1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-063

Filing Date: May 31, 2017

Docket No. A-1-CA-34867

WILLIAM SHAWN CATES and

BOBBY CHERESPOSY, on behalf of

themselves and all others similarly situated,

Plaintiffs-Appellants,

v.

MOSHER ENTERPRISES, INC.,

Defendant-Appellee/Third-Party Plaintiff,

v.

FLINTCO WEST, INC.,

Third-Party Defendant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Nan G. Nash, District Judge

Youtz & Valdez, P.C.

Shane C. Youtz

Stephen Curtice

James A. Montalbano

Albuquerque, NM

for Appellants

Bingham, Hurst & Apodaca, P.C.

Wayne E. Bingham

Albuquerque, NM

for Appellee

OPINION
2

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 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.

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:
3

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.

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
4

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 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.
5

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.”).

{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-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.
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

6

{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 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 DavisBacon 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 DavisBacon). According to Defendant, employees making claims pursuant to the Act, like DavisBacon 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 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 amendments to Section 13-4-141

 that
throughout this opinion.

7

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 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.”).

{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
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.

8

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 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., 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
9

(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 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, ¶ 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
10

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.

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