The Board of Trustees of the Glazing Health and Welfare Trust; Board of Trustees of the Southern Nevada Glaziers and Fabricators Pension Trust Fund; Board of Trustees of the Plumbers and Pipefitters Union Local 525 Pension Plan; The Board of Trustees of the Painters, Glaziers and Floorcoverers Joint Apprenticeship and Journeyman Training Trust; The Board of Trustees of the Painters, Glaziers and Floorcoverers Safety Training Trust Fund; The Board of Trustees of the Painters and Floorcoverers Joint Committee; The Board of Trustees of the Southern Nevada Painters and Decorators and Glaziers Labor-management Cooperation Committee Trust; The Board of Trustees of the International Union of Painters and Allied Trades Industry Pension Fund; The Board of Trustees of the Employee Painters' Trust; The Board of Trustees of the Construction Industry and Laborers Health and Welfare Trust; The Board of Trustees of the Construction Industry and Laborers Joint Pension Trust; The Board of Trustees of the Construction Industry and Laborers Vacation Trust; The Board of Trustees of Southern Nevada Laborers Local 872 Training Trust; Board of Trustees of the Plumbers and Pipefitters Local 525 Health and Welfare Trust and Plan; Board of Trustees of the Plumbers and Pipefitters Union Local 525 Pension Plan; Board of Trustees of Plumbers and Pipefitters Local Union 525 Apprentice and Journeyman Training Trust for Southern Nevada, Plaintiffs-Appellees,
Shannon Chambers, Nevada Labor Commissioner, in her official capacity, Defendant-Appellant.
and Submitted En Banc June 18, 2019 San Francisco, California
from the United States District Court for the District of
Nevada Kent J. Dawson No. 2:15-cv-01754-KJD-VCF, District
P. Stern (argued), Solicitor General; Melissa L. Flatley,
Deputy Attorneys General; Gregory L. Zunino, Bureau Chief;
Joseph F. Tartakovsky, Deputy Solicitor General; Adam Paul
Laxalt, Attorney General; Office of the Attorney General,
Carson City, Nevada; for Defendant-Appellant.
C. Loveland (argued) and Adam P. Segal, Brownstein Hyatt
Farber Schreck LLP, Las Vegas, Nevada; Daryl E. Martin and
Wesley J. Smith, Christensen James & Martin, Las Vegas,
Nevada; Sean W. McDonald and Michael A. Urban, The Urban Law
Firm, Las Vegas, Nevada; for Plaintiffs-Appellees.
Bryan Fask, Littler Mendelson P.C., Philadelphia,
Pennsylvania; Richard N. Hill, Littler Mendelson P.C., San
Francisco, California; for Amicus Curiae Nevada Contractors
C. Powers, Chief Litigation Counsel; Brenda J. Erdoes,
Legislative Counsel; Nevada Legislative Counsel Bureau, Legal
Division, Carson City, Nevada; for Amicus Curiae Nevada
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.
Before: Sidney R. Thomas, Chief Judge, and William A.
Fletcher, Ronald M. Gould, Jay S. Bybee, Consuelo M.
Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan
Christen, John B. Owens, Ryan D. Nelson, and Bridget S. Bade,
of Action Challenging Legislation
banc court dismissed as moot an appeal from the district
court's summary judgment in favor of the plaintiffs in an
action challenging Nevada Senate Bill 223, which amended
state vicarious liability and lien collection laws to impose
certain administrative requirements on labor union trusts
when they pursue debt collection on behalf of union members.
district court held that the statute was preempted by the
Employee Retirement Income Security Act. While this appeal
from the district court's judgment was pending, the
Nevada legislature repealed Senate Bill 223 and replaced it
with Senate Bill 338, with the specific intent to avoid the
ERISA preemption issues of Senate Bill 223.
other circuits, the panel held that the repeal, amendment, or
expiration of legislation creates a presumption that an
action challenging the legislation is moot, unless there is a
reasonable expectation that the legislature is likely to
enact the same or substantially similar legislation in the
future. Applying these principles to this case, the panel
concluded that the action was moot. The panel dismissed the
appeal as moot and remanded the case to the district court
with instructions to vacate the judgment and dismiss the