Administrative – Failure to Exhaust Remedies – Daycare Rules Violation

A surprise inspection of plaintiff’s daycare resulted in the reporting of a violation: an air freshener product was not safely stored away from children. Plaintiff first challenged the agency action in the Office of Administrative Hearings, but she did not appeal a trial court’s order affirming an administrative law judge’s dismissal on the ground that plaintiff had not established any formal administrative action that could be adjudicated through her OAH petition. Plaintiff then requested a declaratory ruling from the state Child Care Commission, but she did not seek judicial review of the commission’s determination that it lacked jurisdiction to grant an administrative hearing (but, even if it had jurisdiction, the challenged rule was valid and properly applied). After her failure to seek review of these administrative rulings, plaintiff filed the complaint in this action, unsuccessfully attempting an end-run around her obligation to exhaust her administrative remedies.

We affirm the trial court’s dismissal of plaintiff’s administrative claims for failure to exhaust administrative remedies. We affirm the dismissal of her defamation claim on the basis of sovereign immunity.

As a state agency, defendant is immune from suit absent a waiver of sovereign immunity. The State Tort Claims Act does not waive immunity from intentional torts such as defamation, and plaintiff has not identified any other legal basis to find a waiver of the state’s sovereign immunity for her defamation claim.

Corry v. North Carolina Division of Health & Human Services (Lawyers Weekly No. 012-423-22, 5 pp.) (Richard Dietz, J.) Appealed from Gaston County Superior Court (Gregory Hayes, J.) Sylvia Corry, pro se; Amber Davis for defendant. 2022-NCCOA-689