1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ___________

3 Filing Date: April 7, 2015

4 NO. 32,693

5 JAMES FLORES,

6 Plaintiff-Appellant,

7 v.

8 MARY HERRERA, individually and as

9 Secretary of State of the State of New Mexico,

10 Defendant-Appellee,

11 and

12 NO. 33,413

13 MANNY VILDASOL,

14 Plaintiff-Appellee,

15 v.

16 STATE OF NEW MEXICO,

17 SECRETARY OF STATE’S OFFICE

18 and MARY HERRERA,

19 Defendants-Appellants.
1 APPEALS FROM THE DISTRICT COURT OF SANTA FE COUNTY

2 Sarah M. Singleton, District Judge (No. 32,693)

3 Raymond Z. Ortiz, District Judge (No. 33,413)

4 Garcia Ives Nowara

5 Matthew L. Garcia

6 Albuquerque, NM

7 for Appellant Flores

8 Cuddy & McCarthy, LLP

9 M. Karen Kilgore

10 Evelyn A. Peyton

11 Santa Fe, NM

12 for Appellee (No. 32,693)

13 Law Offices of Michael E. Mozes, P.C.

14 Michael E. Mozes

15 Albuquerque, NM

16 for Appellee Vildasol

17 Hinkle Shanor LLP

18 Ellen S. Casey

19 Jaclyn M. McLean

20 Loren S. Foy

21 Santa Fe, NM

22 for Appellants (No. 33,413)
1 OPINION

2 SUTIN, Judge.

3 {1} We address two appeals that raise issues concerning the scope of the

4 Whistleblower Protection Act (the Act), NMSA 1978, §§ 10-16C-1 to -6 (2010).

5 During her term as Secretary of State, Defendant Mary Herrera terminated the

6 employment of James Flores and Manny Vildasol. Separately, Mr. Flores and Mr.

7 Vildasol sued Ms. Herrera claiming that, in relevant part, by terminating their

8 employment, Ms. Herrera violated the Act. The two cases were decided by different

9 district judges sitting in the First Judicial District. Ms. Herrera lost the general

10 election in November 2010 and left office at the end of 2010. Mr. Flores filed his

11 lawsuit December 22, 2010. Mr. Vildasol filed his lawsuit in April 2011, after Ms.

12 Herrera had left office. In Cause No. 32,693, Mr. Flores appeals the district court’s

13 dismissal of his lawsuit. Cause No. 33,413 is an interlocutory appeal in which Ms.

14 Herrera appeals the district court’s denial of her motion to dismiss Mr. Vildasol’s

15 lawsuit against her, individually.

16 {2} At issue is whether Ms. Herrera may be sued pursuant to the Act in her

17 “individual capacity.” We conclude that Ms. Herrera’s status as a former officer does

18 not exclude her from the purview of the Act. We further conclude that she may be

19 sued pursuant to the Act in her individual capacity. Accordingly, we affirm the
18 The protected activity is set out in Section 10-16C-3 and consists of 1

19 communicating “to the public employer or a third party information about an action

20 or a failure to act that the public employee believes in good faith constitutes an

21 unlawful or improper act”; providing information to or testifying before “a public

22 body as part of an investigation, hearing[,] or inquiry into an unlawful or improper

23 act”; or objecting to or refusing “to participate in an activity, policy[,] or practice that

24 constitutes an unlawful or improper act.”

2

1 district court’s order denying Ms. Herrera’s motion to dismiss Mr. Vildasol’s claim

2 under the Act, and we reverse the district court’s order dismissing Mr. Flores’s claim

3 under the Act.

4 BACKGROUND

5 {3} Section 10-16C-3 provides that “[a] public employer shall not take any

6 retaliatory action against a public employee because the public employee” engaged

7 in specified protected activity . The Act defines a “public employee” as “a person 1

8 who works for or contracts with a public employer[.]” Section 10-16C-2(B). A

9 “public employer” includes “every office or officer” within “state government[.]”

