{ "id": 4166767, "name": "MAHATAM S. JAILALL, Petitioner v. NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION, Respondent", "name_abbreviation": "Jailall v. North Carolina Department of Public Instruction", "decision_date": "2009-04-07", "docket_number": "No. COA08-352", "first_page": "90", "last_page": "100", "citations": [ { "type": "official", "cite": "196 N.C. App. 90" } ], "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": "117 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525891 ], "year": 1995, "opinion_index": -1, "case_paths": [ "/nc-app/117/0521-01" ] }, { "cite": "161 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8960084 ], "year": 2003, "opinion_index": -1, "case_paths": [ "/nc-app/161/0700-01" ] }, { "cite": "546 U.S. 819", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5909576, 5974760, 5898442, 5946699, 5883083, 5915275, 6014958, 5929421, 5997778, 5894518, 5925401, 5920026 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/546/0819-11", "/us/546/0819-06", "/us/546/0819-04", "/us/546/0819-05", "/us/546/0819-07", "/us/546/0819-09", "/us/546/0819-12", "/us/546/0819-10", "/us/546/0819-01", "/us/546/0819-03", "/us/546/0819-08", "/us/546/0819-02" ] }, { "cite": "611 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632717 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/611/0853-01" ] }, { "cite": "359 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801539, 12632708, 3796390, 12632712, 3800330, 12632716, 3802445, 3803245, 3796782, 12632717, 12632719, 3796211, 3800119 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0326-03", "/se2d/611/0847-02", "/nc/359/0326-02", "/se2d/611/0850-01", "/nc/359/0326-08", "/se2d/611/0852-02", "/nc/359/0326-04", "/nc/359/0326-01", "/nc/359/0326-05", "/se2d/611/0853-01", "/se2d/611/0854-02", "/nc/359/0326-07", "/nc/359/0326-06" ] }, { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "598 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631413 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/598/0380-01" ] }, { "cite": "358 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631407, 12631408, 12631378, 12631413, 12631383 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/598/0140-01", "/se2d/598/0141-01", "/se2d/597/0773-01", "/se2d/598/0380-01", "/se2d/597/0775-02" ] }, { "cite": "126 S. Ct. 350", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2005, "opinion_index": 0 }, { "cite": "163 L. Ed. 2d 59", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "605 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "163", "parenthetical": "\"In considering a motion to dismiss for lack of subject matter jurisdiction, it is appropriate for the court to consider and weigh matters outside of the pleadings.\"" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411238 ], "year": 2004, "pin_cites": [ { "page": "327", "parenthetical": "\"In considering a motion to dismiss for lack of subject matter jurisdiction, it is appropriate for the court to consider and weigh matters outside of the pleadings.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0324-01" ] }, { "cite": "785 F.2d 584", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1565154 ], "year": 1986, "pin_cites": [ { "page": "586-87", "parenthetical": "holding that failure of defendant to comply with its own RIF policy allowed jury to conclude RIF was pretextual" } ], "opinion_index": 0, "case_paths": [ "/f2d/785/0584-01" ] }, { "cite": "440 F.3d 1186", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 82050 ], "year": 2006, "pin_cites": [ { "page": "1194" } ], "opinion_index": 0, "case_paths": [ "/f3d/440/1186-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "451 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "881" }, { "page": "882" } ], "opinion_index": 0 }, { "cite": "476 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "385", "parenthetical": "\"By [enacting N.C. Gen. Stat. \u00a7 126-34.1(e)], the General Assembly has indicated its intent to create grounds for appeal to the Commission through a contested case hearing only on issues for which appeal has been specifically authorized in G.S. section 126-34.1.\"" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888856 ], "year": 1996, "pin_cites": [ { "page": "161", "parenthetical": "\"By [enacting N.C. Gen. Stat. \u00a7 126-34.1(e)], the General Assembly has indicated its intent to create grounds for appeal to the Commission through a contested case hearing only on issues for which appeal has been specifically authorized in G.S. section 126-34.1.