RANDY CUMMINGS; CRUZ GALLEGOS; ROBERT J. GARCIA; RICHARD GONZALES; ELOY A. JARAMILLO; DAVID LARRANAGA; JOSEPH LOPEZ; RICK LOPEZ; DAVID MONTANO; ANGELO RINALDI; CHRIS SWEENEY; JOSH TILLINGHAST; TOMAS TRUJILLO; JEFFREY S. WADE; JOSHUA HOSELTON; CHARLES W. LEES; JAIME MARQUEZ; ROBERT MENDOZA; ARMANDO ANCHONDO; GUSTAVO BERROSPE; REYES CABRIALES; SERGIO ESCOBEDO; JASON HEAD; NICK HINOJOS; ROBERT G. HITZMAN; MICHAEL LOPEZ; JOSE RODRIGUEZ; SERGIO A. ROJO; RICHARD TENORIO; CESAR TORRES; GRANT WILLIS; HAROLD BROWN; RENE CARRILLO; HENRY NEZ, JR.; KURT JOHNSON; JESUS AGUILAR-MURILLO; MARTIN F. ALVAREZ; ARTHUR ARCHULETA; ENRIQUE CORONA; RONALD HUBBARD; ANDREW M. LUGO; HENRY LUJAN; DAVID CARR; D. JEREMIAH CORDOVA; KEVIN CHARVEA; NATHAN ESPALIN; LEVI GUTIERREZ; DENNIS MOORE; ROBERT MORENO; LEVI OLIVAS; THOMAS D. PAYNE; BRYAN WHEELER, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees/Cross-Appellants,
JASON DEAN, as the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions, in his individual capacity, Defendant-Appellant/Cross-Appellee and CELINA BUSSEY, Secretary of the New Mexico Department of Workforce Solutions, in her individual capacity, Defendant/Cross-Appellee.
from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CV-00951-JAP-KK)
Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico
(Jason J. Lewis, Law Office of Jason J. Lewis, LLC,
Albuquerque, New Mexico; Marshall J. Ray, Law Offices of
Marshall J. Ray, LLC, Albuquerque, New Mexico; and Sean
Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico,
on the briefs), for Defendant - Appellant/Cross-Appellee and
Youtz (James A. Montalbano and Stephen Curtice, with him on
the briefs), Youtz & Valdez, P.C., Albuquerque, New
Mexico, for Plaintiffs - Appellees /Cross-Appellants.
LUCERO, HOLMES, and EID, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
Dean, director of the Labor Relations Division of the New
Mexico Department of Workforce Solutions ("DWS"),
raises this appeal from the district court's denial of
qualified immunity against the claim that he violated
Plaintiffs' constitutional rights to substantive due
process by failing to issue prevailing rates for wages and
fringe benefits as required by New Mexico law.
action below, Plaintiffs, individuals who worked on public
works projects in New Mexico, filed claims under 42 U.S.C.
§ 1983 on behalf of themselves and others similarly
situated, alleging that Director Dean and Celina Bussey,
secretary of the DWS, violated Plaintiffs' procedural and
substantive due-process rights by failing to determine
prevailing rates for wages and fringe benefits in
contravention of the New Mexico Public Works Minimum Wage Act
("Act"), N.M. Stat. Ann. § 13-4-11(B) (West
2009). Plaintiffs alleged that, as a result of this failure,
from 2009 to 2015 they did not receive the rates to which
they were entitled under the Act.
filed a motion to dismiss, claiming qualified immunity. The
district court granted it in part and denied it in part.
Specifically, the district court granted the motion in its
entirety as to Secretary Bussey, and as to Plaintiffs'
procedural due-process claim against Director Dean. However,
the court denied the motion with respect to Director Dean on
Plaintiffs' substantive due-process claim.
parties now appeal from the district court's ruling. In
Case No. 17-2072, Director Dean appeals from the court's
denial of qualified immunity as to Plaintiffs'
substantive due-process claim, while in Case No. 17-2079,
Plaintiffs cross-appeal the district court's dismissal of
(1) their claims against Secretary Bussey, and (2) their
claim against Director Dean for violation of their procedural
reasons stated below, we dismiss
Plaintiffs' cross-appeal, Case No. 17-2079, for lack of
jurisdiction, and reverse and remand the
district court's denial of qualified immunity as to
Director Dean on Plaintiffs' substantive due-process
claim in Case No. 17-2072.
first present the state statutory context for Plaintiffs'
claims and then review the relevant facts.
contract for public works in New Mexico in excess of $60,
000-including those involving construction and demolition-is
required to state the minimum wages and fringe benefits for
all tradespeople that work on a particular project. The
director of the Labor Relations Division of DWS ("the
director") is tasked with publishing a schedule of
minimum wages and fringe benefits for such laborers and
mechanics. Generally, Plaintiffs are individuals who worked
on public-works projects in New Mexico during the three years
prior to the date of the filing of their lawsuit on August
Prior to 2009, § 13-4-11(B) of the Act provided:
[The director] shall conduct a continuing program for the
obtaining and compiling of wage-rate information and shall
encourage the voluntary submission of wage-rate data by
contractors, contractors' associations, labor
organizations, interested persons and public officers. Before
making a determination of wage rates for any project, the
director shall give due regard to the information thus
obtained. Whenever the director deems that the data at hand
are insufficient to make a wage determination, the director
may have a field survey conducted for the purpose of
obtaining sufficient information upon which to make [a]
determination of wage rates. Any interested person shall have
the right to submit to the director written data, views and
arguments why the wage determination should be changed.
