Employment Security Department v. Sahara Nevada Corp.

596 P.2d 504, 95 Nev. 505, 1979 Nev. LEXIS 484

• Court: Nevada Supreme Court
• Decided: June 28, 1979
• Docket: No. 10391; No. 10290
• Status: Published

Opinion

OPINION

Per Curiam:

Respondents commenced these consolidated actions on March 1, 1977 to recover excess unemployment compensation taxes assessed against them pursuant to Employment Security Regulation ESD-17 (Revised), which we declared invalid in Gibbens Co. v. Archie, 92 Nev. 234, 548 P.2d 1366 (1976). Although respondents were not parties to the prior action, the district court found their objections timely and entered judgment in their favor, against the Department. Before us, appellants contend that respondents’ failure to commence a district court action for judicial review within the prescription of NRS 233B.060(6)¹ precludes respondents’ recovery. We disagree.

1. In Gibbens Co. v. Archie, supra, we held the Department’s admitted failure to comply with the Administrative Procedures Act in promulgating ESD-17 “renders the regulation invalid as to those employers who timely asserted their objection.”- Id., at 236, 548 P.2d at 1367. Respondents satisfied the requirement of timely asserting their objections when they petitioned the Executive Director for a hearing and review of ESD-17. NRS 233B.060(6). When the hearing was denied, respondents paid the assessments under written protest.

Nothing in the Administrative Procedures Act requires that an objection take the form of a civil action. Compare, for example, Paul v. City of Manhattan, 511 P.2d 244 (Kan. 1973); State, Department of Motor Vehicles v. Gober, 513 P.2d 391 (N.M. 1973). Had the legislature intended the imposition of a requirement that a civil action be brought within two years of the promulgation of the regulation in order to challenge its validity, it would have been a simple matter to use the term “action” in the statute rather than “objection.”

2. As respondents were employers who timely asserted their objections, the trial court properly held them entitled to a refund of the excess taxes collected. Peterson v. City of Reno, 84 Nev. 60, 436 P.2d 417 (1968); Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966). Appellants do not attempt to reargue the validity of the regulation. Indeed, they concede its invalidity. Gibbens v. Archie, supra.

The judgments of the trial court are affirmed.

1 NRS 233B.060(6) provides:

No regulation ... is valid unless adopted in substantial compliance with this chapter but no objection to any regulation on the ground of noncompliance with the procedural requirements of this section may be made more than 2 years after its effective date. . . . (Emphasis added.)