10 Section 10-16C-2(C)(1), (4). 

11 {4} A public employer that violates the Act

12 shall be liable to the public employee for actual damages, reinstatement

13 with the same seniority status that the employee would have had but for

14 the violation, two times the amount of back pay with interest on the back

15 pay and compensation for any special damage sustained as a result of the

16 violation. In addition, an employershall be required to pay the litigation

17 costs and reasonable attorney fees of the employee. 
3

1 Section 10-16C-4(A). 

2 {5} Ms. Herrera served as Secretary of State from January 2007 through December

3 2010. Mr. Flores worked as Ms. Herrera’s public information officer from January

4 2007, when Ms. Herrera took office, until September 2010, when Ms. Herrera

5 terminated his employment. Mr. Vildasol was appointed by Ms. Herrera to the

6 position of office administrator in January 2007. Ms. Herrera terminated Mr.

7 Vildasol’s employment in September 2010. The details underlying Mr. Flores’s and

8 Mr. Vildasol’s respective terminations are not relevant to this appeal, except to say

9 that each of them claimed that their employment was terminated in retaliation for

10 having, in good faith, reported to the FBI and, in Mr. Vildasol’s case, to other

11 authorities, what they perceived as criminal activity by Ms. Herrera and the Office of

12 the Secretary of State.

13 {6} Mr. Flores filed a complaint against Ms. Herrera “individually and as Secretary

14 of State” for having violated the Act. Mr. Vildasol filed a complaint against the

15 Secretary of State’s Office and Ms. Herrera claiming, in relevant part, that the

16 Secretary of State’s Office and Ms. Herrera had violated the Act.

17 {7} In each case, Ms. Herrera moved to dismiss the complaint for lack of subject

18 matter jurisdiction, claiming that she could not be sued in her individual capacity for

19 violating the Act, and also claiming that because she was no longer Secretary of State
4

1 she could not be sued in her official capacity. The district court in Mr. Flores’s case

2 granted Ms. Herrera’s motion to dismiss on the ground that it lacked subject matter

3 jurisdiction over the complaint because Ms. Herrera was no longer Secretary of State.

4 The court further reasoned that Mr. Flores could not recover against Ms. Herrera in

5 her individual capacity because “such recovery is inconsistent with the statute which

6 protects ‘public’ employees from the acts of their ‘public’ employers.” As to Mr.

7 Vildasol’s complaint, the district court denied Ms. Herrera’s motion to dismiss.

8 {8} On appeal, Mr. Flores argues that the district court erroneously differentiated

9 between Ms. Herrera’s individual and official capacities which, according to Mr.

10 Flores, in the context of the Act is a meaningless distinction. Additionally, he argues

11 that, contrary to the district court’s interpretation, the Act applies to former public

12 officials and that the district court’s narrow interpretation of the Act was inconsistent

13 with the liberal construction afforded to whistleblower statutes, generally.

14 {9} In her appeal from the court’s denial of her motion to dismiss Mr. Vildasol’s

15 lawsuit, Ms. Herrera argues that the Act does not permit claims against former

16 officers, generally, nor does it permit claims against them in their individual capacity.

17 Additionally, Ms. Herrera argues that because Mr. Vildasol does not now, nor did he

18 ever, qualify as a “public employee” who “works for or contracts with a public

19 employer[,]” he was ineligible to bring a lawsuit pursuant to the Act.
5

1 {10} We conclude that notwithstanding the fact that Ms. Herrera is a former officer,

2 the Act permits an individual-capacity lawsuit against her for allegedly violating the

3 Act while she was in office. We reject Ms. Herrera’s argument that Mr. Vildasol was

4 not a public employee. We reverse the district court’s dismissal of Mr. Flores’s

5 complaint, and we affirm the district court’s order denying Ms. Herrera’s motion to

6 dismiss Mr. Vildasol’s complaint.

