Cates v. Mosher Enterprises, Inc., 2017 NMCA 63

Background

Plaintiffs Cates and Cheresposy (class action) sued Mosher Enterprises seeking unpaid prevailing wages for 2009 work on a University of New Mexico renovation, alleging wages were set using 2008 prevailing rates.
A class was certified and cross-motions for summary judgment on liability were filed; the district court raised sua sponte whether the Public Works Minimum Wage Act (Act), NMSA 1978, §§ 13-4-10 to -17, provides a private right of action.
The district court concluded the Act did not confer a private cause of action and dismissed the complaint without prejudice to allow pursuit of administrative remedies under the Act.
The Act’s Section 13-4-14 contains an administrative enforcement scheme (Subsections A–B) and separate provisions stating employers "shall be liable" to affected employees and allowing courts to award attorney fees in actions under Subsection (C)–(D).
Plaintiffs argued the Act either expressly or impliedly creates a private right of action (citing Subsections (C)–(D) and Cort/Yedidag factors); Mosher argued enforcement is meant to proceed through the administrative process (modeled on Davis-Bacon) and legislative history shows rejection of explicit private-action language.
The Court of Appeals reversed, holding that Subsections 13-4-14(C) and (D) evidence legislative intent to create an implied private right of action separate from the administrative remedy.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Act provides a private right of action	Act contemplates private suits: Subsection (C) makes employers "liable to any affected employee" and (D) allows courts to award attorney fees	Act provides only an administrative scheme; modeled on Davis-Bacon; legislature rejected explicit private-action language in amendments	Court held a private right of action is implied under the Act (reading (C) and (D) together)
Whether plaintiffs must exhaust administrative remedies before suit	Plaintiffs argued private action exists and is distinct from administrative remedies (so exhaustion not determinative)	Mosher argued administrative process is exclusive enforcement route	Court did not decide exhaustion because it held a private right exists and therefore exhaustion question was unnecessary to resolve here
Whether legislative history (failed bills) rebuts implication of a private right	Plaintiffs relied on statutory text over failed bill history	Mosher argued repeated removal of "private right of action" in proposed bills shows legislature intended no private right	Court declined to rely on speculative legislative history and refused to infer denial of private right from bill drafts; instead used plain statutory language
Whether implying a private right would frustrate Act's purpose or due process for contractors	Plaintiffs: private remedy furthers Act’s remedial purpose; (C)/(D) fit that goal	Mosher: private suits would upset statutory balance and procedural protections, and raise due process concerns	Court held implying a private action furthers the remedial purpose and does not frustrate the legislative scheme

Key Cases Cited

Mem’l Med. Ctr., Inc. v. Tatsch Constr., Inc., 129 N.M. 677, 12 P.3d 431 (N.M. 2000) (noting Act is modeled after Davis-Bacon and should be read broadly for remedial purpose)
Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, 346 P.3d 1136 (N.M. 2015) (sets out factors used to determine whether to imply a private cause of action)
Cort v. Ash, 422 U.S. 66 (U.S. 1975) (established factors for implying private rights of action)
Grochowski v. Phoenix Constr., 318 F.3d 80 (2d Cir. 2003) (federal authority recognizing Davis-Bacon does not create a private cause of action)
Operating Eng’rs Health & Welfare Tr. Fund v. JWJ Contracting Co., 135 F.3d 671 (9th Cir. 1998) (holding Davis-Bacon does not create a private cause of action)
McDaniel v. Univ. of Chicago, 548 F.2d 689 (7th Cir. 1977) (contrasting federal view that Davis-Bacon implies a private cause of action)