Bd of Trustees Glazing Health v. Shannon Chambers ( 2019 )

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.