                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA 15-882-2

                                   Filed: 21 November 2017

N.C. Industrial Commission, I.C. No. U00248

IN THE MATTER OF DAVIS, Claim for Compensation Under the North Carolina
Eugenics Asexualization and Sterilization Compensation Program, Claimant-
Appellant.




       Appeal by Claimant-Appellant Davis from decision and order entered 14 May

2015 by the North Carolina Industrial Commission. Heard originally in the Court of

Appeals 11 January 2016, and opinion filed 15 March 2016. Petition for discretionary

review was allowed by the North Carolina Supreme Court for the limited purpose of

reversing the Court of Appeals’ dismissal of Claimant’s “constitutional claims.” The

case was remanded to the Court of Appeals for expedited consideration of Claimant’s

“constitutional claims” on the merits.


       Leslie O. Wickham, Jr. for Claimant-Appellant.

       Attorney General Joshua H. Stein, by Assistant Attorney General Marc X.
       Sneed, for North Carolina Department of Justice, Tort Claims Section.


       McGEE, Chief Judge.


                  I. Supplemental Factual and Procedural Background1



       1  See In re Maye, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877 (2016) (unpublished)
(“Maye I”), for a more detailed factual and procedural background of this case. In Maye I, this Court
decided three appeals, including Maye I; the present appeal, In re Davis; and In re Staggers, COA15-
883. See Maye I, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877, at *1. Claimant Davis was the
only claimant from Maye I who petitioned our Supreme Court for discretionary review.
                                        IN RE DAVIS

                                     Opinion of the Court



      Claimant Davis (“Claimant”) was involuntarily sterilized in 1946. Claimant

makes three arguments on appeal: (1) that her involuntary sterilization “had to be

performed under Public Law 1933, Chapter 224 in order to be performed lawfully,”

(2) that the full panel of the Industrial Commission’s (“Full Commission”) “strict

construction of N.C. Gen. Stat. § 143B-426.50(5) constitute[d] denial of compensation

benefits to [her] due to an overly strict and technical construction of the statute[,]”

and (3) the “[Full] Commission violated [her] constitutional rights to equal protection

and fundamental fairness by denying compensation” based upon a lack of record

evidence of the involvement of the North Carolina Eugenics Board (“Eugenics

Board”).

      This matter was first decided by this Court on 15 March 2016. Maye I, __ N.C.

App. __, 784 S.E.2d 237, 2016 WL 1012877. In Maye I, we held that Claimant could

not demonstrate that she was a qualified recipient of compensation pursuant to the

Eugenics Asexualization and Sterilization Compensation Program (“Compensation

Program”) based upon our prior opinion in In re House, __ N.C. App. __, 782 S.E.2d

115 (2016) (“House I”) and, for this reason, overruled her first two arguments. By

order entered on 28 September 2017 (“Remand Order”), our Supreme Court granted

Claimant’s petition for discretionary review, along with three additional petitions

from different claimants, stating:

             The petitions for discretionary review . . . are allowed for
             the limited purpose of reversing the Court of Appeals’


                                            -2-
                                     IN RE DAVIS

                                  Opinion of the Court



             dismissal of claimants’ constitutional claims. These cases
             are remanded to the Court of Appeals for expedited
             consideration of the constitutional claims on the merits.
             See In re Redmond, __ N.C. __, __, 797 S.E.2d 275, 280
             (2017) [(“Redmond II”)] (“When an appeal lies directly to
             the Appellate Division from an administrative tribunal,
             . . . a constitutional challenge may be raised for the first
             time in the Appellate Division as it is the first destination
             for the dispute in the General Court of Justice.”).

                                     II. Analysis

                          1. Non-Constitutional Arguments

      Claimant’s first two arguments do not involve constitutional questions and,

therefore, fall outside the mandate of the Remand Order. This Court’s opinion in

Maye I has therefore not been overruled with respect to Claimant’s first two

arguments. For the reasons stated in an opinion, In re House, __ N.C. App. __, __

S.E.2d ___, (COA15-879-2) (“House II”), that is being filed concurrently with the

present opinion, we again affirm the ruling of the Full Commission as it pertains to

Claimant’s first two arguments on appeal.

