No. 16-15588 IN THE UNITED STATES COURT OF APPEALS FOR...
Transcript of No. 16-15588 IN THE UNITED STATES COURT OF APPEALS FOR...
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No. 16-15588
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
THE BOARD OF TRUSTEES OF THE GLAZING HEALTH AND WELFARE TRUST, et al.,
Plaintiffs – Appellees,
v.
SHANNON CHAMBERS, NEVADA LABOR COMMISSIONER, IN HER OFFICIAL CAPACITY,
Defendant – Appellant.
On Appeal from the United States District Court for the District of Nevada
No. 2:15-cv-01754-KJD-VCF
Hon. Kent J. Dawson
APPELLEES’ PETITION FOR REHEARING EN BANC
Daryl E. Martin Wesley J. SmithCHRISTENSEN JAMES & MARTIN
7440 W. Sahara Ave. Las Vegas, NV 89117 Telephone: (702) 255-1718
Counsel for Appellees Painters & Glaziers Joint Trust Funds and Employee Painters’ Trust
Adam P. Segal Bryce C. Loveland BROWNSTEIN HYATT FARBER
SCHRECK, LLP 100 N. City Pkwy, Ste 1600 Las Vegas, NV 89106 Telephone: (702) 382-2101
Counsel for Appellees Plumbers Joint Trust Funds
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TABLE OF CONTENTS
Page
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INTRODUCTION AND RULE 35(B)(1) STATEMENT ............................................................ 1
ARGUMENT ................................................................................................................................. 2
A. The panel majority’s decision ignores established mootness doctrine ......................... 2
B. ERISA reference preemption is eliminated by the panel majority’s decision .............. 5
1. Reference preemption is alive and well ............................................................. 6
2. Senate Bill 223 acts immediately and exclusively on ERISA plans ................ 11
3. Senate Bill 223 “acts upon” ERISA benefit plans in areas of federal concern ..................................................................................................... 16
CONCLUSION ............................................................................................................................ 17
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TABLE OF AUTHORITIES
Page(s)
Cases
Board of Trs. of the Glazing Health and Welfare Trust v. Shannon Chambers, 168 F. Supp. 3d 1320 (D. Nev. 2016) ..................................................................................2, 11
California Div. of Labor Standards Enforcement v. Dillingham, 519 U.S. 316 (1997) .................................................................................................1, 6, 7, 8, 14
Chemical Prod. & Distributors v. Helliker, 463 F.3d 871 (9th Cir. 2006) .................................................................................................1, 4
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) ...............................................................................................................1, 4
Gobeille v. Liberty Mut. Ins. Co., 136 S.Ct. 936 (2016) ..........................................................................................1, 6, 7, 8, 11, 17
Golden Gate Restaurant Ass’n v. City and County of San Francisco, 546 F.3d 639 (9th Cir. 2008) ...........................................................................................1, 6, 10
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 ..............................................................................................................................6
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86 (1993) .....................................................................................................................8
Kremens v. Bartley, 431 U.S. 119 (1977) ...............................................................................................................1, 4
Lane v. Goren, 743 F.2d 1337 (9th Cir. 1984) .................................................................................................10
Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011) ...............................................................................................1, 4
Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825 (1988) ...........................................................................................1, 6, 7, 8, 10, 11
McBride v. PLM Int’l, Inc., 179 F.3d 737 (9th Cir. 1999) ...................................................................................................11
N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) ...................................................................................................................8
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Native Vill. of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir. 1994) .............................................................................................1, 3, 4
Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir. 2006). Dis. Op. 60 and 60 ...................................................................4
Shaw v. Delta AirLines, Inc., 463 U.S. 85 (1983) ...............................................................................................................9, 11
So. Cal. IBEW-NECA Trust Funds v. Standard Indus. Elec. Co., 247 F.3d 920 (9th Cir. 2001) .............................................................................................10, 14
Tobler & Oliver Const. Co. v. Bd. of Trs. of Health & Ins. Fund for Carpenters Local Union No. 971, 84 Nev. 438, 442 P.2d 904 (1968) ...........................................................................................13
Trs. of Bricklayers & Allied Craftsmen Local No. 3 Health & Welfare Trust v. Reynolds Elec. & Eng’g Co., 747 F. Supp. 606 (D. Nev. 1990), aff’d sub nom. Trs. of Bricklayers & Allied Craftsman, Local 3 Health & Welfare Trust v. Structures Mideast Corp., 958 F.2d 378 (9th Cir. 1992) ..........................................................................................................13
Trs. of the Constr. Indus. and Laborers Health and Welfare Trust v. Hartford Fire Ins. Co., 578 F.3d 1126 (9th Cir. 2009) .................................................................................................13
WSB Electric, Inc. v. Curry, 88 F.3d 788 (9th Cir. 1996) .............................................................................................1, 9, 10
Statutes
29 U.S.C. § 1132(g)(2) ..................................................................................................................13
29 U.S.C. § 1144(a) ...............................................................................................................5, 8, 11
29 U.S.C. § 1144(b)(2)(A) ...............................................................................................................8
Other Authorities
2017 Leg., 2017 Reg. Sess. (Nev. 2017) .........................................................................................3
Federal Rule of Appellate Procedure 35(b)(1) .................................................................................1
Federal Rule of Civil Procedure 52(a)(6) ......................................................................................12
Hearing on SB 223 Before the S. Comm. on Commerce, Labor & Energy, 78th Leg. at 21-22 (Nev., March 9, 2015) .......................................................................................15
Senate Bill 223.. ........................................................................................................................ 1-20
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Senate Bill 338 .........................................................................................................................2, 3, 5
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Introduction and Rule 35(b)(1) Statement.