7 DISCUSSION

8 Subject Matter Jurisdiction Is Not an Issue in These Appeals

9 {11} At the outset, before we discuss the arguments raised by the parties, we address

10 Ms. Herrera’s and, in Mr. Flores’s case, the district court’s invocation of subject

11 matter jurisdiction as a basis for dismissal of these matters. Pursuant to Rule 1-

12 012(B)(1) NMRA, a party may move to dismiss a complaint for a lack of subject

13 matter jurisdiction. “Subject matter jurisdiction” is the “power or authority to decide

14 the particular matter presented.” Sundance Mech. & Util. Corp. v. Atlas, 1990-

15 NMSC-031, ¶ 12, 109 N.M. 683, 789 P.2d 1250 (internal quotation marks and

16 citation omitted). The district court is vested with the power and authority to decide

17 claims arising under the Act. Section 10-16C-4(A) (“An employee may bring an

18 action pursuant to this section in any court of competent jurisdiction.”); see also N.M.

19 Const. art. VI, §§ 1, 13 (vesting the district court with the judicial power of the state
6

1 and stating that the district court has original jurisdiction over all matters not

2 excepted within the Constitution).

3 {12} Having reviewed Ms. Herrera’s motions to dismiss, we conclude that,

4 notwithstanding her use of the phrase “subject matter jurisdiction,” the issue raised

5 in the dismissal motions was actually whether, pursuant to Rule 1-012(B)(6), Mr.

6 Flores and Mr. Vildasol stated claims under the Act upon which relief could be

7 granted. Similarly, although the district court’s dismissal of Mr. Flores’s case was

8 ostensibly premised upon Rule 1-012(B)(1), the court’s reasoning clearly invoked

9 Rule 1-012(B)(6). A party’s failure to state a claim upon which relief can be granted

10 has no effect upon a court’s subject matter jurisdiction. See Sundance Mech. & Util.

11 Corp., 1990-NMSC-031, ¶ 15. In sum, we conclude that the use of the phrase “subject

12 matter jurisdiction” in the context of these cases was a misnomer, and Rule 1-

13 012(B)(1) has no bearing on the issues now before us. 

14 Standard of Review

15 {13} “A motion to dismiss for failure to state a claim under Rule 1-012(B)(6) . . .

16 tests the legal sufficiency of the complaint[.]” Cordova v. Cline, 2013-NMCA-083,

17 ¶ 18, 308 P.3d 975, cert. granted, 2013-NMCERT-007, 308 P.3d 134. Dismissal

18 under Rule 1-012(B)(6) “is proper only when the law does not support a claim under

19 the facts presented.” Vigil v. State Auditor’s Office, 2005-NMCA-096, ¶ 4, 138 N.M.
18 Section 10-16C-2(C)(1), (4) defines a “public employer” as “every . . .

2

19 officer” within “state government[.]” 

7

1 63, 116 P.3d 854. We review de novo the district court’s decision to grant or deny a

2 motion to dismiss, and in so doing, we accept all well-pleaded factual allegations as

3 true. Id. 

4 {14} As well, issues of statutory construction present legal questions that we review

5 de novo. Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 40, 320 P.3d 1. Finally,

6 because the Act reflects a remedial purpose, we construe its provisions “liberally to

7 facilitate and accomplish its purposes and intent.” Lohman v. Daimler-Chrysler

8 Corp., 2007-NMCA-100, ¶ 31, 142 N.M. 437, 166 P.3d 1091 (internal quotation

9 marks and citation omitted); Janet v. Marshall, 2013-NMCA-037, ¶¶ 26, 32, 296 P.3d

10 1253 (Fry, J., dissenting) (recognizing that the provisions of the Act are remedial),

11 cert. dismissed, 2013-NMCERT-005, 302 P.3d 1163.

