{ "id": 11713387, "name": "WILLIAM PAUL FEARRINGTON, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee", "name_abbreviation": "Fearrington v. University of North Carolina at Chapel Hill", "decision_date": "1997-07-15", "docket_number": "No. COA96-1296", "first_page": "774", "last_page": "782", "citations": [ { "type": "official", "cite": "126 N.C. App. 774" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "46 ALR4th 912", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "32 ALR3d 1290", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-36", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 }, { "cite": "389 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "476 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867603 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0626-01" ] }, { "cite": "462 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "120 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916129 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/120/0437-01" ] }, { "cite": "415 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524023 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0499-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "363", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "165", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "480 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53948 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0480-01" ] }, { "cite": "392 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521453 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0153-01" ] }, { "cite": "447 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535653, 2536426, 2536398, 2533937, 2535833 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0604-05", "/nc/336/0604-03", "/nc/336/0604-02", "/nc/336/0604-01", "/nc/336/0604-04" ] }, { "cite": "441 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "114 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527022 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/114/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "pin_cites": [ { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" }, { "page": "(11)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 685, "char_count": 20095, "ocr_confidence": 0.769, "pagerank": { "raw": 2.2000649811217874e-07, "percentile": 0.7750513639984417 }, "sha256": "539e3e1addb17bcdc887adfc8105249c80f129c3482e064bf01e8f2c747767a7", "simhash": "1:2a3a0d23f5b3c7d0", "word_count": 3207 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "WILLIAM PAUL FEARRINGTON, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nPetitioner William Paul Fearrington, an employee of respondent University of North Carolina at Chapel Hill, filed a grievance through the University\u2019s internal' grievance procedure alleging that he had been denied a reclassification because of his race. In the course of the grievance proceedings, the University discovered evidence that petitioner\u2019s position had been under-classified and it retroactively reclassified and promoted him, resulting in retroactive pay of $9,804.91. Petitioner, however, continued to pursue his grievance and, after a report and recommendation by the University Staff Employee Grievance Committee, the Chancellor concluded that petitioner\u2019s under-classification had not been the result of racial discrimination and denied the grievance. Petitioner filed a contested case with the Office of Administrative Hearings (OAH) in which he claimed he was \u201cdenied reclassification and other privileges because of his race\u201d and, in addition, asserted a claim for attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 126-4(11), based on respondent University\u2019s decision to retroactively reclassify him. Petitioner subsequently dismissed all of his claims against the University except for his claim for attorneys\u2019 fees.\nBy order entered 3 April 1992, an Administrative Law Judge (AU) determined that the administrative rule governing the award of attorneys\u2019 fees in cases before the State Personnel Commission (Commission), 26 N.C.A.C. IB .0414, was void as applied in this case because it was \u201cnot within the statutory authority of the Commission to adopt.\u201d On 28 August 1992, the AU entered an \u201cAmendment To Order And Determination That Rule Is Void\u201d to clarify that his 3 April 1992 order was a \u201cfinal decision\u201d appealable to the superior court. The AU then issued a \u201cRecommended Decision\u201d in which he recommended that the Commission award petitioner reasonable attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 126-4(11).