Review en banc is necessary for two reasons. First, this case is of singular
importance to ERISA benefit plans, which provide pension and health and welfare
benefits to millions of Americans. If the panel majority’s opinion stands, it will
have enormous practical implications and potentially allow state legislatures to
unfairly target and create exclusive discriminatory obligations on ERISA benefit
plans.
Second, the panel majority’s opinion is at irreconcilable odds with decisions
of the United States Supreme Court (City of Mesquite v. Aladdin’s Castle, Inc., 455
U.S. 283 (1982); Kremens v. Bartley, 431 U.S. 119 (1977)), and with this Court’s
own decisions in Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir.
2011), Chemical Prod. & Distributors v. Helliker, 463 F.3d 871 (9th Cir. 2006)
and Native Vill. of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir. 1994) pertaining to
mootness. The opinion is also at odds with Supreme Court precedent (Gobeille v.
Liberty Mut. Ins. Co., 136 S.Ct. 936 (2016); California Div. of Labor Standards
Enforcement v. Dillingham, 519 U.S. 316 (1997); Mackey v. Lanier Collection
Agency & Service, Inc., 486 U.S. 825 (1988)) and this Court’s decisions in Golden
Gate Restaurant Ass’n v. City and County of San Francisco, 546 F.3d 639 (9th Cir.
2008) and WSB Electric, Inc. v. Curry, 88 F.3d 788 (9th Cir. 1996) pertaining to
ERISA reference preemption.
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Argument.
A. The panel majority’s decision ignores established mootness doctrine.
The panel majority and the dissent agree that there’s a split in this Circuit on
the mootness doctrine. However, as the majority points out, “We are, or course,
bound to follow the rule established by the Supreme Court, not inconsistent circuit
precedent.” Maj. Op. 25 (citing Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.
2001)). Analyzing Supreme Court precedent and decisions from this Court, the
dissent properly concluded that this case is moot and therefore this Court has no
constitutional basis on which to reach the merits.
The subject of this appeal, Senate Bill 223 (SB 223), was passed in Nevada’s
2015 legislative session. In response, the Plaintiffs/Appellees filed suit in federal
district court, seeking declaratory judgment that SB 223 was preempted by ERISA.
After reviewing the evidence and oral argument, the District Court ruled that SB
223 was preempted by ERISA in its entirety. Board of Trs. of the Glazing Health
and Welfare Trust v. Shannon Chambers, 168 F. Supp. 3d 1320, 1325 (D. Nev.
2016). At the next legislative session in 2017, Nevada repealed SB 223 and
enacted Senate Bill 338 (SB 338), which became effective on July 1, 2017.
Senate Bill 338 was passed in direct response to the District Court’s order
that SB 223 is preempted. In fact, the introductory digest of the Legislative
Counsel Bureau included in the enacted version of SB 338 specifically identifies
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the District Court’s ruling by name and citation stating that SB 338 was passed to
avoid the ERISA preemption problems created by SB 223. Legislative Counsel’s
Digest, SB 338, 2017 Leg., 2017 Reg. Sess. (Nev. 2017).
Nevada passed SB 338 after briefing on this appeal concluded.
Plaintiffs/Appellees then brought a Motion to Dismiss Appeal based on mootness.
Defendant/Appellant acknowledged that SB 338 mooted nearly all aspects of this
appeal, but opposed the motion based on a single change made in both SB 223 and
SB 338 regarding the statute of limitations.
The panel majority denied Plaintiffs/Appellees’ Motion to Dismiss, applying
a standard that is inconsistent with Supreme Court precedent and several cases
from this Court. Dissenting, Judge Wallace explained that:
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 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.
Dis. Op. 55-56 (quoting Native Vill. of Noatak, 38 F.3d at 1510). Therefore, Judge
Wallace concluded, “this case is moot under our Noatak line of cases, and [] we
have no power to reach the merits.” Dis. Op. 56.
Judge Wallace addresses the panel majority’s opinion on mootness point-by-
point, explaining that the panel majority drew the wrong lessons from the Supreme
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Court’s City of Mesquite, 455 U.S. 283. In that case, “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.” Dis. Op. 57. That limited exception does
not exist here, where there’s absolutely no evidence or history of the type of
“‘repeal-reenact’ machinations engaged in by the city council in City of Mesquite.”
Dis. Op. 57-58.
The majority simply flipped the mootness rule on its head with its decision.
As explained in the dissent:
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. Op. at 20 and 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.
Dis. Op. 58.
The line of cases referred to are Ninth Circuit cases interpreting City of
Mesquite, which, as the dissenter points out, “should be followed absent an en banc
decision to the contrary.” Dis. Op. 59. These cases include Noatak, Helliker, Log
Cabin Republicans and Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir.
2006). Dis. Op. 60 and 60 n.1. These cases are in line with City of Mesquite and
also another Supreme Court case, Kremens v. Bartley, 431 U.S. 119 (1977), which
articulate the rule that statutory change is usually enough to render a case moot.
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For these reasons, the dissenting opinion concluded that the Nevada Legislature’s
repeal of SB 223, and its replacement with SB 338, renders this case moot.
As even the panel majority points out: “To avoid mootness, ‘an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.’” Maj. Op. 17 (quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997)). This Court does not have the constitutional
authority to decide moot cases. Dis. Op. 55 (citing Foster v. Carson, 347 F.3d 742,
747 (9th Cir. 2003)). Instead, as the dissent concludes, “the correct course of action
is to vacate the district court’s judgment and remand with instructions to dismiss
the case as moot.” Dis. Op. 64.
