Parven v. Dist. Ct. (Mendez)

• Court: Nevada Supreme Court
• Decided: September 28, 2022
• Docket: 83797
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

LYNDA PARVEN, IN HER CAPACITY No. 83797 AS THE ADMINISTRATOR OF THE STATE OF NEVADA DEPARTMENT OF EMPLOYMENT, TRAINING & REHABILITATION, EMPLOYMENT SECURITY DIVISION; J. THOMAS F1L SUSICH, IN HIS CAPACITY AS CHAIR OF THE STATE OF NEVADA SEP 28 2022 DEPARTMENT OF EMPLOYMENT, H A. :3 CrNN CL UPREME COURT TRAINING & REHABILITATION, EMPLOYMENT SECURITY DIVISION; CLERX

AND STATE OF NEVADA DEPARTMENT OF EMPIAOYMENT, TRAINING & REHABILITATION, EMPLOYMENT SECURITY DIVISION, Petitioners, vs. THE EIGHTH jUDICIAL DISTRICT COURT OF THE STATE 0.F NEVADA, IN AND FO.R THE COUNTY OF CLARK; AND THE HONORABLE BITA YEAGER, DISTRICT JUDGE, Respondents, and SELVIN MENDEZ, Real PaKty in Interest.

OR.DER DENYING PETITION

This is an original petition for a writ of mandamus in an unemployrnent matter challenging a district court order denying a motion to dismiss the underlying petition for judicial review for lack of subject matter jurisdiction. Selvin Mendez was discharged from his job at Newage Lake Las Vegas and received unemployment benefits. Several months later, the SUPREME COURT OF NE VA A

41 A - 30(162. Employment Security Division (ESD) of the Nevada Department of Employment, Training, and Rehabilitation (DETR) determined Mendez was ineligible for unemployment benefits and issued an overpayment notice. Mendez appealed the decision, but the appellate referee upheld the decision and the review board declined further review. Mendez petitioned the district court for judicial review, naming DETR and Newage as respondents. DETR moved to dismiss, arguing the district court lacked jurisdiction because Mendez failed to name all the parties to the proceedings before the review board as required by NRS 612.530(1). The district court denied the motion after concluding Mendez's petition complied with NRS 612.530. ESD Administrator Lynda Parven, along with the chair of the ESD Board of Review and. DETR (collectively Parven), now petition this court for a writ of mandamus, arguing Mendez was required by NRS 612.530 to name the ESD Administrator and the review board as respond.ents. Mandamus is an extraordinary remedy, and it is the petitioner's burden to show a clear legal right to the requested course of action. See Walker v. Second Judicial Dist. Court, 136 Nev. 678, 680-81, 476 P.3d 1194, 1196-97 (2020). Parven fails to demonstrate such a legal right here. Chapter 612's provisions control over Chapter 233B's as to the question of who is a "party" to a judicial action. NRS 233B.039(3)(a). NRS 612.525(2) says, "the Administrator shall be deemed to be a party to any judicial action" arising from the board of review's decision. Thus, Parven was a party to the district court action by operation of law; NRS 233B.130(2)(a)'s naming requirement—and its associated case law, which Parven presses, see, e.g., Whitfield v. Nevada State Pers. Comm'n, 137 Nev., Adv. Op. 34, 492 P.3d 571, 573 (2021)—do not apply. Similarly, NRS

SUPREME COURT OF NEVADA

(.0) 1947A'Alr5= 2 612.530(1) requires the petition for judicial review to name parties who appeared before the review board, it does not follow that the petition must also name the review board itself.1 Cf. NRS 233B.130(2) (requiring naming of "all parties of record to the administrative proceeding"). Accordingly, we

ORDER the petition DENIED.

J. Silver

Cadish

Poem , Pickering

cc: Hon. Bita Yeager, District Judge State of Nevada/DETR Reid Rubinstein & :Bogatz Eighth District Court Clerk

1Moreover, the limited record does not support Parven's argument SUPREME COURT that Mendez failed to name all parties before the review board. OF NEVADA

I() H.).-17A 3