Civil Practice – Subject Matter Jurisdiction — Administrative – Failure to Exhaust Remedies – Tort/Negligence – Urine Test – Labor & Employment – Public Employees

Vanwijk v. Professional Nursing Services, Inc. (Lawyers Weekly No. 11-07-0727, 12 pp.) (Douglas McCullough, J.) Appealed from Wayne County Superior Court. (Arnold O. Jones II, J.) N.C. App. Click here for the full-text opinion.

Holding: Defendant is the private company that conducted the urine test that resulted in the loss of plaintiff’s job as a police officer. Although both parties are private, the trial court correctly ruled that it lacked subject matter jurisdiction because plaintiff failed to exhaust administrative remedies that would have decided the same issues that he alleges in this action.

We affirm the trial court’s order granting defendant’s motion to dismiss for lack of subject matter jurisdiction.

The N.C. Criminal Justice Education and Training Standards Commission notified plaintiff of his right to request a hearing before the commission. Such an administrative hearing would have addressed plaintiff’s decertification from law enforcement and fully reviewed whether plaintiff’s drug test was administered properly. The facts and issues that would have been litigated in the trial court pursuant to claims of negligence and negligence per se would have been the same facts and issues reviewed in the administrative hearing when determining whether plaintiff was rightfully terminated.

Plaintiff never filed a notice for an administrative hearing pursuant to the commission’s letter or the regulations governing the commission, but he did file this private action against defendant three years later. The commission had expertise to determine whether plaintiff was fit to perform his duties and to determine whether the proper testing procedures were utilized. The process of requesting an administrative hearing acts as a form of judicial restraint and is equivalent to a jurisdictional prerequisite when a party has effective administrative remedies.

Requesting an administrative hearing is an effective administrative remedy, but plaintiff failed to pursue this method within the mandated 30 days. Therefore, plaintiff waived his right to an administrative hearing, and the superior court lacked subject matter jurisdiction as a result of plaintiff’s failure to exhaust his administrative remedies.

Affirmed.