FILED
                                              United States Court of Appeals
                                                      Tenth Circuit

                                                   January 24, 2019
                               PUBLISH
                                             Elisabeth A. Shumaker
                UNITED STATES COURT OF APPEALS Clerk of Court

                           TENTH CIRCUIT



RANDY CUMMINGS; CRUZ
GALLEGOS; ROBERT J. GARCIA;
RICHARD GONZALES; ELOY A.
JARAMILLO; DAVID
LARRANAGA; JOSEPH LOPEZ;
RICK LOPEZ; DAVID MONTANO;
ANGELO RINALDI; CHRIS
SWEENEY; JOSH TILLINGHAST;
TOMAS TRUJILLO; JEFFREY S.
WADE; JOSHUA HOSELTON;
CHARLES W. LEES; JAIME
MARQUEZ; ROBERT MENDOZA;
ARMANDO ANCHONDO;
GUSTAVO BERROSPE; REYES
CABRIALES; SERGIO ESCOBEDO;
JASON HEAD; NICK HINOJOS;
ROBERT G. HITZMAN; MICHAEL
LOPEZ; JOSE RODRIGUEZ;
SERGIO A. ROJO; RICHARD
TENORIO; CESAR TORRES;
GRANT WILLIS; HAROLD BROWN;
RENE CARRILLO; HENRY NEZ,
JR.; KURT JOHNSON; JESUS
AGUILAR-MURILLO; MARTIN F.
ALVAREZ; ARTHUR ARCHULETA;
ENRIQUE CORONA; RONALD
HUBBARD; ANDREW M. LUGO;
HENRY LUJAN; DAVID CARR; D.
JEREMIAH CORDOVA; KEVIN
CHARVEA; NATHAN ESPALIN;
LEVI GUTIERREZ; DENNIS
MOORE; ROBERT MORENO; LEVI
OLIVAS; THOMAS D. PAYNE;
BRYAN WHEELER, on behalf of
themselves and all others similarly
 situated,

       Plaintiffs - Appellees/Cross-
       Appellants,
 v.                                            Nos. 17-2072 & 17-2079
 JASON DEAN, as the Director of the
 Labor Relations Division of the New
 Mexico Department of Workforce
 Solutions, in his individual capacity,

       Defendant - Appellant/Cross-
       Appellee

 and

 CELINA BUSSEY, Secretary of the
 New Mexico Department of Workforce
 Solutions, in her individual capacity,

       Defendant/Cross-Appellee.


                 Appeal from the United States District Court
                        for the District of New Mexico
                     (D.C. No. 1:16-CV-00951-JAP-KK)


Thomas Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico (Jason J.
Lewis, Law Office of Jason J. Lewis, LLC, Albuquerque, New Mexico; Marshall
J. Ray, Law Offices of Marshall J. Ray, LLC, Albuquerque, New Mexico; and
Sean Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico, on the briefs),
for Defendant - Appellant/Cross-Appellee and Defendant/Cross-Appellee.

Shane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs),
Youtz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees
/Cross-Appellants.


Before LUCERO, HOLMES, and EID, Circuit Judges.

                                          2
HOLMES, Circuit Judge.


      Jason Dean, director of the Labor Relations Division of the New Mexico

Department of Workforce Solutions (“DWS”), raises this appeal from the district

court’s denial of qualified immunity against the claim that he violated Plaintiffs’

constitutional rights to substantive due process by failing to issue prevailing rates

for wages and fringe benefits as required by New Mexico law.

      In the action below, Plaintiffs, individuals who worked on public works

projects in New Mexico, filed claims under 42 U.S.C. § 1983 on behalf of

themselves and others similarly situated, alleging that Director Dean and Celina

Bussey, secretary of the DWS, violated Plaintiffs’ procedural and substantive

due-process rights by failing to determine prevailing rates for wages and fringe

benefits in contravention of the New Mexico Public Works Minimum Wage Act

(“Act”), N.M. S TAT . A NN . § 13-4-11(B) (West 2009). Plaintiffs alleged that, as a

result of this failure, from 2009 to 2015 they did not receive the rates to which

they were entitled under the Act.

      Defendants filed a motion to dismiss, claiming qualified immunity. The

district court granted it in part and denied it in part. Specifically, the district

court granted the motion in its entirety as to Secretary Bussey, and as to

Plaintiffs’ procedural due-process claim against Director Dean. However, the


                                           3
court denied the motion with respect to Director Dean on Plaintiffs’ substantive

due-process claim.

      Both parties now appeal from the district court’s ruling. In Case No. 17-

2072, Director Dean appeals from the court’s denial of qualified immunity as to

Plaintiffs’ substantive due-process claim, while in Case No. 17-2079, Plaintiffs

cross-appeal the district court’s dismissal of (1) their claims against Secretary

Bussey, and (2) their claim against Director Dean for violation of their procedural

due-process rights.

      For the reasons stated below, we dismiss Plaintiffs’ cross-appeal, Case No.

17-2079, for lack of jurisdiction, and reverse and remand the district court’s

denial of qualified immunity as to Director Dean on Plaintiffs’ substantive

due-process claim in Case No. 17-2072.

                                          I

      We first present the state statutory context for Plaintiffs’ claims and then

review the relevant facts.

                                         A

      Every contract for public works in New Mexico in excess of

$60,000—including those involving construction and demolition—is required to

state the minimum wages and fringe benefits for all tradespeople that work on a

particular project. The director of the Labor Relations Division of DWS (“the

director”) is tasked with publishing a schedule of minimum wages and fringe

                                          4
benefits for such laborers and mechanics. Generally, Plaintiffs are individuals

who worked on public-works projects in New Mexico during the three years prior

to the date of the filing of their lawsuit on August 23, 2016.

      Prior to 2009, § 13-4-11(B) of the Act provided:

             [The director] shall conduct a continuing program for the
             obtaining and compiling of wage-rate information and shall
             encourage the voluntary submission of wage-rate data by
             contractors, contractors’ associations, labor organizations,
             interested persons and public officers. Before making a
             determination of wage rates for any project, the director shall
             give due regard to the information thus obtained. Whenever the
             director deems that the data at hand are insufficient to make a
             wage determination, the director may have a field survey
             conducted for the purpose of obtaining sufficient information
             upon which to make [a] determination of wage rates. Any
             interested person shall have the right to submit to the director
             written data, views and arguments why the wage determination
             should be changed.

