More Supreme Court News

More news items have been published regarding the recent agreement by the U.S. Supreme Court to hear cases involving three church-affiliated hospital pension plans, including Saint Peter's. In all three cases, the hospitals, claiming the right to shed federal ERISA worker protections under an exemption for churches, had lost in federal appeals court.

• Joellen Leavelle of Pension Rights Center has published an excellent overview which should be required reading. (We admit, we rushed to publish the update in our previous post; Ms. Leavelle's is far superior.)
• The always reliable Hazel Bradford at Pensions & Investments has written a balanced, in-depth report.
• Karin Price Mueller of the Star-Ledger/NJ.com has an update to her Bamboozled item we featured in a previous blog post. Ms. Mueller again touches on another New Jersey hospital, St. James of Newark, whose corporate owners used the church exemption to stiff their retirees and bankrupt their pension plan.

We found other accounts, to which we decline to link here. Florida Baptist Witness reports that "religious freedom advocates" say the court's impending decision would determine "if Protestant and Catholic hospitals qualify as faith-based ministries." The president of the Southern Baptist Ethics & Religious Liberty Commission is reported as saying, "I hope the Supreme Court rules in favor of these hospitals, their employees, and their communities, and rejects this attempt to attack once again religious freedom and human compassion." The reporter doesn't question how compelling a hospital to keep its promises to its employees is somehow anti-employee or an attack on compassion, or how an ethics commission president can display such a brazen disregard for ethics. Breitbart News, the far-right website until recently helmed by Donald Trump's prospective White House strategist Stephen Bannon, is even worse. By their telling, the hospitals in these cases "are all faith-based healthcare providers. They are nonprofit organizations which provide health care to the poor and needy, and they do it as their faith-based ministry to the world." The bad guys? "Trial lawyers."

We hear that the court will hear oral argument in the consolidated group of cases in March 2017, when the court will in all likelihood still have only eight members.

Supreme Court Will Hear Hospitals' Appeals

The U.S. Supreme Court has decided to hear the appeals of three church-affiliated hospital systems, including Saint Peter's Healthcare System. All three hospital systems' pension plans were declared ineligible by federal appeals courts for the ERISA exemption for churches. Besides Saint Peter's, the hospital systems are Dignity Health of California, which operates Catholic hospitals, and Advocate Health System of Illinois, affiliated with the Evangelical Lutheran Church in America and United Church of Christ. The cases have been consolidated, so the Court will hear arguments for all three cases together.

It seems strange that the Court would hear these cases when there has been no disagreement at the appellate level that the church exemption applies only to plans established by churches, according to a clear reading of the statute. The Court apparently accepted the argument of the hospitals' lawyers that decisions by the Department of Labor and the IRS which interpreted the statute differently should be given weight similar to the actual wording of the statute.

We will have more soon, but for now, here are three articles on this latest development from The National Law Journal, ABA Journal, and Reuters.

Star-Ledger/NJ.com "Bamboozled" article

The Star-Ledger/NJ.com has published an excellent article on pensions of New Jersey Catholic hospitals, and its title is blunt: Bamboozled: How Catholic Hospitals Get Away With Letting Pensions Go Broke. Karin Price Mueller's Bamboozled series tends to focus on scams, fraud, and avoidance of responsibility to citizens and consumers. The new article, showing Catholic hospitals' attempt to renege on their debt to employees and retirees, fits the pattern.

The article focuses on both St. Peter's plan and that of the now-defunct St. James Hospital of Newark. St. James' pension plan was starved of funds after a "church plan" ruling, then completely abandoned in a series of corporate mergers. The corporate parent(s) told one story (via press release, and probably to their retirees as well) at the time of the mergers about who was responsible for the plan, but now say that story was "incorrect or misleading"—while taking no responsibility for the outcome. St. James' plan will run out of money in the next few months; the plan's facilitator can't find the responsible party, and the Archdiocese of Newark won't return their phone calls.

It's not difficult to see the parallels. St. Peter's has done their best to rewrite the past, with help from their consultants and lawyers (e.g., "We have always been a church plan"), and their rare public statements about the plan are careful not to mention future benefits. Any words coming from St. Peter's or the Archdiocese of Metuchen about the plan should be subject to careful scrutiny.

