Self-Insurance Institute of Am v. Rick Snyder, et al

Filing

OPINION and JUDGMENT filed : AFFIRMED, pursuant to U.S. Supreme Court judgment. Decision for publication. Danny J. Boggs and Karen Nelson Moore (AUTHORING), Circuit Judges; and Michael R. Barrett, U.S. District Judge for the Southern District of Ohio, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0152p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
┐
SELF-INSURANCE INSTITUTE OF AMERICA, INC.,
Plaintiff-Appellant, │
│
│
v.
>
│
│
RICK SNYDER, in his official capacity as Governor │
of the State of Michigan; R. KEVIN CLINTON, in his │
official capacity as Director of the Office of │
Financial and Insurance Regulation of the State of │
Michigan; ANDREW DILLON, in his official capacity │
│
as Treasurer of the State of Michigan,
Defendants-Appellees. │
┘

No. 12-2264

On Remand from the United States Supreme Court.
No. 2:11-cv-15602—Julian A. Cook, District Judge.
Decided and Filed: July 1, 2016
Before: BOGGS and MOORE, Circuit Judges; BARRETT, District Judge.*
_________________
COUNSEL
ON BRIEF: Stephen Wasinger, STEPHEN F. WASINGER PLC, Royal Oak, Michigan, John
H. Eggertsen, EGGERTSEN CONSULTING PC, Ann Arbor, Michigan, for Appellant. John J.
Bursch, Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.

*

The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio, sitting
by designation.

1

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_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge.

This case requires us, once again, to

navigate the quagmire that is preemption. Plaintiff-Appellant, which represents various sponsors
and administrators of self-funded ERISA benefit plans, argues that federal law—the Supremacy
Clause, U.S. Const. art. VI, § 2, and ERISA’s express-preemption provision, 29 U.S.C.
§ 1144(a)—prohibits the application of a Michigan statute to ERISA-covered entities. The
Michigan statute, however, escapes the preemptive reach of federal law, and we AFFIRM the
district court’s dismissal of the suit.
I. BACKGROUND
In 2011, Michigan passed the Health Insurance Claims Assessment Act (“the Act” or “the
Michigan Act”), 2011 Mich. Pub. Acts 142, codified at Mich. Comp. Laws §§ 550.1731–1741,
to generate the revenue necessary to fund Michigan’s obligations under Medicaid. The Act
imposes a one-percent tax on all “paid claims” by “carriers” or “third party administrators” for
services rendered in Michigan for Michigan residents. §§ 550.1732(s), 550.1733(1). The Act
defines “[p]aid claims” as “actual payments . . . made to a health and medical services provider
or reimbursed to an individual by a carrier, third party administrator, or excess loss or stop loss
carrier.” § 550.1732(s). “Carriers” include sponsors of “group health plan[s]” set up under the
strictures of the Employee Retirement Income Security Act of 1974 (“ERISA”), Pub. L. No. 93–
406, codified at 29 U.S.C. §§ 1002–1461, and “third party administrators” refers to entities that
process claims for other entities. Mich. Comp. Laws § 550.1732(a), (h), (v). In order to
facilitate the tax, every carrier and third-party administrator must submit quarterly returns to the
Michigan Department of the Treasury and “keep accurate and complete records and pertinent
documents as required by the department,” §§ 550.1734(1), 550.1735(1), as well as “develop and
implement a methodology by which it will collect the [tax]” subject to several conditions,
§ 550.1733a(2).

