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139 Nev., Advance Opinion 2 \
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
HIGHROLLER TRANSPORTATION, | No. 85007-COA
LLC, ee
Appellant, a
a FILED ©
NEVADA TRANSPORTATION
AUTHORITY, NOV 30 2023
Respondent. CLERV Pe BUPRAME COURT
NY SfEE DEPUTY CLERIC
Appeal from a district court order granting in part and denying
in part a petition for judicial review of an administrative decision by the
Nevada Transportation Authority. Eighth Judicial District Court, Clark
County; Eric Johnson, Judge.
Affirmed.
James S. Kent, Las Vegas,
for Appellant.
Aaron D, Ford, Attorney General, and Louis V. Csoka, Deputy Attorney
General, Carson City,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
OPINION —
By the Court, WESTBROOK, J.:
In this opinion, we consider for the first time the scope and
application of the waiver rule to the adjudication of contested cases before
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the Nevada Transportation Authority (NTA or Authority). We also
emphasize the importance of a developed record at the agency level to
enable district courts and appellate courts to meaningfully address the
arguments raised in petitions for judicial review.
The NTA administers and enforces Nevada’s laws governing
the transportation of persons and property on Nevada's roadways. See NRS
706.166. The Authority generaliy conducts its business at public hearings
during open meetings of the NTA general session. See NRS 706.1514(2).
However, in cases involving the imposition of civil penalties or fines,
administrative proceedings may be conducted by a hearing officer
designated by the Authority. NRS 706.1514(2); NRS 706.771. At the
conclusion of such administrative proceedings, the hearing officer delivers
the record of the hearing and a proposed decision to the Authority for its
consideration. Nevada Administrative Code (NAC) 706.4015. The
Authority then reviews the hearing officer's proposed decision and, at a
meeting of the NTA general session, enters a final order affirming,
modifying, or setting aside the decision. NAC 706.4017.
In contested cases before the NTA, we conclude that arguments
not raised during the administrative proceedings are generally waived and
that the NTA need not consider arguments raised for the first time at the
general session. Moreover, when a party to a contested case before the NTA
stipulates to informally dispose of the case and waive the findings of fact
and conclusions of law otherwise required by NRS 233B.125, that party is
bound by the terms of the stipulation and may not subsequently challenge
the legal or factual underpinnings of the NTA’s decision on judicial review.
Accordingly, we affirm the district court's order granting in part and
denying in part the petition for judicial review.
tho
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FACTS AND PROCEDURAL HISTORY
In 2015, Highroller ‘Transportation, LLC, obtained
authorization to operate charter buses in Nevada when the NTA granted
Highroller a certificate of public convenience and necessity. Under the
terms of its certificate, Highroller was prohibited from “stag[ing] or
stand[ing] a vehicle at any location except while currently chartered or
awaiting a preexisting charter client.” Highroller accepted this restriction
as a condition of its right to operate and. did not challenge it at any point
prior to the instant case.
In December 2020, Highroller received an ~ adrninistrative
citation for improperly staging a vehicle at a casino without a charter order
in violation of its certificate restriction and NAC 706.360.! Three months
after receiving this citation, Highrolier was issued a second citaticn, also for
improperly staging its vehicies without a charter order. At a subsequent
administrative hearing on both citations, Highroller stipulated to the facts
underlying each citation and agreed to fines totaling $10,000.2 The parties
then signed written stipulations waiving formal findings of fact and
conclusions of law. Under the terms of ‘these stipulations, “[t]he
parties... lagreed] to dispose of the case[s] by stipulation .. . [and waived]
the réquirement under Nevada Revised Statute (NRS’) 233B.125 that the
Authority’s final order include findiies of fact and conciusions of law.” The
stipulations further provided that “a finai-order will issue which includes,
'NAC 706.360 provides that “vehicles of an authorized carrier may
not be used for transportation services beyond the scope of the authority of
that carrier.” : mx
2The $10,000 amount was calculated a8 $1600 for the initial citation,
$4400 for the-second citation, and $4000 for a prior fine that had. previously
been held in abeyance.
