City of Yerington v. Gutierrez ( 2015 )

 consolidated appeals, wherein she applied the last injurious exposure rule
to conclude that (1) PACT had to reopen the claim it administered and (2)
the reopening of that claim precluded the reopening of the claim that
EICON administered.
Yerington and PACT timely filed a petition for judicial review
of the appeals officer's decision. The petition was governed by MRS
233B.130(2)(a), which requires that a petition name as respondents "all
parties of record to the administrative proceeding." It named Gutierrez as
a respondent, but it did not name EICON. However, Yerington and PACT
attached to the petition the appeals officer's decision that identified
EICON as a party. At the time that Yerington and PACT filed their
petition, Civil Service Commission v. Second Judicial District Court
provided that a petition need not be dismissed for lack of jurisdiction when
the petition substantially complied with NRS 233B.130(2)'s requirements,
including the requirement that all parties in an administrative proceeding
be named as respondents. 118 Nev. 186, 189-90, 42 P.3d 268, 271 (2002).
After Yerington and PACT filed their petition, this court
issued its opinion in Washoe County v. Otto, overruling Civil Service
Commission and holding that a petitioner cannot invoke the district
court's jurisdiction over a petition if he or she fails to strictly comply with
NRS 233B.130(2)(a)'s jurisdictional naming requirement. 128 Nev. ,
& n.9, 282 P.3d 719,725 & n.9 (2012). Relying on Otto, EICON and
Gutierrez filed motions to dismiss Yerington and PACT's petition for
failure to comply with NRS 233B.130(2)(a)'s jurisdictional naming
requirement. Yerington and PACT asserted that Otto could not be
retroactively applied. The district court disagreed and, relying on Otto,
dismissed the petition for lack of jurisdiction.
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On appeal, Yering-ton and PACT contend that the district
court erred in dismissing their petition for judicial review. Pursuant to
our de novo review of the subject matter jurisdiction, caselaw, and
statutory language, we disagree. See Liu v. Christopher Homes, LLC, 130
Nev. „ 321 P.3d 875, 877 (2014) (reviewing the meaning and the
district court's application of caselaw de novo); Webb v. Shull, 128 Nev.
, 270 P.3d 1266, 1268 (2012) (applying de novo review when
construing a statute); Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699,
704 (2009) (applying de novo review to an issue of jurisdiction).
Plain meaning of NRS 233B.130(2)(a)
We interpret an unambiguous statute pursuant to its plain
meaning by reading it as a whole and giving effect to each word and
phrase. Davis v. Beling, 128 Nev. „ 278 P.3d 501, 508 (2012). We
do not look to other sources unless an ambiguity requires the court to look
beyond the statute's language to discern the legislative intent. State, Div.
of Ins. v. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 293-94, 995 P.2d
482, 485 (2000).
NRS 233B.130(2) establishes "mandatory and jurisdictional"
filing requirements for a petition for judicial review. Liberty Mutt. v.
Thomasson, 130 Nev. , 317 P.3d 831, 834 (2014). One of NRS
233B.130(2)'s requirements is that a petition "[n]ame as respondents the
agency and all parties of record to the administrative proceeding" below.
NRS 233B.130(2)(a) (emphases added). "Party" is defined as "each person
. . . named or admitted as a party, or properly seeking and entitled as of
right to be admitted as a party, in any contested case." NRS 233B.035.
Furthermore, the phrase "administrative proceeding" includes a hearing
before an appeals officer. See Law Offices of Barry Levinson, P.C. v. Milko,
124 Nev. 355, 368, 184 P.3d 378, 388 (2008) (identifying a hearing before
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an appeals officer as an administrative proceeding); Manwill v. Clark
Cnty., 123 Nev. 238, 240, 162 P.3d 876, 877-78 (2007) (identifying the
same). Thus, NRS 233B.130(2)(a) requires a petition to name as
respondents any person or entity who was a party during the
administrative proceeding from which the petition arises, including the
hearing before the appeals officer.
