D.C. No. 2:15-cv-01754- KJD-VCF OPINION -- 1 of 64 -- 2 BD. OF TRUSTEES V. CHAMBERS… v. SHANNON CHAMBERS , Nevada Labor Commissioner, in her official capacity

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE BOARD OF TRUSTEES OF THE
G LAZING HEALTH AND W ELFARE
TRUST; BOARD OF TRUSTEES OF THE
S OUTHERN NEVADA G LAZIERS AND
FABRICATORS P ENSION T RUST FUND;
BOARD OF TRUSTEES OF THE
P LUMBERS AND P IPEFITTERS UNION
LOCAL 525 P ENSION P LAN; THE
BOARD OF TRUSTEES OF THE
P AINTERS , G LAZIERS AND
F LOORCOVERERS J OINT
APPRENTICESHIP AND J OURNEYMAN
TRAINING TRUST; THE B OARD OF
TRUSTEES OF THE P AINTERS ,
G LAZIERS AND F LOORCOVERERS
S AFETY TRAINING TRUST FUND; THE
BOARD OF TRUSTEES OF THE
P AINTERS AND F LOORCOVERERS
J OINT C OMMITTEE; THE BOARD OF
TRUSTEES OF THE S OUTHERN
NEVADA P AINTERS AND
DECORATORS AND G LAZIERS LABOR -
M ANAGEMENT C OOPERATION
C OMMITTEE TRUST; THE BOARD OF
TRUSTEES OF THE INTERNATIONAL
UNION OF P AINTERS AND A LLIED
TRADES INDUSTRY P ENSION FUND;
THE BOARD OF TRUSTEES OF THE
EMPLOYEE P AINTERS ’ TRUST; THE
No. 16-15588
D.C. No.
2:15-cv-01754-
KJD-VCF
OPINION

-- 1 of 64 --

2 BD. OF TRUSTEES V. C HAMBERS
BOARD OF TRUSTEES OF THE
C ONSTRUCTION INDUSTRY AND
LABORERS H EALTH AND W ELFARE
TRUST; THE BOARD OF T RUSTEES OF
THE C ONSTRUCTION INDUSTRY AND
LABORERS J OINT P ENSION TRUST;
THE BOARD OF TRUSTEES OF THE
C ONSTRUCTION INDUSTRY AND
LABORERS VACATION TRUST; THE
BOARD OF TRUSTEES OF S OUTHERN
NEVADA LABORERS LOCAL 872
TRAINING TRUST; BOARD OF
TRUSTEES OF THE P LUMBERS AND
P IPEFITTERS LOCAL 525 HEALTH AND
W ELFARE TRUST AND P LAN; BOARD
OF TRUSTEES OF THE P LUMBERS AND
P IPEFITTERS UNION LOCAL 525
P ENSION P LAN; BOARD OF TRUSTEES
OF P LUMBERS AND P IPEFITTERS
LOCAL UNION 525 APPRENTICE AND
J OURNEYMAN TRAINING TRUST FOR
S OUTHERN NEVADA ,
Plaintiffs-Appellees,
v.
S HANNON C HAMBERS , Nevada Labor
Commissioner, in her official
capacity,
Defendant-Appellant.

-- 2 of 64 --

BD. OF TRUSTEES V. C HAMBERS 3
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Argued and Submitted March 12, 2018
San Francisco, California
Filed September 4, 2018
Before: J. Clifford Wallace and Consuelo M. Callahan,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge Callahan;
Dissent by Judge Wallace
* The Honorable James V. Selna, United States District Judge for
the Central District of California, sitting by designation.

-- 3 of 64 --

4 BD. OF TRUSTEES V. C HAMBERS
SUMMARY**
ERISA Preemption / Mootness
Vacating the district court’s summary judgment in favor
of the plaintiffs, the panel held that Nevada Senate Bill 223
was a legitimate exercise of Nevada’s traditional state
authority and was not preempted by the Employee
Retirement Income Security Act.
Nevada law holds general contractors vicariously liable
for the labor debts owed by subcontractors to subcontractors’
employees on construction projects. SB 223 limited the
damages that can be collected from general contractors and
imposed notification requirements on contractors and
welfare benefit plans regulated under ERISA before an
action could be brought under Nevada law against general
contractors. Plaintiffs, ERISA trusts that managed ERISA
plans, claimed that SB 223 was preempted by ERISA
because it impermissibly “related to” ERISA plans.
The panel concluded that the appeal was not moot
following the Nevada legislature’s repeal of SB 223 and
enactment of SB 338, a replacement that repeats some of the
challenged aspects of SB 223. The panel held that legislative
change in response to an adverse judicial ruling is generally
the type of “voluntary cessation” that defeats mootness on
appeal. The panel concluded that Nevada did not rebut a
presumption that its appeal was not moot because it did not
** 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 of 64 --

BD. OF TRUSTEES V. C HAMBERS 5
demonstrate that the legislature would certainly not reenact
the challenged provisions of SB 223.
On the merits, the panel held that SB 223 was not
preempted because it did not intrude on any federally-
regulated field, conflict with ERISA’s objectives, or
otherwise impermissibly “relate to” ERISA plans. Instead,
it targeted an area of traditional state concern—debt
collection—and pared back a state-conferred entitlement to
collect unpaid debts from third-party general contractors.
The panel explained that ERISA empowers ERISA trusts to
bring actions against subcontractors for subcontractors’
labor debts, but it does not establish a cause of action for
collecting debts from non-parties to an ERISA plan, such as
general contractors. That right exists, if at all, as a matter of
state vicarious liability law. The panel held that, because SB
223 targeted an area of traditional state regulation, a
presumption against preemption applied. The panel
concluded that SB 223 did not invade the federal field
regulated by ERISA or pose an obstacle to ERISA’s
objectives; rather, plaintiffs’ obligations under ERISA
remained the same with or without SB 223. Thus, SB 223
had neither an impermissible “connection with” nor did it
make an impermissible “reference to” ERISA plans. The
panel vacated the district court’s grant of summary judgment
and remanded for entry of judgment consistent with the
panel’s opinion.
Dissenting, Judge Wallace wrote that it was his
conclusion that the Nevada legislature’s repeal of SB 223,
and its enactment of SB 338, mooted the appeal. Judge
Wallace explained that the general rule in this circuit is that
statutory change is generally enough to render a case moot
unless the case presents a rare situation, such as “where it is
virtually certain that the repealed law will be reenacted.” In

-- 5 of 64 --

6 BD. OF TRUSTEES V. C HAMBERS
this case, Judge Wallace concluded that the Nevada
legislature’s repeal and replacement of SB 223 amounted to
a “complete statutory overhaul,” and that there was no
indication the legislature intended to reenact the repealed
law. Therefore, in Judge Wallace’s view, there was no
reason to depart from the rule that statutory change is usually
enough to render a case moot.

-- 6 of 64 --

BD. OF TRUSTEES V. C HAMBERS 7
COUNSEL
Joseph F. Tartakovsky (argued), Deputy Solicitor General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Defendant-Appellant.
Wesley J. Smith (argued) and Daryl E. Martin, Christensen
James & Martin, Las Vegas, Nevada; Bryce C. Loveland and
Adam P. Segal, Brownstein Hyatt Farber Schreck LLP, Las
Vegas, Nevada; Sean W. McDonald and Michael A. Urban,
The Urban Law Firm, Las Vegas, Nevada; for Plaintiffs-
Appellees.
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.

-- 7 of 64 --

8 BD. OF TRUSTEES V. C HAMBERS
OPINION
CALLAHAN, Circuit Judge:
Nevada law holds general contractors vicariously liable
for the labor debts owed by subcontractors to subcontractors’
employees on construction projects. In recent years, the
Nevada legislature became concerned that its vicarious
liability law was unfairly burdening general contractors with
substantial liabilities. The legislature found that certain
entities, in particular trusts that manage health and welfare
benefit plans and which represent aggrieved employees in
labor debt recovery actions, were suing general contractors
years after labor debts accrued. Since a 2009 decision of our
court, those suits could seek money damages not just for
uncollected debts, but also for the trusts’ legal fees and other
costs incurred attempting to collect on those debts from
subcontractors. The upshot was that unsuspecting general
contractors were discovering years later that they owed the
subcontractors’ debts—and then some.
In an effort to remedy this perceived problem, in 2015
the Nevada legislature unanimously approved SB 223. The
law limits the damages that may be collected from general
contractors. It also imposes notification requirements on
contractors and welfare benefit plans regulated under the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq., before an action may
be brought under Nevada law against general contractors.
Plaintiffs-Appellees are ERISA trusts that manage
ERISA plans. They claim SB 223 is preempted by ERISA
because, they argue, it impermissibly “relates to” ERISA
plans. They reason that the law intrudes on ERISA’s
uniform regulatory scheme by imposing additional
administrative burdens on ERISA trusts like themselves, and

-- 8 of 64 --

BD. OF TRUSTEES V. C HAMBERS 9
by infringing ERISA trusts’ fiduciary duty to manage plan
funds. The district court agreed and granted Appellees’
motion for summary judgment. We conclude, however, that
SB 223 does not intrude on any federally-regulated field,
conflict with ERISA’s objectives, or otherwise
impermissibly “relate to” ERISA plans. Instead, it targets an
area of traditional state concern—debt collection—and pares
back a state-conferred entitlement to collect unpaid debts
from third-party general contractors. Accordingly, we hold
that SB 223 is a legitimate exercise of Nevada’s traditional
state authority and VACATE the district court’s judgment.1
I.
A.
Nevada law provides that employees on construction
projects who cannot collect on labor debts from their
employers (i.e., subcontractors2) may compel payment from
general contractors. Nev. Rev. Stat. Ann. § 608.150 et seq.
Such debts may include wages that subcontractors owe their
employees and benefit contributions those subcontractors
1 Appellant’s motion for judicial notice and the Nevada
Legislature’s motion to file an amicus brief are GRANTED. Appellees’
motion to dismiss is DENIED.
2 For simplicity, we use the term “subcontractor” to refer to the
entity that negotiates and enters into an employee contribution
agreement—an ERISA plan—with an ERISA trust for the benefit of the
subcontractors’ employees. Similarly, we use the term “general
contractor” as shorthand for an entity that may be subject to vicarious
liability under Nevada law but which is not party to an ERISA plan. In
reality, a “general contractor” may be party to an ERISA plan, and in that
case vicarious liability—the debt collection tool at issue here—would
not apply.

-- 9 of 64 --

10 BD. OF TRUSTEES V. C HAMBERS
are required to make to health and welfare benefit plans—
i.e., “ERISA plans”—on behalf of their employees.
Appellees are trusts (“ERISA trusts” or “Taft-Hartley
trusts”) that administer a particular type of ERISA plan:
plans covering multiple employers, oftentimes across
several States. “A multiemployer plan is a collectively
bargained [ERISA] plan maintained by more than one
employer, usually within the same or related industries, and
a labor union.” Pension Benefit Guaranty Corp.,
Introduction to Multiemployer Plans, available at
http://goo.gl/6RJgoS (last accessed July 12, 2018).
Multiemployer plans are typically administered and
managed by a board of trustees, represented equally by labor
and management. Id. Through their administration of
multiemployer plans, Appellees provide welfare and pension
benefits to employees that perform work in the construction
industry. Those benefits, as well as employers’ (i.e.,
subcontractors’) contribution obligations to the plans, are
negotiated by employees—oftentimes through a union
representative—and employers, and are set forth in the plans
themselves. Id.
As is pertinent here, ERISA empowers ERISA trusts to
bring actions against subcontractors for subcontractors’
labor debts. 29 U.S.C. §§ 1132(g)(2), 1145. Those debts
can include subcontractors’ delinquent contributions to the
ERISA plans, as well as wages owed employees. Id.
§ 1132(g)(2). ERISA does not, however, establish a cause
of action for collecting debts from non-parties to an ERISA
plan, like general contractors. That right exists, if at all, as a
matter of state vicarious liability law. See Trs. of the Constr.
Indus. and Laborers Health and Welfare Trust v. Hartford
Fire Ins. Co., 578 F.3d 1126, 1127–28 (9th Cir. 2009).

