High court had called for views of Solicitor General last October, postponing decision on whether to grant review in case
SAN FRANCISCO (May 28, 2010) — Acting U.S. Solicitor General Neal Kumar Katyal has urged the United States Supreme Court to deny review to a pending legal challenge to the validity of a key provision of San Francisco’s universal health care program, “Healthy San Francisco,” arguing that the enactment of health care reform at the national level has largely removed the need for the high court to decide whether the federal Employee Retirement Income Security Act, or ERISA, preempts local governments from requiring employers to make health care expenditures for their workers.
The 26-page brief filed this afternoon, which reflects the Obama Administration’s views about the City’s four-year legal battle with the Golden Gate Restaurant Association, argues that “the intervening enactment of comprehensive federal health care legislation has dramatically changed the landscape governing payment for health care, substantially reducing the importance of the question whether ERISA preempts state or local requirements and also giving rise to additional legal issues that have not been addressed by the federal Departments responsible for implementing the new legislation or by the courts. Accordingly, this Court’s review of the ERISA preemption issue is not warranted at this time.”
The Solicitor General’s brief had been requested by the Supreme Court last October, postponing a decision many had expected on the opening day of the high court’s term as to whether it would grant or deny GGRA’s petition for review. In cases involving the application of such federal laws as ERISA, it is not unusual for the U.S. Supreme Court to seek input from the executive branch before deciding whether to grant review. Arguments by the Solicitor General are often thought to have influence on the high court’s deliberations, but they do not predict the court’s decision on whether to take up a case, or how it would ultimately rule if review were granted. Although the U.S. Department of Labor under former President George W. Bush had previously filed briefs opposing the City’s program in lower courts, the Obama Administration indicated early on a willingness to take a fresh look at the case.
“I am grateful to the Obama Administration for urging the U.S. Supreme Court to deny review and effectively end this legal attack on San Francisco’s universal health care program,” said City Attorney Dennis Herrera, whose office has led the defense of the Health Care Security Ordinance since it was initially challenged in Nov. 2006. “The Solicitor General’s brief today strengthens our position in a case that had already been significantly bolstered by the passage of health care reform at the national level. At this point, I think it would be hard to imagine the high court reaching out to undermine a local program that works for thousands of families who would otherwise go without health care.”
Were the Supreme Court to grant review in the case, it would consider GGRA’s bid to overturn a 2008 Ninth Circuit Court of Appeals decision that upheld the City’s employer health care spending requirement. A denial of review, as urged by the Solicitor General today, would effectively end the legal challenge to San Francisco’s universal health care program.
The employer spending requirement enacted by the Health Care Security Ordinance became effective on January 9, 2008, enabling the Healthy San Francisco program to go forward as envisioned by City policymakers, including then-Sup. Tom Ammiano, the legislation’s author, and Mayor Gavin Newsom. As of May 2010, more than 53,000 people are covered by Healthy San Francisco.
Neal Katyal became Acting Solicitor General effective May 10 with President Obama’s nomination of Solicitor General Elena Kagan to the U.S. Supreme Court.
The case is Golden Gate Restaurant Association v. City and County of San Francisco et al., Supreme Court of the United States, Case No. 08-1515. A timeline of key events in the case follows:
* July 25, 2006: San Francisco Board of Supervisors passes San Francisco Health Care Security Ordinance 10-0 (File No. 051919. Ordinance 218-06).
* Aug. 4, 2006: Mayor Newsom signs ordinance into law.
* Nov. 8, 2006: Golden Gate Restaurant Association sues in U.S. District Court, seeking to invalidate the employer spending requirements of the City’s ordinance on federal preemption grounds (that it violates the Employee Retirement Income Security Act, or ERISA)
* March 1, 2007: Local labor unions (San Francisco Central Labor Council, SEIU Local 1021, SEIU United Healthcare Workers-West, and UNITE-HERE! Local 2) move to intervene in case as defendants.
* April 2, 2007: City amends Ordinance to defer implementation of employer provisions until Jan. 1, 2008 for employers with fifty or more employees; and until April 1, 2008 for employers with twenty to forty-nine employees.
* April 5, 2007: U.S. District Court grants unions’ motion to intervene.
* July 13, 2007: Parties file cross-motions for summary judgment in case.
* Nov. 2, 2007: U.S. District Court hears oral argument on cross-motions.
* Dec. 26, 2007: U.S. District Court finds for GGRA, holding the employer mandate to be preempted by federal ERISA law
* Dec. 27, 2007: City Attorney Herrera files emergency motion with the Ninth Circuit Court of Appeals, seeking stay in district court ruling to enable program to take effect on Jan. 1, 2008.
* Jan. 9, 2008: Ninth Circuit grants Herrera’s emergency motion, enabling program to go forward with the employer mandate intact.
* Feb. 8, 2008: GGRA files emergency petition with U.S. Supreme Court Justice Kennedy (in his capacity as circuit justice for the Ninth Circuit) seeking immediate reversal of the Ninth Circuit’s stay order.
* Feb. 21, 2008: Justice Kennedy denies GGRA’s emergency petition without comment.
* Sept. 30, 2008: Ninth Circuit rules in favor of the City, holding that the employer health care spending requirement is not preempted by ERISA
* March 9, 2009: Ninth Circuit Court of Appeals denies GGRA’s petition for rehearing en banc.
* March 17, 2009: GGRA files another emergency petition with U.S. Supreme Court Justice Kennedy seeking immediate stay of the Ninth Circuit Court of Appeals’ final ruling on the merits.
* March 30, 2009: Justice Kennedy again denies GGRA’s emergency petition without comment.
* June 6, 2009: GGRA files petition for a writ of certiorari with the U.S. Supreme Court asking for the high court to review the decision of the Ninth Circuit Court of Appeals that rejected the challenge the healthcare employer spending requirement
* August 24, 2009: San Francisco and amici curiae submit briefing to the U.S. Supreme Court opposing GGRA’s petition for review.
* October 5, 2009: On the first Monday in October, the traditional first day of the U.S. Supreme Court term, the high court calls for the views of the Solicitor General on the case.
* May 28, 2010: U.S. Solicitor General files brief with the Supreme Court urging that GGRA’s petition be denied.