{ "id": 8550862, "name": "BOBBY DAVIS v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION", "name_abbreviation": "Davis v. North Carolina Department of Transportation", "decision_date": "1978-12-19", "docket_number": "No. 7810SC65", "first_page": "190", "last_page": "195", "citations": [ { "type": "official", "cite": "39 N.C. App. 190" } ], "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": "8 Wake Forest L. Rev. 67", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1971, "opinion_index": 0 }, { "cite": "47 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "parenthetical": "statutory remedy inadequate" } ], "opinion_index": 0 }, { "cite": "228 N.C. 768", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628523 ], "year": 1948, "pin_cites": [ { "parenthetical": "statutory remedy inadequate" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0768-01" ] }, { "cite": "155 S.E. 2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570077 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0674-01" ] }, { "cite": "435 F. 2d 1133", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2216779 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/435/1133-01" ] }, { "cite": "295 F. 2d 856", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 221710 ], "year": 1961, "pin_cites": [ { "parenthetical": "delay amounted to \"final agency action\" under \u00a7 10(c) of the Federal Administrative Procedures Act" } ], "opinion_index": 0, "case_paths": [ "/f2d/295/0856-01" ] }, { "cite": "233 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568391, 8568432, 8568464, 8568315, 8568351 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0264-03", "/nc/292/0264-04", "/nc/292/0264-05", "/nc/292/0264-01", "/nc/292/0264-02" ] }, { "cite": "230 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551784 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0641-01" ] }, { "cite": "243 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551169 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0080-01" ] }, { "cite": "516 F. 2d 357", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1132901 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/516/0357-01" ] }, { "cite": "230 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558651, 8558604, 8558621, 8558638 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0450-04", "/nc/291/0450-01", "/nc/291/0450-02", "/nc/291/0450-03" ] }, { "cite": "229 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549160 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "302-303" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0299-01" ] }, { "cite": "172 S.E. 2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561065 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0316-01" ] } ], "analysis": { "cardinality": 596, "char_count": 12341, "ocr_confidence": 0.826, "pagerank": { "raw": 3.027451970290377e-07, "percentile": 0.8543227809806672 }, "sha256": "43889994ccf6171e8f0b443b6784dfbe87b8a40f21f4b40360da90485772e865", "simhash": "1:3529554440d77f46", "word_count": 1990 }, "last_updated": "2023-07-14T17:57:00.834910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ARNOLD and ERWIN concur." ], "parties": [ "BOBBY DAVIS v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION" ], "opinions": [ { "text": "MORRIS, Chief Judge.\nPetitioner assigns as error the trial court\u2019s denial of his petition for temporary injunction and its remand of the action to the State Personnel Commission. He asserts that the court erred in concluding that there was no final agency decision within the meaning of G.S. 150A-43, therefore rendering the appeal premature and leaving the trial court without jurisdiction in the matter. It is well established that, as a prerequisite to judicial action, a party must generally exhaust available administrative remedies. King v. Baldwin, 276 N.C. 316, 172 S.E. 2d 12 (1970); Stevenson v. Dept. of Insurance, 31 N.C. App. 299, 229 S.E. 2d 209 (1976), cert. den., 291 N.C. 450, 230 S.E. 2d 767 (1977). But see, Mc-Crary v. Burrell, 516 F. 2d 357 (4th Cir. 1976); Williams v. Greene, 36 N.C. App. 80, 243 S.E. 2d 156 (1978). Closely akin to this concept is the statutory requirement that appeal may be taken only from a \u201cfinal agency decision\u201d. The judicial review provisions of the North Carolina Administrative Procedures Act provide in pertinent part as follows:\n\u201c\u00a7 150A-43. Right to judicial review. \u2014 Any person who is aggrieved by a final agency 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 such decision under this Article, unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute. Nothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.\u201d\n\u201c\u00a7 150A-44. Right to judicial intervention when agency unreasonably delays decision. \u2014Unreasonable delay on the part of any agency in reaching a final decision shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency.\u201d\n\u201c\u00a7 150A-48. Stay of board order. \u2014 At any time before or during the review proceeding, the person aggrieved may apply to the reviewing court for an order staying the operation of the agency decision pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper and subject to the provisions of G.S. 1A-1, Rule 65.