Bd of Trustees Glazing Health v. Shannon Chambers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE BOARD OF TRUSTEES OF THE No. 16-15588

GLAZING HEALTH AND WELFARE

TRUST; BOARD OF TRUSTEES OF THE D.C. No.

SOUTHERN NEVADA GLAZIERS AND 2:15-cv-01754-

FABRICATORS PENSION TRUST FUND; KJD-VCF

BOARD OF TRUSTEES OF THE

PLUMBERS AND PIPEFITTERS UNION

LOCAL 525 PENSION PLAN; THE OPINION

BOARD OF TRUSTEES OF THE

PAINTERS, GLAZIERS AND

FLOORCOVERERS JOINT

APPRENTICESHIP AND JOURNEYMAN

TRAINING TRUST; THE BOARD OF

TRUSTEES OF THE PAINTERS,

GLAZIERS AND FLOORCOVERERS

SAFETY TRAINING TRUST FUND; THE

BOARD OF TRUSTEES OF THE

PAINTERS AND FLOORCOVERERS

JOINT COMMITTEE; THE BOARD OF

TRUSTEES OF THE SOUTHERN

NEVADA PAINTERS AND

DECORATORS AND GLAZIERS

LABOR-MANAGEMENT COOPERATION

COMMITTEE TRUST; THE BOARD OF

TRUSTEES OF THE INTERNATIONAL

UNION OF PAINTERS AND ALLIED

TRADES INDUSTRY PENSION FUND;

THE BOARD OF TRUSTEES OF THE

EMPLOYEE PAINTERS’ TRUST; THE

2 BD. OF TRUSTEES V. CHAMBERS

BOARD OF TRUSTEES OF THE

CONSTRUCTION INDUSTRY AND

LABORERS HEALTH AND WELFARE

TRUST; THE BOARD OF TRUSTEES OF

THE CONSTRUCTION INDUSTRY AND

LABORERS JOINT PENSION TRUST;

THE BOARD OF TRUSTEES OF THE

CONSTRUCTION INDUSTRY AND

LABORERS VACATION TRUST; THE

BOARD OF TRUSTEES OF SOUTHERN

NEVADA LABORERS LOCAL 872

TRAINING TRUST; BOARD OF

TRUSTEES OF THE PLUMBERS AND

PIPEFITTERS LOCAL 525 HEALTH

AND WELFARE TRUST AND PLAN;

BOARD OF TRUSTEES OF THE

PLUMBERS AND PIPEFITTERS UNION

LOCAL 525 PENSION PLAN; BOARD

OF TRUSTEES OF PLUMBERS AND

PIPEFITTERS LOCAL UNION 525

APPRENTICE AND JOURNEYMAN

TRAINING TRUST FOR SOUTHERN

NEVADA,

Plaintiffs-Appellees,

v.

SHANNON CHAMBERS, Nevada Labor

Commissioner, in her official

capacity,

Defendant-Appellant.

BD. OF TRUSTEES V. CHAMBERS 3

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted En Banc June 18, 2019

San Francisco, California

Filed November 7, 2019

Before: Sidney R. Thomas, Chief Judge, and William A.

Fletcher, Ronald M. Gould, Jay S. Bybee, Consuelo M.

Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan

Christen, John B. Owens, Ryan D. Nelson, and Bridget S.

Bade, Circuit Judges.

Opinion by Chief Judge Thomas

SUMMARY*

Mootness of Action Challenging Legislation

The en banc court dismissed as moot an appeal from the

district court’s summary judgment in favor of the plaintiffs

in an action challenging Nevada Senate Bill 223, which

amended state vicarious liability and lien collection laws to

impose certain administrative requirements on labor union

trusts when they pursue debt collection on behalf of union

members.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 BD. OF TRUSTEES V. CHAMBERS

The district court held that the statute was preempted by

the Employee Retirement Income Security Act. While this

appeal from the district court’s judgment was pending, the

Nevada legislature repealed Senate Bill 223 and replaced it

with Senate Bill 338, with the specific intent to avoid the

ERISA preemption issues of Senate Bill 223.

Joining other circuits, the panel held that the repeal,

amendment, or expiration of legislation creates a presumption

that an action challenging the legislation is moot, unless there

is a reasonable expectation that the legislature is likely to

enact the same or substantially similar legislation in the

future. Applying these principles to this case, the panel

concluded that the action was moot. The panel dismissed the

appeal as moot and remanded the case to the district court

with instructions to vacate the judgment and dismiss the

complaint.

COUNSEL

Heidi P. Stern (argued), Solicitor General; Melissa L. Flatley,

Deputy Attorneys General; Gregory L. Zunino, Bureau Chief;

Joseph F. Tartakovsky, Deputy Solicitor General; Adam Paul

Laxalt, Attorney General; Office of the Attorney General,

Carson City, Nevada; for Defendant-Appellant.

Bryce C. Loveland (argued) and Adam P. Segal, Brownstein

Hyatt Farber Schreck LLP, Las Vegas, Nevada; Daryl E.

Martin and Wesley J. Smith, Christensen James & Martin,

Las Vegas, Nevada; Sean W. McDonald and Michael A.