This court's decision in Washoe County v. Otto
In Otto, the petitioner filed a petition for judicial review that
generally referred to a group of "Certain Taxpayers (Unidentified)' as
respondents" who participated in an administrative proceeding before the
State Board of Equalization. 128 Nev. at , 282 P.3d at 723. Two
taxpayers who participated in that administrative proceeding moved to
dismiss the petition, arguing that the vague reference to the taxpayers
violated NRS 233B.130(2)(a)'s requirement for a petition to name as
respondents all parties of record to the administrative proceeding. Id.
The district court denied the motion, ordered the petitioner to amend its
petition to explicitly name all of the taxpayers, but dismissed the amended
petition because it did not name each taxpayer as a respondent. Id. at ,
282 P.3d at 723-24.
On appeal, this court concluded that the Otto district court
erred when it denied the first motion for dismissal because it lacked
jurisdiction over the petition that violated NRS 233B.130(2)(a). Id. at ,
282 P.3d at 726. The Otto court held that NRS 233B.130(2) provides
jurisdictional requirements for filing a petition and that district courts
lack jurisdiction over petitions that fail to strictly comply with this
statute. Id. at „ 282 P.3d at 721, 725. After announcing its new
interpretation of NRS 233B.130(2)(a), the Otto court applied that
interpretation to the parties before it and concluded that while the district
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court lacked jurisdiction to permit the petitioners to amend their petition,
the district court reached the right result when dismissing the amended
petition. Id. at , 282 P.3d at 727. The Otto court affirmed the
dismissal. Id. Thus, Otto requires a petitioner to strictly comply with
NRS 233B.130(2), including the requirement that the petition name as
respondents any person or entity who was a party during the
administrative proceeding from which the petition arises.
Caselaw concerning jurisdiction must apply retroactively
Yerington and PACT argue that Otto should not be applied in
this case because that opinion issued after they had already filed their
petition. However, court decisions are presumptively retroactive in civil
cases. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,
847 (1990) (Scalia, J., concurring); United States v. Sec. Indus. Bank, 459
U.S. 70, 79 (1982).
Furthermore, when a judicial opinion announces a new rule of
law regarding jurisdiction, it must apply retroactively because courts
cannot entertain proceedings over which they lack jurisdiction. Nunez-
Reyes v. Holder, 646 F.3d 684, 691 (9th Cir. 2011) (holding that in cases in
which the new rule of law limits a court's jurisdiction, the rule must be
applied retroactively); see also Felzen v. Andreas, 134 F.3d 873, 876-77
(7th Cir. 1998) (holding that a judicial opinion on jurisdiction must always
apply retroactively because courts cannot consider the merits of a case
over which they lack jurisdiction); Marozas v. Bd. of Fire & Police
Comm'rs, 584 N.E.2d 402, 407 (Ill. App. Ct. 1991) (holding that "a decision
on a question of jurisdiction must be retroactive since a court cannot
consider the merits of a case over which it has no jurisdiction"). Thus, this
court's decision in Otto regarding jurisdiction must be applied
retroactively.
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The district court did not have jurisdiction to consider Yerington and
PACT'S petition for judicial review
Here, by failing to name EICON as a respondent, Yerington
and PACT's petition violated NRS 233B.130(2)(a)'s express jurisdictional
requirement that a petition name as a respondent each party of record to
the administrative proceeding. Since Otto requires a petitioner to strictly
comply with NRS 233B.130(2)(a)'s jurisdictional naming requirement, and
Otto must be applied retroactively to the current case, Yerington and
PACT's failure to name EICON as a respondent deprived the district court
of jurisdiction to consider their petition for judicial review. Accordingly,
the district court did not err in dismissing Yerington and PACT's petition
for judicial review, Therefore, we
ORDER the judgment of the district court AFFIRMED.
, C.J.
Hardesty
Parraguirre
Saitta
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cc: Hon. William Rogers, District Judge
Jonathan L. Andrews, Settlement Judge
Thorndal Armstrong Delk Balkenbush & Eisinger/Reno
Sertic Law, Ltd.
Nevada Attorney for Injured Workers/Las Vegas
Third District Court Clerk
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