United States District Court, D. New Mexico
CELINA BUSSEY, SECRETARY OF THE NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, and JASON DEAN, as the DIRECTOR OF THE LABOR RELATIONS DIVISION OF THE NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, in their individual capacities, Defendants. 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, and BRYAN WHEELER, on behalf of themselves and all others similarly situated, Plaintiffs,
MEMORANDUM OPINION AND ORDER
allege that Defendants Celina Bussey, Secretary of the New
Mexico Department of Workforce Solutions (Bussey, or the
Secretary) and Jason Dean, the Director of the Labor
Relations Division of the New Mexico Department of Workforce
Solutions (Dean, or the Director) (together, Defendants)
violated Plaintiffs' federal rights to procedural and
substantive due process by failing to issue prevailing wage
determinations in accordance with the New Mexico Public Works
Minimum Wage Act (NMPWMWA, or the Act), NMSA 1978,
§§ 13-4-10 to -17. See FIRST AMENDED
COMPLAINT FOR VIOLATION OF PROCEDURAL AND SUBSTANTIVE
PROCEDURAL [sic] DUE PROCESS RIGHTS UNDER 42 U.S.C. §
1983 (Doc. No. 2) (Complaint). Plaintiffs are individuals who
performed work on government public works projects in the
three years preceding the filing of the Complaint and who
claim they did not receive the wages to which they were
entitled under the Act. Compl. ¶¶ 1-7, 23. They
seek to recover damages for themselves and all others
similarly situated. Compl. ¶¶ 8. Defendants assert
qualified immunity and ask the Court to dismiss the
Complaint. See DEFENDANTS' MOTION TO DISMISS
PLAINTIFFS' COMPLAINT BASED UPON QUALIFIED IMMUNITY (Doc.
No. 17) (Motion). The Motion has been fully briefed.
See PLAINTIFFS' RESPONSE TO DEFENDANTS'
MOTION TO DISMISS PLAINTIFFS' COMPLAINT BASED UPON
QUALIFIED IMMUNITY (Doc. No. 23) (Response); DEFENDANTS'
REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS'
COMPLAINT BASED UPON QUALIFIED IMMUNITY (Doc. No. 25)
(Reply). The Court will grant the Motion in part and deny the
Motion in part.
Mexico, contracts for the “construction, alteration,
demolition, or repair of public buildings, public works, or
public roads in excess of $60, 000 to which the State or any
political subdivision of the State is a party [are] required
to contain a provision stating the minimum wages and fringe
benefits for all trades which perform work on the
project.” Compl. ¶ 13. The NMPWMWA sets forth the
procedure by which the Director must determine these minimum
wages and fringe benefits. Compl. ¶ 14; NMSA 1978,
§ 13-4-11(B). Before § 13-4-11(B) was amended in
2009, it required the Director to “conduct a continuing
program for the obtaining and compiling of wage-rate
information, ” to “encourage the voluntary
submission of wage-rate data by contractors, contractors'
associations, labor organizations, interested persons and
public officers, ” and to “give due regard to the
information thus obtained” before determining the wage
rates for any project. NMSA 1978, § 13-4-11(B) (2005).
Other than “due regard” the statute did not
specify any relationship between the data obtained by the
Director and the wage rates then set for public works
projects. But in 2009, the Act was amended to specifically
require that the Director
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.
NMSA 1978, § 13-4-11(B) (2009). If no local collective
bargaining agreements (CBAs) exist that are applicable to the
class of labor, the Director must look to the nearest and
most similar location or labor classification for which a CBA
does exist. § 13-4-11(B)(1). While “any interested
person” still has the right to submit information to
which the Director must “give due regard, ”
§ 13-4-11(B)(2)-(3), the rates and benefits must be set
according to CBAs. See N.M. Bldg. & Constr. Trades
Council v. Dean, 2015-NMSC-023, ¶ 21, 353 P.3d 1212
(issuing “writ of mandamus ordering the Director to
comply with the Act and set rates in accordance with
the July 1, 2009 effective date of the amendments, a group of
nonunion contractors challenged the Act as unconstitutional,
alleging violations of due process and equal protection
because the Act required prevailing wages to be determined
according to union CBAs. See COMPLAINT FOR
DECLARATORY JUDGMENT, TO HOLD A STATUTE UNCONSTITUTIONAL AND
VOID AS THE STATUTE VIOLATES PLAINTIFFS' DUE PROCESS,
EQUAL PROTECTION, THE PUBLIC POLICY OF THE STATE OF NEW
MEXICO AND FOR INJUNCTIVE RELIEF, N.M. Associated
Builders & Contractors v. Dep't of Workforce
Solutions, No. 09-CV-546 WJ/ACT (D. N.M. June 4, 2009),
Doc. No. 1 (2009 Complaint). Labor union organization New
Mexico Building and Construction Trades Council (NMBCTC)
moved to intervene in defense of the Act, but District Judge
William Johnson denied the motion. See MEMORANDUM
OPINION & ORDER DENYING MOTION TO INTERVENE, N.M.
