                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JAMES DUNNING,                                       No. 67322
                Appellant,
                vs.
                                                                              FILED
                NEVADA STATE BOARD OF                                             MAY 2 6 2016
                PHYSICAL THERAPY EXAMINERS,
                Respondent.

                                ORDER OF REVERSAL AND REMAND

                           This is an appeal from a district court order denying a
                preliminary injunction and granting a motion to dismiss appellant's
                complaint for declaratory relief challenging an administrative action.
                Eighth Judicial District Court, Clark County; Adriana Escobar, Judge.
                           In 2011, appellant Dr. James Dunning coined the terms
                "osteopractic" and "osteopractor" in connection with continuing education
                courses he offers to physical therapists in Nevada. Respondent Nevada
                State Board of Physical Therapy Examiners (the Board) later adopted a
                policy prohibiting any physical therapist licensed in Nevada from using•
                the terms "osteopractic" and "osteopractor" in any manner. Dunning filed
                an action for injunctive and declaratory relief, arguing that the Board's
                policy was a regulation as defined by NRS 233B.038 and that the Board
                was therefore required to comply with the requirements of the Nevada
                Administrative Procedures Act (NAPA), NRS Chapter 233B, before
                enacting the policy. The Board filed a motion to dismiss, which the
                district court granted. The district court order states that the motion to
                dismiss was granted "pursuant to NRS 233B.110" without any further
                explanation. Dunning now appeals.



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                            It is unclear whether the district court granted the Board's
                motion to dismiss based on Dunning's failure to exhaust administrative
                remedies or because the district court concluded that it lacked jurisdiction
                under NRS 233B.110. "[VVilien unclear, a judgment's interpretation is a
                question of law for this court." Allstate Ins. Co. v. Thorpe, 123 Nev. 565,
                570, 170 P.3d 989, 992 (2007). "When reviewing a district court's
                judgment, we apply the rules of construction that pertain to interpreting
                other written instruments."         Id.   at 570, 170 P.3d 992-93.
                "Additionally . . . a judgment's legal effect must be determined by
                construing the judgment as a whole, and that, in the case of ambiguity,
                the interpretation that renders the judgment more reasonable and
                conclusive and brings the judgment into harmony with the facts and law of
                the case will be employed." Id. at 570, 170 P.3d at 993.
                            We conclude that the district court order is ambiguous. NRS
                233B.110 permits the filing of a declaratory relief action to challenge a
                regulation but requires that the party first ask the administrative agency
                to pass upon the validity of the regulation. Accordingly, we conclude that
                dismissal for lack of subject matter jurisdiction under NRS 233B.110,
                rather than for failure to exhaust administrative remedies, renders a more
                reasonable and conclusive judgment given the facts and record below.
                Nonetheless, in either case, we conclude that this matter must be reversed
                and remanded.
                The district court erred in dismissing Dunning's claim for lack of subject
                matter jurisdiction under NRS 233B.110
                            Dunning argues that the Board's policy is a regulation
                pursuant to NRS 233B.038 such that the district court had jurisdiction
                over the underlying matter under NRS 233B.110. Dunning contends that
                the policy is a statement of general applicability which effectuates or
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                     interprets law or policy. Thus, Dunning contends, the district court
                     improperly dismissed his complaint for lack of subject matter jurisdiction
                     because the district court had authority to determine the validity of the
                     policy under NRS 233B.110. We agree.
                                 This appeal raises issues of statutory interpretation and
                     questions of law, which this court reviews de novo.       State, Dep't of Motor
                     Vehicles v. Taylor-Caldwell, 126 Nev. 132, 134, 229 P.3d 471, 472 (2010).
                                 NRS 233B.110 outlines the process by which a district court
                     may render a declaratory judgment regarding the validity of a challenged
                     regulation. District courts have the authority to determine "[t]he validity
                     or applicability of any regulation . . . when it is alleged that the regulation,
                     or its proposed application, interferes with or impairs, or threatens to
                     interfere with or impair, the legal rights or privileges of the plaintiff."
                     NRS 233B.110(1) (emphasis added). "A declaratory judgment may be
                     rendered after the plaintiff has first requested the agency to pass upon the
                     validity of the regulation in question." Id.
                                 Agencies "may adopt reasonable regulations to aid [them] in            •




                     carrying out the functions assigned to [them] by law." NRS 233B.040(1).
                     "If adopted and filed in accordance with the provisions of [NAPA]" these
                     regulations have the force of law.     Id.   A regulation is "an agency rule,
                     standard, directive or statement of general applicability which effectuates
                     or interprets law or policy, or describes the organization, procedure, or
                     practice requirements of an agency." NRS 233B.038(1)(a); State Farm
                     Mitt. Auto Ins. Co. v. Commissioner of Ins.,     114 Nev. 535, 543, 958 P.2d
                     733, 738 (1998).
                                  In contrast, policies are merely an agency's interpretation or
                     understanding of the law and typically do not hold the legal force of a