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0158-01" ] }, { "cite": "389 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "38-39" } ], "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "449 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "453", "parenthetical": "\"[T]he APA grants the right to a contested case hearing to all persons aggrieved by a state agency decision unless jurisdiction is expressly excluded by the APA or the organic act which created the right.\"" } ], "opinion_index": 0 }, { "cite": "338 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520709 ], "year": 1994, "pin_cites": [ { "page": "304", "parenthetical": "\"[T]he APA grants the right to a contested case hearing to all persons aggrieved by a state agency decision unless jurisdiction is expressly excluded by the APA or the organic act which created the right.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0302-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "774" }, { "page": "777" }, { "page": "779", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "579" }, { "page": "584" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "598 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "134" } ], "opinion_index": 0 }, { "cite": "358 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986601 ], "year": 2004, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "year": 2007, "pin_cites": [ { "page": "(a) and (c)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "706" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 29, "year": 2007, "pin_cites": [ { "page": "(a)(l) and (e)" }, { "page": "(a)(1)" }, { "page": "702" }, { "page": "(a)(1)" }, { "page": "(e)", "parenthetical": "emphasis supplied" }, { "page": "704" }, { "parenthetical": "emphasis added" }, { "page": "(e)" }, { "parenthetical": "internal citations omitted" }, { "page": "(a)(1)" }, { "page": "(a) and (e)" }, { "page": "(e)" }, { "page": "(a)(l)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "590 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 2003, "pin_cites": [ { "page": "402" }, { "page": "402" }, { "page": "403" }, { "page": "403" }, { "page": "404" }, { "page": "404" }, { "page": "402" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525891 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0521-01" ] }, { "cite": "161 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8960084 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "701-02" }, { "page": "704" }, { "page": "705" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0700-01" ] } ], "analysis": { "cardinality": 889, "char_count": 23351, "ocr_confidence": 0.753, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3053359481575953 }, "sha256": "79a3594349546b8830acc1c2e2b731dc5fab5c8d9cfb4d643a0609ac12d6d652", "simhash": "1:1f603542f6fda590", "word_count": 3883 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STEPHENS concur." ], "parties": [ "MAHATAM S. JAILALL, Petitioner v. NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nPetitioner Mahatam S. Jailall appeals from the superior court\u2019s order affirming the dismissal of his contested case by the Office of Administrative Hearings (\u201cOAH\u201d). Jailall\u2019s petition for a contested case hearing alleged that he had been discharged without just cause when his employment was terminated as a result of a reduction in force (\u201cRIF\u201d). Both the OAH administrative law judge (\u201cALJ\u201d) and the superior court concluded that Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401 (2003), disc. review denied, 358 N.C. 380, 598 S.E.2d 380 (2004), required that the contested case be dismissed. Although Jailall contends that Feinstein is distinguishable, we have concluded it controls this appeal, and, under In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), we are required to affirm the decision below. The concerns raised by both Jailall and the amicus curiae, State Employees Association of North Carolina, Inc., as to the consequences of Feinstein cannot influence this panel\u2019s decision, but rather must be addressed to the Supreme Court and the General Assembly.\nFacts\nIn 2007, Jailall was employed as an education consultant by respondent North Carolina Department of Public Instruction (\u201cDPI\u201d). Because he had in excess of 24 months of continuous state service, he was a career State employee under N.C. Gen. Stat. \u00a7 126-1.1 (2007). On 30 August 2007, DPI sent Jailall a \u201cNotice of Reduction in Force (RIF) Separation.