-- 10 of 64 --

BD. OF TRUSTEES V. C HAMBERS 11
B.
The Nevada legislature became concerned in recent
years that its vicarious liability law was unfairly saddling
general contractors—i.e., non-parties to ERISA plans—with
the debts of subcontractors. General contractors found
themselves threatened with lawsuits by, among other
entities, ERISA trusts, who sought to hold them vicariously
liable for debts owed their members by subcontractors,
sometimes several years later. Those debts consisted of
delinquent wage and benefit contributions, as well as
attorneys’ fees and other costs resulting from protracted
legal action between ERISA trusts and subcontractors. A
2009 per curiam opinion of this court contributed to this
trend by interpreting “labor indebtedness” under Nevada’s
vicarious liability statute to include “liquidated damages and
attorneys’ fees arising from a collective bargaining
agreement [CBA].” Hartford Fire Ins., 578 F.3d at 1129.
Thus, after Hartford Fire Insurance, ERISA trusts like
Appellees could litigate against potentially insolvent
subcontractors for years, knowing that, should the litigation
fail to make them whole, they could recover their legal
expenses from general contractors later.
In 2015, the Nevada legislature unanimously approved
SB 223 to address the situation. The law had two main goals.
First, it sought to reduce the liability faced by unsuspecting
general contractors years after they had closed the books on
a project. It did so by shortening the statute of limitations
period to one year (SB 223 § 2) and limiting general
contractors’ vicarious liability to debts owed employees
under a CBA (SB 223 §§ 1(2) & 3(2)).
Second, the law sought to increase general contractors’
ability to address subcontractor debts early on. The law
imposed a set of mutually reinforcing obligations on ERISA

-- 11 of 64 --

12 BD. OF TRUSTEES V. C HAMBERS
trusts on the one hand, and subcontractors on the other.
Under the revised statutory scheme, ERISA trusts were
required to issue pre-lien notices to general contractors,
thereby alerting general contractors to potential claims in the
case of subcontractor delinquency (SB 223 § 4(8)). They
were also required to notify general contractors within sixty
days after a debt became delinquent (SB 223 § 5). Thus,
§§ 4(8) and 5, read together, gave general contractors early
notice of potential claims and a first opportunity to remedy
an outstanding debt with a subcontractor.
In return, upon commencement of a project, a contractor
(general or sub) that was party to an ERISA plan was
required to notify the ERISA trust of the project (SB 223
§ 4(7)). This provision thereby afforded trusts an
opportunity to monitor subcontractor performance and
identify delinquencies early on.
Some of SB 223’s six provisions specifically referenced
ERISA plans. They did so by variously referring to “health
or welfare funds” (§§ 1(2), 4(7)), “trust funds” that collect
and manage benefits and other forms of compensation for
workers (§ 4(8)), and Taft-Hartley trusts (§ 5(1)).3
3 The Taft-Hartley Act (aka the Labor Management Relations Act
(“LMRA”)) allows employer contributions to ERISA plans. See
29 U.S.C. § 1002(37). A “Taft-Hartley plan” is synonymous with an
ERISA plan. See UMW Health & Ret. Funds v. Robinson, 455 U.S. 562,
575 (1982) (Taft-Hartley plans are subject to ERISA); Hurn v. Ret. Fund
Trust of the Plumbing, Heating & Piping Indus. of S. Cal., 703 F.2d 386,
391 (9th Cir. 1983) (“the Taft-Hartley provisions parallel the ERISA
provisions and the trustees must meet the requirements of each”). As for
the other identifying terms, they describe ERISA plans because ERISA
applies to most “any employee benefit plan,” 29 U.S.C. § 1003(a), and
“employee welfare benefit plan” and “employee pension benefit plan”
are defined terms under ERISA, id. § 1002(1), (2)(A).

-- 12 of 64 --

BD. OF TRUSTEES V. C HAMBERS 13
SB 223’s six modifications to Nevada’s vicarious
liability law, Nev. Rev. Stat. § 608.150 et seq., are as
follows:
The Damages Amendments (§§ 1(2) & 3(2)): While
maintaining general contractors’ vicarious liability for
subcontractor debts, the damages amendments limited the
scope of that liability. Section 1(2) exempted a general
contractor from
any liability of a subcontractor or other
contractor for any penalty, including, without
limitation, interest, liquidated damages,
attorney’s fees or costs for the failure of the
subcontractor or other contractor to make any
contributions or other payments under any
other law or agreement, including, without
limitation, to a health or welfare fund or any
other plan for the benefit of employees in
accordance with a [CBA].
For its part, the pre-amendment version of § 3(2)
identified ERISA plans, and stated that the term “‘laborer’
includes, without limitation, an express trust fund to which
any portion of the total compensation of a laborer, including
. . . any fringe benefit, must be paid pursuant to an agreement
with that laborer or the collective bargaining agent of that
laborer.” SB 223 modified § 3(2)—without adding any
additional mention of ERISA plans—by excluding from
“fringe benefit” “any interest, liquidated damages,
attorney’s fees, costs or other penalties that may be incurred
by the employer of the laborer for failure to pay any such
compensation under any law or contract.”
The Statute of Limitations Amendment (§ 2): Section
2 shrunk the statute of limitations period for an action against

-- 13 of 64 --

14 BD. OF TRUSTEES V. C HAMBERS
a general contractor from three or four years (depending on
the location of the contractor) to one year. Notably, unlike
the other four amendments, § 2 made no mention of ERISA
plans or trusts.
The Commencement Notice Amendment (§ 4(7)):
Section 4(7) provided that “[u]pon commencement of work
on a project, any prime contractor or subcontractor
participating in a health or welfare fund or any other plan for
the benefit of employees is required to notify such fund or
plan of the name and location of the project so that the fund
or plan may protect potential lien rights under [Nevada
law].”
The Pre-Lien Notice Amendment (§ 4(8)): Section
4(8) required ERISA trusts to provide notice of a right to lien
against property owners. It clarified that ERISA trusts are
not alter egos of the workers whose interests they represent,
and so do not enjoy laborers’ exemption from the lien notice
requirement. Accordingly, § 4(8) provided that “‘one who
performs only labor’ does not include an express [ERISA]
trust fund . . . .”
The Delinquency Notice Amendment (§ 5(1)–(5)):
Section 5 provided, in relevant part, that “[i]f an
administrator of a Taft-Hartley trust which is formed
pursuant to 29 U.S.C. § 186(c)(5) does not receive a benefit
payment owed to the trust within 60 days . . . the
administrator shall provide a notice of the delinquency to the
general contractor and, if applicable, the subcontractor, who
is responsible for the benefit payment.”
C.
ERISA is a comprehensive federal statutory scheme
governing employee benefit plans. Boggs v. Boggs, 520 U.S.

-- 14 of 64 --

BD. OF TRUSTEES V. C HAMBERS 15
833, 841 (1997). “All employee benefit plans must conform
to various reporting, disclosure, and fiduciary requirements,
[29 U.S.C.] §§ 1021–1031, 1101–1114, while pension plans
must also comply with participation, vesting, and funding
requirements, see §§ 1051–1086.” Id. ERISA does not
requir[e] employers to provide any given set
of minimum benefits, but instead controls the
administration of benefit plans, see § 2,
29 U.S.C. § 1001(b), as by imposing
reporting and disclosure mandates, §§ 101–
111, 29 U.S.C. §§ 1021–1031, participation
and vesting requirements, §§ 201–211,
29 U.S.C. §§ 1051–1061, funding standards,
§§ 301–308, 29 U.S.C. §§ 1081–1086, and
fiduciary responsibilities for plan
administrators, §§ 401–414, 29 U.S.C.
§§ 1101–1114.
N.Y. State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 650 (1995). ERISA also
includes a preemption provision, which states that ERISA
“supersede[s] any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan . . . .”
29 U.S.C. § 1144(a).
D.
Appellees filed suit in Nevada federal district court
against Defendant-Appellant Shannon Chambers, Nevada’s
Labor Commissioner (hereafter the “State” or “Nevada”),
seeking a declaration that ERISA preempts SB 223. The
district court granted summary judgment for Appellees. The
Board of Trs. of the Glazing Health and Welfare Trust v.
Shannon Chambers, 168 F. Supp. 3d 1320, 1325 (D. Nev.
2016). The court deemed SB 223 preempted because, it

-- 15 of 64 --

16 BD. OF TRUSTEES V. C HAMBERS
found, the law was “specifically design[ed] to affect
employee benefit plans.” Id. at 1323. It concluded that the
law thereby had an impermissible “connection with or
reference to” ERISA plans. Id. at 1324. Noting that ERISA
regulates plan reporting requirements, the court determined
that SB 223’s imposition of reporting provisions—i.e., the
pre-lien and delinquency notice amendments—unlawfully
regulated in an area governed exclusively by ERISA. Id.
The district court also determined that any non-offending
provisions could not be preserved because, it found, SB 223
was not severable. Id. at 1324–25. First, SB 223 includes
no severability clause, which the court took to indicate a
legislative intent that it operate either as a cohesive whole or
not at all. Id. at 1324. Second, the court found that “it is
clear from the legislative history that all the amended
sections adopted under SB 223 were intended to work
together, rather than independently.” Id. at 1325. The court
did not, however, indicate whether it found any single
provision not preempted, such that deciding severability was
even necessary.4 Nevada timely appealed.
4 Nevada argues that the district court did, in fact, determine that the
statute of limitations amendment (§ 2) was not preempted. The State’s
understanding is not unreasonable because the district court declared that
“[i]t is clear that Section 2(1) of SB 223, which shortens the limitations
period, could stand alone.” Chambers, 168 F. Supp. 3d at 1325. But that
understanding is arguably negated by the court’s next sentence, which
states that § 2(1)’s adoption “was only seen as reasonable as part of a
larger political process in which, in exchange for the shorter limitations
period, Section 4 of SB[]223 amends NRS § 108.245 to require
contractors participating in a health or welfare benefit plan to provide
project-specific information to the plans.” Id. Thus, we do not read the
district court’s disposition as holding that § 2(1) could stand alone. At
any rate, because we hold that SB 223 is not preempted, the ambiguity
in the district court’s decision is a moot point.

-- 16 of 64 --

BD. OF TRUSTEES V. C HAMBERS 17
II.
Before proceeding to the merits, we must decide whether
Nevada’s appeal is moot. In response to the district court’s
invalidation of SB 223, in July 2017 the Nevada legislature
repealed SB 223 and replaced it with a new law, SB 338. SB
338 does not include the challenged notice and damages
amendments (§§ 1(2), 3(2), 4(7), 4(8), 5(1)) from SB 223,
and the repeal of those provisions was made retroactive to
the enactment of SB 223. SB 338 also includes a truncated
statute of limitations provision, which is not retroactive. The
new limitations period is two years—up from SB 223’s one
year—which is still short of the pre-SB 223 period of up to
four years. Because SB 338’s limitations period was not
made retroactive, Nevada argues that leaving the district
court’s determination undisturbed is causing actual and
imminent harm: the four-year pre-223 limitations period is
in place, rather than SB 223’s one-year period, for the years
2015 to 2017. With the exception of the limitations
provision, which only the State argues presents a live
controversy, the parties agree the appeal is moot.
Notwithstanding the parties’ partial agreement on mootness,
however, we must independently assess whether a live
controversy exists on appeal. Shell Offshore Inc. v.
Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir. 2016). We
therefore proceed to conduct our own analysis to determine
whether the appeal is moot.
A.
To avoid mootness, “an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.” Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks
and citation omitted). This means a plaintiff must satisfy the
irreducible constitutional minimum of Article III standing at

-- 17 of 64 --

18 BD. OF TRUSTEES V. C HAMBERS
each stage of litigation, including on appeal. Standing
requires that a plaintiff suffer an (1) injury-in-fact that is
actual or imminent and concrete and particularized, rather
than speculative or hypothetical; that is (2) fairly traceable
to the conduct complained of; and (3) which is likely to be
redressed by a favorable ruling. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992).
While mootness is normally a question of a court’s
subject matter jurisdiction, in some cases it is a prudential
rather than a jurisdictional limitation on our review. Coral
Constr. Co. v. King Cnty., 941 F.2d 910, 927 (9th Cir. 1991).
As is relevant here, “in cases involving the amendment or
repeal of a statute or ordinance, mootness is ‘a matter
relating to the exercise rather than the existence of judicial
power.’” Id. (quoting Carreras v. City of Anaheim, 768 F.2d
1039, 1047 (9th Cir. 1985)). In that situation “we may
continue to exercise authority over a purportedly moot case
where the balance of interests favors such continued
authority. The party moving for dismissal on mootness
grounds bears a heavy burden.” Id. at 927–28.
Where, as here, the legislature repealed a law in response
to an adverse judicial ruling, that burden may be
insurmountable. In City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 288–89 (1982), the Supreme Court considered
whether a challenge to a repealed statutory provision was
moot. The lower court had invalidated the provision, and the
city subsequently repealed it pending appeal. Id. at 288. The
Court began by explaining that a legislative change falls into
the category of actions constituting “voluntary cessation of
a challenged practice,” which “does not deprive a federal
court of its power to determine the legality of the practice.”
Id. at 289. And because an appellate court’s determination
that a case is moot generally means that “the judgment below

-- 18 of 64 --

BD. OF TRUSTEES V. C HAMBERS 19
is . . . vacated with directions to dismiss the complaint,” id.
at 288 n.9, a finding of mootness would free the government
to reenact the same previously rejected law, id. at 289.5
Thus, in City of Mesquite, “the city’s repeal of the
objectionable [statutory] language would not preclude it
from reenacting precisely the same provision if the District
Court’s judgment were vacated.” Id.
City of Mesquite went on to explain that “[t]he test for
mootness in cases such as this is a stringent one.” Id. at 289
5 Should we deem this appeal moot, vacatur would be compelled
under the “equitable tradition of vacatur.” U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 25 (1994). Where the losing party in
district court takes an action that moots the appeal, equity counsels
against vacatur: the party had an opportunity to secure a merits ruling on
appeal, but of its own accord opted to forfeit that right. Id. at 25–27. By
the same token, equity counsels against depriving the party that won
below of that judicial determination due only to the losing party’s post-
judgment remedial action. See id.
Here, however, the party that lost in district court—Shannon
Chambers, an employee in Nevada’s executive branch—is not part of the
branch of government that allegedly mooted the appeal. That entity is,
instead, the Nevada legislature. The distinction has legal import for
deciding whether vacatur would be appropriate in the case of mootness.
As we have explained, “[e]ven where new legislation moots the
executive branch’s appeal of an adverse judgment, the new legislation is
not attributed to the executive branch.” Chem. Prods. & Distribs. Ass’n
v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006). Indeed, “[t]he principle
that legislation is attributed to the legislature alone is inherent in our
separation of powers.” Id. Thus, because mootness here would not result
from an action by the party seeking appellate review (the executive
branch), should we deem the appeal moot we would also direct vacatur
of the district court’s judgment. See id. at 878–79; see also City of
Mesquite, 455 U.S. at 289; Bonner Mall, 513 U.S. at 25. That would, of
course, liberate the Nevada legislature to reenact any or all aspects of SB
223.

