JUDITH CAVES,
Petitioner
v
.
Wake County
No. 00 CVS 11580
NORTH CAROLINA DEPARTMENT
OF CORRECTION,
Respondent
Allen & Pinnix, P.A., by M. Jackson Nichols and Angela Long
Carter, for petitioner.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for respondent.
WALKER, Judge.
Petitioner was a career state employee working as a staff
psychologist with the North Carolina Department of Correction
(DOC). As a result of being passed over as a candidate for the
vacant position of Psychological Program Coordinator I with DOC,
petitioner filed a grievance with the State Personnel Commission
(Commission). She claimed that DOC failed to give her the required
preference accorded a career state employee. Petitioner's appeal
was first heard by an administrative law judge who recommended in
part the following:
[T]hat the Department be required:
A. to hire Petitioner into a comparable
position;
B. to award Petitioner back pay & benefits
from December 7, 1998, the date Dr. Wilson
began work;
C. to award Petitioner a salary increase of
$11,000 consistent with the salary increase
that was awarded to Dr. Wilson; and
D. to pay Petitioner's reasonable attorney
fees and costs.
DOC appealed the recommended decision to the Commission which
agreed with the administrative law judge and, on 11 April 2000,
ordered in part the following:
[T]he State Personnel Commission hereby orders
that the Recommended Decision of the
Administrative Law Judge in favor of the
Petitioner be adopted and the Respondent's
nonpromotion of Petitioner be reversed and the
Commission hereby finds that the Petitioner
met her burden of proof of showing that the
Respondent failed to properly apply the
promotional priority preference policies when
it selected another applicant for the position
of Psychological Program Coordinator I.
The Commission further orders that Petitioner
be promoted into a Psychological Program
Coordinator I position or a comparable
position in accordance with 25 N.C.A.C.
1B .0428 or receive front pay until such a
position is available; that Petitioner receive
back pay in accordance with 25 N.C.A.C.
1B .0421; that Petitioner receive all other
applicable benefits of continuous state
employment from the date that the successful
applicant was placed in the position. In
addition, the Commission orders that
Petitioner may petition for attorney's fees
pursuant to G.S. § 126-4(11) and 25 N.C.A.C.
1B .0414 and 1B .0438, which shall be awarded
in any amount to be determined by the
Commission upon receipt and consideration of aPetition for Attorneys Fees and the required
documentation.
The order of the Commission was not appealed by either party.
On 6 September 2000, after a petition for attorney's fees was
filed, the Commission found that petitioner was entitled to
reimbursement for attorney's fees at the maximum rate allowable
pursuant to N.C. Admin. Code tit. 25, r. 1B.0438 (1999).
Petitioner timely filed an appeal of the award of attorney's fees
through a petition for judicial review in the superior court and
also filed a petition for a writ of mandamus to enforce the 11
April 2000 Commission's order. DOC filed a response contending
that the Commission's order did not include the $11,000 salary
increase and that, because the Commission awarded attorney's fees
at the maximum rate allowed under its rules, petitioner was not
entitled to an increase in the hourly rate. Petitioner filed a
motion to strike DOC's response.
On 5 December 2000, the trial court heard evidence and
arguments of counsel on the petition for judicial review of
attorney's fees, the petition for writ of mandamus, and the motion
to strike the response of DOC. The trial court denied the motion
to strike. It concluded the Commission's order included the salary
increase of $11,000 as recommended by the administrative law judge.
It further concluded that “[a]s of the date of the hearing, the
Department has not complied with the April 11, 2000 Order of the
State Personnel Commission” and granted the writ of mandamus. The
trial court also concluded, “The Court is without authority to
award an amount in excess of the maximum established rate of theState Personnel Commission at $125.00 per hour,” and denied the
requested increase in attorney's fees. Both parties appeal.
