May 31, 2017- William Shawn Cates and Bobby Cheresposy v. Mosher Enterprises, Inc., No. 34,867

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number

Filing Date: May 31, 2017

NO. 34,867

WILLIAM SHAWN CATES and
BOBBY CHERESPOSY, on behalf of
themselves and all others similarly situated,

Plaintiffs-A ppellants,
V.
MOSHER ENTERPRISES, INC.,
Defendant- A ppellee/Third- Party Plaintiff,
V.
FLINICO WEST, INC.,
Third-Party Defendant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Y outz & Valdez, P.C.
Shane C. Y outz.
Stephen Curtice
James A. Montalbano
Albuquerque, NM

for Appellants

Bingham, Hurst & Apodaca, P.C.
Wayne E. Bingham
Albuquerque, NM

for Appellee

OPINION
SUTIN, Judge.
{1} 	Plaintiffs 	William 	Shawn 	Cates 	and 	Bobby 	Cheresposy, 	on 	behalf 	of
themselves and all others similarly situated, appeal, contending that the district court
erred in determining that it did not have jurisdiction to entertain their private action
under the Public Works Minimum Wage Act (the Act), NMSA 1978, §§ 13-4-10 to
-17 (1937, as amended through 2011). Plaintiffs sought to recover from Defendant
Mosher Enterprises, Inc. wages for 2009 work that they allege were incorrectly based
on the 2008 prevailing wage determined by the Department of Workforce Solutions
(the Department). The district court determined that the Act did not confer a private
right of action and dismissed Plaintiffs’ action for lack of jurisdiction, without
prejudice, so that Plaintiffs could pursue their administrative remedies. We hold that
the Legislature intended to create a private right of action under the Act.
BACKGROUND
{2} 	Plaintiffs sued, alleging that they and others similarly situated were not
compensated the appropriate wage rate for all hours worked on a renovation project
for the University of New Mexico. A class was certified, and each party filed a motion
for summary judgment as to liability. During the hearing on the parties’ motions for
summary judgment, the district court raised sua sponte the question of whether the Act

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provided for a private right of action. Plaintiffs argued that “the intent of the
[L]egislature was to make [a] provision for a private right of action.” Plaintiffs
referenced a ruling from a different district court judge determining that there was a
private right of action under the Act and represented that “[i]t is one of those legal
issues . . . that parties to these cases don’t litigate anymore.” Plaintiffs explained that
it was “generally accepted that there is a private right of action.”
{3} 	Following the hearing, the district court issued a letter to counsel expressing
concern about whether the Act permits a private action for damages without first
exhausting administrative remedies. And the court invited supplemental briefing on
the question. After supplemental briefing, the court determined that, unlike the New
Mexico Minimum Wage Act, the Act does not confer a private right of action. The
court reasoned that the “[Act] contemplates an administrative procedure and directs
the Director to make the initial determination of [the Act] violations and the
subsequent reference for appropriate legal action. The [Act] provides an appeal
process of the Director’s decision, first to the Labor and Industrial Commission and
then to the District Court.” (Citations omitted.) The court dismissed the case without
prejudice to allow Plaintiffs the opportunity to pursue their administrative remedies
before bringing the case before the district court. This appeal followed.

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DISCUSSION
{4} 	At the heart of the controversy are statutory provisions that, with apologies for
the length of the quoted material, we fully set out here. Section 13-4-14 reads:
A. 	The director shall certify to the contracting agency the
names of persons or firms the director has found to have disregarded
their obligations to employees under the . . . Act and the amount of
arrears. The contracting agency shall pay or cause to be paid to the
affected laborers and mechanics, from any accrued payments withheld
under the terms of the contract or designated for the project, any wages
or fringe benefits found due to the workers pursuant to the . . . Act. The
director shall, after notice to the affected persons, distribute a list to all
departments of the state giving the names of persons or firms the director
has found to have willfully violated the . . . Act. No contract or project
shall be awarded to the persons or firms appearing on this list or to any
firm, corporation, partnership or association in which the persons or
firms have an interest until three years have elapsed from the date of
publication of the list containing the names of the persons or firms. A
person to be included on the list to be distributed may appeal the finding
of the director as provided in the . . . Act.
B. 	If the accrued payments withheld under the terms of the
contract, as mentioned in Subsection A of this section, are insufficient to
reimburse all the laborers and mechanics with respect to whom there has
been a failure to pay the wages or fringe benefits required pursuant to the
. . . Act, the laborers and mechanics shall have the right of action or
intervention or both against the contractor or person acting as a
contractor and the contractor’s or person’s sureties, conferred by law
upon the persons furnishing labor and materials, and, in such proceeding,
it shall be no defense that the laborers and mechanics accepted or agreed
to less than the required rate of wages or voluntarily made refunds. The
director shall refer such matters to the district attorney in the appropriate
county, and it is the duty and responsibility of the district attorney to
bring civil suit for wages and fringe benefits due and liquidated damages
provided for in Subsection C of this section.

