On Wednesday, December 2 the Solicitor General assigned her staff to review the Solicitor General View Request (SGVR) from the U. S. Supreme Court. The staff team will be led by Matt Adler, a respected staff attorney with significant ERISA expertise. Mr. Adler will meet with representatives from the City of San Francisco, the U. S. Department of Labor, and the GGRA's legal team. The meeting is tentatively scheduled for Friday, December 11.
There is no time limitation for the SGVR. We view the staff assignment as very positive in moving the case through the legal process.
On September 8, 2009 the GGRA filed the final reply brief to the US Supreme Court. By Thursday, September 10 the law clerks at the Supreme Court and the Chambers of the Justices have received a distribution package. The distribution package contains the GGRA's Petition for Writ of Certiorari, the City's Brief in Opposition, the GGRA's Reply Brief for Petitioner, and the Amicus Curiae Briefs for both sides of the dispute. For a detailed description of the selection process please read the attached file. The decision to accept or reject the case should be made public the week of October 5, 2009.
City and Amicus Briefs Filed with US Supreme Court. Two restaurateurs and a construction company have signed on as Friends of the Court supporting the City's position.
US Supreme Court to announce schedule for next session the week of October 5, 2009. If the Court accepts the GGRA petition, the merits briefing will take place in late 2009. The case would most likely be set for argument in early 2010, with a decision most likely by June, 2010.
On or before June 9th the GGRA will file a petition with the US Supreme Court asking the Court to review the decision of the 9th Circuit in the case of the GGRA vs. City and County of San Francisco. The case challenges the employer mandate for healthcare. No reasonable offer of compromise has come from the City, so the association is moving forward in its challenge of the ordinance under ERISA pre-emption. The GGRA will argue that the 9th Circuit ruling is in conflict with the 4th Circuit ruling on pay or play laws, that the ordinance is pre-empted by ERISA, that the issue of off national importance, and if allowed to stand will undermine existing employer sponsored healthcare programs throughout the country.
On March 15, the GGRA petitioned Justice Kennedy of the US Supreme Court to stay the decision from the panel of three judges from the 9th Circuit Court of Appeals. Justice Kennedy responded by ordering the City to answer the petition. The City’s answer was due on Friday, March 27. On Monday. March 30 the GGRA filed a response to the City’s opposition brief. Justice Kennedy accepted all of the filings and then denied the stay request at the end of the day on Monday, March 30.
The GGRA will now complete work on our Writ of Certiorari, asking the US Supreme Court to hear our challenge of San Francisco’s Healthcare Security Ordinance. The petition is due in late June. If accepted, the case will not be decided until Spring, 2010. Until that time the spending mandate and administrative requirements of the HCSO are in place.
This morning the 9th Circuit announced the court will not rehear the decision from the 3 judge panel ruling the HCSO legal. Eight judges from the 9th Circuit are in dissent, arguing in favor of the full court review.
We are waiting for a decision from the 9th Circuit Court of Appeals on our request for a full court (en banc) review. If granted, the 9th Circuit would randomly assign 11 judges to review the case. We will provide an update as soon as we receive notification of a decision from the Court.
The 9th Circuit Court of Appeals today granted the GGRA’s motion to accept our reply to the City’s opposition argument to our request for the full 9th Circuit to rehear our case. Our original petition for rehearing, the City’s opposition argument to our petition, and our reply brief are now in the hands of the judges of the 9th Circuit. The judges will vote whether or not to rehear the case in front of the full court. A decision could be published as early as Monday, January 12, and could be delayed for 14 days by judicial request until January 26. Given the schedule impact of the holidays the decision to rehear or not to rehear our case may be published closer to January 26.
