Issue

Contested case petition—timeliness—Civil Procedure Rule 6(e)—inapplicable

Summary

After a corporation (petitioner) filed a petition for a contested case sixty-three days after the North Carolina Department of Health and Human Services (NCDHHS) mailed notice of its decision to revoke petitioner's licenses to operate two mental health facilities, the Office of Administrative Hearings properly dismissed the petition as untimely. Petitioner, citing an administrative code provision (26 N.C. Admin. Code 3.0116) stating that "time computations in contested cases" are governed by Rule 6 of the Rules of Civil Procedure, contended that its petition was timely because NCDHHS gave notice by mail and, therefore, the prescribed sixty-day deadline (under N.C.G.S. § 150B-23(f)) for filing the petition was extended by an additional three days under Rule 6(e). However, because a contested case does not exist until it is commenced through the filing of a petition, the sixty-day deadline did not constitute a time limitation "in" a contested case; consequently, Rule 6(e) did not apply. Further, Rule 6(e) only applies to "service" of papers, which does not include delivery of an agency decision before any judicial or quasi-judicial proceeding has commenced.

Summary from the North Carolina Reports digest (official subject index). Read the opinion →