B. ERISA reference preemption is eliminated by the panel majority’s decision.
The majority’s decision also eradicates ERISA reference preemption as
defined by the Supreme Court. If left alone, it leaves state legislatures within the
Ninth Circuit free to unfairly target and exclusively discriminate against ERISA
benefit plans contrary to Congressional legislative intent. See 29 U.S.C. § 1144(a).
Senate Bill 223 was passed by the Nevada Legislature in 2015 with the
intent to and effect of exclusively targeting ERISA benefit plans and for no other
purpose. Far from being a statute of “general applicability,” it sought to impose
requirements on plans, signatory contractors and plan administrators, but no one
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else. This imposition of exclusive requirements on ERISA plans and ERISA-
governed relationships requires complete preemption.
The majority’s opinion brushes this issue aside, stating that although ERISA
plans are specifically mentioned, they are not “acted upon” by the legislation in an
area of federal concern. Maj. Op. 36. Not only is this the improper standard for
determining ERISA preemption as defined by the Supreme Court, but it is also not
true.
1. Reference preemption is alive and well.
As recently as 2016, the Supreme Court reiterated that “the Court’s case law
to date has described two categories of state laws that ERISA
pre-empts”: (1) if the state law has a “reference to” ERISA plans; and (2) if the
state law has an impermissible “connection with” ERISA plans. Gobeille, 136
S.Ct. at 943.
“A law has the forbidden reference where it acts immediately and
exclusively upon ERISA plans, as in Mackey . . . or where the existence of such
plans is essential to its operation, as in, e.g., [District of Columbia v.] Greater
Washington Bd. of Trade, [506 U.S. 125 (1992)], and Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133 [(1990)].” Dillingham, 519 U.S. at 317; see also
Gobeille, 136 S.Ct. at 943 (same quote); Golden Gate, 546 F.3d at 657 (same
quote).
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In Mackey, the Georgia legislature had singled out ERISA benefit plans for
different treatment under state garnishment procedures. The Supreme Court ruled
that specific targeting of ERISA plans is preempted. Mackey, 486 U.S. at 829 and
838 n.12 (“any state law which singles out ERISA plans, by express reference, for
special treatment is pre-empted. See Part II, supra. It is this ‘singling out’ that pre-
empts the Georgia antigarnishment exception”).
Mackey has never been overturned by the Supreme Court and remains
binding precedent on this issue. Moreover, this very principle of reference
preemption was discussed by the Supreme Court as recently as 2016, confirming it
is still the law. Gobeille, 136 S.Ct at 943; see also Dillingham, 519 U.S. at 324
(discussing same).
The panel majority ignores Supreme Court precedent, claiming that the
“modern approach” for reference preemption requires an “obstacle to ERISA’s
objectives or inva[sion of] the federal field.” Maj. Op. 36. Specifically, the panel
majority relies on two presumptions: (1) that state law directed at an area of
traditional state concern is not preempted (citing N.Y. State Conf. of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654-55 (1995)); and (2)
principles of field and conflict preemption apply (citing a single paragraph from
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86, 99
(1993)). Maj. Op. 34-35.
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There are several problems with the majority’s narrowly tailored approach to
ERISA’s broad preemptive standard. See 29 U.S.C. § 1144(a). First, Travelers
dealt with a statute of general applicability, so it lacked “reference preemption” as
was the case in Mackey or this case. Second, John Hancock was focused on
ERISA’s saving’s clause (29 U.S.C. § 1144(b)(2)(A)), not the initial two factors
for determining ERISA preemption. Neither of these cases overturned or eroded
the Supreme Court’s and this Court’s established method for determining ERISA
preemption of examining the two factors of “reference to” and “connection with”
preemption.
Moreover, the majority’s analysis of “reference to” preemption equates it to
“connection with” preemption. As explained in Gobeille, “connection with”
preemption occurs when a state law “‘governs a central matter of plan
administration’ or ‘interferes with nationally uniform plan administration.’” 136
S.Ct. at 943 (quoting Egelhoff v. Egelhoff, 532 U.S. 141 (2001)).
The majority’s version of ERISA preemption, therefore, effectively deletes
“reference to” preemption in favor of only “connection with” preemption, ignoring
Supreme Court precedent, which has never overturned Mackey on this issue. See,
e.g., Dillingham, 519 U.S. at 317 and 324 (citing Mackey). This plainly conflicts
with Congress’ intent, turning 29 U.S.C. § 1144(a) into a mere conflict preemption
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statute, despite the Supreme Court’s instructive legislative history analysis in Shaw
v. Delta AirLines, Inc., 463 U.S. 85 (1983):
Nor, given the legislative history, can [ERISA] § 514(a) be interpreted to pre-empt only state laws dealing with the subject matters covered by ERISA—reporting, disclosure, fiduciary responsibility, and the like. The bill that became ERISA originally contained a limited pre-emption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected these provisions in favor of the present language, and indicated that the section’s pre-emptive scope was as broad as its language. . . . Statements by the bill’s sponsors during the subsequent debates stressed the breadth of federal pre-emption.
463 U.S. at 98-99 (citation omitted).
Ignoring the teachings of Shaw, the panel majority references this Court’s
cases in an effort to support its incorrect position. See Maj. Op. 45-53 (citing
Golden Gate; So. Cal. IBEW-NECA Trust Funds v. Standard Indus. Elec. Co., 247
F.3d 920 (9th Cir. 2001); WSB Elec. Inc. v. Curry, 88 F.3d 788 (9th Cir. 1996); and
Lane v. Goren, 743 F.2d 1337 (9th Cir. 1984)). However, those cases don’t support
the majority’s position.
