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Cummings v. Dean

United States Court of Appeals, Tenth Circuit

January 24, 2019

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,
v.
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.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CV-00951-JAP-KK)

          Thomas 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 Defendant/Cross-Appellee.

          Shane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs), Youtz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees /Cross-Appellants.

          Before LUCERO, HOLMES, and EID, Circuit Judges.

          HOLMES, CIRCUIT JUDGE.

         Jason 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.

         In the 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.

         Defendants 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.

         Both 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 due-process rights.

         For the 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.

         I

         We first present the state statutory context for Plaintiffs' claims and then review the relevant facts.

         A

         Every 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 23, 2016.

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"].

         The 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).

         B

         By 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 done.").

         Despite 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. § 11.1.2.17(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. § 11.1.2.17(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 ...


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