New England Legal Foundation Publishes Year-End Case Report


The New England Legal Foundation (NELF) filed amicus briefs in 15 cases and served as local counsel in one potential litigation matter in 2022 to advance our mission of advocating for free enterprise, property rights as civil rights, limited government based on rule of law, and inclusive growth. We also reaped the harvest of judicial decisions from the United States Supreme Court, First Circuit Court of Appeals, and state appellate courts that embraced arguments asserted by NELF in 2021 with favorable outcomes. In one of the highest profile cases from SCOTUS in recent years, only NELF’s amicus brief referenced a key document that was cited by the majority opinion in West Virginia v. EPA, limiting federal agency overreach.

Notably, in 2022, NELF asserted the foundational values that form our purpose in a wide variety of cases relevant to the business and legal communities: encouraging solar energy, affordable housing, childcare facilities. We pushed back against government overreach and respect for separation of powers, particularly when cases involved appointed agencies attempting to act in place of the elected legislative branches, in a case involving the New England fisheries and who should set policy for environmental regulation in New Hampshire. We defended the gig economy, and all the jobs and opportunity it has created for historically unemployed or underemployed people, against a concerted national effort to regulate or destroy gig work. We defended employers and businesses against ever-widening avenues of liability for taxes and penalties. We defended property rights and access to justice for homeowners. And, in a significant victory where we never needed to unsheathe our litigation sword after rattling it, we stood with Massachusetts taxpayers to assure that nearly $3 billion of surplus taxes were returned to the people who paid them.
Each of our well-crafted and persuasive appellate amicus briefs would cost $50,000 to $100,000 if provided in the private sector legal marketplace, yet NELF does not charge any fee for our advocacy. We rely entirely on donations from law firms, corporate legal departments, foundations, and individuals who share our view about the importance of economic liberty and embrace the rule of law. If you support our work, you can help power our mission in 2023 by making a tax-deductible donation today at
Thank you for your support and for being a valued member of the NELF community.
Onto 2023!
Dan Winslow, President


