{ "id": 9441143, "name": "MARY HEDGEPETH, Petitioner v. NORTH CAROLINA DIVISION OF SERVICES FOR THE BLIND, Respondent", "name_abbreviation": "Hedgepeth v. North Carolina Division of Services for the Blind", "decision_date": "2001-03-06", "docket_number": "No COA99-1240", "first_page": "338", "last_page": "349", "citations": [ { "type": "official", "cite": "142 N.C. App. 338" } ], "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": "500 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1998, "pin_cites": [ { "page": "725-26" }, { "page": "725" }, { "parenthetical": "alterations in original" }, { "parenthetical": "alterations in original" }, { "page": "726-27", "parenthetical": "alteration in original" }, { "page": "727" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651162 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0499-01" ] }, { "cite": "511 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238269 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0387-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "citation omitted" }, { "page": "392" }, { "page": "503" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "citation omitted" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "528 S.E.2d 927", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "929", "parenthetical": "emphasis added" }, { "page": "930" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094894 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "577", "parenthetical": "emphasis added" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0575-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "363", "parenthetical": "citation omitted" }, { "page": "363", "parenthetical": "citation 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": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "281 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "303 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574954 ], "year": 1981, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0573-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "118", "parenthetical": "quoting Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 580, 281 S.E.2d 24, 29 (1981)" }, { "page": "118" }, { "page": "118-19" }, { "page": "119", "parenthetical": "\"the statutory provisions for judicial review ... at the trial court level would appear to lack purpose if that court's determination is to be given no consideration at the appellate level\"" }, { "page": "118" }, { "page": "118-19" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "675", "parenthetical": "quoting Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 580, 281 S.E.2d 24, 29 (1981)" }, { "page": "674" }, { "page": "675-76" }, { "page": "676" }, { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "381 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "862-63", "parenthetical": "finding that interview and investigation by agency hearing officer is contested case" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520156 ], "year": 1989, "pin_cites": [ { "page": "212", "parenthetical": "finding that interview and investigation by agency hearing officer is contested case" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0209-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "436 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "598", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 566", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522740 ], "year": 1993, "pin_cites": [ { "page": "572", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0566-01" ] }, { "cite": "285 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "55 N.C. App. 313", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527210 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/55/0313-01" ] }, { "cite": "349 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "83 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358130 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0122-01" ] }, { "cite": "405 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "770", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521826 ], "year": 1991, "pin_cites": [ { "page": "515", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0514-01" ] }, { "cite": "34 C.F.R. \u00a7 361.57", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "457 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "774", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914297 ], "year": 1995, "pin_cites": [ { "page": "234", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0232-01" ] }, { "cite": "379 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "29", "parenthetical": "\"the General Assembly intended only those agencies it expressly and unequivocally exempted from the provisions of the [NCAPA] be excused in any way from the Act's requirements and, even in those instances, that the exemption apply only to the extent specified by the General Assembly\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483984 ], "year": 1989, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0402-01" ] }, { "cite": "131 