N.M. S TAT . A NN . § 13-4-11(B) (West 2005). In 2009, § 13-4-11(B) of the Act

was amended to state:

             The director shall determine prevailing wage rates and prevailing
             fringe benefit rates for respective classes of laborers and
             mechanics employed on public works projects at the same wage
             rates and fringe benefit rates used in collective bargaining
             agreements between labor organizations and their signatory
             employers that govern predominantly similar classes or
             classifications of laborers and mechanics for the locality of the
             public works project and the crafts involved; provided that:

               (1) if the prevailing wage rates and prevailing fringe benefit
                   rates cannot reasonably and fairly be determined in a
                   locality because no collective bargaining agreements exist,
                   the director shall determine the prevailing wage rates and
                   prevailing fringe benefit rates for the same or most similar

                                          5
                   class or classification of laborer or mechanic in the nearest
                   and most similar neighboring locality in which collective
                   bargaining agreements exist;

               (2) the director shall give due regard to information obtained
                   during the director’s determination of the prevailing wage
                   rates and the prevailing fringe benefit rates made pursuant
                   to this subsection;

               (3) any interested person shall have the right to submit to the
                   director written data, personal opinions and arguments
                   supporting changes to the prevailing wage rate and
                   prevailing fringe benefit rate determination; and

               (4) prevailing wage rates and prevailing fringe benefit rates
                   determined pursuant to the provisions of this section shall
                   be compiled as official records and kept on file in the
                   director’s office and the records shall be updated in
                   accordance with the applicable rates used in subsequent
                   collective bargaining agreements.

N.M. S TAT . A NN . § 13-4-11(B) (West 2009) [hereinafter “the 2009

Amendments”].

      The 2009 Amendments had the primary effect of requiring the director to

determine the prevailing rates based on the wage rates and fringe-benefit rates

used in collective bargaining agreements (“CBAs”), as opposed to the earlier

version of the statute’s mandate to simply collect data for the “purpose of

obtaining sufficient information upon which to make [a] determination of wage

rates.” N.M. S TAT . A NN . § 13-4-11(B) (West 2005); see also Aplt.’s App.

at 151–52 (Mem. Op. & Order, dated Apr. 20, 2017).

                                         B


                                          6
      By April 2011—almost two years after the 2009 Amendments came into

force—the director still had not set prevailing-wage rates according to the CBAs.

The New Mexico Building and Construction Trades Council (“NMBCTC”), “an

alliance of craft unions” that represent New Mexico public workers, N.M. Bldg. &

Constr. Trades Council v. Dean, 

, 1214 (N.M. 2015), filed a

Petition for Writ of Mandamus in the New Mexico Supreme Court requesting that

the court compel the director to set prevailing wage and prevailing benefit rates in

accordance with relevant CBAs. The New Mexico Supreme Court denied the

writ, but did so on the basis of a representation by the DWS secretary’s (“the

secretary”) counsel that the secretary would set new rates within four or five

months. See 

statement during oral arguments in 2011: “I

would say [setting the rates] could conceivably be done in four or five months,

which I don’t think is unreasonable, especially since the secretary has assured me,

and I’m assuring the Court, that she’s intent on getting this done. I don’t think it

requires a writ of mandamus to get it done. But, whatever the Court desires, I’m

confident she’ll get it done.”).

      Despite this assurance from the secretary’s counsel, the secretary did not

set new prevailing wage or prevailing benefit rates, even though in 2012 she

oversaw the promulgation of new regulations and the amendment of others as

required by the Act. 

The NMBCTC challenged these new

regulations before the New Mexico Labor and Industrial Commission (“LIC”).

                                          7
Typically, a challenge to a new regulation filed with the LIC stays the

implementation of that regulation pending resolution of the challenge, see N.M.

C ODE R. § 11.1.2.17(B)(1), but the NMBCTC requested that the LIC waive the

automatic stay if necessary to allow the DWS to proceed with determining new

prevailing rates:

             Pursuant to [N.M. C ODE R. § 11.1.2.17(B)(1)], Appellant waives
             its right to stay the effectiveness of the new rules through the
             filing of this appeal as those rules relate to the determination of
             new prevailing rates to replace the rates currently in effect. . . .
             Appellant desires the Department to update the prevailing rates
             in some manner as soon as possible given that the current rates
             are based on 2009 data and have not been updated for more than
             two years. If necessary, Appellant requests the Commission to
             waive the automatic stay as herein described as well.

Aplt.’s App. at 106 (Ex. E, Notice of Appeal, dated Mar. 27, 2012). The LIC

denied the NMBCTC’s challenge, and the NMBCTC appealed that decision to the

state district court. The LIC did not act to lift the automatic stay at any point

during these proceedings.

      While the appeal to the state district court was pending, and in light of the

director’s continued failure to determine updated rates, the NMBCTC filed a

second Petition for Writ of Mandamus in the New Mexico Supreme Court in

2015. The NMBCTC again requested that the New Mexico Supreme Court order

the director to determine the rates as required under the Act. The court this time

granted the writ, stating:




                                          8
            We hold that under the Act the Director has a mandatory,
            nondiscretionary duty to set the same prevailing wage and
            prevailing benefit rates as those negotiated in applicable CBAs
            and that the Director’s failure to do so violates the Act. We
            therefore issue a writ of mandamus ordering the Director to
            comply with the Act and set rates in accordance with CBAs as
            required under the Act within thirty days of the issuance of this
            opinion.

.

                                          C

      Plaintiffs filed the present suit in federal court alleging that they suffered

financial harm due to Defendants’ failure to determine the prevailing rates in

accordance with the 2009 Amendments. Specifically, they allege that the wages

and benefits they received, which were based on the pre-2009 Amendment

determinations, “were less than would have been received had Defendants issued

prevailing wage rate and prevailing fringe benefit determinations in accordance

with the . . . Act as amended in 2009.” Aplt.’s App. at 44 (First Am. Compl.,

dated Aug. 23, 2016).

