An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA13-801
                         NORTH CAROLINA COURT OF APPEALS

                               Filed:     20 May 2014


IN RE: PETITION OF JOSEPH JEMSEK,
JEMSEK M.D., LICENSE NO. 23386,

      Petitioner,
                                              Wake County
                                              No. 12-CVS-9321
BEFORE THE NORTH CAROLINA
MEDICAL BOARD



      Appeal by petitioner from order entered 18 January 2013 by

Judge Donald W. Stephens in Wake County Superior Court.                       Heard

in the Court of Appeals 20 November 2013.


      Law Office of Matthew I. Van Horn, by Matthew I. Van Horn,
      and Jacques G. Simon, pro hac vice, for petitioner-
      appellant.

      Elizabeth     R.    Suttles   and   Marcus    Jimison     for   respondent-
      appellee.


      DAVIS, Judge.


      Dr. Joseph Jemsek (“Dr. Jemsek”) appeals from the trial

court’s order dismissing his petition for judicial review of the

order of the North Carolina Medical Board (“the Board”) denying

his    request     for     a   declaratory      ruling     regarding      a    2006
                                               -2-
disciplinary         order    against         him.       After    careful     review,       we

affirm.

                                    Factual Background

       In June of 2006,              the Board         held a disciplinary hearing

concerning Dr. Jemsek’s treatment of ten patients who came to

him    exhibiting      symptoms          of    fatigue,      achiness,     and    decreased

concentration.         The Board determined that Dr. Jemsek diagnosed

each of these ten patients with Lyme disease “in a manner that

departed      from    acceptable         and       prevailing    standards       of   medical

practice,      including           making      a     diagnosis    with     scant      or    no

supporting historical, physical, serological or other laboratory

evidence supporting [the] diagnosis of Lyme disease.”                             The Board

also concluded that Dr. Jemsek’s course of treatment — which

consisted of administering oral or intravenous antibiotics to

the    patients      over    extended         periods     of    time   —   departed        from

acceptable and prevailing standards of practice in that there

was    “an    absence        of    any      research      or    clinical     evidence       of

efficacy” for such treatments.                     The Board further found that Dr.

Jemsek had failed to adequately educate and inform his patients

that    his    methods        of    diagnosing         and     treating    Lyme       disease

deviated from recognized standards.
                                    -3-
     By order dated 21 August 2006, the Board concluded that

these   departures    from   acceptable   and   prevailing      standards    of

practice   amounted     to   unprofessional     conduct   and    constituted

grounds to suspend Dr. Jemsek’s medical license for 12 months.

In   its   order,    however,    the    Board   immediately      stayed     the

suspension    of     Dr.     Jemsek’s   license    upon    the     following

conditions:

                   a. Dr. Jemsek shall develop an informed
                      consent form approved by the North
                      Carolina Board President.

                   b. If a patient’s diagnosis is not
                      supported   by  current   Center   for
                      Disease Control    (“CDC”) criteria,
                      then   the   patient   must   have   a
                      consultation or second opinion by a
                      North Carolina licensed infectious
                      disease physician approved by the
                      Board President before treatment.

                   c. Any treatment of Lyme Disease either
                      by oral or intravenous antibiotics
                      for greater than two months total
                      time must be included in a formal
                      research protocol with institutional
                      review   board   (“IRB”)   supervision
                      approved by the Board President.

                   d. Any complications of treatment must
                      be addressed . . . immediately.

Dr. Jemsek did not appeal the 21 August 2006 order.

     On 27 April 2012, Dr. Jemsek filed a petition with the

Board seeking a declaratory ruling that its 21 August 2006 order
                                                -4-
be declared “null and void.”                      The petition asserted that the

Board should issue such a ruling because the 21 August 2006

order (1) had expired on its own terms in 2007; (2) was moot

based on the theory that the conditions set forth in the order

had been fully complied with; (3) “was issued in excess of the

disciplinary subject matter jurisdiction and authority of the

Board conferred upon it by N.C. Gen. Stat. § 90-14(a)(6)”; (4)

bypassed         the       rulemaking        process     of      the     North        Carolina

Administrative             Procedure    Act      (“APA”);      (5)    used     an    erroneous

standard of care; (6) deserved to be vacated based upon the

recent      scientific          developments          recognized        in     the     medical

community        for    diagnosing        and    treating      Lyme    disease;       and   (7)

“impermissibly preclude[d] judicial appeal and review.”

       On   29    May       2012,   the    Board      issued    an     order    denying     Dr.

