              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1298

                             Filed: 21 November 2017

Pitt County Office of Administrative Hearings, No. 16 OSP 6600

LENTON C. BROWN, Petitioner

             v.

NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, an agency of the State
of North Carolina, and DIVISION OF ADULT CORRECTION AND JUVENILE
JUSTICE, a subunit contained within the North Carolina Department of Public
Safety, Respondent


      Appeal by petitioner from final decision and order entered 2 September 2016

by Administrative Law Judge Melissa Owens Lassiter in the Pitt County Office of

Administrative Hearings. Heard in the Court of Appeals 8 August 2017.


      The Webster Law Firm, by Walter S. Webster, for petitioner-appellant.

      Attorney General Joshua H. Stein, by Assistant Attorney General Tamika L.
      Henderson, for respondent-appellee.


      CALABRIA, Judge.


      Lenton C. Brown (“petitioner”) appeals from a final decision and order entered

in the Office of Administrative Hearings (“OAH”) dismissing his contested case for

lack of subject matter jurisdiction. We affirm.

                                  I. Background

      Petitioner was previously employed as a correctional officer at Maury

Correctional Institution in Greene County, North Carolina. On 10 December 2013,
                        BROWN V. N.C. DEP’T. OF PUB. SAFETY

                                   Opinion of the Court



petitioner filed a complaint in Wake County Superior Court against his employer, the

North Carolina Department of Public Safety and its Division of Adult Correction and

Juvenile Justice (collectively, “respondent”). Petitioner alleged that on 11 December

2012, respondent denied petitioner a promotion in retaliation for his reporting other

officers’ use of excessive force against an inmate, in violation of the Whistleblower

Act. See N.C. Gen. Stat. § 126-84, et seq. (2015).

      On 6 July 2015, petitioner voluntarily dismissed the Wake County Superior

Court action. However, on 27 June 2016, petitioner filed a petition for a contested

case hearing in the Pitt County OAH, alleging nearly identical claims to those he

asserted in the Wake County Superior Court action. On 12 July 2016, respondent

filed a motion to dismiss petitioner’s action pursuant to the doctrine of sovereign

immunity; N.C. Gen. Stat. § 126-34.02; and Rules 12(b)(1)-(3) of the North Carolina

Rules of Civil Procedure.      Respondent argued that, as a career State employee,

petitioner was required to file his Whistleblower claim in the OAH within 30 days

following the denial of his promotion, and his failure to do so divested the OAH of

subject matter jurisdiction.

      On 12 July 2016, the Administrative Law Judge (“ALJ”) sent petitioner a

“Request for Response to Motion.” The ALJ ordered petitioner to file a written

response to respondent’s motion for dismissal “on or before” 22 July 2016, if he




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“desire[d] objections to be considered” prior to the ALJ’s ruling. Petitioner did not

respond or file any written objections to respondent’s motion.

      On 2 September 2016, the OAH entered a “Final Decision Order of Dismissal.”

The OAH found, inter alia, that

             2. At all relevant times, Petitioner was a career state
             employee subject to Article 8 of N.C. Gen. Stat. § 126.

             3. On August 21, 2013, the Governor signed House Bill
             (“HB”) 834 into law. HB 834 revised N.C. Gen. Stat. § 126,
             known as the State Personnel Act, by renaming it the
             “North Carolina Human Resources Act,” and required that
             a state employee subject to Article 8 of Chapter 126 bring
             a claim related to violations of the Whistleblower Act in the
             Office of Administrative Hearings (OAH).

             4. Before passage of HB 834, a career state employee, like
             the Petitioner, could bring a claim for violations of the
             Whistleblower Act by either filing a contested case petition
             in OAH or in Superior Court. HB 834 became law on
             August 21, 2013.

Because petitioner failed to file his Whistleblower claim in the OAH within 30 days

following the denial of his promotion, as required by the North Carolina Human

Resources Act, the OAH concluded that it lacked subject matter jurisdiction and

dismissed petitioner’s contested case with prejudice. Petitioner appeals.

                                   II.    Analysis

      Our standard of review of a motion to dismiss for lack of jurisdiction under

N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) is de novo. Country Club of Johnston Cty., Inc.

v. U.S. Fid. & Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002). Under


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de novo review, the Court “considers the matter anew and freely substitutes its own

judgment for that of the trial court.” Peninsula Prop. Owners Ass’n v. Crescent Res.,

LLC, 171 N.C. App. 89, 92, 614 S.E.2d 351, 353 (brackets omitted), appeal dismissed

and disc. review denied, 360 N.C. 177, 626 S.E.2d 648 (2005).