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generally: (1) The stipulations and admissions of the parties; (2) The
{hJearing [o]fficer’s recommendations to the Authority ... [;} and (8) An
order from the Authority approving, modifying, or setting aside the
[hJearing [o]fficer’s recommendations.” The hearing officer then submitted
a proposed decision for review by the NTA, recommending that the NTA
accept the stipulations and enter the fines against Highroller.
In June 2021, at the NTA’s general session, the Authority
addressed the hearing officer’s proposed decision in Highroller’s contested
cases. The meeting agenda for this general session contained a total of 124
docket items, ranging from applications for driver permits, rate and tariff
issues, and dozens of citations. At this meeting, Highroller, for the first
time, objected to the NTA’s legal authority to enter the violations and
argued that the NTA’s authority was preempted andlor federal law.
Highroller posited that this argument was jurisdictional in nature and
therefore could be raised at any time. The NTA declined to consider
Highroller’s federal preemption argument, noting that it should have been
raised at the administrative hearing before the hearing officer. Thereafter,
the NTA issued a final order affirming the hearing ofificer’s’ proposed
decision and formally imposing the $10,000 in fines.
Highroller then petitioned for judicial review in the district
court. In its petition, Highroller argued that its certificate restriction,
which formed the basis of the violations and fines, was federally preempted
by: 49 U.S.C. § 14501(a)(1)(C), and, as a result, the NTA did not have
jurisdiction to find that Highroller was in violation of the restriction.
Highroller specifically claimed that the restriction was preempted because
the prohibition against staging was not a valid exercise of the NJA’s safety
regulatory authority; if the restriction were legitimately related'to safety,
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Highroller argued, it would unifermly apply to all commercial vehicle
operators in the state or otherwise be codified as a law or regulation. In its
answering brief, the NTA argued that Highroller’s certificate restriction
was a proper exercise of its authority to regulate safety because the purpose
of the certificate’s prohibition on staging was to ensure that large charter
buses would not contribute to traffic congestion by parking or being left
unattended in vehicle loading areas at resort properties. The NTA also
referenced several other codified regulations containing prohibitions on
similar conduct and argued that Highroller’s certificate restriction was
safety-related when viewed in the context of these other regulations.*
The district court agreed with the NTA’s position and
determined that the restriction in Highroller’s certificate was related to
safety and thus not federally preempted. The court denied Highroller’s
petition as to the federal preemption claim, and this appeal followed.
3Specifically, the NTA referenced NAC 706.228 (prohibiting parking
vehicles in close proximity to a taxi stand), NAC 706.234 (addressing the
risk of unattended vehicles around resort properties), NAC 706.354
(requiring that charter orders be “[c]arried on the vehicle and be available
for inspection during the period of the service”), and NAC 706.360 (stating
that vehicles of an authcrized carrier must not be used for services beyond ~
the scope of the carrier’s authority).
4The district court granted the petition in part because the NTA had
levied duplicative fines against both Highroller and its employee personally
for the same conduct. The district court reversed the NTA’s order to the
extent of any fines that had already been collected from Highroller’s
employee for the same “underlying events” as Highroller’s contested
citations. The NTA did nat file a cross-appeal to challenge this portion of
the district court’s order. .
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ANALYSIS
Highrolier does not dispute that its conduct violated the
restriction in its certificate; rather. Highroller contends on appeal that the
restriction is preempted by federal law and thus cannot form the basis for
the violations in the NTA’s final order. Similar to the argument presented
in its petition for judicial review, Highroller argues that its certificate
restriction is not related to safety because the NTA does not impose the
restriction on all motor carriers, nor is the restriction codified as a uniformly
applicable regulation. The NTA’s “assertion” of safety in its answering brief
on judicial review, Highroller claims, was insufficient to “provide any basis”
or substantiate that the restriction pertains to safety, particularly given
that there was no explanation of the restriction in 2015 when it was initially
included in Highroller’s certificate.