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "259 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561548 ], "year": 1963, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0589-01" ] }, { "cite": "664 A.2d 256", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 846769 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/vt/163/0566-01" ] }, { "cite": "682 A.2d 850", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7865215 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/a2d/682/0850-01" ] }, { "cite": "705 N.E.2d 1180", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 725195 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ny-2d/92/0477-01" ] }, { "cite": "504 N.W.2d 794", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10632327 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nw2d/504/0794-01" ] }, { "cite": "715 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11586553 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ne2d/715/0917-01" ] }, { "cite": "422 F. Supp. 111", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3897236 ], "year": 1976, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/f-supp/422/0111-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 }, { "cite": "10 F.3d 925", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10513165 ], "year": 1993, "pin_cites": [ { "page": "929", "parenthetical": "finding that Congress did not intend to foreclose enforcement of Act under 42 U.S.C. \u00a7 1983 (1994)" } ], "opinion_index": 0, "case_paths": [ "/f3d/10/0925-01" ] }, { "cite": "542 F. Supp. 841", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 6047169 ], "year": 1982, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/f-supp/542/0841-01" ] }, { "cite": "734 F. Supp. 99", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4077802 ], "year": 1990, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/f-supp/734/0099-01" ] }, { "cite": "130 F.3d 1245", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11893216 ], "year": 1997, "pin_cites": [ { "parenthetical": "finding no private right of action" } ], "opinion_index": 0, "case_paths": [ "/f3d/130/1245-01" ] }, { "cite": "29 U.S.C.A. \u00a7 722", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(c)(5)(J)(i)", "parenthetical": "providing that aggrieved parties \"may bring a civil action\" in state or federal court for review of final agency decisions" } ], "opinion_index": 0 }, { "cite": "352 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685026, 684898, 684899, 685087, 684959 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0676-03", "/nc/352/0676-05", "/nc/352/0676-04", "/nc/352/0676-02", "/nc/352/0676-01" ] }, { "cite": "531 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "138 N.C. 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Supp.", "case_ids": [ 7406998 ], "year": 1991, "pin_cites": [ { "page": "363", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f-supp/793/0361-01" ] }, { "cite": "34 C.F.R. \u00a7 361.1", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 1997, "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 701", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(b)(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1026, "char_count": 26806, "ocr_confidence": 0.764, "pagerank": { "raw": 4.137003036601461e-07, "percentile": 0.9110127656091147 }, "sha256": "fc18f5c2a68c4b40e6aff83c898db125d66e999c5d2d01c129ce9a1a96bd7c4d", "simhash": "1:cfa2d1aef6de3d56", "word_count": 4259 }, "last_updated": "2023-07-14T17:11:55.437222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "MARY HEDGEPETH, Petitioner v. NORTH CAROLINA DIVISION OF SERVICES FOR THE BLIND, Respondent" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nMary Hedgepeth (\u201cpetitioner\u201d) appeals an order by the Superior Court affirming the decision of the Division of Services for the Blind (\u201crespondent\u201d) to deny petitioner additional benefits under the Rehabilitation Act of 1973 (the \u201cRehabilitation Act\u201d or \u201cAct\u201d), 29 U.S.C. \u00a7 701, et seq. (1994). For the reasons stated herein, we reverse the trial court\u2019s order and remand the matter for entry of a new order in accordance with this opinion.\nUnder the Rehabilitation Act, the federal government administers grants to states for the provision of services \u201cto empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society.\u201d 29 U.S.C. \u00a7 701(b)(1); 34 C.F.R. \u00a7 361.1 (1997). States, such as North Carolina, choosing to accept federal grants as provided for by the Act, must comply with the Act\u2019s guidelines and regulations. Buchanan v. Ives, 793 F. Supp. 361, 363 (D. Me. 1991) (citation omitted).\nIn 1985, respondent, a division of the agency charged with administering the federal program in our State, see N.C. Gen. Stat. \u00a7 143-546.1 (1999), deemed petitioner eligible for services and benefits under the Act, due to a loss of vision she experienced as a junior college student. The Act requires that those eligible for the program, such as petitioner, jointly develop with respondent a particularized plan to fit the individual\u2019s vocational rehabilitative needs, an \u201cindividualized written rehabilitation plan\u201d (\u201cIWRP\u201d). 