PAUL W. SWAUGER, Petitioner,
UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE, Respondent.
in the Court of Appeals 3 May 2018.
by Petitioner from Order entered 10 July 2017 by Judge Martin
B. McGee in Cabarrus County, No. 17 CVS 000366 Superior
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.
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 adequate procedure for judicial review by direct appeal to
this Court, we affirm the trial court's dismissal of
FACTS AND PROCEDURAL HISTORY
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.
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.
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.
Standard of Review
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).
The Superior Court Was Without Jurisdiction to Hear