As the article mentions, the Supreme Court's decision on whether to hear the St. Peter's case and/or others like it is imminent. We expect to have more for you on this very soon.

Lawsuit Update

Here’s an update on where we stand, to the best of our knowledge, in the Saint Peter’s case:

As you probably know, the case has been returned to the federal district court of New Jersey, after the Third Circuit in December 2015 denied Saint Peter's appeal, then in March 2016 denied a request to re-hear the case. Absent any new action from Saint Peter’s, the next task in the district court would be to resume the original lawsuit: legal discovery would begin, focusing on the extent of Saint Peter’s ERISA violations (e.g., underfunding the pension plan) so that remedial decisions/orders could be made to bring the plan back into compliance. Alas, none of this has happened.

Saint Peter’s has petitioned the Supreme Court to review their case — in the language of the Court, to grant certiorari (choose your favorite pronounciation). In the meantime Saint Peter’s has filed a motion with the district court to stay the proceedings there, pending the Supreme Court’s decision. The lawyers for the plaintiffs claim that the motion is procedurally improper because, among other things, the hospital cannot establish a reasonable probability that their argument will sway the Court. Remember, the Court's role is to resolve conflicting opinions in the appellate courts. Saint Peter’s has NO appellate court rulings they can cite to support their claim to the church-plan exemption, while the plaintiffs can now cite two appellate rulings supporting their arguments (the Saint Peter’s and Advocate decisions). The motion to stay seems clearly designed as a stalling action, to allow the possibility of a favorable ruling in another of the several similar cases now before the courts, and to allow the hospital to save money by continuing to operate the pension as a church plan.

At this point, we are waiting for the district court to rule on the motion to stay, or for the Supreme Court to decide whether to grant Saint Peter’s a hearing. The current Supreme Court term ends imminently, with the new term beginning in October, but (we believe) a decision could still be made during the summer recess.

St. Peter's Appellate Rehearing Denied

You may remember (you certainly should!) that back in January, Saint Peter's announced that they had filed to request that the entire Third Circuit re-hear the appeal that a three-judge panel had previously denied. On Friday, March 18, the Third Circuit denied Saint Peter's request for a rehearing. Today, the Third Circuit sent the case back to the New Jersey District Court for a decision, which will presumably go against Saint Peter's. It will be interesting to see what Saint Peter's does next; plainly they do not intend to run the pension plan as an ERISA plan.

First Media Reports Of Latest Appellate Victory

Rebecca Moore of PLANSPONSOR/PLANADVISOR has published a news item on last Thursday's decision in Stapleton v. Advocate Health Care Network. It's short, but this paragraph sums up the court's reasoning so well we're including it here in its entirety:

Using much the same logic as the 3rd U.S. Circuit Court of Appeals in Kaplan v. St. Peter’s Healthcare System, the 7th Circuit decided a church plan established by a church and maintained by a church is a church plan, and a church plan established by a church and maintained by a church-affiliated organization is a church plan—but a church plan established by a church-affiliated organization and maintained by a church-affiliated organization is not a church plan. The appellate court in Advocate agreed with the 3rd Circuit that, according to the language of ERISA, for church plan exemption, there are two requirements—establishment and maintenance—and only the maintenance requirement is expanded by the use of the word “includes.”

The Cohen Milstein law firm, having now won their second straight appellate judgment in this recent group of cases, deserves to crow a little; they do so in this informative press release.

Second Straight Appeals Court Victory For Retirees

Today a three-judge panel in the Seventh Circuit Court of Appeals in Chicago ruled in Stapleton v. Advocate Health Care Network, rejecting the hospital system's appeal of a district court ruling and affirming that their pension plan is not a church plan. This is the second such ruling in a series of similar cases involving pension plans of church-affiliated hospital systems—including, of course, Kaplan v. Saint Peter's Healthcare System—and the second straight win at the circuit court level for pension plan members in such cases. You can read the 30-page ruling here.