Associated Builders & Contractors v. Dep't of
Workforce Solutions, No. 09-CV-546 WJ/ACT (D. N.M. Aug.
20, 2009), Doc. No. 24. While the suit was pending, the same
nonunion contractors also filed an administrative appeal
challenging the regulations adopted on December 9, 2009 to
implement the amended Act. See Mot. Ex. A, Appeal to
the Labor & Industrial Commission (LIC). The notice of
appeal referenced the pending federal case under the statute
and argued that the regulations were invalid for
substantially the same reasons, in addition to challenging
the rule making process. Id.
Johnson dismissed the 2009 Complaint for lack of standing
because the nonunion contractors had not demonstrated
imminent injury to a protected interest, leaving the merits
of the claim undecided. See MEMORANDUM OPINION &
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS, N.M.
Associated Builders & Contractors v. Dep't of
Workforce Solutions, No. 09-CV-546 WJ/ACT (D. N.M. Mar.
9, 2010), Doc. No. 39. On July 7, 2010, the LIC denied the
administrative appeal on the grounds that the Director had
substantially complied with the rule making process and that
any substantive objections to the regulations were either
without merit or beyond the purview of the Commission because
they were rooted in objections to the statute itself.
See Mot. Ex. B, Administrative Opinion & Order.
However, the LIC stayed the new regulations pending the
resolution of any judicial appeal or the expiration of the
time in which an appeal could be filed. Id.
nonunion contractors continued to challenge the Act. In two
separate actions in July and August of 2010, they appealed
the LIC's decision to the State of New Mexico First
Judicial District Court. See Mot. Ex. C, 2011
Petition for Writ of Mandamus ¶¶ 51-58. They also
appealed two subsequent decisions by the LIC that had
dismissed their attempts to administratively appeal two
announcements by the then-Director of the Labor Relations
Division, one that sought the voluntary submission of
information needed to set prevailing wage rates for 2011
under the Act, and a second that contained notice of a
hearing scheduled for setting those 2011 rates. Id.
¶¶ 59-72. Finally, on December 23, 2010, they filed
an appeal with the LIC from the notice of new prevailing wage
rates that were scheduled to take effect in 2011.
Id. ¶¶ 73-74.
interested person may appeal a determination of the Director
to the LIC. NMSA 1978, § 13-4-15. Within ten days of
filing the appeal, the LIC must set a hearing to be held
within 30 days, and must then issue a decision within ten
days after that hearing. Id. Accordingly, the LIC
scheduled a hearing on the appeal from the proposed 2011
rates to be held January 19, 2011. But on January 13, two of
the three members of the LIC were removed from their
positions, effective immediately, by newly-elected New Mexico
Governor Susana Martinez. See Mot. Ex. C, 2011
Petition for Writ of Mandamus ¶¶ 27, 77. The
nonunion contractors then moved the LIC to vacate the
hearing, which it did. Id. ¶ 78. Governor
Martinez appointed two new LIC members on January 27, 2011,
one of whom was the President of a group of nonunion
contractors involved in these appeals. Id.
¶¶ 34-35. The Governor also appointed Secretary
Bussey, who had previously been an executive officer of one
of the nonunion groups challenging the Act. Id.
¶¶ 27-28. Despite its statutory mandate, the
reconstituted LIC did not reschedule the hearing, and the
rates calculated for 2011 did not take effect. Id.
¶¶ 45-46, 81; see NMAC 188.8.131.52(B)(1)
(filing of notice of appeal stays the effectiveness of any
April of 2011, nearly two years after the July 1 effective
date for the 2009 amendments to the Act, the nonunion
contractors were involved in five unresolved appeals related
to those amendments, four pending before the State of New
Mexico First Judicial District Court and one before the LIC.
