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Zenor v. NDOT: Zero Attorney Fees for Zenor

In Zenor v. NDOT, the Nevada Supreme Court ruled that attorney fees are not recoverable under NRS 18.010(2)(b) in petitions for judicial review.  134 Nev., Adv. Op. 14, 412 P.3d 28 (2018).  Here’s what you need to know to understand everything I just said.

How Lawyers Get Paid

There are many ways that lawyers can get paid by their own clients, but only a few ways in which lawyers can get their fees paid by the opposing party.   A district court can order a party to pay their opponent’s attorney fees only if (1) there is a contract between the parties which awards attorney fees to the prevailing party, (2) there is a rule authorizing it, or (3) a statute awards attorney fees.  State, Dep’t Human Resources v. Fowler, 109 Nev. 782, 784, 858 P.2d 375, 376 (1993).

NRS 18.010(2)(b) is the most common statute that attorneys move under to get fee awards.  Under NRS 18.010(2)(b), an attorney can seek their fees if the matter was filed or defended in “bad faith” by the opposing party.  NRS 18.010(2)(b) applies to most litigation.  The question that the Nevada Supreme Court recently determined in Zenor was whether NRS 18.010(2)(b) applies to petitions for judicial review of agency determinations.

Petitions for Judicial Review

You have probably encountered an administrative agency.  Administrative agencies consist of workers compensation boards, licensing boards, taxing authorities, etc. They are not courts, but they still have the power to determine your rights within their respective area of authority.

Final decisions of administrative agencies are reviewable by the district courts.  NRS 233B.130(1).   Aggrieved parties must file a petition for judicial review with the district court, and the district court will review the record to determine if the agency was incorrect.  NRS 233B.130(1); NRS 233B.135.

What happens when part of your petition for judicial review includes the allegation that the opposing party initiated administrative agency proceedings in bad faith? Can you get your attorney fees?  According to the Nevada Supreme Court, the answer is no.

Zenor

In Zenor, Zenor filed a motion for attorney fees under NRS 18.010(2)(b) because he believed the Nevada Department of Transportation (“NDOT”) unreasonably filed a petition for judicial review.  NDOT began an administrative proceeding against Zenor for an injury which Zenor contended did not prevent him from performing his job.  NDOT ultimately was able to terminate Zenor for the “medical” reason.  Zenor appealed, and the administrative hearing officer reversed NDOT’s termination.  NDOT then filed a petition for judicial review, and lost.  Zenor wanted his attorney fees, but the district court refused to award him them under NRS 18.010(2)(b) because it did not believe that attorney fees are recoverable under that statute in administrative agency review proceedings.  412 P.3d at 29.

The Nevada Supreme Court held that the district court was correct.  NRS 233B.130(6) states that it is the “exclusive means of judicial review, or judicial action concerning, a final decision” in an administrative agency case.  NRS Chapter 233B does not contain a statute authorizing the award of attorney fees.   Zenor, 412 P.3d at 29-30.

Statutes are created by the Legislature, not the courts.  The Nevada Supreme Court has consistently refused to encroach on the Legislature’s role by adding things to statutes that the Legislature has omitted.  If the Legislature wanted attorney fees to be awarded, it would have either included a provision for that.   Instead, it stated that the chapter was the “exclusive” means by which petitions for review can be conducted.  NRS 18.010(2)(b) is not within Chapter 233B.  Therefore, attorney fees are not available under NRS 18.010(2)(b) for petitions for judicial review filed under NRS 233B.130.  Zenor, 412 P.3d at 30.