MAY 2 6 2016 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 67322 

FILED 

JAMES DUNNING, 

Appellant, 

vs. 

NEVADA STATE BOARD OF 

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. 

2We have 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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