We first consider DOC's appeal of the granting of a writ of
mandamus. A writ of mandamus is an order from the trial court
“commanding the performance of a specified official duty imposed by
law.” Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d 97, 99
(1971). However, “the writ will not issue to compel the
performance of an act which a defendant shows a willingness to
perform.” Id. A writ of mandamus “is an extraordinary remedy
which the court will grant only in case of necessity.” Id. To be
granted, “[n]ot only must the [petitioner] show that [she] has a
clear legal right; [she] must show that the opposing party is under
legal obligation to perform the act.” Thomas v. Board of
Elections, 256 N.C. 401, 408, 124 S.E.2d 164, 169 (1962). DOC
agrees that a trial court may issue a writ of mandamus where there
is a clear legal right to demand it by the petitioner and the
respondent agency is under a positive legal obligation to perform
the act sought to be required.
Here, petitioner is attempting to enforce the order of the
Commission. The Commission ordered “that the Recommended Decision
of the Administrative Law Judge in favor of the Petitioner be
adopted.” Neither party appealed that order. When a party fails
to file a petition for review within the required time, the party
“waives the right to judicial review.” N.C. Gen. Stat. § 150B-45
(1999). Thus, the order of the Commission was final and
enforceable. Petitioner had a right to seek enforcement of theorder of the Commission and DOC had an obligation to comply with
the order.
DOC contends that it had complied with all of the provisions
of the order but the order did not require a salary increase of
$11,000. The administrative law judge recommended “a salary
increase of $11,000 consistent with the salary increase that was
awarded to Dr. Wilson.” In adopting the administrative law judge's
recommended decision, the Commission did not exclude the $11,000
from its order. Thus, there was a sufficient basis for the trial
court to conclude the Commission's order included a salary increase
of $11,000 to the petitioner.
At the hearing before the trial court, petitioner testified
that she had not been promoted as ordered and the other provisions
of the Commission's order had not been complied with except for a
five percent salary increase. Even though this was disputed in the
trial court, there was competent evidence to support the trial
court's finding that “[a]s of the date of the hearing, the
Department has not complied with the April 11, 2000 Order of the
State Personnel Commission.”
Our Supreme Court held in N.C. Dept. of Transportation v.
Davenport, 334 N.C. 428, 432 S.E.2d 303 (1993) that an
administrative agency of this State cannot be held in contempt for
failing to comply with an order to reinstate an employee and
provide back pay. Thus, here, petitioner did not have available
the remedy of contempt for DOC's failure to comply with the
Commission's order. On the other hand, petitioner has a “clearlegal right” to seek enforcement of the Commission's order upon
DOC's failure to comply. Thus, we conclude the trial court did not
err in granting petitioner's writ of mandamus.
We next consider petitioner's appeal of the denial of her
request for an increase in the hourly rate in setting attorney's
fees. On 11 April 2000, the Commission concluded that the
petitioner may petition for attorney's fees “pursuant to G.S. §
126-4(11) and 25 N.C.A.C. 1B .0414 and 1B .0438.” N.C. Gen. Stat.
§ 126-4 states the following:
[T]he State Personnel Commission shall
establish policies and rules governing each of
the following:
(11) In cases where the Commission finds
discrimination, harassment, or orders
reinstatement or back pay whether (i) heard by
the Commission or (ii) appealed for limited
review after settlement or (iii) resolved at
the agency level, the assessment of reasonable
attorneys' fees and witnesses' fees against
the State agency involved.
N.C. Admin. Code tit. 25, r. 1B.0414 establishes the different
categories in which attorney's fees and costs may be awarded to an
aggrieved party who has brought an action against a State agency.
N.C. Admin. Code tit. 25, r. 1B.0438 allows for the reimbursement
of attorney's fees at a maximum rate of $125.00 per hour, legal
assistant's fees at a maximum rate of $55.00 per hour, and travel
time at a maximum rate of one-half the applicable hourly rate.
(See footnote 1)
Here, the Commission awarded attorney's fees at the maximum
rate as established by its rules. The trial court did not err in
concluding that it was without authority to award an amount in
excess of the maximum established rates of the Commission.
In conclusion, we find that the trial court did not err in
granting the writ of mandamus enforcing the order of the Commission
which includes the $11,000 salary increase to the petitioner.
Based on this finding, we need not address the appeal of the denial
of the motion to strike DOC's response to the petitions. The trial
court did not err in denying petitioner's request for an increase
in the hourly rates in setting attorney's fees. The order of the
trial court is
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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