Seyfarth Synopsis: The Supreme Court has shown a recent reluctance, as a general matter, to expand the scope of its review. That reluctance should apply as well to cases that seek to extend the scope and enforcement of ERISA.
Is there a connection between — the Supreme Court’s December 2020 decisions dismissing Presidential election lawsuits and the Presidential policy of excluding from census apportionment immigrants not considered to be in lawful status, on the one hand, and ERISA jurisprudence, on the other hand?
These recent Supreme Court decisions reveal a strong majority of Justices who believe federal court jurisdiction is limited, and dramatically so. Texas v. Pennsylvania, challenged, among other things, the lack of compliance with state legislative election law. Seven of the nine justices ruled that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In the immigration census decision, Trump v. New York, six justices ruled the case non-justiciable. They relied on two related doctrines — standing and ripeness. On standing, the majority said that a case must demonstrate “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical.” On ripeness, they said that any case must not be dependent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” To be sure, these cases may yet wind their way back to the Court for a review on the merits, but the route will be a bumpy one.
This judicial reluctance to rock the boat applies to ERISA jurisprudence as well. In Rutledge v. Pharmaceutical Care Management Association (No. 18-540), the Supreme Court refused to strike down an Arkansas PBM law on ERISA preemption grounds. The decision was unanimous. See SCOTUS Upholds Arkansas PBM Law Against ERISA Preemption Arguments | Beneficially Yours.
Commentators have noted that Justice Roberts, in particular, employs a strong philosophy of judicial deference or restraint. His view is that the people should take their complaints to the ballot box, not the courthouse. Enough of his fellow conservatives on the Court are often persuaded to agree, notwithstanding calls for a more aggressive Court.
So, as a general matter, private lawsuits that are commenced to “make new law” may increasingly be commenced in state court. ERISA lawsuits are not so easily accommodated via state litigation, however. All ERISA claims, other than claims for benefits, must be commenced in federal court. 29 U.S.C. 1132(e)(1). As we have noted previously, when commenting on the Spokeo and Thole standing decisions, a number of technical ERISA violations, including some fiduciary breach claims, may be beyond the reach of private plaintiffs. See Spokeo and the Future of ERISA Litigation | Beneficially Yours; The Supreme Court Further Narrows Federal Court Jurisdiction Over an ERISA Complaint, Relying on Article III of the Constitution | Beneficially Yours. And ERISA limits remedies, see Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985), and that can make it tough to allege concrete injuries for technical violations.
It remains to be seen, of course, how aggressive the Department of Labor will be in enforcing ERISA violations under President Biden. But private ERISA plaintiffs trying to extend the scope and enforcement of ERISA will have a tougher time making their case to the Supreme Court.