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Golden Gate Restaurant Assoc v. City and County of San Francisco  (08-1515) 
Whether ERISA preempts local laws mandating employer contributions for employee health-benefits 
[Certiorari was DENIED June 28, 2010] 

The San Francisco Health Care Security Ordinance requires that covered employers make "required health care expenditures to or on behalf of" certain employees each quarter. "Covered employers" are employers engaging in business within the City that are either a) for profit, with an average of at least twenty employees during a quarter; or b) non-profit, with an average of at least fifty employees during a quarter. 

The 9th Circuit held that this ordinance is not preempted by the Employee Retirement Income Security Act (ERISA). More specifically, the court concluded that 1) the ordinance does not create an ERISA plan; and 2) the ordinance does not "relate to" ERISA plans within the meaning of ERISA. 

The 9th Circuit denied a petition for rehearing en banc in this case. Eight judges dissented, arguing that the panel decision creates a circuit split and undercuts the Supreme Court's ERISA preemption case law.

Case below: Golden Gate Restaurant Assoc v. City and County of San Francisco (9th Cir 09/30/2008); Order Denying Petition for Rehearing En Banc (9th Cir 03/09/2009)
Official docket sheet 
Certiorari was DENIED June 28, 2010.  

Questions presented:   

San Francisco’s Health Care Security Ordinance-- a "pay-or-play" law--mandates either ongoing employer contributions at set minimum rates for employee health-benefits or equal payments to the City’s Health Access Program, along with extensive recordkeeping and reporting and disclosure requirements. In a decision directly conflicting with Supreme Court ERISA preemption decisions, the Ninth Circuit rejected petitioner’s ERISA-preemption challenge despite repeated amicus support by the Secretary of Labor. Identifying "an issue of exceptional national importance," an eight Judge dissenting opinion from denial of rehearing en banc, including Chief Judge Alex Kozinski, observed that the decision "creates a circuit split with the Fourth Circuit . . . , renders meaningless the [ERISA preemption] tests the Supreme Court set out in Shaw v. Delta Airlines..., and disregards the "need for nationally uniform plan administration." It also warned that the decision "will undoubtedly serve as a roadmap in jurisdictions across the country on how to design and enact a labyrinth of laws requiring employer compliance on health care expenditures, thereby creating the very kind of health care balkanization ERISA was intended to avoid." 

The Question Presented is: 

Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws mandating ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements, a question on which the courts of appeals are in conflict. 

Certiorari Documents: 


  • For Petitioner: David L. Bacon; Nixon Peabody LLP; 555 West Fifth Street, 46th Floor; Los Angeles, CA  90013; (213) 629-6000.
  • For Respondents: Vince Chhabria; Deputy City Attorney; City Hall, Room 234; 1 Dr. Carlton B. Goodlett Place; San Francisco, CA  94102-4682; (415) 554-4674.

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