      Pursuant to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”),

Defendants sought judgment on the pleadings with respect to Plaintiff’s amended

complaint—the operative complaint for our purposes—on qualified-immunity

grounds. The district court granted the motion in its entirety with respect to

Secretary Bussey since Plaintiffs had failed to allege the necessary “‘affirmative

link’ demonstrating that Bussey authorized or approved of Dean’s noncompliance


                                          9
with the Act.” Aplt.’s App. at 159 (quoting Dodds v. Richardson, 

,

1200–01 (10th Cir. 2010)).

      The court then considered Plaintiffs’ constitutional claims against Director

Dean. With respect to the procedural due-process claim, the court first

determined that Plaintiffs had a protected property interest in CBA-level rates

under the Act, giving rise to restrictions on the director’s discretion in

determining prevailing rates. However, the court noted that “more is

required—Plaintiffs must show that they were deprived of the [property] interest

without an adequate process by which they could obtain review of the

deprivation.” 

(emphasis added). The court then stated that Plaintiffs

failed to establish that the processes available to challenge the director’s inaction

were constitutionally inadequate, in part because Plaintiffs did “not allege

anywhere in the Complaint that they lacked the opportunity to challenge the 2009

rates used by the Director.” 

–61. Accordingly, the court dismissed the

procedural due-process claim against Director Dean.

      The district court denied Defendants’ motion to dismiss Plaintiffs’

substantive due-process claim against Director Dean, however. The court

reasoned that the failure to set new rates, despite the assurance provided by the

secretary’s counsel during oral arguments before the New Mexico Supreme Court,

was sufficient to show that the director deliberately and arbitrarily deprived

Plaintiffs of a protected property right. Furthermore, the court stated the director

                                          10
violated clearly-established law by depriving Plaintiffs of the wages and benefits

to which they were entitled under the Act. According to the court, Plaintiffs’

right to CBA-based wages and benefits was clearly established by the statute

itself given that the plain language of the 2009 Amendments was susceptible to

only one reading—“that it guarantees that [the] minimum wage and benefit rates

must be equivalent to the rates negotiated in CBAs.” 

      Director Dean appealed, and Plaintiffs cross-appealed the dismissal of their

claims against Secretary Bussey and their procedural due-process claim against

Director Dean.

                                          II

      As in every matter, we must consider whether we have jurisdiction over all

aspects of this appeal. See Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG,

, 1021 (10th Cir. 2014) (“It is our obligation always to be certain of

our subject matter jurisdiction.” (quoting Russo v. Ballard Med. Prods., 

, 1009 (10th Cir. 2008))).

                                          A

      With respect to Director Dean’s appeal in Case No. 17-2072, we exercise

jurisdiction over the district court’s denial of his qualified-immunity defense

pursuant to 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 

, 672 (2009)

(“[T]his Court has been careful to say that a district court’s order rejecting

qualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final

                                         11
decision’ within the meaning of § 1291.”); accord Brown v. Montoya, 

, 1162 (10th Cir. 2011).

                                           B

      Our jurisdiction to hear Plaintiffs’ cross-appeal in Case No. 17-2079 is less

clear. We ultimately conclude that we do not have jurisdiction to hear this

appeal.

      We normally lack jurisdiction over a partial dismissal of a complaint

because such dismissals do not constitute final, appealable decisions under

§ 1291. See McBride v. CITGO Petroleum Corp., 

, 1104 (10th Cir.

2002) (“Because the dismissal . . . adjudicated fewer than all the claims and

liabilities of all the parties, it was not a final appealable order . . . .”). However,

the discretionary doctrine of pendent appellate jurisdiction provides an exception

to this rule, allowing us to exercise jurisdiction over an “otherwise nonfinal and

nonappealable lower court decision that overlaps with an appealable decision.”

Cox v. Glanz, 

, 1255 (10th Cir. 2015) (quoting Moore v. City of

Wynnewood, 

, 929 (10th Cir. 1995)).

      Our exercise of pendent jurisdiction is “only appropriate” in either of two

scenarios: (1) “when ‘the otherwise nonappealable decision is inextricably

intertwined with the appealable decision,’” or (2) “where review of the

nonappealable decision is necessary to ensure meaningful review of the

appealable one.” Crowe & Dunlevy, P.C. v. Stidham, 

, 1148 (10th

                                           12
Cir. 2011) (quoting Tarrant Reg’l Water Dist. v. Sevenoaks, 

, 915

(10th Cir. 2008)).

      Plaintiffs face several obstacles in establishing pendent jurisdiction over

their cross-appeal. First, the exercise of pendent jurisdiction is generally

disfavored as applied to cases in which primary appellate jurisdiction is based on

the denial of qualified immunity. See 

; accord Bryson v.

Gonzales, 

, 1285–86 (10th Cir. 2008). After all, the collateral order

doctrine, used to appeal from denials of qualified immunity, “is premised on the

ability to decide the qualified immunity issue ‘in isolation from the remaining

issues of the case,’” making it “hard to reconcile” with pendent jurisdiction.

(quoting Mitchell v. Forsyth, 

, 529 n.10

(1985)).

      Moreover, Plaintiffs’ briefing does not adequately support their assertion

that we may exercise pendent jurisdiction over their claims. And it is beyond

peradventure that it is Plaintiffs’ burden to make such a jurisdictional showing.