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C. 	In the event of any violation of the . . . Act or implementing
rules, the contractor, subcontractor, employer or a person acting as a
contractor responsible for the violation shall be liable to any affected
employee for the employee’s unpaid wages or fringe benefits. In
addition, the contractor, subcontractor, employer or person acting as a
contractor shall be liable to any affected employee for liquidated
damages beginning with the first day of covered employment in the sum
of one hundred dollars ($100) for each calendar day on which a
contractor, subcontractor, employer or person acting as a contractor has
willfully required or permitted an individual laborer or mechanic to work
in violation of the provisions of the . . . Act.
D. 	In an action brought pursuant to Subsection C of this
section, the court may award, in addition to all other remedies, attorney
fees and costs to an employee adversely affected by a violation of the . . .
Act by a contractor, subcontractor, employer or person acting as a
contractor.
(Citation omitted.) We note Plaintiffs’ care to highlight Subsections (A) and (B) of
Section 13-4-14 are comparable to sections of the federal Davis-Bacon Act (Davis-
Bacon), 40 U.S.C. § 3144 (2013), which read as follows:
(a) 	Payment of wages.--
(1) 	In general.--The Secretary of Labor shall pay directly to
laborers and mechanics from any accrued payments withheld
under the terms of a contract any wages found to be due laborers
and mechanics under this subchapter.
(2) 	Right of action.--If the accrued payments withheld under
the terms of the contract are insufficient to reimburse all the
laborers and mechanics who have not been paid the wages
required under this subchapter, the laborers and mechanics have
the same right to bring a civil action and intervene against the
contractor and the contractor’s sureties as is conferred by law on
persons furnishing labor or materials. In those proceedings it is

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not a defense that the laborers and mechanics accepted or agreed
to accept less than the required rate of wages or voluntarily made
refunds.
(b) 	List of contractors violating contracts.--
(1) 	In general.--The Comptroller General shall distribute to all
departments of the Federal Government a list of the names of
persons whom the Comptroller General has found to have
disregarded their obligations to employees and subcontractors.
(2) 	Restriction on awarding contracts.--No contract shall be
awarded 	to 	persons 	appearing 	on 	the 	list 	or 	to 	any 	firm,
corporation, partnership, or association in which the persons have
an interest until three years have elapsed from the date of
publication of the list.
Our Supreme Court has similarly noted the parallels between Subsections (A) and (B)
of the Act and the Davis-Bacon legislation. See Mem’l Med. Ctr., Inc. v. Tatsch
Constr., Inc., 2000-NMSC-030, ¶ 26, 129 N.M. 677, 12 P.3d 431. Subsections (C) and
(D) of the Act, however, have no Davis-Bacon counterpart. Federal cases split on
whether a private right of action exists under Davis-Bacon, with the majority holding
against a private right of action. Compare Operating Eng’rs Health & Welfare Tr.
Fund v. JWJ Contracting Co., 135 F.3d 671, 676 (9th Cir. 1998) (recognizing that
Davis-Bacon “does not create a private cause of action for employees”), with
McDaniel v. Univ. of Chicago, 548 F.2d 689, 695 (7th Cir. 1977) (“In sum, we hold
that implying a private right of action in the Davis-Bacon Act is necessary to
effectuate the intention of Congress in passing the statute.”).

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{5} 	On appeal, Plaintiffs argue that: (1) the Act, unlike Davis-Bacon, “clearly
contemplates” a private right of action, as evidenced by the fact that the Act includes
language making violators liable to employees and allowing employees to recover
attorney fees; (2) employees are not required to exhaust administrative remedies prior
to pursuing a private right of action; and (3) the district court erred in concluding that
it lacked jurisdiction to hear this case. Because we hold that there is a private right of
action that is separate and distinct from any administrative remedies in the Act, we
need not and do not address Plaintiffs’ second and third arguments regarding
exhaustion of administrative remedies and jurisdiction, which would only be relevant
if Plaintiffs’ access to the district court were somehow contingent on an administrative
process.
{6} 	Plaintiffs acknowledge that many courts have concluded there is no private
right of action under Davis-Bacon, but they rely on our Legislature’s departure from
Davis-Bacon in enacting Subsections (C) and (D) of the Act. Plaintiffs contend that
these subsections reflect an intent to create a private right of action that is different
from the remedial scheme in federal law.
{7} 	In addition to their position that a private right of action is expressly provided
for in the statute, Plaintiffs turn to factors in Yedidag v. Roswell Clinic Corp., 2015-