-- 19 of 64 --

20 BD. OF TRUSTEES V. C HAMBERS
n.10. To avoid mootness there, the city needed to show that
it was “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Id. The city
could have done so by demonstrating that “[t]here is . . .
certainty that a similar course”—i.e., reenacting the
invalidated law—“would not be pursued . . . .” Id. at 289.
Simply dispensing with the offending provision in the face
of judicial rejection fails to make the requisite showing, and
the city did not satisfy that standard in City of Mesquite. Id.
Thus, the Court found that it “must confront the merits” of
the then-repealed law’s legality.6 Id.
6 The dissent argues that City of Mesquite is sui generis because the
city there announced its intention to reenact the rejected law should the
case be deemed moot. Dissent at 55–57. It asserts that we should focus
our attention instead on a case pre-dating City of Mesquite, Kremens v.
Bartley, 431 U.S. 119 (1977). But City of Mesquite did not rely on the
discrete factual detail of the city’s avowed intention, which the Court
relegated to a footnote. City of Mesquite, 455 U.S. at 289 n.11. Instead,
it focused on the fact that vacatur of the district court’s decision via
mootness (see footnote 4, supra) meant the city would have the power to
reenact the same invalidated law. Id. at 289. Moreover, the Supreme
Court has made crystal clear that City of Mesquite is the authority de
rigueur on the question of mootness-due-to-legislative-change, not
Kremens. In Northeastern Florida Chapter of Associated General
Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656,
661–62 (1993), the Court explained that this particular issue “is
controlled by City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283
(1982), where we applied the ‘well settled’ rule that ‘a defendant’s
voluntary cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.’” (quoting
City of Mesquite, 455 U.S. at 289). There, as here (see Part II.B., infra),
the government enacted new legislation that repeated some of the
allegedly unlawful aspects of the invalidated and subsequently repealed
law. Id. at 662. The Court held that the case was not moot “because the
defendant’s ‘repeal of the objectionable language would not preclude it
from reenacting precisely the same provision if the District Court’s
judgment were vacated.’” Id. (quoting City of Mesquite, 455 U.S. at

-- 20 of 64 --

BD. OF TRUSTEES V. C HAMBERS 21
We have largely adhered to the rule set forth in City of
Mesquite, explaining that where a change in the law is
prompted by an adverse district court ruling, an appeal is
generally not moot. See, e.g., Thalheimer v. City of San
Diego, 645 F.3d 1109, 1125 (9th Cir. 2011) (case not moot
where the city adopted a new law “in direct response to the
district court’s” judgment); Jacobus v. Alaska, 338 F.3d
1095, 1103 (9th Cir. 2003) (explaining that a case is unlikely
to be moot because the state legislature repealed statutory
provisions “in response to the district court’s judgment”);
Carreras, 768 F.2d at 1047; see also Smith v. Univ. of
Washington, 233 F.3d 1188, 1194 (9th Cir. 2000)
(explaining that a case is less likely to be moot where a
legislative change occurs “because of the prodding effect of
[] litigation”); cf. Coral Constr., 941 F.2d at 928 (sufficient
to show that county would have the power to reenact an
ordinance in light of a district court’s judgment to defeat
mootness); but see Log Cabin Republicans v. United States,
658 F.3d 1162, 1166 (9th Cir. 2011) (case moot where
legislative change was likely in response to adverse district
court judgment).
For example, in Carreras, we reasoned that “repeal of
the objectionable language [does] not deprive the federal
289). Thus, the Court rejected the assertion made by the dissent in our
case that an appeal following legislative change is moot unless the
legislature is “virtually certain” to reenact the challenged legislation. Cf.
Dissent at 60–61.
Further, while a citation to Kremens is found in Northeastern
Florida, it is in the dissent’s contrary conclusion that the case was moot.
Id. at 671 (O’Connor, J., dissenting). The juxtaposition of City of
Mesquite in the seven-justice majority opinion with Kremens in the two-
justice dissent makes plain that our lodestar is City of Mesquite, not
Kremens.

-- 21 of 64 --

22 BD. OF TRUSTEES V. C HAMBERS
courts of jurisdiction to decide the constitutional question
because of the well-settled principle ‘that a defendant’s
voluntary cessation of a challenged practice does not deprive
a federal court of its power to determine the legality of the
practice.’” 768 F.2d at 1047 (quoting City of Mesquite,
455 U.S. at 289). As in City of Mesquite, the law’s repeal in
Carreras was in response to an adverse ruling by the district
court. Id. Similarly, in Jacobus, we explained that concerns
over the defendant “return[ing] to his old ways” applied with
“particular force [there because] the ‘voluntary cessation’
occurred only in response to the district court’s judgment.”
338 F.3d at 1103 (internal quotation marks omitted)
(emphasis added).
Where we have held that repeal of a law effectively
mooted a case, the repeal was generally not in response to an
adverse district court judgment. See, e.g., Smith, 233 F.3d at
1194 (challenged law repealed before the district court even
ruled on the law); Native Village of Noatak v. Blatchford,
38 F.3d 1501, 1511 (9th Cir. 1994) (“Here, the legislature
repealed § 29.89.050 before Noatak even initiated its lawsuit
. . . . This is not a case where a defendant voluntarily ceases
challenged action in response to a lawsuit.”); Matter of
Bunker Ltd. P’ship, 820 F.2d 308, 311 (9th Cir. 1987) (no
indication that Congress enacted sweeping amendments to a
comprehensive national regulatory scheme governing
hazardous waste in response to a discrete district court ruling
on a motion to quash a warrant); Burke v. Barnes, 479 U.S.
361, 363 (1987) (bill automatically expired during pendency
of appeal); U.S. Dep’t of Treasury, Bureau of Alcohol,
Tobacco & Firearms v. Galioto, 477 U.S. 556, 559 (1986)

-- 22 of 64 --

BD. OF TRUSTEES V. C HAMBERS 23
(Congress modified the law “as a matter of legislative
policy,” not in response to the district court’s decision).7
Unlike the constellation of cases that includes Mesquite,
Thalheimer, Jacobus, Carreras, and the instant matter, a
finding of mootness in Noatak and Smith would not have
removed the one impediment—the district court’s adverse
ruling—to the government repeating the allegedly unlawful
conduct. And while an adverse judicial ruling existed in
Bunker Ltd., Barnes, and Galioto, that ruling was not the
impetus for the subsequent legislative change. Accordingly,
the legislative changes in those cases more forcefully
indicated an affirmative, permanent intent to change course,
rather than a grudging acquiescence to a judicial command.
We hasten to note that our precedent is in some internal
tension on mootness-due-to-legislative-change. Two of our
cases in particular warrant discussion. In Chemical Products
& Distributors Ass’n v. Helliker, 463 F.3d 871 (9th Cir.
2006), we found that a legislative change sufficed to moot
the appeal. Id. at 875. There, plaintiffs challenged a
California law as preempted. Id. at 874. The district court
upheld the law, but while plaintiffs’ appeal was pending, the
California legislature repealed it and replaced it with new
legislation. Id. at 874–75. Critically, the new law entirely
“resolved [plaintiffs’] grievance” with the challenged law.
Id. at 876. We concluded that because “the law ha[d] been
7 The dissent focuses on the Noatak line of cases for the proposition
that legislative change generally suffices to moot an appeal. Dissent at
59. But it does not address our precedent—Thalheimer, Jacobus, and
Carreras, supra—going the other way. Our opinion gives effect to both
sets of cases by addressing a key distinguishing circumstance: while
Noatak and its progeny reflect a voluntary legislative change, the
Thalheimer line of cases involves legislative change in response to an
adverse district court judgment.

-- 23 of 64 --

24 BD. OF TRUSTEES V. C HAMBERS
‘sufficiently altered so as to present a substantially different
controversy from the one the District Court originally
decided,’ there [wa]s ‘no basis for concluding that the
challenged conduct [was] being repeated.’” Id. at 875
(quoting Ne. Fla. Chapter of Associated Gen. Contractors of
Am. v. City of Jacksonville, 508 U.S. 656, 662 n.3 (1993)).
Here, by contrast, the district court invalidated Nevada’s
law, and, as explained below, the legislation that replaced
SB 223 does not resolve all the problems the district court
identified with that law or all of Appellees’ bases for
challenging it.
If Helliker had ended its analysis there, then it would fit
neatly with our circuit’s precedent. But Helliker also found
that the voluntary cessation doctrine, which generally
precludes a finding of mootness, did not apply in that
particular case. Id. at 878. With due respect for our
colleagues, we find that Helliker departs from City of
Mesquite on this issue in the circumstance of legislative
change due to an adverse district court judgment. Helliker
got off on the right foot by invoking City of Mesquite as
controlling precedent on the voluntary cessation doctrine.
Id. at 877. But it then flipped City of Mesquite’s rule that the
government must show “certainty that a similar course”—
reenacting a repealed or revised law—“would not be pursued
. . . .” City of Mesquite, 455 U.S. at 289 (emphasis added).
Helliker instead declared that, as a general rule, it is actually
the party contesting mootness that must show it is “‘virtually
certain’” that the government would reenact the repealed
law.8 Helliker, 463 F.3d at 878 (quoting Noatak, 38 F.3d at
1510).
8 Helliker relied on this court’s decision in Noatak for this
proposition. But, as noted, Noatak dealt with a distinct circumstance:

-- 24 of 64 --

BD. OF TRUSTEES V. C HAMBERS 25
Helliker’s statement may be correct where legislative
change does not result from an adverse judicial ruling—as in
those cases discussed above and in Helliker itself—but its
articulation of a near-blanket rule collides with City of
Mesquite’s holding specific to the circumstance presented
there. We are, of course, bound to follow the rule established
by the Supreme Court, not inconsistent circuit precedent.
See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)
(lower court may not “disregard a ruling of the Supreme
Court”).
Helliker’s conflict with City of Mesquite had practical
effect years later in Log Cabin Republicans. There,
plaintiffs successfully challenged the military’s “Don’t Ask,
Don’t Tell” policy on constitutional grounds. Log Cabin
Republicans, 658 F.3d at 1165–66. While an appeal was
pending, Congress repealed the policy. Id. at 1165. The
court was therefore confronted with the question of whether
a legislative change in response to an adverse judicial ruling
mooted the appeal. Log Cabin Republicans held, on the
factual record in that case, that it did. Id. at 1166.
Log Cabin Republicans began by acknowledging that
“voluntary cessation” will ordinarily not moot a case, citing
City of Mesquite for this proposition. 658 F.3d at 1167. But
in an attempt to square the Supreme Court’s rule with
Helliker, the court forced a distinction between voluntary
cessation and “statutory amendment or repeal.” Id. The
court ultimately concluded that voluntary cessation does not
“‘deprive a federal court of its power to determine the
legality of the [challenged] practice,’” id. (quoting City of
Mesquite, 455 U.S. at 289), but that “[r]epeal [of legislation]
the legislative change there did not occur after an adverse judicial ruling.
Noatak, 38 F.3d at 1510.

