                                  132 Nev., Advance Opinion 12.
      IN THE COURT OF APPEALS OF THE STATE OF NEVADA


NADINE GOODWIN,                                    No. 62493
Appellant,
vs.
CYNTHIA A. JONES AND RENEE                                    FILED
OLSON, AS FORMER AND PRESENT
ADMINISTRATORS; AND STATE OF                                   MAR 0 3 2016
NEVADA, DEPARTMENT OF                                         T C , K. LINDE_MAN
                                                                      utrAla
                                                                      AA
                                                        C                    t
EMPLOYMENT, TRAINING &                                 Blyy         NAV
                                                              HIE          CL
REHABILITATION, EMPLOYMENT
SECURITY DIVISION,
Respondents.



           Appeal from a district court order denying a petition for
judicial review of an unemployment benefits decision. Second Judicial
District Court, Washoe County; Jerome Polaha, Judge.
           Affirmed.

Brian R. Morris, Reno,
for Appellant.

Neil A. Rombardo and J. Thomas Susich, Carson City,
for Respondents.




BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
                                                   OPINION
                   By the Court, GIBBONS, C.J.:
                               The Nevada Legislature enacted unemployment compensation
                   laws "to provide temporary assistance and economic security to
                   individuals who become involuntarily unemployed." Clark Cty. Sch. Dist.
                   v. Bundley, 122 Nev. 1440, 1445, 148 P.3d 750, 754 (2006) (internal
                   quotation marks omitted). Pursuant to NRS 612.385, a terminated
                   employee is ineligible to receive unemployment compensation benefits if
                   the employer terminated the employee for misconduct connected with the
                   employee's work. In this appeal, we consider whether an employee's
                   failure to maintain a certification required by the employer constituted
                   misconduct within the meaning of NRS 612.385. Here, because the
                   employee did not provide sufficient evidence to demonstrate that she made
                   a reasonable, good-faith attempt to maintain her certification, we conclude
                   the employee's conduct amounted to disqualifying misconduct. Therefore,
                   under the particular circumstances of this case, we affirm the district
                   court's decision denying judicial review of the administrative agency's
                   denial of appellant's application for unemployment benefits.
                                                BACKGROUND
                               Appellant Nadine Goodwin first enrolled at Truckee Meadows
                   Community College (TMCC) in 1999. In January 2001, Goodwin received
                   a certification as an alcohol and drug abuse counselor intern, but the
                   record does not reveal when she initially applied for her certification.
                   Under state regulations applicable to alcohol and drug abuse counselor
                   interns, a certified intern must complete the education requirements to
                   become a certified counselor within ten years of the date on which the
                   person applied for intern certification. Nevada Administrative Code

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                   (NAC) 641C.290(5). Among other requirements, the intern must have a
                   bachelor's degree to become a certified counselor. NRS 641C.390(1)(c).
                               In September 2003, Bristlecone Family Resources, 1 an agency
                   that provides treatment programs for drug, alcohol, and gambling abuse
                   or addiction, as well as family counseling services, hired Goodwin as a
                   counselor intern. At some later but unknown date, Goodwin transitioned
                   into an adult drug court administrator role, where she remained until
                   Bristlecone terminated her employment.
                               In 2006, Goodwin signed Bristlecone's job description for her
                   position acknowledging that, as a drug court administrator, she was
                   "Mesponsible to follow all necessary protocol to secure and
                   maintain. . . Intern. . . Counselor status when appropriate." Goodwin
                   also acknowledged that her job description included "[p]rovid[ing] direct
                   client services, which [could] include individual counseling [and] group
                   counseling." Additionally, Bristlecone circulated a letter informing all
                   staff that, effective March 1, 2008, "[t]he Counselor Intern is responsible
                   for maintaining proper licensure." The scope of the letter was "[a]ll staff'
                   and specifically listed as responsible for compliance the "Clinical Director,
                   Clinical Supervisors, [and] Human Resources." The letter warned that
                   failure to maintain proper licensure may result in termination.
                               Goodwin received an associate's degree from TMCC in 2010,
                   eleven years after she first enrolled. She then transferred her TMCC
                   credits to Walden University to apply toward a bachelor's degree. Nothing
                   in the record establishes how many credits Goodwin accumulated at
                   TMCC or how many credits she transferred to Walden.