29 U.S.C. \u00a7 722(b)(1)(A) (1994); 34 C.F.R. \u00a7 361.45. To that end, in 1986, petitioner and respondent developed an IWRP, which included the goal of \u201coccupations in business\u201d and provided for a variety of services assisting petitioner in achieving her vocational goal. In 1988, petitioner received a two-year associate degree in \u201cBusiness Administration. \u201d\nPetitioner\u2019s IWRP was amended on four occasions between 1989 and 1995. The amendments to the IWRP reflected a variety of vocational goals to be achieved by a specified date, and further provided for services and financial aid.\nPursuant to an amended IWRP formulated in 1995, petitioner received a two-year associate degree in \u201cSocial Work\u201d in 1997. Upon earning her degree, petitioner was accepted into a four-year psychology program at a private college. In September 1997, petitioner met with her rehabilitation counselor, Patricia Tessnear, Tessnear\u2019s supervisor, and a job placement specialist. During the meeting, petitioner requested that respondent amend her IWRP to include a four-year college degree program as part of her vocational goals. Tessnear informed petitioner that respondent had provided adequate services to remove impediments to her educational and employment objectives and, therefore, she would no longer receive educational assistance. Instead, respondent offered petitioner only job placement services.\nIn December 1997, petitioner requested an amendment to her IWRP, reflecting the goal of \u201cLicensed Professional Counselor.\u201d Respondent denied petitioner\u2019s request and advised her of her right to appeal its decision, which she did on 11 January 1998. Following a 3 April 1998 hearing, an agency hearing officer recommended that respondent\u2019s decision be affirmed, and respondent\u2019s director adopted the hearing officer\u2019s recommendation as the \u201cfinal agency decision\u201d on 18 May 1998. Petitioner petitioned for judicial review of the agency\u2019s final decision in Superior Court, Nash County. The Superior Court affirmed the final agency decision, and petitioner now appeals.\nWe first address respondent\u2019s contention that the Superior Court did not have subject matter jurisdiction to review the final agency decision in the case sub judice. As a preliminary issue, we note that respondent first raised the aforementioned issue on appeal. Nonetheless, it is well established that objections to a court\u2019s jurisdiction can be raised at any time, even for the first time on appeal and even by a court sua sponte. Reece v. Forga, 138 N.C. App. 703, 704, 531 S.E.2d 881, 882 (citations omitted) (\u201cA party may not waive jurisdiction, and a court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking.\u201d), disc, review denied, 352 N.C. 676, \u2014 S.E.2d-(2000). We therefore address respondent\u2019s arguments and determine whether the Superior Court had jurisdiction over the present case.\nRespondent first asserts that the Superior Court did not have jurisdiction to review the final agency decision because the Rehabilitation Act, including amendments applicable to petitioner, did not provide for judicial review of the decision. In support of its argument, respondent cites several federal court cases finding there was no private right of action under the Act.\nThe Rehabilitation Act, as amended in 1998, currently provides for judicial review of agency decisions. See 29 U.S.C.A. \u00a7 722(c)(5)(J)(i) (West 2000) (providing that aggrieved parties \u201cmay bring a civil action\u201d in state or federal court for review of final agency decisions). However, the current version of the Act took effect on 7 August 1998, prior to the agency\u2019s final decision and is, therefore, inapplicable to petitioner. Respondent is correct in that the Rehabilitation Act applicable to petitioner, as amended in 1993, did not provide for judicial review of final agency decisions. However, the Act\u2019s statutory provisions did not expressly prohibit judicial review, and neither do the federal cases cited by respondent. See Mallet v. Wisconsin Div. of Vocational Rehab., 130 F.3d 1245 (7th Cir. 1997) (finding no private right of action); McGuire v. Switzer, 734 F. Supp. 99 (S.D.N.Y. 1990) (same); Ryans v. New Jersey Comm\u2019n for the Blind & Visually Impaired, 542 F. Supp. 841 (D.N.J. 1982) (same). But see Marshall v. Switzer 10 F.3d 925, 929 (2d Cir. 1993) (finding that Congress did not intend to foreclose enforcement of Act under 42 U.S.C. \u00a7 1983 (1994)); Scott v. Parham, 422 F. Supp. 111 (N.D. Ga. 1976) (same). These cases simply conclude that there is no private right of action, implied or otherwise, under the Act, but do not speak to a trial court\u2019s judicial review of an agency decision. We therefore find the cases cited by respondent unpersuasive.