In November the GGRA petitioned the 9th Circuit Court of Appeals asking the full court to hear a review of the challenge to the employer mandate for healthcare. A three judge panel ruled in favor of the City after a federal court previously ruled in favor of the GGRA. The City’s response to our petition was due December 3. Once the City’s response was filed, each judge in the 9th Circuit Court of Appeals has 14 days to vote to support or oppose the petition to rehear the case. In general terms the court will rehear the case if it is an issue of significant national importance, or if there is a conflict in rulings from federal courts and appellate courts. We believe we qualify under both standards and are optimistic the court will vote to rehear the case in front of the full court.
Four parties filed Amicus Briefs in support of the GGRA’s petition for rehearing en banc. The Amicus Briefs were due one week after the GGRA filed its motion for rehearing.
Each brief asks the court to rehear the case based upon legal issues, the disagreement between the 4th Circuit and the 9th Circuit, and because the issue is clearly one of national importance.
The City of San Francisco filed a motion for an extension of time to respond to the GGRA’s petition for rehearing en banc. The City now has to Wednesday, December 3 to complete their response. Once filed, the 9th Circuit then has 14 days for individual judges to vote whether or not they want to review the decision of the panel of three 9th Circuit judges who ruled on the case. If a majority of judges votes for rehearing, the court will then schedule the rehearing and define the process (original briefs only, potential for new filings, oral argument, etc).
On October 21 the GGRA filed a petition asking the 9th Circuit Court of Appeals to consider an en banc review of the decision favoring the City by the three judge panel.
On October 22 the court notified the City that the City had 21 days to file a response.
This is Ninth Circuit General Order 5.4(c)(2). Our current understanding is that this order means at least one judge has called for an en banc vote. When that happens, "the author of the panel opinion or the Clerk of the Court upon request of the en banc coordinator, shall ordinarily enter an order directing counsel to file within 21 days of the date of the order a response to the petition for rehearing en banc." When the City has filed its opposition, any judge has 21 days to circulate a memorandum speaking to the issue. At the end of that period of time, the en banc coordinator announces that it's time to vote. Then they all vote, or not. An active judge's failure to vote is considered a "no" vote. If the majority votes "yes," the matter is taken en banc. The court then randomly appoints 11 judges to review the case and temporarily sets aside the verdict from the three judge panel. The existing stay order allowing the City to enforce the expenditure mandate would stay in effect during the en banc process.
We will publish the City’s response to the en banc petition once they have filed with the court.
Filing Version of Petition
On Tuesday, October 21 the GGRA will file petition for rehearing en banc (full
court) to the 9th Circuit Court of Appeals. The petition asks the full court to
review the decision granted to the City by the panel of judges Fletcher, Reinhardt
and Goodwin on September 30, 2008.
The GGRA attorney team includes Rick Rybicki of Dickenson, Peatman & Fogarty, and Jeffrey Tanenbaum of
Nixon Peabody LLP. Additionally, the parties who filed Amicus briefs on our behalf in the panel hearing
have the option to re-file by October 31.
The petition asks the court to review the decision based upon two issues: the national importance of
the case and the conflict with previous rulings in the 4th Circuit, 9th Circuit and the US Supreme Court.
The court has 14 days to call for a vote, with a potential 14 day extension. Once the vote is called the
Court has 7 days to publish the vote. The court will grant the petition if more than 50% of the judges who
respond agree to hear the case. The chief judge of the court then randomly assigns 11 judges to review the case. The court could rule based upon existing filings, ask for specific issues to be addressed in new filings, or call for additional oral argument.
The court hears approximately 5000 cases per year, with roughly 1000 asking for en banc review. The court
grants 30 to 50 of those requests for en banc review, generally for cases deemed to have national
significance, and/or for cases where there may be inconsistent court decisions.
On September 30 the 3 judge panel of the 9th Circuit Court of Appeals ruled in
favor of the City of San Francisco and the employer mandate for healthcare. The
City had appealed the lower Federal Court’s decision in favor of the Golden Gate
Restaurant Association’s challenge that the employer mandate was pre-empted by
federal law (ERISA).
The GGRA will petition to appeal the decision to the entire 9th Circuit Court of Appeals (en banc).
