Printer Friendly

The state of ERISA after 35 years: complex, yet arguably simplistic, which federal statute may be unraveled with a touch of supreme common sense.

 I. Introduction
 II. Generally, ERISA Pre-empts All State Laws That Relate to Employee
 Benefit Plans
III. While Broad in its Reach and Scope, ERISA's Pre-emption Clause Is
 Not Unlimited
 IV. ERISA and the High Court's Own ERISA Pre-emption Jurisprudence
 Has Left Much to be Desired
 V. Conclusion


I. INTRODUCTION

The United States Supreme Court has often observed the federal Employee Retirement Income Security Act is "a comprehensive and reticulated statute," (2) which the United States Congress adopted after a careful, decade-long study of private retirement pension plans. (3) Overall, the purpose of the Employee Retirement Income Security Act of 1974, most commonly known as ERISA, was "to provide a uniform regulatory regime over employee benefit plans." (4) As such, ERISA was enacted as the center piece of federal substantive law to be enforced and, thereafter, developed by the courts, through a federal common law of rights and obligations under ERISA-regulated welfare benefit plans. (5) Although the U.S. Supreme Court has determined that "ERISA's definition of an employee welfare benefit plan is ultimately circular," it has applied a "common [sense] understanding of the word 'plan.'" (6) "The federal Employee Retirement Income Security Act of 1974 ... as amended, 29 U.S.C. [section] 1001 et seq. (ERISA), comprehensively regulates employee pension and welfare plans." (7) An employee welfare-benefit plan or welfare plan is defined as one which provides to employees "medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability or death," whether these benefits are provided "through the purchase of insurance or otherwise." (8)

"In enacting ERISA, Congress's primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds." (9) Effective January 1, 1975, (10) ERISA was intended to protect both the interests of participants in employee benefit plans and their beneficiaries. (11) "One of the principal goals of ERISA is to enable employers 'to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits.'" (12) In fact, "ERISA requires every employee benefit plan to be established and maintained pursuant to a written instrument, specifying the basis on which payments are made to and from the plan." (13)
 Insofar as Congress's intent, the ERISA

 [F]ederal statute does not go about protecting plan participants
 and their beneficiaries by requiring employers to provide any given
 set of minimum benefits, (14) but instead controls the
 administration of plan benefits as by imposing reporting and
 disclosure mandates, participation and vesting requirements,
 funding standards and fiduciary responsibilities for plan
 administrators. (15)


It is clear that ERISA was also intended to have a federal regulatory effect on "the health care industry, which is, by definition, the realm within which ERISA welfare benefit plans must operate," (16) even though Congress chose not to displace general health care regulation that has historically been a matter of state or local concern. (17) "To this end, ERISA includes expansive preemption provisions, which are intended to ensure that employee benefit plan regulation would be 'exclusively a federal concern.'" (18) "Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted." (19) If a state law conflicts with the provisions of ERISA or operates to frustrate its object, that inquiry and affirmative answer, alone, will resolve the case. (20) "In the face of ... direct clash between state law and the provisions and objectives of ERISA, the state law cannot stand." (21) Even complaints purportedly raising only state law causes of action may necessarily be federal in character so as to be preempted. (22) Notably, "[c]ommon-law rules developed by decisions of state courts are 'State law' under ERISA." (23)

Given ERISA's expansive pre-emption provisions, civil actions brought in a state court may be removed to federal court if the case is one in which the federal court has original jurisdiction, such as when the case raises a federal question arising under the U.S. Constitution, laws, or treaties of the United States. (24) Whether or not a pleading raises a federal question is a determination normally turning on the well-pleaded complaint rule. (25) In the context of many common law rules, including the well-pleaded complaint rule, courts have carved out exceptions. (26)
 When a federal statute wholly displaces the state-law cause of
 action through complete pre-emption, the state claim can be
 removed. This is so because when the federal statute completely
 preempts the state-law cause of action, a claim which comes within
 the scope of that cause of action, even if pleaded in terms of
 state law, is in reality based on federal law. ERISA is one of
 these statutes. (27)


"Thus, the ERISA civil enforcement mechanism is one of those provisions with such extraordinary pre-emptive power that it converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." (28) In fact, "a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint." (29) "[A]n ERISA pre-emption defense provides a sufficient basis for removal of a cause of action to the federal forum notwithstanding the traditional limitation imposed by the 'well-pleaded complaint' rule." (30) Accordingly, because it was Congress's intent to occupy the field of law concerning employee pension and welfare benefit plans, (31) state law claims will invariably be removed by knowledgeable litigators to a federal forum, when appropriate. Indeed, perhaps the crowning achievement of the 1974 ERISA legislation was "the reservation to Federal authority the sole power to regulate the field of employee benefit plans." (32)

II. GENERALLY, ERISA PRE-EMPTS ALL STATE LAWS THAT RELATE TO EMPLOYEE BENEFIT PLANS

"ERISA pre-emption analysis must be guided by respect for the separate spheres of governmental authority preserved in our federalist system." (33) Respect for the separate spheres of governmental authority notwithstanding, ERISA preempts all state laws and state-law causes of action insofar as they relate to employee benefit plans, (34) except for state laws that regulate insurance, banking or securities, which are saved from pre-emption. (35) "The basic thrust of the pre-emption clause ... was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans." (36)
 The preemption clause... [E]stablishes as an area of exclusive
 federal concern the subject of every state law that "relates to" an
 employee benefit plan governed by ERISA. The saving clause returns
 to the States the power to enforce those state laws that "regulate
 insurance," except as provided in the deemer clause. Under the
 deemer clause, an employee benefit plan governed by ERISA shall not
 be "deemed" an insurance company, an insurer, or engaged in the
 business of insurance for purposes of state laws "purporting to
 regulate" insurance companies or insurance contracts. (37)


"Legislative 'good intentions' do not save a state law within the broad pre-emptive scope of [section] 514(a)." (38) "Pre-emption is also not precluded simply because a state law is consistent with ERISA's substantive requirements." (39) Thus, ERISA is like "using a sledgehammer to kill a gnat," (40) when faced with contradictory or even consistent state law or causes of action that relate to an employee benefit plan. (41) A state statute, however, may permissibly relate to employee benefits, such as payment of severance, as opposed to an employee benefit plan, and not run afoul of ERISA's pre-emption provisions. (42)
 Congress intended pre-emption to afford employers the advantages of
 a uniform set of administrative procedures governed by a single set
 of regulations. This concern only arises, however, with respect to
 benefits whose provisions by nature requires an ongoing
 administrative program to meet the employer's obligation. It is for
 this reason that Congress pre-empted state laws relating to plans,
 rather than simply benefits. Only a plan embodies a set of
 administrative practices vulnerable to the burden that would be
 imposed by a patchwork scheme of regulation. (43)


For example, to fall under ERISA's "except for" saving clause, a state law must be specifically directed toward the insurance industry, as opposed to laws having only general applicability that have some bearing on insurers, which would not qualify. (44) The "saving clause [also] retains the independent effect of protecting state insurance regulation of insurance contracts purchased by employee benefit plans." (45) "At the same time, not all state laws specifically directed toward the insurance industry will be covered by [section] 1144(b)(2)(A), which saves laws that regulate insurance, not insurers." (46) "ERISA's saving clause does not require that state law regulate 'insurance companies' or even 'the business of insurance' to be saved from pre-emption; it need only be a 'law ... which regulates insurance'...." (47) Thus, it should be clear that "Congress did not intend to preempt entirely every state cause of action relating to such plans." (48) The critical or crucial question for a court, then, is to determine where the line of demarcation exists between those state laws that are preempted by ERISA and those state laws that are saved from ERISA pre-emption. (49)

Furthermore, ERISA's aptly-named "deemer clause" provides that an employee benefit plan covered by ERISA may not be deemed to be an insurance company, other insurer, or to be engaged in the business of insurance for purposes, of any law of any State purporting to regulate insurance companies or insurance contracts. (50) The U.S. Supreme Court has construed the language of the deemer clause to be "either coextensive with, or broader, not narrower, than that of the saving clause." (51) Accordingly, for a state law to be deemed a law which regulates insurance under [section] 1144(b)(2)(A), it must satisfy two requirements. (52) "First, the state law must be specifically directed at entities engaged in insurance. Second ... the state law must substantially affect the risk pooling arrangement between the insurer and the insured." (53)

On the prevailing question of what it means for a state law to relate to an employee benefit plan, in the normal sense of the phrase, or under its broad common sense meaning, the Supreme Court has repeatedly "held that a state law relates to an ERISA plan if it has a connection with or reference to such a plan." (54) "In fact, we have virtually taken it for granted that state laws which are specifically designed to affect employee benefit plans are pre-empted under [section] 514(a)." (55) Indeed, "Congress used the words 'relate to' in [section] 514(a) in their broad sense." (56) ERISA's pre-emption provision is not only broadly worded, but has an expansive sweep and is facially conspicuous for its breadth. (57) Thus, to determine whether a state law has the forbidden connection to be pre-empted, the Supreme Court has determined that a court must look both to the objectives of the ERISA statute as a guide to the scope of state law that Congress understood would survive, (58) as well as to the nature of the effect of the state law on ERISA plans. (59) It seems the Supreme Court has directed lower courts to assess ERISA's objectives upon the court's prognostication of Congress's ERISA vision in light of the essential effect on an ERISA plan. (60) In so doing, it looks to the language of ERISA and its structure to determine the intent of Congress. (61) In making that judicial determination, supreme common sense also plays a vital role. (62)

