Davis v. North Carolina Dept. of Transp.

250 S.E.2d 64 (1978)

39 N.C. App. 190

Bobby DAVIS v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.

No. 7810SC65.

Court of Appeals of North Carolina.

December 19, 1978.

*65 Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. William W. Melvin, Raleigh, for the State.

M. H. McGee, Charlotte, for petitioner-appellant.

MORRIS, Chief Judge.

Petitioner assigns as error the trial court's 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, McCrary 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 "final agency decision". The judicial review provisions of the North Carolina Administrative Procedures Act provide in pertinent part as follows:

"§ 150A-43. Right to judicial review. 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 *66 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." "§ 150A-44. Right to judicial intervention when agency unreasonably delays decision. 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." "§ 150A-48. Stay of board order. 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."

Although petitioner denominated his action as a petition for temporary injunction under G.S. 150A-44, the remedy he is actually seeking is an "order staying the operation of the agency decision pending the outcome of review" of the case by the superior court, available under G.S. 150A-48 quoted above. Petitioner's 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.

A recent decision by this Court met precisely the same point presented by petitioner's 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's 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:

"Although 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 `Judicial Review,' and particularly G.S. 150A-43 which states that `[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....' We 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 `[u]nreasonable 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.' 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's dismissal pending final administrative review. King v. Baldwin, 276 N.C. 316, 172 S.E.2d 12 (1970)." 31 N.C.App. at 302-303, 229 S.E.2d at 211. 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).

A careful reading of the applicable statutes bear out the correctness of that *67 decision. G.S. 150A-44 provides for "a court order compelling action by the agency" 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 "before or during the review proceeding". Since according to G.S. 150A-43 review is available only after a "final agency decision", the stay of a decision is similarly only available after a "final agency decision".

We 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's recommendation for reinstatement and ordering a rehearing upon motion of the respondent.

Petitioner argues that because of the delay caused by the rehearing, this Court should treat the Commission's order for rehearing as essentially a "final agency decision" under G.S. 150A-43. Cf. Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961) (delay amounted to "final agency action" under § 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 "undue delay", 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.

The intervention of courts into proceedings before administrative agencies has been condemned in this State. Elmore v. Lanier, Com'r. of Insurance, 270 N.C. 674, 155 S.E.2d 114 (1967). Intrusion into these procedures should only be permitted under extraordinary circumstances where "undue delay" 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.

We 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 § 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.

In 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's evidence. Petitioner asserts this order was ultra vires. It is clear that the trial court's order was in effect a dismissal of the petition. It left the petitioner precisely where he was prior to the petition for injunctive relief. This assignment of error is overruled.

Affirmed.

ARNOLD and ERWIN, JJ., concur.