For example, the majority relies heavily on WSB Electric, where this Court
determined that a state prevailing wage law was not preempted by ERISA. That
case has no bearing on this one, however, where the legislation at issue did not
target ERISA benefit plans and had no effect on them. 88 F.3d at 793. It was a
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statute of general applicability that simply took fringe benefit plans into account
when calculating the cash wage that must be paid by contractors. Id.
Similar to the prevailing wage law in WSB Electric, in Golden Gate, a City
ordinance required employers working within its jurisdiction to pay minimum
healthcare expenditures for their employees. 546 F.3d at 644. In analyzing
“reference to” preemption, this Court determined the ordinance was not preempted
because it “does not act on ERISA plans at all, let alone immediately and
exclusively.” 546 F.3d at 657. Lane v. Goren similarly involved an
antidiscrimination statute of general applicability.
Standard Industrial was different in that it actually involved a state law
enacted prior to ERISA. Obviously, such a law “could not have intended in 1971 to
refer specifically to an ERISA plan . . . which it fails to do on its face.” 247 F.3d at
926 (citing Dillingham, 519 U.S. at 330).
Like the other state and city laws previously mentioned, each of the laws at
issue were laws of general applicability. There’s no mention in any of the cases
relied on by the majority that the laws at issue singled out ERISA plans for special
treatment like the Georgia legislature did in Mackey or the Nevada Legislature did
with SB 223.
Ultimately, Mackey is still binding precedent on this Court. Like the Georgia
statute at issue in Mackey, SB 223 attempts to regulate ERISA benefit plans,
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administrators and signatory contractors differently under state collection and lien
laws. Specific targeting and unequal treatment of ERISA plans is precisely why
Mackey has never been overturned in a post-Travelers era. It’s also one major
reason why 29 U.S.C. § 1144(a) was passed in the way that it was, to avoid this
very type of discrimination against ERISA plans. See Shaw, 463 U.S. at 98-99.
2. Senate Bill 223 acts immediately and exclusively on ERISA plans.
The District Court found that SB 223 referred “exclusively, to ERISA
benefit trusts,” was “specifically design[ed] to affect employee benefit plans” and
“creat[es] new duties and relationships between the contractors and ERISA
fiduciaries.” Chambers, 168 F. Supp. 3d at 1322-24. Among these duties are new
reporting requirements, which may alone require preemption. McBride v. PLM
Int’l, Inc., 179 F.3d 737, 745 (9th Cir. 1999). Just two years ago, in Gobeille, 136
S.Ct. at 945, the Supreme Court held that a state law compelling reporting beyond
ERISA’s already-extensive requirements—even reporting that merely parallels the
requirements of ERISA—“intrudes upon a central matter of plan administration
and interferes with nationally uniform plan administration” and is therefore
preempted. ERISA preempts state laws that regulate plan administration (like
reporting requirements) even if the state law exercises a traditional state power. Id.
at 946 (citing Egelhoff, 532 U.S. at 151-52).
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Federal Rule of Civil Procedure 52(a)(6) requires a reviewing court to base
its decision on the trial court’s factual findings unless they are clearly erroneous.
Yet, the majority never attempts to show that the District Court got its facts wrong.
To avoid reference preemption, the majority ignores the factual record below and
instead performs its own superficial analysis of each of the offending sections of
SB 223, claiming that Sections 1(2) and 4(7) don’t act exclusively on ERISA plans
and although Sections 4(8) and 5 do act exclusively, they avoid the federal field
occupied by ERISA. Maj. Op. 46-49. Not only is this the incorrect standard under
established Supreme Court precedent as mentioned previously, it’s simply not true.
The text of the bill shows it was intended to regulate ERISA benefit plans.
Section 1(2) purports to limit the types of damages that must be paid by an original
contractor, but only for claims brought by a “health or welfare fund or any other
plan for the benefit of employees in accordance with a collective bargaining
agreement.” The preempted law’s effectiveness and impact depend entirely on the
existence of ERISA benefit plans, without which the law has no impact at all.
Section 3(2) (which is completely ignored by the panel majority in the
reference preemption portion of its opinion), likewise purports to limit the form of
damages that may be collected by redefining “fringe benefit” to exclude interest,
liquidated damages, attorney’s fees and costs, all of which are routinely sought by
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ERISA benefit plans because such forms of damages automatically accrue under
the express terms of ERISA. See 29 U.S.C. § 1132(g)(2).1
Section 4 of SB 223 requires that contractors participating in “a health or
welfare fund or any other plan for the benefit of employees” provide certain
information to the plans, even when not required by ERISA or by the written terms
of each ERISA benefit plan. Section 5 requires the “administrator of a Taft-Hartley
trust” to provide notice of nonpayment to original contractors. No non-ERISA
person is subject to this special notice requirement.
1 The majority states this Court’s own per curiam opinion in 2009 is the reason attorney’s fees and other 29 U.S.C. § 1132(g)(2) damages were allowed and that SB 223 is simply a legislative response to this Court’s opinion. Maj. Op. 11 (citing Trs. of the Constr. Indus. and Laborers Health and Welfare Trust v. Hartford Fire Ins. Co., 578 F.3d 1126, 1129 (9th Cir. 2009)). This subtle attempt to show an equitable basis for the majority’s conclusions perhaps to possibly rectify some past wrong by this Court is an improper basis for determining mootness or ERISA preemption.
