APA Judicial Review in Nebraska: Statement-of-Errors Rule Inapplicable; Issues Must Be Pleaded in the Petition for Review

1. Introduction

In Gay v. Board of Engineers & Architects, 321 Neb. 712 (July 2, 2026), the Nebraska Supreme Court reviewed discipline imposed by the Nebraska Board of Engineers and Architects (the “Board”) on licensed architect/engineer Tobias S. Gay. The Board revoked Gay’s licenses and barred him from reapplying for licensure for five years after concluding he submitted false or forged continuing-education materials during an audit.

The case presented two recurring administrative-law issues: (1) how issues are preserved in judicial review proceedings under Nebraska’s Administrative Procedure Act (“APA”), and (2) what procedural due process requires in professional discipline hearings, particularly whether an agency must affirmatively advise a respondent of rights (e.g., right to counsel, cross-examination) and potential penalties before the hearing.

The Court’s most significant doctrinal clarification is procedural: Neb. Ct. R. § 6-1518(B) does not apply to APA judicial review proceedings in district court; therefore, a “statement of errors” does not substitute for (and cannot cure defects in) the statutory requirement that the petition for review itself set forth the petitioner’s reasons for relief under § 84-917(2)(b)(vi).

2. Summary of the Opinion

The Supreme Court affirmed the district court, which had affirmed the Board’s discipline. The Court held:

  • Issue preservation: A “statement of errors” under Neb. Ct. R. § 6-1518(B) (rev. 2025) is required only for appeals from county court to district court, not for APA review proceedings in district court. Accordingly, under § 84-917(2)(b)(vi), the petition for review must state the reasons relief should be granted to properly present and preserve issues for district court consideration.
  • Due process: Although Gay did not properly preserve his due process claim in his petition for review, the Court conducted plain error review and found none. Due process required reasonable notice and an opportunity to be heard, not prehearing advisements of procedural rights and penalties.
  • Discipline: The revocation and five-year bar were authorized by statute, supported by competent evidence, and not arbitrary, capricious, or unreasonable—especially given the admitted dishonesty and the prior settlement agreement allowing earlier misconduct to be considered.

A separate concurrence by Bergevin, J., agreed with the constitutional holding but urged policymakers to consider requiring agencies to provide more robust prehearing notices than the constitutional minimum.

3. Analysis

3.1. Precedents Cited

A. Standards of review under the APA

The Court anchored its review in Hauxwell v. Middle Republican NRD, emphasizing that APA judicial review is for errors appearing on the record and asks whether the decision conforms to law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable. This framework shaped the Court’s approach to both the due process claim (treated as a legal question) and the challenge to the sanction (reviewing statutory authority, evidentiary support, and reasonableness).

For legal questions and statutory interpretation, the Court relied on American Exch. Bank v. Topp, reinforcing independent appellate review. It similarly applied In re Claim of Roberts for Attorney Fees to treat Nebraska Supreme Court rules “like statutes,” supporting an independent construction of § 6-1518’s text and structure.

B. Issue preservation in APA judicial review

The Court reaffirmed longstanding preservation doctrine from Skaggs v. Nebraska State Patrol and E.M. v. Nebraska Dept. of Health & Human Servs.: issues not presented in the petition for judicial review are not properly preserved for the district court. Against that backdrop, the Court addressed whether the court-rule “statement of errors” mechanism displaced or satisfied the statutory pleading requirement.

Methodologically, the Court invoked interpretive canons from Hotz v. Hotz (plain meaning; read provisions together; avoid surplusage; avoid absurdity) to parse the structure of Neb. Ct. R. § 6-1518 and conclude that subsection (B) applies only “in an appeal to the district court,” i.e., county court appeals, not APA review proceedings.

The Court further relied on Kozal v. Nebraska Liquor Control Comm. for the critical distinction that an APA proceeding in district court is not an “appeal.” That distinction undercut Gay’s argument that § 6-1518(B)’s “appeal to the district court” language should be read to include APA review.

C. Plain error pathway despite lack of preservation

While insisting the due process issue was not properly preserved in the petition, the Court proceeded to plain error review, citing Peterson v. Brandon Coverdell Constr. and State v. Buol for the proposition that where the district court nonetheless reviews for plain error, the higher appellate court will likewise do so. The definition of plain error was taken from Swicord v. Police Stds. Adv. Council.