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Self-Insurance Institute of America, Inc. (“SIIA”) filed suit in the United States District
Court for the Eastern District of Michigan against Rick Snyder, the Governor of Michigan; R.
Kevin Clinton, the Director of the Michigan Office of Financial and Insurance Regulation; and
Andrew Dillon, the Treasurer of Michigan. R. 1 (Compl.) (Page ID #1). SIIA sought a
declaratory judgment, which would state that ERISA preempted the Act, and an injunction,
which would prevent implementation and enforcement of the Act against the ERISA-covered
entities. Id. The defendants filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. R. 14 (Mot. to Dismiss) (Page ID #33). The district court
granted this motion after concluding that the Act did not offend ERISA’s express-preemption
clause because the Act did not “relate to” an ERISA-governed benefit plan. R. 41 (Am. Dist. Ct.
Order at 8‒19) (Page ID #479‒90). SIIA appealed, and we affirmed the district court’s dismissal
of the suit. Self-Ins. Inst. of Am., Inc. v. Snyder, 761 F.3d 631, 641 (6th Cir. 2014), cert. granted,
judgment vacated, 136 S. Ct. 1355 (2016) (mem.). The Supreme Court entered an order granting
certiorari, vacating the judgment of this court, and remanding the case for further consideration
in light of Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936 (2016). Self-Ins. Inst. of Am., Inc. v.
Snyder, 136 S. Ct. 1355 (2016) (mem.). After careful consideration, we once again affirm the
district court’s dismissal of the suit.
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal of a claim pursuant to Rule 12(b)(6).
Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp. (“PONI”), 399 F.3d 692, 697 (6th
Cir. 2005). Whether ERISA preempts a state law is a question of federal law that we also review
de novo. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 830 (1988).
III. ANALYSIS
“Congress enacted ERISA to ‘protect . . . the interests of participants in employee benefit
plans and their beneficiaries’ by setting out substantive regulatory requirements for employee
benefit plans and to ‘provid[e] for appropriate remedies, sanctions, and ready access to the
Federal courts.’” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (alteration and ellipses
in original) (quoting 29 U.S.C. § 1001(b)). Accordingly, ERISA establishes a regulatory regime

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that makes plan administrators fiduciaries, see 29 U.S.C. § 1104; imposes liabilities on plan
administrators that breach their fiduciary duties, see § 1109; requires plan administrators to
disclose specific information and to file reports with the Secretary of Labor, see § 1021(a), (b);
mandates that plan administrators retain records for substantial periods of time, see § 1027; and
creates an exclusive mechanism to enforce these guarantees, see § 1132. Because Congress
intended these systems and procedures to be uniform, Davila, 542 U.S. at 208, ERISA contains
an express-preemption provision that “supersede[s] any and all State laws insofar as they . . .
relate to any employee benefit plan” that falls under this comprehensive federal scheme,
29 U.S.C. § 1144(a).
The Supreme Court has called ERISA’s express-preemption provision “deliberately
expansive.”

California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A.,

519 U.S. 316, 324 (1997) (internal quotation marks omitted). The Court, however, has found
defining the provision’s phrase “relate to” to be a “frustrating” task. N.Y. State Conference of
Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) (internal
quotation marks omitted). We readily concur. ERISA’s statutory text is “unhelpful” because
“[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all
practical purposes pre-emption would never run its course, for ‘[r]eally, universally, relations
stop nowhere.’” Id. at 655–56 (quoting Henry James, Roderick Hudson xli (New York ed.,
World’s Classics 1980)); see also Dillingham, 519 U.S. at 335 (Scalia, J., concurring)
(“[A]pplying the ‘relate to’ provision according to its terms was a project doomed to failure,
since, as many a curbstone philosopher has observed, everything is related to everything else.”).
Thus, the Court has eschewed “uncritical literalism,” Travelers, 514 U.S. at 656, and embraced a
common-sense approach: “A law ‘relates to’ an employee benefit plan . . . if it has a connection
with or reference to such a plan,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96–97 (1983).
Both methods of establishing that a state law relates to an employee benefit plan—
“connection with” and “reference to”—are advanced by SIIA and amici. SIIA contends that
ERISA preempts the Michigan Act because the Act has a connection with ERISA plans. And in
their amicus briefs, the Iron Workers Health Fund of Eastern Michigan (“Iron Workers Fund”)
and the Detroit and Vicinity Trowel Trades Health and Welfare Fund (“Trowel Trades Fund”)

