Ahmann v. Correctional Ctr. Lincoln

J ohn M. ahMann , appellee , v . correctional center
lincoln and nebraSka departMent
of labor , appellantS.
755 N.W.2d 608
Filed September 19, 2008. 	No. S-07-687.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law.
2. Statutes. The meaning of a statute is a question of law.
3. Judgments: Appeal and Error. on a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
4. Administrative Law: Judgments: Time: Appeal and Error. 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 Neb. Rev. Stat. § 84-917(2)(a) (Cum. Supp. 2006).
Appeal from the District Court for Lancaster County: J odi
nelSon, Judge. Affirmed.
John H. Albin, Thomas A. Ukinski, and W. Russell barger
for appellants.
No appearance for appellee.
heavican, C.J., W riGht, connolly, G errard, S tephan, and
M iller -lerMan, JJ.
G errard, J.
John M. Ahmann, an applicant for unemployment insur-
ance benefits, was penalized 12 weeks of benefits because
the Nebraska Appeal Tribunal (the Appeal Tribunal) found
he was fired for misconduct. Ahmann petitioned for judi-
cial review. Several months later, Ahmann’s employer and the
Nebraska Department of Labor sought to amend their answer
to Ahmann’s petition, arguing that the Appeal Tribunal erred in
allowing benefits at all.
The issue presented in this appeal is whether the employer
and Department of Labor waived their challenge to the Appeal
Tribunal’s decision by failing to file their own petition for
judicial review. We conclude that under the Administrative
590 	276 NEbRASkA REPoRTS
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Procedure Act (APA),1 a party seeking review of an administra-
tive decision must file a petition within 30 days of the decision.
because the employer and Department of Labor did not do so
in this case, we affirm the decision of the district court that
refused to consider their argument.
bACkGRoUND
Under the Employment Security Law,2 if an employee is
discharged for misconduct connected with his or her work, the
employee is disqualified for benefits for the week in which the
employee was discharged and the 12 weeks that follow.3 but if
the employee’s misconduct was “gross, flagrant, and willful, or
was unlawful,” the employee is totally disqualified from receiv-
ing benefits.4
Ahmann, an employee of the Nebraska Department of
Correctional Services at the Correctional Center Lincoln (CCL),
was fired because he tested positive for marijuana. Ahmann
claimed unemployment insurance benefits, which were initially
awarded without penalty because the adjudicator found that the
evidence did “not support a finding of misconduct in connec-
tion with the work.” CCL appealed that decision to the Appeal
Tribunal, contending that Ahmann had been discharged for
misconduct. The Appeal Tribunal agreed, finding that Ahmann
was discharged for misconduct and was disqualified from
receiving benefits for a period of 12 weeks. However, the
Appeal Tribunal did not find that Ahmann’s misconduct was
gross, flagrant, and willful, or was unlawful.
The Appeal Tribunal’s decision was filed on September 21,
2006. Ahmann filed a timely petition for judicial review in the
district court on october 5. CCL and the Department of Labor
filed an answer on November 27, requesting that the district
court review and affirm the decision of the Appeal Tribunal.
1 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 1999 & Cum. Supp. 2006).
2 Neb. Rev. Stat. §§ 48-601 to 48-671 (Reissue 2004, Cum. Supp. 2006 &
Supp. 2007).
3 § 48-628(2).
4 Id.
AHMANN v. CoRRECTIoNAL CTR. LINCoLN 	591
Cite as 276 Neb. 590

but on March 13, 2007, CCL and the Department of Labor
filed a motion for leave to file an amended answer. The pro-
posed amended answer would have alleged that Ahmann was
discharged for misconduct that was gross, flagrant, and willful,
or was unlawful, such that Ahmann would be totally disquali-
fied from receiving benefits. The amended answer would have
asked the court to modify the finding of the Appeal Tribunal to
that effect. but the district court overruled the motion, explain-
ing that “procedurally, if [CCL and the Department of Labor]
wanted to address that issue, there were other ways, as opposed
to amending [their] answer at this late date.” The district court
affirmed the decision of the Appeal Tribunal.
ASSIGNMENTS oF ERRoR
CCL and the Department of Labor assign, consolidated
and restated, that the district court erred in (1) denying their
motion for leave to amend their answer and (2) failing to find
that Ahmann was terminated for misconduct that was gross,
flagrant, and willful, or was unlawful.
STANDARD oF REVIEW
[1-3] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter
of law.5 The meaning of a statute is also a question of law.6
on a question of law, an appellate court is obligated to reach
a conclusion independent of the determination reached by the
court below.7
ANALySIS
This appeal requires us to determine, as an initial matter,
what procedure should be followed when more than one party
seeks judicial review of an administrative decision. In support
of their first assignment of error, CCL and the Department of
Labor essentially contend that their amended answer was an
5 Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003).
6 In re Guardianship & Conservatorship of Cordel, 274 Neb. 545, 741
N.W.2d 675 (2007).
7 Davis, supra note 5.
592 	276 NEbRASkA REPoRTS