-- 25 of 64 --

26 BD. OF TRUSTEES V. C HAMBERS
is ‘usually enough to render a case moot, even if the
legislature possesses the power to reeanact the statute after
the lawsuit is dismissed,’” id. (quoting Helliker, 463 F.3d at
878). But, of course, City of Mesquite was all about repeal
of legislation. Its reference to voluntary cessation plainly
included legislative repeal or amendment; it did not wrench
the two concepts apart and deposit them into separate camps.
We have previously recognized as much, explaining that
“repeal of [] objectionable language [does] not deprive the
federal courts of jurisdiction to decide the constitutional
question because of the well-settled principle ‘that a
defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine
the legality of the practice.’” Carreras, 768 F.2d at 1047
(quoting City of Mesquite, 455 U.S. at 289) (emphasis
added). Log Cabin Republicans’ contrary conclusion is
understandable because it relies on Helliker, which, as
discussed, is inconsistent with City of Mesquite where a
legislative change is in response to an adverse district court
judgment.9 We find more persuasive our cases that accord
with City of Mesquite.
9 Helliker is tenuous precedent on this narrow point for an additional
reason. In distinguishing Jacobus—which explained that the party
asserting mootness faces a heavy burden where a legislative repeal is in
response to an adverse judicial ruling—Helliker states: “The cases we
cited in Jacobus for a near categorical rule of mootness are cases of
statutory amendment. The examples we cited of continuing federal
adjudicatory power are of local government or administrative agency
repeal or amendment.” Helliker, 463 F.3d at 878. Helliker then
proceeded to cite Jacobus for this distinction. Id. But Jacobus squarely
falls into Helliker’s first category of cases; in Jacobus, the Alaska
legislature amended a statute, and Jacobus found that this fact counseled
against mootness. Jacobus, 338 F.3d at 1101–04. Thus, we find

-- 26 of 64 --

BD. OF TRUSTEES V. C HAMBERS 27
* * *
Having trudged through our admittedly murky
precedent, we conclude that, under City of Mesquite and the
majority of our circuit’s case law, legislative change in
response to an adverse judicial ruling is generally the type of
“voluntary cessation” that defeats mootness on appeal unless
the government can show with “certainty” that reenacting a
repealed or revised law will “not be pursued.”10 City of
Mesquite, 455 U.S. at 289; Jacobus, 338 F.3d at 1103;
Carreras, 768 F.2d at 1047. That is because where a
governmental entity acts under compulsion of a judicial
decree rather than on its own initiative, the risk of legislative
recidivism is acute once the judicial obstacle to legislative
action is removed.
To be sure, we do not foreclose the possibility that a
finding of mootness might be appropriate depending on the
factual circumstances of a particular matter. But we are
persuaded that, in the typical case, as here, asserting our
judicial power makes sense as a matter of judicial prudence.
Coral Constr., 941 F.2d at 927 (explaining that whether a
case is moot as a result of legislative change is a prudential
rather than a jurisdictional issue). On the one hand, we
exercise our jurisdiction—and obligation—to decide
discrete controversies that have already been litigated in a
judicial forum. Cf. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 191–92 (2000) (“[B]y the
time mootness is an issue, the case has been brought and
problematic Helliker’s assertion that our circuit has followed a “near
categorical rule of mootness” in the case of “statutory amendment.”
10 The government could meet this rigorous standard by, for
example, replacing the challenged portions of the prior law with new
legislation that eliminates the gravamen of a plaintiff’s complaint.

-- 27 of 64 --

28 BD. OF TRUSTEES V. C HAMBERS
litigated, often (as here) for years. To abandon the case at
an advanced stage may prove more wasteful than frugal.”).
On the other, we prevent the government from
circumventing our oversight role by repealing a law after an
adverse ruling in a lower court, benefitting from mootness
on appeal that results in vacatur of that ruling, and then
enacting a law that shares some or all of the prior law’s
invalidated provisions.
B.
With the table set, we address Nevada’s repeal of SB
223. We must decide whether Nevada repealed the law in
response to the district court’s adverse ruling and, if so, if it
can rebut the presumption that its appeal is not moot by
demonstrating that the legislature will certainly not reenact
the challenged provisions of that law.
Nevada plainly repealed SB 223 in response to the
district court’s ruling. Indeed, the preamble to the law that
replaced it, SB 338, expressly invokes the district court’s
decision as the reason for repealing and replacing SB 223.
Legislative Counsel’s Digest, SB 338, 2017 Leg., 2017 Reg.
Sess. (Nev. 2017). The preamble further asserts that the law
resolves the problems identified by the district court. It
explains that “[the] bill sets forth amendments that would
prevent the provisions of law amended in Senate Bill No.
223 from being preempted.” Id. Thus, under City of
Mesquite, Thalheimer, Jacobus, and Carreras, we will not
deem the appeal moot absent a showing that Nevada will not
reenact any aspect of SB 223. It can meet this burden if, for
example, SB 338 completely resolves the issues with
SB 223.
Far from meeting this demanding standard, Nevada fails
to show even an inclination to avoid all the pitfalls that

-- 28 of 64 --

BD. OF TRUSTEES V. C HAMBERS 29
bedeviled SB 223 in the district court. Indeed, SB 338
retains several of the challenged aspects of SB 223. Cf.
Maldonado v. Morales, 556 F.3d 1037, 1042 (9th Cir. 2009)
(deeming appeal moot where a legislative change
completely eliminated basis for plaintiff’s challenge);
Helliker, 463 F.3d at 876 (same); Qwest Corp. v. City of
Surprise, 434 F.3d 1176, 1181 (9th Cir. 2006) (same). For
example, SB 338 fails to remedy Appellees’ concern with
SB 223’s shortened limitations period. While the new law
expands the period from one to two years, that is still short
of the three-to-four-year pre-SB 223 period Appellees
argued was required to prevent “an irreconcilable conflict
with standard auditing practices authorized by ERISA.”
Further, SB 338 includes two notice provisions that are
similar to the notice provisions Appellees challenged in SB
223. While no longer expressly identifying ERISA plans,
SB 338 § 4 still requires claimants—including ERISA
trusts—to issue notices to contractors for any claims of
indebtedness. It also requires contractors to notify claimants
of new projects.11 These provisions track the delinquency
11 SB 338 § 4 provides that
1. Any potential claimant to indebtedness for labor
under NRS 608.150 shall, within 90 days after
receiving the written request described in subsection
2, provide to the original contractor, subcontractor or
other contractor who submitted the written request a
written notice that includes, without limitation:
(a) Any claim that is asserted under this section;
(b) The basis for any such claim; and
(c) Either:

-- 29 of 64 --

30 BD. OF TRUSTEES V. C HAMBERS
(SB 223 § 5) and commencement (SB 223 § 4(7)) notice
provisions of SB 223. Appellees argued in their merits brief
on appeal that state imposition of these administrative
burdens was preempted because they “frustrate ERISA’s
goal of nationwide uniformity by requiring benefit plans to
adopt Nevada-specific practices.” The district court agreed,
concluding that “even if SB[]223 did not expressly refer to
employee benefit plans it has a ‘connection with’ such plans
. . . .” Chambers, 168 F. Supp. 3d at 1324.
(1) The amount of any such claim;
(2) An explanation of what data is needed to
calculate the amount of any such claim; or
(3) A statement that no amount is due under
any such claim.
2. The written request required pursuant to subsection
1 must:
(a) Be submitted by an original contractor,
subcontractor or other contractor;
(b) Be directed to the claimant described in
subsection 1; and (c) Identify the:
(1) Original contractor, subcontractor or
other contractor;
(2) Dates that work commenced and ended or
is expected to end; and
(3) Nature and location of any project to
which the contract applies.
SB 338 § 4 (emphasis added).

-- 30 of 64 --

BD. OF TRUSTEES V. C HAMBERS 31
SB 338 § 4 does not address Appellees’ or the district
court’s concerns and Appellees do not assert in their motion
to dismiss this appeal that SB 338 resolves them. Instead,
they acknowledge only that the “language about which
Appellees complained [in SB 223] has been removed from
Nevada’s statutes,” and that SB 223 has been “altered by the
enactment of SB 338,” and otherwise “change[d].” Such
anodyne descriptions of an undisputed revision to the law
fall short of asserting that the legal issue—preemption—has
been resolved. Cf. Maldonado, 556 F.3d at 1042; Helliker,
463 F.3d at 876; Qwest, 434 F.3d at 1181. Indeed, while SB
338 is not before us in this appeal, the fact that its provisions
revive some of the challenged aspects of the now-repealed
law is prima facie evidence that Nevada has not met its
burden of demonstrating mootness. See Assoc. General
Contractors, 508 U.S. at 661–62 (case not moot where new
legislation retained some challenged aspects of repealed
legislation); see also City of Mesquite, 455 U.S. at 289.
Accordingly, we hold that the Nevada legislature’s
enactment of a statute that repeats some of the challenged
aspects of SB 223 is conclusive evidence of its failure to
show that it would not reenact any challenged part of SB
223. See id.
III.
Having determined that the State’s appeal is not moot,
we turn to the merits. Appellees brought a facial challenge
to SB 223 seeking a declaration that SB 223 is
unconstitutional in all circumstances. Our review therefore
focuses on whether SB 223 is per se unlawful. Cal. Coastal
Comm’n v. Granite Rock Co., 480 U.S. 572, 580 (1987).
We review the district court’s grant of summary
judgment de novo. Asarco LLC v. Atl. Richfield Co.,
866 F.3d 1108, 1118 (9th Cir. 2017). “[V]iewing the

-- 31 of 64 --

32 BD. OF TRUSTEES V. C HAMBERS
evidence in the light most favorable to the nonmoving
party,” we must decide “whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law.” Curly v. City of N. Las
Vegas, 772 F.3d 629, 631 (9th Cir. 2014). “We may affirm
a grant of summary judgment on any ground supported by
the record, even one not relied upon by the district court.”
Id.
IV.
A.
“Congress enacted ERISA, ‘to promote the interests of
employees and their beneficiaries in employee benefit plans’
and to ‘eliminate the threat of conflicting or inconsistent
State and local regulation of employee benefit plans.’”
Operating Eng’rs Health & Welfare Trust Fund v. JWJ
Contracting Co., 135 F.3d 671, 676 (9th Cir. 1998) (quoting
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983)). To
that end, Congress included an express preemption provision
providing that “ERISA ‘supersede[s] any and all State laws
insofar as they may now or hereafter relate to any employee
benefit plan . . . .’”12 Id. (quoting ERISA § 514(a),
29 U.S.C. § 1144(a)).
ERISA’s preemptive scope is nearly all-encompassing if
read literally. The Supreme Court has observed that “[i]f
‘relate to’ were taken to extend to the furthest stretch of its
indeterminacy, then for all practical purposes pre-emption
12 The term “employee welfare benefit plan” is broadly defined to
mean “any plan, fund, or program . . . established or maintained by an
employer or by an employee organization . . . for the purpose of
providing for its participants or their beneficiaries” various health and
other benefits. 29 U.S.C. § 1002(1).

-- 32 of 64 --

BD. OF TRUSTEES V. C HAMBERS 33
would never run its course.” Travelers, 514 U.S. at 655.
Such is a result “no sensible person could have intended.”
Cal. Div. of Labor Standards Enforcement v. Dillingham
Constr., N.A., Inc., 519 U.S. 316, 336 (1997) (Scalia, J.,
concurring). Thus, “the need for workable standards has led
the Court to reject ‘uncritical literalism’ in applying the
clause.” Gobeille, 136 S. Ct. at 943 (2016) (quoting
Travelers, 514 U.S. at 656).
Understanding the current state of ERISA preemption
law requires some historical context. At one time the Court
gave the term “relate to” “expansive” effect. Gobeille,
136 S. Ct. at 943; Dist. of Columbia v. Greater Wash. Bd. of
Trade, 506 U.S. 125, 129 (1992) (citing Black’s Law
Dictionary 1288 (6th ed. 1990)). Because “everything is
related to everything else,” such a literal interpretation risked
snaring a host of state laws that did not target ERISA’s field
of federal concern. See Dillingham, 519 U.S. at 335 (Scalia,
J., concurring). Under that approach, a “state statute’s
express reference to ERISA plans suffic[ed] to bring it
within the federal law’s pre-emptive reach.” Mackey v.
Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 830
(1988). Moreover, a state law was preempted “‘even if the
law [wa]s not specifically designed to affect [ERISA] plans,
or the effect [wa]s only indirect.’” Greater Wash., 506 U.S.
at 130 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S.
133, 139 (1990)).
Since Greater Washington, the Supreme Court has
narrowed ERISA’s preemptive reach, as we have
recognized. Golden Gate Restaurant Ass’n v. City and Cnty.
of San Francisco, 546 F.3d 639, 654 (9th Cir. 2008) (“We
read Travelers as narrowing the Court’s interpretation of the
scope of § 514(a).”); S. Cal. IBEW-NECA Trust Funds v.
Standard Indus. Elec. Co., 247 F.3d 920, 925 (9th Cir. 2001)

-- 33 of 64 --

34 BD. OF TRUSTEES V. C HAMBERS
(“Since the Supreme Court narrowed the scope of ERISA
preemption in Travelers . . . .”). Instead of interpreting
“relate to” literally, the Court has incorporated general
principles of preemption analysis. See Travelers, 514 U.S.
at 654–55; John Hancock Mut. Life Ins. Co. v. Harris Trust
and Sav. Bank, 510 U.S. 86, 99 (1993); Boggs, 520 U.S. at
841.
First, the Court has applied the presumption that a state
law directed at an area of traditional state concern is not
preempted. Travelers, 514 U.S. at 654–55. Relying on
preemption cases outside the ERISA context, the Court has
explained that “where federal law is said to bar state action
in fields of traditional state regulation,” “the ‘assumption [is]
that the historic police powers of the States [are] not to be
superseded by the Federal Act unless that [i]s the clear and
manifest purpose of Congress.’” Id. at 655 (quoting Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also
Golden Gate, 546 F.3d at 647–48. Indeed, we have observed
that “the Court has come to recognize that ERISA pre-
emption must have limits when it enters areas traditionally
left to state regulation.” JWJ, 135 F.3d at 677.
Second, the Supreme Court has incorporated principles
of field and conflict preemption. See John Hancock,
510 U.S. at 99 (“discern[ing] no solid basis for believing that
Congress, when it designed ERISA, intended fundamentally
to alter traditional preemption analysis”). Courts assess
whether the state “‘law stands as an obstacle to the
accomplishment of the full purposes and objectives of
Congress,’” or targets a “field[] of traditional state
regulation.” Id. (quoting Silkwood v. Kerr-McGee Corp.,
464 U.S. 238, 248 (1984)); Egelhoff v. Egelhoff, 532 U.S.
141, 150 (2001) (invalidating a law that “directly conflicts
with ERISA’s requirements”); Boggs, 520 U.S. at 841

