Rule 1-074.Administrative appeals; statutory review by district court of administrative decisions or orders

(re transcripts)

If a written transcription is made of an audio or video transcript, and all the parties agree to its accuracy, the written transcription should be made a part of the record on appeal. In the event of any discrepancies between the official audio or video transcript and the written transcription, the audio or video transcript shall control.

(re citations to administrative rules)

Any references to administrative rules should be made by citation to the specific page in the record where the rule appears rather than to any other codification of the rule that may exist outside of the record on appeal.

(re applicability of Rule 1-007.1 NMRA)

Any motions filed pursuant to this rule are subject to the general rules governing motions in Rule 1-007.1 NMRA.

(re stays)

Consistent with the broad applicability of Section 39-3-1.1 NMSA 1978 and the overall approach of Rule 1-074 NMRA, paragraph Q of the rule is intended to apply in any case in which a party appealing to the district court from the action of an administrative agency seeks a stay of the action under review. The court has power, during the pendency of an appeal, to stay the agency action in appropriate circumstances. See Tenneco Oil Co. v. N.M. Water Quality Control Comm’n, 105 N.M. 708, 736 P.2d 986 (Ct. App. 1986). Whether to grant a stay rests in the sound discretion of the district court. Id.; cf. 5 U.S.C. § 705 (reviewing court may, “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury, . . . issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings”). An appellant may move for a stay at any time after filing the notice of appeal. Cf. Rule 1-062(D) NMRA (appellant in civil action may obtain stay of money judgment “at or after the time of filing the notice of appeal”). The motion is governed by the district court’s regular procedures for motion practice.

Under the rule requiring exhaustion of administrative remedies, a party seeking a stay ordinarily would be expected to apply first to the agency involved. Tenneco Oil Co., 105 N.M. at 710, 736 P.2d at 988. Application may be made initially to the district court if prior recourse to the agency would be impracticable. Initial resort to the agency might be impracticable, for instance, if the agency had no procedure for granting a stay. A motion for a stay of agency action pending appeal must state that the agency previously had denied a request for a stay or must explain why requesting a stay from the agency initially would be impracticable. See Fed. R. App. P. 18(a)(2)(A).

The factors that a court must consider in deciding whether to stay agency action pending appeal are set forth in Tenneco Oil Co. See 105 N.M. at 710, 736 P.2d at 988. These factors have been widely accepted judicially. See 16A Charles A. Wright et al., Federal Practice and Procedure § 3964, at 401-02 n.13 (1999); Louis L. Jaffe, Judicial Control of Administrative Action 689 (1965). The court may weigh the factors, giving greater weight to one or another of them as the circumstances require. See Ohio ex rel. Celebrezze v. Nuclear Reg. Comm’n, 812 F.2d 288 (6th Cir. 1987). However, some showing as to each factor must be made before a stay can be granted. Tenneco Oil Co., 105 N.M. at 710, 736 P.2d at 988. Some courts hold that where a strong showing has been made as to the other three factors, a likelihood of success on the merits is sufficiently established if the appellant can show “serious questions” going to the merits. See, e.g., Celebrezze, 812 F.2d at 290 (internal quotation marks and citation omitted).

The administrative record may not be available to the district court when a motion for stay is made. The motion should concisely and accurately summarize the administrative proceedings to the extent they are relevant to the district court’s consideration of the motion. If the agency’s findings on disputed factual matters are at issue, the summary should include the substance of all the evidence presented to the agency relating to the disputed matters. See Nat’l Council on Compensation Ins. v. N.M. State Corp. Comm’n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988) (under “whole record” review of agency factfinding, court views evidence in light most favorable to agency decision but also considers any contravening evidence); Martinez v. S.W. Landfills, Inc., 115 N.M. 181, 184-85, 848 P.2d 1108, 1111-12 (Ct. App. 1993) (party challenging sufficiency of evidence to support agency action must set forth substance of all relevant evidence in brief and explain why evidence, viewed favorably to agency, on balance fails to support agency’s decision).