In response, the NTA argues that the restriction is related to
safety because it was “designed to ensure public safety at the resort
properties, by ensuring that the significantly larger charter buses are not
whirling around clogging up porte cocherers next to resort properties, are
not being left unattended around resort properties... , and not otherwise
being used as taxicabs around resort properties.” In addition, the NTA
reiterates that Highroiler’s certificate restriction is safety-related when
viewed in the context of similar administrative regulations.
The NTA argues in the alternative that Highroller waived its
federal preemption arguinent by failing to raise it at the administrative
hearing before the heaving officer and alse by stipulating to: informally
dispose of its contested cases. As a result, the NTA contends that the safety
purpose of the restriction was not fully briefed or argued at the agency level
and, therefore, Highroller improperly argued preemption for the first time
in its petition for judicial review.
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When reviewing a decision of an administrative agency, this
court’s role “is identical to that of the district court: to review the evidence
presented to the agency in order to determine whether the agency’s decision
was arbitrary or capricious and was thus an abuse of the agency's
discretion.” United Exposition Serv. Co. v. State Indus. Ins. Sys., 109 Nev.
421, 423, 851 P.2d 423, 424 (1993). Appellate review of a final agency
decision is “confined to the record before the agency.” Law Offices of Barry
Levinson, P.C. v. Milko, 124 Nev. 355, 362, 184 P.3d 378, 384 (2008).
However, we review purely legal questions, including matters of statutory
interpretation, de novo. Id. “Whether state law is preempted by a federal
statute or regulation is a question of law, subject to our de novo review.”
Nanopierce Techs., Inc. v. Depository Tr. & Clearing Corp., 123 Nev. 362,
370, 168 P.3d 73, 79 (2007) (footnote omitted).
The doctrine of preemption stems from the Supremacy Clause
of the United States Constitution. U.S. Const. art. VI, cl. 2. When a conflict
arises between a federal law and a state law. the federal law will supersede
the conflicting state law. Nanopierce Techs., 123 Nev. at 370, 168 P.3d/at
79. Preemption may be express or implied. Congress expressly preempts
state law when it explicitly states the intent to do so in the statute. /d.at
371, 168 P.3d at 79. To determine whether Congress has expressly
preempted state law, courts “examine the statutory language--any explicit
preemption language generally governs the extent of preemption.” Id.
Because Highroller contends that 49 U.S.C. § 14501(a)
expressly preempts the restriction contained in its certificate, we begin by
examining the statutory text, which states, in pertinent part:
(a) Motor carriers of passengers.-—
(1) Limitation on State law.—No State or
political subdivision thereof and no interstate
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agency or other political agency of 2 or more
States shall enact or enforce any law, rule,
regulation, standard, or other provision
having the force and effect of law relating
to—
(C) the authority to provide intrastate
or interstate charter bus
transportation.
(2) Matters not covered.—Paragraph (1)
shall not restrict the safety regulatory
authority of a State with respect to motor
vehicles, the authority of a State to impose
highway route controls or limitations based
on the size or weight of the motor vehicle, or
the authority of a State to regulate carriers
with regard to minimum amounts of financial
responsibility relating to insurance
requirements and self-insurance
authorization.
(Emphasis added.)
Although the plain language of this statute expressly preempts
any state “law, rule, regulation, standard, or other provision” relating to
“the authority to provide intrastate or interstate charter bus
transportation, 49 U.S.C. § 14501(a)( 1\(C), Congress provided that the
preemption directive “shall not restrict the safety regulatory authority of a
State with respect to motor vehicles,” 49 U.S.C. § 14501(a)(2); see also City
of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 428 (2002)
(addressing 49 U.S.C. § 14501(c)(2)(A), which contains an identical safety
preemption exception for motor carriers of property). Thus, the extent of
federal: preemption under § 14501(a) is limited, and it does not apply to
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safety-related restrictions, See Nanopierce Techs., 123 Nev. at 370, 168 P.3d
at 79.
In this case, both Highroller and the NTA agree that § 14501(a)
applies in this case, but as noted above, they dispute whether Highroller’s
certificate restriction falls under the NTA’s valid safety regulatory
authority, such that the restriction is excepted from preemption under
§ 14501(a)(2). Before we can reach the merits of Highroller’s federal
preemption claim, however, we must examine whether its preemption
argument was properly preserved for appellate review.