-- 34 of 64 --

BD. OF TRUSTEES V. C HAMBERS 35
(assessing whether “state law conflicts with the provisions
of ERISA or operates to frustrate its objects”); Travelers,
514 U.S. at 655.
Whether a state law targets a “field[] of traditional state
regulation,” see Travelers, 514 U.S. at 655, is a
quintessential field preemption inquiry, and whether it
“stands as an obstacle” to ERISA’s “purposes and
objectives,” see John Hancock, 510 U.S. at 99, speaks to
conflict preemption. See Dillingham, 519 U.S. at 336
(Scalia, J., concurring) (opining that “the ‘relate to’ clause of
the pre-emption provision is meant, not to set forth a test for
pre-emption, but rather to identify the field in which ordinary
field pre-emption applies—namely, the field of laws
regulating ‘employee benefit plan[s] described in section
1003(a) of this title and not exempt under section 1003(b) of
this title’” (quoting 29 U.S.C. § 1144(a)). As Justice Scalia
explained, a contrary approach would read out of ERISA’s
preemption provision any limitation on its scope: “if [the
preemption provision] is interpreted to be anything other
than a reference to our established jurisprudence concerning
conflict and field pre-emption[,] [it] has no discernible
content that would not pick up every ripple in the pond.”
Egelhoff, 532 U.S. at 153 (Scalia, J., concurring); accord
Egelhoff, 532 U.S. at 153 (Breyer, J., dissenting) (explaining
that the Court’s “more recent ERISA cases are consistent
with” an “approach” of “apply[ing] normal conflict pre-
emption and field pre-emption principles”).
Accordingly, under the modern approach a state law is
not preempted merely because it has a literal “connection
with” an ERISA plan. Cf. Greater Washington, 506 U.S. at
129–30. Instead, the law must actually “‘govern[] . . . a
central matter of plan administration’ or ‘interfere[] with

-- 35 of 64 --

36 BD. OF TRUSTEES V. C HAMBERS
nationally uniform plan administration.’”13 Gobeille, 136 S.
Ct. at 943 (emphasis added) (quoting Egelhoff, 532 U.S. at
148). Similarly, a state law is no longer preempted simply
because it makes literal “reference to” an ERISA plan. Cf.
Greater Washington, 506 U.S. at 130. Instead, it must both
identify ERISA plans and “‘act[] immediately and
exclusively upon ERISA plans’” or make “‘the existence of
ERISA plans . . . essential to the law’s operation.’”
Gobeille, 136 S. Ct. at 943 (emphasis added) (quoting
Dillingham, 519 U.S. at 325). And because, under a field
preemption analysis ERISA preemption extends only to the
limits of ERISA’s regulatory domain, a state law does not
impermissibly “act[] upon” an ERISA plan if it targets an
area of traditional state concern, unless it poses an obstacle
to ERISA’s objectives or invades the federal field. See
Travelers, 514 U.S. at 655, 661 (“nothing in the language of
[ERISA] or the context of its passage indicates that Congress
chose to displace general healthcare regulation, which
historically has been a matter of local concern”); Egelhoff,
532 U.S. at 151–52; Egelhoff, 532 U.S. at 152–53 (Scalia, J.,
concurring).
Having set forth the pertinent analytical framework, we
turn to the scope of ERISA’s regulation of ERISA plans to
determine the extent of the federal field. An ERISA “plan”
is a “set of rules that define the rights of a beneficiary and
provide for their enforcement. Rules governing collection
of premiums, definition of benefits, submission of claims,
13 A state law also has 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). That basis for preemption is not
implicated in this case.

-- 36 of 64 --

BD. OF TRUSTEES V. C HAMBERS 37
and resolution of disagreements over entitlement to services
are the sorts of provisions that constitute a plan.” Pegram v.
Herdrich, 530 U.S. 211, 223 (2000). To those ends, federal
regulation of ERISA plans covers four main areas: a plan’s
fiduciary obligations to plan members, and reporting,
disclosure, and recordkeeping requirements. Gobeille,
136 S. Ct. at 944; Travelers, 514 U.S. at 650, 661. Plans
must “file an annual report with the Secretary of Labor”
detailing a “financial statement listing assets and liabilities
. . . and . . . receipts and disbursements of funds.” Gobeille,
136 S. Ct. at 944. They must also “keep detailed records so
compliance with ERISA’s reporting and disclosure
requirements may be ‘verified, explained, or clarified, and
checked for accuracy and completeness.’” Id. at 944–45
(quoting 29 U.S.C. § 1027). If a state law encroaches on
these areas of federal concern, it is preempted. Conversely,
state laws that do not target these ERISA functions, nor
“regulate[] a key fact of plan administration,” are likely not
preempted. See Travelers, 614 U.S. at 655; Egelhoff,
532 U.S. at 151–52; Egelhoff, 532 U.S. at 152–53 (Scalia, J.,
concurring); Rutledge v. Seyfarth, Shaw, Fairweather &
Geraldson, 201 F.3d 1212, 1217 (9th Cir. 2000).
We proceed next to determine whether the presumption
against preemption applies to SB 223. Because we conclude
that the answer is “yes”, we then must determine whether
that presumption is rebutted by a showing that SB 223
targets ERISA’s field of federal concern or poses an obstacle
to ERISA’s objectives.
B.
Debt collection is an area of traditional state regulation,
and so the presumption against preemption applies to state
laws regulating such activities. See Mackey, 486 U.S. at 834;
Travelers, 514 U.S. at 654–55. Indeed, “state-law methods

-- 37 of 64 --

38 BD. OF TRUSTEES V. C HAMBERS
for collecting money judgments must, as a general matter,
remain undisturbed by ERISA.” Id.; see also JWJ, 135 F.3d
at 678 (state bonding law allowing ERISA trusts to enforce
payment bonds against employers’ sureties was not
preempted because the law “regulate[d] in an area that
Congress has traditionally left to the states”). Nevada has
regulated the particular type of debt collection practice
here—vicarious liability for construction debts—since the
1930s.
SB 223 modified Nevada’s vicarious liability statute,
Nev. Rev. Stat. § 608.150, with six amendments. Taken
together, the amendments limited general contractors’
vicarious liability for subcontractors’ debts, while expanding
information sharing to reduce the risk of delinquencies in the
first place. SB 223’s various components are therefore all of
a piece regulating the exposure of general contractors—who
are not parties to ERISA plans—to vicarious liability for
subcontractors’ debts. And because debt collection is a
traditional state function, the presumption against
preemption applies. Accordingly, we will deem SB 223
preempted only if it plainly regulates in the “areas with
which ERISA is expressly concerned—reporting,
disclosure, fiduciary responsibility, and the like,”
Dillingham, 519 U.S. at 330 (internal quotation marks
omitted), “regulates a key facet of plan administration,”
Gobeille, 136 S. Ct. at 946, or poses an obstacle to the
accomplishment of ERISA’s objectives, John Hancock,
510 U.S. at 99.
C.
Appellees attack SB 223 on several fronts. First, they
argue that because debt collection is part of ERISA trusts’
fiduciary obligations to employee members, SB 223 intrudes
on a key ERISA function. From this premise Appellees

-- 38 of 64 --

BD. OF TRUSTEES V. C HAMBERS 39
reason that SB 223 governs a central matter of plan
administration and therefore has an impermissible
“connection with” ERISA plans. Second, and relatedly,
Appellees assert that SB 223 acts exclusively on ERISA
plans by repeatedly singling out health or welfare funds and
the like, thereby making an impermissible “reference to”
ERISA plans. Third, Appellees refute the State’s assertion
that regulation of ERISA trusts is not coterminous with
regulation of ERISA plans, only the latter of which is subject
to ERISA preemption.14
D.
We turn our attention to assessing whether SB 223
transgresses any of the factors governing ERISA
preemption. Under the first factor, ERISA preempts SB 223
if it has an “impermissible connection with ERISA plans,
meaning a state law that governs . . . a central matter of plan
administration or interferes with nationally uniform plan
administration.” Gobeille, 136 S. Ct. at 943 (internal
quotation marks omitted) (emphasis added). Appellees
insist that SB 223 regulates ERISA plans by targeting debt
collection, which they assert is a “facet of plan
administration.” See Gobeille, 136 S. Ct. at 946.
Appellees’ assertion rests on a flawed premise: that
regulations affecting ERISA plan administrators are, ipso
facto, regulations of ERISA plans themselves. We long ago
rejected this conflation. In Lane v. Goren, 743 F.2d 1337,
1338–39 (9th Cir. 1984), an ERISA trust challenged a state
14 This argument is essentially a repackaging of Appellees’ first
contention: because debt collection is one way that ERISA trusts execute
their fiduciary obligations, and because ERISA plans are administered
by the trusts, Appellees reason there exists no meaningful distinction
between trusts and plans.

-- 39 of 64 --

40 BD. OF TRUSTEES V. C HAMBERS
law prohibiting employment discrimination by, among other
entities, ERISA trusts. A former trust employee brought an
action alleging unlawful termination under state law, and the
trust defended on the ground that the law was preempted by
ERISA. Id. at 1339. The trust argued that the law “will
affect [its] benefit plan by increasing [its] cost of doing
business”—presumably by requiring it to pay damages to
aggrieved employees—and thereby affected its fiduciary
duty to manage plan funds. See id. at 1340. We rejected the
trust’s argument, explaining that to be preempted, a state law
must “reach in one way or another the ‘terms and conditions
of employee benefit plans.’” Id. at 1339 (quoting 29 U.S.C.
§ 1144(c)(2)). The law in Goren did not cross that line
because it regulated ERISA trusts as employers, not the
plans they administered. Id. at 1339–41.
Similarly, in JWJ, we explained that even in the pre-
Travelers era, the inquiry was:
Is the state telling employees how to write
their ERISA plans, or conditioning some
requirement on how they write their ERISA
plans? Or is it telling them that regardless of
how they write their ERISA plans, they must
do something else outside and independently
of the ERISA plans? If the latter . . . there is
no preemption.
JWJ, 135 F.3d at 679 (internal quotation marks omitted).
We conducted a similar analysis in Southern California
IBEW-NECA. There, we assessed whether ERISA
preempted a California law allowing ERISA trusts to collect
money owed for work performed through stop notice and
payment bond remedies. 247 F.3d at 923. While the law
gave ERISA trusts a tool to satisfy their fiduciary obligation

-- 40 of 64 --

BD. OF TRUSTEES V. C HAMBERS 41
to employees—an area of federal concern under ERISA—
we held that it was not preempted because it did not invade
any area of federal regulation of ERISA plans. See id. at
925. We found determinative that the bond remedy
does not require the establishment of a
separate benefit plan, and imposes no new
reporting, disclosure, funding, or vesting
requirements for ERISA plans. California’s
statute similarly does not tell employers how
to write ERISA benefit plans or how to
determine ERISA beneficiary status, and
does not condition requirements on how
ERISA benefit plans are written.
Id. The law in Southern California IBEW-NECA is
strikingly similar to SB 223 in relevant part. Both implicate
ERISA plans’ fiduciary obligations, but neither targets the
type of “reporting, disclosure, funding, or vesting
requirements” regulated by ERISA, interferes with the terms
of an ERISA plan, or otherwise “regulates a key facet of plan
administration.” See id.; Gobeille, 136 S. Ct. at 946.
Mackey, a case relied upon by the district court and
Appellees, further supports this distinction. There, the
Supreme Court expressly rejected a claim of preemption
against a generally applicable state garnishment law that
undercut ERISA trusts’ ability to maximize member
benefits. 486 U.S. at 831–32. The Court reasoned that
“Congress did not intend to forbid the use of state-law
mechanisms of executing judgments against ERISA welfare
benefit plans, even when those mechanisms prevent plan
participants from receiving their benefits.” Id. (emphasis
added). The Court explained that, notwithstanding that the
state law “obviously affect[ed] and involve[ed] ERISA plans