Urban, The Urban Law Firm, Las Vegas, Nevada; for

Plaintiffs-Appellees.

BD. OF TRUSTEES V. CHAMBERS 5

Sarah Bryan Fask, Littler Mendelson P.C., Philadelphia,

Pennsylvania; Richard N. Hill, Littler Mendelson P.C., San

Francisco, California; for Amicus Curiae Nevada Contractors

Association.

Kevin C. Powers, Chief Litigation Counsel; Brenda J. Erdoes,

Legislative Counsel; Nevada Legislative Counsel Bureau,

Legal Division, Carson City, Nevada; for Amicus Curiae

Nevada Legislature.

Laurie A. Traktman, Gilbert & Sackman, Los Angeles,

California, for Amici Curiae Board of Trustees of the Sheet

Metal Workers’ Pension Plan of Southern California, Arizona

and Nevada, and Board of Trustees of the Sheet Metal

Workers’ Health Plan of Southern California, Arizona and

Nevada.

OPINION

THOMAS, Chief Judge:

We granted rehearing en banc in this case to examine and

harmonize our precedent concerning the proper analytical

framework to apply when determining whether the repeal,

amendment, or expiration of legislation renders a lawsuit

challenging the legislation moot. We conclude that such a

legislative act creates a presumption that the action is moot,

unless there is a reasonable expectation that the legislative

body is likely to enact the same or substantially similar

legislation in the future. Applying these principles to this

case, we conclude that the action is moot, and we dismiss it.

6 BD. OF TRUSTEES V. CHAMBERS

I

In 2015, the Nevada legislature passed Senate Bill 223,

which amended state vicarious liability and lien collection

laws to impose certain administrative requirements on labor

union trusts when they pursue debt collection on behalf of

union members. See 2015 Nev. Laws Ch. 345. In response

to an action filed by some of the trusts, the district court held

that the statute was entirely preempted by the Employee

Retirement Income Security Act of 1974 (“ERISA”) because

it regulated the relationships between ERISA plans and

employees. Bd. of Trs. of the Glazing Health & Welfare Tr.

v. Chambers, 168 F. Supp. 3d 1320, 1323–25 (D. Nev. 2016).

The Nevada Labor Commissioner appealed.

While this appeal was pending, the Nevada legislature

entirely repealed S.B. 223 and replaced it with Senate Bill

338, with the specific intent to avoid the ERISA preemption

issues of S.B. 223. The Legislative Counsel’s Digest

accompanying S.B. 338 cited the district court’s decision as

informing the bill.1 The four provisions that the district court

determined were preempted by ERISA do not appear in the

new bill. The ERISA plans are not mentioned in the new bill.

A divided three judge panel, relying on different strands

of our circuit’s precedent, concluded that the repeal of S.B.

223 and the enactment of S.B. 338 did not render the instant

1

The Legislative Counsel’s Digest accompanying the bill states: “The

United States District Court for the District of Nevada in Bd. of Trs. of the

Glazing Health & Welfare Tr. v. Chambers, 168 F. Supp. 3d 1320

(D. Nev. 2016), ruled that Senate Bill No. 223 was preempted by [ERISA]

. . . . This bill sets forth amendments that would prevent the provisions of

law amended in Senate Bill No. 223 from being preempted.” 2017 Nev.

Laws Ch. 277.

BD. OF TRUSTEES V. CHAMBERS 7

action moot. Bd. of Trs. of the Glazing Health & Welfare Tr.

v. Chambers, 903 F.3d 829, 838–44 (9th Cir. 2018). A

majority of the non-recused active judges voted to rehear the

appeal en banc. Bd. of Trs. of the Glazing Health & Welfare

Tr. v. Chambers, 923 F.3d 1162 (9th Cir. 2019) (granting

rehearing en banc).

II

A private defendant’s voluntary cessation of challenged

conduct does not necessarily render a case moot because, if

the case were dismissed as moot, the defendant would be free

to resume the conduct. See, e.g., Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000);

United States v. W. T. Grant Co., 345 U.S. 629, 632–33

(1953). However, we treat the voluntary cessation of

challenged conduct by government officials “with more

solicitude . . . than similar action by private parties.” Am.

Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180

(9th Cir. 2010) (internal quotation marks omitted) (“[W]e

presume the government is acting in good faith.”). For this

reason, the repeal, amendment, or expiration of challenged

legislation is generally enough to render a case moot and

appropriate for dismissal. Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 478 (1990) (legislature’s passage of

amendments rendered case moot); Burke v. Barnes, 479 U.S.

361, 363 (1987) (expiration of legislation rendered case

moot); Kremens v. Bartley, 431 U.S. 119, 127–28 (1977)

(legislature’s repeal and replacement of legislation rendered

case moot).

Despite this general rule, the Supreme Court has in some

instances held that a case was not moot even when the

government had repealed or amended a challenged statute or

8 BD. OF TRUSTEES V. CHAMBERS

ordinance. For example, in City of Mesquite v. Aladdin’s

Castle, Inc., the Supreme Court refused to dismiss an appeal

as moot where a city had revised a challenged ordinance but

was reasonably expected to reenact offending provisions

because it had announced its intention to do so. 455 U.S.