Jemsek’s request for a declaratory ruling.                           On 28 June 2012, Dr.

Jemsek      filed      a    petition      for    judicial      review    of     the    Board’s

denial in Wake County Superior Court.                       The Board filed a motion

to dismiss and a motion to strike his petition on 6 August 2012.

On 9 January 2013, Dr. Jemsek’s petition for judicial review was

heard by the Honorable Donald W. Stephens.                           On 18 January 2013,

the trial court entered an order (1) ruling “as a matter of law

that   the    Medical         Board    did      not   commit    error    in     denying     the
                                             -5-
request       for    a    declaratory     ruling”;          and    (2)    dismissing    the

petition       for       judicial     review    with        prejudice.       Dr.    Jemsek

appealed to this Court.

                                         Analysis

       “In reviewing a superior court order entered upon review of

an administrative agency decision, this Court has a two-fold

task:    (1)    determine          whether     the    trial       court   exercised    the

appropriate scope of review . . . ; [and] (2) decide whether the

court did so             properly.”     Cty. of Wake v. Dep’t of Env’t &

Natural Res., 155 N.C. App. 225, 233-34, 573 S.E.2d 572, 579

(2002)    (citation         and     quotation       marks    omitted),      disc.   review

denied, 357 N.C. 62, 579 S.E.2d 386 (2003).

       The agency decision before the trial court in the present

case    was    the       Board’s    denial     of    Dr.    Jemsek’s      request   for   a

declaratory ruling pursuant to N.C. Gen. Stat. § 150B-4.                               N.C.

Gen. Stat. § 150B-4 provides, in pertinent part, that

               [o]n request of a person aggrieved, an
               agency shall issue a declaratory ruling as
               to the validity of a rule or as to the
               applicability to a given state of facts of a
               statute administered by the agency or of a
               rule or order of the agency. Upon request,
               an agency shall also issue a declaratory
               ruling    to   resolve    a    conflict   or
               inconsistency within the agency regarding an
               interpretation of the law or a rule adopted
               by the agency.    The agency shall prescribe
               in its rules the procedure for requesting a
                                -6-
          declaratory ruling and the circumstances in
          which rulings shall or shall not be issued.

N.C. Gen. Stat. § 150B-4(a) (2013).

    In 2007, the Board adopted the following rule regarding the

disposition   of   requests   for   declaratory   rulings     and   the

circumstances under which such rulings shall — or shall not — be

issued:

          (a)   Upon   receipt    of    a  Request   for
          Declaratory   Ruling,     the   Board    shall
          determine whether a ruling is appropriate
          under the facts stated.

          (b) When the Board determines that the
          issuance   of  a   declaratory  ruling  is
          inappropriate, the Board shall notify, in
          writing, the person requesting the ruling,
          stating the reasons for the denial of the
          request.

          (c) The Board shall decline        to   issue   a
          declaratory ruling where:

               (1)   there    has  been   a    similar
                     controlling factual determination
                     made by the Board in a contested
                     case;

               (2)   the rule-making record shows that
                     the factual issues raised by the
                     request      were     specifically
                     considered prior to adoption of
                     the rule; or

               (3)   the subject-matter of the request
                     is involved in pending litigation
                     in any state or federal court in
                     North Carolina;
                                        -7-
                 (4)    the petitioner fails to show that
                        the circumstances are so changed
                        since the adoption of the statute
                        or   rule   that   a   ruling  is
                        warranted.

21 N.C.A.C. 32A.0112 (2013) (emphasis added).                   In its denial of

Dr. Jemsek’s request for a declaratory ruling, the Board cited

21 N.C.A.C. 32A.0112(c)(1)          —   that   “there has been a similar

controlling     factual       determination    made      by   the   Board    in    a

contested case” — as the basis for its decision.

    An agency’s denial of a request for a declaratory ruling is

not a decision on the merits of the case.                 See Equity Solutions

of the Carolinas, Inc. v. N.C. Dep’t of State Treasurer, ___

N.C. App. ___, ___, 754 S.E.2d 243, 249 (2014) (explaining that

when agency declines to issue declaratory ruling, “there has

been no agency decision on the merits [of the] case”).                      Because

the agency does not reach the merits of the request when it

declines   to   issue     a    declaratory     ruling,    the    merits     of    the

party’s petition for a declaratory ruling are not before the

superior court and thus are not before this Court.                   See id. at

___, 754 S.E.2d at 249          (“offer[ing] no opinion on the merits of

[petitioner’s] request for a declaratory ruling [because] [t]hat

issue was not before the trial court and is not before this

Court”).
                                      -8-
    Instead,    our    review    is   limited      solely     to    the      agency’s

decision to deny the request.             Because Dr. Jemsek contends that

the Board committed an error of law in denying his request for a

declaratory ruling, we review the denial de novo.                   Craven Reg’l

Med. Auth. v. N.C. Dep’t of Health & Human Servs., 176 N.C. App.