Each judge in the circuit votes whether or not to hear the appeal. If the appeal is granted,
11 judges are assigned to the appeal. Instructions for the appeal are then issued by the court, which may or may not include additional oral argument. The petition and filing is due no later than Monday, October 13.
9th Circuit Appeal Decision
Under the stay order granted the City to implement the employer mandate, businesses with 50 or more
employees were required to comply beginning January 9. The payment for the first quarter due no
later than April 30 (actual date depending on the benefit program selected). Beginning April 1
businesses with 20 or more employees are subject to the stay order, with payment for the second
quarter due no later than July 30 (again actual date depending on the benefit program selected).
For businesses with 20 to 99 employees the current expenditure rate is $1.17 per hour
For businesses with 100 or more employees the current expenditure rate is $1.76 per hour
We will publish the judge’s ruling on the City’s appeal as soon as we are notified the court has
reached a decision.
Oral argument was completed in front of a panel of 3 judges from the 9th Circuit Court of Appeals on
April 17. The judges then began deliberation of the case. No specific timeline is published or required
for verdict in federal appellate court. We will inform you of the verdict as soon as we are notified.
On April 1 businesses with 50 to 99 employees were required to begin meeting the employer expenditure
requirement under the stay order granted the City by the 9th Circuit. These businesses join employers
with 100 or more employees who were required to meet the expenditure requirement under the stay order
beginning January 9.
Oral argument was heard by a panel of three federal judges in the 9th Circuit Court of
Appeals on April 17. Attorneys representing the City and the union interveners argued the government
payment option is not pre-empted by federal law under ERISA, making the employer mandate legal. The
GGRA and US Department of Labor attorneys argued the employer mandate conflicts with Congress’
intent on passing ERISA, and is pre-empted under federal law.
The panel of judges includes Judge Fletcher, Judge Reinhardt and Judge Godwin,
the same panel which granted the City the emergency stay in January. That stay order is in effect
until a verdict is published, expected later in May. Under that stay order businesses with 50 or
more employees are required to meet the spending requirement beginning January 9. Businesses with 20 to 40 employees must meet the spending requirement beginning April 1.
Oral argument is scheduled in front of the 9th Circuit Court of Appeals on Thursday,
April 17 in Pasadena at 11am. The GGRA and the City have both submitted their written filings to the
court.
Eight groups have submitted Amicus briefs in support of the GGRA’s legal position:
United States Department of Labor
National Federation of Independent Business Legal Foundation
Retail Industry Leaders Association/ United States Chamber of Commerce
Human Resource Policy Association
Employers Group/ California Chamber of Commerce
International Franchise Association/ Society for Human Resource Management/ National Association of Manufacturers
ERISA Industry Committee/ National Business group on Health
American Benefits Council
Additionally, an Amicus letter has been submitted supporting the GGRA’s legal position by:
Bay Area Sheet Metal and Air Conditioning Contractors
Two groups submitted Amicus briefs in support of the City’s legal position:
American Association
of Retired People
Attorney General of the State of California.
Each side will be given 30 minutes for oral argument. A portion of the GGRA’s time
will be allocated to the US Department of Labor. After oral argument is complete, the panel of three federal appellate judges will begin deliberation. Although there are no firm time guidelines for a decision by the court, we expect a decision to be published in several weeks.
On February 8 the GGRA petitioned Justice Kennedy of the United States Supreme Court
seeking a reversal of the emergency stay order granted to the City by the 9th Circuit Court of Appeals.
The stay order allowed the City to collect the employer mandate during the appeals process in front of the
9th Circuit. On February 13 Justice Kennedy notified the City it had until February 20 to file a response. On February 21 Justice Kennedy denied GGRA's motion, effectively allowing the City to collect the employer mandate during the City’s appeal in the 9th Circuit. Oral argument has been set for April 17 in Pasadena.