Arguments not raised to a hearing officer in a contested case before the NTA
are generally waived
_ Highroller raised its federal preemption argument for the first
time at the NTA’s general session, after all administrative hearings had
somiluded. Highroller contends that this was sufficient to properly preserve
its preemption claim for judicial review. The NTA disagrees.
Arguments raised for the first time on appeal are typically
deemed waived. State ex rel. State Bd. of Reualisotion u. Barta, 124 Nev.
612, 621, 188 P.3d 1092, 1098 (2008). In Barta, the Nevada Supreme Court
extended the waiver rule to judicial-review of administrative decisions and
heid that any arguments not made before an administrative agency are
waived. Id. However, Barta did not clearly address when a party must
raise an argument before an ‘agency to properly preserve that argument for
consideration on judicial review, and we take the opportunity to do so here,
in cases arising before the NTA. Based on our review of the relevant
statutes and administrative regulations, we conclude that arguments not
presented to’a hearing officer at an NTA administrative hearing are
generally waived and may not be raised for the first time at the NTA’s
general session.
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The Nevada Administrative Procedure Act (APA), codified in
NRS Chapter 233B, provides that any agency proceeding that may result in
the imposition of an administrative penalty is a “contested case.” NRS
233B.032; see also State, Dep't of Health & Human Servs., Div. of Pub. &
Behav. Health Med. Marijuana Establishment Program v. Samantha Inc.,
133 Nev. 809, 813, 407 P.3d 327, 330 (2017) (“[F]inal agency decisions from
a proceeding requiring an opportunity for a hearing or imposing an
administrative penalty are judicially reviewable contested cases.”). In
contested cases, all parties must be afforded an opportunity for a hearing.
NRS 233B.121. Contestéd cases under the APA are quasi-judicial
proceedings. See Smith v. State, Bd. of Wildlife Comm'rs, No. 77485, 2020
WL 1972791 at *3 (Nev. Apr. 23, 2020) (Order of Affirmance) (stating that
contested cases under the APA are quasi-judicial in nature) (citing NRS
233B.032). As such, administrative hearings in contested cases have a
“judicial character” and “maintain[ ] trial-like attributes.” State, ex rel. Bd,
of Parole Comm'rs v. Morrow, 127 Nev. 265, 272-73, 255 P.3d 224, 228-29
(2011).
The APA establishes the administrative hearing as an
adversarial proceeding that affords an opportunity to contest the validity or
grounds for the issuance of a penalty. In addition to the statutory
requirements found in NRS Chapter 233B, the NAC contains supplemental
requirements for administrative hearings before the NTA specifically. At
such hearings, the hearing officer may hear testimony, NAC 706.3985,
consider documentary evidence, NAC 706.3992, and make a variety of
procedural rulings, see NAC 706.3996 (consolidating hearings); NAC
706.400 (briefs); NAC 706.4001 (oral arguments). Parties have the right to
examine witnesses, NAC 706.3939, cross-examine opposing witnesses, NAC
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706.3985, object to the admissibility of evidence, NAC 706.399, introduce
evidence, offer arguments, and make motions, NAC 706.3939; see also NAC
706.3959 (authorizing parties to file motions, including motions to dismiss).
All motions must be in writing unless made during a hearing. NAC
706.3959(2). Parties may stipulate to facts, and such stipulations are
binding upon the parties and may be considered as evidence by the NTA.
NAC 706.3997.
At the conclusion of an administrative hearing, the hearing
officer is required to prepare a proposed decision for the NTA’s review. NAC
706.4015(1)(f), (g). At that time, the matter stands “submitted for decision
by the [NTA],” unless otherwise ordered by the hearing officer, NAC
706.4002, and only the hearing officer or the NTA may reopen the
proceedings for the taking of additional evidence, NAC 706.4003; NAC
706.3994(2). The NTA then reviews the hearing officer's recommended
decision and the administrative hearing record and enters a final order at
an NTA general session affirming, modifying, or setting: aside the
recommendation. NAC 706.4017.
