JAMES FLORES, Plaintiff-Appellant, v. MARY HERRERA, individually and as Secretary of State of the State of New Mexico, Defendant-Appellee, and MANNY VILDASOL, Plaintiff-Appellee, v. STATE OF NEW MEXICO, SECRETARY OF STATE’S OFFICE and MARY HERRERA, Defendants-Appellants.
NO. 32,693, NO. 33,413
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
April 7, 2015
SUTIN, Judge.
APPEALS FROM THE DISTRICT COURT OF SANTA FE COUNTY, Sarah M. Singleton, District Judge (No. 32,693), Raymond Z. Ortiz, District Judge (No. 33,413)
Cuddy & McCarthy, LLP, M. Karen Kilgore, Evelyn A. Peyton, Santa Fe, NM, for Appellee (No. 32,693)
Law Offices of Michael E. Mozes, P.C., Michael E. Mozes, Albuquerque, NM, for Appellee Vildasol
Hinkle Shanor LLP, Ellen S. Casey, Jaclyn M. McLean, Loren S. Foy, Santa Fe, NM, for Appellants (No. 33,413)
OPINION
SUTIN, Judge.
{1} We address two appeals that raise issues concerning the scope of the Whistleblower
{2} At issue is whether Ms. Herrera may be sued pursuant to the Act in her “individual capacity.” We conclude that Ms. Herrera’s status as a former officer does not exclude her from the purview of the Act. We further conclude that she may be sued pursuant to the Act in her individual capacity. Accordingly, we affirm the district court’s order denying Ms. Herrera’s motion to dismiss Mr. Vildasol’s claim under the Act, and we reverse the district court’s order dismissing Mr. Flores’s claim under the Act.
BACKGROUND
{3}
{4} A public employer that violates the Act
shall be liable to the public employee for actual damages, reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation. In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee.
{5} Ms. Herrera served as Secretary of State from January 2007 through December 2010. Mr. Flores worked as Ms. Herrera’s public information officer from January 2007, when Ms. Herrera took office, until September 2010, when Ms. Herrera terminated his employment. Mr. Vildasol was appointed by Ms. Herrera to the position of office administrator in January 2007. Ms. Herrera terminated Mr. Vildasol’s employment in September 2010. The details underlying Mr. Flores’s and Mr. Vildasol’s respective terminations are not relevant to this appeal, except to say that each of them claimed that their employment was terminated in retaliation for having, in good faith, reported to the FBI and, in Mr. Vildasol’s case, to other authorities, what they perceived as criminal activity by Ms. Herrera and the Office of the Secretary of State.
{6} Mr. Flores filed a complaint against Ms. Herrera “individually and as Secretary of State” for having violated the Act. Mr. Vildasol filed a complaint against the Secretary of State’s Office and Ms. Herrera claiming, in relevant part, that the Secretary of State’s Office and Ms. Herrera had violated the Act.
{7} In each case, Ms. Herrera moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that she could not be sued in her individual capacity for violating the Act, and also claiming that because she was no longer Secretary of State she could not be sued in her official capacity.
{8} On appeal, Mr. Flores argues that the district court erroneously differentiated between Ms. Herrera’s individual and official capacities which, according to Mr. Flores, in the context of the Act is a meaningless distinction. Additionally, he argues that, contrary to the district court’s interpretation, the Act applies to former public officials and that the district court’s narrow interpretation of the Act was inconsistent with the liberal construction afforded to whistleblower statutes, generally.
{9} In her appeal from the court’s denial of her motion to dismiss Mr. Vildasol’s lawsuit, Ms. Herrera argues that the Act does not permit claims against former officers, generally, nor does it permit claims against them in their individual capacity. Additionally, Ms. Herrera argues that because Mr. Vildasol does not now, nor did he ever, qualify as a “public employee” who “works for or contracts with a public employer[,]” he was ineligible to bring a lawsuit pursuant to the Act.
{10} We conclude that notwithstanding the fact that Ms. Herrera is a former officer, the Act permits an individual-capacity lawsuit against her for allegedly violating the Act while she was in office. We reject Ms. Herrera’s argument that Mr. Vildasol was not a public employee. We reverse the district court’s dismissal of Mr. Flores’s complaint, and we affirm the district court’s order denying Ms. Herrera’s motion to dismiss Mr. Vildasol’s complaint.