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contend that the Act inappropriately references ERISA plans. The district court rejected both
arguments. We agree and AFFIRM the dismissal of SIIA’s claims.
A. “Connection With”
In determining whether a state law has an impermissible connection with ERISA plans,
we start with the presumption that Congress generally does not intend to preempt state laws,
particularly in areas of traditional state concern. Travelers, 514 U.S. at 654‒55; Associated
Builders & Contractors v. Michigan Dep’t of Labor & Economic Growth, 543 F.3d 275, 280
(6th Cir. 2008) (citing Dillingham, 519 U.S. at 332). As we have recognized, “traditional statebased laws of general applicability that do not implicate the relations among the traditional
ERISA plan entities, including the principals, the employer, the plan, the plan fiduciaries, and the
beneficiaries” are not implicated by ERISA’s express-preemption provision. PONI, 399 F.3d at
698 (internal quotation marks omitted). ERISA, in other words, does not “create a state-law-free
zone around everything that affects an ERISA plan.” Associated Builders, 543 F.3d at 284.
Here, we are concerned with a state tax and its ancillary requirements, a type of law long
recognized as an important “attribute of state sovereignty.” Firestone Tire & Rubber Co. v.
Neusser, 810 F.2d 550, 555 (6th Cir. 1987) (citing County of Lane v. Oregon, 74 U.S. (7 Wall.)
71, 76–77 (1869)); see also Thiokol Corp. v. Roberts, 76 F.3d 751, 754‒55 (6th Cir. 1996)
(concluding that a Michigan tax escaped preemption in part because “federal courts must give
due respect to ‘the fundamental principle of comity between federal courts and state
governments that is essential to ‘Our Federalism,’ particularly in the area of state taxation’”
(quoting Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 103 (1981))).
Therefore, the presumption that Congress does not intend to preempt state laws applies with
special force in this case, and overcoming it “requires two showings . . . : (1) the law at issue
must mandate (or effectively mandate) something, and (2) that mandate must fall within the area
that Congress intended ERISA to control exclusively.”1 Associated Builders, 543 F.3d at 281.

1

Of course, state tax laws are not exempted from ERISA’s express-preemption provision, see 29 U.S.C.
§ 1144(b)(5)(B)(i), but they do benefit from the presumption that Congress generally does not intend to preempt
state laws in areas of traditional state concern.

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With this presumption in mind, we turn to the merits of SIIA’s claim. A law “has an
impermissible ‘connection with’ ERISA plans” when it “‘governs . . . a central matter of plan
administration’ or ‘interferes with nationally uniform plan administration.’” Gobeille, 136 S. Ct.
at 943 (omission in original) (quoting Egelhoff v. Egelhoff, 532 U.S. 141, 148 (2001)). Thus, we
have held that ERISA preempts state laws that “mandate employee benefit structures or their
administration,” “provide alternate enforcement mechanisms,” or “bind employers or plan
administrators to particular choices or preclude uniform administrative practice, thereby
functioning as a regulation of an ERISA plan itself.” PONI, 399 F.3d at 698 (internal quotation
marks omitted). “A state law also might have an impermissible connection with ERISA plans if
‘acute, albeit indirect, economic effects’ of the state law ‘force an ERISA plan to adopt a certain
scheme of substantive coverage or effectively restrict its choice of insurers.’” Gobeille, 136 S.
Ct. at 943 (quoting Travelers, 514 U.S. at 668). SIIA argues that the Michigan Act has an
impermissible connection with ERISA plans because it imposes administrative burdens in
addition to those prescribed by ERISA, interferes with uniform plan administration, and intrudes
upon the relationships between ERISA-covered entities.
1. The Act Does Not Impose Additional Burdens or Interfere with Uniform
Plan Administration
SIIA contends that by requiring carriers and third-party administrators to file reports and
maintain certain records, the Act both creates additional burdens and jeopardizes uniform
administrative practice. Appellant Br. at 29‒34; see also Mich. Comp. Laws §§ 550.1734(1),
550.1735(1). According to SIIA, the Act’s definition of “paid claims” also interferes with
uniform administrative practice because it could conflict with a plan’s definition of “paid claims”
(though SIIA does not contend that it does conflict with a plan’s definition of “paid claims”).
Appellant Br. at 35–36; see also Mich. Comp. Laws § 550.1732(s). Because these arguments are
related, and because they are foreclosed for the same reason, we analyze them together.
Broadly worded as it is, ERISA’s express-preemption provision extends only to the
administration of employee benefit plans. See Travelers, 514 U.S. at 656‒57. Indeed, the
purpose of the provision is to create a “nationally uniform administration of employee benefit
plans.” Id. at 657; see also Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir. 1989)