The GGRA encourages employers to finalize their plan to meet the employer mandate while
we continue the legal challenge. The stay order allowing the mandate to be imposed is dated January 9, with
initial payment due no later than April 30.
The GGRA filed a petition with Supreme Court Justice Kennedy on Friday, February 8. The petition asked Justice Kennedy to reverse the emergency stay order granted the City by the 9th Circuit Court of Appeals. The stay order allows the City to implement the employer mandate during the City's appeal of the summary judgment granted the GGRA by Federal Judge White.
On Wednesday, February 13 we were informed that Justice Kennedy had accepted our petition. He gave the City until Wednesday, February 20 to respond with a filing detailing their position on the issue. No oral argument is scheduled. Justice Kennedy could publish a verdict any time after February 20th.
The 9th Circuit Court of Appeals has set a hearing for oral argument on April 17 in Pasadena. The City’s appeal of the summary judgment granted the GGRA in Federal Court continues as a separate legal action from the petition to reverse the emergency stay.
GGRA Appeal to Vacate Stay
On Friday, February 8, 2008 the GGRA filed an application to Justice Kennedy of the US Supreme Court. The application asks the Supreme Court for an Order Vacating Stay of District Court Judgment Entered by the Motions Panel of the Appeals for the Ninth Circuit. In practical terms, the GGRA is petitioning the Supreme Court to overturn the stay order granted by the 9th Circuit Court of Appeals to the City of San Francisco. The 9th Circuit’s stay order allows the City to implement the employer mandate for healthcare expenditures during the City’s appeal of the District Court’s ruling in favor of the GGRA. The application to the Supreme Court is an independent legal action separate from the City’s appeal of summary judgment granted the GGRA by the District Court. A Supreme Court ruling in favor of the GGRA would remove the employer expenditure requirement during the appeals process in the 9th Circuit. The appeals process will continue independent of a possible ruling from the Supreme Court on the stay issue.
GGRA Appeal to Vacate Stay
The GGRA has researched the potential petition of 11 judges from the 9th Circuit Court of Appeals asking the larger judicial panel to overturn the emergency stay order granted to the City on January 9, 2008. We have decided not to pursue the petition because of minimal opportunity for success. The emergency stay order was granted without a dissenting opinion, and the schedule for the appeal totals 3 ½ months which is a short time frame to the court.
The GGRA is completing research on the potential petition of Justice Kennedy of the United States Supreme Court asking Justice Kennedy to overturn the emergency stay order granted to the City by the 9th Circuit Court of Appeals. The research includes the procedures to follow in requesting the stay reversal, the legal arguments required to support the request, and the potential outcomes both positive and negative. We will follow up with more information when the analysis is complete.
The appeal process has started in the 9th Circuit Court of Appeals. We will post filings as they are submitted to the court. We believe this case will most likely end up in front of the US Supreme Court, and take many more months to complete.
On Thursday, January 31, 2008 at 3pm the GGRA will host a meeting for the restaurant community to discuss the details of implementing the Healthcare Security Ordinance. The meeting will be held in the Beluga Room at Farallon Restaurant at 450 Post Street. Donna Levitt, the Executive Director of the Office of Labor Standard Enforcement, will present a power point presentation and answer questions about the details of the ordinance. This is an excellent opportunity to clarify implementation issues. Bookkeepers, controllers, CFO’s, managers and owners are welcome. Please RSVP to Donnalyn at 415.781.5348 ext 2.
After the implementation discussion is complete, the GGRA staff and attorney will discuss legal issues and answer questions about process, timeline, potential outcomes, etc.
January 9, 2008. The 9th Circuit Court of Appeals today issued an emergency stay granting San Francisco the right to implement the employer mandate during the City's appeal. The City is appealing the District Court decision which concluded the employer mandate is illegal. The GGRA opposed the stay motion. The hearing was held on January 3 in Pasadena before Senior Circuit Judge Alfred Goodwin, and Circuit Judges Stephen Reinhardt and William Fletcher. The judges allowed the stay as they considered the "irreparable harm" to the City if the employer mandate was not allowed to be implemented during the appeals process. The GGRA will study the opinion and consider an appeal of the emergency stay order. The decision on the stay is independent from the rest of the appeals process.
