{
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  "name": "R. STANLEY MORGAN, and A. DEAN BRIDGES, Petitioners v. N.C. DEPARTMENT OF TRANSPORTATION, RIGHT OF WAY BRANCH, Respondent",
  "name_abbreviation": "Morgan v. N.C. Department of Transportation",
  "decision_date": "1996-10-15",
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    "judges": [
      "Judges JOHNSON and LEWIS concur."
    ],
    "parties": [
      "R. STANLEY MORGAN, and A. DEAN BRIDGES, Petitioners v. N.C. DEPARTMENT OF TRANSPORTATION, RIGHT OF WAY BRANCH, Respondent"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nIn early 1994, the North Carolina Department of Transportation (DOT) posted a vacancy notice for the position of area negotiator. Petitioners R. Stanley Morgan and A. Dean Bridges interviewed for the position, but were not selected.\nShortly thereafter, DOT created a new area negotiator position; however, this additional position was not posted because the personnel director determined that the position could be filled from the applicant pool for the first vacancy. In reaching his decision, the personnel director relied on a memorandum from the Office of State Personnel which stated:\nThis is in response to your question concerning the necessity of posting and/or listing a vacancy which is identical to one previously announced. We have consistently granted a waiver of the posting/listing requirement when a second vacancy occurs within 60 days of the listing date of the first vacancy as long as the vacancies are identical, including the description of the position, the knowledge and skill requirements, and geographical location.\nPetitioners alleged at a hearing before an Administrative Law Judge (AU) that DOT violated the posting requirements of N.C. Gen. Stat. \u00a7 126-7.1(a) (1995) when it failed to post the second vacancy. The AU agreed and ordered DOT to discharge the person selected for the unposted position. The AU declined to order attorney\u2019s fees under N.C. Gen. Stat. \u00a7 126-4(11) (1995) since there was not discrimination, reinstatement, or back pay.\nThe State Personnel Commission (\u201cCommission\u201d) upheld the AU\u2019s denial of attorney\u2019s fees. The petitioners then appealed to Forsyth County Superior Court which issued an order allowing attorney\u2019s fees under N.C. Gen. Stat. \u00a7 6-19.1 (1986). DOT appeals from that order.\nThe issue is whether the trial court erred in awarding attorney\u2019s fees under N.C.G.S. \u00a7 6-19.1 in this case. Finding error, we reverse.\nN.C.G.S. \u00a7 126-4(11) authorizes the State Personnel Commission to establish rules regarding the assessment of attorney\u2019s fees \u201c[i]n cases where the Commission finds discrimination or orders reinstatement or back pay whether (i) heard by the Commission or (ii) appealed for limited review after settlement or (iii) resolved at the agency level.\u201d Acting under that authority, the State Personnel Commission determined that it may only award attorney\u2019s fees where there has been discrimination, reinstatement or back pay. N.C. Admin. Code tit. 25, r. 1B.0414 (February 1996). Since the subject case involved none of these, the Commission concluded that \u201cGS 126-4(11) does not authorize the award of reasonable attorney fees in this case.\u201d\nN.C. Gen. Stat. \u00a7 126-41 (1995) which provides for judicial review of the Commission\u2019s decision to award or not award attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11) states:\nThe decision of the Commission assessing or refusing to assess reasonable witness fees or a reasonable attorney\u2019s fee as provided in G.S. 126-4(11) is a final agency decision appealable under Article 4 of Chapter 150B of the General Statutes. The reviewing court may reverse or modify the decision of the Commission if the decision is unreasonable or the award is inadequate. The reviewing court shall award court costs and a reasonable attorney\u2019s fee for representation in connection with the appeal to an employee who obtains a reversal or modification of the Commission\u2019s decision in an appeal under this section, (emphasis added).\nThus, upon appeal of the Commission\u2019s decision not to award attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11), N.C.G.S. \u00a7 126-41 constrains the Superior Court to reverse or modify the Commission\u2019s order only if it is deemed unreasonable or inadequate.\nIn the case before us, the record indicates that the trial court made no findings as to the reasonableness or inadequacy of the Commission\u2019s decision pursuant to N.C.G.S. \u00a7 126-41. Further, the petitioners make no argument as to why the Commission\u2019s decision not to award attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11) was either unreasonable or inadequate. In any event, since the Commission had statutory authority to award attorney\u2019s fees only in cases involving discrimination, reinstatement or back pay, we conclude that the Commission properly denied an award of attorney\u2019s fees to petitioners under N.C.G.S. \u00a7 126-4(11).\nNonetheless, petitioners contend that N.C.G.S. \u00a7 6-19.1 offers another avenue for the award of attorney\u2019s fees for services performed prior to judicial review. The trial court apparently agreed with that contention holding that \u201c[t]he provisions of GS 6-19.1 regarding this Court\u2019s authority to award reasonable attorney fees applies in this case.\u201d We hold that N.C.G.S. \u00a7 6-19.1 does not empower the trial court to award attorney\u2019s fees in State Personnel cases for services rendered prior to judicial review.\nN.C.G.S. \u00a7 6-19.1 provides:\nIn any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board, brought by the State or brought by a party who is contesting State action pursuant to G.S. 150A-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust.\nThis statute has a broad application and it provides a punitive type remedy. However, in cases involving the State Personnel Commission, the legislature has preempted the application of N.C. Gen. Stat. \u00a7 6-19.1 to matters before the Commission that arise prior to judicial review. Those matters are specifically provided for by N.C.G.S. \u00a7 126-41 which limits the review of the Commission\u2019s award or denial of attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11). Thus, in reviewing State Personnel Commission decisions, the trial court\u2019s authority to award attorney\u2019s fees to a prevailing party under N.C.G.S. \u00a7 6-19.1 is limited to services rendered on judicial review if it finds that the agency was unjustified in pursuing the judicial review of its claim.\nPetitioners rely on North Carolina Dept. of Correction v. Harding, 120 N.C. App. 451, 462 S.E.2d 671 (1995), disc. review denied, 342 N.C. 658, 467 S.E.2d 720 (1996), as authority for the award of attorney\u2019s fees under N.C.G.S. \u00a7 6-19.1 in this case. Their reliance on Harding is misplaced. In Harding, this Court found that the trial court was not reviewing the Commission\u2019s discretionary authority to award or deny attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11). Id. at 455, 462 S.E.2d at 674. We stated:\nSince the Commission in this case had not entered an award of attorney\u2019s fees pursuant to its discretionary powers under N.C.G.S. \u00a7 126-4(11), it follows that the trial court in setting the hourly rate was not reviewing an award of the Commission. Rather, it acted under authority granted to it under N.C.G.S. \u00a7 6-19.1.\nId. Most significantly, Harding limited the application of N.C.G.S. \u00a7 6-19.1 to the award of attorney\u2019s fees for judicial review of the Commission\u2019s actions, not for services rendered prior to judicial review. Id.\nIn the case before us, the petitioners appealed to the trial court the Commission\u2019s denial of attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11). Such an appeal is permitted only under N.C.G.S. \u00a7 126-41 which allows the trial court to reverse or modify the Commission\u2019s award if the award were found to be unreasonable or inadequate. Apparently the trial court found no basis for reversing or modifying the Commission\u2019s denial of an award under N.C.G.S. \u00a7 126-4(11), and our examination of the record indicates that the trial court acted correctly in this regard. However, the trial court was not authorized to circumvent the application of N.C.G.S. \u00a7 126-41 in this case by looking to N.C.G.S. \u00a7 6-19.1. From the foregoing discussion, we conclude that N.C.G.S. \u00a7 6-19.1 allows for an award of attorney\u2019s fees in State Personnel Commission cases only for services rendered on judicial review.\nFinally, we note that a contrary interpretion allowing the trial court to award attorney\u2019s fees under N.C.G.S. \u00a7 6-19.1 for services rendered before judicial review would permit the reviewing court to award attorney\u2019s fees that could not be awarded by the Commission for services rendered before it. We do not believe that the Legislature intended that result.\nFor the foregoing reasons, we reverse the trial court\u2019s award of attorney\u2019s fees under N.C.G.S. \u00a7 6-19.1.\nReversed.\nJudges JOHNSON and LEWIS concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Pete Bradley and David V. Liner, for petitioners-appellees.",
      "Michael F. Easley, Attorney General, by Robert O. Crawford, III, Associate Attorney General and Melanie Lewis Vtipil, Associate Attorney General, for the State."
    ],
    "corrections": "",
    "head_matter": "R. STANLEY MORGAN, and A. DEAN BRIDGES, Petitioners v. N.C. DEPARTMENT OF TRANSPORTATION, RIGHT OF WAY BRANCH, Respondent\nNo. COA95-1208\n(Filed 15 October 1996)\nPublic Officers and Employees \u00a7 41 (NCI4th); Costs \u00a7 37 (NCI4th)\u2014 state employee \u2014 posting of position \u2014 attorney\u2019s fees\nThe trial court\u2019s award of attorney\u2019s fees under N.C.G.S. \u00a7 6-19.1 was reversed where petitioners had been interviewed for an area negotiator position at DOT but were not selected; a new area negotiator position was created shortly afterwards which was not posted because it could be filled from the applicant pool for the first vacancy; the Administrative Law Judge held that DOT violated posting requirements but declined to order attorney\u2019s fees under N.C.G.S. \u00a7 126-4(11) since there was no discrimination, reinstatement, or back pay; the State Personnel Commission upheld the denial of attorney\u2019s fees; and the Forsyth County Superior Court allowed attorney\u2019s fees under N.C.G.S. \u00a7 6-19.1. The trial court correctly found no basis for reversing or modifying the Commission\u2019s denial of an award under N.C.G.S. \u00a7 126-4(11), but was not authorized to circumvent the application of N.C.G.S. \u00a7 126-41 by looking to N.C.G.S. \u00a7 6-19.1. In cases involving the State Personnel Commission, the legislature has preempted the application of N.C.G.S. \u00a7 6-19.1 to matters before the Commission that arise prior to judicial review; those matters are specifically provided for by N.C.G.S. \u00a7 126-41. A contrary interpretation would permit the reviewing court to award attorney\u2019s fees that could not be awarded by the Commission for services rendered before it.\nAm Jur 2d, Civil Service \u00a7\u00a7 8 et seq.; Costs \u00a7\u00a7 57-70.\nAppeal by respondent from order entered 21 August 1995 by Judge Julius A. Rousseau in Forsyth County Superior Court. Heard in the Court of Appeals 22 August 1996.\nPete Bradley and David V. Liner, for petitioners-appellees.\nMichael F. Easley, Attorney General, by Robert O. Crawford, III, Associate Attorney General and Melanie Lewis Vtipil, Associate Attorney General, for the State."
  },
  "file_name": "0180-01",
  "first_page_order": 218,
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