See, e.g., Raley v. Hyundai Motor Co., 

, 1275 (10th Cir. 2011)

(“Where an appellant fails to lead, we have no duty to follow. It is the

appellant’s burden, not ours, to conjure up possible theories to invoke our legal

authority to hear her appeal.”); accord E.E.O.C. v. PJ Utah, LLC, 

,

542 n.7 (10th Cir. 2016). Their entire argument on this threshold matter consists

of a single conclusory sentence found in, respectively, their opening and reply


                                          13
briefs. See Pls.’ Resp. Br. at 1 (contending that this court “could, and should,

assert pendent jurisdiction over [this] cross-appeal”); accord Pls.’ Reply Br. at 1. 1

Plaintiffs present no analysis or argument to support either acceptable basis for

granting relief—viz., that their claims on cross-appeal are “inextricably

intertwined” with the director’s appeal, or that consideration of their cross-appeal

is “necessary for a full assessment of the appealable issue.” Crowe & 

(quoting 

). 2 By providing us with


      1
              To avoid confusion in this consolidated appeal and cross-appeal, we
refer to the parties’ briefs as follows:

•     Defendant/Appellant Jason Dean’s Brief in Chief = Def.’s Opening Br.
•     Appellees’ Principal and Response Brief = Pls.’ Resp. Br.
•     Defendant/Appellant Jason Dean’s and Defendant/Cross-Appellee’s
      Response and Reply Brief = Defs.’ Reply Br.
•     Appellees’ Reply Br. = Pls.’ Reply Br.
      2
              Rather, Plaintiffs assert without analysis that this court “has
pend[e]nt jurisdiction” over their claims in light of Primas v. City of Oklahoma
City, 

(10th Cir. 1992), a case involving a number of appeals
relating to a civil-rights action brought by a former city employee against the city
and city officials. Pls.’ Reply Br. at 1. There, this court exercised pendent
jurisdiction over a cross-appeal from an interlocutory appeal of a denial of
qualified immunity, concluding that the pendent claim—an appeal from the
district court’s determination that the plaintiff did not have a property interest in
continued employment with the city—involved issues that were “factually and
legally intertwined with the [non-pendent] issues on appeal” that the city officials
raised. 

. To be sure, the cases that the Primas court
relied upon in coming to this conclusion employed the aforementioned pendent-
jurisdiction framework: they considered whether the appeals were inextricably
intertwined or whether reviewing the pendent issue was required to adequately
assess the appealable issue. See Micro Motion, Inc. v. Kane Steel Co., 

, 1320 (Fed. Cir. 1990); Barrett v. United States, 

, 571 (2d Cir.
1986). As such, by relying on Primas, Plaintiffs do point us in the direction of
                                                                          (continued...)

                                          14
bare assertions rather than analytical guidance, Plaintiffs effectively ask us to

“make arguments for [them] that [they] did not make in [their appellate] briefs,”

which we “will not” do. 3 

(quoting O’Neal v. Ferguson

Constr. Co., 

, 1257 n.1 (10th Cir. 2001)).

      Finally, even were we to overlook Plaintiffs’ failure to argue within the

pendent-jurisdiction framework, we would conclude that their claims do not

present either of the two scenarios where pendent jurisdiction may be

appropriately exercised. With respect to Plaintiffs’ appeal of the district court’s

dismissal of all claims against Secretary Bussey, the relevant question on appeal

is whether Plaintiffs’ amended complaint adequately identified an “affirmative

link” between Secretary Bussey and the alleged deprivations in this case. Pls.’

Resp. Br. at 26. It is manifest that this question is not “inextricably intertwined”

with the appealable issue before us, i.e., whether Director Dean is entitled to

qualified immunity as to Plaintiffs’ substantive due-process claim. Crowe &

(“A pendent claim may be considered ‘inextricably



      2
        (...continued)
the required analysis. But Plaintiffs do not actually apply that analysis to the
facts of this case, and we will not do it for them.
      3
              The director did not address pendent jurisdiction in his briefing.
Unlike Plaintiffs’ failure to argue within the pendent-jurisdiction framework,
however, the director’s “silence on the matter is of no moment,” 

n.13, as we have an independent obligation to inquire into our own
jurisdiction regardless of whether it is challenged, see United States v. Battles,

, 447 (10th Cir. 2014).

                                          15
intertwined’ only if it is ‘coterminous with, or subsumed in, the claim before the

court on interlocutory appeal—that is, when the appellate resolution of the

collateral appeal necessarily resolves the pendent claim as well.’” (quoting

)). Nor is appellate review of this question “necessary to

ensure meaningful review,” id. (quoting 

), of the issues

presented in Director Dean’s qualified-immunity appeal, as evidenced by our

analysis of those issues, infra. See 

(“[W]e can

undertake—indeed we have undertaken . . .—a meaningful analysis of Sheriff

Glanz’s appeal from the denial of qualified immunity (i.e., the non-pendent claim)

without exercising pendent jurisdiction over the official-capacity claim.”). As

was the case in Cox, in resolving the non-pendent appeal, “we [are] not required

to decide the core issues implicated” in this ostensibly pendent matter, leaving us

with “grave doubt that there would be any appropriate basis for our exercise of

pendent jurisdiction.” 

over Plaintiffs’ appeal from the dismissal of their

procedural due-process claim against Director Dean proves to be a closer call, but

our conclusion is the same. It is axiomatic that procedural and substantive

due-process claims require distinct analyses, undermining the notion that this

pendent claim and the appealable claim are inextricably intertwined or that we

must review the procedural claim in order to adequately address the substantive

due-process claim that is properly before us. See Cleveland Bd. of Educ. v.


                                         16
Loudermill, 

, 541 (1985) (“The point is straightforward: the Due

Process Clause provides that certain substantive rights—life, liberty, and

property—cannot be deprived except pursuant to constitutionally adequate

procedures. The categories of substance and procedure are distinct. Were the

rule otherwise, the Clause would be reduced to a mere tautology.”); 

(noting that a judicial decision in “a procedural due process case . . .

cannot support a clearly established substantive due process right” (citation

omitted)); 

n.16 (“Insofar as Mr. Brown claims a

substantive due process violation based on Officer Montoya’s placing him in the

sex offender probation unit and directing him to register as a sex offender without

a hearing, Mr. Brown confuses substantive due process with procedural due

process.”); United States v. Deters, 

, 582 (10th Cir. 1998) (“Unlike

procedural due process, substantive due process protects a small number of

‘fundamental rights’ from government interference regardless of the procedures

used.”); see also Browder v. City of Albuquerque, 

, 1078 (10th Cir.

