Nebraska Revised Statute 84-917

Revised Statutes » Chapter 84 » 84-917
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84-917. Contested case; appeal; right to cross-appeal; procedure.

(1) Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review under the Administrative Procedure Act. Nothing in this section shall be deemed to prevent resort to other means of review, redress, or relief provided by law.

(2)(a)(i) Proceedings for review shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency. All parties of record shall be made parties to the proceedings for review. If an agency's only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. In all other cases, the agency shall be a party of record. Summons shall be served within thirty days of the filing of the petition in the manner provided for service of a summons in section 25-510.02. If the agency whose decision is appealed from is not a party of record, the petitioner shall serve a copy of the petition and a request for preparation of the official record upon the agency within thirty days of the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.

(ii) The filing of a petition for review shall vest in a responding party of record the right to a cross-appeal against any other party of record. A respondent shall serve its cross-appeal within thirty days after being served with the summons and petition for review.

(b) A petition for review shall set forth: (i) The name and mailing address of the petitioner; (ii) the name and mailing address of the agency whose action is at issue; (iii) identification of the final decision at issue together with a duplicate copy of the final decision; (iv) identification of the parties in the contested case that led to the final decision; (v) facts to demonstrate proper venue; (vi) the petitioner's reasons for believing that relief should be granted; and (vii) a request for relief, specifying the type and extent of the relief requested.

(3) The filing of the petition or the service of summons upon such agency shall not stay enforcement of a decision. The agency may order a stay. The court may order a stay after notice of the application therefor to such agency and to all parties of record. If the agency has found that its action on an application for stay or other temporary remedies is justified to protect against a substantial threat to the public health, safety, or welfare, the court may not grant relief unless the court finds that: (a) The applicant is likely to prevail when the court finally disposes of the matter; (b) without relief, the applicant will suffer irreparable injuries; (c) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and (d) the threat to the public health, safety, or welfare relied on by the agency is not sufficiently serious to justify the agency's action in the circumstances. The court may require the party requesting such stay to give bond in such amount and conditioned as the court may direct.

(4) Within thirty days after service of the petition or within such further time as the court for good cause shown may allow, the agency shall prepare and transmit to the court a certified copy of the official record of the proceedings had before the agency. Such official record shall include: (a) Notice of all proceedings; (b) any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case; (c) the transcribed record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and (d) the final order appealed from. The agency shall charge the petitioner with the reasonable direct cost or require the petitioner to pay the cost for preparing the official record for transmittal to the court in all cases except when the petitioner is not required to pay a filing fee. The agency may require payment or bond prior to the transmittal of the record.

(5)(a) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the review shall be conducted by the court without a jury on the record of the agency, and review may not be obtained of any issue that was not raised before the agency unless such issue involves one of the grounds for reversal or modification enumerated in subdivision (6)(a) of this section. When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency.

(b)(i) If the court determines that the interest of justice would be served by the resolution of any other issue not raised before the agency, the court may remand the case to the agency for further proceedings.

(ii) The agency shall affirm, modify, or reverse its findings and decision in the case by reason of the additional proceedings and shall file the decision following remand with the reviewing court. The agency shall serve a copy of the decision following remand upon all parties to the district court proceedings. The agency decision following remand shall become final unless a petition for further review is filed with the reviewing court within thirty days after the decision following remand being filed with the district court. The party filing the petition for further review shall serve a copy of the petition for further review upon all parties to the district court proceeding in accordance with the rules of pleading in civil actions promulgated by the Supreme Court pursuant to section 25-801.01 within thirty days after the petition for further review is filed. Within thirty days after service of the petition for further review or within such further time as the court for good cause shown may allow, the agency shall prepare and transmit to the court a certified copy of the official record of the additional proceedings had before the agency following remand.

(6)(a) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the agency decision is:

(i) In violation of constitutional provisions;

(ii) In excess of the statutory authority or jurisdiction of the agency;

(iii) Made upon unlawful procedure;

(iv) Affected by other error of law;

(v) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or

(vi) Arbitrary or capricious.

