So. Nev. Labor Mgmt. Cooperation Comm. v. Clark Co. School Dist.

IN THE SUPREME COURT OF THE STATE OF NEVADA
SOUTHERN NEVADA LABOR No. 65547
MANAGEMENT COOPERATION
COMMITTEE, BY AND THROUGH ITS
TRUSTEES ELVA MELENDEZ, AN
INDIVIDUAL AND FRANCISCO DEL
RIO, AN INDIVIDUAL,
FILE
Appellants, JAN 28 2016
vs.
TRACE K. LINDEMAN
CLARK COUNTY SCHOOL DISTRICT; CLER - UPREME COURT
AND CLARK COUNTY BOARD OF BY
DEPUTY CLERK
SCHOOL TRUSTEES,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing a
complaint for lack of standing. Eighth Judicial District Court, Clark
County; Elissa F. Cadish, Judge.
We review questions of standing and statutory construction de
novo, Arguello v. Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208
(2011); Citizens for Cold Springs v. City of Reno, 125 Nev. 625, 629, 218
P.3d 847, 850 (2009), and must determine whether labor-management
committees have standing to maintain a private action independent of the
administrative process to enforce public bidding laws under NRS 338.143.
We affirm.
On December 24, 2013, Southern Nevada Labor Management
Cooperation Committee (LMCC) filed a complaint against Clark County
SUPREME COURT
OF
NEVADA
(0) 1947A AS
- o3(78.9
School District (CCSD) for injunctive and declaratory relief.' LMCC
alleged that CCSD violated provisions of NRS Chapter 338 by painting ten
different schools without following public bidding or prevailing wage laws.
Through an employment service, CCSD hired appellants Elva Melendez
and Francisco Del Rio at an hourly rate of $16.13, instead of the prevailing
wage, which ranges from $46.64 to $50.16. An LMCC compliance officer
discovered the work CCSD was performing, which LMCC valued at over
$100,000. Thereafter, LMCC filed suit against CCSD for failing to open
the project for qualified bidders and to pay prevailing wages to workers,
while also moving for a preliminary injunction. CCSD filed a
countermotion to dismiss for lack of standing arguing that NRS Chapter
338 does not include a private cause of action, but is, instead, entrusted to
the enforcement powers of the Labor Commissioner. 2 The district court
agreed, and dismissed LMCC's complaint. On appeal, LMCC is only
challenging the district court's dismissal for lack of standing under the
public bidding requirements, not the prevailing wage laws.
"LMCC subsequently amended its complaint to include a writ of
mandate and/or a writ of prohibition, and for payment of wages.
2 Appellantsfiled a notice of supplemental authorities on December
30, 2015, attaching the final decision of the Labor Commissioner, which
determined that CCSD violated public bidding and prevailing wage laws,
and ordered CCSD to pay appellants Melendez and Del Rio $55,282.64
and $53,685, respectively. The Labor Commissioner also assessed a
$20,000 administrative penalty against CCSD for its violation of public
bidding laws and failure to investigate the violation. Appellants suggest
this decision demonstrates "that the Labor Commissioner cannot protect
the marketplace, due to her lack of injunction and writ powers, from an
awarding body's anticompetitive conduct." This argument does not
persuade us that the administrative remedy afforded to appellants was
deficient enough for this court to reverse its standing jurisprudence.
SUPREME COURT
OF
NEVADA
2
(0) 1.947A
The question of standing overlaps with the inquiry into
whether a party is considered a real party in interest; both questions
"focus[ ] on the party seeking adjudication rather than on the issues
sought to be adjudicated." Szilagyi v. Testa, 99 Nev. 834, 838, 673 P.2d
495, 498 (1983); Arguello, 127 Nev. at 368, 252 P.3d at 208. To qualify as
a real party in interest under NRCP 17(a), one must possess the right to
enforce a claim and have "a significant interest in the litigation." Szilagyi,
99 Nev. at 838, 673 P.2d at 498; see also NRCP 17(a). To decide if one has
the right to enforce a claim—meaning a private cause of action exists—
this court first looks at the plain language of the statute to determine if it
expressly provides a private cause of action. See Baldonado v. Wynn Las
Vegas, LLC, 124 Nev. 951, 958, 194 P.3d 96, 100 (2008). If not, this court
employs the Baldonado factors to determine if an implied private cause of
action exists. Id. at 958-59, 194 P.3d at 101.
The Baldonado factors determine whether in the absence of
clear, statutory language authorizing a private right of action, one may be
implied. Id. at 958, 194 P.3d at 100. This court is guided by "the entire
statutory scheme, reason, and public policy," id. at 958, 194 P.3d at 101,
which translates into three factors: "(1) whether the plaintiffs are of the
class for whose [e]special benefit the statute was enacted; (2) whether the
legislative history indicates any intention to create or to deny a private
remedy; and (3) whether implying such a remedy is consistent with the
underlying purposes of the legislative scheme." Id. at 958-59, 194 P.3d at
101 (internal quotation marks omitted) (alteration in original) (citing Cort
v. Ash, 422 U.S. 66, 78 (1975) (setting out factors that determine whether
an implied private right of action exists)).