12 Ms. Herrera Is an “Officer”

13 {15} Ms. Herrera argues that a “former officer” is not a “public employer” as that

14 phrase is defined in the Act. She supports this proposition by reasoning that the Act

15 uses the present tense version of the term “officer” in Section 10-16C-2(C)(4) . In

2

16 addition, she argues that because she no longer possesses any “sovereign power,” she

17 does not qualify as “an officer.” Finally, Ms. Herrera contends that Section 10-16C-
8

1 4(A) establishes that the Legislature intended to exclude former officers from the

2 purview of the Act. That section provides that public employers that violate the Act

3 “shall be liable to the public employee for . . . reinstatement with the same seniority

4 status that the employee would have had but for the violation,” which, obviously, a

5 former officer would not be capable of doing.

6 {16} Building on the premise that the Act does not permit lawsuits against former

7 officers, Ms. Herrera argues that theAct only permits lawsuits against officers in their

8 “official capacity.” Relatedly, relying on the language of the Act, she contends that

9 the Act does not allow lawsuits to be brought against former officers in their

10 individual capacity.

11 {17} In Section 10-6C-6, the Legislature provided the single limitation on the time

12 within which lawsuits may be brought pursuant to the Act, that is, within two years

13 from the date of the alleged violation. Had the Legislature intended to further limit

14 the scope of the Act to officials who are presently in office, it could have done so

15 explicitly. Ms. Herrera’s attempt to infer an additional time limitation from the

16 Legislature’s use of the term “officer” to define a public employer is overly narrow

17 and technical and does not accord with our policy of construing remedial statutes

18 liberally. It is indisputable that Ms. Herrera’s alleged retaliatory action that prompted

19 these lawsuits occurred when she was an “officer” possessed of “a delegation of a
9

1 portion of the sovereign power of government, to be exercised for the benefit of the

2 public.” Janet, 2013-NMCA-037, ¶ 12 (internal quotation marks and citation

3 omitted); see NMSA 1978, § 1-2-1(A) (2011) (“The secretary of state is the chief

4 election officer of the state[.]”).

5 {18} Further, Ms. Herrera’s argument that the Legislature intended to limit the

6 window for filing a lawsuit under the Act because former officials lack the authority

7 to reinstate terminated employees is also overly narrow and technical. In making this

8 argument, Ms. Herrera overlooks the numerous other remedies that are available to

9 a successful plaintiff pursuant to the Act and that do not require official authority,

10 including the back pay and special damages remedies. See § 10-16C-4(A) (“A public

11 employer that violates the provisions of the . . . Act shall be liable to the public

12 employee for actual damages, . . . two times the amount of back pay with interest on

13 the back pay[,] and compensation for any special damage sustained as a result of the

14 violation.”). Additionally, Ms. Herrera’s argument assumes that the only actionable

15 conduct under the Act is employment termination or demotion when, in fact, the Act

16 broadly prohibits “any retaliatory action” against whistleblowers. Section 10-16C-3.

17 {19} In sum, construing the Act broadly, we conclude that the Act does not limit

18 actions against officers to those who are presently in office at the time the action is

19 filed. The only limitation on the time for filing a lawsuit under the Act is found in
10

1 Section 10-6C-6, and we decline to add additional time limitations not provided for

2 in the Act.

3 The Act Permits Lawsuits Against Officers in Their Individual Capacity 

4 {20} The distinction between “official” and “individual” capacity lawsuits was

5 explained by this Court in Ford v. New Mexico Department of Public Safety, 1994-

6 NMCA-154, ¶ 18, 119 N.M. 405, 891 P.2d 546. We explained that a lawsuit “against

7 a state official in her official capacity” is merely a way of suing “an entity of which

8 an officer is an agent.” Id. (internal quotation marks and citation omitted). The

9 purpose of such a lawsuit is to remedy a wrongful deprivation caused by an “entity’s

10 policy or custom[.]” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal

11 quotation marks and citation omitted) (distinguishing personal-capacity and official12 capacity claims in federal civil rights actions). Thus, when an officer who is sued in

13 her official capacity leaves office, the official’s successor in office automatically

14 assumes her official role in the litigation. Rule 1-025(D)(1) NMRA; Ford, 1994-