                         1 Bristlecone   Family Resources is not a party to this appeal.

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                               On May 6, 2011, Wendy Lay, Executive Director of the State of
                   Nevada Board of Examiners for Alcohol, Drug & Gambling Counselors
                   (the Board), informed Goodwin by letter that Goodwin's intern
                   certification would expire and she would be unable to renew it unless she
                   completed her bachelor's degree by June 30, 2011. This letter was the first
                   communication from the Board regarding Goodwin's certification
                   expiration, and it occurred at least five months after the ten-year time
                   period in NAC 641C.290(5) had already expired.
                               Goodwin responded to Lay in an email and stated, among
                   other things: "I understand I cannot do any substance abuse counseling
                   and I won't." Goodwin then sought an extension of her certification from
                   the Board at its July 8, 2011, meeting; however, the Board denied her
                   request. As a result, the Board confirmed the expiration of Goodwin's
                   intern certification. Bristlecone terminated Goodwin the same day, citing
                   her failure to maintain an intern certification or obtain a counselor
                   certification as required by Bristlecone's employment policy.
                               Goodwin applied to respondent State of Nevada, Department
                   of Employment, Training & Rehabilitation, Employment Security Division
                   (ESD) for unemployment benefits. 2 ESD denied Goodwin's claim on the
                   ground that she was terminated for misconduct connected with her work.
                   Goodwin appealed ESD's decision to an appeals referee who conducted a
                   hearing to determine whether Goodwin's conduct disqualified her from
                   receiving unemployment benefits.


                         2 Cynthia Jones and Renee Olson are also named as respondents in
                   this appeal as former and present administrators, but their role in the
                   underlying matter is unclear from the record and neither has participated
                   in the proceedings below or on appeal.

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                               Goodwin testified at the hearing that she was five classes shy
                   of attaining her bachelor's degree when Bristlecone terminated her.
                   Goodwin asserted that she took the maximum number of classes offered by
                   Walden (two classes every six weeks) but took at most three classes per
                   semester at TMCC over the 11-year period of enrollment. She did not
                   submit any documentary evidence to the appeals referee supporting her
                   progress or the number of courses she took at any given time at TMCC.
                   Goodwin explained to the appeals referee that she did not take more
                   classes at TMCC because she worked full time and bore substantial
                   responsibilities as a single mother of three children, ages 26, 24, and 19, at
                   the time she was terminated.
                               Goodwin also stated she had relied on her conversations with
                   Lay in believing the Board would grant her an extension. She testified
                   that Lay advised her to provide transcripts to the Board to demonstrate
                   her scholastic progress because of how close she was to completion. The
                   record does not contain evidence that Goodwin submitted the transcripts
                   to the Board. Additionally, Goodwin testified that she completed over
                   21,000 hours of work as a counselor intern.
                               The appeals referee found that Goodwin used nine years of the
                   designated ten-year period to earn her associate's degree, leaving only one
                   year to complete her bachelor's degree. The appeals referee also found
                   that Goodwin's failure to maintain her intern certification violated
                   Bristlecone's employment policy. Further, the appeals referee summarily
                   found that Goodwin's conduct included an element of wrongfulness.
                               ESD's Board of Review denied Goodwin's appeal of the appeals
                   referee's decision without comment. Goodwin then sought judicial review
                   in the district court. The district court reviewed the prior proceedings and