                             2. Constitutional Argument

      Claimant further argues that “[t]o exclude from [the] restitution program

similarly-situated victims of involuntary government sterilization whose records

were not maintained in the State archives is to render the statute grossly under-

inclusive in violation of” provisions of both the North Carolina Constitution and the

United States Constitution.      However, Claimant only included her first two



                                         -3-
                                     IN RE DAVIS

                                  Opinion of the Court



arguments in her “Statement of Grounds for Appeal to the Full Commission,” and

those arguments do not include any constitutional claims. The Full Commission only

addressed the two arguments before it in its 14 May 2015 Decision and Order. In

addition, Claimant’s “Proposed Issues on Appeal” only included her first two

arguments. As we stated in Maye I,

            there is no record evidence in the present case that
            Claimant[] presented this argument to the Industrial
            Commission, or brought it up in any manner prior to
            making it in [her] appellate brief[.] Nor did Claimant[]
            petition this Court for review of these matters. “Where a
            party appeals a constitutional issue from the Commission
            and fails to file a petition for certiorari or fails to have the
            question certified by the Commission, this Court is without
            jurisdiction.” Myles v. Lucas & McCowan Masonry, 183
            N.C. App. 665, 665, 645 S.E.2d 143, 143 (2007) [(citing
            Carolinas Med. Ctr. v. Employers & Carriers Listed In
            Exhibit A, 172 N.C. App. 549, 616 S.E.2d 588 (2005))].
            Therefore, Claimant[’s] constitutional argument[] must be
            dismissed.

Maye I, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877, at *2.

      Our Supreme Court remanded this case for consideration of Claimant’s

constitutional argument pursuant to the following language in Redmond II:

            When an appeal lies directly to the Appellate Division from
            an administrative tribunal, in the absence of any statutory
            provision to the contrary, see, e.g., N.C.G.S. § 150B–45(a),
            a constitutional challenge may be raised for the first time
            in the Appellate Division as it is the first destination for
            the dispute in the General Court of Justice.




                                         -4-
                                           IN RE DAVIS

                                        Opinion of the Court



Redmond II, __ N.C. at __, 797 S.E.2d at 280. This language in Redmond II was used

to reverse three opinions of this Court, all of which were initially decided in In re

Hughes, __ N.C. App. __, 785 S.E.2d 111 (2016) (“Hughes I”). 2 In Hughes I, this Court

explained:

               because the Industrial Commission is not part of the
               judicial branch, it could not have made any determinations
               concerning a statute’s constitutionality. For this reason, in
               their appeals from the decisions of the deputy
               commissioners, the attorneys representing the estates of
               Redmond and Smith included motions to certify the
               constitutional questions relevant to those appeals to this
               Court. The estate of Hughes, apparently operating without
               benefit of an attorney at the time, filed its appeal to the
               Full Commission without any motion to address the
               constitutional issues. The current attorney for the Hughes
               estate petitioned this Court for a writ of certiorari, which
               was granted 9 November 2015, in order to include the
               appeal of the Hughes estate along with those of the
               Redmond and Smith estates for consideration of their
               constitutional challenges.

Id. at __, 785 S.E.2d at 116 (citation omitted), rev’d on other grounds by Redmond II,

__ N.C. __, 797 S.E.2d 275. It is unclear if our Supreme Court’s holding in Redmond

II applies to the present case because the claimants in Hughes I, Redmond I, and

Smith all made attempts to have their constitutional questions certified to this Court,

whereas Claimant in the present matter made no attempt to pursue review of any




       2 Hughes I itself, and two additional cases that were decided in the same opinion as Hughes I:
In re Redmond (“Redmond I”) and In re Smith. See Hughes I, __ N.C. App. at __, 785 S.E.2d at 111.

                                                -5-
                                     IN RE DAVIS

                                  Opinion of the Court



constitutional issue pursuant to the two methods provided by statute, as recognized

in Redmond II:

             Although not controlling on this Court, we note with
             approval the Court of Appeals’ reasoning in a similar case.
             When the Industrial Commission determined in its opinion
             and award that certain changes to the Workers’
             Compensation Act violated the Due Process Clause . . ., the
             Court of Appeals vacated the opinion and award, citing the
             “well-settled rule that a statute’s constitutionality shall be
             determined by the judiciary, not an administrative board.”
             Carolinas Med. Ctr. v. Emp’rs & Carriers, 172 N.C. App.
             549, 553, 616 S.E.2d 588, 591 (2005). In reaching this
             holding, the court reasoned that a party has at least two
             avenues to challenge the constitutionality of a statute.
             First, the party asserting the constitutional challenge may
             bring “an action under the Uniform Declaratory Judgment
             Act, N.C. Gen. Stat. § 1–253 et seq. (2004).” Id. at 553, 616
             S.E.2d at 591 (“A petition for a declaratory judgment is
             particularly appropriate to determine the constitutionality
             of a statute when the parties desire and the public need
             requires a speedy determination of important public
             interests involved therein.”). “Alternatively, pursuant to
             N.C. Gen. Stat. § 97–86 the Industrial Commission of its
             own motion could have certified the question of the
             constitutionality of the statute to this Court before making
             its final decision.”

Redmond II, __ N.C. at __, 797 S.E.2d at 278 (citations omitted) (emphasis added).

Carolinas Med. Ctr. also includes the following analysis concerning certification of

questions of law to this Court:

             The Industrial Commission acknowledged this option in its
             decision in Carter v. Flowers Baking Co., in which it held
             that “the Commission does not have the authority to find
             that enactments of the Legislature are unconstitutional[,]”
             and that:


                                         -6-
                                      IN RE DAVIS

                                   Opinion of the Court




                 If the Commissioners feel strongly that a statute is
                 unconstitutional and that it would clearly offend their
                 oath to apply it, or that applying it would cause
                 irreparable prejudice, or that the question would not
                 otherwise be reviewed in the courts, etc., the
                 Commission “may certify questions of law to the Court
                 of Appeals for decision and determination” [pursuant to
                 N.C. Gen. Stat. § 97-86], which would “operate as a
                 supersedeas except as provided in G.S. 97-86.1.”

Carolinas Med. Ctr., 172 N.C. App. at 553, 616 S.E.2d at 591 (citation omitted).

      We further note that in Carolinas Med. Ctr., cited with approval in Redmond

II, this Court dismissed the constitutional question argued on appeal, explaining that

“[i]t is not the role of the appellate courts to render advisory opinions in matters that

are not properly before them.” Carolinas Med. Ctr., 172 N.C. App. at 554, 616 S.E.2d

at 592 (citation omitted). This Court further held that the constitutional question

was not properly before it because the constitutional matter had not been made part

of a declaratory judgment action and, although “N.C. Gen. Stat. § 97-96 allows this

Court to consider questions of law certified to it by the Industrial Commission[,]”

N.C.G.S. § 97-96 “does not presume to allow this Court to certify matters to itself for

review and consideration. The provisions of Rule 2 are discretionary, and cannot be

used to confer jurisdiction upon this Court in the absence of jurisdiction.” Id. at 554,

616 S.E.2d at 592 (citation omitted). By citing Carolinas Med. Ctr. with approval, it

is inferred that this Court was correct – or at least had the discretion – to refuse to

consider, for the first time on appeal from an agency decision, a constitutional


                                          -7-
                                     IN RE DAVIS

                                  Opinion of the Court



argument when no attempt had been made by the appellant to bring that argument

forward at the lower tribunal. As stated in Carolinas Med. Ctr., this Court considered

the failure to utilize methods available at the trial level in order to address a

constitutional issue to be a jurisdictional error. Id. The circumstances before us are

in relevant ways the same as those in Carolinas Med. Ctr.

      This Court has regularly held that constitutional issues not raised before the

Industrial Commission will not be heard for the first time on appeal. See Powe v.

Centerpoint Human Servs., 215 N.C. App. 395, 412, 715 S.E.2d 296, 307 (2011); Myles,

183 N.C. App. at 665–66, 645 S.E.2d at 143–44 (citing Carolinas Med. Ctr.) (emphasis

added) (“Where a party appeals a constitutional issue from the Commission and fails

to file a petition for certiorari or fails to have the question certified by the

Commission, this Court is without jurisdiction. In the instant case, there is no

evidence in the record that the Commission has certified the question nor is there any

evidence that a petition for certiorari was filed.       Accordingly, we are without

jurisdiction to hear this case.    For the foregoing reasons, plaintiff’s appeal is

dismissed.”).

      Unlike in the present case, the constitutional issues involved in our Supreme

Court’s opinion in Redmond II were raised before the Industrial Commission. In two

of the cases addressed in Redmond II, the Industrial Commission, in its decisions and

orders, explicitly stated that it was certifying those constitutional questions to this



                                         -8-
                                           IN RE DAVIS

                                        Opinion of the Court



Court. In the third case we granted the claimant’s petition for writ of certiorari.

Therefore, it is unclear to this Court whether the holding in Redmond II is limited to

situations where the constitutional issues had first been raised before the Industrial

Commission, or had been included in a petition for writ of certiorari.3

       Therefore, we are uncertain how broadly we should interpret the following

language from Redmond II:

               When an appeal lies directly to the Appellate Division from
               an administrative tribunal, in the absence of any statutory
               provision to the contrary, see, e.g., N.C.G.S. § 150B–45(a),
               a constitutional challenge may be raised for the first time
               in the Appellate Division as it is the first destination for
               the dispute in the General Court of Justice.4

Redmond II, __ N.C. at __, 797 S.E.2d at 280. If we interpret this language broadly,

then we must conclude that this Court was wrong to dismiss the constitutional

argument in Carolinas Med. Ctr., despite the fact that Redmond II cites that opinion

with approval, id. at __, 797 S.E.2d at 278, and that this Court is without authority




       3   We note that although the Remand Order limits our review on remand to constitutional
issues pursuant to our Supreme Court’s reasoning in Redmond II, not every opinion included in the
Remand Order contains a constitutional issue. See House I, __ N.C. App. __, 782 S.E.2d 115.
Therefore, we cannot presume that the mandate of the Remand Order is meant to require this Court
to address the merits of every one of our opinions contained therein.
         4 Absent utilization of the Declaratory Judgment Act. N.C.G.S. § 1-253 (“Courts of record

within their respective jurisdictions shall have power to declare rights, status, and other legal
relations, whether or not further relief is or could be claimed. No action or proceeding shall be open
to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may
be either affirmative or negative in form and effect; and such declarations shall have the force and
effect of a final judgment or decree.”).



                                                -9-
                                           IN RE DAVIS

                                        Opinion of the Court



or discretion to refuse to address the merits of any constitutional argument made for

the first time on appeal, so long as that appeal is from a final agency decision.

       In an attempt to gain further clarity, we consider the right of appeal from

agency decisions – including from decisions pursuant to the Compensation Program

and other agency decisions. Pursuant to the Compensation Program, appeal was

governed by N.C. Gen. Stat. § 143B-426.53 (2015).5 A claimant first had to have a

claim determined by a deputy commissioner based upon an application and

supporting materials. N.C.G.S. § 143B-426.53(b).                 If the claim was denied, the

claimant could then submit additional documentation to the deputy commissioner,

and obtain additional review. N.C.G.S. § 143B-426.53(c). If the claim was again

denied, claimant could then request a hearing before the deputy commissioner.

N.C.G.S. § 143B-426.53(d). Upon a final denial by the deputy commissioner, the

claimant could then appeal to the Full Commission for de novo review. N.C.G.S. §

143B-426.53(e).      Finally, if the claim was denied by the Full Commission, the

claimant could “appeal the decision of the [F]ull Commission to the Court of

Appeals[.] Appeals under this section shall be in accordance with the procedures set

forth in G.S. 143-293 and G.S. 143-294.” N.C.G.S. § 143B-426.53(f).

       N.C. Gen. Stat. § 143-293 is part of Article 31 of Chapter 143, known as the

“Tort Claims Act,” and states in relevant part that appeal to the Court of Appeals


       5 The provisions of the Compensation Program are no longer in force except for those few cases
that were properly initiated but have yet to reach final disposition, such as the present case.

                                               - 10 -
                                      IN RE DAVIS

                                   Opinion of the Court



“shall be for errors of law only under the same terms and conditions as govern appeals

in ordinary civil actions[.]” N.C.G.S. § 143-293. The Industrial Commission, whether

acting pursuant to the Tort Claims Act, the Worker’s Compensation Act, the

Compensation Program, or any other authority, is prohibited from ruling on

constitutional questions. Redmond II, __ N.C. at __, 797 S.E.2d at 277 (citations

omitted) (the “judicial power [of the Industrial Commission] clearly does not extend

to consideration of constitutional questions”).

      However, the Rules of Appellate Procedure, including Rule 10, have been

regularly applied to appeals from the Industrial Commission. See N.C. Gen. Stat. §

97-86 (2015) (“appeal from the decision of [the] Commission to the Court of Appeals

for errors of law under the same terms and conditions as govern appeals from the

superior court to the Court of Appeals in ordinary civil actions. The procedure for the

appeal shall be as provided by the rules of appellate procedure.”); N.C. Gen. Stat. §

105-345(d) (2015) (appeal from Property Tax Commission shall be to the Court of

Appeals and “[t]he procedure for the appeal shall be as provided by the rules of

appellate procedure); Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 610 S.E.2d 360

(2005) (Court of Appeals should have dismissed appeal in action brought pursuant to

Tort Claims Act for violations of Rule 10 and Rule 28 of the Rules of Appellate

Procedure); Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 591, 281 S.E.2d 24,

35 (1981) (in opinion considering appeal from a final agency decision, our Supreme



                                          - 11 -
                                      IN RE DAVIS

                                   Opinion of the Court



Court admonished: “We remind counsel that the Rules of Appellate Procedure are

mandatory and failure to comply invites dismissal of the appeal.”).

      Our Supreme Court has regularly held that constitutional arguments not

brought forth at the lower court level will be dismissed on appeal pursuant to Rule

10(a)(1). See, e.g., State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007); State

v. Roache, 358 N.C. 243, 284, 595 S.E.2d 381, 408 (2004) (defendant failed to raise

constitutional error at the trial court; therefore, pursuant to Rule 10(a)(1) it was not

preserved for appellate review); State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 514

(1998); State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995).

      Based upon the following language, it is possible that Redmond II, at least

concerning constitutional questions, has overruled the applicability of certain of our

Rules of Appellate Procedure to appeals from administrative tribunals – or perhaps

has concluded that these rules have never applied with respect to constitutional

issues not brought forth before administrative tribunals in the first instance:

             That the Commission is not a court, but an administrative
             agency of the State with statutorily limited judicial
             authority, also makes distinguishable our prior reasoning
             in cases like City of Durham v. Manson, 285 N.C. 741, 743,
             208 S.E.2d 662, 664 (1974) (“[I]n conformity with the well
             established rule of appellate courts, we will not pass upon
             a constitutional question unless it affirmatively appears
             that such question was raised and passed upon in the court
             below.” (italics omitted) (quoting State v. Jones, 242 N.C.
             563, 564, 89 S.E.2d 129, 130 (1955))), and State v. Cumber,
             280 N.C. 127, 132, 185 S.E.2d 141, 144 (1971) (“Having
             failed to show involvement of a substantial constitutional


                                          - 12 -
                                     IN RE DAVIS

                                  Opinion of the Court



             question which was raised and passed upon in the trial
             court and properly brought forward for consideration by
             the Court of Appeals, no legal basis exists for this appeal to
             the Supreme Court, and it must therefore be dismissed.”).
             As we have established already, the Commission has no
             authority to decide constitutional questions, making the
             rule announced in these cases inapplicable to whether the
             Court of Appeals may consider the constitutional question
             raised in this case.

Redmond II, __ N.C. at __, 797 S.E.2d at 279. Because we lack certainty concerning

whether failure to bring forth constitutional arguments at the trial level in the first

instance – even when the tribunal is an administrative agency – constitutes a

jurisdictional defect as stated in Carolinas Med. Ctr., or whether this Court, when

considering an appeal from an administrative tribunal, retains any discretion

pursuant to Rule 10(a)(1) to refuse to address constitutional issues not first argued

at the trial level, we make the following holdings in the alternative.

                                   a. Rule 10(a)(1)

      Because this Court is uncertain whether Rule 10(a)(1) applies to Claimant’s

constitutional argument in light of Redmond II, we first make an arguendo holding

applying Rule 10(a)(1). N.C.G.S. § 143-293 (“appeal shall be for errors of law only

under the same terms and conditions as govern appeals in ordinary civil actions”).

Assuming, arguendo, that Rule 10(a)(1) applies to Claimant’s constitutional

argument, we hold that Claimant has not preserved her constitutional issue for

appellate review, and we dismiss it. Carolinas Med. Ctr., 172 N.C. App. at 554, 616



                                         - 13 -
                                    IN RE DAVIS

                                 Opinion of the Court



S.E.2d at 592. If dismissal of Claimant’s constitutional argument is proper pursuant

to Rule 10(a)(1), then only the following language in Maye I has been overruled:

             Further, to the extent, if any, that Claimants’ arguments
             contain a facial challenge to any statute based upon an
             alleged violation of the North Carolina Constitution or of
             federal law, this Court has held that it does not have
             jurisdiction to decide those matters. See In re Hughes, __
             N.C. App. __, __ S.E.2d __, 2016 WL 611548 (Feb. 2016).

Maye I, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877, at *2. The remainder of

this Court’s opinion in Maye I would remain undisturbed.

                             b. Eugenics Board Records

      Assuming, arguendo, this Court is required by Redmond II to address the

merits of Claimant’s constitutional argument, we hold that her argument fails to

state a cognizable constitutional claim. Claimant argues:

             By requiring that a sterilization victim must have
             documentation in the Eugenics Board archives in order to
             be compensated under the [Compensation Program], the
             Industrial Commission created a classification which
             makes the Act “grossly under-inclusive” as it “does not
             include all who are similarly situated” – a construction
             which undercuts any claims that the requirement serves a
             legitimate State interest, and thus violates [Claimant’s]
             constitutional rights to equal protection and fundamental
             fairness.

      Initially, Claimant does not demonstrate that the underlying premise of her

argument is based in fact or law. Claimant directs this Court to nothing in the

Compensation Program that requires a claimant to produce documentation from the



                                        - 14 -
                                      IN RE DAVIS

                                   Opinion of the Court



Eugenics Board in order to prosecute a successful claim for compensation.       The

requirements for proving entitlement to compensation were set forth in N.C. Gen.

Stat. § 143B-426.52 (2015):

             (a) An individual shall be entitled to compensation as
             provided for in this Part if a claim is submitted on behalf of
             that individual in accordance with this Part . . . on or
             before June 30, 2014, and that individual is subsequently
             determined by a preponderance of the evidence to be a
             qualified recipient[.]

              ....

             (d) The Commission shall adopt rules for the determination
             of eligibility and the processing of claims in accordance
             with G.S. 150B-21.1.

N.C.G.S. § 143B-426.52.       The Industrial Commission adopted temporary rules,

effective 3 December 2013, for the determination of eligibility. 4 N.C.A.C. 10K.0101

et seq. These rules include no requirement that a claimant produce documentation

from the Eugenics Board in order to be determined eligible for compensation. Initial

determination of eligibility was decided in relevant part as follows:

             (a) A claimant . . . shall file a claim on or before June 30,
             2014, by filing the Claim for Compensation under the
             [Compensation Program] with the Office of Justice for
             Sterilization Victims [(the “Office”)]. The form shall
             request the following information:
                 (1) the claimant’s current name, mailing address,
                 county, email address, phone numbers;
                 (2) if applicable, the claimant’s maiden name;
                 (3) the claimant’s birthdate;
                 (4) the claimant’s full name at time of procedure;
                 (5) the claimant’s nickname or alias at time of


                                          - 15 -
                                    IN RE DAVIS

                                 Opinion of the Court



               procedure;
               (6) the estimated date or year of procedure;
               (7) the county of residence at time of procedure;
               (8) the name of facility where procedure was performed;

               ....

            (b) The Commission will not dismiss a claim solely because
            all of the information listed in Subparagraph (a)(1)-(9) is
            not submitted.

            (c) The Office . . . shall search the program records for the
            North Carolina Eugenics Board and collect the following
            documentation as available:

               (1) Petition for Operation of Sterilization or
               Asexualization;
               (2) Order for Operation of Sterilization;
               (3) Certificate of Surgeon;
               (4) Letter of Authorization to Surgeon;
               (5) consent of parent, guardian, spouse, or next of kin;
               (6) minutes of proceedings of the Eugenics Board;
               (7) proof of any search efforts of the [Office];
               (8) other pertinent records; and
               (9) any other evidence submitted by the claimant.

            The Office . . . shall complete and transmit the Claim for
            Compensation under the [Compensation Program] along
            with the available documentation to the Industrial
            Commission. The Industrial Commission shall provide a
            copy of the Claim for Compensation under the
            [Compensation Program] along with the available
            documentation to the claimant upon receipt from the
            Office[.]

            (d) The Commission shall make an initial determination of
            eligibility for compensation by filing a written decision.

4 N.C.A.C. 10K.0201 (emphasis added).



                                        - 16 -
                                     IN RE DAVIS

                                  Opinion of the Court



      This rule simply states that the claimant and the Office shall collect as much

relevant evidence and documentation as possible in order for the Industrial

Commission to conduct its review. There is nothing indicating that the Industrial

Commission was prohibited from determining that a claimant was eligible based

upon evidence that did not include records from the Eugenics Board. Further, “[i]n

the interests of justice . . . the Commission may, except as otherwise provided by the

rules in this Subchapter, waive or vary the requirements or provisions of any of the

rules in this Subchapter in a case pending before the Commission upon written

application of a claimant[.]” 4 N.C.A.C. 10K.0501. Because we find nothing in the

Eugenics Act, nor in the temporary rules promulgated by the Industrial Commission,

that required documentation from the Eugenics Board as the only method of proof of

eligibility, we reject Claimant’s argument.       We further note that an absence of

documentation at the Eugenics Board could potentially indicate that a claimant was

sterilized pursuant to the actions of a county, and not pursuant to “the authority of

the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public

Laws of 1933 or Chapter 221 of the Public Laws of 1937.” N.C.G.S. § 143B-426.50.

Although a sterilization not performed pursuant to the authority of the Eugenics

Board would likely have been unlawful, compensation pursuant to the Compensation

Program would still have been unavailable. House I, __ N.C. App. at __, 782 S.E.2d




                                         - 17 -
                                          IN RE DAVIS

                                       Opinion of the Court



at 120; House II, __ N.C. App. at __, __ S.E.2d at __ (reaffirming our opinion in House

I).

                                      c. Equal Protection

      Assuming, arguendo, that Claimant has argued a cognizable equal protection

argument, that argument fails. This Court rejected an equal protection argument

involving the Compensation Program in In re Hughes, __ N.C. App. __, 801 S.E.2d

680 (2017) (“Hughes II”).6 As this Court has stated:

                The Equal Protection Clause of Article I, Section 19 of the
                North Carolina Constitution and the Equal Protection
                Clause of Section 1 of the Fourteenth Amendment to the
                United States Constitution forbid North Carolina from
                denying any person the equal protection of the laws, and
                require that all persons similarly situated be treated alike.

Id. at __, 801 S.E.2d at 685–86 (citation omitted). We have thoroughly considered

Claimant’s argument and hold that, because she cannot demonstrate that she was

sterilized pursuant to “the authority of the Eugenics Board of North Carolina in

accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public

Laws of 1937[,]” N.C.G.S. § 143B-426.50, she cannot demonstrate that she is similarly

situated with claimants who were able to so prove. House, __ N.C. App. at __, 782

S.E.2d at 120; House II, __ N.C. App. at __, __ S.E.2d at __. Therefore, Claimant’s




      6   Hughes II was decided after the reversal and remand of Hughes I by our Supreme Court.

                                              - 18 -
                                   IN RE DAVIS

                                Opinion of the Court



equal protection argument must fail. We affirm the 14 May 2015 decision and order

of the Full Commission.

      AFFIRMED.

      Judges MURPHY and ARROWOOD concur.




                                       - 19 -