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NMSC-012, ¶ 31, 346 P.3d 1136, that are used to evaluate whether to imply a private
right of action. These factors are:
(1) Was the statute enacted for the special benefit of a class of which the
plaintiff is a member? (2) Is there any indication of legislative intent,
explicit or implicit, to create or deny a private remedy? and (3) Would
a private remedy either frustrate or assist the underlying purpose of the
legislative scheme?
(Alteration, internal quotation marks, and citation omitted.) These factors stem from
Cort v. Ash, 422 U.S. 66, 78 (1975), and we will refer to them as the Cort factors.
{8} 	Plaintiffs assert that there can be no dispute that they were members of a class
for whose “special benefit” the statute was enacted. And they assert that under the
remaining two Cort factors, the Legislature, in Subsection (D), expressly allowed a
court to award attorney fees and costs to an employee adversely affected in an action
under Subsection (C), and also, Subsection (C) provides that a contractor “shall be
liable to any affected employee[.]” See § 13-4-14(C), (D). Plaintiffs indicate that, in
an administrative process handled by the administrative agency, the employee would
have no right to recover attorney fees and that reading the Act so as not to allow for
a private right of action would render Subsection (D) superfluous.
{9} 	Defendant argues that no private right of action exists, because the Act “does
not expressly allow a private right” of action and because “there is no basis to imply
a private right of action where the Legislature intended the only remedies to come

8
through the administrative process.” Defendant notes that the Act was modeled after
Davis-Bacon and lists federal cases holding that Davis-Bacon does not provide a
private right of action. See, e.g., Grochowski v. Phoenix Constr., 318 F.3d 80, 85 (2d
Cir. 2003) (recognizing that Davis-Bacon does not provide an aggrieved employee
with a private right of action for unpaid wages and stating that “the great weight of
authority indicates that it does not” confer such a right for back wages); JWJ
Contracting Co., 135 F.3d at 676 (same); United States ex rel. Glynn v. Capeletti
Bros., Inc., 621 F.2d 1309, 1313-14 (5th Cir. 1980) (same); see also Tatsch Constr.,
Inc., 2000-NMSC-030, ¶ 26 (stating that the Act is modeled after Davis-Bacon).
According to Defendant, employees making claims pursuant to the Act, like Davis-
Bacon claimants, must follow the administrative process provided by the Act and not
attempt to circumvent the Act based on provisions they do not like.
{10} 	According to Defendant, Plaintiffs’ argument regarding Section 13-4-14(D) that
because an employee would not have attorney fees if there were no private right of
action, therefore they may file suit under Section 13-4-14(C), is “illogical.”
Defendant’s point, to the contrary, is that a party can incur attorney fees pursuing
administrative remedies as easily as it can by filing a lawsuit. Moreover, Defendant
argues, while fee provisions in statutes have led some courts to infer a private right of
action, others have held that it is a sign that no remedy exists outside of administrative

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relief, citing for support San Carlos Apache Tribe v. United States, 417 F.3d 1091,
1099 (9th Cir. 2005), which states, “At best, the absence of any private right of action
language . . . 	and the presence of the fee provision render the [National Historic
Preservation Act] ambiguous on the cause of action point. Without explicit language,
such an ambiguity can hardly be converted into an implied right of action.”
{11} 	In analyzing and responding to Plaintiffs’ argument that a private right of action
may be implied under the Cort factors, Defendant assumes, for purposes of this
appeal, only that Plaintiffs come within the first Cort factor. But Defendant asserts
that “this is not determinative, as the Legislature has many different ways to protect
classes of people aside from giving them private enforcement rights[,]” citing
Capeletti Bros., 621 F.2d at 1313, as “[r]ecognizing that Congress intended [Davis-
Bacon] to benefit laborers and mechanics, however, [Davis-Bacon] does not establish
that Congress intended additionally that [it] would be enforced through private
litigation.”
{12} 	Defendant asserts that the second Cort factor “definitively speaks against an
implied right of action, because the Legislature has already refused to add one.”
Defendant explains that in 2005, Senate Bill 634 was introduced, proposing

