Premature Petitions for Judicial Review - The Writ

Filing deadlines drive much of a lawyer’s schedule. Understandably, most lawyers fret over missing a due date. Given our focus on making sure not to file something too late, it might come as a surprise that, in certain circumstances, we must also take care not to file something too early.

Premature filing is the subject of a recent Nevada Supreme Court decision. Nevada State Bd. of Architecture v. Eighth Jud. Dist. Ct., 135 Nev. Adv. Op. 49 (October 3, 2019). In that case, the Court held that a prematurely filed petition for judicial review from an agency decision did not vest jurisdiction in the district court. Because the petitioner filed his petition after the agency passed an oral motion at a hearing but before a written order was entered, the Court concluded he had not appealed from a final decision, as required by the Nevada Administrative Procedures Act (“NAPA”). As a result, the Court issued a writ of prohibition directing the district court to dismiss the case for lack of jurisdiction.

 Statutory Provisions for Judicial Review of Agency Decisions

 The NAPA identifies the required content of a final agency decision:

A decision or order adverse to a party in a contested case must be in writing or stated in the record. … [A] final decision must include findings of fact and conclusions of law, separately stated. Findings of fact and decisions must be based upon a preponderance of the evidence. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

 NRS 233B.125. The only exception is where a contested case is disposed of by “informal disposition” (meaning by “stipulation, agreed settlement, consent order or default”). NRS 233B.121(5). An aggrieved party may only seek judicial review of a “final” agency decision. NRS 233B.130.

 Factual and Procedural Background

 The Bd. of Architecture case arose from the Board’s disciplinary order against an architect. The architect moved to vacate the disciplinary order on the basis of newly discovered evidence. The Board held a hearing and unanimously passed an oral motion to deny the relief sought by the architect and uphold its earlier disciplinary order. The Board did not make any specific findings of fact or conclusions of law on the record and indicated that a written order would be forthcoming. Counsel for the architect specifically asked the Board, and a Board member confirmed, that no deadlines would start to run until a written order issued.

 After the hearing, but before the Board issued its written order, the architect filed a petition for judicial review in the district court. The architect did not file a new petition for judicial review or supplement his earlier petition once the Board issued its written order. The Board filed a motion to dismiss, arguing that the district court lacked jurisdiction to review the Board’s oral decision. The district court denied the motion, concluding that the Board’s oral decision was sufficiently final to invoke the court’s jurisdiction. The Board then petitioned the Supreme Court for a writ of prohibition, claiming a jurisdictional defect.

 The Supreme Court’s Decision

 Interpreting the plain language of NRS 233B.125 and NRS 233B.130, the Supreme Court concluded that the architect’s petition for judicial review of the oral decision was premature. Specifically, the Court held that, absent any findings of fact and conclusions of law, the Board’s vote at the hearing failed to comply with the finality requirement of the statute. As a result, the Court concluded, the Board’s oral pronouncement did not commence the 30-day period for filing a petition for judicial review.

 The Court then analyzed whether the premature filing could, nevertheless, invoke the district court’s jurisdiction. Because NRS 233B.130(2) requires that judicial review be sought within 30 days “after” the agency’s final decision, the Court determined the petition that predated the final decision was ineffective. As a result, the district court lacked jurisdiction to consider it. 

 Lessons Learned

 At first glance, Bd. of Architecture seems like a trap for the unwary. However, the decision is consistent with the Court’s jurisprudence, which has repeatedly underscored in the context of administrative and other cases that a decision that lacks detailed findings and conclusions is unreviewable. “Without detailed factual findings and conclusions of law, this court cannot review the merits of an appeal; thus, administrative agencies are required to issue orders that contain factual findings and conclusions of law.” Poremba v. S. Nevada Paving, 133 Nev. 12, 19, 388 P.3d 232, 238 (2017); see also Clark Cty. Dist. Atty., Juvenile Div. v. Eighth Jud. Dist. Ct., 123 Nev. 337, 348, 167 P.3d 922, 929 (2007) (reversing where district court “failed to make any specific findings regarding witness credibility”); Anastassatos v. Anastassatos, 112 Nev. 317, 321, 913 P.2d 652, 654 (1996) (stating that “the district court's failure to set forth findings of fact [as required by statute] constitutes reversible error”).

 NRS 233B.125 is tricky because it allows a final administrative decision to be made “in writing or stated in the record.” (emphasis added). When in doubt as to whether an oral disposition triggers the time to file a petition for judicial review, file a protective petition and then, if a subsequent written order is issued, petition for judicial review of that as well.