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Appellate Briefs: Non-Final, Appealable Administrative Orders

Adam Hosmer-Henner, a commercial litigation and appellate Partner, authored an article discussing the complexity of administrative appeals. He explains that in administrative appeals determining whether an order is final can depend on the nature of the order or on the identity of the parties. He also compares the analysis between the Nevada Supreme Court and Ninth Circuit Court of Appeals. As he explains, an expected trend is for parties to incorporate the slightly more developed and flexible standards from the Ninth Circuit on finality and jurisdiction into their docketing and case appeal statements in Nevada to argue that the matter is or should be appealable. Adam’s article is published in The Writ, the official publication of the Washoe County Bar Association, and is provided below.

Non-Final, Appealable Administrative Orders

The Writ, Sep/Oct 2023, Vol. 45, No. 5

A sentence of concern for any appellant reads: “The initial review of the docketing statement and documents before this court revealed potential jurisdictional defects.” For administrative appeals, which have already passed through strict procedural requirements at the previous stages, the jurisdictional issues can be especially complex. NRAP 3A(b) (1) and NRS 233B.150 generally only permit appeals from a final judgment and a final judgment is usually defined as “one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the court, except for post-judgment issues such as attorney’s fees and costs.” Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000). In administrative appeals, determining whether an order is final can depend on the nature of the order or on the identity of the parties. 

One possible outcome of a petition for judicial review is for the reviewing court to issue an order of remand back to the administrative agency. At the Nevada Supreme Court, orders of remand in the administrative context are not appealable orders, “unless the order constitutes a final judgment on the merits and remands merely for collateral tasks, such as calculating benefits found due.” Wells Fargo Bank, N.A. v. O’Brien, 129 Nev. 679, 680–81, 310 P.3d 581, 582 (2013). The policy rationale for this approach is that the parties would have an opportunity to appeal again, if necessary, after the administrative agency reconsiders the matter. Id. Principles of preclusion would not prevent an appeal of a subsequent decision, and avoiding piecemeal appeals would promote judicial efficiency.

The standard at the Ninth Circuit is similar but with more sharply defined exceptions. Remand orders are not appealable, unless “(1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.” Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990) (considering issue under distinct federal jurisdictional analysis). For each of these categories of exceptions, the guiding principle is still that a party can appeal if they would not have the ability to appeal, practically or legally, after a subsequent decision. For example, if the party seeking to appeal is the administrative agency itself, then it would not be able to seek review of the “remand ordering it to conduct administrative proceedings” in the future. Crow Indian Tribe v. United States, 965 F.3d 662, 675 (9th Cir. 2020); see also Pit River Tribe v. Bureau of Land Mgmt., 939 F.3d 962, 966 (9th Cir. 2019) (holding that “review of the district court’s interpretation will be foreclosed absent immediate appeal because, after remand to the agency, BLM cannot later appeal the result of its own agency decision”). Absent an immediate appeal, the administrative agency would have to accept the decision of the lower court by redoing the administrative proceeding, a consequence that could not be changed even if the agency successfully appealed in the future.

This analysis is somewhat different at the Nevada Supreme Court. Whereas Crow Indian Tribe afforded an administrative agency the right to appeal based on its own administrative interests, Nevada authority has seemed to reject the sufficiency of those interests. Cf. State, Taxicab Authority v. Greenspun, 109 Nev. 1022, 1024–25, 862 P.2d 423, 424–25 (1993) (holding that the order of remand to an administrative agency to consider the evidence it initially refused to review was not appealable as a final judgment). 

The nature of the order is significant as there is a difference between an order vacating the administrative decision based on the omission of certain evidence and an order compelling the administrative agency to implement a “potentially erroneous rule.” Additionally, the identity of the appellant is critical as only the agency has certain interests that could warrant an immediate appeal. An aggrieved party who may remain aggrieved after remand would still be able to appeal the ultimate decision. As administrative appeals increase and become more complex, an expected trend is for parties to incorporate the slightly more developed and flexible standards from the Ninth Circuit on finality and jurisdiction into their docketing and case appeal statements in Nevada to argue that the matter is or should be appealable.


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