\u201d\nAlthough petitioner denominated his action as a petition for temporary injunction under G.S. 150A-44, the remedy he is actually seeking is an \u201corder staying the operation of the agency decision pending the outcome of review\u201d of the case by the superior court, available under G.S. 150A-48 quoted above. Petitioner\u2019s position is apparently that, because of undue delay, he is entitled to a stay of his dismissal under G.S. 150A-44. This position is contrary to the case law and the plain words of the statute.\nA recent decision by this Court met precisely the same point presented by petitioner\u2019s appeal. In Stevenson v. Dept. of Insurance, supra, a permanent employee of the Department of Insurance was dismissed for gross misconduct and conduct unbecoming a State employee. The employee sought an injunction under G.S. 150A-48 ordering a stay of the Department\u2019s decision terminating his employment pending a decision of the State Personnel Commission. The employee alleged that he was without a source of income pending the hearing and was unable to support his family despite efforts to obtain other employment. This Court, in reversing an order reinstating the employee, made the following observations and conclusions:\n\u201cAlthough we recognize the vagueness of the quoted statute, we feel that taken in its proper context, it authorizes a stay order only of those final agency decisions in which the person aggrieved has exhausted his administrative remedies. G.S. 150A-48 must be construed in pari materia with the rest of Article 4, Chapter 150A, entitled \u2018Judicial Review,\u2019 and particularly G.S. 150A-43 which states that \u2018[a]ny person who is aggrieved by a final agency 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 such decision under this Article. . . .\u2019\nWe think that G.S. 150A-48 was meant to entitle the aggrieved person to a stay order only after the final agency decision and either before or after the initiation of judicial review. Final agency decisions should be rendered after a hearing held without undue delay under G.S. 150A-23. G.S. 150A-44 provides that \u2018[unreasonable delay on the part of any agency in reaching a final decision shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency.\u2019 In the present case, this right may be asserted to prevent unreasonable delay in reaching a final agency decision but we do not think the superior court had authority to enter a stay order respecting plaintiff\u2019s dismissal pending final administrative review. King v. Baldwin, 276 N.C. 316, 172 S.E. 2d 12 (1970).\u201d 31 N.C. App. at 302-303. See also Church v. Board of Education, 31 N.C. App. 641, 230 S.E. 2d 769 (1976), cert. den., 292 N.C. 264, 233 S.E. 2d 391 (1977).\nA careful reading of the applicable statutes bears out the correctness of that decision. G.S. 150A-44 provides for \u201ca court order compelling action by the agency\u201d as a supplement to the provisions against undue delay in holding a hearing. G.S. 150A-23(a). G.S. 150A-48 is a vehicle for reinstatement only \u201cbefore or during the review proceeding\u201d. Since according to G.S. 150A-43 review is available only after a \u201cfinal agency decision\u201d, the stay of a decision is similarly only available after a \u201cfinal agency decision\u201d.\nWe are cognizant of the fact that in Stevenson v. Dept. of Insurance, supra, the employee was awaiting his initial hearing before the State Personnel Commission whereas petitioner in this case is awaiting a rehearing. Nevertheless, in neither case has the Commission rendered a final decision. Here the Commission declined to make a decision by rejecting the'hearing officer\u2019s recommendation for reinstatement and ordering a rehearing upon motion of the respondent.\nPetitioner argues that because of the delay caused by the rehearing, this Court should treat the Commission\u2019s order for rehearing as essentially a \u201cfinal agency decision\u201d under G.S. 150A-43. Cf. Deering Milliken, Inc. v. Johnston, 295 F. 2d 856 (4th Cir. 1961) (delay amounted to \u201cfinal agency action\u201d under \u00a7 10(c) of the Federal Administrative Procedures Act); See also Nor-Am. Agricultural Products, Inc. v. Hardin, 435 F. 2d 1133 (7th Cir. 1970). Under the facts of this case we decline to so hold. Although it is true G.S. 150A-23(a) requires a hearing without \u201cundue delay\u201d, we are unable to conclude from the record that there was undue delay in providing a hearing for the petitioner. The pertinent statute provides that if a party fails to appear after proper service of notice, the agency may proceed and render its decision in the absence of that party. G.S. 150A-25. The language is permissive, not mandatory. The Commission was acting within its statutory authority in ordering another hearing on the matter.\nThe intervention of courts into proceedings before administrative agencies has been condemned in this State. Elmore v. Lanier, Com\u2019r. of Insurance, 270 N.C. 674, 155 S.E. 2d 114 (1967). Intrusion into these procedures should only be permitted under extraordinary circumstances where \u201cundue delay\u201d has left an aggrieved party without an adequate remedy at law. Cf. Transit Co. v. Coach Co., 228 N.C. 768, 47 S.E. 2d 297 (1948) (statutory remedy inadequate). Petitioner has not presented such a case.