In quasi-judicial proceedings before an administrative hearing
officer, waiver rules serve the same purpose as in traditional judicial
proceedings: allowing a party to make arguments to which the opposing
party has a chance to respond and the trier of fact has an opportunity to
consider in an informed manner. See Oliver v. Barrick Goldstrike Mines,
111 Nev. 1338, 1344-45, 905 P.2d 168, 172 (1995) (stating that the purpose
of the waiver rule “is to prevent appellants from raising new issues on
appeal concerning which the prevailing party had no opportunity to respond
and the district court had. no chance to intelligently consider during the
proceedings below”); see also Valley Health Sys., ELC v. Eighth Judicial
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Dist. Court, 127 Nev. 167, 173, 252 P.3d 676, 680 (2011); accord Landmark
Hotel & Casino, Inc. 2». Moore, 104 Nev. 297, 299, 757 P.2d 361. 362 (1988)
(“The purpose of the requirement that a party object to the action of the trial
court at the time it is taken is to allow the trial court to rule intelligently
and to give the opposing party the opportunity to respond to the objection.”).
To permit judicial review of arguments not raised at an NTA
administrative hearing would contravene the purpose of the waiver rule by
allowing a party to make arguments to which the agency had no chance to
respond and which the hearing officer had no opportunity to fully consider.
Oliver, 111 Nev. at 1344-45, 905 P.2d at 172. In this case, Highroller raised
its federal preemption argument for the first time at an NTA general
session, after the conclusion of the administrative hearing and after the
hearing officer had already issued his proposed decision. Thus, the NTA
had no opportunity to respond during the hearing or present evidence of the
restriction’s safety-related purpose, which was necessary to evaluate
Highroller’s preemption argument. Cf Aulo. Club of N_Y., Inc. v. Dykstra,
423 F. Supp. 2d 279, 281, 285 (S.D.N.Y. 2006) (concluding that a state
statute was preempted after evidence presented of the statute's purpose at
a bench trial did not show that it was legitimately related to safety
concerns). In addition, the hearing officer was unable to consider
Highroller’s claim in an informed manner, nor could he make any findings
of fact as to the restriction’s purpose or conclusions of law as to whether that
restriction fell within the preemption exception for safety under 49°U.S.C.
§ 14501(a)(2). The NTA general session was neither the time nor the place
to raise such arguments in the first instance.
We note that the rule prohibiting new arguments from being
raised for the first time on appeal serves the additional purpose of ensuring
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a proper record for appellate review. Young v. State, 139 Nev., Adv. Op. 20,
534 P.3d 158, 164 (Ct. App. 2023) (discussing generally the “importance of
making timely objections to preserve the record in order to facilitate
appellate review”). In other contexts, the Nevada Supreme Court has
consistently required lower courts to make findings, either in writing or on
the record, so it can evaluate the lower court’s decision and the reasons
underlying that decision. See, e.g., Somee v. State, 124 Nev. 434, 441-42,
187 P.3d 152, 158 (2008) (requiring the district court to make specific
factual findings because “[w]ithout an adequate record, this court cannot
review a district court’s decision to admit or suppress evidence”); Davis v.
Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1148 (2015) (“Specific findings
and an adequate explanation of the reasons for the custody determination
are crucial to enforce or modify a custody order and for appellate review.
Without them, this court cannot say with assurance that the custody
determination was made for appropriate legal reasons.” (internal quotation
marks and citation omitted)). The necessity ofa fully developed record
applies with no less force in administrative agency appeals, such as
Highroller’s, where appellate review is strictly confined to the agency
record. State Indus. Ins. Sys., 109 Nev. at 424, 851 P.2d at 424 (stating that
the appellate court’s review of an agency decision is limited to the agency
record).