2015) (“The Supreme Court has interpreted this language [i.e., of the Due Process

Clause] as guaranteeing not only certain procedures when a deprivation of an

enumerated right takes place (procedural due process), but also as guaranteeing

certain deprivations won’t take place without a sufficient justification

(substantive due process).”); [Wesley] Brown v. Cooke, 362 F. App’x 897, 899

(10th Cir. 2010) (unpublished) (“[T]he district court did not specifically state in


                                          17
its opinion and order whether it considered a procedural due process claim, a

substantive due process claim, or both. This omission is relevant because the

court appeared to inject the more demanding ‘fundamental rights and liberties’

analysis from the substantive due process sphere into the ‘liberty interest’

analysis that pertains to the procedural due process inquiry.”).

      And though there is often some overlap between the two analyses when

substantive and procedural due-process claims are raised together based on the

same facts, see Becker v. Kroll, 

, 918 n.8 (10th Cir. 2007) (“Though

it is sometimes helpful, as a matter of doctrine, to distinguish between substantive

and procedural due process, the two concepts are not mutually exclusive, and

their protections often overlap.” (quoting Albright v. Oliver, 

, 301

(1994) (Stevens, J. dissenting))), the issues here are quite distinct: Plaintiffs’

pendent action challenges the district court’s conclusion that there were adequate

procedural protections that Plaintiffs failed to invoke, whereas the non-pendent

appeal challenges the court’s finding that the director’s actions shocked the

conscience and violated clearly-established federal law. These considerations are

not inextricably intertwined, and review of the pendent action is not required for a

meaningful analysis of the non-pendent appeal. Indeed, the district court’s

analysis and even the parties’ briefing treat the two issues without overlap. See

Aplt.’s App. at 159–66; cf. 

.




                                           18
      Thus, given our general disfavor of pendent jurisdiction in the qualified-

immunity context, see 

–86, Plaintiffs’ dereliction of their

burden to establish our jurisdiction over their cross-appeal, and our conclusion

that neither of the two accepted rationales for exercising pendent jurisdiction are

present here, we decline to exercise pendent jurisdiction over Plaintiffs’ cross-

appeal. We consequently dismiss Plaintiffs’ cross-appeal in Case No. 17-2079 for

lack of jurisdiction.



                                         III

      We next turn to the issue properly before us on appeal: whether the district

court erred in denying Director Dean qualified immunity against Plaintiffs’

substantive due-process claim. We first lay out the familiar motion-to-dismiss

and qualified-immunity standards of review before concluding that the district

court erred in denying Director Dean’s qualified-immunity defense. More

specifically, we hold that the Plaintiffs have failed to carry their burden of

showing that Director Dean’s actions violated clearly-established federal law.

                                          A

                                          1

      “A motion for judgment on the pleadings under Rule 12(c) is treated as a

motion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank

of Wichita, 

, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret

                                         19
Book Co., 

, 941 n.2 (10th Cir. 2002). Therefore, we review de novo

the district court’s denial of Director Dean’s motion asserting a qualified-

immunity defense. See, e.g., Brokers’ Choice of America Inc. v. NBC Universal,

Inc., 

, 1102 (10th Cir. 2017) (noting that “we use the same de novo

standard of review” in reviewing a district court’s ruling on Rule 12(c) and Rule

12)(b)(6)); 

(“We review the district court’s denial of a

motion to dismiss based on qualified immunity de novo.” (quoting Peterson v.

Jensen, 

, 1202 (10th Cir. 2004))); Ramirez v. Dep’t of Corrs.,

Colo., 

, 1240 (10th Cir. 2000) (reviewing de novo a district court’s

denial of a Rule 12(c) motion based on qualified immunity), abrogated on other

grounds by Crawford-El v. Britton, 

(1988), as recognized by

Currier v. Doran, 

, 912, 916 (10th Cir. 2001).

      “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Emps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 

, 1161 (10th Cir.

2018) (quoting 

). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Free Speech v.

Fed. Election Comm’n, 

, 792 (10th Cir. 2013) (quoting 

). In making this assessment, we “accept as true ‘all well-pleaded

factual allegations in a complaint and view these allegations in the light most


                                           20
favorable to the plaintiff.’” Schrock v. Wyeth, Inc., 

, 1280 (10th

Cir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 

, 959 (10th

Cir. 2011)).

                                          2

      The qualified-immunity doctrine protects public employees from both

liability and “from the burdens of litigation” arising from their exercise of

discretion. Allstate Sweeping, LLC v. Black, 

, 1266 (10th Cir.

2013); see Elder v. Holloway, 

, 514 (1994) (“The central purpose of

affording public officials qualified immunity from suit is to protect them ‘from

undue interference with their duties and from potentially disabling threats of

liability.’” (quoting Harlow v. Fitzgerald, 

, 806 (1982))). When a

defendant raises the qualified-immunity defense, “the onus is on the plaintiff to

demonstrate ‘(1) that the official violated a statutory or constitutional right, and

(2) that the right was “clearly established” at the time of the challenged

conduct.’” Quinn v. Young, 

, 1004 (10th Cir. 2015) (emphasis

added) (quoting Ashcroft v. al-Kidd, 

, 735 (2011)); accord Cillo v.

City of Greenwood Village, 

, 460 (10th Cir. 2013).

      We may address the two prongs of the qualified-immunity analysis in either

order: “[I]f the plaintiff fails to establish either prong of the two-pronged

qualified-immunity standard, the defendant prevails on the defense.” A.M. v.

Holmes, 

, 1134–35 (10th Cir. 2016), cert. denied, 

                                          21
(2017). Here, our analysis focuses on the clearly-established-law prong, and we

conclude that Plaintiffs have failed to demonstrate that Director Dean violated

their clearly-established rights; consequently, Director Dean prevails on his

qualified-immunity defense. Because we need not do so, we do not reach the first

prong of the qualified-immunity standard—that is, whether Director Dean’s

conduct in failing to set prevailing rates actually violated Plaintiffs’ substantive

due-process rights.

      “A clearly established right is one that is ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that

right.’” Mullenix v. Luna, --- U.S. ----, 

, 308 (2015) (per curiam)

(quoting Reichle v. Howards, 

, 664 (2012)). Ordinarily, “[a]

plaintiff may satisfy this [clearly-established-law] standard by identifying an

on-point Supreme Court or published Tenth Circuit decision [that establishes the

unlawfulness of the defendant’s conduct]; alternatively, ‘the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.’” 