(b) When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the court may affirm, reverse, or modify the decision of the agency or remand the case for further proceedings.

(7) The review provided by this section shall not be available in any case where other provisions of law prescribe the method of appeal.

Source

    Laws 1963, c. 531, § 1, p. 1664;
    Laws 1969, c. 838, § 2, p. 3162;
    Laws 1983, LB 447, § 102;
    Laws 1987, LB 253, § 19;
    Laws 1988, LB 352, § 186;
    Laws 1989, LB 213, § 1;
    Laws 1997, LB 165, § 5;
    Laws 2006, LB 1115, § 42;
    Laws 2008, LB1014, § 69;
    Laws 2009, LB35, § 32.

Annotations

1. Applicability of section

2. Review by court

3. Miscellaneous

1. Applicability of section

Sections 84-917 to 84-919 govern appeals from rulings of the State Racing Commission. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).

This section covers appeal to district court by the children of a crime victim from a denial of their application to the Nebraska Crime Victim's Reparations Board. Lambert v. Nebraska Cr. Vict. Rep. Bd., 214 Neb. 817, 336 N.W.2d 320 (1983).

Review of orders of the Department of Public Welfare is governed by the criteria of this section. Gosney v. Department of Public Welfare, 206 Neb. 137, 291 N.W.2d 708 (1980).

The State Board of Education hearing appeals under section 79-1103.05 acts in a quasi-judicial capacity and, therefore either party may appeal its decision under this section or under section 25-1901. Richardson v. Board of Education, 206 Neb. 18, 290 N.W.2d 803 (1980).

Section 71-1,132.34 provides a specific method of appeal to the district court for the Board of Nursing and whether this section affords an alternative method is not decided. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).

This section governs appeal by licensee from order of suspension by the Nebraska Liquor Control Commission. Happy Hour, Inc. v. Nebraska Liquor Control Commission, 186 Neb. 533, 184 N.W.2d 630 (1971).

This section governs proper venue of an appeal from a license suspension ordered by the Nebraska Liquor Control Commission. The Flamingo, Inc. v. Nebraska Liquor Control Commission, 185 Neb. 22, 173 N.W.2d 369 (1969).

Judgments rendered by an administrative agency acting in a quasi-judicial capacity are not subject to collateral attack in a separate action in county court challenging the validity of the underlying claim, but must be properly appealed pursuant to this section. In re Guardianship of Gaube, 14 Neb. App. 259, 707 N.W.2d 16 (2005).

2. Review by court

An issue that has not been presented in a petition for judicial review has not been properly preserved for consideration by the district court. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).

Subsection (5)(b)(i) of this section permits the district court to review only matters which were not properly raised in the proceedings before an administrative agency. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).

In accordance with subsection (5)(a) of this section, when reviewing a final decision of an administrative agency in a contested case under the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court's statutory scope of review de novo on the record of the agency. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).

Under subsection (6)(b) of this section, a district court has discretion concerning the disposition of an appeal from an administrative agency. Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 272 Neb. 390, 722 N.W.2d 10 (2006).

It constitutes plain error for a district court to conduct a review under subsection (6)(a) of this section where the proceedings for review of an administrative hearing are initiated after July 1, 1989. Zwygart v. State, 270 Neb. 41, 699 N.W.2d 362 (2005).

An application to the Nebraska Quality Jobs Board is not a "contested case" requiring review pursuant to this section. Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002).

Pursuant to subsection (5)(a) of this section, the standard of review that courts without a jury must apply to clearly contested cases that are quasi-judicial in nature filed on or after July 1, 1989, is de novo on the record of the agency. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

Subsection (3) of this section provides that upon the filing of a petition for review, an agency may order a stay or the court may order a stay. Such stay may only be granted, however, when the court finds that (1) the applicant is likely to prevail when the court finally disposes of the matter, (2) without relief, the appellant will suffer irreparable injuries, (3) the grant of relief to the applicant will not substantially harm other parties to the proceedings, and (4) the threat to the public health, safety, or welfare relied upon by the agency is not sufficiently serious to justify the agency's action in the circumstances. Under subsection (5)(a) of this section, when a petition instituting proceedings for review under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency. Miller v. Horton, 253 Neb. 1009, 574 N.W.2d 112 (1998).