15 NMCA-154, ¶ 18. 

16 {21} On the other hand, when a state official is sued for her own misconduct in

17 office, “the defendant is the individual, not the office[,]” and when she leaves office,

18 her successor “is not substituted as the defendant in the litigation.” Ford, 1994-

19 NMCA-154, ¶ 19. Generally, “an award of damages against an official in [her]
10 We note that it is an open question, raised tangentially by Mr. Flores’s brief 3

11 in chief whether Ms. Herrera’s defense ofthese lawsuits and any potential judgments,

12 costs, or fees will be covered by the Office of the Secretary of State or by an

13 insurance policy purchased through the public liability fund pursuant to the Tort

14 Claims Act, NMSA 1978 §§ 41-4-1 to -30 (1976, as amended through 2013). See,

15 e.g., § 41-4-3(F)(1); § 41-4-4(B)(2) (providing that, unless an insurance policy that

16 is purchased with the public liability fund provides a defense, a governmental entity

17 must do so for any elected official when liability is sought for a violation of New

18 Mexico law “alleged to have been committed by the [elected official] while acting

19 within the scope of [her] duty”); § 41-4-23(B)(2); § 41-4-4(G) (“The duty to defend

20 . . . continue[s] after employment with the governmental entity has been terminated

21 if the occurrence for which damages are sought happened while the [elected official]

22 was acting within the scope of duty while the [elected official] was in the employ of

23 the governmental entity.”). Because the district court’s orders in these cases did not

24 decide this issue, it is not properly before this Court on appeal, and we do not address

25 it. We encourage the parties and the district court on remand to consider the effect,

26 if any, of the seemingly relevant provisions of the Tort Claims Act upon Ms.

27 Herrera’s financial responsibility for the litigation of these cases.

11

1 personal capacity can be executed . . . against the official’s personal assets[.]”3

2 Graham, 473 U.S. at 166. Because Mr. Flores’s and Mr. Vildasol’s claims against

3 Ms. Herrera are premised upon her alleged misconduct in office, namely, the act of

4 terminating their employment in retaliation for their whistleblowing activities, Ms.

5 Herrera was properly named individually as a defendant and sued in her personal

6 capacity in their lawsuits. 

7 {22} Ms. Herrera argues that, had the Legislature intended to allow individual

8 capacity lawsuits, it would not have used the term “officer” to define a public

9 employer, but instead, it would have used the term “person” or “individual” as it did
12

1 in other legislation, including the New Mexico Human Rights Act and the New

2 Mexico Tort Claims Act. See NMSA 1978, § 28-1-2(B) (2007) (defining an

3 “employer” as that term is used in the Human Rights Act as “any person employing

4 four or more persons and any person acting for an employer”); § 41-4-3(F)(3), (9)

5 (using the terms “persons” and “individuals” in enumerating those to whom the

6 definition of “public employee” applies in the context of the Tort Claims Act). We

7 do not agree with Ms. Herrera’s reasoning.

8 {23} Had the Legislature intended in the Act to preclude “individual capacity”

9 lawsuits against officers, it could have done so by altogether omitting the term

10 “officer” from the definition of “public employer” in Section 10-16C-2(C)(4). This

11 would have permitted Plaintiffs to file lawsuits against the “office” while prohibiting

12 lawsuits against officers in their individual capacity for their alleged retaliatory

13 actions against whistleblowers. Cf. Ford, 1994-NMCA-154, ¶¶ 18-19 (indicating that

14 official-capacity lawsuits “should be treated as a suit against the [s]tate[,]” whereas

15 individual-capacity lawsuits implicate an individual’s misconduct in office (internal

16 quotation marks and citation omitted)). By expressly including every “officer” within

17 the definition of a “public employer,” however, the Legislature expressed its intention

18 to permit individual-capacity lawsuits againstsuch officers. See Janet, 2013-NMCA19 037, ¶¶ 1, 11, 23 (recognizing that “[t]he language in Section 10-16C-2(C) includes
13