An examination of certain relevant Supreme Court decisions, within the scope of health care insurance plans, may help elucidate the Supreme Court's ERISA pre-emption jurisprudence. For example, in Pilot Life Ins. Co. v. Dedeaux, (63) the Court was faced with the question of whether ERISA pre-empts Mississippi common law tort and contract actions asserting improper processing of a claim for benefits against the insurer under an insured employee benefit plan. (64) The Court quickly determined the common law claims "undoubtedly" relate to welfare benefit plans governed by ERISA so as to fall under ERISA's pre-emption clause, upon which there was no dispute. (65) Thus, the prevailing question in Dedeaux became whether the common law causes of action fell under an exception, such as the saving clause, to ERISA's broad pre-emption clause. (66)

"Because in this case, the state cause of action seeks remedies for the improper processing of a claim for benefits under an ERISA-regulated plan, our understanding of the saving clause must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA." (67) By unanimous opinion, the Court then determined "that ERISA's civil enforcement remedies were intended to be exclusive." (68)
 Considering the [supreme] common-sense understanding of the saving
 clause (69) ... and, most importantly, the clear expression of
 congressional intent that ERISA's civil enforcement scheme be
 exclusive, we conclude that Dedeaux's state law suit asserting
 improper processing of a claim for benefits under an
 ERISA-regulated plan is not saved by [section] 514(b)(2)(A), and
 therefore is pre-empted by [section] 514(a). (70)


On the same day, substantially relying upon the Court's unanimous opinion in Dedeaux, (71) Justice O'Connor delivered another unanimous opinion for the Court in Metropolitan Life Ins. Co. v. Taylor, holding that the Plaintiff's Michigan common law contract and tort claims against the former employer and insurer, based on an employee benefit plan subject to the provisions of ERISA, were preempted by ERISA. (72) Quite similarly, in another virtually unanimous opinion (no Justice dissented but three Justices did not join Part II-A), (73) Ingersoll-Rand Co. v. McClendon, (74) Justice O'Connor delivered the opinion for the Court and found that ERISA preempted a Texas common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA. (75) The Court had "no difficulty" in concluding that the claim related to an ERISA-covered plan (76) and, in McClendon, it was unnecessary for the Court to even consider ERISA's saving clause. (77)

Likewise, in District of Columbia v. Greater Washington Board of Trade, the nearly unanimous Court (only Associate Justice Stevens dissented) determined that a District of Columbia statute, which required employers who provided health insurance for their employees to further provide equivalent health insurance for injured employees eligible for workers' compensation benefits related to an ERISA-covered plan, was pre-empted under ERISA. (78) The Court held the statute at issue specifically referred to welfare benefit plans regulated by ERISA and that alone was sufficient to find it pre-empted. (79) Again, it was unnecessary for the Court to even consider ERISA's saving clause.

In FMC Corp. v. Holliday, the Court was faced with determining whether a Pennsylvania law was pre-empted by ERISA, which would preclude employee welfare benefit plans from exercising subrogation rights on a claimant's tort recovery. (80) The Court initially observed that FMC Corporation's health care plan, otherwise known as its welfare benefit plan within the meaning of ERISA, was self-funded; "it did not purchase an insurance policy from any insurance company in order to satisfy its obligations to its participants." (81) The subrogation clause was contained within the employee welfare benefit plan. (82)

The Court next determined that the state law both referenced benefit plans governed by ERISA and had a connection to ERISA benefit plans. (83) Therefore, "Pennsylvania's antisubrogation law 'relate[s]' to an employee benefit plan." (84) Furthermore, there was "no dispute that the Pennsylvania law falls within ERISA's insurance saving clause, which provides, '[e]xcept as provided in the [deemer clause],' nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance." (85) Because the state statute at issue excluded the right of subrogation from a claimant's tort recovery with respect to benefits paid or payable, the prevailing issue became whether the statute was "excluded from the reach of the saving clause by virtue of the deemer clause" wherein it would not be pre-empted. (86) Therefore, Holliday pitted the tension between ERISA's own saving clause against ERISA's own deemer clause upon which the Court decided the case, essentially, based on self-funding of FMC Corporation's welfare benefit plan. (87)
 We read the deemer clause to exempt self-funded ERISA plans from
 state laws that regulate insurance within the meaning of the saving
 clause. By forbidding States to deem employee benefit plans "to be
 an insurance company or other insurer ... or to be engaged in the
 business of insurance," the deemer clause relieves plans from state
 laws "purporting to regulate insurance." As a result, self-funded
 ERISA plans are exempt from state regulation insofar as that
 regulation "relates to" the plans. State laws directed toward the
 plans are pre-empted because they relate to an employee benefit
 plan but are not "saved" because they do not regulate insurance.
 State laws that directly regulate insurance are "saved" but do not
 reach self-funded employee benefit plans because the plans may not
 be deemed to be insurance companies, other insurers, or engaged in
 the business of insurance for purposes of such state laws. On the
 other hand, employee benefit plans that are insured are subject to
 indirect state insurance regulation. An insurance company that
 insures a plan remains an insurer for purposes of state laws
 "purporting to regulate insurance" after application of the deemer
 clause. The insurance company is therefore not relieved from state
 insurance regulations. The ERISA plan is consequently bound by
 state insurance regulations insofar as they apply to the plan's
 insurer. (88)


The Holliday Court bolstered its nearly unanimous decision (only Associate Justice Stevens, again, dissented), holding that ERISA preempted the Pennsylvania statute, and also bolstered its reading of the deemer clause, by relying on its prior decision in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985), wherein the Court first drew a distinction between insured, or separately funded plans, and uninsured, or self-funded, plans. (89) Notably, although Justice Stevens dissented in Holliday, (90) none of the Justices, including Justice Stevens, (91) dissented from the unanimous opinion delivered by Justice Blackmun in Metropolitan Life Ins. Co., (92) when the pertinent distinction was first recognized by the Court. (93)

In yet another unanimous decision, Aetna Health Inc. v. Davila, the Court was faced with another pre-emption issue in a couple of consolidated cases. In these cases, two individuals sued their respective health maintenance organizations for alleged failures to exercise ordinary care in the handling of coverage decisions, in violation of a duty imposed by Texas law. (94) The Court first explained "that if an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls "within the scope of ERISA [section]502(a)(1)(B)" and is pre-empted. (95)

To reach its determination, the Court examined the plaintiffs' complaints, the plan documents and the state statute on which their claims were based, all of which enabled the Court to conclude that plaintiffs complained only about denials of coverage promised under the terms of ERISA-regulated employee benefit plans. (96) Finding that the plaintiffs only sought to rectify a wrongful denial of benefits promised under ERISA-regulated plans and did not attempt to remedy any violation of a legal duty independent of ERISA, the Court held their state law causes of action fell within the scope of ERISA [section]502(a)(1)(B) and, therefore, were completely pre-empted by ERISA. (97)

These Supreme Court decisions concerning health care insurance plans seem to reveal at least one articulable common element or theme, finding state laws or state causes of action pre-empted by ERISA; each case may be said to have reached out and touched an ERISA welfare benefit plan. Stated otherwise, "[b]ecause the court's inquiry must be directed to the plan, this ... cause of action 'relate[s] to' an ERISA plan." (98) Thus, it may seem that the High Court's numerous unanimous and nearly unanimous decisions concerning ERISA pre-emption cases, with respect to health care insurance plans, suggests the Supreme Court's pre-emption jurisprudence is reasonably clear, provides sufficient, proper guidance to lower courts, and expresses the will of the Congress. (99) However, at this point such a conclusion would be premature, without considering some of the High Court's decisions finding ERISA does not pre-empt certain state laws or causes of action, as well as considering the High Court's own assessment of its ERISA jurisprudence.

