WASHINGTON - The Department of Labor's Pension Welfare and Benefits Administration has found a cheap and somewhat easy way to put its hand into pending cases to defend its interpretation of the 1974 Employee Retirement Income Security Act.
Since mid-1993, the PWBA's Solicitor's Office has been filing amicus briefs in a number of cases in district and appellate courts nationwide. In 1994 alone, the Solicitor's Office filed 18 pension and/or welfare-related amicus briefs.
Before this push, the PWBA commonly filed amicus briefs on the appellate level, usually involving fiduciary issues only. Alan D. Lebowitz, deputy assistant secretary for program operations said the department waited until its involvement became critical.
"It was more (cost) effective," Mr. Lebowitz said.
But now the move is more aggressive, systematically tracking cases at the district court level with a much broader range of issues, including benefits, pre-emption and fiduciary conduct, said Marc Machiz, DOL's associate solicitor
"It's a very cost-effective way of getting the Department of Labor's position out without doing discovery," Mr. Machiz said.
Instead of spending lots of time, resources and money latching on as part of the defense in each case, the PWBA files an amicus brief to let the court know how it stands.
"It's a good use of the department's resources to influence the cases' outcomes," said Robert Eccles, the Labor Department's associate solicitor from 1982 to 1988. "The courts give a lot of credence to a governmental agency."
Mr. Eccles said the Labor Department didn't get involved in the past unless the department had a direct interest in the case. But now the department has made a conscious decision to find cases and to file amicus briefs, Mr. Lebowitz said.
And getting the information on pending cases is improving, said Charles L. Lerner, the department's enforcement director.
Cases can be tracked through copies of the complaint that plaintiffs are required to file with the department for ERISA cases, he said. The 15 satellite enforcement offices also use reporting services to review recent court cases. Also, the department relies somewhat on people who notify the department of pending cases.
While sometimes the amicus brief can change the outcome of a decision, at other times it hasn't. In the June 1993 Supreme Court decision in Mertens vs. Hewitt Associates, the Labor Department filed an amicus brief which argued that participants could sue non-fiduciaries, such as attorneys and actuaries, for monetary damages if they knowingly participated in a fiduciary breach. The Supreme Court, in a 5-4 decision, held the opposite.
Aside from its casework, the PWBA is trying to reintroduce a compliance program used in 1992 to encourage non-filers of their Form 5500s to file.
The pilot program made significant reductions in penalties plan sponsors had to pay if they owned up to not filing. Currently, non-filers can be slapped with a $300 per day fine, with an annual cap of $30,000. Mr. Lebowitz was unsure how much the fine would be.
In the nine-month period the department used the compliance program, 40,600 plan sponsors filed, and the department took in $40.6 million.
The Department hopes to have the program running early next year, Mr. Lebowitz said.