Pursuant to subsection (5) of this section, the district court's review of a decision of the Department of Insurance is de novo on the record. Norwest Corp. v. State, Dept. of Insurance, 253 Neb. 574, 571 N.W.2d 628 (1997).

Pursuant to subsection (5)(a) of this section, in reviewing a final decision of an administrative agency in a contested case under the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact which was not presented to the agency because the taking of such evidence would impermissibly expand the court's statutory scope of review "de novo on the record of the agency". Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997).

On an appeal from an adverse decision of an administrative agency, subsection (2)(a) of this section requires that a summons be served within 30 days of the filing of a petition for review as a prerequisite to the exercise by the district court of its subject matter jurisdiction. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).

Under subsection (2)(a) of this section, if the agency whose decision is appealed from is not a party of record, it is a jurisdictional prerequisite that the petitioner serve a copy of the petition and a request for preparation of the official record upon the agency within 30 days of the filing of the petition. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996).

Pursuant to this section, a district court is required to conduct a true de novo review of agency determinations on the record of the agency. Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).

Where the proceedings for review of an administrative hearing are initiated in the district court after July 1, 1989, the review will be conducted by the district court "without a jury de novo on the record of the agency" as required by this section. Styskal v. Wright, 246 Neb. 513, 519 N.W.2d 543 (1994).

Under subsection (5)(a) of this section, an appeal to the district court of a decision by the State Personnel Board is reviewed on the record of the agency if the petition was filed in district court before July 1, 1989. Nebraska Dept. of Correctional Servs. v. Hansen, 238 Neb. 233, 470 N.W.2d 170 (1991).

In an appeal from an administrative agency taken under this section of the Administrative Procedure Act, the district court's review is limited to determining whether the agency's action is (1) in violation of constitutional provisions, (2) in excess of the statutory authority or jurisdiction of the agency, (3) made upon unlawful procedure, (4) affected by other errors of law, (5) unsupported by competent, material, and substantial evidence in view of the entire record as made on review, or (6) arbitrary or capricious; however, the Nebraska Supreme Court reviews the district court's decision de novo on the record made before the agency. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

Although the Supreme Court reviews an agency's decision under the Administrative Procedure Act de novo on the record, a district court's standard of review is prescribed by subsection (6) of this section. Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).

Under this section, where a judicial review is made of the decision of an administrative agency, the reviewing court is authorized to consider the validity of the agency's criterion in order to assess whether the decision was within the statutory authority or jurisdiction of the agency. Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).

Review under sections 84-917 to 84-919 by the Supreme Court is limited to a review of the record created before the administrative agency in question. Adams Central School Dist. v. Deist, 214 Neb. 307, 334 N.W.2d 775 (1983).

The district court review of order of State Personnel Board is limited to record of agency. Therefore, objections to appellant's requests in district court for discovery were properly sustained. Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982).

In appeal from the Liquor Control Commission, the Supreme Court determines only whether findings of the commission are supported by substantial evidence and whether district court applied the proper statutory criteria. The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973).

The power of courts to review the action of a professional board of examiners in its refusal to recommend reinstatement of a revoked license is not decided, but if such power exists, it is limited to a determination based on whether or not the board's action was arbitrary or capricious. Coil v. Department of Health, 189 Neb. 606, 204 N.W.2d 167 (1973).

Review under the Administrative Procedure Act is on the record of the agency only. Harnett v. City of Omaha, 188 Neb. 449, 197 N.W.2d 375 (1972).