III. WHILE BROAD IN ITS REACH AND SCOPE, ERISA'S PREEMPTION CLAUSE IS NOT UNLIMITED

Notwithstanding the broad breadth of ERISA's pre-emption clause, the High Court has recognized limits to ERISA's pre-emption clause. (100) For example, in Metropolitan Life Ins. Co. v. Massachusetts, the Supreme Court was faced with the question whether a Massachusetts statute, best described as a mandated-benefit statute that regulated the substantive content of health insurance policies, was a law that regulated insurance such that it would not be pre-empted under ERISA. (101) To explain the dichotomy between ERISA's broad, seemingly all-inclusive pre-emption provision and, afortiori, the narrower saving clause, (102) the Court quickly determined that the statute "clearly" related to welfare benefit plans governed by ERISA so as to fall within the reach of ERISA's pre-emption provision. (103) However, that clear conclusion was not the end of the inquiry. (104)

Based on the Supreme Court's common-sense view of the matter, in yet another unanimous opinion, the Court concluded the Massachusetts statute obviously regulated the terms of certain insurance contracts, which saved it from pre-emption by the saving clause as a law which regulates insurance. (105) In fact, the substantive terms of group-health insurance contracts, in particular, have been heavily regulated by the states for decades. (106) "Plans that purchase insurance--so-called 'insured plans'--are directly affected by state laws that regulate the insurance industry." (107) Thus, in this case, as in others, the tension between ERISA's pre-emption provision and its saving clause was resolved in favor of the saving clause. (108) In reaching its determination, the Court acknowledged that its decision resulted in a distinction between insured and uninsured plans, leaving insured plans open to indirect regulation while uninsured plans are not open to indirect regulation. (109) Nonetheless, the Court determined that it merely gave life to a distinction created by Congress in the "deemer clause," which the Court further determined Congress was both aware of and decided not to alter. (110)

Other state actions may affect employee benefit plans, to the extent they may even be considered employee benefit "plans," in too tenuous, remote, or peripheral a manner to warrant a finding that the law relates to a plan. (111) For example, in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., the Supreme Court was faced with the collective challenge by commercial insurers, HMOs and their trade organizations against New York's statutory scheme for surcharges on hospital bills of patients covered by ERISA health care plans. (112) The High Court first concluded that the statutory surcharges "are imposed upon patients and HMO's [sic], regardless of whether the commercial coverage or membership, respectively, is ultimately secured by an ERISA plan, private purchase, or otherwise, with the consequence that the surcharge statutes cannot be said to make 'reference to' ERISA plans in any manner." (113) The unanimous Court then determined:
 [a]n indirect economic influence, however, does not bind plan
 administrators to any particular choice and thus function as a
 regulation of an ERISA plan itself.... Nor does the indirect
 influence of the surcharges preclude uniform administrative
 practice or the provision of a uniform interstate benefit package
 if a plan wishes to provide one....

 There is, indeed, nothing remarkable about surcharges on
 hospital bills, or their effects on overall cost to the plans and
 the relative attractiveness of certain insurers....

 In sum, cost uniformity was almost certainly not an object of
 preemption, just as laws with only an indirect economic effect on
 the relative costs of various health insurance packages in a given
 State are a far cry from those "conflicting directives" from which
 Congress meant to insulate ERISA plans. Such state laws leave plan
 administrators right where they would be in any case, with the
 responsibility to choose the best overall coverage for the money.
 We therefore conclude that such state laws do not bear the
 requisite "connection with" ERISA plans to trigger pre-emption.
 (114)


In Fort Halifax Packing Co. v. Coyne, the Court was faced with deciding whether a Maine statute requiring employers to provide a one-time severance payment to employees in the event of a plant closing was pre-empted by ERISA or the National Labor Relations Act. (115) On the ERISA pre-emption question, the 5-4 majority decision held that the Maine statute was not pre-empted by ERISA "because the statute neither establishes, nor requires an employer to maintain, an employee welfare benefit 'plan' under that federal statute." (116) Thus, the Court "construed the word 'plan'" to connote some minimal, ongoing "administrative" scheme or practice, and held that "a one-time, lump-sum severance payment triggered by a single event" does not qualify as an employer-sponsored benefit plan. (117) In a subsequent unanimous opinion, the high Court recognized that a (supreme) common sense understanding of the word plan refers to a scheme decided upon in advance. (118)

The Fort Halifax Packing Co. majority further explained that "ERISA's pre-emption provision does not refer to state laws relating to 'employee benefits,' but to state laws relating to 'employee benefit plans.'" (119) In the course of its analysis, the Court also relied upon two of its other unanimous decisions, Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983) and Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981), both of which found pre-emption of certain state laws because they impermissibly required the employer to accommodate conflicting regulatory schemes--precisely the burden that ERISA pre-emption was intended to avoid. (120) Thus, the Court distinguished its prior decisions in Shaw and Alessi given the lack of such requirement in Fort Halifax Packing Co. (121)

To the contrary, the dissenting opinion in Fort Halifax Packing Co., written by Justice White, criticized the majority opinion because it imposed the requirement that an employer have or establish an administrative scheme with respect to a welfare benefit "plan." (122) The dissenters further criticized the majority opinion for overruling Gilbert v. Burlington Indus., Inc., 477 U.S. 901 (1986), sub silentio, wherein the Court summarily affirmed the judgments in Gilbert v. Burlington Indus., Inc., 765 F.2d 320 (2d Cir. 1985) and Holland v. Burlington Indus., Inc., 772 F.2d 1140 (4th Cir. 1985). (123)

In Gilbert, the Second Circuit Court of Appeals rejected the assertion that a promise or agreement to pay severance benefits, without more, was not a welfare benefit plan within the meaning of ERISA. (124) While the Fort Halifax Packing Co. dissenters implicitly acknowledged that in Gilbert the employer had adopted a written severance pay policy or, in other words, a "plan" that was deemed to be a welfare benefit plan, (125) the majority utilized that fact to distinguish the Burlington (126) cases and support the majority opinion that there was no employee benefit plan or administrative scheme to administer an adopted plan. (127)
 Some severance benefit obligations by their nature necessitate an
 ongoing administrative scheme, but others do not. Those that do
 not, such as the obligation imposed in this case, simply do not
 involve a state law that relates to an employee benefit plan. 29
 U.S.C. [section] 1144(a). The Burlington cases therefore do not
 support appellant's argument. (128)


Inexplicably, in another unanimous opinion (129) delivered by Justice John Paul Stevens, the most senior Justice on the High Court, who sided with the majority in Fort Halifax Packing Co., and without overruling its Fort Halifax Packing Co. precedent, the U.S Supreme Court seemed to conclude just as the dissenters concluded in Fort Halifax Packing Co., (130) arguably in dictum. (131) "Thus, for example, plans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare benefit plans within the meaning of the Act." (132) The Court even cited Holland v. Burlington Indus., Inc., 772 F.2d 1140 (4th Cir. 1985), summarily affirmed and subsequently renamed Brooks v. Burlington Indus., Inc., 477 U.S. 901 (1986), as well as Gilbert v. Burlington Indus., Inc., 765 F.2d 320 (2d Cir. 1985), summarily affirmed and subsequently renamed Roberts v. Burlington Indus., Inc., 477 U.S. 901 (1986). (133) Although the Court's opinion in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) was cited in Massachusetts v. Morash, 490 U.S. 107 (1989), it was only cited for a totally distinct point of law. (134) Otherwise, the Court's Fort Halifax Packing Co. decision was overlooked or disregarded in Morash, although the High Court seemed to flip-flop from its Fort Halifax Packing Co. holding, just two years later. (135)

Nevertheless, in Morash, the Court was faced, in relevant part, with the task of determining whether a company's policy of paying its discharged employees for their unused vacation time constituted an employee welfare benefit plan within the meaning of ERISA. (136) Notwithstanding the Court's apparent about-face on the question of whether a one-time severance payment to employees constituted a welfare benefit plan, and that the employer in Morash had adopted a written vacation pay policy for unused vacation time, the unanimous Court rested its conclusion that the company's policy was not a welfare benefit plan subject to ERISA based on regulations adopted by the Secretary of Labor. (137)
 The fact that the payments in this case were due at the time of the
 employee's termination does not affect their character as a part of
 regular compensation. Unlike normal severance pay, the employees'
 right to compensation for accrued vacation time is not contingent
 upon the termination of their employment.

 In reaching this conclusion, we emphasize that the case before
 us--and the Secretary's regulations on which we rely--concern
 payments by a single employer out of its general assets. An
 entirely different situation would be presented if a separate fund
 had been created by a group of employers to guarantee the payment
 of vacation benefits to laborers who regularly shift their jobs
 from one employer to another. Employees who are beneficiaries of
 such a trust face far different risks and have far greater need for
 reporting and disclosure requirements that the federal law imposes
 than those whose vacation benefits come from the same fund from
 which they receive their paychecks. It is sufficient for this case
 that the Secretary's determination that a single employer's
 administration of a vacation pay policy from its general assets
 does not possess the characteristics of a welfare benefit plan
 constitutes a reasonable construction of the statute. (138)


It seems clear that not only were the regulations adopted by the Secretary of Labor significant to the Court, but the fact that no separate fund had been created from which to pay those vacations benefits was also a significant factor in its determination that such a policy was not a welfare benefit plan under ERISA. (139) "Because ordinary vacation payments are typically fixed due at known times, and do not depend on contingencies outside the employee's control, they present none of the risks that ERISA was intended to address." (140)

A reasonable understanding of the High Court's opinion in Massachusetts v. Morash, 490 U.S. 107 (1989) would also illuminate the Court's recognition that, like Massachusetts, "47 other States, the District of Columbia and the United States" had adopted similar vacation payment statutes. (141) Accordingly, a "contrary interpretation [of] ERISA would have profound consequences" including vastly expanding the jurisdiction of the federal courts for vacation grievances, displacing the extensive state regulations of vacation benefits and providing less protection if ERISA were applied to ordinary vacation wages paid from the employer's general assets. (142) Those factors combined with the Court's added recognition that "[s]tates have traditionally regulated the payment of wages, including vacation pay," (143) compels consideration whether the Court's ultimate conclusion in Morash was, in essence, fait accompli. Nonetheless, Morash seems to indelibly link, when appropriate, an employer's welfare benefit plan with a separately established fund for that plan. (144)