DISCUSSION
Subject Matter Jurisdiction Is Not an Issue in These Appeals
{11} At the outset, before we discuss the arguments raised by the parties, we address Ms. Herrera’s and, in Mr. Flores’s case, the district court’s invocation of subject matter jurisdiction as a basis for dismissal of these matters. Pursuant to Rule 1-012(B)(1) NMRA, a party may move to dismiss a complaint for a lack of subject matter jurisdiction. “Subject matter jurisdiction” is the “power or authority to decide the particular matter presented.” Sundance Mech. & Util. Corp. v. Atlas, 1990-NMSC-031, ¶ 12, 109 N.M. 683, 789 P.2d 1250 (internal quotation marks and citation omitted). The district court is vested with the power and authority to decide claims arising under the Act.
{12} Having reviewed Ms. Herrera’s motions to dismiss, we conclude that, notwithstanding her use of the phrase “subject matter jurisdiction,” the issue raised in the dismissal motions was actually whether, pursuant to Rule 1-012(B)(6), Mr. Flores and Mr. Vildasol stated claims under the Act upon which relief could be granted. Similarly, although the district court’s dismissal of Mr. Flores’s case was ostensibly premised upon Rule 1-012(B)(1), the court’s reasoning clearly invoked Rule 1-012(B)(6). A party’s failure to state a claim upon which relief can be granted has no effect upon a court’s subject matter jurisdiction. See Sundance Mech. & Util. Corp., 1990-NMSC-031, ¶ 15. In sum, we conclude that the use of the phrase “subject matter jurisdiction” in the context of these cases was a misnomer, and Rule 1-012(B)(1) has no bearing on the issues now before us.
Standard of Review
{13} “A motion to dismiss for failure to state a claim under Rule 1-012(B)(6) . . . tests the legal sufficiency of the complaint[.]” Cordova v. Cline, 2013-NMCA-083, ¶ 18, 308 P.3d 975, cert. granted, 2013-NMCERT-007,
{14} As well, issues of statutory construction present legal questions that we review de novo. Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 40, 320 P.3d 1. Finally, because the Act reflects a remedial purpose, we construe its provisions “liberally to facilitate and accomplish its purposes and intent.” Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 31, 142 N.M. 437, 166 P.3d 1091 (internal quotation marks and citation omitted); Janet v. Marshall, 2013-NMCA-037, ¶¶ 26, 32, 296 P.3d 1253 (Fry, J., dissenting) (recognizing that the provisions of the Act are remedial), cert. dismissed, 2013-NMCERT-005, 302 P.3d 1163.
Ms. Herrera Is an “Officer”
{15} Ms. Herrera argues that a “former officer” is not a “public employer” as that phrase is defined in the Act. She supports this proposition by reasoning that the Act uses the present tense version of the term “officer” in
4(A) establishes that the Legislature intended to exclude former officers from the purview of the Act. That section provides that public employers that violate the Act “shall be liable to the public employee for . . . reinstatement with the same seniority status that the employee would have had but for the violation,” which, obviously, a former officer would not be capable of doing.
{16} Building on the premise that the Act does not permit lawsuits against former officers, Ms. Herrera argues that the Act only permits lawsuits against officers in their “official capacity.” Relatedly, relying on the language of the Act, she contends that the Act does not allow lawsuits to be brought against former officers in their individual capacity.
{17} In
{18} Further, Ms. Herrera’s argument that the Legislature intended to limit the window for filing a lawsuit under the Act because former officials lack the authority to reinstate terminated employees is also overly narrow and technical. In making this argument, Ms. Herrera overlooks the numerous other remedies that are available to a successful plaintiff pursuant to the Act and that do not require official authority, including the back pay and special damages remedies. See
{19} In sum, construing the Act broadly, we conclude that the Act does not limit actions against officers to those who are presently in office at the time the action is filed. The only limitation on the time for filing a lawsuit under the Act is found in
The Act Permits Lawsuits Against Officers in Their Individual Capacity
{20} The distinction between “official” and “individual” capacity lawsuits was explained by this Court in Ford v. New Mexico Department of Public Safety, 1994-NMCA-154, ¶ 18, 119 N.M. 405, 891 P.2d 546. We explained that a lawsuit “against a state official in her official capacity” is merely a way of suing “an entity of which an officer is an agent.” Id. (internal quotation marks and citation omitted). The purpose of such a lawsuit is to remedy a wrongful deprivation caused by an “entity’s policy or custom[.]” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal quotation marks and citation omitted) (distinguishing personal-capacity and official-capacity claims in federal civil rights actions). Thus, when an officer who is sued in her official capacity leaves office, the official’s successor in office automatically assumes her official role in the litigation. Rule 1-025(D)(1) NMRA; Ford, 1994-NMCA-154, ¶ 18.