       On appeal, petitioner contends that the OAH erroneously dismissed his

contested case for lack of subject matter jurisdiction. We disagree.

       Following the issuance of a final agency decision, an aggrieved State employee

may appeal by filing a contested case in the OAH. N.C. Gen. Stat. § 126-34.02(a).

“The contested case must be filed within 30 days of receipt of the final agency

decision.” Id. The following issues may be heard as contested cases in the OAH: (1)

discrimination or harassment; (2) retaliation for protesting discrimination; (3) just

cause for dismissal, demotion, or suspension; (4) denial of veteran’s preference; (5)

failure to post a State position, or to give a career State employee priority

consideration for promotion; and (6) whistleblower grievances. N.C. Gen. Stat. § 126-

34.02(b)(1)-(6).

       The Whistleblower Act is codified in Chapter 126, Article 14 of our General

Statutes. N.C. Gen. Stat. § 126-84, et seq. The purpose of the Act is to encourage

State employees to report improper governmental activities, N.C. Gen. Stat. § 126-

84, and to protect them from retaliation for doing so, N.C. Gen. Stat. § 126-85. A

State employee who is not subject to Article 8’s provisions for “Employee Appeals of



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Grievances and Disciplinary Action” may assert a Whistleblower claim “in superior

court for damages, an injunction, or other remedies . . . against the person or agency

who committed the violation within one year after the occurrence of the alleged

violation . . . .” N.C. Gen. Stat. § 126-86. A career State employee, however, is subject

to Article 8, and therefore, must pursue a Whistleblower grievance by filing a

contested case in the OAH “within 30 days of receipt of the final agency decision.”

N.C. Gen. Stat. § 126-34.02(a); see also N.C. Gen. Stat. § 126-1.1 (defining “career

State employee” as “a State employee or an employee of a local entity who is covered

by [Chapter 126] pursuant to [N.C. Gen. Stat. §] 126-5(a)(2) who: (1) [i]s in a

permanent position with a permanent appointment, and (2) [h]as been continuously

employed by the State of North Carolina or a local entity . . . in a position subject to

the North Carolina Human Resources Act for the immediate 12 preceding months”).

      Petitioner correctly notes that on 11 December 2012, the date on which the

alleged retaliation occurred, “two statutes provide[d] avenues to redress violations of

the Whistleblower statute.” Newberne v. N.C. Dep’t of Crime Control & Pub. Safety,

359 N.C. 782, 797, 618 S.E.2d 201, 211 (2005). At that time, an aggrieved State

employee could either pursue a Whistleblower Act claim in superior court, or file a

petition for a contested case hearing in the OAH pursuant to the State Personnel Act,

“but not both.” Id. at 797, 618 S.E.2d at 211-12. However, as of 21 August 2013, a

career State employee must assert a Whistleblower grievance by filing a contested



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case in the OAH pursuant to N.C. Gen. Stat. § 126-34.02(a). The provisions that

previously allowed career State employees choice of venue no longer apply following

the enactment of the North Carolina Human Resources Act. See N.C. Gen. Stat. §

126-34.1 (“Repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013, and

applicable to grievances filed on or after that date.”); see also 2013 N.C. Sess. Laws

382, s. 7.10 (amending N.C. Gen. Stat. § 126-86, effective 21 August 2013, to apply to

any State employee alleging Whistleblower violations “who is not subject to Article 8

of this Chapter”).

      Petitioner acknowledges that he was, at all relevant times, a career State

employee, and that he filed his Whistleblower claim on 10 December 2013, after the

passage of the North Carolina Human Resources Act.          Nevertheless, petitioner

asserts that the law’s changes do not apply to him, because his claim accrued prior to

the statute’s effective date. We disagree. The law took effect 21 August 2013 and

“applies to grievances filed on or after that date.” 2013 N.C. Sess. Laws 382, s. 6.5.

(emphasis added). The claim’s accrual date is irrelevant.

      “The right to appeal to an administrative agency is granted by statute, and

compliance with statutory provisions is necessary to sustain the appeal.” Lewis v.

N.C. Dep’t of Hum. Res., 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989); see also

N.C. Gen. Stat. § 126-34.02(c) (providing that “[a]ny issue for which an appeal to the

[OAH] has not been specifically authorized by this section shall not be grounds for a



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contested case hearing”). Here, petitioner’s failure to comply with N.C. Gen. Stat. §

126-34.02 divested the OAH of subject matter jurisdiction. Accordingly, we affirm

the OAH’s dismissal of petitioner’s contested case.

      AFFIRMED.

      Judges BRYANT and STROUD concur.




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