Beginning on the date listed in the stay order, businesses with 50 to 99 employees will need to spend $1.17 per hour on healthcare for each employee working 10 or more hours per week. Businesses with 100 or more employees will need to spend $1.76 per hour for employees working 10 or more hours per week.
Stay Granted
Beginning on April 1, unless altered in the order, businesses with 20 to 49 employees will need to spend $1.17 per hour on employees working 10 or more hours per week.
On Wednesday, December 26 the GGRA was awarded summary judgment against the City of San Francisco’s employer mandate for healthcare. On Thursday, December 27 city attorneys filed an emergency stay request to Federal Judge Jeffrey White, asking the judge to allow the City to implement the employer mandate on January 2 even though the mandate had just been ruled illegal. The proposed stay would be in effect until the appeal process was complete. The GGRA opposed the emergency stay request. On Friday, December 28 Judge White denied the stay request.
Plaintiff's Opposition to Defendents' ex Parte Application for Stay Pending Appeal
District Court Order Denying Stay Pending Appeal
On Thursday, December 27 city attorneys also filed an emergency stay and expedited appeals motion at the 9th District Court of Appeals. The motion requests a stay through the appeal process, allowing the City to implement the employer mandate that the federal court had just ruled illegal. If not granted the stay, the city attorneys asked for an expedited appeals process. The GGRA opposed the emergency stay request, and has agreed to the expedited appeal. The exact timing of the appeal would still need to be agreed upon by the court, city attorney and GGRA attorney. Oral argument on the stay motion is scheduled for Thursday, January 4th at 11am in Pasadena in front of a panel of three federal judges from the 9th District Court of Appeals.
City Court of Appeals Motion for Stay Expedited Appeal
GGRA Opposition to Motion for Stay 9th District Court of Appeals
A hearing in Federal Court on November 2 brought to completion the submission phase of the GGRA’s challenge of the San Francisco Employer Mandate for Healthcare. In summation Judge White noted the implementation date of the ordinance was rapidly approaching (January 1), and stated the court “get to work” to complete his verdict. As of Wednesday, December 5 we have not yet received a ruling. We will communicate the ruling to you as soon as it is received.
On Friday, November 2 Federal Judge Jeffrey White held a hearing to hear focused oral argument from both sides of the GGRA’s litigation challenging the employer mandate for healthcare. The judge issued questions he wanted to hear reviewed in oral argument. At the conclusion of the hearing, Judge White cancelled the case management conference for the litigation. The CMC is part of the procedure moving into trial, indicating Judge White will render a verdict in summary judgment. Judge White stated the court was well aware of the approaching implementation date of the employer mandate, and that the court would get to work. We expect a verdict in November. To view the judges questions please refer to Judge's Questions
The GGRA and its legal team is preparing for trial in front of Judge White on November 2. Although we anticipate Judge White will render a verdict in summary judgment prior to the trial date, we are completing trial preparation in order to be prepared for all potential contingencies.
The employer mandate is scheduled to be implemented on January 1. The margin of time between potential judgment and implementation is narrowing. The GGRA will monitor the timeline and take appropriate action to seek injunction against the implementation of the mandate on January 1 if the trial is not complete.
The GGRA will publish the judge’s decision as soon as it is available, as well as potential next steps through the legal process for both sides on the issue.
On August 17 the GGRA, City of San Francisco, and union intervenors filed the third and final set of briefings to the court. The court set August 31 as the date for the bench trial. The court then post-phoned the bench trial to November 2. The court can publish a verdict through summary judgment, or proceed to bench trial.