In her majority opinion, Judge Ilana Diamond Rovner prominently cites the Third Circuit's decision denying Saint Peter's appeal. As in the Saint Peter's case, the judges in Advocate found that a plain-language reading of the ERISA statute makes clear that in order to qualify for a "church plan" exemption, a plan must be established by a church, as required by subsection (33)(A) of the statute, and specifically that subsection (33)(C), often cited by church-affiliated hospital corporations as widening the exemption to include them, does not override the establishment requirement in subsection (33)(A). She notes, as did the Saint Peter's opinion, the remedial nature of ERISA: it was created to "protect employees from losing savings meant for their retirement years from either intentional mishandling of funds or innocent mismanagement." Congress did not intend a broad exemption for corporations with church affiliations: "Congress carved out only narrow exemptions for employee-benefit plans, including those for churches whose plans were excused from regulation in order to prevent excessive government entanglement with religion. ... Employees of religiously-affiliated hospitals are not immune from the perils of unregulated pension plans." She dismisses prior rulings in favor of such a wide exemption as insufficiently rigorous: "Until this recent spate of litigation, most courts evaluating church plans ... merely glossed over the statutory language and assumed that the exemption applied to plans established by church-affiliated agencies."

In a short concurring opinion, Judge Michael S. Kanne adds a very interesting postscript. While agreeing in full with the majority opinion, he also dismisses the arguments, posited in amicus briefs in support of the hospital systems in these cases, that denying a church plan exemption compels health care corporations to violate their religious beliefs (as Hobby Lobby successfully argued in their landmark case). He emphasizes that that is not the case here.

Retirees are now 2-for-2 at the circuit court level in such cases. There are still cases pending in the appellate courts where lower courts have ruled both in favor of retirees and in favor of the hospital systems seeking church plan status. It will likely take a year or two for the courts—perhaps including a Supreme Court that currently has only eight members—to sort this all out. In the meantime, one thing seems certain: Saint Peter's will continue to operate its pension plan without ERISA protections as long as they can get away with it. We expect news media to weigh in soon; we'll follow up when that happens.

Saint Peter's Seeks Rehearing Before Appeals Court

Saint Peter's management, in a January 15 letter to pension plan members, reports that they have filed for a rehearing of their failed appeal in the Third Circuit appeals court. Their original appeal was denied by a unanimous three-judge panel in late December; the rehearing, if Saint Peter's petition is accepted, would be before the full Court.

We had previously thought it unlikely that Saint Peter's would file for a rehearing, since the panel's unanimous decision would suggest a slim chance of success before the full court. Our guess is that the purpose of the move is to buy time before the hospital's ultimate objective of having the case heard before the Supreme Court. This is the first case of many essentially similar class action cases to have been decided in an appellate court. Saint Peter's points out in the letter that two other such cases are in process in appellate courts: one involving Advocate Health Care Network, which was argued in September, and one involving Dignity Health, scheduled for argument this coming February. Significantly, in both cases the hospitals lost in district court. For Saint Peter's to have a chance before the Supreme Court, they would need a win for a hospital in appellate court to counter their own defeat -- which would seem a long shot given the cases now before appellate courts and the 90-day filing window. If their petition is accepted, Saint Peter's holds off a court order to run the plan as an ERISA plan, while buying time for an appellate court win, in either of the two current appellate cases or one which eventually filters up from the district courts. In the meantime Saint Peter's can continue to run the pension plan as a church plan, with minimal federal oversight or funding requirements.

Further Coverage of Appellate Ruling

Since our last post, more news items have been published about the recent appellate court victory for Saint Peter's pension plan members.

• Charles Toutant in New Jersey Law Journal gives a quick history of the issue and a summary of the ruling, along with quotes from lead attorneys Karen Handorf for the plan members and Jeffrey Greenbaum for the hospital. This is the first statement we've seen on behalf of the hospital in the wake of the ruling. Greenbaum makes clear that the hospital plans to exhaust its legal options before making any changes to its management of the pension plan.
  
• Rebecca Moore at PLANSPONSOR provides a somewhat more in-depth summary of how the court interpreted the intent of the ERISA statute's church plan exemption by studying its history. Both this and the New Jersey Law Journal article make clear that the ruling sets a precedent for the circuit courts, though apparently other cases pending in the appellate courts could make a contradictory ruling on other grounds, perhaps leading to review by the Supreme Court.
  
• Cohen Milstein, Karen Handorf's law firm, has issued a press release following the court victory.