\nMoreover, many states provided for judicial review of agency decisions based on the Act\u2019s guidelines and regulations prior to the statute\u2019s express provision for civil actions and judicial review. See e.g., Dolon v. Family and Soc. Servs. Admin. Div. of Disability, Aging and Rehab. Servs., 715 N.E.2d 917 (Ind. Ct. App. 1999); In the Matter of Wenger, 504 N.W.2d 794 (Minn. Ct. App. 1993); Murphy v. Office of Vocational and Educ. Servs. for Individuals with Disabilities, 705 N.E.2d 1180 (N.Y. Ct. App. 1998); Brooks v. Office of Vocational Rehab., 682 A.2d 850 (Pa. Commw. Ct. 1996); Zingher v. Dep\u2019t of Aging and Disabilities, 664 A.2d 256 (Vt. 1995). We therefore conclude that although the Rehabilitation Act applicable to petitioner may not have provided for review of an agency\u2019s final decision, nothing in the Act itself or the cases cited by respondent precludes judicial review.\nOur examination of the issue of jurisdiction does not end there, however. \u201cNo appeal lies from an order or decision of an administrative agency of the State or from judgments of special statutory tribunals whose proceedings are not according to the course of the common law, unless the right is granted by statute.\u201d In re Assessment of Sales Tax, 259 N.C. 589, 592, 131 S.E.2d 441, 444 (1963). As noted supra, the Rehabilitation Act did not grant petitioner a right of review of the agency\u2019s final decision and therefore, if she has such a right, it is by and through North Carolina Administrative Procedure Act (\u201cNCAPA\u201d).\nThe NCAPA, codified at Chapter 150B of the General Statutes, \u201cestablishes a uniform system of administrative rule making and adjudicatory procedures for agencies\u201d and \u201capplies to every agency,\u201d unless an agency is expressly exempt from its provisions. N.C. Gen. Stat. \u00a7 150B-1(a), (c) (1995); Vass v. Bd. of Trustees of State Employees\u2019Medical Plan, 324 N.C. 402, 407, 379 S.E.2d 26, 29 (1989) (\u201cthe General Assembly intended only those agencies it expressly and unequivocally exempted from the provisions of the [NCAPA] be excused in any way from the Act\u2019s requirements and, even in those instances, that the exemption apply only to the extent specified by the General Assembly\u201d).\nAny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision ..., unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute.\nN.C. Gen. Stat. \u00a7 150B-43 (1995). Neither the Department of Health and Human Services nor its Division of Services for the Blind are fully exempt from the NCAPA. Respondent\u2019s proceedings, at least in part, are therefore subject to the provisions of the NCAPA.\nRespondent acknowledges that petitioner may have had the right to judicial review pursuant to Chapter 150B, but points out that petitioner did not seek a contested case hearing before the State Office of Administrative Hearings (\u201cOAH\u201d). Respondent asserts that only individuals who seek hearings through the OAH have a right to judicial review under the NCAPA. Respondent argues that the NCAPA only allows judicial review in \u201ccontested cases\u201d and that \u201c[a] contested case is an action heard in the [OAH].\u201d We disagree.\nIt is well established that \u201cthe superior court is without jurisdiction to conduct a judicial review of an agency decision sought by an aggrieved party, pursuant to [section] 150B-43, who has not first had the administrative hearing to which he is entitled.\" Deep River Citizens Coalition v. N.C. Dept. of E.H.N.R., 119 N.C. App. 232, 234, 457 S.E.2d 772, 774 (1995) (emphasis added). The NO APA states, in pertinent part:\nThe contested case provisions of [Chapter 150B of the North Carolina General Statutes] apply to all agencies and all proceedings not expressly exempted .... The contested case provisions of this Chapter do not apply to the following:\n(5) Hearings required pursuant to the Rehabilitation Act ... , as amended and federal regulations promulgated thereunder.\nN.C. Gen. Stat. \u00a7 150B-l(e)(5).\nConsidering the aforementioned statutory provision, we conclude that individuals aggrieved pursuant to the Rehabilitation Act are not required to seek administrative review in a contested case hearing before the OAH via the contested case hearing provisions of the NCAPA. Rather, they are entitled to a hearing governed by procedures established by the Rehabilitation Act. The Act and its corresponding federal regulations mandate that directors of state agencies administering services under the Act \u201cshall establish procedures for the review of determinations made by the rehabilitation counsel\u201d in which an aggrieved individual shall be \u201cprovided] an opportunity . . . for the submission of additional evidence and information to an impartial hearing officer.\u201d 29 U.S.C. \u00a7 722(c); 34 C.F.R. \u00a7 361.57. In accordance with the aforementioned guidelines, respondent established procedures for internal review of agency decisions pursuant to the Act. 10 N.C. Admin. Code 19G.0801 -.0823 (June 1998).