\u201d The notice stated that his position was 100% funded by a federal program that had been discontinued and, therefore, the funding for his position would expire on 30 September 2007. The notice advised Jailall that he had a right to appeal the decision to terminate his employment and that he was entitled to priority re-employment.\nOn 2 October 2007, Jailall filed a petition for a contested case with OAH, alleging that he was selected for the RIF because of \u201c(a) his race and national origin (Asian Indian and Guyana, respectively), in violation of state and federal law, and (b) for the additional discriminatory reason of protecting from RIF on the grounds of race the positions of one or more African-American females having less seniority than Petitioner, also in violation of state and federal law.\u201d After following DPI\u2019s internal grievance procedures and obtaining a final agency decision upholding his RIF on 2 November 2007, Jailall filed a second petition with OAH on 7 November 2007, alleging that he was \u201cinvoluntarily separated from employment without just cause.\u201d In this petition, Jailall alleged that DPI \u201c(1) [e]xceeded its authority or jurisdiction, (2) [a]cted erroneously, (3), [sic] [f]ailed to use proper procedure, (4) [\u00b6] ailed to act as required by law or rule, and/or (5) was arbitrary, capricious, and/or abused its discretion.\u201d\nOn 10 December 2007, DPI moved to dismiss the 7 November 2007 petition pursuant to N.C.R. Civ. P. 12(b)(1) or (b)(6) or alternatively for summary judgment. DPI noted that the petition asserted that the RIF was without just cause. DPI contended that Feinstein precluded such a claim and, therefore, OAH had no jurisdiction over Jailall\u2019s petition. On 21 December 2007, the OAH ALJ granted DPI\u2019s motion pursuant to N.C.R. Civ. P. 12(b)(1).\nOn 2 January 2008, Jailall filed a petition for judicial review in Wake County Superior Court. The Honorable A. Leon Stanback entered an order on 3 March 2008, noting that Jailall alleged that he was involuntarily separated from employment due to a RIF and that he was entitled to appeal his involuntary RIF separation under N.C. Gen. Stat. \u00a7 126-34.1 (2007) for lack of just cause and for procedural violations. The trial court ruled: \u201cBased upon reviewing the legal question raised in this petition for judicial review on a de novo basis, this Court finds that it is constrained by the Court of Appeals\u2019 decision in Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 590 S.E.2d 401 (2003), [disc. review denied], 358 N.C. 380, 598 S.E.2d 380 (2004), holding that career state employees separated under a RIF could not bring either just cause or procedural appeals based on that separation.\u201d The trial court, therefore, affirmed the AU\u2019s decision dismissing Jailall\u2019s contested case petition. Jailall timely appealed to this Court.\nDiscussion\nJailall argues that the trial court erred in affirming the AU\u2019s decision dismissing Jailall\u2019s contested case for lack of subject matter jurisdiction. Jailall first contends that N.C. Gen. Stat. \u00a7 126-34.1, read in conjunction with N.C. Gen. Stat. \u00a7 126-35 (2007), provides OAH jurisdiction to hear contested cases brought by former state employees alleging that their involuntary separation due to a RIF was without just cause. Jailall also argues that OAH has subject matter jurisdiction to hear his contested case based on the allegation in his petition that DPI \u201c[flailed to use proper procedure\u201d in conducting the RIF.\nN.C. Gen. Stat. \u00a7 126-34.1 provides in pertinent part:\n(a) A State employee or former State employee may file in the Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to the following personnel actions or issues:\n(1) Dismissal, demotion, or suspension without pay based upon an alleged violation of G.S. 126-35, if the employee is a career State employee.\n(e) Any issue for which appeal to the State Personnel Commission through the filing of a contested case under Article 3 of Chapter 150B of the General Statutes has not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.\nN.C. Gen. Stat. \u00a7 126-34.1(a)(l) and (e). In turn, N.C. Gen. Stat. \u00a7 126-35, the provision referenced in N.C. Gen. Stat. \u00a7 126~34.1(a)(l), states:\n(a) No career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. . . .\n(c) For the purposes of contested case hearings under Chapter 150B, an involuntary separation (such as a separation due to a reduction in force) shall be treated in the same fashion as if it were a disciplinary action.