                          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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