1 Although Defendant states that the relevant amendment was made to Section
13-4-11, the at-issue amendment was to Section 13-4-14. We correct this error as
needed throughout this opinion.
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amendments to Section 13-4-14 1 that included a new Subsection (D), which read: “In
addition to all other remedies, an employee adversely affected by a violation of the . . .
Act by a contractor, subcontractor, employee or a person acting as a contractor shall
have a private right of action for damages, attorney fees and reasonable costs.”
(Emphasis added.) However, a Senate committee struck the language that would have
conferred a private right of action, and the bill passed without that language.
According to Defendant, “Senate Bill 634 shows that in this context, as in others, the
Legislature will provide an express damages remedy if it wants to[,]” citing the New
Mexico Minimum Wage Act that specifies a private right of action for its violation.
See NMSA 1978, § 50-4-26(D) (2013). Defendant concludes that the committee’s
explicit rejection of a private right of action “should conclude the inquiry into its
intended scope.” In a supplement to its answer brief, Defendant also directed this
Court to House Bill 335, 53rd Leg., 1st Sess. (N.M. 2017), which again sought to
amend Section 13-4-14(D) to include the phrase “private right of action[.]” According
to Defendant, “The proposed amendments to the [Act] contained in HB 335 once
again establish that the [Act] applicable to the instant appeal contains no private right
of action.” The phrase “private right of action” was once again removed in House

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Judiciary Committee Substitute for House Bill 335, 53rd Leg., 1st Sess. (N.M. 2017),
and was never voted on by the Legislature.
{13} 	Turning to the third Cort factor, Defendant asserts that “the underlying purpose
of the legislative scheme indicates that the Legislature did not intend to allow workers
to bring suit.” Defendant argues that the Act “carefully balances the interests of
contractors and their employees”; that the contractor “is able to work approximate
labor costs into its bid, while the worker enjoys the government’s help in collecting
the prevailing wage”; and that to imply “a private right of action to sue for [Act]
wages would destroy this careful balance.” Defendant similarly makes this “balance”
argument in the form of a due process claim. According to Defendant, the process by
which the Department investigates claims prudently balances the rights of workers and
contractors, and to allow Plaintiffs to skip this measured practice or to create a private
right of action where none exists, would deny Defendant the due process it is afforded
in the determination and appeal process.
{14} 	We review interpretation of statutory provisions de novo. Eisert v. Archdiocese
of Santa Fe, 2009-NMCA-042, ¶ 29, 146 N.M. 179, 207 P.3d 1156 (“Whether a
private right of action can be implied from a statute is a question of law that we review
de novo.”); see also Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397,
89 P.3d 69 (“Statutory interpretation is a question of law, which we review de novo.”).

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{15} 	Because the Act lacks the clarity necessary for an express private right of
action, we focus on the implication based on the Cort factors. See Yedidag, 2015-
NMSC-012, ¶ 31 (stating that the “determination of whether to imply a private cause
of action is influenced by [the Cort] factors”). The parties do not dispute that, for the
purposes of this appeal, the Act was enacted for the purpose of benefitting Plaintiffs,
as required under the first Cort factor; we therefore focus on the second and third Cort
factors.
{16} 	The second Cort factor requires us to consider whether the Legislature intended
to create or deny a remedy and calls upon traditional statutory construction tools
requiring that we “look[] first to the plain language of the statute[.]” State v.
Almanzar, 2014-NMSC-001, ¶ 14, 316 P.3d 183 (internal quotation marks and citation
omitted).
{17} 	Here, we hold that the plain language of Section 13-4-14(C) and (D) evidences
legislative intent to create a private right of action that is separate and distinct from
the administrative scheme in Section 13-4-14(A) and (B). Subsection (C) states that
an “employer . . . shall be liable to any affected employee for the employee’s unpaid
wages” and “shall be liable to any affected employee for liquidated damages[.]”
Section 13-4-14(C) (emphasis added). Subsection (D) specifically points to “an action
brought 	pursuant 	to 	Subsection 	C” 	and 	indicates 	that 	“the 	court 	may

