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Administrative – Contested Case Petition – Time for Filing – Labor & Employment – Employee Grievance – ‘Notice’ & ‘Receipt’


Pursuant to G.S. § 126-34.02, the time to commence an employee-grievance contested case runs from the employee’s “receipt of” the final agency decision. The administrative law judge should have applied this specific statute rather than G.S. § 150B-23(f), the more general statute, which starts the clock for filing a contested case on the day a final agency decision is put in the mail.

We reverse the ALJ’s dismissal of the case as untimely filed.

Under § 150B-23(f), the time for filing a petition for a contested case commences “when notice is given … by the placing of the notice” in the U.S. mail. Under § 126-34.02(a), a contested case arising under the Human Resources Act “must be filed within 30 days of receipt of the final agency decision.”

The words “notice” and “receipt” in these statutes mean different things. Under § 150B-23(f), a petitioner is deemed to have notice of a final agency decision as soon as the agency places the decision in the mail, even if it takes several days for the petitioner to receive it.

By contrast, the word “receipt” in § 126-34.02 is undefined and thus is given its ordinary meaning. In ordinary English usage, receipt occurs when the letter is delivered.

Where one of two statutes might apply to the same situation, the statute which deals more specifically with the situation controls over the statute of more general applicability. Here, the statute dealing specifically with employee grievances controls over the broader statute addressing all forms of administrative proceedings.

The time deadline in this case did not begin to run when respondent placed its final agency decision in the mail. Instead, it began to run when respondent’s certified mailing was delivered to petitioner.

The petition was timely filed, and the ALJ erred by dismissing the contested case on the ground that the petition was untimely.

Reversed and remanded.

Krishnan v. North Carolina Department of Health & Human Services (Lawyers Weekly No. 011-276-20, 6 pp.) (Richard Dietz, J.) Appealed from the Office of Administrative Hearings (J. Randolph Ward, ALJ) Meredith Woods Hubbard for petitioner; William Walton for respondent. N.C. App.


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