Congress has also preempted the application of cer- tain state laws to church plans. See id. § 336(c), 129 Stat. 3111; see also Act of July 10, 2000, Pub. L. No. 28 106-244, 114 Stat. 499 (enacting 29 U.S.C. 1144a). And Congress has incorporated the MPPAA definition into a variety of other statutes affording exemptions or special treatment to church plans.’ The fact that Congress has repeatedly refined the legal treatment of church plans and extended the church-plan exemption to other contexts without dis- turbing the agencies’ longstanding interpretation further confirms that the agencies’ interpretation is correct. “It is well established that when Congress revisits a statute giving rise to a longstanding admin- istrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the inter- " See, e.g., Social Security Protection Act of 2004, Pub. L. No. 108-203, § 422, 118 Stat. 536 (amending 42 U.S.C. 411(a)(7) to exempt certain benefits paid by church plans); Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, § 659, 115 Stat. 139 (enacting 26 U.S.C. 4980F(f)(2), which excludes defined-benefit church plans from the requirement to notify partic- ipants of benefit accrual reductions in advance); Taxpayer Relief Act of 1997, Pub. L. No. 105-34, § 1532, 111 Stat. 1085 (adopting 26 U.S.C. 9802(c) (now codified as 26 U.S.C. 9802(f)), which partially exempts church plans from a prohibition against discrimination based on health status); National Securities Markets Improvement Act of 1996, Pub. L. No. 104-290, § 508, 110 Stat. 3447-3449 (enact- ing various provisions exempting church plans from securities laws); Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, § 402, 110 Stat. 2084-2085 (enacting 26 U.S.C. 4980D(b\(3)(C), which exempts church plans from an excise tax imposed on health plans that do not meet certain requirements); Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 10001(b), 100 Stat. 223 (exempting church plans from a tax provision related to continuation health coverage). 29 pretation is the one intended by Congress.’” CFTC v. Schor, 478 U.S. 833, 846 (1986) (citation omitted); see, e.g., Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 827-828 (2013). In 2004, moreover, Congress enacted a statute premised on the understanding that a church plan need not be established by a church. The statute addressed the pension plan of the Young Men’s Chris- tian Association (YMCA). That plan had not been established by a church, but the [RS—relying on the agencies’ longstanding interpretation—had concluded that the plan was “in full compliance” with the church- plan exemption, with the “possible exception” that the YMCA was not “affiliated with any one church.” 149 Cong. Rec. 7380 (Mar. 25, 2003) (Sen. Bunning); see 150 Cong. Rec. 24,328-24,331 (Nov. 19, 2004) (similar). To resolve that uncertainty about the YMCA plan’s status, Congress enacted a statute providing that, for specified purposes, the plan “shall be treated as a church plan (within the meaning of section 414(e) of [the Internal Revenue] Code) which is maintained by an organization described in section 414(e)(3)(A) of such Code.” Act of Dec. 21, 2004, Pub. L. No. 108-476, § 1(a), 118 Stat. 3901 (emphasis added). That provi- sion reflects cou.gressional ratification of the agencies’ view that a plan need not be established by a church to qualify for church-plan treatment. And the specific reference to 26 U.S.C. 414(e)(8)(A)—the Internal Revenue Code counterpart to Section 1002(33)(C)(i)— shows that Congress understood that being “main- tained” by a principal-purpose organization described in those provisions is sufficient to confer church-plan status. 30 D. There Is No Sound Reason To Reject The Agencies’ Longstanding Interpretation And Impose A Church- Establishment Requirement The courts of appeals identified no sound reason to upset decades of reliance on the agencies’ longstand- ing interpretation by imposing a church-establishment requirement. 1. The courts of appeals appeared to believe that requiring a church to “establish” a church plan would ensure that the church retained control of or financial responsibility for the plan. See, ¢.g., Advocate Pet. App. 17a-18a. Even if that were correct, the courts’ apparent view that an ERISA exemption should be conditioned on continuing church involvement would not justify the imposition of a requirement that Con- gress omitted from the statute. And in any event, requiring a church to establish a plan in the first in- stance would not guarantee such an ongoing role. The question whether an employer or other entity “established” an ERISA plan typically arises when there is a dispute about whether a benefit plan trig- gering ERISA obligations exists at all. In that con- text, the courts of appeals have concluded that the establishment of a plan does not require a formal written document and instead turns on a practical inquiry into the surrounding circumstances. The leading decision held that an ERISA plan is “estab- lished” if “a reasonable person can ascertain the in- tended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) (en banc); see Williams v. WCI Steel Co., 170 F.3d 598, 603 n.3 (6th Cir. 1999). 31 By analogy, requiring a church to “establish” an ERISA-exempt plan for the employees of a church agency would require the church to play some role in the plan’s creation. But even for plans subject to ERISA, the employer or other entity that establishes a plan in the first instance does not necessarily retain ongoing responsibility. ERISA defines the “sponsor” responsible for a plan as the employer or other entity that “establishe[s] or maintain(s]” the plan. 29 U.S.C. 1002(16)(B) (emphasis added). And it is not uncommon for an ERISA plan to be initially estab- lished by one entity and later transferred to a differ- ent entity, which assumes responsibility for maintain- ing it. See, e.g., 29 U.S.C. 1058 (regulating plan mer- gers and transfers); see also 26 U.S.C. 414(/) (same). In such circumstances, the entity that established the plan need not retain any continuing financial liability or other involvement. Limiting the church-plan exemption to plans initial- ly “established” by churches thus would not guarantee that the churches would play an ongoing role in the exempt plans. To the contrary, Section 1002(33)(C)(i) expressly contemplates that the principal-purpose organization that “maintain{s]” such a plan may have responsibility for the plan’s “administration” and “funding.” 29 U.S.C. 1002(33)(C)(i). The courts of appeals identified no reason why Congress would have wanted to condition an exemption for plans funded and controlled by church-affiliated principal-purpose organizations on a requirement that those plans be “established” in the first instance by churches. To the contrary, as the Second Circuit observed in a different context, “the status of the entity which currently maintains a particular pension plan bears more rela- 32 tion to Congress’ goals in enacting ERISA and its various exemptions, than does the status of the entity which established the plan.” Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 920 (1987), cert. denied, 485 U.S. 936 (1988). 2. Respondents have also argued that Congress would not have intended to exclude the employees of large healthcare providers like petitioners from ERISA. But the MPPAA amendments unambiguous- ly allow the employces of any tax-cxempt organization “controlled by or associated with « church” to be cov- ered under an exempt church plan; indeed, Congress expressly deemed such employees to be “employee(s! of a church.” 