About the SLLC

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National Law Journal Article about the SLLC

Center Advocates for State and Local Governments discusses the SLLC’s mission, history, current amicus activity

SLLC February 2015 Newsletter

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Recent Court Rulings

Perez v. Mortgage Bankers Association

In 2006 the Department of Labor (DOL) stated in an opinion letter that mortgage loan officers were eligible for overtime but then changed its mind in 2010 in an “Administrator’s Interpretation.”

In Perez v. Mortgage Bankers Association the Supreme Court held unanimously that federal agencies do not have to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before changing an interpretive rule, like the 2006 opinion letter in this case.  The Court overturned a nearly 20 year-old precedent from the D.C. Circuit, Paralyzed Veterans of America v. D.C. Arena, which the SLLC argued in an amicus brief that the Court should affirm.  Paralyzed Veterans held that an agency must use APA notice-and-comment when significantly altering an interpretive rule that interprets a legislative rule. 

This case will make it more difficult for state and local government to influence federal agency policy expressed in interpretive rules—specifically when agencies want to change them.  

The APA requires that “legislative rules” be issued through a notice-and-comment process.  But the APA states that notice-and-comment does not apply to “interpretive rules.”  According to the Court, “[t]his exemption of interpretive rules from the notice-and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans.”  The Court rejected Mortgage Bankers Association’s (MBA) argument that when an agency alters an interpretive rule it is effectively amending the underlying legislative rule.  The Court reasoned that interpreting a legislative rule does not amount to “amending” it.  And if it did, why shouldn’t notice-and-comment apply to an agency’s first set of interpretive rules?     

In arguing in favor of the Paralyzed Veterans doctrine, the SLLC’s brief discussed a number of examples where federal agencies have changed positions in interpretive rules and state and local governments would have liked to have provided comments.  The Court was not persuaded by MBA’s similar argument that the Paralyzed Veterans doctrine “reinforces the APA’s goal of ‘procedural fairness’ by preventing agencies from unilaterally and unexpectedly altering their interpretation of important regulations.”

The SLLC’s amicus brief also argued that Paralyzed Veterans provides a needed check on agency authority because recently the Court has deferred to interpretative rules, which aren’t supposed to have the force of law.  Justice Scalia agreed in a concurring opinion but suggested, as did the SLLC, that the Court should abandon deference to interpretative rules.

James HoAshley Johnson, Kirsten Galler, and Lauren Blas of Gibson, Dunn & Crutcher wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers AssociationGovernment Finance Officers Association, National School Boards Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.

Alabama Department of Revenue v. CSX Transportation

In Alabama Department of Revenue v. CSX Transportation the Supreme Court held 7-2 that railroads can be compared to their competitors when determining whether a tax is discriminatory in violation of the Railroad Revitalization and Regulatory Reform Act (4-R Act).  Different taxes paid by railroads and their competitors must be compared with determining whether a tax railroads pay is discriminatory.  The State and Local Legal Center (SLLC) filed an amicus brief in this case disagreeing with the Court’s first holding and agreeing with its second holding.   

The 4-R Act prohibits state and local governments from imposing taxes that discriminate against rail carriers (railroads).  Railroads in Alabama pay a four percent sales tax on diesel fuel as do other commercial and industrial purchasers.  Motor carriers (trucks) pay an excise tax of 19-cents per gallon and no sales tax.  Water carriers pay no sales or excise tax on diesel fuel. 

CSX sued Alabama alleging that it violated the 4-R Act by requiring railroads to pay a sales tax on diesel fuel and exempting its competitors.  Since CSX filed its complaint, railroads paid less in sales tax than trucks paid in excise tax.  The lower court ruled in favor CSX comparing railroads to their competitors only and refusing to consider the excise tax paid by trucks.     

According to the Court, the comparison class depends on the theory of discrimination alleged.  Here, CSX argued that a tax disadvantaged it compared to its competitors so competitors are the comparison class.  But the comparison class also must be “similar situated” to the railroad.  Competitors could be a “similarly situated” class “since discrimination in favor of that class most obviously frustrates the purpose of the 4-R Act,” including restoring financial stability to railroads and fostering competition between railroads and other modes of transportation.  The Court also concluded “[t]here is simply no discrimination when there are roughly comparable taxes.”  So the lower court must compare the sales tax railroads pay and the excise tax trucks pay even if comparing different taxes is difficult.  Finally, the Court instructed the lower court to examine the justifications Alabama offered for why water carriers don’t pay any tax on diesel fuel when determining if railroads have been discriminated against.