\nN.C. Gen. Stat. \u00a7 126-35(a) and (c).\nJailall reads the reference in N.C. Gen. Stat. \u00a7 126-34.1(a)(1) to N.C. Gen. Stat. \u00a7 126-35 as establishing OAH jurisdiction over his just cause RIF claim \u201cgiven [that] 126-35 itself states that the statute is violated not only by a disciplinary dismissal without just cause, but also by an involuntary separation, \u2018such as ... a [RIF],\u2019 without just cause . . . .\u201d Feinstein, however, holds to the contrary.\nIn Feinstein, three state employees who worked in the university system had their positions eliminated as a result of a RIF. 161 N.C. App. at 701-02, 590 S.E.2d at 402. On appeal, this Court addressed whether N.C. Gen. Stat. \u00a7 126-34.1 \u201cexcludes appeals to OAH of RIFs on grounds of lack of just cause and procedural violations. \u201d Id. at 702, 590 S.E.2d at 402.\nWith respect to whether an employee dismissed as a result of a RIF may assert a claim for dismissal without just cause, the panel in Feinstein noted first:\nN.C. Gen. Stat. \u00a7 126-34.1(a)(1) specifically refers to \u201cdismissal, demotion, or suspension\u201d without just cause but does not mention RIFs for lack of just cause as a basis for appealing a RIF. RIFs are specifically referred to only twice in the statute. The General Assembly clearly stated in N.C. Gen. Stat. \u00a7 126-34.1 that a contested case that \u201chas not been specifically authorized by this section shall not be grounds for a contested case under Chapter 126.\u201d N.C. Gen. Stat. \u00a7 126-34.1(e) (2001) (emphasis supplied).\nId. at 704, 590 S.E.2d at 403. The Court reiterated: \u201cThe language of N.C. Gen. Stat. \u00a7 126-34.1 clearly and unambiguously states that the statutory list of appeal grounds in N.C. Gen. Stat. \u00a7 126-34.1 is exclusive. This list does not provide for appeals to OAH of RIFs based on lack of just cause.\" Id. (emphasis added).\nThe Court acknowledged the language in N.C. Gen. Stat. \u00a7 126-35(c) providing that a separation due to a reduction in force \u201cshall be treated in the same fashion as if it were a disciplinary action,\u201d N.C. Gen. Stat. \u00a7 126-35(c), but noted that \u00a7 126-34.1 was enacted five years after N.C. Gen. Stat. \u00a7 126-35. Feinstein, 161 N.C. App. at 704, 590 S.E.2d at 403. The Court then reasoned:\nBy its own terms of exclusion, N.C. Gen. Stat. \u00a7 126-34.1 supersedes and controls over any contrary earlier enactments. N.C. Gen. Stat. \u00a7 126-35(c) existed as statutory law when N.C. Gen. Stat. \u00a7 126-34.1(e) was enacted. Our Supreme Court has held that construing conflicting statutes to give validity and effect to both is only possible if it can be done without destroying the evident intent and meaning of the later enacted act. Given its clear and unambiguous language, the later enacted N.C. Gen. Stat. \u00a7 126-34.1 supplants N.C. Gen. Stat. \u00a7 126-35. Otherwise, the evident intent of the later enacted N.C. Gen. Stat. \u00a7 126-34.1 in setting out the specific contested cases that are appealable to OAH would be eliminated.\nId. (internal citations omitted).\nWith respect to the employees\u2019 claim that the university had violated the procedures governing RIFs, the panel in Feinstein reviewed the legislative history of the bills resulting in N.C. Gen. Stat. \u00a7\u2022126-34.1 and concluded:\nHere, the General Assembly considered granting state employees the right to bring RIF policy violations as a contested case before OAH. Both the House and Senate bills were amended to delete this particular ground from contested cases. The ratified bill enacted excluded this ground. The General Assembly clearly intended to deny OAH jurisdiction over challenges to RIFs on procedural violation grounds and to grant state employees the right to bring only those RIF claims that are specifically set out in N.C. Gen. Stat. \u00a7 126-34.1 before OAH.\nFeinstein, 161 N.C. App. at 705, 590 S.E.2d at 404.\nThe Court then concluded: \u201cThe trial court erred in holding that the later enacted N.C. Gen. Stat. \u00a7 126-34.1 does not supersede N.C. Gen. Stat. \u00a7 126-35(c) and that OAH has jurisdiction to determine whether respondents\u2019 RIFs were based on lack of just cause or procedural violations.\u201d Id. at 706, 590 S.E.2d at 404. The Court reversed and remanded to the superior court for entry of an order directing OAH to grant the university\u2019s motion to dismiss. Id.