29 U.S.C. 1002(33)((C)GIDUID. It was understood at the time that those amendments would allow the exemption of plans covering the employees of church agencies, including “hospital[s].” Executive Session 41 (Daniel Halperin, Deputy Assistant Secre- tary, Dep’t of Treasury); see, ¢.g., 126 Cong. Rec. at 20,208 (Joint Explanation of S. 1076); 125 Cong. Reg. at 10,052 (Sen. Talmadge). There is thus no dispute that the employees of a church-affiliated hospital that otherwise satisfies the statutory requirements can be covered under an E-RISA-exempt church plan. Indeed, the Third Cir- cuit emphasized that its interpretation “by no means eliminated” the “ability of church agencies to have their employees covered by exempt plans.” St. Peter’s Pet. App. 25a. Instead, the only question is the mech- anism by which that, result may be achieved. As the administering agencies have long concluded—and as the statutory text, context, history, and purpose con- firm—Congress did not condition the church-plan 33 exemption on a church establishing the plan in the first instance.* * Respondents have argued that the canon of constitutional avoidance supports their position because exempting petitioners’ plans from ERISA would violate the Establishment Clause. Advocate Br. in Opp. 34-35; St. Peter’s Br. in Opp. 26-27; Dignity Br. in Opp. 34-35. The courts of appeals correctly declined to rely on the avoidance canon. In other circumstances, this Court has recognized that Congress may, consistent with the Establishment Clause, respect religious autonomy and avoid entanglement with the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987); cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501-507 (1979). In addition, the church-establishment requirement that respondents seek to im- pose would not cure the purported constitutional defect they identify because it would not narrow the range of employees who could potentially be covered under ERISA-exempt plans— instead, it would merely condition that exemption on the additional proce- dural step of church establishment. 34 CONCLUSION The judgments of the courts of appeals should be reversed. Respectfully submitted. ROBERT J. NEIS EDWIN S. KNEEDLER Benefits Tax Counsel Deputy Solicitor General® Department of the Treasury JOYCE R. BRANDA wy erey oe , camensten mely Chief Comnse Ripreeties x) : ay ey = —— futernal Renenue Scrvice G J KATHERINE E. BISSELL MARK B. STERN Deputy Solicitor for ALISA B. KLEIN egianal Enforceinent NICOLAS Y. RILEY Depertment of Labor Attorneys JUDITH R. STARR General Counsel Pension Benefit Guaranty Corporation JANUARY 2017 * The Acting Solicitor General is recused in this case. APPENDIX 1. 26 U.S.C. 414(e) provides: Definitions and special rules (e) Church plan (1) In general For purposes of this part, the term “church plan” means a plan established and maintained (to the extent required in paragraph (2)(B)) for its em- ployees (or their beneficiaries) by a church or by a convention or association of churches which is ex- empt from tax under section 501. (2) Certain plans excluded The term “church plan” does not include a plan— (A) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or businesses (within the meaning of section 513); or (B) if less than substantially all of the indi- viduals included in the plan are individuals de- scribed in paragraph (1) or (3)(B) (or their bene- ficiaries). (3) Definitions and other provisions For purposes of this subsection— (A) Treatment as church plan (la) 2a A plan established and maintained for its em- ployees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administra- tion or funding of a plan or program for the pro- vision of retirement benefits or welfare benefits, or both, for the employees of a church or a con- vention or association of churches, if such organ- ization is controlled by or associated with a church or a convention or association of church- es. (B) Employee defined The term employee of a church or a conven- tion or association of churches shall include— (i) a duly ordained, commissioned, or li- censed minister of a church in the exercise of his ministry, regardless of the source of his compensation; (ii) an employee of an _ organization, whether a civil law corporation or otherwise, which is exempt from tax under section 501 “and which is controlled by or associated with a church or a convention or association of churches; and (iii) an individual described in subpara- graph (E). (C) Church treated as employer A church or a convention or association of churches which is exempt from tax under section 3a 501 shall be deemed the employer of any indi- vidual included as an employee under subpara- graph (B). (D) Association with church An organization, whether a civil law corpora- tion or otherwise, is associated with a church or a convention or association of churches if it shares common religious bonds and convictions with that church or convention or association of churches. (E) Special rule in case of separation from plan If an employee who is included in a church plan separates from the service of a church or a convention or association of churches or an or- ganization described in clause (ii) of paragraph (3)(B), the church plan shall not fail to meet the requirements of this subsection merely because the plan— (i) retains the employee’s accrued benefit or account for the payment of benefits to the employee or his beneficiaries pursuant to the terms of the plan; or (ii) receives contributions on the employ- ee’s behalf after the employee’s separation from such service, but only for a period of 5 years after such separation, unless the em- ployee is disabled (within the meaning of the disability provisions of the church plan or, if there are no such provisions in the church plan, within the meaning of section 72(m)(7)) at the time of such separation from service. 4a (4) Correction of failure to meet church plan re- quirements (A) In general If a plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 fails to meet one or more of the requirements of this subsection and corrects its failure to meet such requirements within the correction period, the plan shall be deemed to meet the requirements of this subsection for the year in which the cor- rection was made and for all prior years. (B) Failure to correct If a correction is not made within the correc- tion period, the plan shall be deemed not to mect the requirements of this subsection beginning with the date on which the earliest failure to meet one or more of such requirements occurred. (C) Correction period defined The term “correction period” means— (i) the period, ending 270 days after the date of mailing by the Secretary of a notice of default with respect to the plan’s failure to meet one or more of the requirements of this subsection; (ii) any period set by a court of competent jurisdiction after a final determination that the plan fails to meet such requirements, or, if the court does not specify such period, any reasonable period determined by the Secre- 5a tary on the basis of all the facts and circum- stances, but in any event not less than 270 days after the determination has become final; or (iii) any additional period which the Sec- retary determines is reasonable or necessary for the correction of the default, whichever has the latest ending date. (5) Special rules for chaplains and self-employed ministers (A) Certain ministers may participate For purposes of this part— (i) In general A duly ordained, commissioned, or licensed minister of a church is described in paragraph (3)(B) if, in connection with the exercise of their ministry, the minister— (I) is a self-employed individual (within the meaning of section 401(c)(1)(B), or (II) is employed by an organization other than an organization which is de- scribed in section 501(c)(3) and with respect to which the minister shares common reli- gious bonds. (ii) Treatment as employer and employee For purposes of sections 403(b)(1)(A) and 404(a)(10), a minister described in clause (i)(I) shall be treated as