\nRespondent University filed a petition for judicial review in Wake County Superior Court of the AU\u2019s \u201cfinal decision.\u201d Upon review, Judge Bowen ruled that the AU did not have authority to enter a final decision determining that 25 N.C.A.C. IB .0414 is void and remanded the case to OAH \u201cfor the entry of a recommended decision to the State Personnel Commission pursuant to N.C. Gen. Stat. \u00a7 150B-34(a).\u201d Petitioner filed notice of appeal from the trial court\u2019s order, and in an unpublished opinion, No. 9310SC1281, this Court dismissed petitioner\u2019s appeal as interlocutory.\nOn 19 October 1994, the ALJ \u2022 entered an \u201cAmendment to Recommended Decision\u201d which recommended \u201cthat 25 N.C.A.C. IB .0414 as applied in this particular case is void because it is not within the statutory authority of the State Personnel Commission to adopt,\u201d and that the petitioner be awarded reasonable attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 126-4(11).\nThe Commission rejected the ALJ\u2019s findings of fact and conclusions of law, holding that 25 N.C.A.C. IB .0414 is not void and that, pursuant to this rule, petitioner is not entitled to any attorneys\u2019 fees. Petitioner filed a petition for review in Orange County Superior Court. In an order dated 8 August 1996, the trial court determined that the Commission did not hear new evidence; that the Commission stated specific reasons for not adopting the recommended decision; that 25 N.C.A.C. IB .0414 was not void as applied to this case; and that the Commission acted within its statutory authority when it denied petitioner\u2019s request for attorneys\u2019 fees. Petitioner appeals.\nI.\nWAKE COUNTY ORDER\nThe notice of appeal specifies that the appeal is from the order of the Superior Court of Orange County entered 8 August 1996. However, by his first assignment of error, petitioner attempts to present for our review the propriety of the order of 2 September 1993 issued by the Superior Court of Wake County, from which an earlier appeal was dismissed by this Court as interlocutory. Fearrington v. University of North Carolina at Chapel Hill, No. 9310SC1281 (unpublished opinion filed 6 September 1994). N.C.R. App. P. 3(d) (1995) requires that the notice of appeal \u201cdesignate the judgment or order from which appeal is taken . . . .\u201d Because the notice of appeal completely omits any reference to the Wake County order, we are without jurisdiction to review it. Guilford Co. Dept. of Emergency Services v. Seaboard Chemical Corp., 114 N.C. App. 1, 441 S.E.2d 177, disc. review denied, 336 N.C. 604, 447 S.E.2d 390 (1994). The jurisdictional requirements of N.C.R. App. P. 3(d) may not be waived by this Court, even under the discretion granted by N.C.R. App. P. 2. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990). However, N.C.R. App. P. 21(a)(1) gives this Court the authority to treat the purported appeal as a petition for writ of certiorari to review the Wake County order, and we elect to do so and consider the merits of petitioner\u2019s assignment of error. Anderson v. Hollifield, 345 N.C. 480, 480 S.E.2d 661 (1997).\nPetitioner contends that the Superior Court of Wake County erred when it determined that the AU had no authority to enter a final decision declaring 25 N.C.A.C. IB .0414 to be void. N.C. Gen. Stat. \u00a7 150B-33(b)(9), entitled \u201cPowers of administrative law judge,\u201d provides that an ALJ may determine that a rule as applied in a particular case is void, however, it does not authorize an ALJ to make a \u201cfinal decision\u201d with respect to the validity of agency rules. See N.C. Gen. Stat. \u00a7 150B-33(b)(9) (1995). Generally, an AU makes a recommended decision or order in a contested case except as provided in N.C. Gen. Stat. \u00a7 150B-36(c). N.C. Gen. Stat. \u00a7 150B-34(a) (1995). N.C. Gen. Stat. \u00a7 150B-36(c) provides:\nThe following decisions made by administrative law judges in contested cases are final decisions:\n(1) A determination that the Office of Administrative Hearings lacks jurisdiction.\n(2) An order entered pursuant to the authority in G.S. 7A-759 (e).\n(3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements.\n(4) An order entered pursuant to a prehearing motion to dismiss the contested case in accordance with G.S. 1A-1, Rule 12(b) when the order disposes of all issues in the contested case.