Some of you may remember a post here at Benefitsblog last October entitled “ERISA preemption: a “Serbonian Bog” in which Judge Becker’s concurring opinion in the case of DeFelice v. Aetna was highlighted. It is interesting to note that Justice Ginsburg (joined by Justice Breyer) issued a concurring opinion in the Aetna Health Inc. v. Davila case decided yesterday by the U.S. Supreme Court (previous posts here and here), in which she refers to Judge Becker’s concurring opinion as follows:
The Court today holds that the claims respondents asserted under Texas law are totally preempted by §502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U.S.C. § 1132(a). That decision is consistent with our governing case law on ERISA’s preemptive scope. I therefore join the Court’s opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), I also join “the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime.” DiFelice v. AETNA U.S. Healthcare, 346 F.3d 442, 453 (CA3 2003) (Becker, J., concurring).
She goes on to note that the Court “has coupled an encompassing interpretation of ERISA’s preemptive force with a cramped construction of the “equitable relief” allowable under §502(a)(3)” so that “a ‘regulatory vacuum’ exists”, emphasizing that “virtually all state law remedies are preempted but very few federal substitutes are provided.”
Her final words in the opinion were as follows:
“Congress … intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief.” Langbein 1319 [pdf]. I anticipate that Congress, or this Court, will one day so confirm.