D. Due process content in administrative adjudications

On the constitutional merits, the Court relied on Prokop v. Lower Loup NRD for the key due process propositions: due process does not guarantee a particular form of procedure, but does require reasonable notice and an opportunity to be heard appropriate to the proceeding. The Court reiterated that in administrative adjudications, due process includes notice, identification of the accuser, factual basis, time and opportunity to present evidence, and a hearing before an impartial board—again drawn from Prokop v. Lower Loup NRD.

Gay’s waiver framing drew a comparison to criminal waiver doctrine (though not adopted as a requirement here), citing State v. Bret for the general concept that waiver is the intentional relinquishment of a known right.

E. Scope of review tied to petition’s stated grounds

In discussing how petition-framed grounds control review, the Court cited Cain v. Custer Cty. Bd. of Equal. (and again E.M. v. Nebraska Dept. of Health & Human Servs.) to justify addressing the final two assignments together because they fell within the petition’s stated ground (excessiveness).

F. Concurrence on “more than minimum” process

In concurrence, Frye v. Haas was cited for the principle that legislatures may provide procedures exceeding constitutional minima. The concurrence also referenced In re Interest of Jordon B. (meaningful time and manner) and Mathews v. Eldridge (balancing approach to procedural due process) to support the policy argument that fuller prehearing advisements could improve fairness even if not constitutionally compelled.

3.2. Legal Reasoning

A. The core procedural holding: § 6-1518(B) does not apply to APA review

The Court’s principal doctrinal clarification is a rule of appellate/administrative procedure:

  • Neb. Ct. R. § 6-1518(B) (statement of errors) applies only to “appeals from the county court to the district court.”
  • APA judicial review in district court is not an “appeal,” and thus subsection (B) is inapplicable.
  • Therefore, for APA review, the operative preservation requirement remains statutory: the petition for review must state the petitioner’s reasons for relief under § 84-917(2)(b)(vi).

The Court reached this result by close textual reading and structural inference: subsection (B) follows a county-court-focused subsection (A), while “Bills of Exceptions From Other Tribunals” (including APA matters) appears elsewhere in § 6-1518 (subsection (D)). Reading the rule as a whole, the Court found Gay’s interpretation would disregard structure and context and risk surplusage.

Practically, this holding preserves a clear dividing line: county-court appellate procedure uses a statement-of-errors regime; APA judicial review uses a petition-pleading regime.

B. Preservation consequence: pleading controls issues; statement cannot cure omissions

Applying that rule, Gay’s due process claim was not preserved because his petition alleged only that the five-year revocation was “excessive.” Even though Gay later filed a statement of errors raising due process, the Court treated that filing as legally irrelevant to preservation in APA review.

The Court did acknowledge a practical problem: the petition must be filed within 30 days after service of the agency decision, often before the administrative bill of exceptions is prepared, and review counsel may not have participated in the agency hearing. But the Court did not alter the statutory scheme; instead, it left that difficulty as a reality of the current framework.

C. Due process: no constitutional requirement to pre-advise rights and penalties

On the merits, the Court rejected the proposition that due process required the Board to advise Gay prehearing of his procedural rights (including counsel) and potential penalties. The Court emphasized that due process is satisfied by reasonable notice and a meaningful opportunity to be heard appropriate to the proceeding.

Several factual features supported the conclusion that the process here met constitutional minima:

  • Gay received a petition detailing the accusations and the factual basis (continuing education audit discrepancies, allegedly forged “wet signatures,” and sponsor affidavit evidence).
  • The notice set a hearing time and place and referenced hearing “as soon thereafter as counsel may be heard,” indicating counsel participation was contemplated.
  • The hearing officer described procedures and ensured opportunities for cross-examination and presentation of evidence.
  • Gay had prior experience with Board discipline and had been represented by counsel in the earlier matter (even though it ended in settlement).
  • Gay did not deny the accusations; he admitted he “jacked up the hours,” apologized, and did not challenge key evidence (including the sponsor affidavit) at the hearing.

Even under plain error review, the Court found no deficiency so clear and fundamental that it threatened the integrity, reputation, or fairness of the process.