In Pegram v. Herdrich, 530 U.S. 211 (2000), the Court was faced with the (then) novel question "whether treatment decisions made by a [for-profit] health maintenance organization, acting through its physician employees, [were] fiduciary acts within the meaning of ... ERISA. (145) The Court identified what it described as "pure eligibility determinations" which depend on "the plan's coverage of a particular condition or medical procedure for its treatment" in contrast to "treatment decisions ... [which] are choices about ... diagnosing and treating a patient's condition...." (146) Significantly, the Court found that many of these decisions, if not most, "are not simple yes-or-no questions" and are often practically inextricable from one another, which cannot be untangled from physicians' judgments about reasonable medical treatment, particularly, when performed by the same physician. (147)

While Pegram was not an ERISA pre-emption decision (148) because the plaintiff's relevant claim was brought under ERISA, the unanimous Court determined the case to be akin to a fiduciary medical malpractice claim, based upon a mixed eligibility/treatment decision by the HMO, which was not a fiduciary decision under ERISA. (149) Having failed to state an ERISA claim, the Supreme Court reversed the Court of Appeals, which held that the HMO was acting as a fiduciary. (150) The High Court subsequently determined that a pure eligibility or "benefit determination under ERISA ... is generally a fiduciary act." (151)

In another action, Rush Prudential HMO, Inc. v. Moran, (152) the Court was confronted with the issue whether an Illinois statute, "as applied to health benefits provided by a health maintenance organization under contract with an employee welfare benefit plan, [was] pre-empted by ... [ERISA]." (153) The Illinois statute at issue provided for an independent medical review of the beneficiary's claim. (154) When the plan declined to provide the independent review, the beneficiary sued in state court, which action was (twice) removed to federal court on the basis of complete preemption under ERISA. (155)

The 5-4 Rush majority concluded that the Illinois HMO Act "relate[d] to" (156) employee benefit plans, such that it would be saved from pre-emption only if it also regulated insurance. (157) Again, relying on their supreme "common-sense," the High Court next addressed the question whether the HMO was also an insurer, within the meaning of ERISA. (158)
 [A]n HMO is both: it provides health care, and it does so as an
 insurer. Nothing in the saving clause requires an either-or choice
 between health care and insurance in deciding a preemption
 question, and as long as providing insurance fairly accounts for
 the application of state law, the saving clause may apply. There is
 no serious question about that here, for it would ignore the whole
 purpose of the HMO-style of organization to conceive of HMOs ...
 without their insurance element.

 "The defining feature of an HMO is receipt of a fixed fee for
 each patient enrolled under the terms of a contract to provide
 specified health care if needed." "The HMO thus assumes the
 financial risk of providing the benefits promised: if a participant
 goes never gets sick, the HMO keeps the money regardless, and if a
 participant becomes expensively ill, the HMO is responsible for the
 treatment...." (159)

 .... Since passage of the federal [HMO] Act, States have been
 adopting their own HMO enabling Acts, and today, at least 40 of
 them, including Illinois, regulate HMOs primarily through the
 States' insurance departments ... although they may be treated
 differently from traditional insurers, owing to their additional
 role as health care providers.... (160)

 .... Thus, the Illinois HMO Act is a law "directed toward" the
 insurance industry, and an "insurance regulation" under a [supreme]
 "commonsense view." (161)


Because the law regulates insurance, ERISA ostensibly foreclosed pre-emption. (162) Thus, the saving clause was entitled to prevail. (163) Likewise, in Kentucky Ass 'n of Health Plans, Inc. v. Miller, (164) a unanimous Court held Kentucky's so-called Any Willing Provider statute was not pre-empted because it met the two requirements for regulating insurance, even though the statute impaired the HMOs' ability to limit the number of providers with access to their networks. (165)

Unlike the Supreme Court's decisions finding state laws or state causes of action pre-empted by ERISA, (166) the various relevant occasions in which the Court did not find pre-emption or find the state actions excepted under the saving clause, do not appear to share a common theme or articulable element that underlies each of these decisions. Although three of the High Court decisions, Metropolitan Life Ins. Co. v. Massachusetts, (167) Rush Prudential HMO, Inc. v. Moran, (168) and Kentucky Ass'n of Health Plans, Inc. v. Miller, (169) shared the common element of being excepted from pre-emption because the statutes at issue were found to regulate insurance, otherwise, the Court's other holdings were grounded on materially distinct points of law. (170)

Moreover, even the Supreme Court has deemed the Court's own ERISA jurisprudence to be anything but clear, serving to establish muddy, even murky ERISA waters, which interpretive decisions have not necessarily been inconsistent with the language used by the U.S. Congress in its ERISA legislation. (171) Accordingly, it should not be surprising that interpreting ERISA has been a fairly trying experience for the High Court (172) and, undoubtedly, equally, if not more trying for the lower federal (and state) courts, (173) all of whom are bound by the Supreme Court's interpretation of federal law. (174)

IV. ERISA AND THE HIGH COURT'S OWN ERISA PRE-EMPTION JURISPRUDENCE HAS LEFT MUCH TO BE DESIRED

A couple of Justices on the U.S. Supreme Court have joined other lower federal court judges in "the rising judicial chorus urging that Congress and this Court revisit what is an unjust and increasingly tangled ERISA regime." (175) Perhaps, the inherent problem lies in the choice of words and the manner in which they were used in ERISA by the U.S. Congress. Although crafted with evident and deliberate care, (176) even the Supreme Court has acknowledged the statutory complexity of ERISA's pre-emption provisions. (177) Indeed, a unanimous Supreme Court has described the task of defining the key term "relate to" as frustratingly difficult, (178) "ERISA is an intricate, comprehensive statute." (179) The Supreme Court has also recognized that its "task of discerning congressional intent is considerably simplified" when "Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA." (180) Having acknowledged ERISA's pre-emption complexities and, strikingly, ERISA's interpretive simplicities, seems to suggest the Supreme Court has recognized ERISA's pre-emption provisions may be chameleon-like; at times simple and, at other times, enormously complex. (181)
 The two [actually three] pre-emption sections, (182) while clear
 enough on their faces, perhaps are not a model of legislative
 drafting, (183) for while the general pre-emption clause broadly
 pre-empts state law, the saving clause appears broadly to preserve
 the States' lawmaking power over much the same regulation. While
 Congress occasionally decides to return to the States what it has
 taken away, it does not normally do both at the same time. (184)


Perhaps a more reliable indicator of the enormous complexities, (185) rather than ERISA's simplicities, was described by Associate Justice Stevens, in another of his dissenting opinions in ERISA pre-emption cases, who observed "the burgeoning volume of litigation involving ERISA pre-emption claims" in December 1992 and that there was then in excess of 2,800 reported judicial opinions addressing ERISA pre-emption, revealed through a LEXIS search. (186) Only a few years later, a WESTLAW search revealed 3,330 reported judicial opinions addressing ERISA pre-emption. (187) The Supreme Court has also been called upon numerous times to resolve ERISA pre-emption disparity between the circuit courts since ERISA's enactment in 1974; the cases amount to a veritable tsunami of ERISA preemption litigation. (188) The over 400% increase in litigation based on disputes concerning ERISA pre-emption certainly seems to suggest that ERISA is much more complex (189) than simple or that any court, lay person or legal counsel confronted with the task of interpreting ERISA's provisions may somehow find that exercise a simple one.

Just five years later, writing for the majority, Justice Stevens acknowledged that the "boundaries of ERISA's pre-emptive reach have been the focus of considerable attention from this Court." (190) And the previous burgeoning volume of litigation involving ERISA pre-emption claims had evolved into "an avalanche of litigation in the lower courts." (191) Indeed, a unanimous Supreme Court acknowledged that its "use of the McCarran-Ferguson case law in the ERISA context has misdirected attention, failed to provide clear guidance to lower federal courts, and ... added little to the relevant analysis." (192) Not to mention, some members of the High Court have further acknowledged that the Court has not brought forth clarity to the general field of ERISA pre-emption. (193) Still other members of the High Court have described the Court's ERISA jurisprudence to needlessly obscure and complicate the statutory provisions. (194) That acknowledgement, however, should hardly come as a surprise given that the congressional language contained within ERISA seems to simultaneously pre-empt everything and hardly anything. (195) Some members of the High Court have even remained unsure as to what triggers the "relate to" provision, which "has no discernable content that would not pick up every ripple in the pond, producing a result 'that no sensible person could have intended.'" (196) Court members have even gone so far as to state that "applying the 'relate to' provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else." (197) And some have voiced fears that the Court's failure to clarify its decisions leaves lower courts struggling to interpret that clause, (198) which "will continue to produce an 'avalanche of litigation.'" (199) Still, other Court members have found the Court's ERISA-related discussion and remarks "simply incompatible with the structure, legislative history and purposes of ERISA" as well as ambiguous, subject to different readings and completely erroneous. (200) It is no wonder that nearly two decades ago Justice Stevens stated in his dissent, "I think it is time to take a fresh look at the intended scope of the preemption provision that Congress enacted." (201)