46, 51, 625 S.E.2d 837, 840 (2006) (“Where a party asserts an

error of law occurred [in an administrative agency decision], we

apply a de novo standard of review.”).

    In this case, we believe that the trial court correctly

dismissed Dr. Jemsek’s petition challenging the Board’s refusal

to issue a declaratory ruling.                 In 21 N.C.A.C. 32A.0112, the

Board   has   made    clear   that    it       “shall   decline     to       issue   a

declaratory   ruling     where   .    .    .    there   has    been      a    similar

controlling    factual    determination          made   by    the   Board      in    a

contested case.”       21 N.C.A.C. 32A.0112(c)(1) (emphasis added).

Here, the Board’s 21 August 2006 order — entered after a two-day

disciplinary hearing on Dr. Jemsek’s diagnostic and treatment

methods for Lyme disease — clearly constitutes a prior Board

decision on a similar factual determination in a contested case.

See N.C. Gen. Stat. § 150B-2(2) (2013) (defining contested case

as “an administrative proceeding . . . to resolve a dispute

between an agency and another person that involves the person’s
                                         -9-
rights, duties, or privileges, including licensing or the levy

of a monetary penalty . . . .”).

    Thus, while Dr. Jemsek contends that his petition for a

declaratory ruling presented issues that did not exist at the

time of the initial hearing in 2006, he cannot dispute that

there    was,    in   fact,     a     prior     determination    by       the   Board

concerning his approach to diagnosing and treating patients with

putative diagnoses of Lyme disease.                 Indeed, the bulk of Dr.

Jemsek’s petition for a declaratory ruling centered around his

request for a determination by the Board that its 21 August 2006

disciplinary     order    was       improper.      Specifically,      Dr.       Jemsek

sought a ruling from the Board declaring that it had utilized

the incorrect standard of care and improperly disciplined him

for exercising his medical judgment, which, in his view, did not

establish a departure from accepted practices.

    As    this    Court   has       previously     explained    in    a    different

context, an agency may properly deny a request for a declaratory

ruling when the request is based upon a factual situation that

the agency has already decided in a prior case.                  See Charlotte-

Mecklenburg Hosp. Auth. v. Bruton, 145 N.C. App. 190, 192-93,

550 S.E.2d 524, 526-27 (2001) (holding that denial of request

for declaratory ruling regarding Medicaid eligibility of legal
                                              -10-
aliens was appropriate given that agency “had previously decided

the    actual     cases     from      which    petitioners        drew   their          facts”),

disc. review denied, 355 N.C. 210, 559 S.E.2d 798 (2002).                                         We

reasoned that “[t]o hold otherwise would be to require an agency

to twice decide the same case, between the same parties, by

applying the same statute to the same facts.”                            Id. at 193, 550

S.E.2d at 526 (citation and quotation marks omitted).

       In    this     case,     Dr.    Jemsek’s      petition      for     a    declaratory

ruling essentially sought to relitigate the Board’s conclusion

set out in its 21 August 2006 order that Dr. Jemsek’s practices

departed from acceptable and prevailing standards regarding the

diagnosis and treatment of Lyme disease and requested that the

Board       rescind       its   2006    order.        The        trial    court’s            order

dismissing          Dr.     Jemsek’s          petition      for      judicial               review

specifically ruled that “[t]he matters requested for such ruling

have    been      previously       adjudicated       by     the    Board       in       a    final

decision by the Medical Board which was not appealed” and that

“[t]he current request by Petitioner is no more than an attempt

to untimely appeal the Medical Board’s 2006 disciplinary order.”

       We    agree.         The    Board’s      denial      of    the    request            for   a

declaratory ruling conformed with 21 N.C.A.C. 32A.0112(c)(1) and

was    in    no   way     inconsistent        with   N.C.    Gen.       Stat.       §    150B-4.
                                  -11-
Therefore,   we   hold   that   the   trial   court   did   not   err   in

dismissing Dr. Jemsek’s petition.

                                Conclusion

    For the reasons stated above, we affirm the trial court’s

order.

    AFFIRMED.

    Judges ELMORE and McCULLOUGH concur.

    Report per Rule 30(e).