employed by the minister's own employer which is an organization de- 6a scribed in section 501(c)(3) and exempt from tax under section 501(a). (B) Special rules for applying section 403(b) to self-employed ministers In the case of a minister described in subpar- agraph (A)(iI)— (i) the minister’s includible compensation under section 403(b)(3) shall be determined by reference to the minister’s earned income (within the meaning of section 401(c)(2)) from such ministry rather than the amount of com- pensation which is received from an employer, and (ii) the years (and portions of years) in which such minister was a self-employed indi- vidual (within the meaning of section 401(c)(1)(B)) with respect to such ministry shall be included for purposes of section 403(b)(4). (C) Effect on non-denominational plans If a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry participates in a church plan (within the meaning of this section) and in the exercise of such ministry is employed by an employer not otherwise participating in such church plan, then such employer may exclude such minister from being treated as an employee of such employer for purposes of applying sections 401(a)(3), 401(a)(4), and 401(a)(5), as in effect on Septem- ber 1, 1974, and sections 401(a)(4), 401(a)(5), 401(a)(26), 401(k)(3), 401(m), 403(b)(1)(D) (in- 7a cluding section 403(b)(12)), and 410 to any stock bonus, pension, profit-sharing, or annuity plan (including an annuity described in section 403(b) or a retirement income account described in sec- tion 403(b)(9)). The Secretary shall prescribe such regulations as may be necessary or appro- priate to carry out the purpose of, and prevent the abuse of, this subparagraph. (D) Compensation taken into account only once If any compensation is taken into account in determining the amount of any contributions made to, or benefits to be provided under, any church plan, such compensation shall not also be taken into account in determining the amount of any contributions made to, or benefits to be pro- vided under, any other stock bonus, pension, profit-sharing, or annuity plan which is not a church plan. (E) Exclusion In the case of a contribution to a church plan made on behalf of a minister described in sub- paragraph (A)(i)(I]), such contribution shall not be included in the gross income of the minister to the extent that such contribution would not be so included if the minister was an employee of a church. 8a 2. 29 U.S.C. 1002 provides in pertinent part: Definitions For purposes of this subchapter: (1) The terms “employee welfare benefit plan” and “welfare plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organi- zation, or by both, to the extent that such plan, fund, or program was established or is maintained for the pur- pose of providing for its participants or their benefi- ciaries, through the purchase of insurance or other- wise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, appren- ticeship or other training programs, or day care cen- ters, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and in- surance to provide such pensions). (2)(A) Except as provided in subparagraph (B), the terms “employee pension benefit plan” and “pen- sion plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a re- sult of surrounding circumstances such plan, fund, or program— (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, 9a regardless of the method of calculating the contribu- tions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. A distribution from a plan, fund, or program shall not be treated as made in a form other than retirement income or as a distribution prior to termination of covered employment solely be- cause such distribution is made to an employee who has attained age 62 and who is not separated from em- ployment at the time of such distribution. oF € * + * (3) The term “employee benefit plan” or “plan” means an employee welfare benefit plan or an em- ployee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pen- sion benefit plan. * * * * . (5) The term “employer” means any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity. (6) The term “employee” means any individual employed by an employer. * . * * * (16)A) The term “administrator” means— (i) the person specifically so designated by the terms of the instrument under which the plan is op- erated; 10a (ii) if an administrator is not so designated, the plan sponsor; or (iii) in the case of a plan for which an adminis- trator is not designated and a plan sponsor cannot be identified, such other person as the Secretary may by regulation prescribe. (B) The term “plan aponsor” means (i) the cm- ployer in the case of an employee benefit plan estab- lished or maintained by a single employer, (ii) the em- ployee organization in the cause of a plan established or maintained hy an employee organization, or (iii) in Lhe case of a plan established or maintained by two or more employers or jointly by one or more employers and one or more employee oryanizations, the associa- tion, committee, joint board of trustees, or other simi- lar group of representatives of the parties who estab- lish or maintain the plan. > * . * * (33)(A) The term “church plan” means a plan es- tablished and maintained (to the extent required in clause (ii) of subparagraph (B)) for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax un- der section 501 of title 26. (B) The term “church plan” does not include a plan— (i) which is established and maintained pri- marily for the bencfit of employees (or their benefi- ciaries) of such church or convention or association of churches who are employed in connection with lla one or more unrelated trades or businesses (within the meaning of section 513 of title 26), or (ii) if less than substantially all of the individu- als included in the plan are individuals described in subparagraph (A) or in clause (ii) of subparagraph (C) (or their beneficiaries). (C) For purposes of this paragraph— (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration ur funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the em- ployees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or associa- tion of churches. (ii) The term employee of a church or a conven- tion or association of churches includes— (1) a duly ordained, commissioned, or li- censed minister of a church in the exercise of his ministry, regardless of the source of his com- pensation; (II) an employee of an organization, whether a civil law corporation or otherwise, which is ex- empt from tax under section 501 of title 26 and which is controlled by or associated with a church or a convention or association of church- es; and 12a (III) an individual described in clause (v). (iii) A church or a convention or association of churches which is exempt from tax under section 501 of title 26 shall be deemed the employer of any individual included as an employee under clause (ii). (iv) An organization, whether a civil law corpo- ration or otherwise, is associated with a church or a convention or association of churches if it shares common religious bonds and convictions with that church or convention or association of churches. (v) If an employee who is included in a church plan separates from the service of a church or a convention or association of churches or an organi- zation, whether a civil law corporation or otherwise, which is exempt from tax under section 501 of title 26 and which is controlled by or associated with a church or a convention or association of churches, the church plan shall not fail to meet the require- ments of this paragraph merely because the plan— (I) retains the employee’s accrued benefit or account for the payment of benefits to the em- ployee or his beneficiaries pursuant to the terms of the plan; or (Il) receives contributions on the employee’s behalf after the employee’s separation from such service, but only for a period of 5 years after such separation, unless the employee is disabled (within the meaning of the disability provisions of the church plan or, if there are no such provi- sions in the church plan, within the meaning of section 72(m)(7) of title 26) at the time of such separation from service. 