-- 41 of 64 --

42 BD. OF TRUSTEES V. C HAMBERS
and their trustees,” that was of no moment because the type
of action—a “run-of-the-mill state-law claim[]”—was a
typical “state-law method[] for collecting money
judgments” left unregulated by ERISA. Id. at 833–34. In
sum, Goren, JWJ, Southern California IBEW-NECA, and
Mackey stand for the proposition that if a state law regulates
or affects plan administrators in a way that falls outside
ERISA’s regulatory reach, it does not have an impermissible
“connection with” ERISA plans.
In contrast, where courts have found an impermissible
“connection with” an ERISA plan, the state law operated
directly on an aspect of plan administration regulated by
ERISA. In Gobeille, the Court addressed a Vermont law
“requiring disclosure of payments [by ERISA plans] relating
to health care claims and other information relating to health
care services.” 136 S. Ct. at 940. In so doing, the law
targeted ERISA plan recordkeeping and reporting
requirements. Id. at 945. Because ERISA regulates those
same requirements, the Court found that the law “intrude[d]
upon ‘a central matter of plan administration’ and
‘interfere[d] with nationally uniform plan administration.’”
Id. (quoting Egelhoff, 532 U.S. at 148). The law therefore
amounted to “a direct regulation of a fundamental ERISA
function” and was preempted. Id. at 946 (emphasis added).
Similarly, in Shaw, the Court deemed preempted a New
York law that “prohibit[ed] employers from structuring their
employee benefit plans in a manner that discriminates on the
basis of pregnancy, and [New York’s] Disability Benefits
Law, which requires employers to pay employees specific
benefits.” 463 U.S. at 97. And in FMC Corp. v. Holliday,
498 U.S. 52, 60 (1990), the Court struck down a
Pennsylvania law that “prohibit[ed] plans from being
structured in a manner requiring reimbursement in the event

-- 42 of 64 --

BD. OF TRUSTEES V. C HAMBERS 43
of recovery from a third party” and also “require[d] plan
providers to calculate benefit levels” based on a specified
formula.
The laws in Shaw and FMC Corp. were preempted
because they “‘mandated employee benefit structures or
their administration’”—i.e., they regulated the core
operations of the plans themselves. See Dillingham,
519 U.S. at 328 (quoting Travelers, 514 U.S. at 658). Put
another way, the laws impermissibly “t[old] employers how
to write ERISA benefit plans” or otherwise imposed “State
. . . regulation of employee benefit plans.” Shaw, 463 U.S.
at 99 (internal quotation marks omitted); S. Cal. IBEW-
NECA, 247 F.3d at 925. SB 223 does neither of these things.
Instead, it targets ERISA plans’ debt collection practices by
defining the circumstances under which third party general
contractors may be held vicariously liable for
subcontractors’ debts. SB 223 neither invades the federal
field occupied by ERISA nor poses an obstacle to ERISA’s
goal of national uniformity in plan administration.
SB 223 also lacks a “connection with” ERISA plans for
a more fundamental reason: holding otherwise would
constitutionalize a state entitlement that Nevada was under
no obligation to provide in the first place. Appellees argue
that Nevada is precluded from limiting their rights under
Nevada’s vicarious liability law, but they fail to appreciate
that SB 223 trims a state-conferred entitlement rather than
infringes an ERISA-guaranteed right.15 Appellees
15 Appellees suggest that one of SB 223’s damages provisions
(§ 1(2)) disallows the types of damages guaranteed by ERISA—namely,
interest, liquidated damages, attorney’s fees, and costs. See 29 U.S.C.
§ 1132(g)(2). But § 1132(g)(2) and its companion provision, § 1145,
apply to actions against employers who are “obligated to make

-- 43 of 64 --

44 BD. OF TRUSTEES V. C HAMBERS
essentially view vicarious liability as a one-way ratchet:
because Nevada offers them an entitlement today, it would
be unconstitutional for Nevada to take it away tomorrow.
That is not the law. States do not forfeit their authority over
matters of traditional state concern by exercising that power
in the first place.
* * *
SB 223 does not “govern[] . . . a central matter of plan
administration,” “interfere[] with nationally uniform plan
administration,” or target the types of “reporting, disclosure,
[and] fiduciary responsibilit[ies]” regulated by ERISA. See
Gobeille, 136 S. Ct. at 943 (internal quotation marks
omitted); Dillingham, 519 U.S. at 330 (internal quotation
marks omitted). Instead, it targets an area of traditional state
concern—debt collection practices. The presumption
against preemption therefore applies. And because
regulating the vicarious liability of third party general
contractors does not target any aspect of the federal field
occupied by ERISA nor poses an obstacle to ERISA’s
objectives, SB 223 does not have an impermissible
“connection with” ERISA plans and is not preempted on this
theory.
E.
Appellees may yet prevail if SB 223 makes an
impermissible “reference to” ERISA plans by “act[ing]
contributions to a multiemployer plan”—i.e., subcontractors who are
parties to ERISA plans. Id. §§ 1145, 1132(g)(2). These provisions do
not purport to regulate recovery against third parties in actions brought
under state law. The limited nature of the federal guarantee bolsters our
conclusion that actions against non-parties to an ERISA plan brought
under state vicarious liability law fall outside ERISA’s regulatory field.

-- 44 of 64 --

BD. OF TRUSTEES V. C HAMBERS 45
immediately and exclusively upon ERISA plans.” Gobeille,
136 S. Ct. at 943 (internal quotation marks omitted). Of the
six amendments under SB 223, four mention ERISA plans:
the commencement notice (§ 4(7)), pre-lien notice (§ 4(8)),
delinquency notice (§ 5), and one of the damages (§ 1(2))
amendments. Recall that § 1(2) limits vicarious liability for
general contractors by excluding damages in the form of,
among other things, attorney’s fees; § 4(7) imposes a notice
requirement on contractors when they commence a project;
§ 4(8) requires ERISA trusts to provide notice of a right to
lien against general contractors; and § 5 requires ERISA
administrators to notify a general contractor of a delinquency
by a subcontractor party to an ERISA plan within 60 days.
i.
That these four amendments mention ERISA plans is not
determinative of preemption in the post-John Hancock, post-
Travelers era. In fact, “[t]he Supreme Court . . . has never
found a statute to be preempted simply because its text
included the word ERISA or explicitly mentioned a covered
employee welfare benefit plan.” WSB Elec., Inc. v. Curry,
88 F.3d 788, 793 (9th Cir. 1996); see also NYS Health Maint.
Org. Conference v. Curiale, 64 F.3d 794, 799–800 (2d Cir.
1995) (holding that a state law does not make an
impermissible “reference to” an ERISA plan if it “merely
‘make[s] mention’ or ‘allude[s]’ to ERISA plans”); Thiokol
Corp. v. Roberts, 76 F.3d 751, 759–60 (6th Cir. 1996)
(same). “Rather than focusing on the text of the statute, we
. . . look at how it actually operates.” S. Cal. IBEW-NECA,
247 F.3d at 929. As explained in Part IV.A, supra, under the
Court’s modern approach to ERISA preemption, a state law
impermissibly “acts upon” an ERISA plan only if it
“mentions or alludes to ERISA plans, and has some effect
on the referenced plans,” WSB Elec., 88 F.3d at 793

-- 45 of 64 --

46 BD. OF TRUSTEES V. C HAMBERS
(emphasis in original), by encroaching on an area of federal
regulation, see Travelers, 514 U.S. at 654–55; John
Hancock, 510 U.S. at 99. A state law that merely mentions
an ERISA plan but whose regulatory focus avoids ERISA
plans’ rights or duties under federal law is, by contrast, not
preempted. See Travelers, 514 U.S. at 654–55; WSB Elec.,
88 F.3d at 793.
ii.
Of the four amendments that mention ERISA plans,
Appellees’ arguments regarding §§ 1(2) and 4(7) are easily
dispatched. Section 1(2) mentions ERISA plans but does not
do so “exclusively,” as is required for the provision to make
an impermissible “reference to” those plans. Gobeille,
136 S. Ct. at 943. Indeed, § 1(2) mentions ERISA plans
inclusive of “any other law or agreement” or “any other plan
for the benefit of employees” under which a subcontractor
may incur labor indebtedness.16
Section 1(2) is not preempted for an additional and
related reason: it does not “act upon” ERISA plans. Its focus
is elsewhere—namely, the scope of general contractors’
vicarious liability. See WSB Elec., 88 F.3d at 793 (state
prevailing wage law not preempted where it referenced
ERISA plans in furtherance of regulating something else:
employers’ ability to take a wage credit for contributions
made to ERISA plans).
16 To be sure, the pre-amendment version of the other damages
provision, § 3(2), also mentions ERISA plans, but the amendment itself
does not, and Appellees do not challenge the pre-SB 223 version of the
law. Even if they did, § 3(2) references “express trust fund[s]” inclusive
of any other entity to which an employee’s compensation must be paid,
including laborers themselves.

-- 46 of 64 --

BD. OF TRUSTEES V. C HAMBERS 47
Section § 4(7) similarly does not target ERISA plans.
Instead, it regulates contractors. The amendment provides
that a contractor who “participat[es] in a health or welfare
fund or any other plan for the benefit of employees is
required to notify such fund or plan of the name and location
of the project so that the fund or plan may protect potential
lien rights under [Nevada law].” In so doing, § 4(7)
indirectly affects ERISA plans, which are on the receiving
end of the notice contractors must provide, but it steers clear
of regulating the plans themselves. See id. Indeed, § 4(7)
imposes no obligations on ERISA plans to do anything with
the information they receive from contractors.
Sections 4(8) and 5 present a closer question because
they expressly identify ERISA plans and apply directly to
the trusts that administer them. Section 4(8) provides that,
should a trust seek to hold a general contractor vicariously
liable for subcontractor debts, it must first give notice to the
contractor that it has an interest in a project. And § 5
conditions future actions for vicarious liability on a trust’s
prior timely notification of a delinquency. But while a state
law’s mention of ERISA plans may be probative that it “acts
upon” those plans, it is not conclusive. The pertinent inquiry
focuses instead on “how [the law] actually operates.” S. Cal.
IBEW-NECA, 247 F.3d at 929; WSB Elec., 88 F.3d at 793;
Thiokol, 76 F.3d at 759; NYS Health Maint., 64 F.3d at 799–
800. Indeed, while §§ 4(8) and 5 identify ERISA plans, their
target is an area of traditional state concern: debt collection
practices by plan administrators. Further, the amendments
avoid the federal field occupied by ERISA. They do not
“reach in one way or another the ‘terms and conditions of
employee benefit plans,” Goren, 743 F.2d at 1339 (quoting
29 U.S.C. § 1144(c)(2)), nor regulate “reporting, disclosure,
and recordkeeping requirements for welfare benefit plans,”
Gobeille, 136 S. Ct. at 944, nor affect the scope and contours

-- 47 of 64 --

48 BD. OF TRUSTEES V. C HAMBERS
of the trusts’ fiduciary obligations to manage plan funds in
the interests of employees, Travelers, 514 U.S. at 650, 661.
Put another way, if Nevada were to scrap its vicarious
liability statute root and branch, leaving Appellees with no
recourse at all against general contractors, federal regulation
of ERISA plans would be unaffected. The plans would have
the same “reporting, disclosure, and recordkeeping
requirements” as before, the same “terms and conditions” as
before, and the same fiduciary obligations as before.
Nothing would change except that Appellees would no
longer enjoy a state-conferred entitlement to collect debts
from third parties who are not signatories to an ERISA plan.
As we have previously explained, “a statute ‘refers to’ an
ERISA plan and is preempted if it mentions or alludes to
ERISA plans, and has some effect on the referenced plans.”
WSB Elec., 88 F.3d at 793 (emphasis in original); see also
Thiokol, 76 F.3d at 760 (“a statute that refers to a[n] [ERISA]
plan but does not attempt to affect such a plan should not be
pre-empted”); cf. 29 U.S.C. §§ 1132(g)(2); 1145
(establishing a federal right to collect debts from parties to
an ERISA plan, but saying nothing about a right to collect
from third parties that are not “obligated to make
contributions to a multiemployer plan”).
Section 4(8) is not preempted for an additional reason.
That amendment provides that ERISA plans are subject to
the same pre-lien notice requirements as other entities and
individuals who are not on-site workers. Before SB 223’s
enactment on-site workers and ERISA plans were exempt
from the pre-lien notice requirement, but engineers,
machinists, architects, and others involved in a project were
not. Hartford Fire Ins., 578 F.3d at 1128 (citing Hartford
Fire Ins. Co. v. Trs. of Constr. Indus., 208 P.3d 884, 886
(Nev. 2009)). Singling out ERISA plans under SB 223 was

