- The North Carolina Court of Appeals is allowing the state Department of Transportation to revisit the 2019 decision to fire an employee involved with recertifying school bus drivers.
- Thurman Savage's lawsuit challenging his dismissal prompted the state Supreme Court's August decision gutting agency deference in North Carolina courts.
- DOT had asked for the dispute to be sent back to the department for further proceedings. The department argued that rule changes since 2019 required more documentation of its response to Savage's conduct on the job.
The North Carolina Court of Appeals will allow the state Department of Transportation to revisit an employee’s 2019 dismissal. A legal dispute over Thurman Savage’s firing prompted a recent state Supreme Court ruling gutting agency “deference.”
DOT had argued in a lawsuit filed by Savage that a state law required Savage’s dismissal. He had failed to follow proper procedures when recertifying multiple school bus drivers. The state Supreme Court ruled in August that the cited law did not apply to Savage’s case.
DOT, considered the respondent at the Appeals Court, filed a motion in September asking the state’s second-highest court to send the dispute back to the department. The court filing indicated that Savage opposed the idea.
A unanimous three-judge appellate panel of Chief Judge Chris Dillon and Judges Allegra Collins and Fred Gore responded in a court order dated Oct. 12 but posted online for the first time Friday.
“Whereas, Respondent has ‘discretion in choosing an appropriate punishment for [Mr. Savage’s] violation of [its] polic[ies],’ … Whereas, as found by the Administrative Law Judge, Respondent in its final agency decision stated it did not exercise any discretion to determine an appropriate discipline for Mr. Savage’s wrongful personal conduct, concluding it was bound by statute to terminate Mr. Savage; And whereas, our Supreme Court has concluded that the statute upon which the agency relied does not apply, … The Court, hereby, remands this matter to the Administrative Law Judge with instructions to remand the matter to Respondent to reconsider its decision to terminate Mr. Savage, exercising discretion on the appropriate discipline, though bound by the findings of the Administrative Law Judge,” the court ordered.
The state Supreme Court determined on Aug. 22 that state law did not require DOT to fire Savage from his post certifying school bus drivers. He had admitted to recertifying five drivers without conducting mandatory “ride-along observations.” DOT cited NC Gen. Stat. § 20-34.1 as mandating Savage’s dismissal. The Supreme Court ruled that the law did not apply to Savage’s conduct.
The Supreme Court decision did not guarantee that Savage would win his job back. Justices returned the case to the state Court of Appeals to address other reasons the DOT offered for the dismissal.
DOT asked the Appeals Court to order the case sent back to the department “for further proceedings.”
Changes in state law since 2019 “have resulted in the analysis that Respondent initially performed with respect to Petitioner’s termination becoming incomplete,” DOT’s lawyers wrote in September. The Appeals Court now requires more documentation from an agency to show just cause for disciplinary action against an employee, DOT lawyers explained.
Returning, or remanding, the case to DOT “is especially needed here, … given the conclusions that the Administrative Law Judge made below,” department lawyers wrote. The ALJ “stated his belief that, ‘[d]ue to reliance on the mandatory dismissal of § 20-34.1(c), it appears that the Respondent did not assess factors such as severity of the violation, the subject matter involved, the resulting harm, and the employee’s work history in determining that Petitioner should be discharged.’”
“Given the review now necessary on appeal to decide the sufficiency of the agency’s just cause analysis, such a finding portends a need for a fully developed determination by the agency,” according to DOT’s court filing.
With the case returned to DOT, “the agency may complete the disciplinary process it has commenced and fully consider whether just cause exists for any appropriate level of disciplinary action under this Court’s precedent,” department lawyers wrote.
In a 5-2 decision, the state Supreme Court used Savage’s case to instruct North Carolina courts not to bow to a government agency’s interpretation of state law when deciding a case.
“At its heart, this case presents a rather straightforward question of statutory interpretation,” Justice Richard Dietz wrote for the court’s majority. “Before we get there, however, we first must address who decides that question.”
“Several decades ago, parroting federal law, the Court of Appeals held it ‘a tenet of statutory construction that a reviewing court should defer to the agency’s interpretation of a statute it administers so long as the agency’s interpretation is reasonable and based on a permissible construction of the statute,’” Dietz added. He cited a 1998 state Appeals Court decision.
“We never approved this interpretive rule and it directly conflicts with our own precedent requiring courts to review questions of law de novo,” Dietz wrote.
In a “de novo” review, a court “considers the matter anew” and does not accept the judgment of a lower court or agency.
“Accordingly, we expressly disavow any rule requiring courts to defer to an agency’s interpretation of a statute, overrule any previous Court of Appeals case law to the contrary, and instruct all lower courts to apply traditional de novo review to the interpretation of state statutes,” Dietz wrote.
“This ‘de novo’ standard of review makes particular sense when reviewing an executive-branch agency’s interpretations of a statute,” Dietz wrote. “This Court has long held that a core part of state judicial power is the authority to say what the law is. Thus, it ‘is the exclusive right of the judiciary’ to interpret laws enacted by the General Assembly and ‘neither the executive nor the legislative department has any such power.’”
Justice Tamara Barringer wrote a separate concurring opinion “to underscore the indispensable function the judiciary serves in our constitutional framework — one that is incompatible with the doctrine of agency deference.”
The court’s five Republican justices all endorsed the majority opinion. The two Democrats agreed with the portion of the decision determining that § 20-34.1 did not apply to Savage.
Yet Justice Anita Earls used a partial dissent to respond to the majority’s stance on deference. “This potentially is a glass half-full, glass half-empty debate, but I think it important for the judicial branch to have appropriate respect for the work of administrative agencies, while still exercising its ‘role “to say what the law is,”’” Earls wrote.
“While ‘[d]e novo review does not blind us to context or demand unquestioned deference to an agency’s views,’ we also should not completely disregard agency expertise,” Earls explained. “The appropriate balance is struck when we weigh the ‘thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’”