13a (D)i) Ifa plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of title 26 fails to meet one or more of the requirements of this paragraph and cor- rects its failure to meet such requirements within the correction period, the plan shall be deemed to meet the requirements of this paragraph for the year in which the correction was made and for all prior years. (ii) If a correction is not made within the correc- tion period, the plan shall be deemed not to meet the requirements of this paragraph beginning with the date on which the earliest failure to meet one or more of such requirements occurred. (iii) For purposes of this subparagraph, the term “correction period” means— (I) the period ending 270 days after the date of mailing by the Secretary of the Treasury of a no- tice of default with respect to the plan’s failure to meet one or more of the requirements of this para- graph; or (II) any period set by a court of competent ju- risdiction after a final determination that the plan fails to meet such requirements, or, if the court does not specify such period, any reasonable period de- termined by the Secretary of the Treasury on the basis of all the facts and circumstances, but in any event not less than 270 days after the determination has become final; or l4a (111) any additional period which the Secretary of the Treasury determines is reasonable or neces- sary for the correction of the default, whichever has the latest ending date. > * > > * 3. 26 U.S.C. 414(e) (1976) provides: Definitions and special rules (e) Church plan (1) In general For purposes of this part the term “church plan” means— (A) a plan established and maintained for its employees by a church or by a convention or as- sociation of churches which is exempt from tax under section 501, or (B) a plan described in paragraph (3). (2) Certain unrelated business or multiemployer plans The term “church plan” does not include a plan— (A) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or businesses (within the meaning of section 513), or (B) which is a plan maintained by more than one employer, if one or more of the employers in 15a the plan is not a church (or a convention or asso- ciation of churches) which is exempt from tax under section 501. (3) Special temporary rule for certain church agencies under church plan (A) Notwithstanding the provisions of para- graph (2)(B), a plan in existence on January 1, 1974, shall be treated as a church plan if it is es- tablished and maintained by a church or conven- tion or association of churches and one or more agencies of such church (or convention or associ- ation) for the employees of such church (or con- vention or association) and the employees of one or more agencies of such church (or convention or association), and if such church (or convention or association) and each such agency is exempt from tax under section 501. (B) Subparagraph (A) shall not apply to any plan maintained for employees of an agency with respect to which the plan was not maintained on January 1, 1974. (C) Subparagraph (A) shall not apply with respect to any plan for any plan year beginning after December 31, 1982. 4. 29 U.S.C. 1002(33) (1976) provides: Definitions (33)(A) The term “church plan” means (i) a plan established and maintained for its employees by a church or by a convention or association of churches l6a which is exempt from tax under section 501 of title 26, or (ii) a plan described in subparagraph (C). (B) The term “church plan” (notwithstanding the provisions of subparagraph (A)) does not include a plan— (i) which is established and maintained pri- marily for the benefit of employees (or their benefi- ciaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or businesses (within the meaning of section 513 of title 26), or (ii) which is a plan maintained by more than one employer, if one or more of the employers in the plan is not a church (or a convention or association of churches) which is exempt from tax under section 501 of title 26. (C) Notwithstanding the provisions of subpara- graph (B)(ii), a plan in existence on January 1, 1974, shall be treated as a “church plan” if it is established and maintained by a church or convention or associa- tion of churches for its employees and employees of one or more agencies of such church (or convention or as- sociation) for the employees of such church (or conven- tion or association) and the employees of one or more agencies of such church (or convention or association), and if such church (or convention or association) and each such agency is exempt from tax under section 501 of title 26. The first sentence of this subparagraph shall not apply to any plan maintained for employees of an agency with respect to which the plan was not maintained on January 1, 1974. The first sentence of 17a this subparagraph shall not apply with respect to any plan for any plan year beginning December 31, 1982. 5. Pub. L. No. 108-476, 118 Stat. 3901 provides: SECTION 1. CERTAIN ARRANGEMENTS MAIN- TAINED BY THE YMCA RETIREMENT FUND TREATED AS CHURCH PLANS. (a) RETIREMENT PLANS.— (1) IN GENERAL.—For purposes of sections 401(a) and 403(b) of the Internal Revenue Code of 1986, any retirement plan maintained by the YMCA Retirement Fund as of January 1, 2003, shall be treated as a church plan (within the meaning of sec- tion 414(e) of such Code) which is maintained by an organization described in section 414(e)(3)(A) of such Code. (2) TAX-DEFERRED RETIREMENT PLAN.—In the case of a retirement plan described in paragraph (1) which allows contributions to be made under a salary reduction agreement— (A) such treatment shall not apply for pur- poses of section 415(c)(7) of such Code, and (B) any account maintained for a participant or beneficiary of such plan shall be treated for purposes of such Code as a retirement income account described in section 403(b)(9) of such Code, except that such account shall not, for pur- poses of section 403(b)(12) of such Code, be treated as a contract purchased by a church for purposes of section 403(b)(1)(D) of such Code. 18a (3) MONEY PURCHASE PENSION PLAN.—lIn the case of a retirement plan described in paragraph (1) which is subject to the requirements of section 401(a) of such Code— (A) such plan (but not any reserves held by the YMCA Retirement Fund)— (i) shall be treated for purposes of such Code as a defined contribution plan which is a money purchase pension plan, and (ii) shall be treated as having made an election under section 410(d) of such Code for plan years beginning after December 31, 2005, except that notwithstanding the election— (I) nothing in the Employee Retirement Income Security Act of 1974 or such Code shall prohibit the YMCA Retirement Fund from commingling for investment purposes the assets of the electing plan with the as- sets of such Fund and with the assets of any employee benefit plan maintained by such Fund, and (II) nothing in this section shall be con- strued as subjecting any assets described in subclause (I), other than the assets of the electing plan, to any provision of such Act, (B) notwithstanding section 401(a)(11) or 417 of such Code or section 205 of such Act, such plan may offer a lump-sum distribution option to par- ticipants who have not attained age 55 without offering such participants an annuity option, and 19a (C) any account maintained for a participant or beneficiary of such plan shall, for purposes « ' section 401(a)(9) of such Code, be treated as a retirement income account described in section 403(b)(9) of such Code. (4) SELF-FUNDED DEATH BENEFIT PLAN.