1 entities as well as any officer of any of those entities[,]” thus, the question whether

2 the defendants could be sued individually depended upon whether they were officers

3 and recognizing that the Act holds “officers” liable for violations). To interpret the

4 Act as prohibiting an individual-capacity lawsuit against an officer would be

5 tantamount to concluding that the term “officer” in Section 10-16C-2(C)(4) was

6 superfluous. This we will not do. See Baker v. Hedstrom, 2013-NMSC-043, ¶ 24, 309

7 P.3d 1047 (stating that an appellate court “must interpret a statute so as to avoid

8 rendering the Legislature’s language superfluous”).

9 Mr. Vildasol Was a Public Employee

10 {24} We turn now to Ms. Herrera’s argument that Mr. Vildasol “is not and was not

11 a ‘public employee’ who ‘work[ed]for or contract[ed] with’ former Secretary of State

12 Herrera within the meaning of the [Act].” As noted earlier, the Act provides that

13 “every office or officer of any” state government office constitutes a “public

14 employer[,]” and a “public employee” is “a person who works for . . . a public

15 employer[.]” Section 10-16C-2(B), (C)(1), (4). Further, the Act prohibits a “public

16 employer” from taking “any retaliatory action against a public employee” for the

17 enumerated whistleblowing actions listed in Section 10-16C-3.

18 {25} In an attempt to insert ambiguity into the Act, Ms. Herrera attempts to exploit

19 the fact that the Legislature did not define the phrase “works for” to support the
14

1 assertion that she cannot be named as a defendant in Mr. Vildasol’s lawsuit. To that

2 end, she argues that Mr. Vildasol was employed and paid by the State, not by her, and

3 the fact that she “may have acted as Mr. Vildasol’s supervisor at various points during

4 his employment at the [Secretary of State’s Office], does not change the reality that

5 Mr. Vildasol was, at all times, an employee of the State of New Mexico, and not of

6 Ms. Herrera’s.”

7 {26} As discussed earlier, there is no question that, as the Secretary of State, Ms.

8 Herrera was an “officer” within the meaning of the Act. Assuming, as we must, the

9 truth of the factual allegations in Mr. Vildasol’s complaint, Ms. Herrera appointed

10 Mr. Vildasol to his position as the office administrator for the Office of the Secretary

11 of State, she controlled his duties and the extent of his authority during his tenure in

12 her office, and she ultimately terminated his employment. In light of these facts, it

13 would strain common sense to conclude that Mr. Vildasol did not “work for” Ms.

14 Herrera.

15 {27} In summary, we conclude that Ms. Herrera was subject to the provisions of the

16 Act notwithstanding the fact that she was no longer the Secretary of State shortly after

17 Mr. Flores’s complaint and prior to Mr. Vildasol’s complaint. And we conclude that

18 Ms. Herrera could be sued in her individual capacity for allegedly violating the Act

19 during her term as Secretary of State. Relating to Mr. Vildasol’s claim, we reject Ms.
15

1 Herrera’s argument that she was not Mr. Vildasol’s “public employer” or that he was

2 not her “public employee” for purposes of the Act. 

3 {28} Accordingly, we conclude that (1) the district court properly denied Ms.

4 Herrera’s motion to dismiss Mr. Vildasol’s lawsuit under the Act, and (2) the district

5 court erred in dismissing Mr. Flores’s lawsuit under the Act. 

6 CONCLUSION

7 {29} The district court’s order granting Ms. Herrera’s motion to dismiss Mr. Flores’s

8 case is reversed. The district court’s order denying Ms. Herrera’s motion to dismiss

9 Mr. Vildasol’s case is affirmed. The matters are remanded for further proceedings.

10 {30} IT IS SO ORDERED.

11 __________________________________

12 JONATHAN B. SUTIN, Judge

13 WE CONCUR:

14 _______________________________

15 RODERICK T. KENNEDY, Judge

16 _______________________________

17 LINDA M. VANZI, Judge