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                   concluded Goodwin's failure to attain her bachelor's degree within ten
                   years constituted misconduct connected with her work. The district court
                   therefore denied Goodwin's petition for judicial review. This appeal
                   followed.
                                                     ANALYSIS
                                Goodwin argues that degree completion constitutes off-duty
                   conduct. As such, she contends the appeals referee could only find it to be
                   disqualifying misconduct if ESD established that the conduct violated a
                   Bristlecone policy, which reasonably related to her job, and that she
                   intentionally or willfully violated the policy. With regard to the last
                   consideration, Goodwin argues that her failure to obtain her degree, and
                   thus to maintain her certification, was not willful or intentional because
                   she continuously pursued her education and maintained contact with the
                   Board to try to obtain an extension when she failed to complete the
                   education requirements in time.
                                ESD does not dispute that the behavior at issue constituted
                   off-duty conduct, but argues that the policy regulating such behavior had a
                   reasonable relationship to Goodwin's work. Moreover, ESD contends that
                   Goodwin deliberately ignored the approaching deadline for obtaining her
                   degree, and thus, that her failure to maintain her certification constituted
                   a willful or intentional violation of Bristlecone's policy.
                                We review an administrative agency's decision to determine
                   whether it was arbitrary or capricious or an abuse of discretion. NRS
                   233B.135(3)(f). The analysis of whether misconduct disqualifies an
                   employee from receiving unemployment benefits is separate from the
                   analysis of whether misconduct warrants termination and requires the



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                   trier of fact to apply the legal definition of misconduct to the factual
                   circumstances of the case. Bundley, 122 Nev. at 1446, 148 P.3d at 755.
                               When off-duty conduct violates an employer policy, the issue is
                   whether "the employer's rule or policy has a reasonable relationship to the
                   work to be performed; and if so, whether there has been an intentional
                   violation or willful disregard of that rule or policy."    Clevenger v. Nev.
                   Emp't Sec. Dep't, 105 Nev. 145, 150, 770 P.2d 866, 868 (1989). The
                   intentional violation or willful disregard requirement is consistent with
                   the general definition of misconduct in the unemployment benefits
                   context, which provides that misconduct is "a deliberate violation or
                   disregard on the part of the employee of standards of behavior which his
                   employer has the right to expect."    Barnum v. Williams, 84 Nev. 37, 41,
                   436 P.2d 219, 222 (1968) (internal quotation marks omitted).
                               Thus, the threshold questions we must address are whether
                   Bristlecone had a policy requiring Goodwin to maintain certification as an
                   adult drug court administrator, and if so, whether that policy had a
                   reasonable relationship to the work performed. We answer both questions
                   in the affirmative.
                   Goodwin was required to maintain her certification
                               Goodwin initially argues that ESD failed to show that
                   Bristlecone's policy required her to be certified in order to perform her job
                   as a drug court administrator. ESD counters that Bristlecone required
                   Goodwin to be certified, both by Bristlecone's policy and by law. In
                   addition, ESD argues Bristlecone hired Goodwin as a drug counselor and,
                   accordingly, she was subject to Bristlecone's employment policy requiring
                   all drug counselors to maintain certification.



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                                 This court reviews a decision denying unemployment benefits
                   to determine whether the administrative agency acted arbitrarily or
                   capriciously. See McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553
                   (1982). Generally, this court looks to whether substantial evidence
                   supports the agency's decision.    Bundle y, 122 Nev. at 1445, 148 P.3d at
                   754. More particularly, we review questions of law de novo, but fact-based
                   legal conclusions are entitled to deference.   Id.   "Substantial evidence is
                   that which a reasonable mind might accept as adequate to support a
                   conclusion."3 United Exposition Serv. Co. v. State Indus. Ins. Sys.,     109
                   Nev. 421, 424,851 P.2d 423, 424-25 (1993).
                                 NRS Chapter 641C governs intern certification for alcohol and
                   drug counseling. Under that chapter, it is a misdemeanor offense for a
                   person to "engage in the practice of counseling alcohol and drug abusers"
                   without a proper certification. NRS 641C.900 NRS 641C.950. Thus, if
                   Goodwin's job duties required her to practice counseling, and she engaged
                   in any counseling whatsoever, then the law required her to maintain her
                   intern certification or to obtain counselor certification. See NRS 641C.900;
                   NRS 641C.950.
                                 The appeals referee concluded that Bristlecone's employment
                   policy required Goodwin to maintain her certification. At the hearing,
                   ESD submitted into evidence Bristlecone's written employment policy,
                   which stated that adult and family drug court administrators are required
                   to provide direct client services, including individual or group counseling.


