Administrative Law--judicial review--order--inadequate for
appellate review
A superior court order reversing and remanding a State
Personnel Commission decision was remanded where the decision was
completely silent as to both the scope of review utilized and its
application. Appeal by respondent from order dated 8 January 1998 by
Judge Robert L. Farmer in Wake County Superior Court. Heard in
the Court of Appeals 26 January 1999.
Patton Boggs, L.L.P., by James S. Schenck, IV and Judith K.
Guibert, for petitioner-appellee.
Attorney General Michael F. Easley, by Special Deputy
Attorney General Ralf F. Haskell and Assistant Attorney
General Daniel D. Addison, for the respondent-appellant.
GREENE, Judge.
The North Carolina Department of Labor (NCDOL) appeals from
the Superior Court's reversal and remand of the State Personnel
Commission's (SPC) order determining, inter alia, that Sidney
Cheryl Sutton (Plaintiff) was not discriminated against based on
her sex when she was not promoted to the position of Safety
Compliance Officer I (SCO-I).
Plaintiff, a female State employee of NCDOL, applied for a
promotion to one of five SCO-I positions available in April of
1995. Plaintiff was denied the promotion, and all five positions
were filled by male applicants. Plaintiff alleges she was
discriminated against and denied the promotion based on her sex,
and was retaliated against because of her allegations of sexual
harassment against a former supervisor.
On 2 November 1995, Plaintiff filed a Petition for aContested Case Hearing in the Office of Administrative Hearings,
and a Notice of Contested Case and Assignment was issued on 14
November 1995. Plaintiff's case came before Administrative Law
Judge Meg Scott Phipps (ALJ), who, on 4 February 1997, issued a
Recommended Decision determining that Plaintiff "should be placed
in the first available [SCO-I] position. She should also receive
back pay and front pay, if necessary, as well as attorney's
fees."
This matter then was heard before the SPC on 10 April 1997.
In declining to accept the ALJ's Recommended Decision, the SPC
determined that Plaintiff "was not discriminated against based on
her sex when she was not promoted to [SCO-I]" and "[the] five
successful candidates that were hired had better qualifications
for the position." The SPC also found Plaintiff "was not
retaliated against because of her allegations of sexual
harassment."
On 22 July 1997, Plaintiff filed a Petition for Judicial
Review in the Superior Court of Wake County, Judge Robert L.
Farmer (Judge Farmer) presiding, requesting that the SPC's Final
Decision be reversed, and the Recommended Decision of the ALJ be
adopted. The petition also alleged that the SPC's Final Decision
was "affected by [an] error of law, [was] arbitrary and
capricious, and [was] not supported by substantial evidence inthe record." Judge Farmer entered an order on 8 January 1998
simply stating, "Upon consideration of the arguments presented
and the record in this matter, it is, ORDERED, that the Final
Decision of the [SPC] is hereby REVERSED, and this action is
REMANDED to the [SPC] for further proceedings." Judge Farmer did
not state his specific reasons for reversal or the issues to be
resolved on remand. NCDOL filed notice of appeal to this Court
on 30 January 1998.
The dispositive issue is whether Judge Farmer's order is
sufficient to allow this Court to conduct the appropriate
standard of review.
"The proper standard for the superior court's judicial
review [of an administrative agency's decision] depends upon the
particular issues presented on appeal." ACT-UP Triangle v.
Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d
388, 392 (1997). If the petitioner asserts the agency's decision
was not supported by competent evidence or was arbitrary and
capricious, the superior court must apply the "whole record"
test. Id. This test requires the review of all competent
evidence to determine whether the agency's decision was supported
by substantial evidence. Id. When a petitioner alleges an error
of law in the agency's decision, the superior court must conduct
a "de novo" review, considering the matter anew, and freely
substituting its own judgment for the agency's judgment. Dorsey
v. UNC-Wilmington, 122 N.C. App. 58, 62, 468 S.E.2d 557, 559,
cert. denied, 344 N.C. 629, 477 S.E.2d 37 (1996). This Court
reviews a superior court's order regarding an agency decision for
any errors of law. ACT-UP, 345 N.C. at 706, 483 S.E.2d at 392.
This requires "a twofold task: (1) determining whether the trial
court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly."
Id.
The trial court, when sitting as an appellate court to
review an administrative agency's decision, must set forth sufficient information in its order to reveal the scope of review
utilized and the application of that review. It is not
necessary, however, that it "make findings of fact and enter a
judgment thereon in the same manner as the court would be when
acting in its role as trial court." Shepherd v. Consolidated
Judicial Retirement System, 89 N.C. App. 560, 562, 366 S.E.2d
604, 605 (1988).
In this case, the superior court's order reversing and
remanding the SPC's decision is completely silent as to both the
scope of review utilized and its application. We, therefore, are
unable to determine whether the review was appropriate and
properly conducted. Accordingly, we vacate the order and remand
the case to the superior court for the entry of a new order
consistent with this opinion.
(See footnote 1)
Vacated and remanded.
Judges JOHN and HUNTER concur.
*** Converted from WordPerfect ***