—For purposes of section 7702(j) of such Code, a retire- ment plan described in paragraph (1) shall be treated as an arrangement described in section 7702GQ)(2). (b) YMCA RETIREMENT F'UND.—For purposes of this section, the term “YMCA Retirement Fund” means the Young Men’s Christian Association Retire- ment Fund, a corporation created by an Act of the State of New York which became law on April 30, 1921. (c) EFFECTIVE DATE.—This section shall apply to plan years beginning after December 31, 2003. 6. 26C.F.R. 1.414(e)-1 provides: Definition of church plan. (a) General rule. For the purposes of part I of subchapter D of chapter 1 of the Code and the regula- tions thereunder, the term “church plan” means a plan established and at all times maintained for its em- ployees by a church or by a convention or association of churches (hereinafter included within the term “church”) which is exempt from tax under section 501(a), provided that such plan meets the requirements of paragraphs (b) and (if applicable) (c) of this section. If at any time during its existence a plan is not a church plan because of a failure to meet the requirements set 20a forth in this section, it cannot thereafter become a church plan. (b) Unrelated businesses—(1) In general. A plan is not a church plan unless it is established and main- tained primarily for the benefit of employees (or their beneficiaries) who are not employed in connection with one or more unrelated trades or businesses (within the meaning of section 513). (2) Establishment or maintenance of a plan pri- marily for persons not employed in connection with one or more unrelated trades or businesses. (i) (A) A plan, other than a plan in existence on September 2, 1974, is established primarily for the benefit of em- ployees (or their beneficiaries) who are not employed in connection with one or more unrelated trades or busi- nesses if on the date the plan is established the number of employees employed in connection with the unre- lated trades or businesses eligible to participate in the plan is less than 50 percent of the total number of employees of the church eligible to participate in the plan. (B) A plan in existence on September 2, 1974, is to be considered established as a plan primarily for the benefit of employees (or their beneficiaries) who are not employed in connection with one or more unrelated trades or businesses if it meets the requirements of both paragraphs (b)(2)(ii) (A) and (B) (if applicable) in either of its first 2 plan years ending after September 2, 1974. (ii) For plan years ending after September 2, 1974, a plan will be considered maintained primarily for the benefit of employees of a church who are not employed Z2la in connection with one or more unrelated trades or businesses if in 4 out of 5 of its most recently completed plan years— (A) Less than 50 percent of the persons partici- pating in the plan (at any time during the plan year) consist of and in the same year (B) Less than 50 percent of the total compensation paid by the employer during the plan year (if benefits or contributions are a function of compensation) to employees participating in the plan is paid to, employ- ees employed in connection with an unrelated trade or business. The determination that the plan is not a church plan will apply to the second year (within a 5 year period) for which the plan fails to meet paragraph (b)(2){ii) (A) or (B) (if applicable) and to all plan years thereafter unless, taking into consideration all of the facts and circumstances as described in paragraph (b)(2)(iii) of this section, the plan is still considered to be achurch plan. A plan that has not completed 5 plan years ending after September 2, 1974, shall be consid- ered maintained primarily for the benefit of employees not employed in connection with an unrelated trade or business unless it fails to meet paragraphs (b)(2)(ii) (A) and (B) in at least 2 such plan years. (iii) Even though a plan does not meet the provi- sions of paragraph (b)(2)ii) of this section, it nonethe- less will be considered maintained primarily for the benefit of employees who are not employed in connec- tion with one or more unrelated trades or businesses if the church maintaining the plan can demonstrate that based on all of the facts and circumstances such is the case. Among the facts and circumstances to be con- sidered in evaluating each case are: 22a (A) The margin by which the plan fails to meet the provisions of paragraph (b)(2)(ii) of this section, and (B) Whether the failure to meet such provisions was due to a reasonable mistake as to what constituted an unrelated trade or business or whether a particular person or group of persons were employed in connec- tion with one or more unrelated trades or businesses. (iv) For purposes of this section, an employee will be considered eligible to participate in a plan if such em- ployee is a participant in the plan or could be a partic- ipant in the plan upon making mandatory employee contributions to the plan. (3) Employment in connection with one or more unrelated trades or businesses. An employee is em- ployed in connection with one or more unrelated trades or businesses of a church if a majority of such em- ployee’s duties and responsibilities in the employ of the church are directly or indirectly related to the carrying on of such trades or businesses. Although an em- ployee’s duties and responsibilities may be insignificant with respect to any one unrelated trade or business, such employee will nonetheless be considered as em- ployed in connection with one or more unrelated trades or businesses if such employee’s duties and responsi- bilities with respect to all of the unrelated trades or businesses of the church represent a majority of the total of such person’s duties and responsibilities in the employ of the church. (c) Plans of two or more employers. The term “church plan” does not include a plan which, during the plan year, is maintained by two or more employers unless— 23a (1) Each of the employers is a church that is ex- empt from tax under section 501(a), and (2) With respect to the employees of each employer, the plan meets the provisions of paragraph (b)(2)(ii) of this section or would be determined to be a church plan based on all the facts and circumstances described in paragraph (b)(2)(iii) of this section. Thus, if with respect to a single employer the plan fails to meet any provision of this paragraph, the entire plan ceases to be a church plan unless that employer ceases maintaining the plan for all plan years beginning after the plan year in which it receives a final notification from the Internal Revenue Service that it does not meet the provisions of this paragraph. Ifthe employer does cease maintaining the plan in accordance with this paragraph, the fact that the employer formerly did maintain the plan will not prevent the plan from being a church plan for prior years. (d) Special rule. (1) Notwithstanding paragraph (c)(1) of this section, a plan maintained by a church and one or more agencies of such church for the employees of such church and of such agency or agencies, that is in existence on January 1, 1974, shall be treated as a church plan for plan years ending after September 2, 1974, and beginning before January 1, 1983, provided that the plan is described in paragraph (c) of this sec- tion without regard to paragraph (c)(1) of this section, and the plan is not maintained by an agency which did not maintain the plan on January 1, 1974. (2) For the purposes of section 414(e) and this sec- tion, an agency of a church means an organization which is exempt from tax under section 501 and which 24a is either controlled by, or