Likewise, with respect to the High Court's ERISA jurisprudence, one federal jurist sitting on a court of appeals has, essentially, concurred with Justice Stevens and stated "it is not too late for the Supreme Court to retrace its Trail of Error and start over from the beginning." (202) Another federal appellate jurist described existing ERISA jurisprudence as a "descent into a Serbonian bog wherein judges are forced to don logical blinders and split the linguistic atom to decide even the most routine cases ..." leaving federal courts in "a mess from which there is no way of extricating oneself." (203) Indeed, the Supreme Court had "no crystal ball, and twenty years ago it could not have foreseen the radical changes that have overtaken the health care system, and the difficulties that its preemption decisions would create." (204) Ironically, the High Court has repeatedly exercised its discretionary or certiorari jurisdiction in its desire to resolve the numerous conflicting interpretations of ERISA and ERISA's preemption provisions among and between the state supreme courts and the federal courts of appeals. (205) Federal circuit Court of Appeals judges also have made glaringly remarkable observations concerning ERISA:
 Congress enacted ERISA in 1974 "to promote the interest of
 employees and their beneficiaries in employee benefit plans". (206)
 However, with the rise of managed care and the Supreme Court's
 series of decisions holding pre-empted any action for damages
 against HMOs, ERISA has evolved into a shield that insulates HMOs
 from liability for even the most egregious acts of dereliction
 committed against plan beneficiaries, a state of affairs that I
 view as directly contrary to the intent of Congress. Indeed,
 existing ERISA jurisprudence creates a monetary incentive for HMOs
 to mistreat those beneficiaries, who are often in the throes of
 medical crises and entirely unable to assert what meager rights
 they possess.... In practice ... ERISA generally, and [section]
 514(a) particularly, have become virtually impenetrable shields
 that insulate plan sponsors from any meaningful liability for
 negligent or malfeasant acts committed against plan beneficiaries
 in all too many cases. This has unfolded in a line of Supreme Court
 cases that have created a "regulatory vacuum" in which virtually
 all state law remedies are preempted but very few federal
 substitutes are provided. (207)


The Supreme Court itself has further recognized that the "precise coverage of ERISA is not clearly set forth in the Act." (208) Besides the precise coverage of ERISA, there also exist a number of remedies that Congress did not include in ERISA or remained silent on. (209) Congress apparently made some deliberate "policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme." (210) "Arguments as to the wisdom of these policy choices must be directed at Congress." (211)

Furthermore, ERISA's "carefully crafted and detailed enforcement scheme provides 'strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.'" (212) "In a comprehensive regulatory scheme like ERISA, such omissions are significant ones." (213) "The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement." (214) "The assumption of inadvertent omission is rendered especially suspect upon close consideration of ERISA's interlocking, interrelated, and interdependent remedial scheme." (215) Although some have tried, one such remedy not provided for under ERISA is a suit for money damages. (216)

In the Supreme Court's view, a "series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrong-doing cannot gain make-whole relief," notwithstanding that "Congress intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief." (217) Although "ERISA abounds with the language and terminology of trust law" (218) and courts "are guided by principles of trust law," (219) the High Court declined to fill any remedial gaps within ERISA and deferred any such changes or any needed resolutions to the legislative decision making of the U.S. Congress. (220) "The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide." (221)

V. CONCLUSION

Although Congress amended ERISA several times since its enactment, (222) and some have constantly urged further amendment, (223) no worthwhile prediction may be made regarding whether the U.S. Congress will again enact amendments to ERISA. There is also no reliable way to predict whether any subsequent amendments will add previously omitted remedies or add clarity to the tension-filled provisions of ERISA. (224) Meanwhile, employers, welfare benefit plan participants, health care insurance providers, litigants, and others affected by ERISA are currently left to grapple with and try to faithfully understand the U.S. Supreme Court's ERISA jurisprudence, along with other lower court decisions, concerning ERISA pre-emption. (225) These faithful will lack both clarity and clear guidance. In this regard, the High Court has at least made clear that "ERISA pre-empted state laws that mandated employee benefit structures or their administration." (226) On other occasions, the Court has held that state laws providing alternative enforcement mechanisms also relate to ERISA plans, triggering pre-emption. (227) On the other hand, if a state law does not "relate to" an ERISA plan, a court need not determine whether ERISA's saving clause forestalls pre-emption. (228) And, if a state law regulates insurance, it will not be pre-empted under ERISA. (229)

At the end of the day, assuming ERISA, in the 35 years since its enactment, has become an unjust and increasingly tangled regime, (230) as some on the High Court have observed, interested parties may only look to the United States Congress to untangle this federal statutory regime with rather far-reaching implications for the health care insurance industry, among others. Moreover, the current state of judicial affairs with respect to interpretations of ERISA and ERISA pre-emption analysis seems to compel at least one undeniable conclusion; engagement of well-versed, experienced attorneys with respect to ERISA, an enormously complex area of federal law, is an absolute necessity for those parties affected, although such engagement is no guarantee of a just judicial result. (231)

H. MICHAEL MUNIZ (1)

(1.) H. Michael Muniz, is a Florida Bar Board Certified Appellate Lawyer focusing his practice on appeals in both state and federal courts. He received his B.S. degree from SUNY at Buffalo, obtained his Florida C.P.A. license and, after a sixteen year career in the financial institutions industry, received his J.D. from the Shepard Broad Law School at Nova Southeastern University.

(2.) Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 1084)9 (1989) (citing Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 361 (1980)); Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985). This article purposefully relies on the Supreme Court's ERISA jurisprudence, particularly, concerning its pre-emption analysis. At the same time, state and lower federal court decisions are mostly excluded because it is the province and duty of the Court to say what the law of the land is. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)) (sole reliance on the Supreme Court's interpretation of ERISA seemed appropriate).

(3.) Mertens v. Hewitt Ass'n, 508 U.S. 248, 251 (1993) (citing Nachman Corp., 446 U.S. at 361); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 510 (1981) (citing Nachman Corp., 446 U.S. at 361).

(4.) Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004).

(5.) Bruch, 489 U.S. at 110; Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987); Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1,25 n.26 (1983).

(6.) Pegram v. Herdrich, 530 U.S. 211,222-23 (2000) (emphasis added).

(7.) Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732 (1985); see also Boggs v. Boggs, 520 U.S. 833,841 (1997).

(8.) Metro. Life Ins. Co., 471 U.S. at 732 (citing 29 U.S.C. [section] 1002(1)); see also N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650-51 (1995); Massachusetts v. Morash, 490 U.S. 107, 113 (1989); Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825,827 n.1 (1988) (citing 29 U.S.C. [section][section] 1002(1), 1002(2)).

(9.) Morash, 490 U.S. at 115 (citing Cal. Hosp. Ass'n v. Henning, 770 F.2d 856, 859 (9th Cir. 1985); Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 32627 (1997) (quoting Morash, 490 U.S. at 115).

(10.) Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 249 n.21 (1978); Malone v. White Motor Corp., 435 U.S. 497,499 n.1 (1978).

(11.) Yates v. Hendon, 541 U.S. 1, 6 (2004); Boggs, 520 U.S. at 845; Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (citing Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90 (1983)).

(12.) Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001) (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9 (1987)); see also Kennedy v. Plan Adm'r for DuPont Sav.& Inv. Plan, 129 S. Ct. 865, 875 (2009) (citing Egelhoff, 532 U.S. at 148 (quoting Fort Halifax Packing Co., 482 U.S. at 9)); FMC Corp. v. Holliday, 498 U.S. 52, 60 (1990) (citing Fort Halifax Packing Co., 482 U.S. at 9).

(13.) Kennedy, 129 S. Ct. at 875.

(14.) Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511 (1981); see also Pegram v. Herdrich, 530 U.S. 211, 226-27 (2000) (citing Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996)).

(15.) N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,651 (1995) (internal statutory citations omitted); Alessi, 451 U.S. at 511 nn.5-6.

(16.) De Buono v. NYSA-ILA Med.& Clinical Servs. Fund, 520 U.S. 806, 811 (1997) (quoting NYSA-ILA Med. & Clinical Servs. Fund v. Axelrod, 27 F.3d 823,827 (2d Cir. 1994)).

(17.) Blue Cross & Blue Shield Plans, 514 U.S. at 661.

(18.) Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (citing Alessi, 451 U.S. at 523); see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 105 (1983).

(19.) Davila, 542 U.S. at 209.

(20.) Boggs v. Boggs, 520 U.S. 833, 841 (1997); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 389 n.1 (2002) (Thomas, Scalia, & Kennedy, JJ., Rehnquist, C.J., dissenting) (citing Boggs, 520 U.S. at 841).

(21.) Boggs, 520 U.S. at 844.

(22.) See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 64-67 (1987); see also Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 7-8 (2003) (discussing holding in Taylor); see Moran, 536 U.S. at 389 n.1 (Thomas, Scalia, & Kennedy, JJ., Rehnquist, C.J., dissenting) (citing Boggs, 520 U.S. at 841).

(23.) UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 367 n.1 (1999) (citing 29 U.S.C. [section] 1144(c)(1)); see Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 841 (1988) (Kennedy, Blackmun, O'Connor, & Scalia, JJ., dissenting).

