GROUP v. HORTON (2021)

ORDER VACATING PRIOR ORDER, VACATING DISTRICT COURT ORDER AND REMANDING

On May 25, 2021, this court entered an Order Reversing and Remanding in this matter, in which we reversed the district court's grant of a petition for judicial review of the appeals officer's decision regarding apportionment in a workers’ compensation claim. Respondent filed a petition for rehearing, asserting that this court “overlooked, misapplied, or failed to consider a controlling statute,” due to recently enacted legislation, S.B. 289, which amended NRS 616C.490, and therefore also supersedes NAC 616C.490. This legislation became effective after we entered the Order Reversing and Remanding, see S.B. 289 § 12, 81st. Leg. (Nev. 2021) (providing that the act is not effective until “passage and approval”), but was in effect at the time the petition for rehearing was filed and remittitur has not issued. The recently enacted legislation is directly related to the issues presented in the underlying case. As such, we conclude that our prior Order Reversing and Remanding should be vacated and the case reevaluated in light of the newly enacted legislation. Cf. Hsu v. County of Clark, 123 Nev. 625, 630, 173 P.3d 724, 728-29 (2007) (recognizing federal caselaw holding, in the context of the law of the case doctrine, “that a court may revisit a prior ruling when ․ there has been an intervening change in controlling law”); McMahan v. Toto, 311 F.3d 1077, 1081 (11th Cir. 2002) (holding that the court “still [has] the authority, power, and duty to modify” its prior ruling, even after the court had already denied rehearing, when the applicable law had changed and the case had not been returned to the lower court yet).¹

We further conclude, however, that the consideration and application of the recently enacted legislation should not be conducted in the first instance in this appeal. Therefore, we vacate our prior Order Reversing and Remanding, vacate the district court's order granting the petition for judicial review, and remand this matter to the district court to remand to the appeals officer to apply the recently enacted legislation.

It is so ORDERED.

FOOTNOTES

1.   As such, we do not determine whether the requirements for granting a petition for rehearing under NRAP 40 have been met, as the petition is now moot.