appropriate way to seek judicial review, so the district court
erred in refusing to permit it.
Under the APA, any person aggrieved by a final decision in
a contested case is entitled to judicial review.8 And the APA
provides that “[p]roceedings 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.”9 The court may affirm, reverse, or
modify the decision of the agency or remand the case for fur-
ther proceedings.10 but the APA does not specify whether, after
one party has initiated review proceedings by filing a petition,
another aggrieved party who wants the court to review the
agency’s decision must file its own petition within the deadline
imposed by the APA.
Courts to have considered similar statutory schemes have
concluded that in the absence of a provision expressly extend-
ing the time for filing a cross-petition, any aggrieved party
seeking judicial review of an administrative decision must file
a separate, timely petition for review.11 In other words, where
another deadline is not specified, a cross-petition is subject to
the same filing deadline as the original petition.12 Prompt filing
of a petition or cross-petition is important because it is the peti-
tion for judicial review that sets forth the reasons for believing
8 § 84-917(1).
9 § 84-917(2)(a).
10 § 84-917(6)(b).
11 See, e.g., Washington Utilities and Transp. Com’n (WUTC) v. F.E.R.C.,
26 F.3d 935 (9th Cir. 1994); Reich v. Trinity Industries, Inc., 16 F.3d 1149
(11th Cir. 1994) (TII); Reich v. Occupational Safety & Health Review
Com’n, 998 F.2d 134 (3d Cir. 1993) (OSHRC); Dole v. Briggs Const. Co.,
Inc., 942 F.2d 318 (6th Cir. 1991); City of Hiawatha v. City Development
Bd., 609 N.W.2d 532 (Iowa 2000); King County v. Cent. Puget Sound
Bd., 138 Wash. 2d 161, 979 P.2d 374 (1999); Viktron/Lika Utah v. Labor
Com’n., 18 P.3d 519 (Utah App. 2001). but see Doerfer Div. of CCA v.
Nicol, 359 N.W.2d 428 (Iowa 1984).
12 King County, supra note 11. See, also, OSHRC, supra note 11; 16A
Charles Alan Wright et al., Federal Practice and Procedure § 3961.4 (1999
& Supp. 2008). Compare, e.g., Civil Serv. Comm’n v. Dist. Ct., 118 Nev.
186, 42 P.3d 268 (2002).
AHMANN v. CoRRECTIoNAL CTR. LINCoLN 	593
Cite as 276 Neb. 590

that relief should be granted and specifies the type and extent
of the relief requested.13
Administrative proceedings can be quite complicated and
affect the interests of numerous parties.14 Even in this relatively
simple case, Ahmann was led to believe for several months that
he faced only a 12-week suspension of unemployment insurance
benefits, before he was notified that CCL and the Department
of Labor sought to deprive him of benefits entirely. If cross-
petitions could be filed at any time during the pendency of judi-
cial review, then all the issues presented during the administra-
tive proceeding would be subject to appeal during the litigation
and no interested party could consider any issue finalized until
the completion of the entire judicial review.15 Applying the
same deadline for petitions and cross-petitions serves to ensure
that all the parties affected by an administrative decision are
aware of any challenge to that decision and receive prompt
notice of the issues presented for judicial review.
That having been said, there are also prudential reasons to
support an extended deadline for cross-appeals.16 For example,
in this court and the Nebraska Court of Appeals, the parties
are permitted by our rules of practice and procedure to assert a
cross-appeal in an appellee’s brief.17 but that rule is not appli-
cable to district courts,18 and there is no basis for extending
or applying that rule under these circumstances, because the
APA makes no mention of an extended or different deadline
for filing a cross-petition in the district court.19 In the absence
13 See § 84-917(2)(b).
14 See, e.g., Scofield v. State, ante p. 215, 753 N.W.2d 345 (2008).
15 See King County, supra note 11.
16 See, F.E.R.C., supra note 11; TII, supra note 11; OSHRC, supra note 11;
Nicol, supra note 11.
17 See Neb. Ct. R. App. P. § 2-101(E).
18 Cf. Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).
19 See, F.E.R.C., supra note 11; TII, supra note 11; OSHRC, supra note 11;
Dole, supra note 11; King County, supra note 11; Viktron/Lika Utah, supra
note 11 (rejecting application of cross-appeal rules of appellate courts to
administrative review proceedings). See, also, City of Hiawatha, supra
note 11. Compare Civil Serv. Comm’n, supra note 12.
594 	276 NEbRASkA REPoRTS

of such a provision, the plain language of the APA requires
that the same deadline be applied to any party seeking judicial
review of an administrative decision.
[4] None of this should be read to suggest that the Legislature
cannot, or should not, address this issue more directly than it
has. The Legislature is welcome to balance the interests of the
parties and to provide a specific procedure for cross-petitions,
if it so chooses. but in the absence of an express provi-
sion excepting cross-petitions from the deadline imposed by
the APA, for the reasons explained above, we hold that any
aggrieved party seeking judicial review of an administrative
decision under the APA must file a petition within 30 days after
service of that decision, pursuant to § 84-917(2)(a).
In this case, CCL and the Department of Labor sought to
attack the Appeal Tribunal’s decision and obtain affirmative
relief, instead of protect that decision, so they should have filed
a timely petition for review.20 because they did not, the dis-
trict court correctly refused to consider their argument. Their
first assignment of error is without merit. And their remaining
assignment of error addresses the merits of the argument that,
as explained above, they failed to present for judicial review.
Therefore, like the district court, we decline to consider it.
CoNCLUSIoN
The district court correctly refused to consider CCL and the
Department of Labor’s challenge to the Appeal Tribunal’s deci-
sion, because CCL and the Department of Labor did not file a
timely petition for judicial review of that decision. The judg-
ment of the district court is affirmed.
affirMed .
M ccorMack, J., participating on briefs.
20 See Dole, supra note 11.
AHMANN v. CoRRECTIoNAL CTR. LINCoLN 	595
Cite as 276 Neb. 590