\nIn the present case, the ALJ attempted to make a \u201cfinal decision\u201d regarding the validity of the rule governing the award of attorneys\u2019 fees, which is not one of the issues upon which an AU can make a final decision pursuant to N.C. Gen. Stat. \u00a7 150B-36(c). Therefore, the AU had no authority to make a \u201cfinal decision\u201d in this case. The order of the Superior Court of Wake County so holding, and remanding this case to the OAH for entry of a recommended decision to the State Personnel Commission in accordance with N.C. Gen. Stat. \u00a7 150B-34(a) is affirmed.\nII.\nORANGE COUNTY ORDER\nThe issues presented by petitioner\u2019s appeal from the order of the Orange County Superior Court upon judicial review of the final decision of the State Personnel Commission are (1) whether 25 N.C.A.C. IB .0414, the Commission\u2019s rule regarding the award of attorneys\u2019 fees, is void as applied in this case; (2) whether the Commission acted within its statutory authority when it adopted 25 N.C.A.C. IB .0414; and (3) whether the superior court\u2019s ruling affirming the decision of the Commission is correct.\nThe standard of appellate review of a superior court\u2019s order regarding a decision of an administrative agency requires the appellate court to examine the superior court\u2019s order for error of law, i.e., to determine whether the superior court employed the correct standard of review, and, if so, whether it did so correctly. ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997). The standard for the superior court\u2019s review of the agency decision depends on the issues presented in the petition for review. Id.\nIf [petitioner] argues the agency\u2019s decision was based on an error of law, then \u201cde novo\u201d review is required. If, however, [petitioner] questions (1) whether the agency\u2019s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the \u201cwhole record\u201d test.\nIn re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). \u201cDe novo\" review requires a court to consider a question anew, as if not considered or decided by the agency, while the \u201cwhole record\u201d test requires the reviewing court to examine all competent evidence, i.e., the \u201cwhole record,\u201d in order to determine whether the agency decision is supported by substantial evidence. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994).\nA.\nIn his petition for judicial review of the final decision of the State Personnel Commission, petitioner contended that 25 N.C.A.C. IB .0414 is void, both generally and as applied to this case. These contentions required the superior court to employ \u201cde novo\u201d review. The superior court did so, ruling as a matter of law that the rule is not invalid. Petitioner assigns error, contending the superior court should have found the rule, 25 N.C.A.C. IB .0414, to be void.\nThe State Personnel Commission is granted the authority to promulgate regulations regarding the award of attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 126-4(11), which provides:\nSubject to the approval of the Governor, the State Personnel Commission shall establish policies and rules governing each of the following:\n(11) In 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, the assessment of reasonable attorneys\u2019 fees and witnesses\u2019 fees against the State agency involved.\nPursuant to N.C. Gen. Stat. \u00a7 126-4(11), the Commission promulgated 25 N.C.A.C. IB .0414 et seq., which provides that the Commission may award attorneys\u2019 fees when:\n(1) the grievant is reinstated to the same or similar position from either a demotion or dismissal; (2) the grievant is awarded back pay from either a demotion or a dismissal, without regard to whether the grievant has been reinstated; (3) the grievant is determined, by the commission or by the agency\u2019s internal grievance procedure, to have been discriminated against in violation of G.S. \u00a7 126-16; (4) the grievant is awarded back pay as the result of a successful grievance alleging a violation of G.S. \u00a7 126-7.1; (5) any combination of the above situations.\nN.C. Admin. Code tit. 25, r. 1B .0414.\nPetitioner argues that 25 N.C.A.C.1B .0414 is void on its face because it is inconsistent with N.C. Gen. Stat. \u00a7 126-4(11). The Commission concluded that it had been given statutory authority to adopt rules with respect to the award of attorneys\u2019 fees, but that there was no statutory mandate requiring that it award such fees in all cases. Rather, the Commission concluded that a determination as to those circumstances appropriate for an award of attorneys\u2019 fees was vested in the Commission.