FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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 LABORMANAGEMENT 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 

No. 16-15588

D.C. No.

2:15-cv-01754-

KJD-VCF

OPINION
2 BD. OF TRUSTEES V. CHAMBERS

BOARD OF TRUSTEES OF THE 

CONSTRUCTION INDUSTRY AND 

LABORERS HEALTH AND WELFARE 

TRUST; THE BOARD OF TRUSTEES OF 

THE CONSTRUCTION INDUSTRY AND 

LABORERS JOINT PENSION TRUST;

THE BOARD OF TRUSTEES OF THE 

CONSTRUCTION INDUSTRY AND 

LABORERS VACATION TRUST; THE 

BOARD OF TRUSTEES OF SOUTHERN 

NEVADA LABORERS LOCAL 872

TRAINING TRUST; BOARD OF 

TRUSTEES OF THE PLUMBERS AND 

PIPEFITTERS LOCAL 525 HEALTH AND 

WELFARE TRUST AND PLAN; BOARD 

OF TRUSTEES OF THE PLUMBERS AND 

PIPEFITTERS UNION LOCAL 525

PENSION PLAN; BOARD OF TRUSTEES 

OF PLUMBERS AND PIPEFITTERS 

LOCAL UNION 525 APPRENTICE AND 

JOURNEYMAN TRAINING TRUST FOR 

SOUTHERN NEVADA,

Plaintiffs-Appellees,

v.

SHANNON CHAMBERS, Nevada Labor 

Commissioner, in her official 

capacity,

Defendant-Appellant.
BD. OF TRUSTEES V. CHAMBERS 3

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, 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.
4 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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 federallyregulated 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 
6 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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 PlaintiffsAppellees.

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.
8 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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.
10 BD. OF TRUSTEES V. CHAMBERS

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).
BD. OF TRUSTEES V. CHAMBERS 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 
12 BD. OF TRUSTEES V. CHAMBERS

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).
BD. OF TRUSTEES V. CHAMBERS 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 
14 BD. OF TRUSTEES V. CHAMBERS

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. 
BD. OF TRUSTEES V. CHAMBERS 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 
16 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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 
18 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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 postjudgment 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.
20 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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 twojustice dissent makes plain that our lodestar is City of Mesquite, not 

Kremens.
22 BD. OF TRUSTEES V. CHAMBERS

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) 
BD. OF TRUSTEES V. CHAMBERS 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.
24 BD. OF TRUSTEES V. CHAMBERS

‘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: 
BD. OF TRUSTEES V. CHAMBERS 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.
26 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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.
28 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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:
30 BD. OF TRUSTEES V. CHAMBERS

(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).
BD. OF TRUSTEES V. CHAMBERS 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 
32 BD. OF TRUSTEES V. CHAMBERS

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).
BD. OF TRUSTEES V. CHAMBERS 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) 
34 BD. OF TRUSTEES V. CHAMBERS

(“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 preemption 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 
BD. OF TRUSTEES V. CHAMBERS 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 preemption 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 
36 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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 
38 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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.
40 BD. OF TRUSTEES V. CHAMBERS

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 preTravelers 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 
BD. OF TRUSTEES V. CHAMBERS 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 
42 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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. IBEWNECA, 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 
44 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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, postTravelers 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 
46 BD. OF TRUSTEES V. CHAMBERS

(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.
BD. OF TRUSTEES V. CHAMBERS 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 
48 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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 
50 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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.
52 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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 
54 BD. OF TRUSTEES V. CHAMBERS

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.
BD. OF TRUSTEES V. CHAMBERS 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 possessesthe 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 
56 BD. OF TRUSTEES V. CHAMBERS

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 wellreasoned 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 
BD. OF TRUSTEES V. CHAMBERS 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 
58 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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. 
60 BD. OF TRUSTEES V. CHAMBERS

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.”).
BD. OF TRUSTEES V. CHAMBERS 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.
62 BD. OF TRUSTEES V. CHAMBERS

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 
BD. OF TRUSTEES V. CHAMBERS 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 mootnessdue-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 
64 BD. OF TRUSTEES V. CHAMBERS

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.