associated with, a church. For example, an organization, a majority of whose officers or directors are appointed by a church’s gov- erning board or by officials of a church, is controlled by a church within the meuning of this paragraph. An organization is associuted with a chureh if it shares common religious bon!s and convictions with that church. (e) Religious orders and religious organizations. For the purpose of this section the term “church” includes a religious order or a religious organization if such order or organization (1) is an integral part of a church, and (2) is engaged in carrying out the functions of a church, whether as a civil law corporation or oth- erwise. (f) Separately incorporated fiduciaries. A plan which otherwise meets the provisions of this section shall not lose its status as a church plan because of the fact that it is administered by a separately incorporated fiduciary such as a pension board or a bank. (g) Cross reference. (1) For rules relating to treatment of church plans, see section 410(c), 411(e), 412(h), 4975(g), and the regulations thereunder. (2) For rules relating to church plan elections, see section 410(d) and the regulations thereunder. FILED FEB 23 2017 Nos. 16-74, 16-86, 16-258 Sn EPS In the Supreme Court of the Anited States ADVOCATE HEALTH CARE NETWCREK, et ai., Petitioners, Vv. MARIA STAPLETON, et al., Respondents. SAINT PETER’S HEALTHCARE SYSTEM, et al., Petitioners, Vv. LAURENCE KAPLAN, Respondent. DIGNITY HEALTH, et al., Petitioners, v. STARLA ROLLINS, Respondent. On Writs of Certiorari to the United States Courts of Appeals for the Third, Seventh, and Ninth Circuits BRIEF OF AARP AND AARP FOUNDATION AS AMICI CURIAE IN SUPPORT OF RESPONDENTS WILLIAM ALVARADO RIVERA MARY ELLEN SIGNORILLE* AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 Tel: (202) 434-2072 Counsel for Amiai Curiae AARP and AARP Foundation *Counsel of Record TABLE OF CONTENTS pf, ERTL I EE iv INTEREST OF AMICI CURIAE ................000000000.004. 1 SUMMARY OF ARGUMENT .....00000......00. cece 4 i alididesecicesehaciaaieipsvnieg ibaa scinlaaibesiiioaiacitibhniliniennn 7 I. PETITIONERS ARE BUSINESSES, NOT CHURCHES, AND THUS ARE NOT ENTITLED TO TAKE ADVANTAGE OF ERISA’S CHURCH FB irrttnciconnssecerievecesesesivmrees cence 7 Il. CONGRESS ENACTED ERISA IN RESPONSE TO BROKEN PENSION PROMISES TO ENSURE THAT EMPLOYEES RECEIVE THEIR REESE SEER ROO EN NCES aa 13 A. Employers Promise Pensions to Employees As Deferred iin ccicescensesentesnsees 18 B. Congress Enacted ERISA In Response To Broken Pension IIIA sccshccdnteatttaadlesicdtenladedaadabaedds 14 Ii. ul C. Because Congress’ Intended That ERISA Cover The Majority Of Employee Benefit Plans To Ensure That Employees Receive Their Pensions, The Church Plan Exemption Should Be Narrowly Construed.......................-.... BROAD APPLICATION OF THE CHURCH PLAN EXEMPTION WOULD DEPRIVE EMPLOYEES OF SAFEGUARDS THAT CONGRESS ENACTED TO PROTECT EMPLOYEE PENSIONS ........................... - A. Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA’s Minimum Plan Funding Protections And _ Insurance B. Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA’s Guarantee Of Pension Vesting........... C. Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA’s Protection From Reductions To, Or Elimination Of, Their i nitniisnttecencntenistatsocccsesin Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA’s Fiduciary Protections Against Self-dealing, Mismanagement, Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA's DABCIOSUTO HERSMBE ........00.cccrcccsccccsesseee 31 Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA's Protections For Benefit ER SR a ei 33 Broad Application Of The Church Plan Exemption Would Deprive Employees Of ERISA's iV TABLE OF AUTHORITIES Cases A. H. Phillips, Inc. v. Walling, a sseuebemmniemenenn 18 Alessi v. Raybestos-Manhattan, Inc., A 6, 25 Amato v. Western Union Int'l, Inc., Fe ee Be Ce Ge Bi ivcccccccccocccescseccccccscces 27 Andrus v. Glover Constr. Co.., i . ccodommuininbiosnsodons 17 A-T-O-Inc. v. Pension Benefit Guar. Corp., 634 F.2d 1013 (6th Cir. 1980)............................. 20 Boggs v. Boggs, I esas 33 Cent. Laborers’ Pension Fund v. Heinz, a ieneduacsouis 5, 26, 28 CIGNA Corp. v. Amara, IEE SRS ART Ee ae ee 1 Comm’r of Internal Revenue v. Keystone Consol. Indus., Inc., 508 U.S. 152 (1999) ........... 30 Grossmuller v. Int'l Union, UAW, 716 F.2d 868 (Sd Cir. 1963)..............ccccccsseccccescoes 34 Vv Guidry v. Sheet Metal Workers Nat'l Pension PE, Ge es Ge I cc crcescccecccseseccecesccnecesses 18 Hughes Aircraft Co. v. Jacobson, ee assubniphaneonnebe 13 John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 86 (1998)............0..0....004. 18 Kaplan v. St. Peter's Healthcare Sys., 810 F.3d 175 (3d Cir. 2015).................-..... 1, 19, 22 LaRue v. DeWolff, Boberg & Assocs., a csbapinbchnnbenenbibind 1 Lockheed Corp. v. Spink, og | nm Malone v. White Motor Corp., ll. cossubbenssente 14 McDonald v. Pension Plan of NYSA-ILA Pension Tr. Fund, 320 F.3d 151 (2d Cir. SRR Tt A Sa SL AE OR ae 27 Montanile v. Bd. of Trs. of the Nat'l Elevator Indus. Health Ben. Plan, 136 S. Ct. 651 a a als l Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 369 (1980) .............ccccccceesees passim Rodriguez v. Compass Shipping Co., A 17 Rollins v. Dignity Health, 830 F.3d 900 (Oth Cir. 2016)..............cc..cccccccscceree 1 Stapleton v. Advocate Health Care Network, 817 F.3d 517 (7th Cir. 2016)..................... 1, 18, 19 Statutes, Rules and Regulations Employee Retirement Income Security Act (2012), TET sc cconisenscsonenccsedansebmmnnsanied 2 TS 31, 32 ca eciecnctnmaneniinial passim a a ssa cccdesipecneisenantion 2, 19, 29 cis ccnctsinesiononsesennossh 30 I . wcccasasasensunenens 26 I cs ccnsenensnnscnnsoubeni 26 oc rccncunacnspesscesnntnonnnnete 17, 22 TTL I ITN 4 a 32 TTT LESTE SES eS ee 6 Sn on in scncenstnnesnndanionniineseninis 32 i as acatingneiabnndcisinsiadl 32 lin ceri nniccunsatasinianeuseninmmabininenth 32 EE: as scams meinen 6 a ciarieiniccimniiiniennnivi 6, 25, 26 is cirniniecnieneticsstiltenieneieees 6, 26 a sccasesenianniinnnedl 27 In ccrccncesnecetococanensdenecetas 27 Ss IID cncccccunnscecncscrccusesesesecvenen 27 TC 28 (fi__—_ =, a A ES 6 v1l ea | ae eae 33 29 U.S.C. § 1055(C)(2) ....ceecesceccereoeeee- Ss. 33 (Ea. 6 i...” as 33 29 U.S.C. §§ 1081-1085 ...........ececcecesceseeseseseeseeeeeees 6 a i E: 21 a 21 I IG nce sca snes ce cecnscccoeees ee 6 a seumueannetmmnaticvnut 29 Uae 6 ieeee......................................... 8 29 U.S.C. § 1104(a)(1)(A) ....cescccececseeeeeesceeeeeeeeeee- 29 29 U.S.C. § 1104 (a)(1)(B) -....ccceceecccccseecesceceeeeveeen 29 29 U.S.C. § 1104 (a)(1)(C) -..........secsecceseseceeseseeseee 29 29 U.S.C. § 1104(a)(1)(D) -....--.ec-cocseecessececeeenesveee 30 a cencavssesservmmeensn ll 2D U.S.C. § 1106 (a)(1) ....e-ceccececoeeesseeeeveeeeeeeeeoeeeee 30 a spseniueoseomnnanauss 6, 34 ae < 21 20 U.S.C. § 1905-1907 .................-.cecceco.0scscsssss0es. 21 See a eee eee.....................................6 Mandatory Victims Restitution Act (2010) NS 18 Legislative History 2 Legislative History of the Employee Retirement Income Security Act of 1974 94th Cong. (Comm. Print 1976).................... 13, 16 120 CONG. REC. 29928 (1974).......................22222000+00-+- 3 120 CONG. REC. S15737 (daily ed. Aug. 22, 1974), reprinted in 1974 U.S.C.C.A.N. H.R. REP. No. 93-533 (1973), as reprinted in ee es Gi icettcneccoccrcassccncnenscceses 15, 16 H.R. REP. No. 93-807 (1974), reprinted in ee es GI nccecesincnoccesesesenevecseseccocces 27 H.R. CONF. REP. NO. 93-1280 (1974), as reprinted in 1974 U.S.C.C.A.N. 5038 ................. 