               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA 17-1303

                                  Filed: 15 May 2018

Cabarrus County, No. 17 CVS 000366

PAUL W. SWAUGER, Petitioner,

              v.

UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE, Respondent.


        Appeal by Petitioner from Order entered 10 July 2017 by Judge Martin B.

McGee in Cabarrus County Superior Court. Heard in the Court of Appeals 3 May

2018.


        Pinto Coates Kyre & Bowers, PLLC, by Jon Ward and Matthew J. Millisor, for
        Petitioner-Appellant Paul W. Swauger.

        Attorney General Joshua H. Stein, by Special Deputy Attorney General
        Matthew Tulchin, for Respondent-Appellee University of North Carolina at
        Charlotte.


        INMAN, Judge.


        Petitioner Paul Swauger (“Petitioner”) appeals an order dismissing his petition

for judicial review for lack of subject matter jurisdiction. Petitioner contends the

Cabarrus County Superior Court erred in failing to review an Administrative Law

Judge’s final decision pursuant to Sections 150B-43 and 150B-45 of our General

Statutes. Because Sections 7A-29(a) and 126-34.02(a) provided Petitioner with an
                       SWAUGER V. UNIV. OF N.C. AT CHARLOTTE

                                    Opinion of the Court



adequate procedure for judicial review by direct appeal to this Court, we affirm the

trial court’s dismissal of Petitioner’s petition.

                    I. FACTS AND PROCEDURAL HISTORY

       Petitioner was a career state employee at the University of North Carolina at

Charlotte (the “University”), where he worked as a mechanic. During Petitioner’s

employment, the University switched its email provider from Microsoft Outlook to

Google’s Gmail. Petitioner refused to agree to Google’s Terms of Service for Gmail

and was dismissed from his job as a result.

       Petitioner filed a petition for contested case hearing in the Office of

Administrative Hearings (“OAH”) on 5 May 2016, alleging he was dismissed without

just cause. On 4 January 2017, the administrative law judge (“ALJ”) that heard

Petitioner’s case issued a Final Decision concluding that the University sufficiently

proved it had just cause to dismiss Petitioner.

       On 2 February 2017, Petitioner filed a petition in Cabarrus County Superior

Court for review of the ALJ’s Final Decision. The University filed a motion to dismiss

the petition, contending that the superior court did not have subject matter

jurisdiction. On 10 July 2017, the trial court granted the motion to dismiss. Petitioner

timely appealed the trial court’s dismissal order to this Court.

                                     II. ANALYSIS

A. Standard of Review



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                                  Opinion of the Court



      The standard of review for an appeal based on subject matter jurisdiction is de

novo. Country Club of Johnston Cty., Inc. v. United States Fid. & Guar. Co., 150 N.C.

App. 231, 238, 563 S.E.2d 269, 274 (2002). Issues of statutory interpretation are also

subject to de novo review. Matter of Dippel, ___ N.C. App. ___, ___, 791 S.E.2d 684,

685 (2016). This standard requires the Court to “consider the question anew, as if

not previously considered or decided.” In re Soc’y for Pres. of Historic Oakwood, 153

N.C. App. 737, 740, 571 S.E.2d 588, 590 (2002) (citation omitted).

B. The Superior Court Was Without Jurisdiction to Hear Petitioner’s Petition

      The University, as a state agency, is protected by sovereign immunity. Guthrie

v. N.C. State Ports Authority, 307 N.C. 522, 532, 299 S.E.2d 618, 624 (1983). “It has

long been established that an action cannot be maintained against the State of North

Carolina or an agency thereof unless it consents to be sued or upon its waiver of

immunity, and that this immunity is absolute and unqualified.” Id. at 534, 299 S.E.2d

at 625 (emphasis in original) (citation omitted). The waiver of immunity by the State

must not be considered lightly, and statutes waiving immunity shall be construed

strictly and in favor of immunity. Id. at 537-38, 299 S.E.2d at 627.

      It is not contested that North Carolina has waived its sovereign immunity for

State employees to bring suit through the OAH. What the parties dispute, however,

is the procedure required for an employee to pursue an appeal from an OAH decision.




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                                   Opinion of the Court



      Section 7A-29(a) of our General Statutes allows a party to immediately appeal

“any final decision or order of . . . the [OAH] under [N.C. Gen. Stat. §] 126-34.02” to

this Court. N.C. Gen. Stat. § 7A-29 (2017). Section 126-34.02 allows a former State

employee to file a contested case with the OAH pursuant to the procedures set forth

in Sections 150B-22 through 150B-37. N.C. Gen. Stat. § 126-34.02(a) (2017). Since

its amendment in 2013, this same section also provides that “[a]n aggrieved party in

a contested case under this section shall be entitled to judicial review of a final

decision by appeal to the Court of Appeals as provided in [N.C. Gen. Stat. §] 7A-29(a).”

N.C. Gen. Stat. § 126-34.02(a).

      Section 150B-43 of our General Statutes also provides for judicial review of

decisions by ALJs in contested cases. N.C. Gen. Stat. § 150B-43 (2017). This statute

provides:

             Any party or person aggrieved by the final decision in a
             contested case, and who has exhausted all administrative
             remedies made available to the party or person aggrieved
             by statute or agency rule, is entitled to judicial review of
             the decision under this Article, unless adequate procedure
             for judicial review is provided by another statute, in which
             case the review shall be under such other statute.

N.C. Gen. Stat. § 150B-43 (emphasis added).