2 We also note that at oral argument defense counsel represented that, under the
Act, the district attorney pursuing a wage claim as required by Subsection (B) does
so as the private attorney of an employee. We see no basis for that statement. If,
however, it were true, and the district attorney is not acting on behalf of the State or
some other governmental entity, but rather as an employee’s private attorney, it would
further support the position that there is a private right of action under the Act.
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award . . . attorney fees and costs to an employee adversely affected[.]” Section 13-4-
14(D). Plain language in these subsections contemplates a private right of action in
which an employer can be liable to an employee for unpaid wages and attorney fees,
separate from the administrative scheme contained in Subsections (A) and (B).
{18} 	Defendant’s proffered interpretations of Subsection (D)—i.e., that an employee
could incur attorney fees through the administrative process or that a district attorney
pursuing a claim as required by Subsection (B) could recover attorney fees under
Subsection (D)—are not persuasive. 2 The language of Subsection (D) specifically
references an action brought pursuant to Subsection (C) and allows for an award of
attorney fees to an employee. We are not convinced that a district attorney could
collect attorney fees, given the statutory restrictions on their pay. See NMSA 1978,
§ 36-1-7 (1968) (“No district attorney shall receive to his own use any salary, fees or
emoluments other than the salary and per diem and travel allowances prescribed by
law.”). We “read the statute in its entirety and construe each part in connection with
every other part to produce a harmonious whole.” Key v. Chrysler Motors Corp.,

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1996-NMSC-038, ¶ 14, 121 N.M. 764, 918 P.2d 350. We do not read any provision
of a statute in a way that would render another provision of the statute “null or
superfluous.” State v. Rivera, 2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939; see
also Katz v. N.M. Dep’t of Human Servs., 1981-NMSC-012, ¶ 18, 95 N.M. 530, 624
P.2d 39 (“A statute must be construed so that no part of the statute is rendered
surplusage or superfluous.”). To read Subsection (D) as part of the administrative
scheme contained in Subsections (A) and (B) would require us to ignore the express
cross-reference to Subsection (C). This could lead to an absurd result where attorney
fees are permitted under the Act but not actually recoverable. We thus reject
Defendant’s proffered interpretations and hold that Section 13-4-14(D) contemplates
a private right of action.
{19} 	We are also not persuaded by Defendant’s argument that the history of Senate
or House bills involving the inclusion or removal of the phrase “private right of
action” provides evidence that the Legislature specifically intended to deny a private
right of action. As noted in Regents of University of New Mexico v. New Mexico
Federation of Teachers, 1998-NMSC-020, ¶ 30, 125 N.M. 401, 962 P.2d 1236,
“[u]nlike some states, we have no state-sponsored system of recording the legislative
history of particular enactments. [The appellate courts] do not attempt to divine what
legislators read and heard and thought at the time they enacted a particular item of

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legislation. If the intentions of the Legislature cannot be determined from the actual
language of a statute, then we resort to rules of statutory construction, not legislative
history.” Further, during oral argument in this matter, both parties provided equally
plausible ways of interpreting the history of the proposed bills. To favor one
interpretation over the other would require this Court to engage in exactly the type of
speculation as to legislative intent that is disfavored.
{20} 	Finally, to the extent either party attempts to make an argument regarding the
similarities or differences of the Act as compared to Davis-Bacon, we are unable to
divine any meaning or application to the present case. The fact that Davis-Bacon is
different from the Act is clear and undisputed.
{21} 	Because we reject Defendant’s arguments as to legislative intent and because
we hold that the plain language of Section 13-4-14(C) and (D) evidences legislative
intent to create a private right of action under the Act, we hold that the second Cort
factor favors Plaintiffs.
{22} 	The third Cort factor, which requires us to determine whether an implied cause
of action furthers or frustrates the purpose of the Act, also favors Plaintiffs. In Tatsch
Construction, Inc., our Supreme Court held that the purpose behind the Act was
remedial, that remedial statutes ought to be read broadly, and that the Act should be
read “broadly so as to effectuate the intent of the [L]egislature.” 2000-NMSC-030,

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¶ 26. We hold that broadly interpreting the Act to imply a private right of action under
Subsections (C) and (D) would further the remedial purpose of the Act, rather than
frustrate it. Conversely, limiting employees to the administrative remedies under
Subsections (A) and (B) would be overly narrow and would frustrate the broad
remedial purpose of the Act. Although Defendant argues that the Act carefully
balances the interests of contractors and their employees, that implying a private right
of action would destroy this careful balance, and that destroying that balance has due
process implications, Defendant provides no authoritative support for those positions.
We decline to address unsupported and undeveloped arguments on appeal. See In re
Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (holding that
arguments unsupported by citations to authority will not be reviewed); see also
Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
1076 (declining to entertain a cursory argument that included no explanation of the
party’s argument and no facts that would allow the claim to be evaluated).
{23} 	Because the Cort factors all weigh in favor of Plaintiffs’ assertion of a private
right of action, we hold that there is an implied private right of action.

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CONCLUSION
{24} 	We reverse the district court’s dismissal of Plaintiffs’ complaint and remand for
proceedings consistent with this opinion.
{25} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
LINDA M. VANZI, Chief Judge
_______________________________
MICHAEL E. VIGIL, Judge