\nWe are not unmindful of the mounting and valid nationwide criticism of the complexities and intricacies involved in the review of administrative actions at both the state and federal levels. Neither do we delight in applying the technicalities of the system to delay a decision on the merits of the case. See K. Davis, Administrative Law Treatise \u00a7 24.06 (Supp. 1970); Comment, Administrative Law: Judicial Review in North Carolina, 8 Wake Forest L. Rev. 67 (1971). Nevertheless, the statute and the case law are clear. A contrary holding could result in allowing employees who have been dismissed for good cause to take advantage of these same procedural intricacies and abuse the right to review by delaying the effect of dismissals at the expense of the taxpayers of the State.\nIn his second assignment of error petitioner asserts that once the trial court ruled, it was without jurisdiction and that it could not then remand the case for a hearing for the taking of respondent\u2019s evidence. Petitioner asserts this order was ultra vires. It is clear that the trial court\u2019s order was in effect a dismisssal of the petition. It left the petitioner precisely where he was prior to the petition for injunctive relief. This assignment of error is overruled.\nAffirmed.\nJudges ARNOLD and ERWIN concur.", "type": "majority", "author": "MORRIS, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Deputy Attorney General William W. Melvin, for the State.", "M. H. McGee for the petitioner appellant." ], "corrections": "", "head_matter": "BOBBY DAVIS v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION\nNo. 7810SC65\n(Filed 19 December 1978)\nAdministrative Law \u00a7 4\u2014 dismissal of State employee \u2014stay order prior to final agency decision \u2014 delay caused by rehearing\nThe superior court had no authority under G.S. 150A-48 to enter a stay order of the dismissal of an employee of the N.C. Department of Transportation before a final decision was entered by the State Personnel Commission, and the Commission\u2019s order for a rehearing of petitioner\u2019s case after it declined to follow the recommendation of the hearing officer that a default be entered against the Department of Transportation for its failure to appear will not be deemed a \u201cfinal agency decision\u201d under G.S. 150A-43 on the facts of this case.\nAPPEAL by petitioner from Canaday, Judge. Judgment entered 28 July 1977 in the Superior Court, WAKE County. Heard in the Court of Appeals 23 October 1978.\nPetitioner is appealing the denial in the Superior Court, Wake County, of his petition for the issuance of a \u201ctemporary injunction restoring the Petitioner to his job\u201d as Driver\u2019s License Examiner with the Department of Transportation \u201cwith full back pay, seniority, and all benefits, and that his employment records be purged of any reference to the matter of his discharge.\u201d Petitioner also seeks to enjoin further action by the Commissioner. On 17 December 1975, petitioner was notified of his dismissal based on four charges. The charges were as follows: (1) \u201cBeing absent from duty station without approved leave or authorization;\u201d (2) \u201cConduct unbecoming to position of Driver License Examiner;\u201d (3) \u201cEmbarrasment to the Commissioner and Driver License Section due to publicity from present confinement;\u201d and (4) \u201cFailure to take care of personal problems to avoid present conditions.\u201d\nPetitioner sought review of his dismissal through administrative channels. On 9 February 1976, petitioner was afforded a hearing before the Personnel Officer of the Department of Motor Vehicles. When reinstatement was denied, petitioner appealed to the Employee Relations Committee of the Department of Transportation. After a hearing before that committee on 8 July 1976, petitioner was again denied reinstatement. Notice of appeal for a hearing de novo before the State Personnel Commission was duly filed.\nThe hearing was scheduled and held 11 February 1977, before a hearing officer. When the Department of Transportation failed to appear at the hearing, the hearing officer recommended that default be entered against it. The full State Personnel Commission declined to accept the recommendations of the hearing officer and remanded the matter for a second hearing upon motion of the Department of Transportation.\nPetitioner then petitioned the Superior Court for a temporary injunction pursuant to G.S. 150A-43 and 44.\nFrom the judgment of the Superior Court denying petitioner\u2019s prayer for reinstatement and ordering remand of the matter to the State Personnel Commission\u2019s hearing officer in accordance with the remand order of the full Commission, petitioner appeals.\nAttorney General Edmisten, by Deputy Attorney General William W. Melvin, for the State.\nM. H. McGee for the petitioner appellant." }, "file_name": "0190-01", "first_page_order": 218, "last_page_order": 223 }