D. Discipline: authorized, evidentially supported, and reasonable

The Court upheld the sanction for three reasons that track the APA review triad (lawfulness, evidentiary support, and reasonableness):

  1. Conforms to law: The Board had statutory authority under § 81-3444(2)(d) to revoke and to limit the right to practice for a specified time under conditions found necessary and proper.
  2. Supported by competent evidence: The record included audit results, certificates, and the sponsor’s affidavit, and Gay effectively conceded the core misconduct—both initial submission of fraudulent materials and additional fraudulent submissions after questions arose.
  3. Not arbitrary/capricious/unreasonable: The Court rejected the attempt to characterize continuing-education dishonesty as unrelated to professional fitness. It pointed to the Legislature’s licensure expectations under § 81-3434(2) (compliance with laws, professional conduct, good ethical character) and emphasized a pattern of noncompliance when combined with the earlier settlement agreement’s lookback provision.

The Court also disposed of the “reform” argument succinctly: the record contained no suitable evidence of reform, and the district court could not consider evidence not in the record.

3.3. Impact

A. Procedural impact on APA practitioners

The decision’s enduring impact will likely be its bright-line procedural instruction: In APA judicial review, do not rely on a statement of errors to preserve issues; plead them in the petition for review. Counsel who enter after the agency hearing must treat the petition as the principal vehicle to frame all anticipated grounds (procedural, constitutional, evidentiary, statutory, and sanction-based), even before the bill of exceptions is available.

This raises practical incentives:

  • to draft broader petitions that preserve multiple alternative theories (while remaining good-faith and grounded), and
  • to seek prompt access to agency files and exhibits immediately upon retention to identify possible procedural defects.

B. Substantive impact on professional discipline

Substantively, the opinion reinforces that dishonesty in licensure compliance (e.g., continuing education reporting) is professionally central, not peripheral. Boards and reviewing courts may view falsification in regulatory filings as bearing directly on ethical character and fitness to practice, even if no client project was harmed.

C. Policy impact signaled by the concurrence

The concurrence provides a roadmap for reform without constitutionalizing it: agencies could be required—by statute, regulation, or Attorney General guidance—to give prehearing notices that plainly state rights (counsel, cross-examination, evidence presentation), key procedures, and the range of potential sanctions. While not legally required by this decision, the concurrence suggests this as a fairness-enhancing measure that could reduce later litigation over “meaningful” participation.

4. Complex Concepts Simplified

  • APA judicial review vs. “appeal”: In Nebraska, a district court’s review of an agency decision under the APA is a specialized review proceeding, not an “appeal” in the ordinary sense. That distinction matters because some court rules (like § 6-1518(B)) apply only to actual appeals.
  • “Statement of errors”: A filing used in certain appellate pathways (notably county court to district court) that lists alleged errors. This case holds it is not a preservation tool in APA district-court review.
  • Preservation: The requirement that you raise an issue in the proper place and time (here, in the APA petition for review) so the reviewing court may consider it.
  • Plain error review: A limited safety valve allowing a court to correct an obvious, serious error affecting the fairness and integrity of the process even if not properly raised.
  • Procedural due process: The constitutional baseline of fair procedure—typically notice of the charges and a real chance to respond before an impartial decisionmaker. It does not always require agencies to provide a “rights advisement” comparable to a criminal court.
  • Arbitrary/capricious/unreasonable: A deferential review concept. Even if a court might have chosen a different sanction, it will uphold the agency if the outcome is rationally connected to the facts and law.
  • “Wet signature”: An ink signature on paper, contrasted with a digital/electronic signature. Here, the “wet-signed” certificates were significant because the sponsor allegedly never issued wet-signed certificates, supporting the forgery finding.

5. Conclusion

Gay v. Board of Engineers & Architects establishes an important procedural clarification for Nebraska administrative litigation: the statement-of-errors requirement in Neb. Ct. R. § 6-1518(B) applies only to county court appeals, not to APA judicial review proceedings. Consequently, parties must plead their issues in the petition for review to preserve them under § 84-917(2)(b)(vi).

On the merits, the Court reaffirmed minimal due process requirements in agency discipline hearings—reasonable notice and an opportunity to be heard—while signaling (through concurrence) that policymakers may choose to require more robust prehearing advisements. Finally, the Court underscored that dishonesty in regulatory compliance is a serious professional violation and upheld strong discipline where supported by evidence and consistent with statutory authority.