(dissenting).
I respectfully dissent. The majority concludes that the district court lacked subject matter jurisdiction to consider Cooper’s petition for judicial review, which was filed within thirty days of the agency’s final decision on remand but before the agency ruled on the employer’s petition for rehearing. In concluding that Cooper’s timely-filed petition must be dismissed, the majority relies on the language of section 17A.19(3) and precedent addressing untimely-filed petitions. I would reach a contrary conclusion.
Iowa Code section 17A.19(3) grants parties an extension of time to file a petition for judicial review in the event a petition for rehearing is filed. This provision affords a benefit to both parties. See Fee v. Employment Appeal Bd., 463 N.W.2d 20, 22 (Iowa 1990). Although the provision uses the directory term “must,” I believe that word, when read in context, simply prescribes the outer limits for filing a judicial review petition. A contrary reading could require a party to wait until the fortieth day after the agency’s final decision before filing a petition for judicial review. See Iowa Code § 17A.16(2) (noting petition for rehearing must be filed within twenty days of final agency decision and is deemed denied twenty days after filing). This would eviscerate the prescribed thirty-day filing deadline identified in the same provision. Such a reading would also place the aggrieved party in the untenable position of having to rely on the other party’s proper filing of a rehearing petition to trigger the time for filing its own judicial review petition. If the rehearing petition is later deemed improperly filed, the aggrieved party’s petition for judicial review could be deemed untimely. In this scenario, a judicial review petitioner could be denied access to the court because of a byzantine timeline dictated by the other party. I am not convinced the legislature “intended ... such a trap.” Fee, 463 N.W.2d at 22.
The majority also notes that a party cannot resort to other statutes or rules to extend the time for filing a petition for judicial review. I agree, but Cooper did not attempt to do so. See Sharp v. Iowa Dep’t of Job Serv., 492 N.W.2d 668, 670 (Iowa 1992) (“We hold that Iowa Rule of Civil Procedure 82(d) is inapplicable to expand the district court’s judicial review jurisdiction by permitting an appeal of an Employment Appeal Board decision beyond the time limit specified for that purpose by the legislature.” (emphasis added)). She filed her petition for judicial review within thirty days of the final remand decision. See id. at 669 (“A timely petition for judicial review to the district court is a jurisdictional prerequisite for review of final agency action.” (emphasis added)). That fact, in my view, distinguishes this case from the precedent cited by the majority.
I would conclude that Cooper’s petition for judicial review was timely and satisfied the procedural prerequisites of Iowa Code section 17A.19. Accordingly, I would reach the merits.