Further, it’s factually incorrect. All forms of damages, including § 1132(g)(2) damages, were always available under the literal text of the Nevada statute prior to SB 223. Benefit plans have used § 608.150 to collect such damages from original contractors long before this Court’s ruling in Hartford Fire. See Tobler & Oliver Const. Co. v. Bd. of Trs. of Health & Ins. Fund for Carpenters Local Union No. 971, 84 Nev. 438, 440-43, 442 P.2d 904, 905-07 (1968); Trs. of Bricklayers & Allied Craftsmen Local No. 3 Health & Welfare Trust v. Reynolds Elec. & Eng’g Co., 747 F. Supp. 606, 609 n. 12 (D. Nev. 1990) (general contractor liable under § 608.150 for contributions, interest, liquidated damages, attorney’s fees, costs, and audit fees), aff’d sub nom. Trs. of Bricklayers & Allied Craftsman, Local 3 Health & Welfare Trust v. Structures Mideast Corp., 958 F.2d 378 (9th Cir. 1992). Thus, contrary to the majority’s opinion, the law relating to damages available under § 608.150 was settled long before 2009 and SB 223 was not enacted as a legislative response to this Court’s opinion in the Hartford Fire case.
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The last two SB 223 provisions, in particular, show the Nevada Legislature’s
intent to create an integrated scheme under which, in exchange for requiring
ERISA plans to give notice to subcontractors and original contractors of claims,
pursuant to Section 5 of the bill, subcontractors would be required to share
information about their projects with the plans themselves.
These provisions show the Nevada Legislature intended the law to “act
upon” ERISA benefit plans in an exclusive and immediate manner.
The panel majority fails to discuss or even mention the compelling
legislative history of SB 223 showing the Nevada Legislature’s clear intent to act
on and affect ERISA benefit plans.2 The legislative history of SB 223 reflects the
Nevada Legislature’s intent to target ERISA plans by making them second class
claimants under Nevada Revised Statute 608.150.
For example, testimony on SB 223 was dominated by contractor groups and
their attorneys who expressed displeasure with the ERISA plans’ lawful use of
Nevada Revised Statute 608.150 and Nevada Revised Statute Chapter 108 to
collect fringe benefit contributions from original contractors and property owners
2 When deciding ERISA preemption issues courts routinely review legislative history. See, e.g., Dillingham, 519 U.S. at 330 (reviewing California’s history of legislating prevailing wages, apprenticeship standards, and public works); Standard Indus., 247 F.3d at 926 (looking at timing of legislation to determine if the state legislature could have intended to specifically reference an ERISA plan).
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whose subcontractors are in arrears with ERISA plans. During a Senate committee
hearing, a witness from the Associated General Contractors, an industry
association representing employers in the building and construction trades,
specifically pointed out that SB 223 was intended to insulate higher-tiered
contractors from being held vicariously liable to ERISA trust funds for fringe
benefit contributions that their lower-tiered subcontractors did not pay in
accordance with the terms of collective bargaining agreements. See Minutes of
Hearing on SB 223 Before the S. Comm. on Commerce, Labor & Energy, 78th
Leg. at 21-22 (Nev., March 9, 2015).
One witness in particular pointed to a demand made by the Glaziers Joint
Trust Funds, who are plaintiffs/appellees in the instant action, for payment under
Nevada Revised Statute 608.150. Id. at 18. Several witnesses directly referenced
claims by ERISA plans in their testimony on the bill. See id. at 22, 24, 25. Exhibits
supplied to the Committee likewise reflected that it was ERISA plans that were
making demand for payment under Nevada Revised Statute 608.150, and thus they
were the target of the bill. It is unmistakable that the Nevada Legislature intended
to uniquely affect ERISA plans’ use of Nevada Revised Statute 608.150 and
Nevada Revised Statute Chapter 108 as a tool for collecting from original
contractors and property owners who are vicariously liable for their
subcontractors’ indebtedness for labor.
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Indeed, the explanation offered on the Senate Floor to Amendment No. 458
(to SB 223) stated that the amendments were directed toward “health or welfare
fund[s] or any other plan for the benefit of employees” and “Taft-Hartley trust[s].”
S. Daily Journal at 185 (Nev., April 17, 2015) (Remarks by Sen. Settelmeyer on
Amend. No. 458). The bill statement read on final passage mirrors the statement on
the amendment. See S. Daily Journal at 414 (Nev., April 20, 2015) (Remarks by
Sen. Hardy on SB 223, as amended).
Testimony in the Assembly also reflected the Legislature’s intent to target
ERISA plans. See video from the hearing available online at
http://nvleg.granicus.com/MediaPlayer.php?view_id=14&clip_id=4485 (April 27,
2015, Hearing on SB 223). During the Assembly hearing, just as in the Senate,
witnesses and legislators discussed concerns regarding collections against
subcontractors, higher-tiered contractors, and property owners by ERISA plans for
fringe benefit contributions due to those plans. No other lower-tiered / higher-
tiered relationship was discussed other than those involving ERISA plans.
In passing SB 223, the Nevada Legislature targeted ERISA plans in an
exclusive and immediate manner. No other rational conclusion can be drawn from
the legislative record or the final text of SB 223.
3. Senate Bill 223 “acts upon” ERISA benefit plans in areas of federal concern.
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Even if the panel majority’s opinion contained the correct standard for
reference preemption (it doesn’t), SB 223 certainly “acts upon” ERISA benefit
plans in areas of federal concern. As outlined above, SB 223 sought to limit
damages a plan may obtain, impose notice obligations on plan administrators and
impose information disclosure obligations on signatory contractors who contribute
to ERISA benefit plans. Each of these items affect areas of federal concern under
ERISA; specifically, by targeting the types of reporting, disclosure, and fiduciary
responsibilities regulated by ERISA. Gobeille, 136 S.Ct. at 945.3 The fact that SB
223 is a collection statute of general state concern doesn’t change this.