The appellant may attach as exhibits to the motion any available, relevant parts of the agency record that would help inform the court with respect to the motion. Cf. Pincheira v. Allstate Ins. Co., 2004-NMCA-030, ¶ 8, 135 N.M. 220, 86 P.3d 645 (party seeking writ of error to review district court ruling may attach to petition any relevant portions of record before district court); Fed. R. App. P. 18(a)(2)(B)(iii). If the agency has provided a statement of reasons why a prior request to the agency for a stay was denied, the agency’s statement must be included as an attachment. Cf. Fed. R. App. P. 18(a)(2)(A)(ii). Any party may include affidavits or other admissible evidence to establish the factors relevant to a stay. Material submitted in support of or in opposition to a stay should not be deemed part of the record on appeal.

The court may condition relief on the posting of a bond or other security to protect the interests that might be adversely affected by a stay. Cf. Rule 1-062(C) NMRA (on appeal from injunction, appellate court may grant stay “upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party”); Rule 1-062(D) NMRA (supersedeas bond for stay of money judgment); Fed. R. App. P. 18(b).

Under New Mexico law an aggrieved party may, in some circumstances, bring an independent declaratory judgment action against an agency to challenge a disputed agency action as an alternative to pursuing an administrative appeal. See Smith v. City of Santa Fe, 2007-NMSC-055, 142 N.M. 786, 171 P.3d 300. New Mexico courts have applied the same factors in deciding whether to grant preliminary injunctive relief as apply to the question of granting a stay of administrative action under Tenneco Oil Co. See LaBalbo v. Hymes, 115 N.M. 314, 317-18, 850 P.2d 1017, 1020-21 (Ct. App. 1993).

(re certification)

Section 39-3-1.1(F) NMSA 1978 allows a district court to certify a final decision appealed to the district court from an administrative agency directly to the court of appeals if it involves an issue of substantial public interest that should be decided by the court of appeals. In drafting the proposed amendment providing standards for certification, the drafters considered Section 39-3-1.1 NMSA 1978, Rule 1-074 NMRA, Rule 12-608 NMRA, Wyoming’s Rules of Appellate Procedures, Rule 12-Judicial Review of Administrative Action, specifically, W.R.A.P. Rule 12.09 Extent of Review, and its enabling legislation.

The drafters found that the criteria set out in the Wyoming rule to be very helpful and believe that the same complements current New Mexico case law. The drafters also incorporated specific language the court of appeals has utilized in defining “substantial public interest.” See Jicarilla Apache Nation v. Rio Arriba County Assessor, 2004-NMCA-055, 135 N.M. 630, 92 P.3d 642 (case law suggests that an issue is one of “substantial public interest” when it raises a question of first impression that is likely to recur, and when the need for uniformity is great). Although the drafters initially discussed including “complex factual record” as one of the objective criteria a district court should consider in addressing “substantial public interest,” they ultimately concluded this is an argument to be made in the context of requesting certification, and not a separate objective criterion. For example, in support of a motion for certification, one could argue that an interest of judicial economy will be served where the record is voluminous and complex. Such an argument would be made in requesting relief pursuant to subparagraph S(6), i.e., “whether an appeal from any district court determination is highly likely such that certification in the first instance would serve the interests of judicial economy and reduce the litigation expenses to the parties.” Finally, the drafters also reviewed a New Mexico Law Review Article, Seth D. Montgomery & Andrew S. Montgomery, Jurisdiction As May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico, 36 N.M. L. Rev. 215 (2006). The drafters felt that the article raised some interesting issues concerning statutory authorization. However, they ultimately concluded that the proposed amendment reflects objective criteria that the district court may utilize in assessing “substantial public interest,” and therefore the concerns raised in the article were not an issue.

(re submission for decision)

Upon completion of oral argument, or upon the notification of the district court that no party requests for oral argument, the case should be considered submitted for purposes of Rule 1-054.1 NMRA.

[Adopted by Supreme Court Order No. 08-8300-041, effective December 15, 2008; as amended by Supreme Court Order No. 13-8300-017, effective for all cases pending or filed on or after December 31, 2013.]