The district court lacked subject matter jurisdiction because the petitioner failed to timely include as a party defendant the Department of Correctional Services, a necessary party under the Administrative Procedure Act. Tlamka v. Parry, 16 Neb. App. 793, 751 N.W.2d 664 (2008).

In a true de novo review, the district court's decision is to be made independently of the agency's prior disposition and the district court is not required to give deference to the findings of fact and the decision of the agency hearing officer. DeBoer v. Nebraska Dept. of Motor Vehicles, 16 Neb. App. 760, 751 N.W.2d 651 (2008).

In an appeal under subsection (5)(a) of this section, the district court conducts a de novo review of the record of the agency. Clark v. Tyrrell, 16 Neb. App. 692, 750 N.W.2d 364 (2008).

If petition for review filed pursuant to this section is not timely, district court does not have jurisdiction to consider merits and can properly dismiss petition. Roubal v. State, 14 Neb. App. 554, 710 N.W.2d 359 (2006).

A district court conducting a review under subsection (5)(a) of this section cannot base a reversal of the agency decision under review on grounds not raised in the petition for review. Moore v. Nebraska Dept. of Corr. Servs. Appeals Bd., 8 Neb. App. 69, 589 N.W.2d 861 (1999).

The filing of the petition and the service of summons pursuant to this section are the two actions necessary to establish the jurisdiction of the district court to review the final decision of an administrative agency. McLaughlin v. Jefferson Cty. Bd. of Equal., 5 Neb. App. 781, 567 N.W.2d 794 (1997).

Pursuant to subsection (2)(a) of this section, timely service of a request for the preparation of the official record upon the agency is mandatory to confer jurisdiction on the district court. Payne v. Nebraska Dept. of Corr. Servs., 3 Neb. App. 969, 536 N.W.2d 656 (1995).

In order to perfect an appeal under the Administrative Procedure Act, the party instituting the proceedings for review must file a petition in the district court for the county where the action is taken within 30 days after the service of the final decision by the agency, and cause summons to be served within 30 days of the filing of the petition. Northern States Beef v. Stennis, 2 Neb. App. 340, 509 N.W.2d 656 (1993).

3. Miscellaneous

A party is "aggrieved" within the meaning of subsection (1) of this section if it has standing to invoke a court's jurisdiction—that is, if it has a legal or equitable right, title, or interest in the subject matter of the controversy. Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).

Any aggrieved party seeking judicial review of an administrative decision under the Administrative Procedure Act must file a petition within 30 days after service of that decision, pursuant to this section. The Administrative Procedure Act makes no mention of an extended or different deadline for filing a cross-petition in the district court. Ahmann v. Correctional Ctr. Lincoln, 276 Neb. 590, 755 N.W.2d 608 (2008).

Where the Public Service Commission has the authority to set conditions on certifications, resolve disputes, investigate complaints, issue orders, and enforce orders, it is not a neutral factfinding body. In re Application of Metropolitan Util. Dist., 270 Neb. 494, 704 N.W.2d 237 (2005).

Neither section 60-6,208 (transferred to section 60-498.04) nor subsection (2)(a) of this section provides that its jurisdictional provisions are exclusive. Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002).

Subsection (5)(a) of this section does not violate the separation of powers doctrine, and Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976), is overruled insofar as it implies that this statute violates the separation of powers doctrine. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

For a district court to have jurisdiction over an administrative agency's decision, that decision must be final. Big John's Billiards, Inc. v. Balka, 254 Neb. 528, 577 N.W.2d 294 (1998).

Subsection (5)(b) of this section does not empower a district court to retain jurisdiction over an action remanded by the court to an administrative agency for a new hearing. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).

The phrase "county where the action is taken" in subsection (2)(a) of this section refers to the site of the first adjudicated hearing of a disputed claim. Essman v. Nebraska Law Enforcement Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997).

The phrase "action taken," as used in subsection (2) of this section, is defined by the site of the first adjudicated hearing of a disputed claim. Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996).

The filing of the petition and the service of summons are the two actions that are necessary to establish jurisdiction pursuant to the Administrative Procedure Act. The filing of the transcript is not jurisdictional. James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994).