21 Miscellaneous Pension Bills: Hearings Before the Subcomm. on Private Pension Plans and Emp. Fringe Benefits of the S. Comm. on Fin., 96th Cong. (Comm. Print Dec. 4, ASR RSE eee DIES Risse 7 Private Pension Plans, 1966: Hearings Before the Subcomm. on Fiscal Policy of the d. Econ. Comm., 89th Cong., 104-28 (1966) ............. 5 S. REP. No. 85-1440 (1958), as reprinted in I, SII vrctceceenenntesccescesensecseseseeses 13 S. REP. No. 93-127 (1973), as reprinted in Is Gi ecccnccccncsncsevvevassssons passim S. REP. NO. 93-383 (1973), as reprinted in ik dF 8 5S een 13 S. REP. No. 1440, 85th Cong., 2d Sess. (1958)......... 14 ix Subcomm. on Labor of the S. Comm. on Lab. and Pub. Welfare, Legislative History of the Employee Retirement Income Security Act of 1974: Pub. L. No. 93-406, Vol. III (U.S. Gov't. Printing Off. 1976) .......................... 31 Miscellaneous Advocate Health and Hospitals Corporation, Form 990, Return of Org. Exempt From Income Tax (2014), https://goo.gl/ohNm ith didicsiccistitiiiimeshdanmainiibtinesiscditantietaiedaieaniabdieds 10, 11, 12 Advocate Health Care, About Advocate, TEE AA Advocate Health Care, Executive Profiles, EE 12 Advocate Health Care Network and Subsidiaries, Inc., Consol. Fin. Statements and Supplementary Info., Years Ended December 31, 2015 and 2014 With Reports of Independent Auditors (2016), https://goo.gl/nBvPKD ............ 8, 10, 11, 12 David Barkholz, Dignity and Catholic Health Initiatives are in merger talks, MODERN HEALTHCARE, Oct. 24, 2016, https://goo. RE E+ ) x Hazel Bradford, Participants sue over church-plan status for Holy Cross Hospital pension fund, PENSIONS & INVESTMENTS, June 7, 2016, http://goo 5 ISTE TE he EMO SS EES 23, 28 Danica Coto, Puerto Rico church strips teachers of pension amid crisis, ASSOCIATED PRESS, Apr. 12, 2016, i ncilaraniciedvinbionsens 3 Dignity Health, About Us, https://goo.gl/nnS2 Dignity Health and Subordinate Corporations, Consol. Fin. Statements as of and for the Years Ended June 30, 2015 and 2014 and Independent Auditors’ Report (2015), https://goo.g/OVpzDM.... 10, 11, 12 Dignity Health, Form 990, Return of Org. Exempt From Income Tax (2013), https://goo.gl/Goa0Qy ...............ccceceeeeeeeees 10, 11, 12 Dignity Health, Governance and Leadership, https://goo.g/Z3pwyL (last visited Feb. ii icd ciccchcidicihpinabeinalanccgicgetaaidigedibabinnet 9,12 Emp. Benefit Res. Inst., Sudipto Banerjee, Income Composition, Income Trends, and Income Shortfalls of Older Households, EBRI ISSUE BRIEF No. 383, Feb. 2013, sa ncmtnehegmiminnenaenseinndnten 3 xl Eric Fontinelle, Outliving Your Retirement Savings, FORBES, May 24, 2010, https:// Adam Geller, Associated Press, Workers find retirement money jeopardized by loophole treating hospitals, agencies as churches, Fox NEws, Oct. 5, 2013, https://goo.gl Michael S. Gordon, Overview: Why Was ERISA Enacted? in U.S. Sen. Special Comm. on Aging, 98th Cong., The Employee Retirement Income Security Act of 1974: The First Decade (1984) ................. 25 Claire Hughes, MRetirees of Former Schnectady Hospital Face Pension Loss, TIMES UNION, Jan. 10, 2017, — = /AzPuuW ... isihesildiinsadaleidladdiamdedeal .-- 24, 28 Beth Kutscher, Dignity’s acquisition of U.S. HealthWorks helped bolster fiscal 2013 revenue, MODERN HEALTHCARE, Dec. 26, 2013, https://goo.g/MzDqEVF......................020----00-+ 9 John H. Langbein, The Supreme Court Flunks Trusts, 1990 Sup. CT. REv. 207 SII cssisncesbsisioesisbionapiininudincansdiaiepiaiininembeniaeene 14, 15, 29 JOHN H. LANGBEIN, DAVID A. PRATT, & SUSAN J. STABILE, PENSION AND EMPLOYEE BENEFIT LAW (Robert C. Clark et al. eds., a 1 Oe eeeaia edible 14, 20, 22 xii Mary Jo Layton, Retirees from St. Mary's Hospital in Passaic may lose their pensions in sale, THE RECORD, Apr. 26, 2013, https://goo.g/QbH21o...........-.........-.0+. 23, 28 Mary E. O'Leary, New Haven's St. Raphael workers face decision on pensions, NEW HAVEN REGISTER, July 18, 2013, https://goo.g/HSROUWA ..............cccceeceeeeeeeeeeees 24, 28 Press Release, Pension Benefit Guaranty Corporation, In Reversal, PBGC Covers Pension of Hospital Center at Orange (May 10, 2013), https://goo.g/HSDt1v ......... 23, 28 Ronald C. Rak, Saint Peter's HealthCare System CEO, Saint Peter’s University Hospital meets the community’s needs, NJ.com, Nov. 23, 2016, https://goo.gl/d2i1 Chris Rauber, Dignity Health’s acquisition of U.S. HealthWorks quietly closes, SAN FRANCISCO BUSINESS TIMES, Aug. 15, 2012, https://goo.gl//WGCXzZ1 ...............cceeeeeceeeeees Saint Peter's Healthcare System, Inc., Consol. Fin. Statements and Supplementary Info, Years Ended December 31, 2015 and 2014 With Report of Independent Auditors (2016), TTD 11,12 Saint Peter’s Healthcare System, Inc., Form 990, Return of Org. Exempt From Income Tax (2014), https://goo.gljpEcfg ............. 10, 11, 12 Norman Stein et al., An Article of Faith: The Gratuity Theory of Pensions and Faux Church Plans, EMP. BENEFITS COMM. NEWSL. (ABA Section of Labor and Emp’t Law, Chicago, Ill), Summer 2014, BONE Bc cccccccccccccccccccceccsccccccecss 2, 7,17 Symposium, “The Most Glorious Story of Failure in the Business”: The Studebaker- Packard Corporation and the Origins of ERISA, 49 BUFFALO L. REV. 683 (2001) ....... 15, 24 Mary Williams Walsh, /.R.S. Reversal on ‘Church’ Pension Plan Rescues a Fund, THE NEW YORK TIMES, Apr. 1, 2013, Stephen Williams, Hospital pension fund in trouble, DAILY GAZETTE, Jan. 16, 2017, Ts ceeriaeanieninsnntonnennenen 3 JAMES A. WOOTEN, ERISA: A _ POLITICAL 1 INTEREST OF AMICI CURIAE! AARP is a nonprofit, nonpartisan organization dedicated to fulfilling the needs and representing the interests of people age fifty and older. AARP fights to protect older people’s financial security, health, and well-being. AARP Foundation — AARP’s charitable affiliate — creates and advances effective solutions that help low-income individuals fifty and older to secure the essentials and to prevent them from falling into poverty during retirement. Among other things, AARP and AARP Foundation seek to increase the availability, security, equity, and adequacy of public and private pension, health, disability, and other employee benefits that countless members and older individuals receive or may be eligible to receive, including through participation as amicus curiae in state and federal courts.? ‘ Amici state that no party’s counsel authored this brief either in whole or in part, and further, that no party or party’s counsel, or any person or entity other than AARP, AARP Foundation, AARP’s members, and their counsel, contributed money intended to fund preparing or submitting this brief. Pursuant to Supreme Court Rule 37.3, counsel of record for all parties have consented to this filing in letters on file with the Clerk’s office. 2 Amici either singly or jointly have participated as amicus curiae in numerous cases to protect the rights of workers and their beneficiaries under ERISA. See, e.g., Montanile v. Bd. of Trs. of the Nat'l Elevator Indus. Health Ben. Plan, 136 S. Ct. 651 (2016); CIGNA Corp. v. Amara, 563 U.S. 421 (2011); LaRue vu. DeWolff, Boberg & Assocs., 552 U.S. 248 (2008); Rollins v. Dignity Health, 830 F.3d 900 (9th Cir. 2016); Stapleton v. Advocate Health Care Network, 817 F.3d 517 (7th Cir. 2016); Kaplan v. St. Peter's Healthcare Sys., 810 F.3d 175 (3d Cir. 2015). 2 Congress enacted the Employee Ketirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (2012), after assembling a record that showed a history and pattern of employers failing to provide promised employee benefits, a lack of disclosure and transparency, and varied and numerous financial abuses. Congress intended ERISA to protect “the interests of participants in employee benefit plans and their beneficiaries.” 