State Departments, Institutions and Agencies; Administrative Procedure Act

Subject:

Requested By: Honorable Henry L. Stevens, III Resident Superior Court Judge Fourth Judicial District

Question: Does a county department of social services have the right under North Carolina law to an appeal for judicial review of a final decision of the Department of Human Resources reversing the determination of the county department on an application for food stamps under Article 5, Chapter 108, North Carolina General Statutes?

Conclusion: No.

An application for food stamps was denied by a county department of social services. As is permitted by N.C.G.S. 108-109, the applicant appealed the denial to the Department of Human Resources. The Division of Social Services, Department of Human Resources, reversed the decision of the county department of social services and determined that the applicant was eligible for food stamps. The county department of social services is seeking to appeal the decision of the Department of Human Resources to the Superior Court for judicial review.

Chapter 108 creates county boards of social services and provides for administration of county social services programs. Among the programs to be administered by the counties are those of public assistance, set forth in Article 2, which are aid to families with dependent children, Statecounty special assistance for adults, foster home fund and medical assistance. The respective boards of county commissioners, through the county departments of social services, administer and operate food stamp programs, as provided in Article 5 of Chapter 108.

Applicants for or recipients of public assistance under Article 2 of Chapter 108 may appeal, under N.C.G.S. 108-44, decisions made at the county level to the Secretary of Human Resources. Following an appeal hearing, the Secretary may modify, reverse or affirm a county decision. Under subsection (e) of N.C.G.S. 108-44, the applicant, recipient or the county board of social services may petition the Superior Court for judicial review of the order of the Secretary.

Applicants for or recipients of food stamps under Article 5 of Chapter 108 may appeal decisions of the county departments of social services to the Department of Human Resources, as provided in N.C.G.S. 108-109. Adverse final decisions of the Department of Human Resources may be appealed by applicants or recipients to the Superior Court for review, but there is no provision in Article 5 for an appeal by county commissioners or a county department of social services from an adverse final decision of the Department of Human Resources.

Based upon the language of Chapter 108 alone, therefore, it is concluded that neither a board of county commissioners nor a county department of social services has the legal right to petition the Superior Court for review of a final decision of a county department of social services concerning an application for food stamps.

A further question is whether, if a county department of social services has no right under Article 5 of Chapter 108 to petition for judicial review, it has such right under the provisions of Chapter 150A, the Administrative Procedure Act?

N.C.G.S.

150A-1(a) provides, in pertinent part: "This Chapter shall apply except to the extent and in the particulars that any statute makes specific provision to the contrary."

N.C.G.S.

150A-43 provides, in pertinent part: "Any person who is aggrieved by a final agency decision in a contested case . . . is entitled to judicial review of such decision under this Article, unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute."

N.C.G.S.

108-44 provides the procedure for judicial review of final agency decisions relative to programs of public assistance defined in Article 2 of Chapter 108. It is noted that the statute specifically provides for filing by a county board of social services of petition for review of a final agency decision. N.C.G.S. 108-109 provides the procedure for judicial review of final agency decisions affecting food stamp applicants and recipients. While the statute specifically permits applicants and recipients to file petitions for judicial review, there is no provision permitting counties or county agencies to do so. It is concluded, therefore, that it is the legislative intent that N.C.G.S. 108-109 shall provide the exclusive method of judicial review, and that counties and county agencies shall have no right to judicial review of final agency decisions affecting food stamp matters.

It is also noted that the right to judicial review granted by N.C.G.S. 150A-43 is limited to persons ". . . aggrieved by a final agency decision . . ." "Person aggrieved" is defined by N.C.G.S. 150A2(6) as ". . . any person, firm, corporation, or group of persons of common interest who are directly or indirectly affected substantially in their person, property, or public office or employment by an agency decision."

This Office is informed by the Department of Human Resources that while substantial county funds are or may be involved in the programs of public assistance provided for in Article 5 are funded entirely by the federal government. The only county funds are or may be involved in the programs of public assistance provided for in Article 2 of Chapter 108, the food stamps provided for in Article 5 are funded entirely by the federal government. The only county funds involved may be some portion of the cost of administering the program. Upon these facts, it appears that counties have or may have a substantial financial or property interest in public assistance programs, but have little or no such interest with regard to food stamps. It is concluded, therefore, that a county or county agency is not a "person aggrieved," within the purview of Chapter 150A, by final action of the Department of Human Resources relative to a food stamp applicant or recipient.

Rufus L. Edmisten Attorney General

Henry T. Rosser Assistant Attorney General