\nPursuant to the authority granted it by N.C. Gen. Stat. \u00a7 126-4(11), the Commission established rules governing the assessment of attorneys\u2019 fees in state employee grievance proceedings. The Commission\u2019s determinations regarding its authority under N.C. Gen. Stat. \u00a7 126-4(11) are entitled to considerable weight. See Newsome v. State Board of Elections, 105 N.C. App. 499, 415 S.E.2d 201 (1992). The Commission has discretionary authority to enter an award of attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 126-4(11). See North Carolina Dept. of Correction v. Myers, 120 N.C. App. 437, 462 S.E.2d 824 (1995), affirmed, 344 N.C. 626, 476 S.E.2d 364 (1996). The Commission\u2019s jurisdiction over the appeals of state employee grievances derives from Chapter 126, the State Personnel Act. Batten v. N.C. Department of Correction, 326 N.C. 338, 389 S.E.2d 35 (1990). The Commission has jurisdiction to review appeals involving government employees subject to the Personnel Act where an employee was: (1) discharged, suspended or demoted for disciplinary reasons without just cause, N.C. Gen. Stat. \u00a7 126-35 (1995); (2) denied employment, promotion, or training because of illegal discrimination or in retaliation for opposition to alleged illegal discrimination, N.C. Gen. Stat. \u00a7\u00a7 126-36, 126-36.1 (1995); (3) demoted, laid off or terminated because of illegal discrimination or in retaliation for opposition to alleged illegal discrimination, N.C. Gen. Stat. \u00a7 126-36 (1995); (4) denied promotion because the agency failed to post notice of the job vacancy or denied state employee priority consideration in violation of N.C. Gen. Stat. \u00a7\u00a7 126-7.1, 126-36.2 (1995); and (5) any other contested case arising under Chapter 126, N.C. Gen. Stat. \u00a7 126-37 (1995). The Commission\u2019s promulgation of 25 N.C.A.C. 1B .0414 is consistent with the Commission\u2019s jurisdiction over state employee grievances and the statutory authority delegated to it by the General Assembly.\nPetitioner also argues that 25 N.C.A.C. IB .0414 is void as applied in this case because it is inconsistent with the Commission\u2019s authority, granted by N.C. Gen. Stat. \u00a7 126-4(11), to assess attorneys\u2019 fees when back pay is awarded. However, in petitioner\u2019s case, the Commission neither found discrimination, ordered reinstatement, nor ordered back pay, which are prerequisites for the assessment of reasonable attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 126-4(11). Rather, the University retroactively reclassified petitioner, who had been under-classified due to administrative error. The University found that petitioner\u2019s under-classification had not been due to racial discrimination \u201cor any other impermissible factor\u201d and denied his grievance, and petitioner subsequently dismissed his claim that he had been discriminated against. Because petitioner\u2019s case does not meet the criteria established by N.C. Gen. Stat. \u00a7 126-4(11) for the Commission to award attorneys\u2019 fees, it properly determined that' petitioner is not entitled to attorneys\u2019 fees in connection with the resolution of his grievance.\nB.\nPetitioner also alleged, in his petition for judicial review, that \u201cthe Commission\u2019s findings, conclusions of law, and decision were arbitrary and capricious.\u201d Such an allegation would ostensibly require that the trial court employ \u201cwhole record\u201d review of the agency decision. However, careful review of the Petition for Review and the contentions contained therein discloses that the substantive issues presented to the superior court were legal issues, i.e., (1) whether the administrative rule is invalid, either as in excess of the Commission\u2019s authority, or as applied to petitioner\u2019s case, and (2) whether the Commission incorrectly interpreted N.C. Gen. Stat. \u00a7 126-4(11) in determining that petitioner is not entitled to an award of attorneys\u2019 fees. Thus, petitioner\u2019s argument, essentially, was that the conclusion of the Commission that \u201cpetitioner is not entitled to any attorney fees\u201d was affected by error of law, and was properly reviewed \u201cde novo\" by the trial court. We conclude the trial court applied the correct standard of review and, in view of our holding in Part II. A. above, that the trial court did so correctly.\nFinally, petitioner argued in his brief that the Commission\u2019s decision was arbitrary and capricious because it was not filed within the time limitations specified in the 1991 amendment to N.C. Gen. Stat. \u00a7 150B-44, requiring that agency decisions be rendered within specified time limitations. However, at oral argument, petitioner conceded that the 1991 amendment is applicable only to contested cases filed on or after 1 October 1991, and that petitioner filed his case before the effective date of the amendment.