(quoting Weise v. Casper, 

, 1167 (10th Cir. 2010)); accord 

; 

. As the Supreme Court has instructed, this “do[es] not require a case

directly on point, but existing precedent must have placed the statutory or

constitutional question [regarding the illegality of the defendant’s conduct]

beyond debate.” 

; see Estate of B.I.C. v. Gillen, 

1099, 1106 (10th Cir. 2014) (“Although it is not necessary for the facts in the

cited authority to correspond exactly to the situation the plaintiff complains of,

the ‘plaintiff must demonstrate a substantial correspondence between the conduct

in question and prior law allegedly establishing that the defendant’s actions were

clearly prohibited.’” (quoting Trotter v. Regents of Univ. of N.M., 

,

1184 (10th Cir. 2000))). In this vein, the Court has “repeatedly told [lower]

courts . . . not to define clearly established law at a high level of generality.” al-

(citation omitted); accord 

.

“[D]oing so avoids the crucial question [of] whether the official acted reasonably

in the particular circumstances that he or she faced.” Plumhoff v. Rickard, 

, 779 (2014) (emphasis added); accord Estate of 

.

In this connection, it bears underscoring that the federal right allegedly violated

must have been “clearly established at the time of the defendant’s unlawful

conduct.” 

.

      In furthering the protective aims of qualified immunity, it is important that

courts be especially sensitive to the need to ensure “a substantial correspondence

between the conduct in question and prior law allegedly establishing that the

defendant’s actions were clearly prohibited,” Estate of 

(quoting 

)), where the legal standards of liability under

the prior law are broad and general or depend on a balancing of discrete and

sometimes opposing interests. See 

(holding that


                                           23
“specificity [in defining clearly-established law] is especially important in the

Fourth Amendment context” because “[i]t is sometimes difficult for an officer to

determine how the relevant legal doctrine . . . will apply to the factual situation

the officer confronts” (second alteration in original) (quoting Saucier v. Katz, 

, 205 (2001), overruled in part on other grounds by Pearson v. Callahan,

, 236 (2009), as recognized by Hobbs ex rel. Hobbs v. Zenderman,

, 1183 (10th Cir. 2009))); Aldaba v. Pickens, 

, 877

(10th Cir. 2016) (“In the Fourth Amendment context, ‘the result depends very

much on the facts of each case,’ and the precedents must ‘squarely govern’ the

present case [to constitute clearly-established law].” (quoting 

)); Medina v. City & County of Denver, 

, 1498 (10th Cir.

1992) (addressing a substantive due-process claim and stating that “allegations of

constitutional violations that require courts to balance competing interests may

make it more difficult to find the law ‘clearly established’ when assessing claims

of qualified immunity”), overruled in part on other grounds by County of

Sacramento v. Lewis, 

(1998), as recognized by Morris v. Noe, 

, 1197 n.5 (10th Cir. 2012); Melton v. City of Oklahoma City, 

, 729 (10th Cir. 1989) (addressing a retaliatory-discharge claim under the First

Amendment, and noting that, “because a rule of law determined by a balancing of

interests is inevitably difficult to clearly anticipate, it follows that where . . .

balancing is required, the law is less likely to be well established than in other


                                            24
cases”), modified on other grounds on reh’g, 

(10th Cir. 1991) (en

banc). The legal standard governing liability under the rubric of substantive due

process evinces these attributes.

      Specifically, the standard for liability for a violation of a person’s

substantive due-process rights is broad and general. See Washington v.

Glucksberg, 

, 722 (1997) (stating that the rights protected under

substantive due process have “never [been] fully clarified, to be sure, and perhaps

[are] not capable of being fully clarified”); Collins v. City of Harker Heights, 

, 125 (1992) (describing substantive due process as an “unchartered area”

in which the “guideposts for responsible decisionmaking . . . are scarce and

open-ended”). Furthermore and relatedly, consideration of whether a person’s

substantive due-process rights have been infringed “requires a ‘balancing [of the

person’s constitutionally protected] interests against the relevant state interests.’”

J.B. v. Washington Cty., 

, 927 (10th Cir. 1997) (quoting Youngberg

v. Romeo, 

, 321 (1982)).

      Thus, in our assessment here of whether Director Dean’s conduct violated

Plaintiffs’ clearly-established substantive due-process rights, we must be

especially sensitive to whether existing relevant precedents at the time he acted

“squarely govern[ed],” 

, “the particular circumstances

that he . . . faced,” 

(emphasis added), and demonstrated




                                          25
that the “violative nature of the particular conduct is clearly established.”

(quoting 

).



                                          B

      Director Dean challenges the district court’s conclusion as to both prongs

of the qualified-immunity analysis, i.e., that he violated Plaintiffs’ substantive

due-process rights and that he did so in violation of clearly-established federal

law. We agree with Director Dean that he did not violate clearly-established

federal law and thus conclude that he is entitled to the defense of qualified

immunity. However, we first address Plaintiffs’ argument that the

qualified-immunity defense is unavailable because Director Dean’s obligation to

set CBA-based rates was a ministerial duty, rather than a discretionary function of

his position.

                                          1

      Qualified immunity only shields an official in the exercise of his or her

discretion. See Riggins v. Goodman, 

, 1107 (10th Cir. 2009)

(“Under the qualified immunity doctrine, ‘government officials performing

discretionary functions, generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established [federal] statutory or

constitutional rights of which a reasonable person would have known.’”

(alteration in original) (emphasis added) (quoting 

)).


                                          26
Plaintiffs contend that Director Dean’s duty to issue new prevailing rates for

wages and fringe benefits pursuant to the Act was nondiscretionary, rendering

qualified immunity inapplicable here. For support, they rely primarily on the

New Mexico Supreme Court’s statement in Dean that “under the Act, specifically

Section 13-4-11, the Director has a mandatory, nondiscretionary duty to set

prevailing wage and prevailing benefit rates the same as those negotiated in

applicable 

. Director Dean responds that his duty was

in fact discretionary because it involved interpreting the Act.

