Hedgepeth v. N. CAR. SERVICES FOR BLIND

• Decision Date: 06 March 2001
• Docket Number: No. COA99-1240.,COA99-1240.
• Citation: 142 NC App. 338,543 S.E.2d 169
• Court: North Carolina Court of Appeals
• Parties: Mary HEDGEPETH, Petitioner, v. NORTH CAROLINA DIVISION OF SERVICES FOR THE BLIND, Respondent.

543 S.E.2d 169

142 NC App. 338

Mary HEDGEPETH, Petitioner, v. NORTH CAROLINA DIVISION OF SERVICES FOR THE BLIND, Respondent.

No. COA99-1240.

Court of Appeals of North Carolina.

March 6, 2001.

Eastern Carolina Legal Services, by Hazel Mack-Hilliard, Wilson, for petitioner-appellant.

Attorney General Michael F. Easley, by Assistant Attorney General Diane Martin Pomper, for respondent-appellee.

TIMMONS-GOODSON, Judge.

Mary Hedgepeth ("petitioner") appeals an order by the Superior Court affirming the decision of the Division of Services for the Blind ("respondent") to deny petitioner additional benefits under the Rehabilitation Act of 1973 (the "Rehabilitation Act" or "Act"), 29 U.S.C. § 701, et seq. (1994). For the reasons stated herein, we reverse the trial court's order and remand the matter for entry of a new order in accordance with this opinion.

Under the Rehabilitation Act, the federal government administers grants to states for the provision of services "to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society." 29 U.S.C. § 701(b)(1); 34 C.F.R. § 361.1 (1997). States, such as North Carolina, choosing to accept federal grants as provided for by the Act, must comply with the Act's guidelines and regulations. Buchanan v. Ives, 793 F.Supp. 361, 363 (D.Me.1991) (citation omitted).

In 1985, respondent, a division of the agency charged with administering the federal program in our State, see N.C. Gen.Stat. § 143-546.1 (1999), deemed petitioner eligible for services and benefits under the Act, due to a loss of vision she experienced as a junior college student. The Act requires that those eligible for the program, such as petitioner, jointly develop with respondent a particularized plan to fit the individual's vocational rehabilitative needs, an "individualized written rehabilitation plan" ("IWRP"). 29 U.S.C. § 722(b)(1)(A) (1994); 34 C.F.R. 361.45. To that end, in 1986, petitioner and respondent developed an IWRP, which included the goal of "occupations in business" and provided for a variety of services assisting petitioner in achieving her vocational goal. In 1988, petitioner received a two-year associate degree in "Business Administration."

Petitioner's IWRP was amended on four occasions between 1989 and 1995. The amendments to the IWRP reflected a variety of vocational goals to be achieved by a specified date, and further provided for services and financial aid.

Pursuant to an amended IWRP formulated in 1995, petitioner received a two-year associate degree in "Social Work" in 1997. Upon earning her degree, petitioner was accepted into a four-year psychology program at a private college. In September 1997, petitioner met with her rehabilitation counselor, Patricia Tessnear, Tessnear's supervisor, and a job placement specialist. During the meeting, petitioner requested that respondent amend her IWRP to include a four-year college degree program as part of her vocational goals. Tessnear informed petitioner that respondent had provided adequate services to remove impediments to her educational and employment objectives and, therefore, she would no longer receive educational assistance. Instead, respondent offered petitioner only job placement services.

In December 1997, petitioner requested an amendment to her IWRP, reflecting the goal of "Licensed Professional Counselor." Respondent denied petitioner's request and advised her of her right to appeal its decision, which she did on 11 January 1998. Following a 3 April 1998 hearing, an agency hearing officer recommended that respondent's decision be affirmed, and respondent's director adopted the hearing officer's recommendation as the "final agency decision" on 18 May 1998. Petitioner petitioned for judicial review of the agency's final decision in Superior Court, Nash County. The Superior Court affirmed the final agency decision, and petitioner now appeals.

We first address respondent's contention that the Superior Court did not have subject matter jurisdiction to review the final agency decision in the case sub judice. As a preliminary issue, we note that respondent first raised the aforementioned issue on appeal. Nonetheless, it is well established that objections to a court's jurisdiction can be raised at any time, even for the first time on appeal and even by a court sua sponte. Reece v. Forga, 138 N.C.App. 703, 531 S.E.2d 881, 882 (citations omitted) ("A party may not waive jurisdiction, and a court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking."), disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000). We therefore address respondent's arguments and determine whether the Superior Court had jurisdiction over the present case.