\nUnder section 150B-2 of our General Statutes, a \u201ccontested case\u201d is \u201can administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person\u2019s rights, duties, or privileges.\u201d N.C. Gen. Stat. \u00a7 150B-2(2) (1995). This Court has previously stated that a \u201ccontested case\u201d includes \u201cany agency proceeding, by whatever name called, wherein the legal rights, duties and privileges of a party are required by law to be determined by an agency after ... an adjudicatory hearing.\u201d Community Psychiatric Ctrs. v. N.C. Dept. of Human Resources, 103 N.C. App. 514, 515, 405 S.E.2d 769, 770 (1991) (emphasis added) (citations omitted); see also Charlotte-Mecklenburg Hosp. Authority v. N.C. Dept. of Human Resources, 83 N.C. App. 122, 349 S.E.2d 291 (1986); In re Construction of Health Care Facility, 55 N.C. App. 313, 285 S.E.2d 626 (1982). Moreover, this Court has concluded that judicial review of agency decisions in Superior Court, pursuant to section 150B-43, was proper in at least two cases where no proceedings were held before the OAH. See Empire Power Co. v. N. C. Dept. of E.H.N.R., 112 N.C. App. 566, 572, 436 S.E.2d 594, 598 (1993) (citations omitted) (\u201calthough there was no hearing before an ALJ, there was an agency proceeding . . . determining the rights of a party\u201d), rev\u2019d on other grounds, 337 N.C. 569, 447 S.E.2d 768 (1994); Charlotte Truck Driver Training School v. N.C. DMV, 95 N.C. App. 209, 212, 381 S.E.2d 861, 862-63 (1989) (finding that interview and investigation by agency hearing officer is contested case); see also 10 Admin. Code 19G.0827 (June 1998).\nIn the case sub judice, petitioner did not seek review through the OAH, but utilized procedures mandated by the Rehabilitation Act and our State\u2019s administrative code. In fact, according to the NCAPA, petitioner was not entitled to seek review through the OAH. Although the petitioner\u2019s claims were not heard by an Administrative Law Judge, they were heard by an agency hearing officer, at a proceeding in which petitioner and respondent were allowed to submit and cross-examine evidence. Respondent\u2019s director reviewed and affirmed the hearing officer\u2019s decision, in accordance with its own regulations. See 10 N.C. Admin. Code 19G.0823. The director\u2019s decision, therefore, became the final agency decision. 10 N.C. Admin. Code 19G.0823(d).\nWe find the aforementioned proceeding sufficient to constitute a \u201ccontested case\u201d for the purpose of judicial review under section 150B-43 of our General Statutes. Therefore, we conclude that the Superior Court had jurisdiction over the petition submitted below.\nAs in any case, we must next determine the scope of our review. The NCAPA mandates the scope of the Superior Court\u2019s review of final agency decisions in section 150B-51 of our General Statutes. N.C. Gen. Stat. \u00a7 150B-51 (1995). Hearings conducted under the Rehabilitation Act are partially exempt from section 150B-51. Trial courts reviewing final agency decisions pursuant to the Rehabilitation Act are not required to determine whether the agency heard new evidence in making its final decision, nor are they required to determine whether the agency specifically stated its reasons for failing to adopt an ALJ\u2019s decision. N.C. Gen. Stat. \u00a7\u00a7 150B-51(a) and 150B-1(e)(5) (\u201cHearings required pursuant to [the Act]\u201d are exempt from the NCAPA\u2019s contested case provisions, and \u201c[N.C.]G.S. 150B-51(a) is considered a contested case hearing provision that does not apply to these hearings\u201d). However, final agency decisions pursuant to the Rehabilitation Act are not exempt from review under section 150B-50(b), which states, in pertinent part:\n[T]he court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C. Gen. Stat. \u00a7 150B-51(b).\nThe petitioner\u2019s \u201ccharacterization of the alleged error on appeal \u2018dictates\u2019 the method or scope of review.\u201d Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118 (1994) (quoting Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 580, 281 S.E.2d 24, 29 (1981)). However, \u201cmore than one method may be utilized \u2018if the nature of the issues raised so requires.\u2019 \u201d Id. (quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citation omitted)).\nIf the petitioner alleges that the agency decision is based on an error of law, the proper review is de novo review. In contrast, if petitioner \u201cquestions (1) whether the agency\u2019s decision was supported by the evidence or (2) whether the agency\u2019s decision was arbitrary or capricious, then the reviewing court must apply the \u2018whole record\u2019 test.\u201d McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363 (citation omitted). \u201cBecause \u201c \u2018[d]e novo\u201d review requires a court to consider a question anew, as if not considered or decided by the agency\u2019 previously, the trial court must make its own findings of fact and conclusions of law and cannot defer to the agency its duty to do so.