29 U.S.C. § 1001(b); see also, e.g., Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 361-62 (1980). Although Congress did not require that every pension plan be covered by ERISA, Congress did limit the exemptions to ERISA’s coverage due to the abuses it uncovered and the remedial nature of the legislation. Participants and beneficiaries in private employer-sponsored employee benefit plans must be able to rely on promised pension benefits because the quality of these workers’ lives in retirement depends 8’ Although amici’s focus is the impact of the church plan exemption on pension plans due to the significant negative effects of underfunded plans, make no mistake that the loss of ERISA protections for participants in welfare plans is just as crucial. Many of these organizations cherry pick the use of the church plan exemption — asserting ERISA coverage when it benefits them particularly in welfare plans, but not when they must comply with pension requirements. 4 See generally Norman Stein et al., An Article of Faith: The Gratuity Theory of Pensions and Faux Church Plans, Emp. BENEFITS COMM. NEWSL. (ABA Section of Labor and Emp’t Law, Chicago, Ill), Summer 2014, https://goo.gl/wlYJbZ (noting that ERISA’s predecessor, the Welfare and Pension Plan Disclosure Act, exempted all tax-exempt organizations from its coverage, whereas ERISA only exempts church and governmental! plans). 3 substantially on their ability to obtain those benefits that they have been promised. As longevity and, as a result, the amount of money needed to live comfortably in retirement increases, retirement plans become more crucial to individuals’ retirement security. Indeed, for many people, outside of Social Security, employee benefit plans are their main source of retirement income.5 Mid-career and older participants have the most to lose if exempt church plans have insufficient funds to pay benefits because these individuals have little time to make up any potential benefit shortfall.® When an employer reneges on its pension promises, it wreaks financial havoc upon older employees and their families by destroying a lifetime of working and planning for their retirement years.’ Retirement typically occurs at an age when employees cannot 5 See Emp. Benefit Res. Inst., Sudipto Banerjee, Income Composition, Income Trends, and Income Shortfalls of Older Households, EBRI ISSUE BRIEF No. 383, Feb. 2013, at 5, https://goo.gi/k4LeVA (pensions and annuities are the second- most important source of income for most older households). & See, e.g., Stephen Williams, Hospital pension fund in trouble, DAILY GAZETTE, Jan. 16, 2017, https://goo.gl/9K3hst; Danica Coto, Puerto Rico church strips teachers of pension amid crisis, ASSOCIATED PRESS, Apr. 12, 2016, https://goo.g/QCEAZs. 7 120 CONG. REC. 29928 (1974) (statement of Sen. Williams) (“[T]oo many workers, rather than being able to retire in dignity and security after a lifetime of labor rendered on the promise of a future pension, find that their earned expectations are not to be realized”); see also S. REP. NO. 93-127, at 1-9 (1973), as reprinted in 1974 U.S.C.C.A.N. 4838, 4838-44. 4 start all over again in hopes of obtaining a new pension.® For those already retired, it is just too late. These cases will have a significant impact on the funding and integrity of employee benefit plans, the ability of individual participants to obtain accurate information to make informed decisions concerning their benefits, and the ability of individual participants to obtain their promised retirement benefits. In light of the significance of the issues presented by this case, which directly bears on the retirement security of millions of Americans, including AARP members, amici respectfully submit this brief. SUMMARY OF ARGUMENT Petitioners are businesses, not churches. They deliver healthcare services on national, multi-state, or regional levels. They operate and compete for market share against other large non-profit health systems that are covered by ERISA. ERISA’s protections are meant to apply to all employers offering employee plans, unless those plans meet the narrow exemption that Congress designed. 29 U.S.C. § 1003(b)(2). The necessity for such protections is well-known. In the 1950s, after investigation and studies, Congress became cognizant of- the widespread 8 See, e.g., Eric Fontinelle, Outliving Your Retirement Savings, FORBES, May 24, 2010, https://goo.gl/MD1p40 (“Many retirees may not be able to go back to work due to failing health or lack of skills.”). 5 damage that the loss of promised and earned pension benefits caused to workers’ lives and their retirement security.2 Congress concluded that current laws, including the Internal Revenue Code and state laws, were inadequate to protect employee benefit plans.!° S. REP. No. 93-127 (1973), as reprinted in 1974 U.S.C.C.A.N. 4838, 4842. Congress believed that if employees’ rights to their accrued pension benefits are forfeitable, they have no assurances that they will ultimately receive a pension. See Cent. Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 743 (2004) (recognizing the “centrality of ERISA’s object of protecting employees’ justified expectations of receiving the benefits their employers promise them”). Congress sought to prevent employers from pulling the rug out from under employees participating in a pension plan after they met the plan’s eligibility requirements. See Nachman Corp., 446 U.S. 359, 375 (1980). 9 See Private Pension Plans, 1966: Hearings Before the Subcomm. on Fiscal Policy of the J. Econ. Comm., 89th Cong., 104-28 (1966) (statement of Clifford M. MacMillan, Vice- President, Studebaker Corp.) (describing the closing of the Studebaker automobile plant where approximately 7,000 employees lost some or all of their promised pension benefits). 10 The Brief amici curiae of the Illinois Conference of the United Church of Christ, et al., states that church plans are regulated under the Internal Revenue Code and state laws. Indeed, some of the Internal Revenue Code sections cited were in effect prior to ERISA’s enactment. This argument misses the point. Congress determined that pre-ERISA standards were insufficient to protect employee benefit plans. 6 In its statement of findings and declaration of policy, Congress noted that "despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans." 29 U.S.C. § 1001(a). Congress designed ERISA to prescribe minimum vesting and accrual standards in response to such problems. 29 U.S.C. §§ 1053, 1054. To ensure that employee pension expectations are not thwarted, ERISA establishes a comprehensive disclosure scheme, 29 U.S.C. §§ 1021-30; minimum rules for employee participation, 29 U.S.C. § 1052; funding standards to increase solvency of pension plans, 29 U.S.C. §§ 1081-1085; fiduciary standards for plan fiduciaries, 29 U.S.C. §§ 1101-1114; and an insurance program in case of plan termination, 29 U.S.C. §§ 1341-1348; accord Alessi v. Raybestos- Manhattan, Inc., 451 U.S. 504, 511 n.5 (1981). Congress also provided standards for benefit payments, 29 U.S.C. §§ 1055, 1056, and a procedure to dispute benefit denials, 29 U.S.C. § 1133. None of these fundamental safeguards applies to church plans. Thus, church plans can design their pension plans in any way they desire. Pension provisions could certainly include, among other harmful possibilities, allowing for the elimination or reduction of accrued benefits, requiring five or even thirty years of service to achieve a non-forfeitable benefit (rather than ERISA’s three years of vesting), providing disproportionate benefit accruals in the later years of a participant's employment, stopping accrual of a participant’s benefits at age 65, or not 7 providing for a joint and survivor annuity. Extending ERISA’s limited church plan exemption to non- churches like Petitioners creates significant risks and changes settled expectations for retiring workers. If this Court blesses their exemption from ERISA [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0691%3A15. Public record. Not legal advice.