Conclusion.
Given the enormous implications of this case and that the panel majority’s
opinion is in conflict with Supreme Court precedent and other decisions of this
Court on mootness and ERISA preemption, the Court should reconsider the
majority’s opinion. ERISA employee benefit plans, particularly pension plans, are
underfunded in retirement savings. Any judicial decision that makes it more
difficult for these plans to pay benefits should be viewed with careful scrutiny.
3 It’s worth mentioning again that this analysis is virtually identical to the “connection with” analysis that the panel majority claims is still a separate factor from “reference to” for determining preemption (as it must under Gobeille). Compare Maj. Op. § IV(D), with Maj. Op. § IV(E).
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The majority’s opinion throws open the door to state legislatures to impose
exclusive obligations on ERISA benefit plans. This is dangerous precedent with
potentially devastating consequences to ERISA plans that so many Americans
depend on for their health benefits and retirement savings. For these reasons, the
Plaintiffs/Appellees respectfully request this Court grant their Petition for
Rehearing En Banc.
DATED this 18th day of October, 2018.
CHRISTENSEN JAMES & MARTIN
By: /s/ Daryl E. MartinDaryl E. Martin, Esq. (6735) Wesley J. Smith, Esq. (11871) 7440 W. Sahara Avenue Las Vegas, Nevada 89117 Telephone: (702) 255-1718 Facsimile: (702) 255-0871 Attorneys for Painters & Glaziers Joint Trust Funds and Employee Painters’ Trust
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
By: /s/ Bryce C. LovelandAdam P. Segal, Esq. (6120) Bryce C. Loveland, Esq. (10132) 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106 Telephone: (702) 382-2101 Facsimile: (702) 382-8135 Attorneys for Plumbers Joint Trust Funds
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Certificate of Compliance Pursuant to Ninth Circuit Rules 35-4 and 40-1 for Case Number 16-15588
I certify that pursuant to Circuit Rules 35-4 or 40-1, the attached petition for rehearing en banc:
Contains 4,183 words (petitions and answers must not exceed 4,200 words), and is prepared in a format, type face, and type style that complies with Fed. R. App. P 32(a)(4)-(6).
or
Is in compliance with Fed. R. App. P. 32(a)(4)-(6) and does not exceed 15 pages.
Signature of Attorney /s/ Bryce C. Loveland Date October 18, 2018
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CERTIFICATE OF SERVICE
I am employed by Brownstein Hyatt Farber Schreck, counsel for certain of
the Appellees. I certify that I electronically filed the foregoing Appellees’ Petition
for Rehearing En Banc with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system on October
18, 2018. All participants in the case who are registered CM/ECF users, including
counsel for the Appellant, will be served by the appellate CM/ECF system.
/s/ Ebony S. Davis Employee of Brownstein Hyatt Farber Schreck, LLP
17532298
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__________________________________________________________________ No. 16-15588
__________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT _____________________________________________________________
THE BOARD OF TRUSTEES OF THE GLAZING HEALTH AND WELFARE TRUST, ET AL
Plaintiffs/Appellees, v.
SHANNON CHAMBERS, in her official capacity as Nevada Labor Commissioner, Defendant/Appellant
__________________________________________________________________ On Appeal from the United States District Court District of Nevada,
No. 2:15-cv-01754-KJD-VCF Hon. Kent J. Dawson
__________________________________________________________________ APPELLANTS’ RESPONSE BRIEF
TO PLAINTIFFS’-APPELLEES’ PETITION FOR REHEARING EN BANC
__________________________________________________________________ Adam Paul Laxalt (Bar No. 12426) Attorney General Gregory L. Zunino (Bar No. 4805) Bureau Chief Melissa L. Flatley (Bar No. 12578) Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL 100 North Carson Street Carson City, Nevada 89701 (775) 684-1100 Counsel for Appellant Shannon Chambers
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TABLE OF CONTENTS
PAGE
STANDARD FOR DECISION ................................................................................. 1
ARGUMENT AND AUTHORITIES ........................................................................ 2 I. The Opinion is Consistent with the Supreme Court’s Decisions on Mootness ............................................................................................. 2 II. The Opinion is Consistent with the Decisions of the Supreme Court and the Circuit on ERISA Preemption. ......................................... 4 CONCLUSION .......................................................................................................... 6
STATEMENT OF RELATED CASES ..................................................................... 8
CERTIFICATE OF COMPLIANCE ......................................................................... 9
CERTIFICATE OF SERVICE ................................................................................10
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TABLE OF AUTHORITIES
PAGE
CASES Ascaro LLC v. Atl. Richfield Co., 866 F.3d 1108, 1118 (9th Cir. 2017) ...................................................................... 6 Board of Trustees of Glazing Health v. Chambers, 903 F.3d 829, 858 (9th Cir. 2018) (Wallace, J., dissenting) ................................... 3 California Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 324–35 (1997), @ Maj.Op. 943 ...................................................... 4 Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir. 1985) ...................................................................... 2 Chemical Producers and Distributors Ass’n v. Helliker, 463 F.3d 871 (9th Cir. 2006) .................................................................................. 3 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, n.10 (1982) ............................................................................... 2 Gobeille v. Liberty Mutual Ins. Co., 136 S. Ct. 936, (2016) ............................................................................................. 4 Golden Gate Restaurant Ass’n v. City and County of San Francisco, 546 F.3d 639 (9th Cir. 2008) .................................................................................. 5 Heiniger v. City of Phoenix, 625 F.2d 842, 843–44 (9th Cir. 1980) .................................................................... 6 Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir. 2003) ...................................................................... 2 Log Cabin Republicans v. U.S., 658 F.3d 1162 (9th Cir. 2011) ................................................................................ 3
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Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) ........................................................................ 3 New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995) ....................................................................................... 4 Southern California IBEW-NECA Trust Funds v. Standard Indus. Elec Co., 247 F.3d 920, 929 (9th Cir. 2001) ......................................................................... 5 Thalheimer v. City of San Diego, 645 F.3d 1109, 1125 (9th Cir. 2011) ...................................................................... 2 Waks v. Empire Blue Cross/Blue Shield, 263 F.3d 872, 874 (9th Cir. 2001) .......................................................................... 6
STATUTES 29 U.S.C. §1144 ......................................................................................................... 4
RULES Fed. R. App. P. Rule 35(a) ......................................................................................... 1 Fed. R. App. P. Rule 35(b)(1)(B)............................................................................... 1 FRCP 52(a)(6) ............................................................................................................ 6
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Defendant/Appellant (Shannon Chambers), by and through counsel, Nevada
Attorney General Adam Paul Laxalt, Bureau Chief Gregory L. Zunino and Deputy
Attorney General Melissa L. Flatley, respectfully submits this brief pursuant to this
Court’s direction to respond to Plaintiff-Appellees’ Petition for Rehearing En
Banc, filed with this Court on October 18, 2018.