This section makes no provision for reconsideration of the State Racing Commission's final decision so as to toll the thirty-day appeal time within which appellants had the opportunity to avail themselves of a judicial challenge of the commission's decision. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).

The Tax Commissioner is not a person aggrieved and therefore does not have the right to appeal a decision of the State Board of Equalization and Assessment. Karnes v. Wilkinson Mfg., 220 Neb. 150, 368 N.W.2d 788 (1985).

Filing of a transcript, which is the duty of the state agency, is not jurisdictional for appeal under this section, and the appellant is not entitled to reversal of the agency decision merely because of the agency's failure to timely file a proper transcript, and the district court may order a supplemental transcript. Where appeals are taken under this section, the certified transcript as prepared by the administrative agency and transmitted to the court is considered to be before the court and need not be formally offered into evidence by either party. Maurer v. Weaver, 213 Neb. 157, 328 N.W.2d 747 (1982).

An appeal from an order of the director of the Department of Motor Vehicles is commenced or perfected by filing a petition within thirty days of the service of the final decision of the director and causing a summons to issue on the petition and be served within six months of such filing. Making an administrative agency a party defendant in an appeal under the provisions of § 60-420 or subsection (2) of this section is not an action against the state within the meaning of § 24-319 et seq. so as to require service of summons on the Governor and Attorney General. Leach v. Dept. of Motor Vehicles, 213 Neb. 103, 327 N.W.2d 615 (1982).

On appeal from State Board of Education order that county board make tuition payments for Nebraska school children attending school in South Dakota, the district court having proper jurisdiction is the one in which the state board took the action in question; that court being Lancaster County District Court. Bd. of Ed. of Keya Paha County v. State Board of Education, 212 Neb. 448, 323 N.W.2d 89 (1982).

If, after a district court review, an administrative agency's decision which had fallen into legal error is remanded to the agency, new evidence can be received by the agency if it is necessary, in the agency's judgment, to discharge its duty. Phelps County Savings Co. v. Dept. of Banking & Finance, 211 Neb. 683, 320 N.W.2d 99 (1982).

This section, in 1978, did not provide a right of appeal from a declaratory ruling of an administrative agency issued pursuant to section 84-912, R.R.S.1943. But see 1979 amendment to section 84-912, which provides such appeal. Gretna Public School v. State Board of Education, 201 Neb. 769, 272 N.W.2d 268 (1978).

Orders of the Department of Public Welfare made pursuant to section 68-1016, may be reviewed by petition in error as well as by appeal. Downer v. Ihms, 192 Neb. 594, 223 N.W.2d 148 (1974).

Prior to hearing before Director of Banking, protestants requested that rules of evidence applicable to the district court be made binding and district court on appeal made findings in accordance with applicable statute and affirmed order of the director. Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 (1974).

Where errors assigned require review of evidence they cannot be considered on either appeal or error proceedings in absence of a bill of exceptions. Lanc v. Douglas County Welfare Administration, 189 Neb. 651, 204 N.W.2d 387 (1973).

For district court to obtain jurisdiction under this section, petition must be filed and summonses must be issued during the appeal period. Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968).

The Department of Banking and Finance is statutorily authorized to require payment for the costs of preparing the official record from the party seeking review of its decision prior to transmitting the record. JHK, Inc. v. Nebraska Dept. of Banking & Finance, 17 Neb. App. 186, 757 N.W.2d 515 (2008).

Pursuant to subsection (2)(a) of this section, the phrase "county where the action is taken" is the site of the first adjudicated hearing of a disputed claim. Yelli v. Neth, 16 Neb. App. 639, 747 N.W.2d 459 (2008).

The rebuttable presumption of validity regarding actions of administrative agencies which results in the burden of proof resting on the party challenging the agency's actions does not apply in cases involving the termination of the employment of a public employee. Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb. App. 233, 591 N.W.2d 95 (1999).