Yesterday’s CVSG in San Francisco Health Care Case

Yesterday, the Supreme Court called for the views of the Solicitor General about a certiorari petition filed in Golden Gate Restaurant Association v. San Francisco, 08-1515, which presents the following question:

 Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws mandating ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements, a question on which the courts of appeals are in conflict.

The case involves San Francisco’s efforts to expand low-cost (at least to the person covered) healthcare.   The Ninth Circuit held that ERISA did not preempt San Francisco’s efforts.

In October 2008 (i.e., under the Bush Administration), the Department of Labor weighed in on whether the Ninth Circuit’s decision conflicts with the decisions of other courts and with ERISA.  It filed an amicus brief that reads, in relevant part:

Rehearing en banc should be granted because this case raises a recurring issue of exceptional importance concerning the extent to which ERISA permits recent attempts by state or local governments to require employers to pay for or provide medical benefits for their employees.

 As Golden Gate argues, the panel’s contrary decision opens the door to potentially inconsistent state and local regulation of employer-provided healthcare that cannot be reconciled with ERISA’s preemption, in the interest of maintaining a nationally uniform scheme of applicable legal requirements, of state and local laws that mandate employee benefit structures or their administration or that interfere with uniform plan administration. The panel’s decision also threatens intra-circuit uniformity on the nature of ERISA plans and conflicts with preemption principles recognized by the Supreme Court and the Fourth Circuit’s decision in [Retail Industry Leaders Ass’n v.] Fielder[, 475 F.3d 180 (4th Cir. 2007)].

 Ordinarily, the SG’s Office would have approved the filing of the Labor amicus brief.  It will be interesting to see if the SG’s Office takes a position comparable to that taken by the Department of Labor back in October 2008, or if the views of the Office have changed (assuming it approved the Dept. of Labor brief) with the change of administration.