Respondent first asserts that the Superior Court did not have jurisdiction to review the final agency decision because the Rehabilitation Act, including amendments applicable to petitioner, did not provide for judicial review of the decision. In support of its argument, respondent cites several federal court cases finding there was no private right of action under the Act.

The Rehabilitation Act, as amended in 1998, currently provides for judicial review of agency decisions. See 29 U.S.C.A. § 722(c)(5)(J)(i) (West 2000) (providing that aggrieved parties "may bring a civil action" in state or federal court for review of final agency decisions). However, the current version of the Act took effect on 7 August 1998, prior to the agency's final decision and is, therefore, inapplicable to petitioner. Respondent is correct in that the Rehabilitation Act applicable to petitioner, as amended in 1993, did not provide for judicial review of final agency decisions. However, the Act's statutory provisions did not expressly prohibit judicial review, and neither do the federal cases cited by respondent. See Mallett v. Wisconsin Div. of Vocational Rehab., 130 F.3d 1245 (7th Cir.1997) (finding no private right of action); McGuire v. Switzer, 734 F.Supp. 99 (S.D.N.Y.1990) (same); Ryans v. New Jersey Comm'n for the Blind & Visually Impaired, 542 F.Supp. 841 (D.N.J.1982) (same). But see Marshall v. Switzer, 10 F.3d 925, 929 (2d Cir.1993) (finding that Congress did not intend to foreclose enforcement of Act under 42 U.S.C. § 1983 (1994)); Scott v. Parham, 422 F.Supp. 111 (N.D.Ga.1976) (same). These cases simply conclude that there is no private right of action, implied or otherwise, under the Act, but do not speak to a trial court's judicial review of an agency decision. We therefore find the cases cited by respondent unpersuasive.

Moreover, many states provided for judicial review of agency decisions based on the Act's guidelines and regulations prior to the statute's express provision for civil actions and judicial review. See e.g., Zingher v. Dep't of Aging and Disabilities, 163 Vt. 566, 664 A.2d 256 (1995); Dolon v. Family and Soc. Servs. Admin. Div. of Disability, Aging and Rehab. Servs., 715 N.E.2d 917 (Ind. Ct.App.1999); Murphy v. Office of Vocational and Educ. Servs. for Individuals with Disabilities, 92 N.Y.2d 477, 683 N.Y.S.2d 139, 705 N.E.2d 1180 (Ct.App.1998); In the Matter of Wenger, 504 N.W.2d 794 (Minn.Ct.App. 1993); Brooks v. Office of Vocational Rehab., 682 A.2d 850 (Pa.Commw.Ct.1996). We therefore conclude that although the Rehabilitation Act applicable to petitioner may not have provided for review of an agency's final decision, nothing in the Act itself or the cases cited by respondent precludes judicial review.

Our examination of the issue of jurisdiction does not end there, however. "No appeal lies from an order or decision of an administrative agency of the State or from judgments of special statutory tribunals whose proceedings are not according to the course of the common law, unless the right is granted by statute." In re Assessment of Sales Tax, 259 N.C. 589, 592, 131 S.E.2d 441, 444 (1963). As noted supra, the Rehabilitation Act did not grant petitioner a right of review of the agency's final decision and therefore, if she has such a right, it is by and through North Carolina Administrative Procedure Act ("NCAPA").

The NCAPA, codified at Chapter 150B of the General Statutes, "establishes a uniform system of administrative rule making and adjudicatory procedures for agencies" and "applies to every agency," unless an agency is expressly exempt from its provisions. N.C. Gen.Stat. § 150B-1(a), (c) (1995); Vass v. Bd. of Trustees of State Employees' Medical Plan, 324 N.C. 402, 407, 379 S.E.2d 26, 29 (1989) ("the General Assembly intended only those agencies it expressly and unequivocally exempted from the provisions of the [NCAPA] be excused in any way from the Act's requirements and, even in those instances, that the exemption apply only to the extent specified by the General Assembly").

Any person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision ..., unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute.

N.C.Gen.Stat. § 150B-43 (1995). Neither the Department of Health and Human Services nor its Division of Services for the Blind are fully exempt from the NCAPA. Respondent's proceedings, at least in part, are therefore subject to the provisions of the NCAPA.

Respondent acknowledges that petitioner may have had the right to judicial review pursuant to Chapter 150B, but points out that petitioner did not seek a contested case hearing before the State Office of Administrative Hearings ("OAH"). Respondent asserts that only individuals who seek hearings through the OAH have a right to judicial review under the NCAPA. Respondent argues that the NCAPA only allows judicial ...