2022 Cases

Terrence Marengi v. 6 Forest Road, LLC et al.
Massachusetts Supreme Judicial Court
The question posed in this case is whether a court may require a bond from a plaintiff who appeals the approval of a comprehensive permit issued under G.L. c. 40B to build affordable housing. NELF argued that a bond may be required even though the bond statute does not actually mention the approval of c.40B permits as such. NELF reasoned that “site plan” approvals are included expressly in the bond statute and since c. 40B permits always require approval of a site plan, they too are within the scope of the bond statute. On December 14, the Massachusetts SJC issued a decision confirming that appeals from affordable housing comprehensive performs may require a bond (as NELF had argued).
The ERISA Industry Committee v. City of Seattle
U.S. Supreme Court
NELF urged the Supreme Court to grant certiorari in this case in which Seattle attempted to circumvent ERISA preemption law by requiring employers to alter the terms of their ERISA plans, create a plan, or make cash payments directly to employees in lieu of a plan. NELF argued that the lower courts erred in upholding the ordinance because they relied on the “presumption against preemption,” which does not apply when there is an express statutory preemption clause, as here. In November 2022, the Court denied cert.
Nieveen v. TAX 106 and Lancaster County, Nebraska
U.S. Supreme Court
This is one of three petitions before the Supreme Court on the same important property rights issue: Does government violate the Takings Clause when it seizes real property for overdue taxes, sells it, and refuses to turn over surplus sale proceeds to the owner? The Nebraska courts refused to recognize that the owner has a property interest in the money. In support of her petition, NELF traced the historical common law of property seizures used to pay taxes and of land sales used to pay debts. NELF also traced the origin of “equity” as a property interest and why it entitles a taxpayer to compensation for any “equity” lost in a tax seizure even when there is no sale.
Brown et al. v. Saint-Gobain Performance Plastics Corp. et al.
New Hampshire Supreme Court
Residents of New Hampshire who were exposed to a toxic chemical called PFOA have sued a plastics company for the costs of being medically monitored for any symptoms that might result from the exposure. Because of the novelty of the claim, NELF filed a brief arguing that a New Hampshire court’s power to deal with such a major question of public policy is circumscribed by that state’s strong tradition of judicial deference to the legislature on public policy. Deference is all the more warranted here, NELF pointed out, because the legislature has recently been engaged in trying to reach a consensus on the issues raised in this case. The case was recently argued and decision is pending.
Koussa v. Attorney General and Secretary of the Commonwealth
Massachusetts Supreme Judicial Court
In this case NELF argued that two popular initiative questions were correctly certified by the Attorney General for appearance on the 2022 ballot. The initiatives were similar in that they both would have recognized Lyft and Uber drivers to be independent contractors, not employees and would have entitled them to certain benefits from the companies. NELF argued that the numerous provisions found in the initiatives, though ranging widely, did not violate the state constitution’s “relatedness” requirement because they were all necessary to define an entirely new form of employment relationship. In June 2022, the SJC, finding that two parts of the initiatives were extraneous to that purpose, prohibited the questions from being placed on the ballot.
Anderson v. Healey
Massachusetts Supreme Judicial Court
In this case the legislature sought to place on the ballot a constitutional amendment that would create the first-ever exception to the state’s flat tax. NELF argued that the summary prepared for the ballot by the Attorney General would be highly misleading to voters concerning how the new revenue is to be spent. NELF recounted the history of how the proposal’s supporters, in and out of the legislature, long sought to obscure what effect the new revenue would actually have on its two supposed beneficiaries, public transportation and education. In its June 2022 decision, the SJC ruled that the summary was unobjectionable because it accurately tracked the language of the proposed amendment.
Biogen International GMBH v. Mylan Pharmaceuticals Inc.
U.S. Supreme Court
The question posed in this petition concerned 35 U.S.C. §112’s requirement that an inventor provide a “written description of the invention” in order to secure a patent. The Federal Circuit ruled that Biogen’s dosage disclosures for a new drug called dimethyl fumarate were insufficient. In its amicus brief, NELF argued that the Federal Circuit’s decision confounded the three separate disclosure requirements set forth in 35 U.S.C.
§112(a): the written disclosure requirement, the enablement requirement, and arguably the best mode requirement. On October 3, 2022, the Court denied the petition.
Reagan v. Commissioner of Revenue
Massachusetts Supreme Judicial Court
The SJC requested amicus briefing on whether the sale of a G. L. c. 121A urban redevelopment project creates a capital gains income tax liability. The Commissioner ruled that while such a “project” is exempt from taxation, the sale of it is not, and the Appellate Tax Board agreed. NELF argues that the exemption on its face is a broad one, and that the Commissioner’s narrow reading both ignores the plain language of the statute and conflates it improperly with another statute. NELF also discusses the harmful practical effects of the Commissioner’s ruling would have urban redevelopment.
Tracer Lane II Realty, LLC v. City Of Waltham and another
Massachusetts Supreme Judicial Court
NELF successfully argued that the local zoning authority violated the provision of the Massachusetts Zoning Act which “prohibits or unreasonably regulates the installation of solar energy systems[,] . . . except where necessary to protect the public health, safety or welfare,” when the local authority has summarily prohibited owner of property in residential district from building access road to proposed solar panel array in neighboring town (and when the city has also categorically prohibited solar energy facilities in all but its industrial districts, which constitute less than 2% of city’s land). The Court on June 2 issued its decision that the city violated the Zoning Act by an unreasonable regulation on the facts of the case.