The SLLC brief argued that given state’s traditional power to tax the Court should interpret 4-R narrowly by comparing railroads to all commercial and industrial taxpayers, ignoring the labels of sales and excise tax and comparing total taxes paid, and taking into account relevant differences between railroads and their competitors.

Forty-two states exempt trucks from sales tax on diesel fuel.  While a ruling that the proper comparison class in this case is all commercial and industrial taxpayers would have been even better, the Court’s ruling that lower courts must look at total taxes paid, and justifications for why particular competitors don’t pay particular taxes, will mean that 4-R Act discrimination cases may be less likely to succeed.  Some local governments in Alabama add additional sales tax to diesel fuel which CSX has also challenged.   

All of the Big Seven joined the SLLC brief along with SLLC associate members the International City/County Management Association and the Government Finance Officers Association.  Sarah Shalf of the Emory Law School Supreme Court Advocacy Project wrote the SLLC brief. 

Direct Marketing Association v. Brohl 

There is no way to know for sure why Justice Kennedy wrote a concurring opinion in Direct Marketing Association v. Brohl stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”  But even if you don’t read the SLLC amicus brief’s criticism of Quill and merely scan its table of authorities, you will notice that two of the three non-case related citations in Justice Kennedy’s opinion come from the SLLC’s brief.

In Quill Corp. v. North Dakota, decided in 1992, the Court held that states cannot require retailers with no in-state physical presence to collect use tax.  To improve tax collection, in 2010 the Colorado legislature began requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue.  The Direct Marketing Association sued Colorado in federal court claiming that the notice and reporting requirements are unconstitutional under Quill

The Court held unanimously that the Tax Injunction Act (TIA) does not bar a federal court from deciding this case.  The TIA states that federal courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law” where a remedy is available in state court.  The TIA was modelled on the Anti-Injunction Act, which concerns federal taxes.  According to the Court, “the Federal Tax Code has long treated information gathering as a phase of tax administration that occurs before assessment, levy, or collection.”  And, while DMA’s lawsuit sought to “limit, restrict, or hold back” tax collection in Colorado, it did not “restrain” tax collection in the narrow sense— by stopping it.

The SLLC amicus brief discusses the devastating impact Quill has had on state and local governments in light of the rise of internet purchases, Congress’s failure to pass the Marketplace Fairness Act, and states’ need to improve use tax collection through statutes like Colorado’s.  According to NCSL, at least three other states (Oklahoma, South Dakota, and Vermont) have enacted reporting requirements on remote sellers.

Interestingly, while DMA won before the Supreme Court, regardless, its challenge to the constitutionality of Colorado’s notice and reporting requirements may ultimately be decided in state court.  The Court noted that a “comity” argument may still be available to Colorado.  Per the comity doctrine, federal courts refrain from deciding cases that would interfere with the “fiscal operations of state governments.” 

Ron Parsons of Johnson, Heidepriem & Bolleg & Parsons in Sioux Falls, South Dakota, wrote the SLLC’s brief which was joined by all of the Big Seven and the Government Finance Officers Association.  

North Carolina State Board of Dental Examiners v. FTC

In North Carolina State Board of Dental Examiners v. FTC the Court held 6-3 that if the majority of state board members are active market participants, antitrust immunity applies only if the state actively supervises the board.  The SLLC's amicus brief argued that active supervision was unnecessary.      

The North Carolina State Board of Dental Examiners is a state agency principally charged with licensing dentists.  Six of its eight members must be actively practicing, licensed dentists.  After the Board issued cease-and-desist letters to non-dentist teeth whitening service providers, the Federal Trade Commission (FTC) charged it with violating federal antitrust law.

In Parker v. Brown the Court held that states receive state-action immunity from federal antitrust law when acting in their sovereign capacity.  In this case the Court held that non-sovereign entities controlled by active market participants receive state-action immunity only if the challenged restraint is clearly articulated in state policy and the policy is actively supervised by the state.  Here the parties assumed the clear articulation requirement was met and agreed the Board wasn’t actively supervised by the state.  So the Court denied the Board state-action immunity.    

Justice Kennedy, writing for the majority, reasoned that without active supervision, boards and commissions made up of a majority of market participants may act in their own interest rather than the public interest.  “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult even for market participants to discern.”

In a dissenting opinion Justice Alito, joined by Justices Scalia and Thomas, concluded that under Parker state-action immunity applies to state agencies regardless of how they are structured.