(24.) See Davila, 542 U.S. at 207 (citing 28 U.S.C. [section][section] 1331, 1441(a)); see also Anderson, 539 U.S. at 6; Taylor, 481 U.S. at 63.

(25.) See Davila, 542 U.S. at 207 (citing Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9-10 (1983)); see also Anderson, 539 U.S. at 6; Taylor, 481 U.S. at 63 (citing Gully v. First Nat'l Bank, 299 U.S. 109 (1936)); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908)).

(26.) See Davila, 542 U.S. at 207.

(27.) Id. at 207-08 (internal citations omitted); Anderson, 539 U.S. at 8.

(28.) Davila, 542 U.S. at 209; Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 376 (2002); Taylor, 481 U.S. at 65.

(29.) Franchise Tax Bd. of Cal., 463 U.S. at 22.

(30.) Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 145 (1990); see also Moran, 536 U.S. at 376 (citing Taylor); Taylor, 481 U.S. at 63.

(31.) Shaw v. Delta Airlines, Inc., 463 U.S. 85, 99 (1983) (quoting statements by one of ERISA's sponsors, Representative Dent, during subsequent debates concerning the breadth of federal pre-emption).

(32.) Id.; Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987) (quoting statements by Representative Dent and Senator Williams).

(33.) Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 19 (1987) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522 (1981)); see also Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141,160 (2001) (Breyer & Stevens, JJ., dissenting); Massachusetts v. Morash, 490 U.S. 107, 119 (1989).

(34.) John Hancock Mutual Life Ins. Co. v. Harris Trust &Sav. Bank, 510 U.S. 86, 99 (1993) (citing 29 U.S.C. [section] 1144(a)); Morales v. Yrans World Airlines, Inc., 504 U.S. 374, 383 (1992); Alessi, 451 U.S. at 522 (citing 29 U.S.C. [section]1144(a)).

(35.) Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 333 (2003) (citing 29 U.S.C. [section][section] 1144(a), 1144(b)(2)(A)); Moran, 536 U.S. at 364 (citing 29 U.S.C. [section] 1144(a)); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 73940 (1985); Shaw, 463 U.S. at 91. State laws that regulate banking and securities are outside the scope of this article.

(36.) N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,657 (1995).

(37.) FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990).

(38.) Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825,830 (1988) (codified at 29 U.S.C. [section] 1144(a)).

(39.) Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990) (citing Metro. Life Ins. Co., 471 U.S. at 739.

(40.) See Yates v. Hendon, 541 U.S. 1, 24 (2004) (Scalia, J., dissenting) ("The Court uses a sledgehammer to kill a gnat.").

(41.) Metro. Lifelns. Co., 471 U.S. at 737-38 (citation omitted).

(42.) Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7-8 (1987). But see Massachusetts v. Morash, 490 U.S. 107, 116 (1989) ("Thus, for example, plans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare benefit plans within the meaning of the Act.").

(43.) Fort Halifax Packing Co., 482 U.S. at 11-12.

(44.) Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 334 (2003).

(45.) FMC Corp. v. Holliday, 498 U.S. 52, 64 (1990).

(46.) Ky. Ass'n of Health Plans, Inc., 538 U.S. at 334.

(47.) Id. at 336 n.l.

(48.) Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 25 (1983).

(49.) District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 136 (1992) (Stevens, J., dissenting).

(50.) See id. (citing 29 U.S.C. [section] 1144(b)(2)(B)); see also UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 366-68, 375-76 (1999); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 733 (1985).

(51.) FMC Corp. v. Holliday, 498 U.S. 52, 64 (1990).

(52.) Ky. Ass'n of Health Plans, Inc., 538 U.S. at 341-42.

(53.) Id. at 338, 342 (internal citations omitted).

(54.) Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147 (2001) (citing Shaw v. Delta Airlines, Inc., 463 U.S. 85, 97 (1983)); Maekey v. Lanier Collection Agency & Sere., Inc., 486 U.S. 825, 829 (1988); Metro. Life Ins. Co., 471 U.S. at 739; see Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523-26 (1981) (concluding New Jersey statute impermissibly related to pension plans governed by ERISA because it eliminated one method for calculating pension benefits that is permitted by federal law); see also Greater Wash. Bd. of Trade, 506 U.S. at 129 (citations omitted); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 10 (1987) (discussing Alessi); Shaw, 463 U.S. at 98 n. 15 (discussing Alessi). But see Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 335-36 (1997) (Scalia & Ginsburg, JJ., concurring) ("I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre-emption, and, of course, ordinary conflict pre-emption.... Nothing more mysterious than that; and except as establishing that, "relates to" is irrelevant.").

(55.) Mackey, 486 U.S. at 829 (citations omitted); see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140 (1990) (citing Mackey, 486 U.S. at 829).

(56.) Shaw, 463 U.S. at 98.

(57.) Dillingham Constr., 519 U.S. at 324 (citations omitted); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (citations omitted).

(58.) N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995).

(59.) Egelhoff 532 U.S. at 147.

(60.) Mackey, 486 U.S. at 840.

(61.) FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990); Massachusetts v. Morash, 490 U.S. 107, 115 (1989); Mackey, 486 U.S. at 840.

(62.) See UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 367-68, 373 (1999); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990); Mackey, 486 U.S. at 842 (Kennedy, Blackmun, O'Connor, Sealia, JJ., dissenting); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48-50 (1987); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740-41, 742 nn.17-18 (1985); see also Schultz v. Nat'l Coal. of Hispanic Mental Health & Human Servs. Org., 678 F. Supp. 936, 938 (D.C. Cir. 1988) ("Rather, the cases stressing the broad reach of the ERISA preemption clause also stress that common sense should not be left at the courthouse door.") (discussing Dedeaux and Taylor). But see District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 135 n.3 (1992) (Stevens, J., dissenting) (explaining the growth of litigation over the meaning of the word "relate to" and how it pre-empts reliance on "common sense").

(63.) Dedeaux, 481 U.S. 41.

(64.) Id. at 41-43.

(65.) Id. at 47-48; Morales v. Trans World Airlines, Inc., 504 U.S. 374, 388 (1992) (discussing holding in Dedeaux, where the common-law tort and contract actions were found pre-empted by ERISA).

(66.) Dedeaux, 481 U.S. at 48.

(67.) Id. at 51-52.

(68.) Id. at 54.

(69.) Id. at 57 (emphasis added). May it genuinely be said that the saving clause or any part of ERISA has reached a point of common sense understanding, in light of the avalanche of litigation concerning ERISA pre-emption? See infra note 190.

(70.) Dedeaux, 481 U.S. at 57.

(71.) Id.

(72.) Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 59-67 (1987).

(73.) Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 135 (1990) (Marshall, Blackmun, & Stevens, JJ., join Parts I and II-B of the opinion).

(74.) Id. at 135.

(75.) Id. at 139-45; District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 129-32 (1992) (discussing the holding in McClendon).

(76.) McClendon, 498 U.S. at 140.

(77.) Id. at 141-42.

(78.) Greater Wash. Bd. of Trade, 506 U.S. at 126-27 (Stevens, J., dissenting).

(79.) Id. at 130.

(80.) FMC Corp. v. Holliday, 498 U.S. 52, 54 (1990).

(81.) Id.

(82.) Id.

(83.) Id. at 59.

(84.) Id. at 58.

(85.) Id. at 60-61 (alteration in original) (citing 29 U.S.C. [section] 1144(b)(2)(A)).

(86.) Holliday, 498 U.S. at 54 (citing 75 PA. CONS. STAT. [section] 1720 (1987)).

(87.) Id. at 64; Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 326 (1997) ("But an employee benefit program not funded through a separate fund is not an ERISA plan.").

(88.) Holliday, 498 U.S. at 61. "ERISA's 'deemer' clause provides an exception to its saving clause that prohibits States from regulating self-funded plans as insurers." Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 372 n.6 (2002).

(89.) Holliday, 498 U.S. at 62-65.

(90.) Id. at 65 (Stevens, J., dissenting).

(91.) See The Oyez Project, Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985), http://oyez.org/cases/1980-1989/1984/1984_84_325 (last visited Feb. 17, 2010) (indicating eight votes for Massachusetts and zero votes against). Justice John Paul Stevens is the senior Associate Justice, who joined the Supreme Court in 1975. See The Justices of the Supreme Court, http://www.supremecourtus.gov/about/biographiescurrent.pdf (last visited Sept. 14, 2009).

(92.) Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 727-58 (1985).

(93.) Taylor v. Blue Cross/Blue Shield of N.Y., 684 F. Supp. 1352, 1354 (E.D. La. 1988).

(94.) Aetna Health Inc. v. Davila, 542 U.S. 200, 204 (2004).

(95.) Id. at 210.

(96.) Id. at 211.

(97.) Id. at 214.

(98.) Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140 (1990).

(99.) But see Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 339-40 (2003); Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 234 (2002) (Ginsburg, Stevens, Souter, & Breyer, JJ., dissenting); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 153-54 (2001) (Breyer & Stevens, JJ., dissenting); Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 335 (1997) (Scalia & Ginsburg, JJ., concurring).