\nJailall and the amicus each argue that the Feinstein panel\u2019s analysis of the applicable statutes and the legislative history of N.C. Gen. Stat. \u00a7 126-34.1 is flawed. We are not, however, free to revisit that panel\u2019s analysis. See State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004) (\u201cWhile we recognize that a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel and may duly note its disagreement or point out that error in its opinion, the panel is bound by that prior decision until it is overturned by a higher court.\u201d).\nAlternatively, Jailall argues that Feinstein is distinguishable because the employees in Feinstein were former employees of the North Carolina University system and, therefore, exempt from the contested case provisions in the Administrative Procedure Act (\u201cAPA\u201d). See N.C. Gen. Stat. \u00a7 150B-l(f) (2007) (exempting University system from all but judicial review provisions of APA). Jailall points to Feinstein\u2019s acknowledgement of the employees\u2019 exemption from the APA and the panel\u2019s subsequent assertion that \u201c[t]he rights of university employees to challenge any employment action in OAH must derive independently, from [t]he State Personnel Act.\u201d 161 N.C. App. at 703, 590 S.E.2d at 402. The Court further stated that \u201cOAH\u2019s jurisdiction over appeals of university employee grievances exists solely within the limits established by the State Personnel Act.\u201d Id., 590 S.E.2d at 403 (citing Empire Power Co. v. N.C. Dep\u2019t of Env\u2019t, Health & Natural Res., 337 N.C. 569, 579, 447 S.E.2d 768, 774 (1994)).\nJailall notes that DPI employees, in contrast to the Feinstein employees, are subject to both the APA and the State Personnel Act (\u201cSPA\u201d). He contends that, based on this distinction, even if he cannot bring his just cause RIF claim as a contested case under N.C. Gen. Stat. \u00a7 126-34.1(a)(1), he is entitled to bring it under Article 3 of the APA, N.C. Gen. Stat. \u00a7\u00a7 150B-22 through 150B-37 (2007). In making this argument, he relies upon the Supreme Court\u2019s decision in Empire Power.\nIn Empire Power, the Supreme Court \u201creaffirmed\u201d the general principle that \u201cthe NCAPA confers upon any \u2018person aggrieved\u2019 the right to commence an administrative hearing to resolve a dispute with an agency involving the person\u2019s rights, duties, or privileges.\u201d 337 N.C. at 584, 447 S.E.2d at 777. A petitioner is entitled to bring a contested case under N.C. Gen. Stat. \u00a7 150B-23 (2007) \u201cto resolve a dispute involving his rights, duties, or privileges, unless (1) he is not a \u2018person aggrieved,\u2019 by the decision of the [agency], or (2) the organic statute . . . amends, repeals or makes an exception to the NCAPA so as to exclude him from those expressly entitled to appeal thereunder.\u201d Empire Power, 337 N.C. at 588, 447 S.E.2d at 779 (internal citation omitted). Accord North Buncombe Ass\u2019n of Concerned Citizens, Inc. v. N.C. Dep\u2019t of Env\u2019t, Health & Natural Res., 338 N.C. 302, 304, 449 S.E.2d 451, 453 (1994) (\u201c[T]he APA grants the right to a contested case hearing to all persons aggrieved by a state agency decision unless jurisdiction is expressly excluded by the APA or the organic act which created the right.\u201d).\nThere is no dispute that Jailall is a \u201cperson aggrieved\u201d within the meaning of the APA, N.C. Gen. Stat. \u00a7 150B-2(6) (2007). As the Supreme Court acknowledged in Empire Power, the organic statute at issue for state employees is the SPA:\nFor example, permanent state employees of agencies not expressly exempted from the administrative hearing provisions of the NCAPA, as was the case in Batten [v. N.C. Dep\u2019t of Corr., 326 N.C. 338, 389 S.E.2d 35 (1990), overruled in part by Empire Power Co. v. N.C. Dep\u2019t of Env\u2019t, Health & Natural Res., 337 N.C. 569, 447 S.E.2d 768 (1994)], and subject to the State Personnel Act, are entitled to an administrative hearing by virtue of the NCAPA as well as the State Personnel Act. In turn, it is only because the latter act, N.C.G.S. \u00a7 126-35, creates a right in public employment, i.e., the right not to be discharged, suspended or reduced in pay or position except for just cause, see Batten, 326 N.C. at 343, 389 S.E.2d at 38-39, that the employee is entitled to a hearing by virtue of the NCAPA also. But for N.C.G.S. \u00a7 126-35, those employees can have no dispute involving their rights, duties, or privileges, within the meaning of N.C.G.S. \u00a7 150B-22.\n337 N.C. at 583 n.1, 447 S.E.2d at 777 n.1.