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(“What triggers ERISA preemption is not just any indirect effect on administrative procedures
but rather an effect on the primary administrative functions of benefit plans.”). Though Gobeille
recognized that “reporting, disclosure, and recordkeeping are central to, and an essential part of,
the uniform system of plan administration contemplated by ERISA,” it held that only state laws
that directly regulate these aspects of ERISA—whether by imposing additional administrative
burdens or by interfering with uniform administration—are preempted. 136 S. Ct. at 945‒46. It
is this limitation that ultimately forecloses SIIA’s arguments.
Gobeille involved a Vermont law that “require[d] health insurers, health care providers,
health care facilities, and governmental agencies to report any information relating to health care
costs, prices, quality, utilization, or resources required by the state agency, including data
relating to health insurance claims and enrollment.”

Id. at 941 (internal quotation marks

omitted). The State intended to use this information to “maintain an all-inclusive health care
database” which would function as “a resource for insurers, employers, providers, purchasers of
health care, and State agencies to continuously review health care utilization, expenditures, and
performance in Vermont.” Id. at 940‒41 (internal quotation marks omitted). Much of this
information was highly sensitive (the Second Circuit observed that it included member
demographics and clinical diagnoses, Liberty Mut. Ins. Co. v. Donegan, 746 F.3d 497, 509 (2d
Cir. 2014)), which gave rise, at least in part, to the complaint. Liberty Mutual Insurance
Company, which operated a self-insured employee benefits plan, was “concerned . . . that the
disclosure of confidential information regarding its members might violate its fiduciary duties”
under ERISA and so filed a suit asking for a declaratory judgment that the law was preempted.
Gobeille, 136 S. Ct. at 942.
After examining “ERISA’s reporting, disclosure, and recordkeeping requirements for
welfare benefit plans”—and determining that they “are extensive”—the Supreme Court held that
the Vermont law was preempted. Id. at 943‒45. The Court explained that “Vermont’s reporting
regime, which compels plans to report detailed information about claims and plan members, both
intrudes upon ‘a central matter of plan administration’ and ‘interferes with nationally uniform
plan administration.’” Id. at 945 (quoting Egelhoff, 532 U.S. at 148). Crucially, the Court
characterized the Vermont law as a “direct regulation of a fundamental ERISA function.” Id. at

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946. And although the Court acknowledged the “presumption that Congress does not intend to
supplant state law, in particular state laws regulating a subject of traditional state power,” the
Court stated that “ERISA pre-empts a state law that regulates a key facet of plan administration
even if the state law exercises a traditional state power.” Id. (internal quotation marks omitted).
The Court was careful to note, however, that “[t]he analysis may be different when applied to a
state law, such as a tax on hospitals, see De Buono v. NYSA-ILA Med. & Clinical Servs. Fund[],
the enforcement of which necessitates incidental reporting by ERISA plans.” Id.
The Court’s citation to De Buono is significant. De Buono upheld a New York law that
“impos[ed] a gross receipts tax on the income of medical centers operated by ERISA funds.”
De Buono, 520 U.S. 806, 809 (1997). That law required “[e]very hospital [to] submit reports on
a cash basis of actual gross receipts received from all patient care services.” N.Y. Pub. Health
Law § 2807-d(7)(a) (McKinney 1993). Just two years prior to De Buono, in Travelers, the
Supreme Court upheld another New York law that mandated that ERISA-covered hospitals
collect surcharges from certain patients. Travelers, 514 U.S. at 649. That law also required the
hospitals to “furnish to the [state tax] department such reports and information as may be
required by the commissioner to assess the cost, quality and health system needs for medical
education provided.” N.Y. Pub. Health Law § 2807-c(25)(b) (McKinney 1993). Although
De Buono and Travelers did not explicitly concern reporting requirements regarding the taxes,
those requirements were essential parts of the tax schemes and drew no comment from the Court.
We had previously assumed, accordingly, that laws necessitating incidental reporting did not
implicate ERISA’s express-preemption provision. Gobeille confirms our assumption.
Gobeille’s citation to De Buono reinforces the difference between a state law that directly
regulates integral aspects of ERISA plan administration and a state law that touches on these
aspects only peripherally. It also places Gobeille in context, recognizing that although the
reporting and record-keeping requirements in Gobeille warranted preemption, laws that impose
only incidental reporting—such as the ones at issue in De Buono and Travelers—should be
analyzed differently. Thus, there are two critical points that we take away from Gobeille, in
addition to the Court’s statement that reporting, disclosure, and record-keeping are fundamental
functions of ERISA: first, Gobeille held that only direct regulations of fundamental functions