(100.) See McClendon, 498 U.S. at 139; Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 n.19 (1981).

(101.) See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 727-38 (1985); see Wadsworth v. Whaland, 562 F.2d 70, 75-76 (1st Cir. 1977) (holding that the saving clause saved a New Hampshire mandated-benefit law).

(102.) Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100, 104 (1983).

(103.) Metro. Life Ins. Co., 471 U.S. at 739.

(104.) Id. Butsee Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 24 (1987) (White, O'Connor, & Scalia, JJ., Rehnquist, C.J., dissenting) (finding the state law relates to a benefit plan and further providing "I would have thought this to be the end of the pre-emption inquiry").

(105.) Metro. Life Ins. Co., 471 U.S. at 740-43 (emphasis added); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987) (discussing the holding in Metro. Life Ins. Co.).

(106.) Metro. Life Ins. Co., 471 U.S. at 729.

(107.) Id. at 732; John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 99 n.9 (1993) ("ERISA-covered benefit plans that purchase insurance policies are governed by both ERISA and state law; self-insured plans are subject only to ERISA") (citing FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990)).

(108.) See Metro. Life Ins. Co., 471 U.S. at 740-43 (concluding that regulation regarding the substantive terms of mandated benefit insurance contracts falls squarely within the saving clause as laws "which regulate insurance" notwithstanding initial finding that the Mississippi statute clearly relates to welfare plans governed by ERISA so as to fall within reach of ERISA's preemption provision); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 106 (1983) (holding that only disability programs administered separately from other benefit plans fall within ERISA's preemption exemption for plans maintained for the purpose of complying with disability insurance laws, while acknowledging "the Disability Benefits Law plainly is a state law relating to employee benefit plans"); see also Humana Inc. v. Forsyth, 525 U.S. 299, 310-11 (1999) (discussing Shaw holding); Fort Halifax Packing Co., 482 U.S. at 8-11, 19 (discussing Shaw and holding that Disability Benefits Law was not pre-empted by ERISA).

(109.) Metro. Life Ins. Co., 471 U.S. at 747; Holliday, 498 U.S. at 64.

(110.) Metro. Life Ins. Co., 471 U.S. at 747, n.25. Notably, the Court's conclusion on this point was based on a 1977 Activity Report of the House Committee on Education and Labor, which issued three years post-enactment of ERISA. Id.

(111.) Shaw, 463 U.S. at 100 n.21; see also N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661-62 (1995) (holding New York statute affecting costs and charges of insurance policies and HMO memberships do not bear the requisite connection with ERISA plans to trigger pre-emption); District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 n.1 (1992).

(112.) See Blue Cross & Blue Shield Plans, 514 U.S. at 649-55.

(113.) Id. at 656.

(114.) Id. at 659-62; see De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 813-16 (1997) (discussing the Court's reasoning in N. Y. State Conference of Blue Cross & Blue Shield Plans).

(115.) Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 3-4 (1987).

(116.) Id. at 6.

(117.) District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 131 n.2 (1992) (relying on Fort Halifax Packing Co.).

(118.) Pegram v. Herdrich, 530 U.S. 211,223 (2000).

(119.) Fort Halifax Packaging Co., 482 U.S. at 7; see also McClendon, 498 U.S. at 139 (discussing Fort Halifax Packing Co.).

(120.) See Fort Halifax Packaging Co., 482 U.S. at 10-11; see also Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 830 (1988) (discussing Shaw's finding that "a New York antidiscrimination statute pre-empted under [section] 514(a), even though Congress had not expressed any intent in ERISA to approve of the employment practices that the State had banned by its statute").

(121.) See Fort Halifax Packaging Co., 482 U.S. at 12.

(122.) See id. at 23-24 (White, O'Connor, & Scalia, JJ., Rehnquist, C.J., dissenting).

(123.) See id. at 25; see also Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1581 (Fed. Cir. 1993) (Mayer, J., dissenting) (providing, in relevant part, a decision not to issue a precedential or explanatory opinion, which merely affirms the judgment of the trial court, implies nothing at all about the lower court's opinion).

(124.) See Gilbert v. Burlington Indus,, Inc., 765 F.2d 320, 325 (2d Cir. 1985).

(125.) See Fort Halifax Packaging Co., 482 U.S. at 25 (White, O'Connor, & Scalia, JJ., Rehnquist, C.J., dissenting).

(126.) See id. at 17-18.

(127.) See id. at 18-19; see also McClendon, 498 U.S. at 139 (discussing the holding reached in Fort Halifax Packing Co.).

(128.) Fort Halifax Packaging Co., 482 U.S. at 18-19.

(129.) Massachusetts v. Morash, 490 U.S. 107, 108 (1989).

(130.) Accord id. at 116; Fort Halifax Packaging Co., 482 U.S. at 23 (White, O'Connor, & Scalia, JJ., Rehnquist, C.J., dissenting).

(131.) Morash, 490 U.S. at 119-21.

(132.) Id. at 116.

(133.) Id.

(134.) See id. at 112-13 (stating that "ERISA was passed by Congress in 1974 to safeguard employees from abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits").

(135.) Compare Fort Halifax Packaging Co., 482 U.S. at 23 (holding "that the Maine severance pay statute is not pre-empted by ERISA, since it does not 'relate to any employee benefit plan' under that statute"), with Morash, 490 U.S. at 116 ("[P]lans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare benefits within the meaning of the Act.").

(136.) Morash, 490 U.S. at 109.

(137.) Id. at 116-21; see also Holland v. Burlington Indus., Inc., 772 F.2d 1140, 1145 (4th Cir. 1985).

(138.) Morash, 490 U.S. at 120-21.

(139.) See id. at 114 (citing Cal. Hosp. Ass'n v. Henning, 770 F.2d 856, 861 (1985)).

(140.) Id. at 115.

(141.) See id. at 109-10.

(142.) See id. at 118-19.

(143.) Id. at 119.

(144.) See Morash, 490 U.S. at 114 ("In addition, the creation of a separate fund to pay employees vacation benefits would subject a single employer to the regulatory provisions of ERISA.'); see also Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 326 (1997) (stating "an employee benefit program not funded through a separate fund is not an ERISA plan").

(145.) Pegram v. Herdrich, 530 U.S. 211, 214 (2000).

(146.) Id. at 228.

(147.) See id. at 228-29.

(148.) See Cicio v. Vytra Health Care, 321 F.3d 83, 109 n.4 (2d Cir. 2003) (Calabresi, J., dissenting in part) vacated, Vytra Healthcare v. Cicio, 542 U.S. 933, 933 (2004).

(149.) See Pegram, 530 U.S. at 231-36.

(150.) See id. at 237.

(151.) Aetna Health Inc. v. Davila, 542 U.S. 200, 218 (2004).

(152.) Rush Prudential HMO v. Moran, 536 U.S. 355 (2002).

(153.) Id. at 359 (alteration in original).

(154.) See id. at 361.

(155.) See id. at 362-63.

(156.) Id. at 363 (alteration in original).

(157.) See id. at 358, 365.

(158.) Moran, 536 U.S. at 365-66.

(159.) Id. at 367 (alteration in original) (citing Pegram v. Herdrich, 530 U.S. 211, 218 (2000)).

(160.) Id. at 369.

(161.) Id. at 373 (alteration in original) (emphasis added).

(162.) See id. at 375.

(163.) Accord Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 33142 (2003); Moran, 536 U.S. at 387.

(164.) Miller, 538 U.S. at passim.

(165.) See id. at 334-35; 341-42.

(166.) See Aetna Health Inc. v. Davila, 542 U.S. 200, 204 (2004).

(167.) See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 741-43 (1985).

(168.) See Moran, 536 U.S. at 387.

(169.) See Miller, 538 U.S. at 334-35.

(170.) See Metro. Life Ins. Co., 471 U.S. at 746-47; see also Miller, 538 U.S. at 339-42; Moran, 536 U.S. at 385-87.

(171.) See Moran, 536 U.S. at 365.

(172.) See, e.g., De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 813-14 (1997); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995).

(173.) See, e.g., Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 152-53 (2001) (Scalia & Ginsburg, JJ., concurring); see also Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 n.11 (1983) (acknowledging the court of appeals viewed the High Court's decisions as "rather mystifying"); cf. Alessi v. Raybestos-Manhattan Inc., 451 U.S. 504, 525 n.21 (1981) ("Other courts have reached varying conclusions as to the meaning of ERISA's pre-emptive language in other contexts.").

(174.) See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (providing a state court's interpretation of federal law is no less authoritative than that of the federal circuit court of appeals, both of which are bound by this Court's interpretation of federal law); see also United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7 (1973) (providing, in relevant part, "we do have a duty to authoritatively construe federal statutes"); Cooper v. Aaron, 358 U.S. 1, 18 (1958) (citing Marbury v. Madison, 5 U.S. 137, 177 (1803)).

(175.) Aetna Health Inc. v. Davila, 542 U.S. 200, 223-24 (2004) (Ginsburg & Breyer, JJ., concurring) (citing DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 453 (3d Cir. 2003) (Becker, J., concurring)); see also DiFelice, 346 F.3d at 467-68 (Ambro, J., concurring) (joining the chorus calling for a fresh look at ERISA from a higher authority).