\u201d Jordan v. Civil Serv. Bd. of Charlotte, 137 N.C. App. 575, 577, 528 S.E.2d 927, 929 (2000) (emphasis added) (citation omitted). However, in conducting \u201cwhole record review,\u201d the trial court must \u201cexamine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118.\nThis Court has struggled to define the proper appellate standard for reviewing superior court orders examining agency decisions, often with divergent results. See generally Amanini, 114 N.C. App. at 675-76, 443 S.E.2d at 118-19. However, our Supreme Court has recently confirmed that the proper scope of our review is as follows:\n\u201cthe appellate court examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d\nACT-TJP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation omitted); see also Amanini, 114 N.C. App. at 676, 443 S.E.2d at 119 (\u201cthe statutory provisions for judicial review ... at the trial court level would appear to lack purpose if that court\u2019s determination is to be given no consideration at the appellate level\u201d). As such, \u201c[t]he trial court, when sitting as an appellate court to review [an agency decision], must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review.\u201d Sutton v. N.C. Dep\u2019t of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 342 (1999).\nWe therefore examine the Superior Court\u2019s order to determine whether it conducted the appropriate scope of review and whether it conducted that review properly. In so doing, we find the case of In Re Appeal of Willis, 129 N.C. App. 499, 500 S.E.2d 723 (1998), particularly instructive.\nIn Willis, the petitioners sought a writ of certiorari and declaratory judgment in Superior Court, asserting that a city board of adjustment (\u201cthe Board\u201d) erroneously found the petitioner in violation of an ordinance. The Superior Court reversed the Board\u2019s decision, and the Board appealed to this Court.\nOur Court found that review of the Superior Court\u2019s decision was analogous to our review of superior court orders examining agency decisions. Id. at 500-01, 500 S.E.2d at 725-26. In their briefs to the trial court, the petitioners asserted in separate arguments that the Board\u2019s decision was not supported by the evidence, that the Board\u2019s decision was arbitrary and capricious, and that the Board\u2019s decision was based on errors of law. Id. at 502, 500 S.E.2d at 725. In support of its order setting aside the Board\u2019s decision, the trial court cited a \u201clack of \u2018defined criteria or objective standards\u2019 within the record to support the Board\u2019s \u2018erroneous\u2019 and \u2018arbitrary\u2019 conclusions.\u201d Id. The trial court further stated that its decision was \u201c \u2018[b]ased upon [the court\u2019s] review of the stipulated record in this matter,\u2019 indicating the court employed the whole record test in reaching its decision.\u201d Id. (alterations in original) (citation omitted). \u201c[T]he trial court\u2019s order also asserted its right to \u2018substitute its judgment [for that of the Board] as to conclusions of law,\u2019 suggesting it may also have applied de novo review.\u201d Id. (alterations in original) (citation omitted).\nIn reversing the trial court\u2019s judgment and remanding the case for a new order, this Court stated:\n[Wjhile the court\u2019s order in effect set out the applicable standards of review, it failed to delineate which standard the court utilized in resolving each separate issue raised by the parties. Moreover, while the court may have disagreed with the parties\u2019 characterization of the issues, it failed to specify its own \u201cdeter-min[ation of] the actual nature of the contended error\u201d before proceeding with its review. Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118. As a result of these omissions, this Court is unable to make the requisite threshold determination that the trial court \u201cexercised the appropriate scope of review,\u201d id. at 675, 443 S.E.2d at 118-19, and we decline to speculate in that regard. It follows that we likewise are unable to determine whether the court properly conducted its review. See Act-Up, 345 N.C. at 706, 483 S.E.2d at 392.\nId. at 503, 500 S.E.2d at 726-27 (alteration in original); Jordan, 137 N.C. App. at 578, 528 S.E.2d at 930; see also Sutton, 132 N.C. App. 387, 511 S.E.2d 340 (vacating and remanding for new order where original order was silent as to scope of review).\nIn the case sub judice, petitioner raised and enumerated several distinct, alleged errors below, asserting that certain findings of fact made by the hearing officer were \u201cunsupported by substantial evidence in view of the entire record\u201d and that many of his conclusions of law were \u201cerroneous.\u201d Petitioner further asserts that one of the hearing officer\u2019s conclusions of law was arbitrary and capricious. The Superior Court should have, therefore, reviewed petitioner\u2019s alleged errors de novo and in accordance with the \u201cwhole record\u201d test, depending upon the specific enumerated error.