We also note that the hearing officer in a contested case before
the NTA functions somewhat like a magistrate judge who conducts hearings
and issues recommendations for review and approval by a district court
judge. See Valley Health, 127 Nev. at 172, 252 P.3d at 679. In Valley
Health, the Nevada Supreme Court recognized the similarities between
federal magistrate judges and discovery commissioners, who both submit
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proposed findings of fact and recommendations to the district court for
approval, and held that principals of waiver apply to issues resolved in the
first instance by a discovery commissioner. Jd. The supreme court observed
that it would lead to an “inefficient use of judicial resources” to allow parties
to make “one set of arguments before the commissioner, waiting until the
outcome is determined, then adding or switching to alternative arguments
before the district court.” Jd. at 172-73, 252 P.3d at 679-80. The court
concluded that neither the district court nor the appellate courts would
“consider new arguments raised in objection to a discovery commissioner's
report and recommendation that could have been raised before the
discovery commissioner but were not.” Jd. at 173, 252 P.3d at 680.
We find the analysis of Valley Health instructive. Permitting
parties to raise new arguments at an NTA general session, when those
arguments could have been raised at an administrative hearing, would
create inefficiency because the new arguments were never presented to-or
considered by a hearing officer in the first instance. While the NTA can
certainly choose to reopen administrative proceedings after the conclusion
of a contested hearing if it wishes to do so for the taking of additional
evidence, see NAC 706.4003, it is not obligated to do so, NAC 706.4002
(“Unless otherwise specifically ordered, a matter stands submitted for
decision by the Authority at the close of the hearing.”). Thus, while the NTA
has the discretion to consider an untimely argument raised for the first time
at a general session, it may choose not to entertain it, and doing so is not an
abuse of that discretion.
Nevertheless, while we hold that arguments must generally be
raised at the administrative hearing before the NTA, we recognize that a
party may raise subject matter jurisdiction at any time. See Swan v. Swan,
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106 Nev. 464, 469, 796 P.2d 221, 224 (1990) (stating generally that subject
matter jurisdiction “can be raised by the parties at any time”). Although
Highroller has never expressly invoked subject matter jurisdiction,
Highroller did argue at the NTA general session and in its petition for
judicial review that, as a result of federal preemption, the NTA was without
jurisdiction to adjudicate the citations or find that Highroller was in
violation of its certificate restriction. Therefore, we must determine
whether Highroller’s brief statement at the NTA general session was
sufficient to demonstrate that the NTA lacked subject matter jurisdiction
over the citations at issue in this case as a result of federal preemption.
Highroller did not establish that 49 U.S.C. §-14501(a)(1)(C) divested the
NTA of subject matter jurisdiction tn this case
At the outset. we note that neither party on appeal belated the
issue of whether preemption under 49 U.S.C. § 14501(a) implicates the
NTA’s subject matter jurisdiction. In Highroller’s petition for judicial
review, while Highroiler summarily asserted that the NTA was without
authority to find it was in violation of its certificate restriction, Highroller
did not clearly argue that federal preemption divested the NTA of subject
matter jurisdiction such that. its preemption claim could be raised at any
time.> Nonetheless, because subject matter Jurisdiction can be raised “sua
sponte by a court of review,” Swan, 106 Nev. at 469, 796 P.2d at 224, we
address Highroller’s preemption claim to the extent Highroller contends it
5Rather, Highroller argued before the district court that it had
properly preserved its preemption argument by referencing preemption at
the general session. In the alternative, Highroller asserted that if
preemption was being raised for the first time on judicial review, the district
court should nonetheless consider it because proper resolution was “beyond
any doubt” and allowing the NTA’s order to stand wouid be unjust, citing
Singleton v. Wulff, 428 U.S. 166, 121 (1976). :
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removes the NTA’s subject matter jurisdiction to adjudicate Highroller’s
contested cases.
When federal preemption implicates the choice of law governing
an action, it operates as an affirmative defense that may be waived. See
Int'l Longshoremen’s Ass’n, AFL-CIO v, Davis, 476 U.S. 380, 381-82 (1986);
see also Wiener v. AXA Equitable Life Ins. Co., 58 F.4th 774, 779-80 (4th Cir.