283, 289 & n.11 (1982). In Northeastern Florida Chapter of

the Associated General Contractors of America v. City of

Jacksonville, the Court similarly refused to dismiss an appeal

as moot after a city had entirely repealed and replaced a

challenged ordinance because the replacement ordinance

disadvantaged plaintiffs only “to a lesser degree” than the

original one. 508 U.S. 656, 662–63 (1993).

Following these decisions, nearly “all [other] circuits to

address the issue” have interpreted City of Mesquite “to

support the rule that repeal of a contested ordinance moots a

plaintiff’s injunction request, absent evidence that the City

plans to or already has reenacted the challenged law or one

substantially similar.” McCorvey v. Hill, 385 F.3d 846, 849

(5th Cir. 2004) (internal quotation marks omitted); see also

Libertarian Party of Ark. v. Martin, 876 F.3d 948, 951 (8th

Cir. 2017) (noting statutory change is usually enough to moot

a challenge to the statute even though legislature maintains

power to reenact); Coral Springs St. Sys., Inc. v. City of

Sunrise, 371 F.3d 1320, 1329–33 (11th Cir. 2004) (noting

repeal generally moots a challenge to a statute unless

legislature reasonably likely to reenact); Fed’n of Advert.

Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924,

930 (7th Cir. 2003) (noting “[r]ather than presuming bad

faith” on the part of the government, court considers complete

repeal to render a case moot unless reasonable expectation of

reenactment).

BD. OF TRUSTEES V. CHAMBERS 9

Our analytical approach in response to City of Mesquite

and Northeastern Florida has been somewhat inconsistent.

In some cases, we have declined to apply a presumption of

mootness where a statute or ordinance was repealed or

amended. For example, in Thalheimer v. City of San Diego,

we emphasized that concerns about a government’s evasion

of judicial review are “of particular force” where voluntary

cessation “occur[s] only in response to the district court’s

judgment.” 645 F.3d 1109, 1126 (9th Cir. 2011) (quoting

Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003)). In

Jacobus v. Alaska, we noted that “mootness is less

appropriate when repeal [of legislation] occurred due to the

‘prodding effect’ of litigation.” 338 F.3d at 1103 (quoting

Smith v. Univ. of Wash. Law School, 233 F.3d 1188, 1194

(9th Cir. 2000)). And in Coral Construction Co. v. King

County, we stated that “even if the government is unlikely to

reenact the provision, a case is not easily mooted where the

government is otherwise unconstrained should it later desire

to reenact the provision.” 941 F.2d 910, 928 (9th Cir. 1991)

(citing City of Mesquite, 455 U.S. at 289 n.10). In other

cases, we have applied a high burden for overcoming the

presumption of mootness. Indeed, we have suggested there

must be a “virtual certainty” that a government will not

reenact legislation in order to overcome the presumption of

mootness. See, e.g., Log Cabin Republicans v. United States,

658 F.3d 1162, 1167 (9th Cir. 2011) (per curiam); Chem.

Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 878

(9th Cir. 2006); Native Vill. of Noatak v. Blatchford, 38 F.3d

1505, 1510–11 (9th Cir. 1994).

In reconsidering our precedent, we join the majority of

our sister circuits in concluding that legislative actions should

not be treated the same as voluntary cessation of challenged

acts by a private party, and that we should assume that a

10 BD. OF TRUSTEES V. CHAMBERS

legislative body is acting in good faith in repealing or

amending a challenged legislative provision, or in allowing

it to expire. Therefore, in determining whether a case is

moot, we should presume that the repeal, amendment, or

expiration of legislation will render an action challenging the

legislation moot, unless there is a reasonable expectation that

the legislative body will reenact the challenged provision or

one similar to it.

The party challenging the presumption of mootness need

not show that the enactment of the same or similar legislation

is a “virtual certainty,” only that there is a reasonable

expectation of reenactment. But a determination that such a

reasonable expectation exists must be founded in the record,

as it was in City of Mesquite, rather than on speculation alone.

To the extent that any of our prior cases suggest a

different analysis than the one adopted here, we overrule

them in relevant part.

III

Applying these principles to this case, we begin with the

presumption that this appeal is moot because the Nevada

legislature repealed S.B. 223 and replaced it with S.B. 338,

without reenacting the challenged provisions. There is no

evidence in the record indicating a reasonable expectation

that the Nevada legislature is likely to enact the same or

substantially similar legislation in the future. To the contrary,

BD. OF TRUSTEES V. CHAMBERS 11

the record indicates that the Nevada legislature has, in good

faith, responded appropriately. No live controversy remains.2

Therefore, we dismiss this appeal as moot and remand to

the district court with instructions to vacate the judgment and

dismiss the complaint in accordance with United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950). All pending

motions are denied as moot.

DISMISSED AND REMANDED WITH

INSTRUCTIONS.

2

After urging the three judge panel to dismiss the case as moot, the

Commissioner reversed course and argued before the en banc court that

the case was not moot. However, the Commissioner did not cross-appeal

the issues it now raises and our disposition here renders those questions

moot as well.