Veronica Archer et al. v. Grubhub Holdings, Inc.
Massachusetts Supreme Judicial Court
The case raised the issue whether local food delivery drivers qualify as interstate transportation workers under Federal Arbitration Act’s so-called “transportation worker” exemption for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce?” 9 U.S.C. § 1. This case is one of the latest examples of NELF’s (successful) defense of the gig economy and all the jobs and opportunities that the gig economy creates for workers who have historically been underemployed or unemployed. In July, in a decision strikingly similar to NELF’s amicus brief, the Court held that drivers do not qualify for exemption. Therefore the workers must comply with their arbitration agreements, which require the individual arbitration of claims (as opposed to class action in court).
Berlin Landing Realty Trust v. Zoning Board of Appeals of Town of Northborough
Massachusetts Supreme Judicial Court
This case raised the question whether the local zoning authority violated the provision of the Massachusetts Zoning Act protecting the use of any property for a child care facility, subject only to reasonable dimensional requirements, when the local authority has enforced its 100-foot setback requirement for an industrial use that borders a residential district, but when (1) the proposed day care center, to be located in the industrial district, would have been permitted as of right in the residential district; and (2) the enforcement of the setback requirement would render the construction of the facility virtually impracticable, due to the presence of wetlands on the property? The case settled shortly before scheduled oral argument date.
Janet Avila, et al. v. Boston Public Health Commission et al.
Massachusetts Appeals Court
NELF supported the plaintiff in a constitutional challenge to the Boston Public Health Commission’s legal authority to override state summary process eviction law and impose a Covid-related eviction moratorium on Boston landlords, when the Home Rule Amendment to the Massachusetts Constitution forbids local government from regulating the landlord-tenant relationship, unless the Legislature has explicitly delegated that power, and the Legislature has not done so here. On June 22, 2022, the Appeals Court dismissed case as moot because the city had ended moratorium and, in court’s opinion, issue was unlikely to recur, and if it did, appellate process could timely decide issue (bitter irony here!) NELF filed an amicus memorandum of law against dismissal on mootness grounds. When the case was dismissed, NELF successfully placed the gist of our argument as a thought leadership op-ed in the Boston Business Journal
Twenty-Four Taxpayers v. Commonwealth of Massachusetts
(Potential Chapter 62F litigation | Massachusetts Supreme Judicial Court)
In a first-ever partnership, NELF teamed up as local counsel with a trial team from the Goldwater Institute as counsel for the statutorily-required 24 Massachusetts taxpayers to ensure that the State Auditor complied with her statutory duty under G. L. c. 62F to timely review DOR tax surplus findings for state fy 2022, to make her own timely independent determination, and if confirming result, to timely release her report to Governor, DOR et al., for processing of proportionate tax credits to all individual taxpayers in Commonwealth for tax year 2021. Under the threat of litigation, and despite pending legislation to redistribute tax credits to persons who had not paid the tax, the State Auditor complied with her c. 62F duties so NELF never needed to file a complaint in this matter. Nearly $3 billion was returned directly to the taxpayers who paid the surplus tax.
U.S. Auto Parts Network, Inc. v. Massachusetts Commissioner of Revenue
Massachusetts Supreme Judicial Court
This case presented the issue whether the Commissioner of Revenue violated the dormant Commerce Clause, and the Internet Tax Freedom Act, when he promulgated a regulation in 2017 that required out-of-state online retailers, with no traditional physical presence in Massachusetts, to collect a sales or use tax from Massachusetts customers and remit it to the Commonwealth? NELF argued that the DOR regulation violated Supreme Court’s dormant Commerce Clause “brick- and-mortar physical presence” test in effect in 2017. (The Court later reversed itself in Wayfair decision 2018, and adopted virtual/digital presence test consonant with Internet economy). NELF also argues that Wayfair does not apply retroactively, consistent with Court’s own language in Wayfair, and consistent with Court’s due process-based presumption against retroactive application of statutes that constrict individual rights (applied here to Court’s Wayfair decision). The case has been argued and is under advisement.
Smiley First, LLC v. Massachusetts Department of Transportation
Massachusetts Supreme Judicial Court
Where the Commonwealth took a valid permanent easement over a portion of a business’s property, for the limited purpose of allowing the relocation of displaced freight railroad tracks due to the Big Dig construction project, does the Commonwealth have the ongoing right to use the entire portion of the burdened property, for a new purpose (namely, the laying of test tracks and the construction of a related building for new MBTA passenger cars), without providing the property owner with any additional compensation? NELF argues that MBTA’s intended new use of all of the burdened portion of Smiley’s property would constitute an additional taking, requiring the Commonwealth to provide adequate compensation to Smiley First. Case has been argued and is under advisement.
Loper Bright Enterprises v. Secretary of Commerce
United States Supreme Court on certiorari
NELF has filed an amicus brief in SCOTUS arguing that certiorari should be granted to decide whether Congress has “silently” authorized the National Marine Fisheries Service (NMFS) to require potentially any domestic commercial fishing vessel under its jurisdiction to pay for NMFS’s at-sea observers, under 16 U.S.C. § 1853(b)(8) of the Magnuson-Stevens Fishery Conservation and Management Act. Certiorari is also warranted to clarify that Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984), is entirely consistent with a federal court’s independent duty, under both Article III of the Constitution and § 706 of the Administrative Procedure Act, to decide whether an administrative agency has exceeded its statutorily delegated powers. The Court has not yet decided whether to review the case on the merits.








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