      We agree with Director Dean that his duty to publish prevailing rates

involved substantial discretion as that term applies in the federal qualified-

immunity context, and that he therefore may avail himself of the qualified-

immunity defense. Director Dean’s implementation of the Act required him to

interpret the language of a state statute. And although the New Mexico Supreme

Court eventually held that Defendants’ interpretation was contrary to the 2009

Amendments, see 

, interpretation of state law is exactly

the kind of discretionary function for which the qualified-immunity defense

against federal liability applies.

      The Supreme Court made this clear in Davis v. Scherer, 

(1984), where it reversed the district court’s denial of qualified immunity based

upon a finding that the defendants had violated a clear mandate of state law in

terminating plaintiff’s employment without following certain pretermination


                                         27
procedures. 

The Court proceeded to craft a narrow scope for the

“ministerial duty” exception to qualified immunity. 

n.14. The Court

explained that a law that “fails to specify the precise action that the official must

take in each instance creates only discretionary authority; and that authority

remains discretionary however egregiously it is abused.” 

Davis

Court reasoned, even assuming that the defendants had “ignored a clear legal

command” to follow various pre-termination procedures before ending the

plaintiff’s employment, this duty was discretionary given that the state regulation

in question left to them to interpret various terms contained in those

pretermination procedures, including “a complete investigation” and a “thorough

study of all information.” 

terms provided the defendants

with a “substantial measure of discretion” and thus allowed them to exercise

authority that is discretionary, rather than ministerial. 

Act left to Director Dean a substantial measure of discretion

in interpreting its terms. The Act requires the director to establish prevailing

rates “at the same wage rates and fringe benefit rates used in collective bargaining

agreements,” but leaves to the director substantial discretion to determine the

method of collecting and aggregating data, and, perhaps most importantly for our

present inquiry, the timetable for doing so. N.M. S TAT . § 13-4-11(B) (West

2009).




                                           28
      Notably, Plaintiffs fail to cite any caselaw addressing federal qualified

immunity that would support a contrary result. And though the New Mexico

Supreme Court held that “the Director has a mandatory, nondiscretionary duty to

set the same prevailing wage and prevailing benefit rates as those negotiated in

applicable CBAs,” 

, the analytical context of the state

court’s description of Director Dean’s duty as “mandatory” and

“nondiscretionary” is important. The court’s description relates to the availability

of mandamus relief under New Mexico law. 

While we ordinarily

defer to a state court’s interpretation of a state statute, see United States v.

DeGasso, 

, 1145 (10th Cir. 2004) (“It is axiomatic that state courts

are the final arbiters of state law.”), the issue before us concerns not whether

mandamus is available under New Mexico law, but whether qualified immunity

bars liability under federal law. We therefore apply a federal standard to

determine whether Director Dean’s obligations were sufficiently discretionary to

warrant the protections of the qualified-immunity defense under federal law, and

we conclude that the United States Supreme Court’s language in Davis compels

our conclusion that such protections are available here.

      Director Dean’s interpretation and implementation of the Act were

therefore matters within his discretion, and he is protected from liability under

§ 1983 unless his conduct violated clearly-established federal law.

                                           2


                                          29
      Turning finally to the issue of whether Director Dean is entitled to qualified

immunity under the circumstances giving rise to this § 1983 suit, we conclude

that his actions did not violate clearly-established federal law. Specifically, we

conclude that Plaintiffs have failed to meet the second prong of the qualified-

immunity analysis—i.e., Plaintiffs have failed to identify clearly-established law

that would have put Director Dean on notice that his conduct would give rise to

liability under federal law—and thus we need not reach the first prong of the

qualified-immunity analysis, i.e., whether Director Dean’s conduct in fact

violated Plaintiffs’ rights to substantive due process. See 

–35.

      The district court denied qualified immunity based upon a finding that “the

Act clearly and unambiguously required the Director to set prevailing wage rates

according to CBAs.” Aplt.’s App. at 165. Plaintiffs rely on this reasoning and

urge us to affirm.

      But the district court’s reasoning is flawed because it equates a violation of

a clear obligation under state law 4 with a violation of clearly-established federal

      4
             Director Dean argues, in his opening brief, that he followed a
“normal process” by refraining from implementing the Act during the pendency of
the challenge before the LIC. Def.’s Opening Br. at 27. In a single sentence, he
argues that “state law was ambiguous at the time,” given that an appeal to the LIC
typically activates an automatic stay, N.M. C ODE R. § 11.1.2.17(B)(1), and the
LIC never acted to lift the stay despite the NMBCTC’s request to waive the stay.
See Def.’s Opening Br. at 27–28.

                                                                        (continued...)

                                         30
law. Whether Director Dean violated clearly-established state law in failing to set

CBA-based rates, however, is an entirely separate question from whether that

failure violated clearly-established federal law. And even if Director Dean had

notice that his reading of the Act was incorrect as a matter of state law, this

would not necessarily deprive him of qualified immunity from liability under

federal law. See 

(“Officials sued for constitutional

violations do not lose their qualified immunity merely because their conduct

violates some statutory or administrative provision [of state law].”); Stanley v.

Gallegos, 

, 1224 (10th Cir. 2017) (Holmes, J., concurring in the

judgment) (noting that Davis forecloses the argument that “if an official acts

outside of his scope of authority, as defined by clearly established state law, he

‘forfeits’ his right to have a federal court in a § 1983 action consider the merits of

his defense that his actions did not violate clearly established federal law”); cf.



      4
        (...continued)
       However, during oral arguments before this court, Director Dean’s counsel
conceded that there was no confusion regarding the director’s state-law
obligations—irrespective of whether a stay was in effect—once the secretary’s
counsel represented to the New Mexico Supreme Court that DWS would update
the prevailing rates. Thus, we deem any argument that the director’s obligation
under state law was ambiguous as either waived due to inadequate briefing on
appeal or abandoned by counsel’s affirmative admission during oral argument, see
United States v. Cooper, 

, 1128 (10th Cir. 2011); United States v.
Carrasco-Salazar, 

, 1272–73 (10th Cir. 2007), at least insofar as
the argument bears upon the clearly-established-law prong of the qualified-
immunity analysis—viz., insofar as any ambiguity might have supported the idea
that a reasonable state official in Director Dean’s position would not have been on
fair notice of a violation of federal law.