-- 48 of 64 --

BD. OF TRUSTEES V. C HAMBERS 49
therefore necessary to effectuate a policy that equalizes the
notice requirement across all those who are not actually
laying foundations and stacking bricks. With SB 223,
Nevada’s vicarious liability law no longer “exclusively”
exempts ERISA plans. See Gobeille, 136 S. Ct. at 943 (law
impermissibly makes “reference to” an ERISA plan if it
“acts . . . exclusively upon ERISA plans” (emphasis added)).
It therefore rectifies an aspect of Nevada’s vicarious liability
law that had applied “exclusively” to ERISA plans.
Finally, the existence of ERISA plans is not “essential to
[SB 223’s] operation”—another basis for discerning an
impermissible “reference to” ERISA plans. Gobeille, 136
S. Ct. at 943. The law operates to limit general contractors’
vicarious liability. SB 223 §§ 1(2) & 3(2). Those limits
apply regardless of whether ERISA trusts, workers, or the
State brings an action under Nev. Rev. Stat. § 608.150 to
recover subcontractors’ debts. See, e.g., Lemus v. Burnham
Painting & Drywall Corp., No. 2:06-CV-1158-RCJ-PAL,
2007 WL 2669772, at *1–2 (D. Nev. Sept. 4, 2007) (example
of workers bringing suit against a general contractor under
Nev. Rev. Stat. § 608.150). And while §§ 4(8) and 5
specifically identify ERISA plans, those provisions are not
necessary to the operation of SB 223’s limitation on
damages in actions brought by entities other than ERISA
trusts. Accordingly, on the dispositive question of whether
SB 223 would still have an effect in the absence of ERISA
plans, the answer is unequivocally “yes”.
iii.
Appellees’ reliance on two cases, Mackey and Greater
Washington, is misguided. Earlier in this opinion we
discussed Mackey’s holding that a generally applicable
Georgia garnishment statute was not preempted. But
Mackey also held that a related state garnishment statute that

-- 49 of 64 --

50 BD. OF TRUSTEES V. C HAMBERS
applied exclusively to ERISA plans was preempted. Mackey,
486 U.S. at 830. That law barred garnishment of “funds or
benefits of an . . . employee benefit plan or program subject
to . . . ERISA.” Id. at 828 (internal quotation marks and
adjustments omitted). The Court observed that the law
“expressly refer[red] to—indeed solely applie[d] to—
ERISA employee benefit plans.” Id. at 829. Viewing this
statement in isolation it appears that preemption resulted
from the mere mention of ERISA plans. But the Court also
found that the law “relate[d] to” ERISA plans because it was
“specifically designed to affect employee benefit plans.” Id.
(internal quotation marks omitted) (emphasis added).
Appellees also look to Greater Washington for support.
There, the Court invalidated a District of Columbia law
requiring employers who provided health insurance
coverage through ERISA benefit plans to also provide that
coverage if an employee was receiving workers’
compensation benefits. 506 U.S. at 128–30. Thus, like the
law in Mackey, the District of Columbia statute attempted to
overlay state regulation onto a feature of plan administration.
SB 223, by contrast, targets no aspect of plan administration.
To be sure, Mackey and Greater Washington deploy
sweeping language suggesting that a state law need only
mention an ERISA plan to be preempted. For example,
Greater Washington states that the District’s law
“specifically refers to welfare benefit plans regulated by
ERISA and on that basis alone is pre-empted.” Id. at 130.
To the extent those decisions articulate a capacious view of
ERISA preemption, it is doubtful they remain good law in
the post-John Hancock, post-Travelers era. We instead look
to the Court’s and our own more recent precedent in
discerning the parameters of an impermissible “refer[ence]
to” ERISA plans.

-- 50 of 64 --

BD. OF TRUSTEES V. C HAMBERS 51
Indeed, our circuit’s case law compels the conclusion
that SB 223’s amendments do not make an impermissible
“reference to” ERISA plans. In WSB Electric, we
considered whether a California prevailing wage law that
made literal reference to ERISA plans was preempted.
88 F.3d at 792–93. The law required employers to pay a
specified minimum wage, which could be satisfied through
a mix of cash payments and benefits contributions. Id. at
791. But it also allowed employers to take a credit for
benefits contributions—including those made to ERISA
plans—up to a specified amount. Id. If they contributed
“excess” benefits, they still could not take a credit for
anything over the statutory minimum. Id. The question
presented was whether the law made “reference to” ERISA
plans. Id. at 793.
We began our analysis by observing that wage regulation
is “a subject of traditional state concern,” and is not
“included in ERISA’s definition of ‘employee benefit
plan.’” Id. at 791. Addressing whether the law nevertheless
made an impermissible “reference to” ERISA plans, we held
it did not:
The references to ERISA plans in the
California prevailing wage law have no effect
on any ERISA plans, but simply take them
into account when calculating the cash wage
that must be paid. At most, this scheme
provides examples of the types of employer
contributions to benefits that are included in
the wage calculation. The scheme does not
force employers to provide any particular
employee benefits or plans, to alter their
existing plans, or to even provide ERISA
plans or employee benefits at all.

-- 51 of 64 --

52 BD. OF TRUSTEES V. C HAMBERS
Id. at 793 (emphasis added). In other words, while the law
referenced payments to ERISA plans specifically as a means
of satisfying an employer’s prevailing wage obligation, it did
not “act[] . . . upon ERISA plans” themselves. See id.; see
also Thiokol, 76 F.3d at 755, 759–60 (tax law that referenced
ERISA plans was not preempted, in part because it targeted
employers, not ERISA plans).
Nor did the law in WSB Electric “act upon” ERISA plans
by incidentally impacting plan funds. We explained that the
law’s cap on the amount of ERISA plan benefit contributions
employers could “credit” toward the prevailing wage
requirement would likely induce employers to “adjust their
contributions downward to reflect the prevailing rate. In that
case, the prevailing wage law would have an incidental
impact on ERISA plans.” Id. at 795. But such effects did
not mean preemption because, on the determinative question
of whether the law “acted upon” the plans, the law’s aim was
elsewhere—namely, employers and their obligation to pay
employees a prevailing wage. See id. at 793, 795.
Similarly, in Golden Gate, we upheld a local ordinance
providing that, if employers made benefits contributions to
ERISA plans, they were required to make certain minimum
payments to those plans. Id. at 645–47. We held that the
ordinance did not make an impermissible “reference to”
ERISA plans because its target was not any aspect of plan
administration regulated by federal law. See id. at 659 (“if
[employers] have such a[n ERISA] plan, they need not make
any changes to it”). The law did not regulate benefits owed
employees under the plan, conflict with any reporting or
recordkeeping requirements under ERISA, or interfere with
management of plan funds. Instead, it regulated
employers—specifically, their payments to ERISA plans.
Id. at 658.

-- 52 of 64 --

BD. OF TRUSTEES V. C HAMBERS 53
Like the wage regulation in WSB Electric, §§ 4(8) and 5
target an area of traditional state concern—debt collection—
that is “not within ERISA’s coverage.” See WSB Elec.,
88 F.3d at 791. And also like the law at issue there, SB 223’s
references to ERISA plans do not work a regulation of any
aspect of the federal field. SB 223 does not “force employers
to . . . alter their existing plans” or otherwise “reach in one
way or another the ‘terms and conditions of employee
benefit plans.’” Id. at 793; Goren, 743 F.2d at 1339 (quoting
29 U.S.C. § 1144(c)(2)).
Further, SB 223 is more attenuated to ERISA plans than
the ordinance in Golden Gate, which regulated contribution
payments to ERISA plans—an undeniable aspect of plan
administration. 546 F.3d at 646–47, 658. SB 223, by
contrast, avoids any aspect of the collection, management,
or distribution of plan funds. Instead, it regulates a state
device that ERISA trusts can enlist in their efforts to
responsibly manage funds for plan members.
* * *
Four of SB 223’s six amendments make literal reference
to ERISA plans, but none “[a]ffect . . . the referenced plans”
by regulating any aspect of plan administration or the plans
themselves. See WSB Elec., 88 F.3d at 793. Instead, SB 223
avoids ERISA’s regulatory domain entirely, and instead
pares back a state entitlement holding third party general
contractors liable for plan members’ debts. Accordingly,
none of SB 223’s amendments “act upon” ERISA plans, and
the law is not preempted on this theory.
CONCLUSION
Appellees challenged SB 223 as preempted and the
district court agreed. In response, the Nevada legislature

-- 53 of 64 --

54 BD. OF TRUSTEES V. C HAMBERS
repealed SB 223 pending this appeal and replaced it with a
new law. Because the legislature repealed SB 223 in
response to an adverse judicial ruling, we deem the appeal
moot only if Nevada demonstrates that it will not reenact the
challenged law in whole or in part. Nevada fails to do so.
Indeed, the law that replaced SB 223 incorporates several of
the challenged components of the old law.
On the merits, SB 223 limits a state entitlement to hold
third-party general contractors vicariously liable for the
debts of ERISA plan members. Because SB 223 targets an
area of traditional state regulation, the presumption against
preemption applies. SB 223 is therefore only preempted if
it invades the federal field regulated by ERISA or poses an
obstacle to its objectives. SB 223 does neither of these
things. Indeed, Appellees’ obligations under ERISA remain
exactly the same with or without SB 223. Thus, SB 223 has
neither an impermissible “connection with” nor does it make
an impermissible “refer[ence] to” ERISA plans. Gobeille,
136 S. Ct. at 943. Accordingly, we VACATE the district
court’s grant of summary judgment and REMAND for entry
of judgment consistent with this opinion.17
Each side shall bear its own costs in this appeal.
17 Because we hold SB 223 is not preempted, we do not reach the
parties’ dispute over whether SB 223 is severable.

-- 54 of 64 --

BD. OF TRUSTEES V. C HAMBERS 55
WALLACE, Circuit Judge, dissenting:
I respectfully dissent. For the reasons that follow, I
conclude the Nevada Legislature’s repeal of SB 223, and its
enactment of SB 338, moots this appeal.
I.
“We do not have the constitutional authority to decide
moot cases.” Foster v. Carson, 347 F.3d 742, 747 (9th Cir.
2003) (citation omitted). As a general rule, “a case is moot
when the challenged statute is repealed, expires, or is
amended to remove the challenged language.” Log Cabin
Republicans v. United States, 658 F.3d 1162, 1166 (9th Cir.
2011); Chemical Producers & Distribs. Ass’n v. Helliker,
463 F.3d 871, 878 (9th Cir. 2006) (“A statutory change . . .
is usually enough to render a case moot, even if the
legislature possesses the power to reenact the statute after the
lawsuit is dismissed.”) (citation omitted). The exceptions to
this rule “are rare and typically involve situations where it is
virtually certain that the repealed law will be reenacted.”
Helliker, 463 F.3d at 878 (quoting Native Vill. of Noatak,
38 F.3d 1505, 1510 (9th Cir. 1994)). This appeal does not
present the “rare” exception.
Here, statutory change has rendered the case moot. In
July 2015, the Nevada Legislature passed SB 223. In July
2017, the Legislature repealed SB 223 and replaced it with
SB 338. Five of the six challenged SB 223 provisions have
no analogue in the new SB 338—they were repealed entirely
and that repeal was made retroactive to the enactment of SB
223. The sixth provision—SB 223’s provision shortening
the limitations period for actions against a general contractor
to one year—was replaced with a new provision providing
for a two-year limitations period. The result is a complete
statutory overhaul by the Nevada Legislature—the law that

-- 55 of 64 --

56 BD. OF TRUSTEES V. C HAMBERS
prompted Plaintiffs’ preemption challenge is no longer on
the books. Nor is there any indication the Legislature is
“virtually certain,” or even likely, to reenact SB 223. Noatak,
38 F.3d at 1510. Therefore, I conclude this case is moot
under our Noatak line of cases, and that we have no power
to reach the merits. See Gator.com Corp. v. L.L. Bean, Inc.,
398 F.3d 1125, 1132 (9th Cir. 2005) (en banc) (“While
mootness analysis must . . . eschew undue formalism, it must
nevertheless operate within the well-defined contours of
Article III.”).
II.
The majority’s conclusion that this case is not moot rests
on a multipart argument that departs from our court’s well-
reasoned rule that statutory change is generally enough to
render a case moot. To demonstrate why I believe the
majority’s conclusion is in error, I address the constituent
elements of their argument in turn.
A.
A central part of the majority’s argument stems from
their interpretation of the Supreme Court’s decision in City
of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982).
In City of Mesquite, the district court had ruled that a
provision of the City’s licensing ordinance was
unconstitutionally vague. Id. at 287. While an appeal from
that decision was pending, the City repealed the
objectionable language. Id. at 288–89. Faced with the
possibility the case was now moot, the Supreme Court
concluded that although the objectionable language was no
longer part of the ordinance, it nonetheless “must confront
the merits of the vagueness holding.” Id. at 289 (emphasis
added). The Court explained that its obligation to reach the
merits stemmed from the fact that the City’s repeal of the