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                 regulation. See generally Nev. State Democratic Party v. Nev. Republican
                 Party, 256 P.3d 1, 6-7 (Nev. 2011);            see also Bader v. Norfolk
                 Redevelopment & Hons. Auth., 396 S.E.2d 141, 143 (Va. Ct. App. 1990).
                 Declaratory, decisional, advisory, and fact-specific interpretive rulings are
                 not regulations under NRS Chapter 233B. NRS 233B.038(2)(b), (e), (0 and
                 (h). For example, "an interpretive ruling is merely a statement of how the
                 agency construes a statute or a regulation according to the specific facts
                 before it." State Farm Mitt. Auto Ins. Co., 114 Nev. at 543, 958 P.2d at
                 738. However, this court has reasoned that, where an interpretive ruling
                 affects other market participants, appears to be part of a general policy,
                 and "is of such major policy concern and of such significance" that it may
                 be characterized as being of general applicability, the ruling is a
                 regulation subject to the NAPA. Id. at 544, 958 P.2d at 738 (quoting Pub.
                 Serv. Comm'n of Nev. v. Sw. Gas Corp.,      99 Nev. 268, 273, 662 P.2d 624,
                 627 (1983) (concluding that rate-design directed at a single utility provider
                 constituted a regulation despite the fact that it was only directed at a
                 single provider)); see also Coury v. Whit tlesea-Bell Luxury Limousine,   102
                 Nev. 302, 305-06, 721 P.2d 375, 376-77 (1986) (concluding that the Public
                 Service Commission's decision in a single contested matter was subject to
                 the NAPA because it produced new definitions that created a standard of
                 general applicability for all market participants).
                             Here, we conclude that the Board's policy is of general
                 applicability. The Board published the policy in the "WINTER 2013 WEB
                 NEWS BULLETIN" and stated therein that "the Board has determined
                 that Nevada licensees may not use the terms 'Osteopractic' or
                 'Osteopractoe in any manner." The language used in the Nevada State
                 Board of Physical Therapy Examiners Policy Manual is similarly broad,

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                 stating that the terms "are not acceptable terms for licensees to use, in
                 any form, either written or verbal." Unlike the PSC's determination in
                 Southwest Gas Corp., which was directed at a single entity, the language
                 of the Board's policy indicates that it is directed to all physical therapists
                 licensed in the state of Nevada, not a subset of physical therapists. Nor is
                 the policy limited to the use of the terms under certain circumstances.
                 Thus, the policy plainly applies to every physical therapist licensed in the
                 state of Nevada and to any potential use of the terms "osteopractic" and
                 "osteopractor."
                             We further conclude that the policy effectuates law or policy.
                 The Board's policy manual states that the terms "Osteopractic" and
                 "Osteopractor" "are not legally acceptable to be utilized by any licensee."
                 However, the policy does not identify which portion of the Nevada Revised
                 Statutes or the Nevada Administrative Code that prohibits the use of
                 these terms. Accordingly, the policy reserves for the Board the right to
                 conclude that any physical therapist's use of the terms, in any manner,
                 constitutes a violation of the policy and, therefore, a violation of the law.
                             Under these facts, we conclude that the policy is a regulation
                 pursuant to NRS 233B.038. Accordingly, the district court had
                 jurisdiction over the underlying matter under NRS 233B.110. We reverse
                 the district court's order dismissing Dunning's claim for lack of subject
                 matter jurisdiction pursuant to NRS 233B.110.
                 We decline to address whether Dunning has exhausted administrative
                 remedies
                             Dunning argues that he exhausted his administrative
                 remedies pursuant to NRS 233B.110. We decline to address whether
                 Dunning exhausted his administrative remedies because the district court
                 failed to make any factual findings on this issue.     Carson Ready Mix, Inc.
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                 v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981)
                 ("We cannot consider matters not properly appearing in the record on
                 appeal."). Accordingly, it is unclear what specific steps Dunning took to
                 request that the Board "pass upon the validity" of the policy prior to
                 availing himself of the district court, as required by NRS 233B.110.'
                                 Accordingly, we
                                 ORDER the judgment of the district court REVERSED AND
                 REMAND this matter to the district court for proceedings consistent with
                 this order. 2


                                                                                    J.
                                                    Douglas




                       'On remand, we instruct the district court to make factual findings
                 regarding whether Dunning exhausted• his administrative remedies
                 pursuant to NRS 233B.110.

                        2 Wehave considered the parties' remaining arguments and conclude
                 that they are without merit. Additionally, we note that Dunning declined
                 to appeal the district court's denial of his motion for preliminary
                 injunction in order to streamline the issues presented in this appeal.



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                  cc:   Hon. Adriana Escobar, District Judge
                        Phillip Aurbach, Settlement Judge
                        Workman Nydegger
                        Black & LoBello
                        Hal Taylor
                        Attorney General/Carson City
                        Eighth District Court Clerk




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