{21} On the other hand, when a state official is sued for her own misconduct in office, “the defendant is the individual, not the office[,]” and when she leaves office, her successor “is not substituted as the defendant in the litigation.” Ford, 1994-NMCA-154, ¶ 19. Generally, “an award of damages against an official in [her] personal capacity can be executed . . . against the official’s personal assets[.]”3 Graham, 473 U.S. at 166. Because Mr. Flores’s and Mr. Vildasol’s claims against Ms. Herrera are premised upon her alleged misconduct in office, namely, the act of terminating their employment in retaliation for their whistleblowing activities, Ms. Herrera was properly named individually as a defendant and sued in her personal capacity in their lawsuits.
{22} Ms. Herrera argues that, had the Legislature intended to allow individual capacity lawsuits, it would not have used the term “officer” to define a public employer, but instead, it would have used the term “person” or “individual” as it did in other legislation, including the New Mexico Human Rights Act and the New Mexico Tort Claims Act. See
{23} Had the Legislature intended in the Act to preclude “individual capacity” lawsuits against officers, it could have done so by altogether omitting the term “officer” from the definition of “public employer” in
Mr. Vildasol Was a Public Employee
{24} We turn now to Ms. Herrera’s argument that Mr. Vildasol “is not and was not a ‘public employee’ who ‘work[ed] for or contract[ed] with’ former Secretary of State Herrera within the meaning of the [Act].” As noted earlier, the Act provides that “every office or officer of any” state government office constitutes a “public employer[,]” and a “public employee” is “a person who works for . . . a public employer[.]”
{25} In an attempt to insert ambiguity into the Act, Ms. Herrera attempts to exploit the fact that the Legislature did not define the phrase “works for” to support the assertion that she cannot be named as a defendant in Mr. Vildasol’s lawsuit. To that end, she argues that Mr. Vildasol was employed and paid by the State, not by her, and the fact that she “may have acted as Mr. Vildasol’s supervisor at various points during his employment at the [Secretary of State’s Office], does not change the reality that Mr. Vildasol was, at all times, an employee of the State of New Mexico, and not of Ms. Herrera’s.”
{26} As discussed earlier, there is no question that, as the Secretary of State, Ms. Herrera was an “officer” within the meaning of the Act. Assuming, as we must, the truth of the factual allegations in Mr. Vildasol’s complaint, Ms. Herrera appointed Mr. Vildasol to his position as the office administrator for the Office of the Secretary of State, she controlled his duties and the extent of his authority during his tenure in her office, and she ultimately terminated his employment. In light of these facts, it would strain common sense to conclude that Mr. Vildasol did not “work for” Ms. Herrera.
{27} In summary, we conclude that Ms. Herrera was subject to the provisions of the Act notwithstanding the fact that she was no longer the Secretary of State shortly after Mr. Flores’s complaint and prior to Mr. Vildasol’s complaint. And we conclude that Ms. Herrera could be sued in her individual capacity for allegedly violating the Act during her term as Secretary of State. Relating to Mr. Vildasol’s claim, we reject Ms. Herrera’s argument that she was not Mr. Vildasol’s “public employer” or that he was not her “public employee” for purposes of the Act.
CONCLUSION
{29} The district court’s order granting Ms. Herrera’s motion to dismiss Mr. Flores’s case is reversed. The district court’s order denying Ms. Herrera’s motion to dismiss Mr. Vildasol’s case is affirmed. The matters are remanded for further proceedings.
{30} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
RODERICK T. KENNEDY, Judge
LINDA M. VANZI, Judge