                         3 The Nevada Revised Statutes similarly define substantial evidence
                   as "evidence which a reasonable mind might accept as adequate to support
                   a conclusion." NRS 233B.135(4), amended by 2015 Nev. Stat., ch. 160,
                   § 11, at 711.


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                   Additionally, the policy stated that Bristlecone's drug court administrators
                   must maintain certified intern status where appropriate. Moreover,
                   Goodwin testified that she engaged in 21,000 hours of counseling while
                   employed at Bristlecone.
                               Therefore, we conclude Goodwin's job description and her
                   testimony provide substantial evidence to support the appeals referee's
                   findings that Bristlecone's certification requirement applied to Goodwin,
                   who worked as a drug court administrator, and that this requirement was
                   reasonably related to Goodwin's employment. Thus, the issue of whether
                   Goodwin's behavior constituted an intentional violation or willful
                   disregard of that policy must now be addressed. See Clevenger, 105 Nev.
                   at 150, 770 P.2d at 868.
                   Failure to maintain required certification constituted disqualifying
                   misconduct
                               Initially, the employer bears the burden of showing by a
                   preponderance of the evidence that the employee engaged in disqualifying
                   misconduct under NRS 612.385. Bundley, 122 Nev. at 1447-48, 148 P.3d
                   at 755-56. If the employer meets this burden, the burden then "shifts to
                   the former employee to demonstrate that the conduct cannot be
                   characterized as misconduct within the meaning of NRS 612.385, for
                   example, by explaining the conduct and showing that it was reasonable
                   and justified under the circumstances."     Id. at 1448, 148 P.3d at 756.
                   Findings of misconduct present mixed questions of law and fact, which are
                   generally given deference unless they are not supported by substantial
                   evidence. Garman v. State, Emp't Sec. Dep't, 102 Nev. 563, 565, 729 P.2d
                   1335, 1336 (1986).




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                                 The Nevada Supreme Court has generally determined that an
                   employee's violation of an employment policy is an intentional violation or
                   willful disregard when the employee knows of the policy yet deliberately
                   chooses not to follow the policy.    See, e.g., Fremont Hotel & Casino v.
                   Esposito, 104 Nev. 394, 398, 760 P.2d 122, 124 (1988) (concluding that a
                   cocktail server's refusal to take a drug and alcohol test after being
                   reminded that the union-employer contract required testing was an
                   intentional violation of that policy); Barnum, 84 Nev. at 42, 436 P.2d at
                   222 (concluding that an employee driver intentionally violated a company
                   policy when he deliberately removed a mandated safety tracking device
                   from a company truck despite knowing the device was required on all
                   trips).
                                 The Nevada Supreme Court has also determined that a
                   substantial disregard of the employer's interest may be demonstrated
                   when the violation of an employment policy is the result of a lack of action.
                   For example, in Kraft v. Nevada Employment Security Department,           102
                   Nev. 191, 194-95, 717 P.2d 583, 585 (1986), the court concluded that an
                   employee's failure to notify his employer of his absence in accordance with
                   the employer's notice policy constituted disqualifying misconduct. There,
                   the employee failed to notify his employer that he would not be at work
                   when his car broke down on the way to work.       Id. at 192-93, 717 P.2d at
                   584. The employee in Kraft explained that he did not notify his employer
                   of his absence because there were not any telephones in the immediate
                   vicinity.   Id.   The court, however, concluded that substantial evidence
                   supported the agency's finding that a telephone was probably nearby and
                   that the employee's failure to make any effort to locate a telephone for