This case will reduce the authority of governors and state legislatures to compose state agencies, boards, and commissions as they prefer and/or be difficult to comply with.  As the SLLC’s amicus brief points out, states typically have hundreds of boards and commissions largely staffed by market participants.  States now have to either staff them differently or actively supervise them.  Governors and state legislatures may be reluctant to not include a majority of market participants on boards and commissions because market participants have needed expertise.  Active supervision will likely be onerous and expensive.

The Court was not specific about what kind of active supervision should have been occurring in this case.  According to the Court, active supervision is “flexible and content-dependent” and should provide “realistic assurance” that an agency’s anticompetitive conduct “promotes state policy, rather than merely the party’s individual interests.” 

Seth P. WaxmanThomas G. Sprankling, and Alan Schoenfeld of WilmerHale wrote the SLLC’s brief.  TheNational Governors Association, the National Conference of State Legislatures, and the Council of State Governments joined the brief.

T-Mobile South v. City of Roswell

In T-Mobile South v. City of Roswell the Supreme Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.  The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include the council meeting minutes.   

The Court agreed with the position in the State and Local Legal Center (SLLC)’s amicus brief that the reasons for a local government’s decision need not be in the same letter or document that denies the application and that council meeting minutes can be a sufficient source for the reasons for the denial.   The Court disagreed, however, with the SLLC’s argument that the council minutes need not be issued contemporaneously with the document denying the wireless provider’s application. 

T-Mobile applied to construct a 108-foot cell tower in a residential zoning area.  Two days after a council hearing on the application, where city councilmembers voted to deny the application and stated various reasons for why they were going to vote against it, Roswell sent T-Mobile a brief letter stating that the application was denied and that T-Mobile could obtain hearing minutes from the city clerk.  Twenty-six days later the minutes were approved and published.

The TCA requires that a state or local government's decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”  

The majority of the Court, in an opinion written by Justice Sotomayor, held that local governments have to provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence.  The Court rejected, however, T-Mobile’s argument that the reasons must be set forth in a formal written decision denying the application instead of council meeting minutes because nothing in the TCA “imposes any requirement that the reasons be given in any particular form.”  But the Court also held that, because wireless providers have only 30 days after an adverse decision to seek judicial review, the council meeting minutes setting forth the reasons have to be issued “essentially contemporaneous[ly]”with the denial. 

The Court’s ruling that written minutes can meet the TCA’s “in writing” requirement is favorable to local governments, many of which routinely compile meeting minutes regardless of whether a cell tower application is being considered.  But the Court’s requirement that a local government issue a denial letter and minutes at more or less the same time will be new to many local governments, and, as Chief Justice Roberts points out in his dissenting opinion, “could be a trap for the unwary hamlet or two.” 

Tim Lay, Jessica Bell, and Katharine Mapes of Spiegel & McDiarmid in Washington, D.C., wrote the SLLC’s brief which was joined by the National League of Cities, the United States Conference of Mayors the National Association of Counties, the International City/County Management Association, and the International Municipal Lawyers Association.

Integrity Staffing Solutions v. Busk

In a unanimous opinion in Integrity Staffing Solutions v. Busk the Court held that the Fair Labor Standards Act (FLSA) does not require hourly employees to be paid for the time they spend waiting to undergo and undergoing security screenings.  State and local government employees who work in courthouses, correctional institutions, and warehouses routinely go through security screening at the beginning and/or end of the workday.   

Jesse Busk and Laurie Castro worked at warehouses filling Amazon.com orders.  They claimed that they should have been paid for the time they spent waiting and going through security screenings to prevent theft at the end of each shift.

Under the FLSA employers only have to pay “non-exempt” employees for preliminary and postliminary activities that are “integral and indispensable” to a principal activity.  According to the Court, an activity is “integral and indispensable” to a principal activity “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  The Court concluded that security screenings were not intrinsic to retrieving and packing products and that Integrity Staffing Solutions could have eliminated the screenings altogether without impairing employees’ ability to complete their work.

The SLLC’s amicus brief made similar arguments to those the Court adopted.  This case is a significant victory for state and local government employers who will now not be faced with higher payroll costs for employee security screenings or a mandate to reduce screenings to a de minimis amount.  

James Ho, Ashley Johnson, and Andrew LeGrand, of Gibson, Dunn & Crutcher, Dallas, Texas wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers AssociationGovernment Finance Officers Association, National Public Employer Labor Relations Association, and the International Public Management Association for Human Resources.