2023) (stating that in the context of federal preemption, “[a]ll U.S. Courts
of Appeals to have addressed the issue have held that choice of law issues
may be waived”); Saks v. Franklin Covey Co., 316 F.3d 337, 349 (2d Cir.
2003) (“Where federal preemption affects only the choice of law, the defense
may be waived if not timely raised.”). However, a more limited subset of
nonwaivable, jurisdictional federal preemption exists when the preemptive
federal legislation vests subject matter jurisdiction “exclusively in one
forum” and, in doing so, withdraws jurisdiction from all other forums.
Davis, 476 U.S. at 393 nn.9 & 11. Federal preemption derived from choice-
of-forum legislation “mark[s] the bounds of a [state] court’s adjudicatory
authority, and as such cannot be waived or forfeited.” Wiener, 58 F.4th at
780 (internal quotation marks omitted).
In Davis, the United States Supreme Court considered whether
Garmon preemption® under the National Labor Relations Act (NLRA), 29
6In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245-
46 (1959), the Supreme Court held, as a general matter, that when union
activities are “arguably within the compass of § 7 or § 8 of the [NLRA], the
State’s jurisdiction is displaced” or preempted, and “the States as well as
the federal courts must defer to the exclusive competence of the National
Labor Relations Board if the danger of state interference with national
policy is to be averted.” The Nevada Supreme Court addressed Garmon
preemption in Rosner vu. Whittlesea Blue Cab Co., 104 Nev. 725, 766 P.2d
888 (1988), holding that a state law breach of contract action that did not
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U.S.C. §§ 151-168, was an affirmative defense and thus subject to waiver,
or choice-of-forum legislation and therefore nonwaivable. Following the
conclusion of a trial in state court on Davis’ wrongful termination claims,
the union argued for the first time in a post-trial motion that the state court
lacked subject matter jurisdiction to adjudicate Davis’ claims due to federal
preemption under the NLRA. 476 U.S. at 385. The state court held that
the union had waived its preemption argument by failing to timely raise it
until the conclusion of trial and declined to address it on the merits. Jd. at
385-86. However, the Supreme Court disagreed, determining that, with
certain exceptions, state courts lack subject matter jurisdiction to
adjudicate claims raised under the NLRA because “in enacting the NLRA
Congress intended for the [National Labor Relations] Board generally to
exercise exclusive jurisdiction in this area.” Jd. at 391. In holding that the
NLRA is a choice-of-forum statute because it vested exclusive jurisdiction
in the National Labor Relations Board, the Supreme Court concluded that
Garmon preemption was jurisdictional, and therefore the union did not
waive its federal preemption argument by waiting to raise it until after the
conclusion of the trial. Id.
Nonetheless, even while recognizing that Garmon preemption
could not be waived, the Supreme Court ultimately concluded that the
union did not meet its burden to establish jurisdictional preemption because
its allegations of preemption were entirely conclusory in nature and not
based on any evidence in the record. Id. at 394-95, 398. Crucially. whether
the NLRA preempted the state court preceedings hinged on whether Davis
involve a collective bargaining agreement was not preempted by the NLRA
and, therefore, the district court had subject matter jurisdiction to
adjudicate that claim.
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was an employee, in which case the NLRA would apply, or a supervisor, in
which case the NLRA exquid not apply. Jd. at 395. In its briefing to the
Supreme Court, the union's “sole submission [was| that Davis was arguably
an employee because the Board has not decided that he was a supervisor.”
Id. at 396 (emphasis added). Similarly, “[t]he [u]nion’s claim of pre-emption
in the state courts was also devoid of any factual or legal showing that Davis
was arguably not a enperraat but an employee.” Jd. at 398. When the
union argued preemption in the state court, its motion “contained no more
then a conclusory assertion that state jurisdiction was preempted,” and
“fujntil that motion, no claim of pre-emption had. been made out.” Id:
‘The Supreme Court determined this was insufficient. “To
accept the [u]nion’s submission would be essentially equivalent to allowing
a conclusory claim of pre-emption and would effectively eliminate the
necessity to make out an arguabie case.” Id. at 396. Rather, “a party
asserting pre-emption must put forth enough evidence to enable a court to
conclude that the activity is arguably subject to the [NLRAJ.” Jd. at 398
(emphasis added). “[T]hose claiming pre-emption must carry the burden of
showing at least an arguable case before the jurisdiction of a state court will
be ousted.” Jd. at 396.
