HEAT & FROST INSULATORS AND ALLIED WORKERS LOCAL 16, Appellant,
LABOR COMMISSIONER OF THE STATE OF NEVADA; UNIVERSITY OF NEVADA, RENO; AND CORE CONSTRUCTION, Respondents.
from a district court order dismissing a petition for
judicial review of an administrative decision. Second
Judicial District Court, Washoe County; Elliott A. Sattler,
McCracken, Stemerman & Holsberry and Eric B. Myers, Sarah
O. Varela, and David L. Barber, Las Vegas, for Appellant.
Paul Laxalt, Attorney General, and Melissa L. Flatley, Deputy
Attorney General, Carson City, for Respondent Labor
Commissioner of the State of Nevada. Dickinson Wright PLLC
and Eric D. Hone and Gabriel A. Blumberg, Las Vegas, for
Respondent CORE Construction.
L. Wright, Assistant General Counsel, University of Nevada,
Reno, for Respondent University of Nevada, Reno.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
233B.130(2)(c)(1) provides that a petition for judicial
review of an administrative decision must be served upon the
"Attorney General, or a person designated by the
Attorney General, at the Office of the Attorney General in
Carson City." NRS 233B. 130(5) provides that a petition
for judicial review must be served "within 45 days after
the filing of the petition, unless, upon a showing of good
cause, the district court extends the time for such
service." In this appeal, we are asked to determine
whether untimely service of a petition for judicial review on
the Attorney General mandates dismissal of the petition. We
conclude that while service of a petition for judicial review
on the Attorney General under NRS 233B.130(2)(c)(1) is
mandatory and jurisdictional, and must be effected within the
statutorily prescribed 45-day period, that time period can be
extended when good cause is shown under NRS 233B. 130(5). We
further conclude that NRS 233B.130(5) does not preclude a
petitioner from moving for an extension of time after the
45-day period has passed. Thus, the district court may
exercise its authority to extend the service period either
before or after the 45-day period has run. The district court
in this case did not determine whether good cause to extend
the time to serve the Attorney General exists, and we
therefore remand for that purpose.
AND PROCEDURAL HISTORY
the University of Nevada, Reno awarded a construction
contract to respondent CORE Construction with respect to the
University's West Stadium Utility Trench project
(Project). CORE then hired Reno-Tahoe Construction, Inc.
(RTC) as a subcontractor for the Project.
Heat & Frost Insulators and Allied Workers Local 16 filed
a verified wage complaint with respondent Office of the Labor
Commissioner for prevailing wage violations with respect to
the Project, alleging that RTC had underpaid its employees.
As requested by the Labor Commissioner, the University
investigated the complaint and subsequently issued a
determination concluding that RTC had not violated Nevada
prevailing wage laws. Appellant timely objected, and the
Labor Commissioner affirmed the University's
filed a petition for judicial review challenging the
Commissioner's ruling pursuant to NRS 233B,
130(1). The petition was timely filed, filed in
the proper venue, and named all necessary parties.
See NRS 233B.130(2)(a), (b) & (d). The petition
was also timely served on the Labor Commissioner and all
named parties. See NRS 233B. 130(5). However, the
petition was not initially served on the Attorney General.
Consequently, the Labor Commissioner moved to dismiss
appellant's petition on the ground that it did not comply
with NRS 233B.130(2)(c)(1).The Labor Commissioner argued that
the statute, which requires a petition for judicial review be
served on the Attorney General, is jurisdictional and
therefore the district court lacked jurisdiction over
receiving the Labor Commissioner's motion, appellant
served the petition on the Attorney General and moved to
extend the time for service pursuant to NRS 233B. 130(5),
which permits a district court to extend the time for service
"upon a showing of good cause." The district court
declined to consider appellant's motion to extend the
time for service and concluded that failure to serve the
petition upon the Attorney General within 45 days of filing
the petition rendered the petition jurisdictionally
defective, such that dismissal was mandatory. This appeal
Labor Commissioner argues that NRS 233B.130(2)(c)(1) sets
forth a mandatory jurisdictional requirement, and because
service upon the Attorney General was effected outside of NRS
233B.130(5)'s 45-day period, the district court did not
have jurisdiction to consider the petition. Whether NRS