STANDARD FOR DECISION
The standard for rehearing en banc is set out in Rule 35 of the Federal Rules
of Appellate Procedure. Rule 35 provides that rehearing en banc is not favored and
ordinarily will not be granted by a United States Court of Appeals unless the
decision in question conflicts with other decisions of that Court or the United
States Supreme Court, or presents a question of exceptional importance. Fed. R.
App. P. Rule 35(a). The rule provides only one example of a question of
exceptional importance, namely a question on which a panel decision conflicts
with the authoritative decisions of other United States Courts of Appeal on the
same question. Fed. R. App. P. Rule 35(b)(1)(B).
As a practical matter, then, a decision should never raise a question of
exceptional importance if the applicable law is well settled, or if the question itself
has no bearing upon actual rights or obligations. Here, as it pertains to the question
of mootness, the law is relatively well settled and has no bearing upon actual rights
or obligations. And as it pertains to questions about the scope of ERISA
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preemption, the law is beyond dispute. Accordingly, there is no basis upon which
to grant rehearing en banc.
ARGUMENT AND AUTHORITIES
This case is not in conflict with the decision of any other court on the issues
of mootness or ERISA preemption, nor does it present an issue of exceptional
importance as contemplated by Rule 35. The standard for rehearing en banc has
not been satisfied.
I. The Opinion is Consistent with the Supreme Court’s Decisions on Mootness.
A legislative change adopted in direct response to an adverse decision of a
district court does not render the case moot “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 a practice.” Thalheimer v.
City of San Diego, 645 F.3d 1109, 1125 (9th Cir. 2011), citing Jacobus v. Alaska,
338 F.3d 1095, 1102 (9th Cir. 2003) (quoting Carreras v. City of Anaheim, 768
F.2d 1039, 1047 (9th Cir. 1985)). Only in rare cases will such a case be rendered
moot on the basis of a showing that “subsequent events made it absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur.”
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, n.10 (1982).
The dissent in this case identified three 9th Circuit cases that promote a
different standard purportedly adopting a presumption of mootness when there has
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been a statutory change that seeks to remedy the alleged wrong. This conflicting
standard would hold “that statutory change moots a case unless it is ‘virtually
certain’ the repealed law will be reenacted.” Board of Trustees of Glazing Health v.
Chambers, 903 F.3d 829, 858 (9th Cir. 2018) (Wallace, J., dissenting), citing
Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994).
Chemical Producers and Distributors Ass’n v. Helliker, 463 F.3d 871 (9th Cir.
2006) and Log Cabin Republicans v. U.S., 658 F.3d 1162 (9th Cir. 2011) follow
from this decision.
Appellees recycle the dissent’s argument as their justification for requesting
rehearing en banc. But they ignore that the opinion of the panel majority gives
effect to all of the Ninth Circuit precedent, including the controlling precedent of
City of Mesquite, and further distinguishes the Noatak line of case from
Thalheimer and its predecessors. Construed in its entirety, the body of relevant
precedent provides ample support for the Court’s decision here. Moreover, the
question of mootness is peripheral to the core dispute in this case. As such, the
question of mootness is academic, while the core dispute underscores a recurring
real-world problem for state governments. Because the Court’s decision draws
from a vast body of undisputed federal case law addressing the scope of ERISA
preemption, Appellees cannot reasonably argue that the Court’s analysis of ERISA
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preemption deviates from applicable legal standards, or that there is anything less
than a unanimous consensus about those standards.
II. The Opinion is Consistent with the Decisions of the Supreme Court and the Circuit on ERISA Preemption.
A state law “reference to” ERISA plans does not alone conflict with
ERISA. Although the earliest applications of ERISA preemption applied a
superficial analysis with a focus upon the “relate to” clause of §514(a) of ERISA,
29 U.S.C. §1144—meaning that a mere reference in state law to an ERISA
governed entity could summarily trigger fatal judicial scrutiny at the federal
level—the Supreme Court recognized that this “uncritical literalism” could not be
sustained. Gobeille v. Liberty Mutual Ins. Co., 136 S. Ct. 936, (2016), citing New
York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645, 656 (1995). Under modern standards of federalism and
constitutional jurisprudence, the federal courts will not invalidate the state law at
issue unless it “act[s] immediately and exclusively on ERISA plans” or makes the
existence of ERISA plans essential to the law’s operation. California Div. of Labor
Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 324–35
(1997), @ Maj.Op. 943.