\nArticle 8 of the SPA, the \u201corganic statute\u201d in this case, is titled \u201cEmployee Appeals of Grievances and Disciplinary Action.\u201d Within this Article falls N.C. Gen. Stat. \u00a7 126-34.1, which is entitled \u201cGrounds for contested case under the State Personnel Act defined.\u201d The SPA, through N.C. Gen. Stat. \u00a7 126-34.1(a) and (e), expressly \u201cdefine [s]\u201d the \u201conly\u201d types of \u201cpersonnel actions or issues\u201d that may be grounds for a contested case in OAH under Article 3 of the APA and unequivocally excludes from OAH jurisdiction those contested cases based on grounds \u201cnot... specifically authorized\u201d by the statute. Under Empire Power, OAH\u2019s jurisdiction over DPI employees\u2019 contested cases derives exclusively from the SPA and not from the APA. See also Dunn v. N.C. Dep\u2019t of Human Res., 124 N.C. App. 158, 161, 476 S.E.2d 383, 385 (1996) (\u201cBy [enacting N.C. Gen. Stat. \u00a7 126-34.1(e)], the General Assembly has indicated its intent to create grounds for appeal to the Commission through a contested case hearing only on issues for which appeal has been specifically authorized in G.S. section 126-34.1.\u201d). In other words, the distinction between Feinstein and this case \u2014 university employees as opposed to DPI employees \u2014 is immaterial to the analysis. Feinstein\u2019s holding is, therefore, controlling.\nThe amicus argues, however, that Feinstein effectively overruled a prior decision of this Court: White v. N.C. Dep\u2019t of Corr., 117 N.C. App. 521, 451 S.E.2d 876 (1995). As the amicus notes, when two opinions of this Court conflict, we are obligated to follow \u201cthe older of the two cases.\u201d In re R.T.W., 359 N.C. 539, 542 n.3, 614 S.E.2d 489, 491 n.3 (2005). White is not, however, relevant to the alleged facts of this case. As this Court stated in White, the question presented for review was: \u201c[W]hen respondent placed petitioner on leave without pay, was this the equivalent of suspension for disciplinary reasons within the meaning of N.C.G.S. \u00a7 126-35?\u201d White, 117 N.C. App. at 528, 451 S.E.2d at 881. After acknowledging that leave without pay can be a benefit to the employee, the Court pointed out that the employee \u201cmade no application for leave without pay. Instead, respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay.\u201d Id. at 529, 451 S.E.2d at 882. The Court concluded that involuntarily placing an employee on leave without pay cannot be distinguished from a suspension: \u201cThis was, in essence, a suspension, which could not be made without just cause.\u201d Id.\nAmicus asserts that White established \u201c[t]he principle . . . that a state career state [sic] employee\u2019s involuntary displacement from his job by Ms employer is, in essence, a disciplinary action for wMch Gen. Stat. \u00a7 126-35(a) requires just cause . . . .\u201d White cannot be read this expansively. Instead, it holds that the employer cannot avoid the requirement of \u201cjust cause\u201d by placing the label of involuntary \u201cleave without pay\u201d on an action that is in actuality a suspension.\nWhile White is not inconsistent with Feinstein, it does protect employees from the negative consequences of Feinstein forecast by the amicus. According to amicus, \u201c[t]he Superior Court\u2019s ruling, as it stands, allows a state agency employer to avoid OAH review of any disciplinary dismissal of an employee by simply stating that the purported reason for the dismissal is a RIF.\u201d Under White, however, an employee can still argue that the termination of his employment was not actually the result of a RIF, but rather the RIF label was used to disguise a dismissal without cause that would fall within the scope of N.C. Gen. Stat. \u00a7 126-34.1(a)(l). Moreover, an employee bringing a contested case under N.C. Gen. Stat. \u00a7 126-34.1(a)(2) may still argue that his purported RIF was a pretext for unlawful discrimination. See, e.g., Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1194 (10th Cir. 2006) (\u201cWhere an employee is selected for RIF termination solely on the basis of position elimination, qualifications become irrelevant and one way that employee can show pretext is to present evidence that his job was not in fact eliminated but instead remained a single, distinct position.\u201d (internal quotation marks omitted)); Christie v. Foremost Ins. Co., 785 F.2d 584, 586-87 (7th Cir. 1986) (holding that failure of defendant to comply with its own RIF policy allowed jury to conclude RIF was pretextual).