\nIn its order affirming the final agency decision, the Superior Court did not examine each distinct error or delineate a de novo review of the conclusions of law that petitioner argued were erroneous. Rather, in affirming the agency decision, the court noted the following:\nPetitioner sought both \u201cwhole record\u201d and de novo review of a final agency decision of [respondent]. Having concluded that review, the Court finds that the decision was based on substantial evidence, was not arbitrary or capricious and was not affected by error of law. (Emphasis added.)\nLike the Superior Court in Willis, the trial court in the case sub judice stated the proper standards of review sought by petitioner. However, it too \u201cfailed to delineate which standard the court utilized in resolving each separate issue raised.\u201d Willis, 129 N.C. App. at 503, 500 S.E.2d at 727. Furthermore, it is difficult to discern whether the trial court actually conducted both a \u201cwhole record\u201d and de novo review. Although, as noted supra, the court set out both types of review sought by petitioner, it did not expressly state that both reviews were conducted, only that it conducted \u201cthat\u201d review. We are left to question whether \u201cthat\u201d referred to only a \u201cwhole record\u201d review, de novo review, or both. Moreover, the confusion inherent in the trial court\u2019s order is compounded by the lack of a transcript or other record of the proceedings, if any, before the Superior Court in the record on appeal. Given the nature of the trial court\u2019s order, we find ourselves unable to conduct our necessary threshold review. And, like the Willis court, \u201cwe decline to speculate in that regard.\u201d Id.\nAccordingly, we reverse the trial court\u2019s order and remand this matter for a new order in accordance with our opinion. We direct the trial court to (1) advance its own characterization of the issues presented by petitioner and (2) clearly delineate the standards of review, detailing the standards used to resolve each distinct issue raised.\nReversed and remanded.\nJudges WYNN and McGEE concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Eastern Carolina Legal Services, by Hazel Mack-Hilliard, for petitioner-appellant.", "Attorney General Michael F. Easley, by Assistant Attorney General Diane Martin Pomper, for respondent-appellee." ], "corrections": "", "head_matter": "MARY HEDGEPETH, Petitioner v. NORTH CAROLINA DIVISION OF SERVICES FOR THE BLIND, Respondent\nNo COA99-1240\n(Filed 6 March 2001)\n1. Appeal and Error\u2014 appealability \u2014 jurisdiction to review final agency decision \u2014 not waived\nThe question of whether the superior court had jurisdiction over a final agency decision involving the Division of Services for the Blind was reviewable even though it was raised for the first time on appeal. Objections to jurisdiction can be raised at any time, even on appeal or by a court sua sponte.\n2. Administrative Law\u2014 review of final agency decision\u2014 Division of Services for Blind \u2014 federal Rehabilitation Act\nThe superior court had jurisdiction to review a final agency decision from the Division of Services for the Blind under the federal Rehabilitation Act even though the Act did not then provide for judicial review of final agency decisions because neither the Act\u2019s statutory provisions nor federal cases expressly prohibited judicial review and the Department of Health and Human Services and its Division of Services for the Blind are not fully exempt from the North Carolina Administrative Procedure Act. Individuals aggrieved pursuant to the Rehabilitation Act are not required to seek administrative review in a contested case hearing before the OAH via the contested case hearing provisions of the NCAPA. Respondent here established procedures for internal review of agency decisions and petitioner utilized the procedures mandated by the Rehabilitation Act and the State administrative code.\n3. Administrative Law\u2014 review of final agency decision\u2014 standard of review not stated for each separate issue\nA trial court review of a final agency decision of the Division of Services for the Blind was reversed and remanded where the trial court stated the proper standards of review (both de novo and whole record) but failed to delineate which standard the court utilized in resolving each separate issue raised. Moreover, the confusion inherent in the trial court\u2019s order is compounded by the lack of a transcript or other record of proceedings before the Superior Court.\nAppeal by petitioner from order entered 1 July 1999 by Judge Frank R. Brown in Superior Court, Nash County. Heard in the Court of Appeals 25 August 2000.\nEastern Carolina Legal Services, by Hazel Mack-Hilliard, for petitioner-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Diane Martin Pomper, for respondent-appellee." }, "file_name": "0338-01", "first_page_order": 368, "last_page_order": 379 }