LENTON C. BROWN, Petitioner
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
in the Court of Appeals 8 August 2017.
by petitioner from final decision and order entered 2
September 2016 by Administrative Law Judge Melissa Owens
Lassiter in the Pitt County No. 16 OSP 6600 Office of
Webster Law Firm, by Walter S. Webster, for
Attorney General Joshua H. Stein, by Assistant Attorney
General Tamika L. Henderson, for respondent-appellee.
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.
was previously employed as a correctional officer at Maury
Correctional Institution in Greene County, North Carolina. On
10 December 2013, 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).
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.
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 "desire[d] objections
to be considered" prior to the ALJ's ruling.
Petitioner did not respond or file any written objections to
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
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 ...