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Heat & Frost Insulators and Allied Workers Local 16 v. Labor Commissioner of State

Supreme Court of Nevada

January 4, 2018

HEAT & FROST INSULATORS AND ALLIED WORKERS LOCAL 16, Appellant,
v.
LABOR COMMISSIONER OF THE STATE OF NEVADA; UNIVERSITY OF NEVADA, RENO; AND CORE CONSTRUCTION, Respondents.

         Appeal from a district court order dismissing a petition for judicial review of an administrative decision. Second Judicial District Court, Washoe County; Elliott A. Sattler, Judge.

          McCracken, Stemerman & Holsberry and Eric B. Myers, Sarah O. Varela, and David L. Barber, Las Vegas, for Appellant.

          Adam 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.

          Bryan L. Wright, Assistant General Counsel, University of Nevada, Reno, for Respondent University of Nevada, Reno.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          PARRAGUIRRE, J.

         NRS 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.

         FACTS AND PROCEDURAL HISTORY

         Respondent 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.[1]

         Appellant 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 determination.

         Appellant filed a petition for judicial review challenging the Commissioner's ruling pursuant to NRS 233B, 130(1).[2] 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).[3]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 appellant's petition.

         After 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 follows.

         DISCUSSION

         The 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 ...


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