GGRA Final Response
Final response City
Union Intervenor Final Filing
On Friday, August 3 responses to the original motions for summary judgment were filed by the GGRA, City of San Francisco, and Union Interveners. Final written responses are due Friday, August 17. After final submittals, the judge will take the case into consideration. He can render a decision in summary judgment, or proceed to bench trial. Bench trial is potentially scheduled to begin August 31 pending the judge’s decision.
GGRA Motion Response
City Response
Union Intervenor Response
The GGRA filed a motion for summary judgment on July 13 asking the court to rule the employer mandate portion of the Universal Healthcare Worker Security Ordinance is illegal, and to prevent the employer mandate from being implemented.
Motion and Memorandum of Points and Authorities
The City of San Francisco filed a motion asking the court to dismiss our litigation CCSF Notice and MPA.pdf. The four union organizations which have intervened in the case also filed a motion asking the court to dismiss the GGRA’s litigation Intervenors Brief. Responses to the City’s brief and the union’s brief are due in court Friday, August 3. Final response to motions is due August 17. The judge will then render a verdict, or move towards the bench trial currently scheduled for August 31.
On July 13, 2007 the attorney team for the GGRA will submit a Motion for Summary Judgment to the court asking the Employer Spending Requirement be ruled illegal under ERISA pre-emption and removed from the ordinance. We anticipate the city and labor unions will also file a Motion for Summary Judgment asking the court to dismiss our lawsuit.
On August 3, 2007 the attorneys for the city and labor unions will file a Response to Opposition’s Briefs answering the GGRA’s motion for summary judgment. The GGRA’s attorneys will file response to the city’s motion for summary judgment assuming one is filed by the city on July 13.
On August 17, 2007 the attorney team for the GGRA will reply to the brief filed by the city and labor unions on August 3. The attorneys for the city and labor unions will reply to the brief filed by the GGRA on August 3 again assuming the original motion is filed by the city on July 13.
August 31, 2007 the hearing is scheduled with the court. The case may be decided by motion for summary judgment prior to the court date, or proceed to trial in front of federal judge Jeffrey S. White.
For more information please refer to MRA Regulations for Public Comment
On Thursday, April 5, 2007 by written order Judge White granted the motion from the San Francisco Labor Council, Local 1021, Local 2 and the United Healthcare Case Worker’s West to intervene on behalf of the City in the GGRA’s lawsuit against the City. The lawsuit challenges the employer spending requirement of the healthcare ordinance under ERISA pre-emption. The judge’s order allows the unions into the lawsuit as additional parties to defend the City’s ordinance.
On Tuesday, March 27, 2007 the Board of Supervisors extended the implementation date of the employer spending requirement (ESR) to January 1, 2008. Based upon this extension the court has released a new schedule: motions are due July 27th, hearing on motions September 14th, and bench trial is set for November 13th.
The case may be completed before the January 1, 2008 implementation date of the ESR, eliminating the potential need for injunction against the start of the ESR portion of the ordinance.
The court published the briefing schedule on Monday, February 26th. The schedule would allow for motions to start in April, with possible trial outcome in June.
The schedule did have a caveat that if the implementation of the Employer Spending Requirement (ESR) was extended by the city for 6 months or more that the briefing schedule would be revisited. Briefing Schedule.
On Tuesday, February 27th Mayor Newsom and Supervisor Ammiano published a press release phasing in the first part of the Health Access Plan (HAP) from July through December. The ESR was extended to January 1, 2008.
HAP Extension
HAP Extension II
Supervisor Ammiano has scheduled presentation of the amendment at the Budget & Finance Committee hearing in City Hall on Wednesday, March 7th. If passed by the Committee and then the full Board of Supervisors, the briefing schedule would be revisited.
On Thursday, March 1st labor filed a motion to intervene in the litigation. The four groups mentioned in the motion are the San Francisco Labor Council, Service Employees International Union Local 1021, SEIU United Health Care Worker’s West, and Unite Here! Local 2. Briefly, they claim the city attorney will not adequately defend the ordinance (for their members) and ask to join in with the city. We are currently formulating a response.