While the U.S. Supreme Court has not addressed the concept of reference
preemption since its decision in Dillingham, the Ninth Circuit has developed the
reasoning of that decision with its own body of case law interpreting ERISA.
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Beginning with Southern California IBEW-NECA Trust Funds v. Standard Indus.
Elec Co., 247 F.3d 920, 929 (9th Cir. 2001), the Court has expressly backed away
from the “previously expansive preemption language prior to Travelers.” And it
has further identified “no fewer than six different tests used since Travelers to
determine whether a state statute was pre-empted by ERISA.” Id. at 927, n.12. The
“central element” of all six tests is to determine whether the state law claim “bears
on an ERISA governed relationship.” Id.
And despite its recognition of six different tests on the subject of ERISA
preemption, the Court’s decisions are consistent. In fact, the Court’s analysis in
this case is similar to that used in Golden Gate Restaurant Ass’n v. City and
County of San Francisco, 546 F.3d 639 (9th Cir. 2008), where the Court
considered whether a challenged state law concretely impacted ERISA plans—just
as the Court has done multiple times before.1 Although Appellees apparently
disagree with this well-established approach to ERISA preemption analysis, they
fail to identify an “intracircuit conflict” susceptible to resolution through en banc
review.
According to Appellees, the District Court correctly concluded that Nevada
Senate Bill 223 (SB 223) was preempted by ERISA because of the state law’s
1 Interestingly, the Petition for Rehearing En Banc in Golden Gate Restaurant raised many of the same arguments raised in the Appellees Petition here. The Golden Gate Restaurant petition was denied; so should Appellees’ petition in the present case.
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express reference to “Taft-Hartley trusts.” Petition for Rehearing at 11. But such a
superficial test for assessing the potential interplay between state law and ERISA is
precisely the type of “uncritical literalism” that the Supreme Court and this Circuit
have rejected. In short, the District Court’s analysis ignored this Court’s more
nuanced standards for evaluating ERISA preemption.
The Appellees also criticize the Court’s analysis of SB 223, taking the
position that the Court should have deferred to the District Court’s findings of fact.
A challenge of this nature is not a proper basis for a petition for rehearing en banc,
but Appellant will respond in an abundance of caution. The standard of review of a
motion for summary judgment is de novo. Ascaro LLC v. Atl. Richfield Co., 866
F.3d 1108, 1118 (9th Cir. 2017). Any findings of fact in an order granting
summary judgment are not entitled to deference. Heiniger v. City of Phoenix, 625
F.2d 842, 843–44 (9th Cir. 1980). The “clearly erroneous” standard of FRCP
52(a)(6) is inapplicable. Id. Additionally, ERISA preemption is a question of law.
Waks v. Empire Blue Cross/Blue Shield, 263 F.3d 872, 874 (9th Cir. 2001). The
panel majority properly reconsidered each portion of SB 223 in its analysis of
ERISA preemption.
CONCLUSION
In support of their petition for rehearing en banc, Appellees advance little
more than a policy argument—that states will unfairly target ERISA plans in the
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absence of a federal judiciary that mechanically strikes down any state law which
makes a passing reference to ERISA plans. Aside from the hyperbole, such a
policy argument raises no question of “exceptional importance” warranting
rehearing en banc. To say that the Court’s decision has “enormous” policy
implications, or is of “singular importance” to ERISA benefit plans, says nothing
about whether it conflicts with existing law on the subject of ERISA preemption. It
is the burden of the petitioner for a rehearing en banc to demonstrate that the
decision of a panel from the Ninth Circuit presents an issue of exceptional
importance. Appellees have failed to meet their burden.
Respectfully submitted this 21st day of December 2018.
ADAM PAUL LAXALT Attorney General
By: s/Melissa L. Flatley MELISSA L. FLATLEY Deputy Attorney General
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STATEMENT OF RELATED CASES
The undersigned asserts that to the best of his knowledge, there are no other
related cases pending in the Ninth Circuit Court of Appeals.
Respectfully submitted this December 21, 2018.
ADAM PAUL LAXALT Attorney General
By: s/Melissa L. Flatley MELISSA L. FLATLEY Deputy Attorney General
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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. 32(a)(7)(C) and CIRCUIT RULE 32-1 FOR CASE NUMBER 16-15588
Pursuant to Ninth Circuit Rule 32(a)(5), I certify that the attached answering
brief is proportionately spaced, has a typeface of 14 points or more and contains
2264 words.
Respectfully submitted this 21st day of December 2018.
ADAM PAUL LAXALT Attorney General
By: s/Melissa L. Flatley MELISSA L. FLATLEY Deputy Attorney General
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on December 21, 2018.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Adam P. Segal, Esq. [email protected] Bryce C. Loveland, Esq. [email protected] Brownstein Hyatt Farber Schreck, LLP 100 North City Parkway, Suite 1600 Las Vegas, Nevada 89106-4614 Telephone: (702) 382-2101 Counsel for Appellees Plumbers Joint Trust Funds Daryl E. Martin, Esq. [email protected] Wesley J. Smith, Esq. [email protected] Christensen James & Martin 7440 West Sahara Avenue Las Vegas, Nevada 89117 Telephone: (702) 255-1718 Counsel for Appellees Painters & Glaziers Joint Trust Funds and Employee Painters’ Trust s/ Sandra Geyer Sandra Geyer, an employee of the office of the Nevada Attorney General
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