      The University argues, and the superior court held below, that Petitioner’s

appeal falls outside the scope of Section 150B-43 and must be pursued as provided in




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                                  Opinion of the Court



Section 126-34.02, because that statute provides an adequate procedure for judicial

review of OAH decisions regarding State employees.

      Petitioner asserts that Section 126-34.02 is not an “adequate procedure for

judicial review . . . provided by another statute[.]”    N.C. Gen. Stat. § 150B-43.

Petitioner relies on this Court’s decision in Harris v. N.C. Dep’t of Pub. Safety, ___

N.C. App. ___, 798 S.E.2d 127, aff’d per curiam, ___ N.C. ___, 808 S.E.2d 142 (2017),

which addressed whether the “adequate procedure” language in Section 150B-43

precluded the application of the standard of review contained in Section 150B-51 to

an appeal pursuant to Section 7A-29(a). ___ N.C. App. at ___, 798 S.E.2d at 131-34.

Petitioner asserts that Harris held that “Chapter 126 does not provide ‘an adequate

procedure for judicial review[,]’ ” as the majority in that case wrote the following in

addressing the dissent: “The separate opinion asserts N.C. Gen. Stat. § 126-34.02 is

‘another statute,’ which provides ‘an adequate procedure for judicial review.’ We

disagree.” Harris at ___, 798 S.E.2d at 133.

      Petitioner’s broad interpretation of Harris mistakenly considers the above

language in that decision out of context. First, the appeal in Harris was itself

pursuant to Section 7A-29(a), and we held that the “appeal is properly before us.” Id.

at ___, 798 S.E.2d at 131. Presumably, if that statute did not provide an adequate

means of review, this Court could not have addressed the merits of that appeal.

Second, the issue raised by the dissent and addressed by the majority in Harris was



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not whether Section 7A-29(a) was an adequate procedure for judicial review, but

whether the standard of review found in Section 150B-51 applies to this Court’s

review of a decision on appeal pursuant to Sections 7A-29(a) and 126-34.02(a). Harris

at ___, 798 S.E.2d at 133-34. The majority opinion in Harris explained why it held,

unlike the dissent in that case, that the standard of review provisions in Chapter

150B should apply to an appeal from an employment claim:

             The scope and standard of review of this Court’s review of
             the ALJ’s final decision is expressly set forth in § 150B-51.
             Chapter 126 is silent on this issue. While Chapter 126
             governs the proceeding before the ALJ and provides the
             aggrieved party the right to appeal to this Court, Chapter
             150B sets forth our standard of review . . . .

Harris at ___, 798 S.E.2d at 133. In sum, Harris did not foreclose direct judicial

review of an employment dispute by this Court pursuant to Sections 7A-29(a) and

126-34.02(a).

      Petitioner also contends that the “adequate procedure” language in Section

150B-43 is ambiguous. We disagree. Ambiguity exists only where the statute is

“fairly susceptible of two or more meanings[.]” State v. Sherrod, 191 N.C. App. 776,

778, 663 S.E.2d 470, 472 (2008) (internal quotation marks and citation omitted).

Where there is no ambiguity, this Court does not employ the canons of statutory

interpretation, and instead “giv[es] the words their plain and definite meaning.”

State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (citation omitted).




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                                         Opinion of the Court



        Petitioner fails to advance any alternative meaning for the language in

question, instead conclusively asserting that the entire statutory framework for

judicial review of ALJ decisions is ambiguous. Section 150B-43 is straightforward

and susceptible of only one interpretation. Giving the words “procedure[,]” “judicial

review[,]” and “adequate” their ordinary meanings, N.C. Gen. Stat. § 150B-43, review

by a superior court under Article 4 of Chapter 150B is not available when another

statute provides “[a] specific method or course of action” for “[a] court’s review of a

lower court’s or administrative body’s factual or legal findings[,]” that is “[l]egally

sufficient[.]” Black’s Law Dictionary, 1241, 864, 42 (8th ed. 2004) (defining

“procedure,” “judicial review,” and “adequate,” respectively). Because Sections 7A-

29(a) and 126-34.02(a) provide a legally sufficient method for obtaining judicial

review of the ALJ’s decision by direct appeal to this Court,1 the plain language of

Section 150B-43 prohibited Petitioner from seeking judicial review in superior court

under Article 4 of Chapter 150B. N.C. Gen. Stat. § 150B-43. We therefore hold that

the trial court properly dismissed Petitioner’s petition.

                                       III. CONCLUSION




        1  Petitioner’s brief asserts that a difference exists between “judicial review” under Sections
150B-43 and “appellate review” under Section 126-34.02(a). We see no distinction. Section 126-34.02
provides for “judicial review . . . by appeal to the Court of Appeals[,]” N.C. Gen. Stat. § 126-34.02(a),
and Section 150B-43 prohibits review by a superior court under Article 4 of Chapter 150B where
“judicial review is provided by another statute[.]” N.C. Gen. Stat. § 150B-43.

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                                   Opinion of the Court



      The superior court correctly dismissed Petitioner’s petition because it lacked

subject matter jurisdiction to review the ALJ’s final decision in the matter, as an

adequate procedure for judicial review by direct appeal to this Court was provided by

Sections 7A-29(a) and 126-34.02(a). As a result, the right to file a petition in superior

court under Section 150B-43 was foreclosed by the plain language of that statute.

      AFFIRMED.

      Judges DAVIS and MURPHY concur.




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