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One Potential Way to Dismiss a Petition for Judicial Review…

    Client Alerts
  • October 01, 2014

Contested cases heard at the North Carolina Office of Administrative Hearings (“OAH”), that result in a final agency decision are subject to appeal under a process called “judicial review.”  In most cases, these appeals are filed in Superior Court.  N.C. Gen. Stat. § 150B-145 mandates that a petition for judicial review of an Administrative Law Judge’s (“ALJ”) final decision must be filed in the Superior Court in the county where the “person aggrieved by the administrative decision resides.”

In 2011, the General Assembly determined that an agency can now file petitions for judicial review in the Superior Court appealing the final decision of an ALJ.  When an Agency is appealing a final decision of an ALJ, a question has arisen regarding where the Agency should file its appeal – in Wake County or in the county where the provider resides?

A recent decision by the Wake County Superior Court concluded that, when the State agency files a petition for judicial review, it must file its petition in the county where the provider is located since under the APA a “person aggrieved” by the administrative decision is defined to be the provider challenging the agency’s decision and not the Agency.

If you have recently prevailed in a contested case against an Agency and the Agency filed or is planning to file a petition for judicial review, your counsel should be aware that if the Agency files the petition in the wrong county, you may be able to have the appeal dismissed before having to spend exorbitant fees fighting the underlying challenge made by the agency.