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over three hours constituted misconduct. Id. at 194-95, 717 P.2d at 584-
85.
            In analyzing the employee's circumstances in Kraft, the court
stated that "there must be a point when inaction can only be viewed as the
product of indifference." Id. at 194, 717 P.2d at 585. The court declared
that "it is the duty of the employee to have regard for the interests of his
employer and for his own job security. . . . Although circumstances may
vary this duty, good faith on the part of the employee must always
appear."   Id. (internal quotations omitted). The court concluded the
employee failed to act reasonably and in good faith under the
circumstances; therefore, his inaction constituted disqualifying
misconduct. Id. at 194-95, 717 P.2d at 585.
            While the Nevada Supreme Court has never addressed
whether an employee's failure to maintain a certification in accordance
with an employer policy constitutes disqualifying misconduct, other
jurisdictions have. See, e.g., Holt v. Iowa Dep't of Job Serv., 318 N.W.2d 28
(Iowa Ct. App. 1982); Chacko v. Commonwealth, Unemployment Comp.
Bd. of Review,     410 A.2d 418 (Pa. Commw. Ct. 1980);             Hicks v.
Commonwealth, Unemployment Comp. Bd. of Review,           383 A.2d 577 (Pa.
Commw. Ct. 1978). As a Pennsylvania court stated, "academic failure
after a good-faith effort would not be willful misconduct," but where the
employee accepted a position knowing doctoral studies were required,
refusing to pursue those studies without good reason constituted, among
other things, an "intentional and substantial disregard" inimical to the
employer's interest and was deemed willful misconduct.     Millersville State




                                     11
                   Coll., Pa. Dep't of Educ. v. Commonwealth, Unemployment Comp. Bd. of
                   Review, 335 A.2d 857, 860 (Pa. Commw. Ct. 1975). 4
                                The burden of demonstrating a good-faith effort is on the
                   employee; the employee does not meet this burden unless the employee
                   supports a good-faith claim with evidence. See Chacko, 410 A.2d at 419;
                   see also Bundley, 122 Nev. at 1447-48, 148 P.3d at 755-56. The employee
                   may, however, meet this burden by providing evidence that an unforeseen
                   circumstance thwarted a good-faith attempt to satisfy a license
                   requirement.      See Holt, 318 N.W.2d at 30 (concluding that failure to
                   comply with an employer's license requirement was not a willful disregard
                   or intentional violation of the requirement because the employee's spouse
                   became unexpectedly ill requiring the employee to take care of the couple's
                   four children).
                               We find the rationale behind these decisions instructive when
                   considered in light of existing Nevada law regarding misconduct in the
                   unemployment benefits context. In this case, substantial evidence
                   supports the conclusion that Goodwin had ample notice of the law
                   pertaining to certification and of Bristlecone's certification requirement,


                         4 Goodwin    argues, unconvincingly, that Pennsylvania applies its
                   misconduct statute differently than Nevada because Pennsylvania denies
                   unemployment benefits to employees terminated due to incarceration,
                   whereas Nevada does not. We reject this argument because Pennsylvania
                   does not apply a bright-line rule; rather, the misconduct determination is
                   based on the circumstances of each case. See Wertman v. Commonwealth,
                   Unemployment Comp. Bd. of Review, 520 A.2d 900, 903 (Pa. Commw. Ct.
                   1987) (distinguishing cases where an employee incarcerated due to an
                   inability to post bail cannot be said to have engaged in willful misconduct,
                   whereas an employee incarcerated as a result of a conviction could yield a
                   finding of willful misconduct).

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                   but failed to take steps to ensure that she fulfilled this requirement on
                   time, despite having ten years in which to obtain her degree. Given the
                   clear requirement and the length of time available to comply, we conclude
                   that ESD met its initial burden of showing that Goodwin's failure to
                   maintain her certification constituted misconduct.   See Bundley, 122 Nev.
                   at 1447-48, 148 P.3d at 755-56. Thus, the burden shifted to Goodwin to
                   provide evidence demonstrating that she made a reasonable, good-faith
                   attempt to comply with the certification requirement and that her failure
                   to comply was justified under the circumstances of this case.
                               Implicit in the appeals referee's decision concluding that
                   Goodwin's actions constituted misconduct is the finding that the failure to
                   take sufficient courses to ensure that she graduated on time was neither
                   reasonable nor in good faith under the circumstances. We are generally
                   bound by the fact-based legal conclusions made by the administrative
                   agency, such that, "[e]ven if we disagreed with [the agency's] finding, we
                   would be powerless to set it aside" if it is supported by substantial
                   evidence. See Kraft, 102 Nev. at 194, 717 P.2d at 585 (citing McCracken,
                   98 Nev. at 31, 639 P.2d at 553). Further, we cannot pass on the credibility
                   of a witness. Lellis v. Archie, 89 Nev. 550, 554, 516 P.2d 469, 471 (1973).
                   Thus, we must examine the record that was before the administrative
                   agency to ascertain whether the agency acted arbitrarily or capriciously.
                   Bundley, 122 Nev. at 1444, 148 P.3d at 754.
                               Here, Goodwin's primary explanation for not completing the
                   coursework was due to her work and family responsibilities. Goodwin,
                   however, did not assert, and the record does not contain evidence showing,
                   that she did not understand her family responsibilities at the time she
                   applied for her intern certification or when she accepted her position with