\nFor the reasons stated, the 2 September 1993 order of the Superior Court of Wake County remanding this matter to the State Personnel Commission, and the 8 August 1996 order of the Superior Court of Orange County affirming the final decision of the State Personnel Commission are each affirmed.\nAffirmed.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "McSurely, Dorosin & Osment, by Alan McSurely, Mark Dorosin, and Ashley Osment, for petitioner-appellant.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko and Assistant Attorney General R. Bruce Thompson, II, for respondent-appellee." ], "corrections": "", "head_matter": "WILLIAM PAUL FEARRINGTON, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee\nNo. COA96-1296\n(Filed 15 July 1997)\n1. Appeal and Error \u00a7 203 (NCI4th)\u2014 notice of appeal \u2014 prior order \u2014 absence of jurisdiction \u2014 treatment as petition for certiorari\nWhere the notice of appeal specified that the appeal is from an order of the Orange County Superior Court, the Court of Appeals was without jurisdiction to review a prior order entered in Wake County Superior Court. However, the purported appeal from the Wake County order will be treated as a petition for a writ of certiorari so that the merits of petitioner\u2019s assignment of error to this order may be considered.\nAm Jur 2d, Appellate Review \u00a7\u00a7 285 et seq.\nRight to perfect appeal, against party who has not appealed, by cross appe\u00e1l filed after time for direct appeal had passed. 32 ALR3d 1290.\n2. Administrative Law and Procedure \u00a7 37 (NCI4th)\u2014 attorney fees \u2014 validity of administrative rule \u2014 authority of ALJ\nAn administrative law judge had no authority to make a \u201cfinal decision\u201d as to the validity of an administrative rule governing the award of attorney fees in cases before the State Personnel Commission. N.C.G.S. \u00a7 150B-33(b)(9).'\nAm Jur 2d, Administrative Law \u00a7 309.\n3. Public Officers and Employees \u00a7 41 (NCI4th)\u2014 State Personnel Commission \u2014 attorney fees \u2014 promulgation of rules \u2014 statutory authority\nThe State Personnel Commission\u2019s promulgation of 25 N.C.A.C. I B .0414, which provides the circumstances under which the Commission may award attorney fees, is consistent with the Commission\u2019s jurisdiction over state employee grievances and the statutory authority delegated to it pursuant to N.C.G.S. \u00a7 126-4(11).\nAm Jur 2d, Civil Service \u00a7\u00a7 8 et seq.\n4. Public Officers and Employees \u00a7 63 (NCI4th)\u2014 State Personnel Commission \u2014 denial of attorney fees\nThe State Personnel Commission did not violate N.C.G.S. \u00a7 126-4(11) by applying its rale governing attorney fees to deny attorney fees to a petitioner who was reclassified and received back pay at UNC where the Commission neither found discrimination, ordered reinstatement, nor ordered back pay; UNC found that petitioner\u2019s under-classification was not due to racial discrimination but resulted from administrative error; and petitioner dismissed his discrimination claim.\nAm Jur 2d, Civil Service \u00a7\u00a7 8 et seq.\nRights of state and municipal public employees in grievance proceedings. 46 ALR4th 912.\n5. Administrative Law and Procedure \u00a7 65 (NCI4th)\u2014 State Personnel Commission \u2014 legal issues \u2014 de novo review\nThe trial court properly reviewed petitioner\u2019s appeal of a State Personnel Commission decision under the de novo standard of review where the issues presented on appeal were legal issues.\nAm Jur 2d, Administrative Law \u00a7\u00a7 559, 582.\n6. Administrative Law and Procedure \u00a7 76 (NCI4th)\u2014 administrative decision \u2014 time limitations \u2014 statutory amendment inapplicable\nThe State Personnel Commission\u2019s decision was not arbitrary or capricious because it was not filed within time limitations specified in the 1991 amendment to N.C.G.S. \u00a7 150B-44 where petitioner filed his case before the effective date of the amendment and the amendment did not apply to his case.\nAm Jur 2d, Administrative Law \u00a7 569.\nOn writ of certiorari to review order entered 2 September 1993 by Judge Wiley F. Bowen in Wake County Superior Court, and appeal by petitioner from order entered 8 August 1996 by Judge F. Gordon Battle in. Orange County Superior Court. Heard in the Court of Appeals 22 May 1997.\nMcSurely, Dorosin & Osment, by Alan McSurely, Mark Dorosin, and Ashley Osment, for petitioner-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko and Assistant Attorney General R. Bruce Thompson, II, for respondent-appellee." }, "file_name": "0774-01", "first_page_order": 812, "last_page_order": 820 }