Here, Highroller does not argue that 49 U.S.C. § 14501(a) vests
subject matter jurisdiction “exclusively in one forum.” Davis, 476 U.S, at
393 nn.9 & 11. Moreover, unlike the NLRA, which requires claims to be
brought before the Nationa! Labor Relations Board, 49 U.S.C. § 14501(a)
does not, en its face, require transportation carrier citations to be
adjudicated in another forum. Therefore, it is doubtful that Highroller’s
claim, even if it had it been properly supported, would have divested the
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NTA of subject matter jurisdiction to adjudicate the citations and fines at
issue this case.
Nonetheless, even assuming arguendo that Highroller’s
preemption claim implicates the NTA’s subject matter jurisdiction,
Highroller presented no evidence at the administrative level concerning
whether the restriction at issue is safety-related or not, such that the NTA’s
authority was even arguably preempted. See Davis, 476 U.S. at 395-96
(requiring a party asserting preemption to “put forth enough evidence to
enable the court to find” preemption); see also Davidson v. Velsicol Chem.
Corp., 108 Nev. 591, 594, 834 P.2d 931, 933 (1992) (“The burden of
establishing pre-emption is on the party seeking to give the statute such
effect.”).
Like in Davis, where the question of preemption turned on
Davis’ status as either an employee or a supervisor, the question of
preemption in this case turns on whether Highroller’s certificate restriction
was safety-related or not. Highroller concedes that the NTA has jurisdiction
to impose safety-related restrictions on charter bus operators. Therefore, to
the extent the restriction in Highroller’s certificate can be deemed safety-
related, the NTA would necessarily have had subject matter jurisdiction to
adjudicate citations related to a violation of that restriction. Had Highroller
timely raised its preemption argument during the administrative hearing,
the hearing officer could have considered evidence and argument regarding
the purpose of the certificate restriction in order to determine in the first
instance whether the restriction was, or was not, preempted by 49 U.S.C.
§ 14501 (a).
But Highroller did not avail itself of the opportunity to litigate
the preemption issue before the hearing officer and instead made only a
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“conclusory claim of pre-emption” at the NTA general session. See Davis,
476 U.S. at 396. Highroller failed to present any evidence at the agency
level to permit a finding that the restriction in its certificate was not safety-
related. Highroller’s claim was thus “devoid of any factual or legal showing”
that its certificate restriction was not sufficiently safety-related, which was
“a relevant inquiry in making out [its] case.” Id. at 398. “‘Therafore,
Highroller’s conclusory and bare assertion of preemption at the NTA
general session was insufficient to establish that the NTA lacked subject
matter jurisdiction to adjudicate the citations in this case.
We recognize that in the judicial review proceedings before the
district court, both Highroller and the NTA briefed the issue of whether
Highroller’s certificate restriction was excluded from preemption under 49
U.S.C. § 14501(a)(2) for being related to safety. However, this post hoc
briefing was insufficient for Highroller to establish jurisdictional
preemption, both under the framework utilized in Davis and under existing
Nevada law. In Davis, the union’s post-trial brief contained only a
conclusory assertion of preemption. 476 U.S. at 398. Moreover, when it
argued for preemption, the union “did not assert that Davis was an
employee, not a supervisor, let alone point to any evidence to support such
aclaim.” Jd. Here, similarly, Highroller’s briefing in support of its petition
for judicial review contained a conclusory assertion of preemption that did
not point to any evidence to support such a claim in the administrative
record.’
7In Highroller’s petition for judicial review and on appeal, Highroller
summarily asserts that because its certificate restriction is not universally
applicable to all motor carriers, it cannot be related to safety for purposes
of preemption under 49 U.S.C. § 14501(a). However, Highroller does not
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Combined Opinion