Southern Nv. Labor Mgmt. Cooperation Comm. v. City of Boulder City

IN THE SUPREME COURT OF THE STATE OF NEVADA

SOUTHERN NEVADA LABOR No. 68060
MANAGEMENT COOPERATION
COMMITTEE, BY AND THROUGH ITS
TRUSTEES TERRY MAYFIELD AND
JOHN SMIRK, FOR ITSELF AND ON
BEHALF OF KEN DUNAWAY AND
FILED
INJURED SIGNATORIES; AND THE MAY 1 1 2016
PAINTING AND DECORATING
CONTRACTORS OF AMERICA,
SOUTHERN NEVADA CHAPTER, FOR
AND ON BEHALF OF ITSELF AND ITS
INJURED MEMBERS,
Appellants,
vs.
CITY OF BOULDER CITY, A
POLITICAL SUBDIVISION OF THE
STATE OF NEVADA; AND MMI TANK,
INC., AN ARIZONA CORPORATION,
Respondents

ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing a
complaint for declaratory and injunctive relief concerning an alleged
public works project. Eighth Judicial District Court, Clark County; Rob
Bare, Judge.
Below, appellants Southern Nevada Labor Management
Cooperation Committee (LMCC) and the Painting and Decorating
Contractors of America, Southern Nevada Chapter, sued respondent City

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 of Boulder City, alleging that the City had improperly awarded a public
works contract in connection with work on a water tank to respondent
MMI Tank, Inc., through a faulty bid solicitation. In particular,
appellants contended that the bid solicitation wrongly advertised the
water tank work as "normal maintenance" and thus excluded it, under
NRS 338.011, from statutory public works requirements like paying
prevailing wages. As a result, appellants asserted, their members, who
are either employers required by collective bargaining agreements to pay
their workers certain minimum wages or the workers themselves, were
unable to fairly compete with companies that were not restricted by
similar wage requirements. After motions to dismiss were filed, the
district court determined that appellants had standing as representatives
of injured parties and that, although the case was factually different from
that in Baldonado v. Wynn Las Vegas, LLC, 124 Nev. 951, 194 P.3d 96
(2008), the Nevada Labor Commissioner nevertheless had jurisdiction to
determine the issues, and the court dismissed the case. Appellants then
appealed.
The district court properly dismissed for failure to first seek
relief with the labor commissioner. Malecon Tobacco, LLC v. State, 118
Nev. 837, 839, 59 P.3d 474, 475-76 (2002) ("Ordinarily, before availing
oneself of district court relief from an agency decision, one must first
exhaust available administrative remedies."); see Buzz Stew, LLC v. City
of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (noting
that this court reviews orders granting motions to dismiss de novo). The
labor commissioner is charged with enforcing prevailing wage
requirements for public work projects under NRS 338.010 — NRS 338.130,

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 which charge necessarily includes determining whether a project is a
public work. NRS 338.015(1); see NRS 338.010(17) (defining "public
work"); NRS 338.011 (describing contracts excluded from NRS Chapter
338). To that end, a number of statutes and regulations allow parties to
bring matters before the labor commissioner. For instance, NRS 607.205
and NRS 607.207 provide for notice and hearings on labor law
enforcement questions under the labor commissioner's authority. And
NAC 338.107 authorizes the filing of a complaint concerning violations of
the public works statutes enforceable by the labor commissioner, while
NAC 607.650 and NAC 607.670 govern, generally, petitions for advisory
and declaratory orders. As whether a project is subject to NRS Chapter
338 is governed by the statutory definitions enforceable by the labor
commissioner, the labor commissioner has authority over the issues raised
by appellants.
Nevertheless, appellants assert that any administrative
remedy is inadequate, such that they should be allowed to bring their
claims directly in the district court. In Baldonado, we recognized that
"when an administrative official is expressly charged with enforcing a
section of laws, a private cause of action generally cannot be implied."
Baldonado, 124 Nev. at 961, 194 P.3d at 102. Here, the labor
commissioner is charged with enforcing the applicable statutes, and no
statute expressly authorizes a party to seek relief from an improperly
advertised bid in the district court. When no clear, statutory language
authorizes a private right of action, one may be implied only if the
legislature so intended. Baldonado, 124 Nev. at 958-59, 194 P.3d at 100-
01 (explaining that this court looks at three factors to determine the

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anN7aTeltherCTI,C
 legislature's intent: "(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" (internal quotation marks and citation
omitted) (alteration in original)). We conclude that the legislature did not
intend to authorize a bid-solicitation challenge in the district court, as
appellants are not members of the class the bid-solicitation statute, NRS
338.143, was enacted to benefit, see Associated Builders & Contractors,
Inc. v. S. Nev. Water Auth., 115 Nev. 151, 158, 979 P.2d 224, 229 (1999);
the statute's legislative history reveals intent 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) ("[T]here is no statutory
recognized private cause of action. . . . There is not in NRS 338."); and
implying a private cause of action is inconsistent with the underlying
purpose of NRS 338.143 to protect the public. See S. Nev. Labor Mgmt.
Cooperation Comm. v. Clark Cty. Sch, Dist., Docket No. 65547 (January
28, 2016, Order of Affirmance) (applying the factors set forth in Baldonado
v. Wynn Las Vegas, LLC, 124 Nev. 951, 958, 194 P.3d 96, 100 (2008), in
determining, under similar arguments made by LMCC with respect to a
different factual situation, that no private right of action to enforce NRS
338.143 exists).

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 The labor commissioner has authority to determine whether a
project is a public work under NRS Chapter 338. Appellants concede that
they did not seek relief from the labor commissioner before filing suit in
the district court. Accordingly, we
ORDER the judgment of the district court AFFIRMED.'

IS
Hardesty
cc.t SA; , J

Pieku
Saitta Pickering

cc: Hon. Rob Bare, District Judge
Christensen James & Martin
Ogletree Deakins Nash Smoak & Stewart
Grant Morris Dodds PLLC
Eighth District Court Clerk

'In light of this order, we need not reach the parties' arguments
concerning standing.

In addition to dismissing this case by way of final judgment under
NRCP 54(b), the district court purported to "stay" and retain jurisdiction
over the matter, in the event that the parties seek relief from the labor
commissioner and thereafter desire judicial review. This the court cannot
do. SFPP, L.P. v. Second Judicial Dist. Court, 123 Nev. 608, 612, 173 P.3d
715, 717 (2007) ("[O]nce a final judgment is entered, the district court
lacks jurisdiction to reopen it. . . ."). Thus, any post-administrative-action
district court proceeding must proceed in the normal course.

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