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                   Bristlecone, such that she would not have known that she would need to
                   balance those responsibilities in order to ensure her timely graduation.
                   Cf. Holt, 318 N.W.2d at 30. Nor did she provide sufficient evidence to
                   demonstrate that her progress towards her degree constituted a
                   reasonable, although ultimately unsuccessful, attempt to obtain her
                   degree in time to ensure her continuous compliance with the certification
                   requirement.
                               In particular, Goodwin testified that she was only able to take,
                   at most, three courses per semester at TMCC and could not work part
                   time to allow her to take more courses. Goodwin, however, failed to
                   provide any evidence demonstrating the number of courses she took at any
                   given time throughout her tenure at TMCC; indeed, the record is devoid of
                   any documentary evidence of her progress as she worked toward her
                   degree. Therefore, there was a lack of evidence on which the appeals
                   referee could have found that Goodwin made a reasonable, good-faith
                   effort to graduate on time.   See Wright v. State, Dep't of Motor Vehicles,
                   121 Nev. 122, 125, 110 P.3d 1066, 1068 (2005) (explaining that a lack of
                   evidence may provide a basis for upholding an administrative agency's
                   decision under the substantial evidence standard).
                               Moreover, Goodwin testified that she finally received her
                   associate's degree 11 years after initially enrolling at TMCC (which was
                   also 9 years after receiving her counselor intern certification). The
                   appeals referee determined that Goodwin should have been focusing her
                   efforts on her bachelor's degree. When she finally transferred to Walden
                   University, only one year remained before her certification expired.
                   Goodwin provided no evidence showing how many credits she earned



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                   while attending TMCC or how many credits Walden accepted to apply
                   towards her bachelor's degree.
                               Further, although Goodwin asserts that she maintained
                   contact with the Board and thought she would receive an extension,
                   nothing in the record demonstrates that Goodwin sought such an
                   extension until after the ten-year period had already expired. Thus, this
                   effort does not show that Goodwin took timely and reasonable steps to try
                   to comply with the certification requirement.
                               We cannot substitute our judgment for that of the appeals
                   referee regarding the weight of evidence. See Bundley, 122 Nev. at 1445,
                   148 P.3d at 754. In this case, Goodwin presented insufficient evidence on
                   which the appeals referee could conclude she made a reasonable, good-
                   faith attempt at meeting the certification requirement.    See Wright, 121
                   Nev. at 125, 110 P.3d at 1068. Thus, we are bound by law to uphold the
                   appeals referee's determination. See Kraft, 102 Nev. at 194, 717 P.2d at
                   585.
                                                 CONCLUSION
                               On this record, we conclude that substantial evidence supports
                   the appeals referee's finding that Goodwin's failure to comply with
                   Bristlecone's certification policy amounted to a substantial disregard of a
                   reasonable employer policy—an action that amounted to disqualifying
                   misconduct. See Garman, 102 Nev. at 566, 729 P.2d at 1337. Further,
                   because Goodwin failed to provide sufficient evidence regarding the
                   progress she made in attempting to timely graduate, we conclude she did
                   not satisfy her burden of proving she made a reasonable and good-faith
                   attempt to meet the employer's requirements. Accordingly, because we
                   conclude the administrative agency's decision was not arbitrary,

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                   capricious, or an abuse of discretion, NRS 233B.135(3)(f), we affirm the
                   district court's order denying judicial review.



                                                                                   CJ
                                                        Gibbons

                   We concur:



                   Tao


                                                   J.
                   Silver




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