-- 56 of 64 --

BD. OF TRUSTEES V. C HAMBERS 57
objectionable provision “would not preclude it from
reenacting precisely the same provision if the District
Court’s judgement were vacated.” Id.
The majority extracts the following rule from City of
Mesquite: when a legislature changes a law but retains
discretion to reenact the law after completion of the
litigation, the case falls under the “voluntary cessation”
exception to mootness, and the court should decide the
merits of the repealed law’s legality. Applying that rule here,
the majority concludes that because vacatur would free the
Nevada Legislature to reenact the now-repealed SB 223 in
the future, the appeal is not moot. Maj. Opn. at 18–19.
But the majority draws the wrong lessons from City of
Mesquite’s one paragraph mootness discussion. There, the
City had a proven history of reenacting constitutionally
suspect provisions once the shadow of adverse judicial
rulings had lifted, and, in fact, had announced its intention to
reenact the very provision at issue before the Court. City of
Mesquite, 455 U.S. at 289 n.11. Thus, in City of Mesquite it
was the City’s blatant “repeal-reenact” gamesmanship that
drove the Court’s holding that repeal of the objectionable
law did not moot the case. That limited exception does not
exist here.
Here, there is no indication the Nevada Legislature
intends to reenact the now-repealed SB 223. To do so would
generally require, at minimum, drafting a new bill, passing
the bill through the relevant committees, reading and
debating the bill on the floor of both houses of the
legislature, and voting on the bill. See Nevada Legislative
Manual, 143 68 (Feb. 2017) https://www.leg.state.nv.us/Di
vision/Research/publications/LegManual/2017/ (last visited
Aug. 3, 2018). No such legislative action appears on the
horizon, and there is no suggestion the Nevada Legislature

-- 57 of 64 --

58 BD. OF TRUSTEES V. C HAMBERS
has a history of the type of “repeal-reenact” machinations
engaged in by the city council in City of Mesquite. Therefore,
absent evidence the Legislature intends to reenact the SB
223 provisions invalidated by the district court, the voluntary
cessation exception to mootness applicable in City of
Mesquite does not apply here. See Helliker, 463 F.3d at 878
(statutory amendment mooted the case where there was “no
reason to think the California legislature enacted the
amendment with a mind to restoring the old law later”).
B.
The second part of the majority’s argument for why this
case is not moot is that the decisions in our circuit holding
that statutory change is usually enough to moot a case—
namely, Noatak, Helliker, and Log Cabin Republicans—
“flip” City of Mesquite on its head. Maj. Opn. at 24.
According to the majority, City of Mesquite holds that
statutory change only moots a case if there is “certainty” that
the repealed law will not be reenacted, Maj. Opn. at 20, 24,
while the line of cases upon which I rely advance the inverse
proposition—that statutory change moots a case unless it is
“virtually certain” the repealed law will be reenacted,
Noatak, 38 F.3d at 1510.
I do not regard our circuit precedent in the Noatak line
of cases as a departure from City of Mesquite. If anything, it
is City of Mesquite that is sui generis. In Noatak itself, our
court cited City of Mesquite as an exception to the general
rule that statutory change moots a case based on the fact that
the City was likely to reenact the challenged law. Noatak,
38 F.3d at 1510. Therefore, City of Mesquite does not
establish a rule from which our Noatak line of cases depart;
rather, I view the case as an example of the unusual
circumstances that would permit a court to reach the merits
when statutory change would otherwise render the case

-- 58 of 64 --

BD. OF TRUSTEES V. C HAMBERS 59
moot. Cf. City of Mesquite, 455 U.S. at 288 (explaining that
had the Court of Appeals been “fully advised” that the City
had repealed the objectionable language, it “[a]rguably”
“would have regarded the vagueness issue as moot”). The
line of cases I cite is our circuit authority interpreting City of
Mesquite, and should be followed absent an en banc decision
to the contrary.
The Supreme Court’s decision in Kremens v. Bartley,
431 U.S. 119 (1977), a case decided before City of Mesquite,
is instructive in this regard. In Kremens, the named plaintiffs
challenged the constitutionality of portions of a
Pennsylvania statute governing the voluntary admission of
juveniles to mental health institutions. Id. at 122. After the
district court declared the challenged provisions
unconstitutional, and while the appeal was pending,
Pennsylvania enacted a new statute completely repealing the
objectionable provisions, except as related to a category of
persons not including the named plaintiffs. Id. at 126–27.
The Court held that “the enactment of the new statute”
during the pendency of appeal, “clearly moot[ed] the claims
of the named appellees.” Id. at 128. There was no suggestion
that Pennsylvania had to prove with certainty that it would
not reenact the previously-repealed statute for the Court to
conclude the new statute mooted the relevant claims. This
Supreme Court precedent is obviously inconsistent with the
majority’s analysis.
City of Mesquite did not overrule Kremens, which
reinforces the view that what drove the Court’s decision in
City of Mesquite was the City’s past gamesmanship and
stated intent to reenact the challenged ordinance. In
Kremens, there was no suggestion that Pennsylvania was
engaged in the kind of “repeal-reenact” maneuvering that
City of Mesquite was found to be engaged in years later.

-- 59 of 64 --

60 BD. OF TRUSTEES V. C HAMBERS
Thus, Kremens helps illuminate the proper way to frame the
mootness-due-to-statutory-change principle: Kremens
stands for the proposition that statutory repeal is usually
enough to render a case moot, while City of Mesquite
outlines an instance when statutory repeal will not be
enough. Our line of cases running from Noatak to Helliker
to Log Cabin Republicans is faithful to Kremens, and
reconcilable with City of Mesquite. With due respect to my
colleagues, the charge that I have flipped City of Mesquite
on its head is completely unfounded.1
1 The majority challenges my use of Kremens to frame City of
Mesquite, and stresses that the key fact underpinning City of Mesquite’s
mootness holding is that “the city would have the power to reenact the
same invalidated law” upon vacatur of the district court’s decision. Maj.
Opn. at 19, n.6. But Kremens actually demonstrates why the power to
reenact an invalidated law, alone, cannot be a basis for separating cases
that are moot from those that are not. In Kremens, the Court concluded
the case was moot due to statutory change (as to the named appellees),
and vacated the district court’s judgment declaring the previous statutory
provisions unconstitutional. Kremens, 431 U.S. at 126–27, 137. In other
words, after the Court’s decision in Kremens, the Pennsylvania
Legislature, like the city in City of Mesquite, retained the power to
reenact the same invalidated law. Therefore, Kremens and City of
Mesquite do not differ on the basis of the City’s retained power to reenact
the invalidated law, as the majority suggests. Instead, the only
meaningful distinction between the two cases was City of Mesquite’s
avowed intent to reenact a previously invalidated law. We have
repeatedly, and properly, highlighted this distinction in our line of
decisions holding that statutory change is generally enough to render a
case moot. Noatak, 38 F.3d at 1510; Helliker, 463 F.3d at 878; Log Cabin
Republicans, 658 F.3d at 1167; see Qwest Corp. v. City of Surprise,
434 F.3d 1176, 1181 (9th Cir. 2006) (“In City of Mesquite, the Supreme
Court refused to dismiss a claim as moot because the city had announced
an intention to reenact the same statute if the Court vacated the district
court’s judgment.”).

-- 60 of 64 --

BD. OF TRUSTEES V. C HAMBERS 61
C.
The third part of the majority’s argument—and one that
underpins the other two parts—relies on a purported
distinction between statutory change that occurs in response
to an adverse judicial ruling and statutory change that occurs
in vacuo. Citing Thalheimer v. City of San Diego, 645 F.3d
1109, 1125 (9th Cir. 2011), and other cases, the majority
contends that statutory change that occurs in response to a
district court’s judgment amounts to “grudging acquiesce to
a judicial command,” and so cannot render a case moot,
while “voluntary” statutory change indicates a more
“permanent intent to change course” that supports a finding
of mootness. Maj. Opn. at 23, n.7, 23. In the majority’s view,
the voluntariness of the statutory change provides a key basis
upon which to separate cases rendered moot by statutory
change from those that are not.
I disagree that this is a meaningful doctrinal distinction
upon which our cases can be categorized. First, binding
The majority also invokes Northeastern Florida Chapter of
Associated General Contractors of America v. City of Jacksonville, 508
U.S. 656, 661–62 (1993) to support their reading of City of Mesquite, but
that case only reinforces the unique circumstances in which legislative
change will not moot a case. In Northeastern Florida, the city moved to
dismiss the case as moot after repealing an ordinance the district court
had declared unconstitutional, and replacing it with a substantially
similar ordinance. Id. at 660–62. In holding that the case was not
rendered moot by the change, the Court explained “[t]here is no mere
risk that [the City] will repeat its allegedly wrongful conduct; it has
already done so.” 508 U.S. at 662. Therefore, rather than demonstrate
that my reading of City of Mesquite is incorrect, Northeastern Florida
simply reinforces those instances in which statutory change will not
render a case moot—that is, where a city (or legislature) repeals an
invalidated law but has demonstrated a likelihood of reenacting the same
law, or of reengaging in unlawful conduct.

-- 61 of 64 --

62 BD. OF TRUSTEES V. C HAMBERS
precedent from both the Supreme Court and our circuit holds
that statutory change is enough to render a case moot even
when such change follows an adverse judicial ruling. In
Kremens, discussed above, the Court held that a
constitutional challenge to provisions of a Pennsylvania
statute was moot where, after an adverse judicial ruling
below, the legislature repealed and replaced the provisions.
431 U.S. at 127–29. Similarly, in Log Cabin Republicans,
our court held that a constitutional challenge to Congress’s
“Don’t Ask, Don’t Tell” policy was moot where Congress
repealed the statute after the district court ruled the policy
was unconstitutional. 658 F.3d at 1165–66. In these and
other cases, see, e.g., Maldonado v. Morales, 556 F.3d 1037,
1042–43 (9th Cir. 2009) (holding that the California
Legislature’s amendment of a statute to cure a constitutional
defect, effected after the district court issued an injunction
remedying the defect, mooted the court’s injunction),
legislative change sufficed to moot an appeal even when the
change was likely in response to an adverse court ruling or a
lawsuit. Cf. Qwest Corp. v. City of Surprise, 434 F.3d 1176
(9th Cir. 2006) (cities’ enactment of new ordinances after
plaintiff filed action arguing that previous ordinances were
preempted by federal law sufficient to render plaintiff’s
claims moot).
Second, and more fundamentally, it is not conceptually
tenable to draw a line between statutory change “prompted
by” an adverse judicial ruling, Maj. Opn. at 21, and statutory
change that merely follows an adverse judicial ruling.
Outside of relatively clear situations—e.g., where a
constitutionally suspect statute expires during pendency of
appeal due to a sunset provision—there is not a reliable way
of establishing that statutory change that occurs after an
adverse judicial ruling is not, in fact, a response to that
ruling. The most reasonable presumption is that when a

-- 62 of 64 --

BD. OF TRUSTEES V. C HAMBERS 63
legislature changes a law after a federal court invalidates that
law, the change was prompted by the federal court ruling.
Therefore, the majority is incorrect to suggest we can
generally divide cases mooted by statutory change from
those that are not based on the presence or absence of a
causal link between the statutory change and an adverse
judicial ruling.
III.
I agree with my colleagues on one point—our mootness-
due-to-statutory-change cases are indeed “murky.” Maj.
Opn. at 27. But even if the doctrine contains a certain
opacity, it is clear enough on the principle relevant here: a
statutory change is “usually enough to render a case moot”
unless “it is virtually certain that the repealed law will be
reenacted.” Log Cabin Republicans, 658 F.3d at 1167
(quoting Helliker, 463 F.3d at 878). That principle is
consistent with, rather than a departure from, City of
Mesquite, and binding on our panel. We should abide by it
here and conclude that this case is moot.
As a final observation, I point out that even though our
Noatak line of decisions has not thoroughly explained the
rationale behind the rule that statutory change is usually
enough to render a case moot, there are good reasons for
such a rule. One is that the formal, deliberative nature of the
legislative process makes statutory change relatively
difficult to undo on a whim. Having run the gauntlet of
formal procedure, political debate, and legislative trade-offs
involved in repealing and replacing a constitutionally
suspect law, it seems unlikely that a legislature, as a general
rule, would be inclined to reenact a repealed law. Cf. Neal
Kumar Katyal & Thomas P. Schmidt, Active Avoidance: The
Modern Supreme Court and Legal Change, 128 Harv. L.
Rev. 2109, 2120 (2015) (“[A] rational Congress would

-- 63 of 64 --

64 BD. OF TRUSTEES V. C HAMBERS
generally be reluctant to take the time and energy required
to pass a statute that a court has already signaled it might
find unconstitutional.”). Instead, the more logical
presumption is that once Congress or a state legislature
repeals or amends an objectionable statute, that change is
likely to remain absent a strong indication the legislature
intends to undertake the laborious process of reenacting the
repealed law. In my view, our rule that statutory change is
usually enough to render a case moot correctly reflects the
realities of legislative action.
IV.
For the foregoing reasons, I conclude the Nevada
Legislature’s repeal of SB 223, and its enactment of SB 338,
renders this case moot. Under Noatak, a state legislative
enactment is “usually enough to render a case moot” unless
the case presents a “rare” situation such as “where it is
virtually certain that the repealed law will be reenacted.”
Noatak, 38 F.3d at 1510. That is not the case here, and so we
have no basis upon which to reach the merits. See Gator.com
Corp., 398 F.3d at 1132 (“[T]he bounds of our judicial
power cannot be overstepped for the sake of expediency.”).
Instead, the correct course of action is to vacate the district
court’s judgment and remand with instructions to dismiss the
case as moot. See Helliker, 463 F.3d at 878–79.
I respectfully dissent.

-- 64 of 64 --