See Mot. Ex. C, 2011 Petition for Writ of Mandamus
¶ 14. The Director had never set prevailing wages
according to CBAs, and had not set new rates at all since
determining the 2010 rates using the old methods in 2009.
Id. ¶ 45; N.M. Bldg. & Constr. Trades
Council, 2015-NMSC-023, ¶ 3. Consequently, on April
13, 2011 the NMBCTC filed a Petition for Writ of Mandamus
asking the New Mexico Supreme Court to compel the Director to
set prevailing wage and benefit rates in accordance with CBAs
as required by the Act. See Mot. Ex. C, 2011
Petition for Writ of Mandamus. The Court denied the writ on
June 15, 2011. See Mot. Ex. D, 2011 Order Denying
Writ of Mandamus; N.M. Bldg. & Constr. Trades
Council, 2015-NMSC-023, ¶ 3. However, the denial
was not on the merits of the legal issue, but in reliance on
statements made in oral argument by counsel for the Secretary
that a writ of mandamus was not necessary to achieve
compliance with the Act. N.M. Bldg. & Constr. Trades
Council, 2015-NMSC-023, ¶ 3. The Secretary's
counsel assured the Court that the Secretary was
“intent on getting this done” and that the
Director could set new rates within four or five months.
March 2012, the Secretary promulgated new regulations and
amended others implementing the Act, but did not set new
prevailing wage and benefit rates. See Id.
¶¶ 3-4. NMBCTC challenged these regulations before
the LIC, but waived its right to stay the effectiveness of
the rules during the appeal process in the interest of having
“the Department . . . 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.” Mot. Ex. E, 2012 Notice of LIC Appeal.
NMBCTC also requested that the LIC waive any automatic stay
of the regulations. Id. But the Director still did
not set new rates. N.M. Bldg. & Constr. Trades
Council, 2015-NMSC-023, ¶ 3. The LIC denied the
appeal on July 29, 2014, see Mot. Ex. F, 2014 LIC
Order on Appeal, and NMBCTC sought judicial review of the
denial in the State of New Mexico Second Judicial District
Court, see Mot. Ex. G, 2014 Notice of Appeal;
N.M. Bldg. & Constr. Trades Council v. Bussey,
Case No. D-202-CV-2014-05512. By June of 2015, the
state-court litigation was still pending and the Director had
yet to set new prevailing wage and benefit rates despite the
prior assurances made to the New Mexico Supreme Court.
See N.M. Bldg. & Constr. Trades Council,
2015-NMSC-023, ¶¶ 3-4.
NMBCTC filed a second Petition for Writ of Mandamus with the
New Mexico Supreme Court in 2015, again asking the Court to
compel the Director to set prevailing wage and benefit rates
in accordance with CBAs. Id. ¶¶ 2-3. This
time the Court granted the writ and issued an opinion holding
that “under the Act, specifically Section 13-4-11, the
Director has a mandatory, nondiscretionary duty to set
prevailing wage and prevailing benefit rates the same as
those negotiated in applicable CBAs.” Id.
¶ 21. The Court ordered the Director to set rates in
accordance with CBAs within 30 days of the issuance of the
June 15, 2015 opinion, and to continue to set rates in that
Director's persistent failure to comply with the amended
Act resulted in the use of prevailing wage rates that were
not equivalent to CBAs or even updated from the 2009
determinations until after the writ of mandamus issued in
June of 2015. Compl. ¶¶ 19-20. Plaintiffs were paid
less and received fewer benefits than they should have for
the work they performed on public works projects from 2009
until the date of the Complaint because the minimum wages and
benefits guaranteed by their contracts were lower than the
prevailing rates required by the Act. Compl. ¶¶
21-23. Plaintiffs assert that Defendants' actions
violated their constitutional rights to substantive and
procedural due process. Compl. ¶¶ 8, 42-43, 48.
bring their due-process claims under the Fourteenth Amendment
and 42 U.S.C. § 1983. See Compl. ¶¶
8, 37, 48. The Court has original jurisdiction over these
claims under 28 U.S.C. § 1331 and 28 U.S.C. §
1343(a)(3). Defendants answered the Complaint, see
DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT FOR
VIOLATION OF PROCEDURAL AND SUBSTANTIVE PROCEDURAL [sic] DUE
PROCESS RIGHTS UNDER 42 U.S.C. § 1983 (Doc. No. 9), but
then moved for judgment on ...