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are preempted, and second, state laws imposing incidental burdens may need to be evaluated
under the principles established by De Buono and Travelers.
Both of these points counsel against preemption in this case. Michigan’s Act does not
directly regulate any integral aspects of ERISA. The Act is, at its core, an Act to generate the
revenue necessary to fund Michigan’s obligations under Medicaid. Though it does touch upon
reporting and record-keeping, the thrust of the Act is to collect taxes—not to amass data. See
Mich. Comp. Laws § 550.1733(1). As explained above, the Act levies on “every carrier and
third party administrator an assessment of 1% on that carrier’s or third party administrator’s paid
claims,”2 defining “[p]aid claims” as “actual payments . . . made to a health and medical services
provider or reimbursed to an individual by a carrier, third party administrator, or excess loss or
stop loss carrier.” §§ 550.1732(s), 550.1733(1). In order to facilitate collection of the tax, the
Act requires every carrier and third-party administrator with paid claims subject to the tax to
submit quarterly returns to the Michigan Department of the Treasury. § 550.1734(1). The Act
also states that carriers or third-party administrators liable for the tax must “keep accurate and
complete records and pertinent documents as required by the department.”
These provisions are not direct regulations of employee benefit plans.
peripheral requirements that do not warrant preemption.

§ 550.1735(1).

Rather, they are

Therefore, this case falls in the

De Buono and Travelers category of state laws that necessitate incidental reporting and recordkeeping and thus are not preempted—as opposed to the Gobeille category of state laws
preempted by ERISA because they directly regulate ERISA’s essential reporting and recordkeeping functions.
The Act’s only other potential effects on employee benefit plans are to cut the plans’
profits—as did the surcharges upheld in De Buono and Travelers—and to create work
independent of the core functions of ERISA—as do permissible state property, contract, and tort
laws. See Thiokol, 76 F.3d at 755 (“[T]he Supreme Court does not require that state laws have
absolutely zero effect on ERISA plans, for this likely would be impossible as a matter of logic or
practicality. State property, contract, and tort law all surely have some effect on ERISA plans,
2

The tax is 0.75% for paid claims based on services rendered from July 1, 2014 to July 1, 2020. Mich.
Comp. Laws § 550.1733(1).

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but they are not pre-empted.”); Firestone, 810 F.2d at 555 (“[T]he Supreme Court has indicated
that state laws having only a tangential effect on an ERISA plan will not be preempted.” (citing
Shaw, 463 U.S. at 100 n.21)).
Finally, under SIIA’s logic, states would not be able to require ERISA-covered entities to
submit any paperwork or preserve any records in any circumstances. As a result, ERISA would
preempt any state laws requiring ERISA-covered entities to submit income-tax returns, propertytax returns, or employment records. We have said, time and again, that ERISA does not reach so
far. See, e.g., Thiokol, 76 F.3d at 755; Firestone, 810 F.2d at 555–56; see also De Buono, 520
U.S. at 816 (“Any state tax, or other law, that increases the cost of providing benefits to covered
employees will have some effect on the administration of ERISA plans, but that simply cannot
mean that every state law with such an effect is preempted by the federal statute.”). We see no
reason to change course now.
2. The Act’s Residency Requirement Does Not Intrude Upon the
Relationships Between ERISA-Covered Entities
SIIA’s next contention is that the Act’s limitation of the tax to claims paid on behalf of
Michigan residents effectively alters the relationship between plan administrators and plan
beneficiaries because the requirement forces the administrators to collect additional information
from beneficiaries. We disagree.
Under Michigan law, an individual is a Michigan resident if the individual considers the
State her domicile. Mich. Admin. Code R. 550.404(1). Domicile, perhaps problematically, is a
subjective determination. R. 550.404(2). SIIA fears that administrators will need to ask a
beneficiary which state she considers “her fixed, permanent and principal home” to comply with
the Act, a change in their relationship and potentially burdensome in the aggregate. Id. If this
were an accurate recitation of the current state of the law, we might be inclined to agree that the
residency requirement alters the ERISA-covered entities’ relationships in form, if not substance.
But the same regulation that problematically defines residency also obviates the need for a
carrier to communicate with the beneficiaries. Mich. Admin. Code R. 550.404(3) provides in
full:

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A rebuttable presumption shall exist that an individual’s home address, as
maintained in the ordinary business records of a carrier or third-party
administrator, indicates the domicile of that individual under this definition.
Example: An individual who is domiciled in Michigan, but attends college in
another state, is a Michigan resident for purposes of the Act. If that individual
obtains health services in Michigan while home between semesters, a “paid
claim” for the performance of those services will be subject to the assessment
under the Act.
By defining residency by reference to the administrators’ already-existing business records,
Michigan leaves the relationship between ERISA-covered entities untouched. As a result, we do
not believe Congress intended ERISA to preempt the Act’s residency requirement.3
3. Section 550.1733a Does Not Intrude Upon the Relationships Between
ERISA-Covered Entities
SIIA finally argues that Michigan Compiled Laws § 550.1733a(2) necessitates that
carriers and third-party administrators alter their relationship with ERISA-covered entities by
mandating that carriers and third-party administrators collect the tax from the ERISA-covered
entities. We disagree. Section 550.1733a(2) states: “[a] carrier or third party administrator shall
develop and implement a methodology by which it will collect the assessment levied under [the
Act] from an individual, employer, or group health plan, subject to [certain conditions].”
Importantly, Michigan has interpreted this section of its statute to say “the collection of the
assessment from these parties by carriers and third-party administrators is permissive.” Mich.
Admin. Code R. 550.402(1). Under this interpretation, § 550.1733a(2) does not force carriers
and third-party administrators to change their plan documents. Therefore, there is no ERISApreemption issue.
B. “Refers To”
The Iron Workers Fund and the Trowel Trades Fund ask us to hold that the Act makes an
inappropriate reference to ERISA-regulated employee benefit plans, triggering the operation of

3

We recognize that each of the fifty states could enact similar taxes and that multiple states could
potentially claim an individual, perhaps a student, as a resident. This scenario could be burdensome to ERISAcovered entities. This state of affairs, however, is hypothetical. We also note in passing that each of the fifty states
has its own property, income-tax, and employment laws that act upon ERISA-covered entities and are not
preempted. It is unclear whether these residency requirements would be any different.

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§ 1144(a). Regardless of the merits of this contention, there is a procedural problem: SIIA has
explicitly waived this argument. Amici cannot revive it.
In its opening brief, SIIA forthrightly states that “[it] does not appeal the District Court’s
conclusion that the Act does not have a ‘reference to’ ERISA plans.” Appellant Br. at 28. By
conceding this issue, SIIA has waived it, which generally precludes us from considering the issue
on appeal. See, e.g., Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 434 n.6
(6th Cir. 2014); Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir. 1996). Furthermore,
we have stated that “[w]hile an amicus may offer assistance in resolving issues properly before a
court, it may not raise additional issues or arguments not raised by the parties. To the extent that
the amicus raises issues or makes arguments that exceed those properly raised by the parties, we
may not consider such issues.” Cellnet Commc’ns, Inc. v. FCC, 149 F.3d 429, 443 (6th Cir.
1998) (internal citations omitted); see also New Jersey v. New York, 523 U.S. 767, 781 n.3
(1998) (stating that courts “must pass over” arguments of amici that the named party to the case
“has in effect renounced”); 16AA Charles Alan Wright et al., Federal Practice & Procedure
§ 3975.1 (4th ed. 2008) (“In ordinary circumstances, an amicus will not be permitted to raise
issues not argued by the parties.”). Otherwise, outside parties could hijack litigation quite easily.
Therefore, to avoid this result, we hold that SIIA has waived this issue and, therefore, decline to
consider its validity.
IV. CONCLUSION
For the above-stated reasons, we AFFIRM the district court’s dismissal of SIIA’s claims.