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Spar Business Services, Inc. v. Olson

Supreme Court of Nevada

September 5, 2019


          Appeal from a district court order dismissing a petition for judicial review in an unemployment compensation matter. Eighth Judicial District Court, Clark County; Rob Bare, Judge.

          Bongiovi Law Firm, LLC, and Gina J. Bongiovi, Las Vegas; Fabyanske. Westra, Hart & Thomson, P.A., and Thomas J. Vollbrecht, Minneapolis. Minnesota, for Appellant.

          Troy Curtis Jordan, Senior Legal Counsel State of Nevada Employment Security Division, Carson City, for Respondents.



          STIGLICH, J.

         NRS Chapter 233B provides a mechanism for a party aggrieved by a final administrative decision to petition a district court for judicial review. A party seeking judicial review of an administrative decision must strictly comply with that chapter's jurisdictional requirements. In this case, appellant timely filed a petition for judicial review of an administrative decision. Pursuant to NRS 233B. 130(5), appellant then had to serve the petition within 45 days. Appellant neglected to do so, leading the district court to dismiss the petition. This appeal presents an issue of first impression: whether the untimely service of a timely filed petition for judicial review is a jurisdictional defect mandating dismissal. We hold that the 45-day service requirement in NRS 233B. 130(5) is not a jurisdictional requirement because the statute affords the district court discretion to extend the time frame upon a showing of good cause. Here, however, because appellant did not demonstrate good cause for the late service, we affirm the district court's order dismissing the petition.


         In 2006, Michael DeBoard filed a claim for unemployment insurance benefits with respondent State of Nevada. Department of Employment, Training, and Rehabilitation, Employment Security Division (ESD) and named appellant Spar Business Services, Inc. (Spar) as his employer, [1] This claim sparked a broader ESD investigation as to whether DeBoard and other similarly situated individuals who provided merchandising services to Spar were independent contractors or employees of Spar subject to assessment under Nevada law. Following a series of administrative appeals brought by Spar, the ESD Administrator entered a determination that Spar was required to report all individuals as employees and pay contributions to the ESD. Spar timely appealed, and the ESD Board of Review affirmed this determination in April 2017. The ESD decision became final on May 5, 2017.

         Spar timely filed its petition for review in district court on May 15, 2017. Pursuant to NRS 233B.130(5), Spar then had 45 days to serve the petition for review on the ESD. But Spar did not serve the petition on the ESD until July 14, 2017-15 days after the 45-day deadline under NRS 233B. 130(5) had passed.[2] The ESD moved to dismiss Spar's petition based upon Spar's failure to timely serve the petition pursuant to NRS 233B. 130(5), which the ESD contended deprived the district court of subject matter jurisdiction. The district court granted the ESD's motion to dismiss Spar's petition, finding that Spar did not effect service within the requisite 45-day deadline and did not show good cause to extend the service deadline pursuant to NRS 233B. 130(5).


         Spar claims the district court erred in dismissing its petition for judicial review because NRS 233B.130(5)'s 45-day service period is not jurisdictional and because Spar established good cause for an extension. Whether NRS 233B.130(5)'s service requirement is jurisdictional implicates an issue of statutory construction, which we review de novo. Washoe Cty. v. Otto, 128 Nev. 424, 431, 282 P.3d 719, 724 (2012) (applying de novo review when construing a statute and when determining subject matter jurisdiction). Conversely, we review a district court's good cause determination for an abuse of discretion. See Heat & Frost Insulators & Allied Workers Local 16 v. Labor Comm'r, 134 Nev. 1, 5, 408 P.3d 156, 160 (2018).

         Service within 45 days of a timely filed petition is not a jurisdictional requirement

         To obtain review of an ESD decision, a petitioner must proceed under NRS Chapter 612, which governs claims for unemployment benefits. Cf. NRS 612.010. Though special provisions of NRS Chapter 612 prevail where applicable, NRS 233B.039(3)(a), Nevada's Administrative Procedures Act (NAPA), codified as NRS Chapter 233B, sets forth the procedural requirements for judicial review of administrative agency actions generally, NRS 233B.020(1). NRS Chapter 612 requires service of a petition for judicial review contesting an award subject to its provisions, but is silent regarding the timing of service. NRS 612.530(2). Accordingly, we look to the relevant procedures set forth in NRS Chapter 233B.

         Pursuant to NRS 233B. 130(1), an aggrieved party may petition a district court for judicial review of a final administrative decision-so long as the decision is challengeable under and challenged according to NAPA, Otto, 128 Nev. at 431, 282 P.3d at 724-25. A party petitioning for judicial review of an administrative decision must strictly comply with the NAPA's jurisdictional requirements. Kame v. Emp't Sec. Dep't,105 Nev. 22. 25, 769 P.2d 66, 68 (1989). NRS 233B.130(2) mandates who must be named as respondents to a petition for judicial review, where the petition must be filed, who must be served with the petition, and the time for filing the petition in the district court. Because NRS 233B.130(2) is silent on the court's authority to excuse noncompliance with those requirements, we have determined that the statute's plain language requires strict compliance and have held the requirements in NRS 233B. 130(2) to be jurisdictional. Heat & Frost, 134 Nev. at 4-5, 408 P.3d at 159-60. Conversely, NRS 233B. 130(5) expressly grants the district court authority to consider whether there is good cause to extend the time to serve the petition. Specifically, NRS 233B. 130(5) provides that "the petition for judicial review ., . must he served upon the agency and every party 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." (Emphasis added.) Accordingly, NRS 233B. 130(5) authorizes a district court to use its discretion to determine whether there was good cause for any delay in service. ...

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