                                          31
Dahn v. Amedei, 

, 1189 (10th Cir. 2017) (reversing denial of

qualified immunity upon finding no violation of clearly-established federal law,

but noting that Defendants’ conduct could “very well expose them to tort

liability” under state law).

       Neither the district court nor Plaintiffs have identified any case from the

Supreme Court or this court finding a defendant liable under federal law in

factually similar circumstances, i.e., where a public official in the same or similar

position as Director Dean was held liable under federal law for failing to set rates

for wages and fringe benefits (or for similar items) in apparent contravention of

state law that required him to do so. Given that Plaintiffs bear the burden of

presenting such a case to overcome qualified immunity, see Gutierrez v. Cobos,

, 900 (10th Cir. 2016), this failure proves fatal to their position.

       Instead, Plaintiffs cite two factually inapposite cases in arguing that the Act

created a clearly-established right for purposes of qualified immunity by virtue of

its “clear and unambiguous” description of Director Dean’s duties. These cases,

however, do not speak to the legal issue present here and are without controlling

force in this circuit.

       The first is Gardner v. Williams, 56 F. App’x 700 (6th Cir. 2003)

(unpublished). Plaintiffs’ reliance on Gardner is patently misguided. To begin, it

is notable that Gardner is an out-of-circuit unpublished decision; even assuming

that such a decision is entitled to any consideration at all in the clearly-


                                          32
established-law analysis, that consideration would be minimal. See 

n.5 (observing that “a single unpublished district court opinion is not

sufficient to render the law clearly established,” but, in discussing “unpublished

cases from this court,” noting that “we have never held that a district court must

ignore unpublished opinions in deciding whether the law is clearly established”);

Mecham v. Frazier, 

, 1206 (10th Cir. 2007) (noting, in the context

of discussing the import of an unpublished Tenth Circuit decision, that “[a]n

unpublished opinion, . . . even if the facts were closer, provides little support for

the notion that the law is clearly established”); cf. Grissom v. Roberts, 

, 1168 (10th Cir. 2018) (acknowledging the “little support” holding of

Mecham but noting that, on the other hand, “an unpublished opinion can be quite

relevant in showing that the law was not clearly established,” specifically when

“the same alleged victim and same defendant conduct are involved”).

      Furthermore, even focusing on the merits, Gardner lends Plaintiffs little

succor. There, a panel of the Sixth Circuit concluded that a state trooper had

violated an individual’s clearly-established Fourth Amendment rights by arresting

him without probable cause given that it was “unambiguous and not reasonably

open to an alternative interpretation” that the state statutes used to justify the

arrest were inapplicable. 56 F. App’x at 704. First of all, Gardner is patently

distinguishable because there it was undisputed that effecting an arrest without

probable cause would constitute a violation of Fourth Amendment Rights. In


                                           33
contrast, here it is disputed that Director Dean’s failure to determine prevailing

rates constituted any violation of federal rights. More fundamentally, Gardner

simply highlights in unremarkable fashion the “inevitable importance” in certain

legal settings of state law to our assessment of whether the plaintiff may “show a

violation of his federal rights.” Kaufman v. Higgs, 

, 1300 (10th

Cir. 2012). “The basic federal constitutional right of freedom from arrest without

probable cause is undoubtedly clearly established by federal cases. But the

precise scope of that right uniquely depends on the contours of a state’s

substantive criminal law” where, as in Gardner, the issue is whether the law

enforcement officer “had probable cause based on a state criminal statute.” 

(citation omitted) (citing Keylon v. City of Albuquerque, 

, 1216 (10th Cir. 2008)). “[H]owever, we underscore that—even when it is

essential to discern the content of state law—the rights being vindicated through

§ 1983 are federal.” 

. Gardner does not purport to alter

this federal-law focus of § 1983 liability. Nor does Gardner suggest that state-

law violations play a similarly significant role in the context of substantive due-

process violations, much less clearly establish that Director Dean’s alleged

violation of clearly-established state law in failing to set CBA-based rates would

effect a violation of substantive due process. Thus, Plaintiffs’ reliance on

Gardner is unavailing.




                                         34
      The second case Plaintiffs cite is Brooks v. George County, 

(5th Cir. 1996). Brooks, however, is inapposite. There, the Fifth Circuit denied

qualified immunity to a sheriff that had failed to meet his obligation under state

law to keep records that were to be used to pay pretrial detainees. 

But the Fifth Circuit’s decision to deny qualified immunity there rested entirely

on its determination, based on a reading of the state statute in question, that the

sheriff’s duty was non-discretionary. 

, we have

determined that Director Dean’s duties under the 2009 Amendments were in fact

discretionary for purposes of qualified immunity under federal law. Therefore,

Brooks does not help Plaintiffs either.

      Because Plaintiffs have offered no authority clearly establishing that

Director Dean violated their substantive due-process rights under federal law by

failing to discharge his state-law obligation under the Act to publish CBA-based

rates for wages and fringe benefits, we conclude that Director Dean is entitled to

qualified immunity. 5

                                          IV



      5
              Since our inquiry here solely concerned whether Director Dean
violated clearly-established federal law for purposes of determining whether he is
entitled to qualified immunity from liability under federal law, see 

, we have no occasion to question the New Mexico Supreme Court’s
reading of the 2009 Amendments, or to decide whether Director Dean’s conduct
in fact violated state law. Our opinion thus does not preclude Plaintiffs from
seeking any available relief for Defendants’ purported violations of New Mexico
law in state court.

                                          35
      For the reasons discussed above, we DISMISS Plaintiffs’ appeal of the

grant of qualified immunity in Case No. 17-2079 for lack of jurisdiction, and we

REVERSE the district court’s judgment in Case No. 17-2072 and REMAND the

case and instruct the court to grant Director Dean qualified immunity with respect

to Plaintiffs’ substantive due-process claim.




                                         36