\nIn this case, however, Jailall has not specifically, argued in his contested case petition, his petition for judicial review, or on appeal that the RIF in this case was not actually a RIF, but instead was a sham RIF falling within the scope of White. The amicus\u2019 theory, arising out of White, cannot, therefore, serve as a basis for reversing the order below. Under Feinstein, the trial court properly upheld the AU\u2019s decision dismissing Jailall\u2019s claim that his RIF lacked just cause and was the result of procedural violations. Accordingly, we must affirm the trial court\u2019s order.\nAffirmed.\nJudges STEELMAN and STEPHENS concur.\n. Because the ALJ dismissed the petition under Rule 12(b)(1) for lack of subject matter jurisdiction, the documents attached to DPI\u2019s motion' were properly considered. See Tubiolo v. Abundant Life Church, Inc., 167 N.C. App. 324, 327, 605 S.E.2d 161, 163 (2004) (\u201cIn considering a motion to dismiss for lack of subject matter jurisdiction, it is appropriate for the court to consider and weigh matters outside of the pleadings.\u201d), appeal dismissed and disc. review denied, 359 N.C. 326, 611 S.E.2d 853, cert. denied, 546 U.S. 819, 163 L. Ed. 2d 59, 126 S. Ct. 350 (2005).\n. Empire Power was decided prior to the 1995 amendments to the SPA and, therefore, does not specifically mention N.C. Gen. Stat. \u00a7 126-34.1, which was enacted as part of those amendments. See 1995 N.C. Sess. Laws ch. 141.\n. Although the amicus suggests that Jailall\u2019s reference to the \u201cpurported RIF\u201d suggests that he was making the argument proposed by the amicus, the mere use of the word \u201cpurported\u201d without argument or discussion is too slim a reed on which to base a conclusion that Jailall intended to argue that his RIF falls within White. We also note that Jailall\u2019s contested case petition based on discrimination is still pending and not before us. Nothing in this opinion is intended to express any opinion on that contested case petition.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Law Offices of Michael C. Byrne, P.C., by Michael C. Byrne, for petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crum/pler, for respondent-appellee.", "State Employees Association of North Carolina, Inc., by Thomas A. Harris, General Counsel, for amicus curiae State Employees Association of North Carolina, Inc." ], "corrections": "", "head_matter": "MAHATAM S. JAILALL, Petitioner v. NORTH CAROLINA DEPARTMENT OF PUBLIC INSTRUCTION, Respondent\nNo. COA08-352\n(Filed 7 April 2009)\nAdministrative Law\u2014 termination without just cause by reduction in force \u2014 OAH jurisdiction\nThe Office of Administrative Hearings (OAH) did not have subject matter jurisdiction of a petition for a contested case hearing brought by a former career employee of the Department of Public Instruction alleging that he had been discharged without just cause when his employment was terminated as a result of a reduction in force (RIF) because: (1) N.C.G.S. \u00a7 126-34.1 provides the statutory list of exclusive appeal grounds, and the list does not provide for appeals to OAH of RIFs based on lack of just cause; (2) the Court of Appeals is bound by the decision in University of North Carolina at Chapel Hill v. Feinstein, 161 N.C. App. 700 (2003), and the distinction between university employees as opposed to DPI employees is immaterial to the analysis; and (3) the prior Court of Appeals decision in White v. N.C. Dep\u2019t of Corr., 117 N.C. App. 521 (1995), is not relevant to the facts of this case because White held that the employer cannot avoid the requirement of \u201cjust cause\u201d by placing the label of involuntary \u201cleave without pay\u201d on an action that is in actuality a suspension, and petitioner has not specifically argued in his contested case petition, his petition for judicial review, or on appeal that the RIF in this case was not actually a RIF, but instead was a sham RIF falling within the scope of White.\nAppeal by petitioner from order entered 3 March 2008 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 11 September 2008.\nLaw Offices of Michael C. Byrne, P.C., by Michael C. Byrne, for petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Laura E. Crum/pler, for respondent-appellee.\nState Employees Association of North Carolina, Inc., by Thomas A. Harris, General Counsel, for amicus curiae State Employees Association of North Carolina, Inc." }, "file_name": "0090-01", "first_page_order": 118, "last_page_order": 128 }