N.M. Stat. Ann. § 13-4-11(B) (West 2005). In 2009,
§ 13-4-11(B) of the Act was amended to state:
The director shall determine prevailing wage rates and
prevailing fringe benefit rates for respective classes of
laborers and mechanics employed on public works projects at
the same wage rates and fringe benefit rates used in
collective bargaining agreements between labor organizations
and their signatory employers that govern predominantly
similar classes or classifications of laborers and mechanics
for the locality of the public works project and the crafts
involved; provided that:
(1) if the prevailing wage rates and prevailing fringe
benefit rates cannot reasonably and fairly be determined in a
locality because no collective bargaining agreements exist,
the director shall determine the prevailing wage rates and
prevailing fringe benefit rates for the same or most similar
class or classification of laborer or mechanic in the nearest
and most similar neighboring locality in which collective
bargaining agreements exist;
(2)the director shall give due regard to information obtained
during the director's determination of the prevailing
wage rates and the prevailing fringe benefit rates made
pursuant to this subsection;
(3)any interested person shall have the right to submit to
the director written data, personal opinions and arguments
supporting changes to the prevailing wage rate and prevailing
fringe benefit rate determination; and
(4) prevailing wage rates and prevailing fringe benefit rates
determined pursuant to the provisions of this section shall
be compiled as official records and kept on file in the
director's office and the records shall be updated in
accordance with the applicable rates used in subsequent
collective bargaining agreements.
N.M. Stat. Ann. § 13-4-11(B) (West 2009) [hereinafter
"the 2009 Amendments"].
2009 Amendments had the primary effect of requiring the
director to determine the prevailing rates based on the wage
rates and fringe-benefit rates used in collective bargaining
agreements ("CBAs"), as opposed to the earlier
version of the statute's mandate to simply collect data
for the "purpose of obtaining sufficient information
upon which to make [a] determination of wage rates."
N.M. Stat. Ann. § 13-4-11(B) (West 2005); see
also Aplt.'s App. at 151-52 (Mem. Op. & Order,
dated Apr. 20, 2017).
April 2011-almost two years after the 2009 Amendments came
into force-the director still had not set prevailing-wage
rates according to the CBAs. The New Mexico Building and
Construction Trades Council ("NMBCTC"), "an
alliance of craft unions" that represent New Mexico
public workers, N.M. Bldg. & Constr. Trades Council
v. Dean, 353 P.3d 1212, 1214 (N.M. 2015), filed a
Petition for Writ of Mandamus in the New Mexico Supreme Court
requesting that the court compel the director to set
prevailing wage and prevailing benefit rates in accordance
with relevant CBAs. The New Mexico Supreme Court denied the
writ, but did so on the basis of a representation by the DWS
secretary's ("the secretary") counsel that the
secretary would set new rates within four or five months.
See id. (quoting counsel's statement during oral
arguments in 2011: "I would say [setting the rates]
could conceivably be done in four or five months, which I
don't think is unreasonable, especially since the
secretary has assured me, and I'm assuring the Court,
that she's intent on getting this done. I don't think
it requires a writ of mandamus to get it done. But, whatever
the Court desires, I'm confident she'll get it
this assurance from the secretary's counsel, the
secretary did not set new prevailing wage or prevailing
benefit rates, even though in 2012 she oversaw the
promulgation of new regulations and the amendment of others
as required by the Act. Id. at 1214-15. The NMBCTC
challenged these new regulations before the New Mexico Labor
and Industrial Commission ("LIC"). Typically, a
challenge to a new regulation filed with the LIC stays the
implementation of that regulation pending resolution of the
challenge, see N.M. Code R. § 126.96.36.199(B)(1),
but the NMBCTC requested that the LIC waive the automatic
stay if necessary to allow the DWS to proceed with
determining new prevailing rates:
Pursuant to [N.M. Code R. § 188.8.131.52(B)(1)], Appellant
waives its right to stay the effectiveness of the new rules
through the filing of this appeal as those rules relate to
the determination of new prevailing rates to replace the
rates currently in effect. . . . Appellant desires the
Department to update the prevailing rates in some manner as
soon as possible given that the current rates are based on
2009 data and have not been updated for more than two years.
If necessary, Appellant requests the Commission to waive the
automatic stay as herein described as well.
Aplt.'s App. at 106 (Ex. E, Notice of Appeal, dated Mar.
27, 2012). The LIC denied the NMBCTC's challenge, and the
NMBCTC appealed that decision to the state district court.
The LIC did not act to lift the ...