SUPREME COURT
OF
NEVADA
3
(01 1947A
Here, under the first Baldonado factor, LMCC is not a
member of the class the statute was enacted to benefit, except to the
extent the statute was intended to benefit taxpayers generally. See
Associated Builders & Contractors, Inc. v. S. Nev. Water Auth., 115 Nev.
151, 158, 979 P.2d 224, 229 (1999) ("The purpose of bidding is to secure
competition, save public funds, and to guard against favoritism,
improvidence and corruption. Such statutes are deemed to be for the
benefit of the taxpayers and not the bidders, and are to be construed for
the public good."); Laborers' Int'l Union of N. Am., Local Union No. 169 v.
Truckee Carson Irrigation Dist., Docket No. 60528 (Order of Affirmance,
April 23, 2014) (concluding standing did not exist for union and
subcontractor to challenge bidding laws based on "potential for
employment" because it was "speculative, rather than [a] direct and
substantial interest" and the "purported benefit" of union members
receiving "future employment is beyond NRS 338.141's zone of interests").
In this case, LMCC never bid on the project, nor is it capable of bidding.
LMCC does not represent contractors' interests that would be qualified to
bid on the project had CCSD opened it up for public bidding. Rather,
LMCC is claiming that it has been harmed because of potential
employment and wages employees would have earned had their employer
been awarded the public contract—a speculative interest this court has
already rejected. See id.Second, the legislative history under NRS 338.143 reveals an
intention to deny a private remedy. See Hearing on S.B. 189 Before the
Senate Governmental Affairs Comm., 75th Leg., at 23 (Nev., March 18,
2009) ("Mhere is no statutory recognized private cause of
action.... There is not in NRS 338."). Moreover, "the absence of an
SUPREME COURT
OF
NEVADA
4
(0) 1947A
express provision providing for a private cause of action to enforce a
statutory right strongly suggests that the Legislature did not intend to
create a privately enforceable judicial remedy." Baldonado, 124 Nev. at
959, 194 P.3d at 101.
Finally, under the third factor of Baldonado, implying a
private cause of action is inconsistent with the underlying purpose of NRS
338.143. This factor's analysis overlaps with the reasoning in the first
factor because both discuss that the purpose of the bidding statutes is to
protect the public. See Associated Builders, 115 Nev. at 158, 979 P.2d at
229. Therefore, implying a private cause of action into NRS 338.143
would not serve the underlying purpose of the bidding statutes, but would
rather "encourage lengthy and expensive litigation between bidders and
public entities. Such litigation could prove costly to public funds and
would not serve the public good." Richardson Constr., Inc. v. Clark Cty.
Sch. Dist., 123 Nev. 61, 66, 156 P.3d 21, 24 (2007). Consequently, all three
Baldonado factors weigh against implying a private cause of action into
NRS 338.143.
Amicus curiae argue that Associated Builders implicitly grants
standing to LMCC. Associated Builders, however, is distinguishable from
this case for three reasons. First, in Associated Builders, American
Asphalt was a licensed contractor that actually bid on the project, where,
in this case, Melendez and Del Rio were painters and, thus, unable to bid
on the project. 115 Nev. at 153, 979 P.2d at 226. Second, ABC, a national
trade association, sued in conjunction with American Asphalt, which
suffered harm and so had standing, along with two American Asphalt
workers. Id. Here, on the other hand, LMCC is suing on behalf of
Melendez and Del Rio as its trustees. Third, American Asphalt and ABC
SUPREME COURT
OF
NEVADA
5
99). 1947A 0
challenged the use of Southern Nevada Water Authority's adoption of a
project labor agreement as a matter of law. Id. In this case, however,
LMCC is claiming harm from a violation of the competitive bidding laws
and seeking injunctive relief. Instead of this court being able to address
questions as a matter of law, as it did in Associated Builders, id. at 156,
979 P.2d at 227, LMCC would require this court to conduct a factual
analysis of whether CCSD violated the competitive bidding laws and
harmed LMCC. Therefore, Associated Builders does not grant an implicit
holding of standing to LMCC.
Accordingly, as the district court did not err in dismissing
LMCC's complaint for lack of standing, we
ORDER the judgment of the district court AFFIRMED.
, J.
Hardesty
J.
Saitta Pickering
cc: Hon. Elissa F. Cadish, District Judge
Ara H. Shirinian, Settlement Judge
Christensen James & Martin
Kolesar & Leatham, Chtd.
McCracken, Stemerman & Holsberry
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
6
(0) 1947A e