(176.) Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987) (citing Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1987)).

(177.) See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739-40 (1985); see also John Hancock Mutual Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 109 (1993); Dedeaux, 481 U.S. at 47.

(178.) See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995); see also De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 813-14 (1997).

(179.) Boggs v. Boggs, 520 U.S. 833, 841 (1997).

(180.) Ingersoll-Rand v. McClendon, 498 U.S. 133, 138 (1990).

(181.) See, e.g., Metro. Life Ins. Co., 471 U.S. at 739-40 (pointing out that ERISA is not a "model of legislative drafting"); see also Harris Trust & Sav. Bank, 510 U.S. at 109; Mertens v. Hewitt Ass'n, 508 U.S. 248, 262 (1993); Dedeaux, 481 U.S. at 47. But see MeClendon, 498 U.S. at 138 (calling ERISA "considerably simplified").

(182.) See Employee Retirement Income Security Act of 1974, [section] 514, 29 U.S.C. [section] 1144(a) (2006) (stating that the provisions of the title "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b)"). But see 29 U.S.C. [section] 1144(b)(2)(A) (providing nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities); see also FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990) (stating that "[t]hree provisions of ERISA speak expressly to the question of preemption").

(183.) See Holliday, 498 U.S. at 58 (citing Metro. Life Ins. Co., 471 U.S. at 739); see also Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 67 n.* (Brennan & Marshall, JJ., concurring) (citing Dedeaux, 481 U.S. at 46); see also Rush Prudential HMO v. Moran, 536 U.S. 355, 392 (2002).

(184.) Metro. Life Ins. Co., 471 U.S. at 739-40.

(185.) See Mertens, 508 U.S. at 262; see also DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 461 (3d Cir. 2003) (Becker, J., concurring) (stating the majority "opinion masks extraordinary subtleties and complexities of this area of the law that cry out for clarification by the Congress, or, failing that, by the Supreme Court").

(186.) See District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 135 n.3 (1992) (Stevens, J., dissenting).

(187.) See Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 HARV. J. ON LEGIS. 35, 59 n.106 (1996).

(188.) See also Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 334 (1997) (Scalia & Ginsburg, JJ., concurring).

(189.) See, e.g., id at 334-35.

(190.) De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 809 n.1 (1997); see also Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365 (2002); Boggs v. Boggs, 520 U.S. 833, 839 (1997) (stating "ERISA pre-emption questions are recurrent, two other cases on the subject having come before the Court in the current Term alone"); see also Dillingham Constr., 519 U.S. at 334-35 (Scalia & Ginsburg, JJ., concurring) (providing since ERISA was enacted in 1974, the Court had accepted certiorari in sixteen ERISA pre-emption cases).

(191.) De Buono, 520 U.S. at 809 n.1 (citing Greater Wash. Bd. of Trade, 506 U.S. at 135 & n.3 (Stevens, J., dissenting)).

(192.) Miller, 538 U.S. at 339-40. See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 742-44 (1985) (applying case law concerning the McCarran-Ferguson Act in the ERISA context); see also Moran, 536 U.S. at 373-74; UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 373-75 (1999); Humana Inc. v. Forsyth, 525 U.S. 299, 306-07 (1999); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48-51 & n.2 (1987). But see Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341 (2003) (providing, in relevant, part, "[t]oday we make a clean break from the McCarran-Ferguson factors" insofar as applying those factors in the ERISA context).

(193.) See Dillingham Constr., 519 U.S. at 334-35 (Scalia & Ginsburg, JJ., concurring).

(194.) See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 234 (2002) (Ginsburg, Stevens, Souter, & Breyer, JJ., dissenting).

(195.) See Moran, 536 U.S. at 365.

(196.) Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 152-53 (2001) (Scalia & Ginsburg, JJ., concurring) (quoting Dillingham Constr., 519 U.S. at 336 (Scalia, J., concurring)).

(197.) Dillingham Constr., 519 U.S. at 335 (Scalia & Ginsburg, JJ., concurring) (citing N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 665 (1995)); see also DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 467 (3d Cir. 2003) (Becker, J., concurring) (quoting Dillingham Constr., 519 U.S. at 335-36 (Scalia & Ginsburg, JJ., concurring)).

(198.) See Egelhoff, 532 U.S. at 152 (Scalia & Ginsburg, JJ., concurring).

(199.) Id. at 153-54 (Breyer & Stevens, JJ., dissenting) (quoting De Buono, 520 U.S. at 809).

(200.) See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 151, 155 (1987) (Brennan, White, Marshall, & Blackmun, JJ., concurring).

(201.) District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 135 (1992) (Stevens, J., dissenting).

(202.) Cicio v. Vytra Health Care, 321 F.3d 83, 107 (2d Cir. 2003) (Calabresi, J., dissenting in part) vacated, Vytra Healthcare v. Cicio, 542 U.S. 933, 933 (2004).

(203.) DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 453-56, n.1 (3d Cir. 2003) (Becker, J., concurring); see also Cicio, 321 F.3d at 106-110 (stating "The conclusion that my colleagues have reached today is a band-aid on a gaping wound") (Calabresi, J., dissenting in part).

(204.) DiFelice, 346 F.3d at 465.

(205.) See, e.g., Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 n.12 (1983); see also Kennedy v. Plan Adm'r for DuPont Sav.& Inv. Plan, 129 S. Ct. 865, 870 (2009); Yates v. Hendon, 541 U.S. 1, 6 (2004); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 364 (2002); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 146 (2001); Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 323 (1997); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,665 (1995); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 90 (1993); Greater Wash. Bd of Trade, 506 U.S. at 129; Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137 (1990); FMC Corp. v. Holliday, 498 U.S. 52, 56 (1990); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 108 (1989); Massachusetts v. Morash, 490 U.S. 107, 112 & n.7 (1989); Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 828 (1988); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 62 (1987).

(206.) Shaw, 463 U.S. at 90 (surveying Congressional statements of purpose).

(207.) DiFelice, 346 F.3d at 453 (Becker, J., concurring).

(208.) Morash, 490 U.S. at 113.

(209.) See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 516 (1981); see also Mackey, 486 U.S. at 837-38; Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-48 (1985).

(210.) Taylor, 481 U.S. at 64 (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987)).

(211.) Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985).

(212.) Mertens v. Hewitt Ass'n, 508 U.S. 248, 254 (1993) (citing Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985)); see also Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 221 (2002).

(213.) Mackey, 486 U.S. at 837.

(214.) Russell, 473 U.S. at 147 (quoting Nw. Airlines, Inc., v. Transport Workers, 451 U.S. 77, 97 (1981)).

(215.) Id. at 146.

(216.) See Knudson, 534 U.S. at passim; see also Mertens, 508 U.S. at passim; Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 136-37 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 passim (1987); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 passim (1987); Russell, 473 U.S. at 146-47.

(217.) Aetna Health Inc. v. Davila, 542 U.S. 200, 224 (2004) (Ginsburg & Breyer, JJ., concurring).

(218.) Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989); see also Pegram v. Herdrich, 530 U.S. 211, 224 (2000).

(219.) Bruch, 489 U.S. at 111.

(220.) See Mertens, 508 U.S. at 263.

(221.) Russell, 473 U.S. at 145 (quoting California v. Sierra Club, 451 U.S. 287, 297 (1981)).

(222.) See, e.g., De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 815 n.11 (1997); see also Boggs v. Boggs, 520 U.S. 833, 843 (1997); Mertens, 508 U.S. at 259.

(223.) See John Hancock Mutual Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 110 n.18 (1993); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740 n.16 (1985).

(224.) See Mertens, 508 U.S. at 262-63; see also Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 392 (2002) (Thomas, Scalia, & Kennedy, JJ., Rehnquist, C.J., dissenting).

(225.) See, e.g., Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 325 (1997).

(226.) See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 658 (1995) (discussing in part Shaw v. Delta Airlines, Inc.); see also Dillingham Constr., 519 U.S. at 328; FMC Corp. v. Holliday, 498 U.S. 52 (1990); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 516 (1981).

(227.) See Travelers Ins. Co., 514 U.S. at 658 (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990)).

(228.) See Dillingham Constr., 519 U.S. at 334 n.12; see also De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814-16 (1997).

(229.) See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 746, 758 (1985); see also Moran, 536 U.S. at 375.

(230.) See Aetna Health Inc. v. Davila, 542 U.S. 200, 223-24 (2004) (Ginsburg & Breyer, JJ., concurring).

(231.) Cicio v. Vytra Health Care, 321 F.3d 83, 106 (2d Cir. 2003) (Calabresi, J., dissenting in part) vacated, Vytra Healthcare v. Cicio, 542 U.S. 933, 933 (2004).
COPYRIGHT 2010 St. Thomas Law Review
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2010 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Muniz, H. Michael
Publication:St. Thomas Law Review
Date:Jan 1, 2010
Words:14246
Previous Article:The complications of Fla. Stat. (section) 222.25(4). Does Florida's wildcard exemption allow married debtors to double dip?
Next Article:Take two of these and sue me in the morning: efficacy of the learned intermediary doctrine in prescription drug failure to warn cases.
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |