An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-801

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN RE: PETITION OF JOSEPH JEMSEK,

JEMSEK M.D., LICENSE NO. 23386,

 Petitioner,

Wake County

No. 12-CVS-9321

BEFORE THE NORTH CAROLINA

MEDICAL BOARD

Appeal by petitioner from order entered 18 January 2013 by 

Judge Donald W. Stephens in Wake County Superior Court. Heard 

in the Court of Appeals 20 November 2013.

Law Office of Matthew I. Van Horn, by Matthew I. Van Horn,

and Jacques G. Simon, pro hac vice, for petitionerappellant.

Elizabeth R. Suttles and Marcus Jimison for respondentappellee.

DAVIS, Judge.

Dr. Joseph Jemsek (“Dr. Jemsek”) appeals from the trial 

court’s order dismissing his petition for judicial review of the 

order of the North Carolina Medical Board (“the Board”) denying 

his request for a declaratory ruling regarding a 2006 
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disciplinary order against him. After careful review, we 

affirm.

Factual Background

In June of 2006, the Board held a disciplinary hearing

concerning Dr. Jemsek’s treatment of ten patients who came to 

him exhibiting symptoms of fatigue, achiness, and decreased 

concentration. The Board determined that Dr. Jemsek diagnosed 

each of these ten patients with Lyme disease “in a manner that 

departed from acceptable and prevailing standards of medical 

practice, including making a diagnosis with scant or no 

supporting historical, physical, serological or other laboratory 

evidence supporting [the] diagnosis of Lyme disease.” The Board

also concluded that Dr. Jemsek’s course of treatment — which 

consisted of administering oral or intravenous antibiotics to 

the patients over extended periods of time — departed from 

acceptable and prevailing standards of practice in that there 

was “an absence of any research or clinical evidence of 

efficacy” for such treatments. The Board further found that Dr. 

Jemsek had failed to adequately educate and inform his patients 

that his methods of diagnosing and treating Lyme disease

deviated from recognized standards.
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By order dated 21 August 2006, the Board concluded that 

these departures from acceptable and prevailing standards of 

practice amounted to unprofessional conduct and constituted 

grounds to suspend Dr. Jemsek’s medical license for 12 months. 

In its order, however, the Board immediately stayed the 

suspension of Dr. Jemsek’s license upon the following 

conditions:

a. Dr. Jemsek shall develop an informed 

consent form approved by the North 

Carolina Board President.

b. If a patient’s diagnosis is not 

supported by current Center for 

Disease Control (“CDC”) criteria, 

then the patient must have a 

consultation or second opinion by a 

North Carolina licensed infectious

disease physician approved by the 

Board President before treatment.

c. Any treatment of Lyme Disease either

by oral or intravenous antibiotics 

for greater than two months total 

time must be included in a formal 

research protocol with institutional 

review board (“IRB”) supervision 

approved by the Board President.

d. Any complications of treatment must 

be addressed . . . immediately.

Dr. Jemsek did not appeal the 21 August 2006 order.

On 27 April 2012, Dr. Jemsek filed a petition with the 

Board seeking a declaratory ruling that its 21 August 2006 order
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be declared “null and void.” The petition asserted that the 

Board should issue such a ruling because the 21 August 2006 

order (1) had expired on its own terms in 2007; (2) was moot 

based on the theory that the conditions set forth in the order

had been fully complied with; (3) “was issued in excess of the 

disciplinary subject matter jurisdiction and authority of the 

Board conferred upon it by N.C. Gen. Stat. § 90-14(a)(6)”; (4) 

bypassed the rulemaking process of the North Carolina 

Administrative Procedure Act (“APA”); (5) used an erroneous 

standard of care; (6) deserved to be vacated based upon the 

recent scientific developments recognized in the medical 

community for diagnosing and treating Lyme disease; and (7) 

“impermissibly preclude[d] judicial appeal and review.”

On 29 May 2012, the Board issued an order denying Dr. 

Jemsek’s request for a declaratory ruling. On 28 June 2012, Dr. 

Jemsek filed a petition for judicial review of the Board’s 

denial in Wake County Superior Court. The Board filed a motion 

to dismiss and a motion to strike his petition on 6 August 2012. 

On 9 January 2013, Dr. Jemsek’s petition for judicial review was 

heard by the Honorable Donald W. Stephens. On 18 January 2013, 

the trial court entered an order (1) ruling “as a matter of law 

that the Medical Board did not commit error in denying the 
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request for a declaratory ruling”; and (2) dismissing the

petition for judicial review with prejudice. Dr. Jemsek 

appealed to this Court.

Analysis

“In reviewing a superior court order entered upon review of 

an administrative agency decision, this Court has a two-fold 

task: (1) determine whether the trial court exercised the 

appropriate scope of review . . . ; [and] (2) decide whether the 

court did so properly.” Cty. of Wake v. Dep’t of Env’t & 

Natural Res., 155 N.C. App. 225, 233-34, 573 S.E.2d 572, 579 

(2002) (citation and quotation marks omitted), disc. review 

denied, 357 N.C. 62, 579 S.E.2d 386 (2003).

The agency decision before the trial court in the present 

case was the Board’s denial of Dr. Jemsek’s request for a 

declaratory ruling pursuant to N.C. Gen. Stat. § 150B-4. N.C. 

Gen. Stat. § 150B-4 provides, in pertinent part, that

[o]n request of a person aggrieved, an 

agency shall issue a declaratory ruling as 

to the validity of a rule or as to the 

applicability to a given state of facts of a 

statute administered by the agency or of a 

rule or order of the agency. Upon request, 

an agency shall also issue a declaratory 

ruling to resolve a conflict or 

inconsistency within the agency regarding an 

interpretation of the law or a rule adopted 

by the agency. The agency shall prescribe 

in its rules the procedure for requesting a 
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declaratory ruling and the circumstances in 

which rulings shall or shall not be issued.

N.C. Gen. Stat. § 150B-4(a) (2013).

In 2007, the Board adopted the following rule regarding the 

disposition of requests for declaratory rulings and the 

circumstances under which such rulings shall — or shall not — be 

issued:

(a) Upon receipt of a Request for 

Declaratory Ruling, the Board shall 

determine whether a ruling is appropriate 

under the facts stated.

(b) When the Board determines that the 

issuance of a declaratory ruling is 

inappropriate, the Board shall notify, in 

writing, the person requesting the ruling, 

stating the reasons for the denial of the 

request.

(c) The Board shall decline to issue a 

declaratory ruling where:

(1) there has been a similar 

controlling factual determination 

made by the Board in a contested 

case;

(2) the rule-making record shows that 

the factual issues raised by the 

request were specifically 

considered prior to adoption of 

the rule; or

(3) the subject-matter of the request 

is involved in pending litigation 

in any state or federal court in 

North Carolina;
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(4) the petitioner fails to show that 

the circumstances are so changed 

since the adoption of the statute 

or rule that a ruling is 

warranted.

21 N.C.A.C. 32A.0112 (2013) (emphasis added). In its denial of

Dr. Jemsek’s request for a declaratory ruling, the Board cited 

21 N.C.A.C. 32A.0112(c)(1) — that “there has been a similar 

controlling factual determination made by the Board in a 

contested case” — as the basis for its decision.

An agency’s denial of a request for a declaratory ruling is 

not a decision on the merits of the case. See Equity Solutions 

of the Carolinas, Inc. v. N.C. Dep’t of State Treasurer, ___ 

N.C. App. ___, ___, 754 S.E.2d 243, 249 (2014) (explaining that 

when agency declines to issue declaratory ruling, “there has 

been no agency decision on the merits [of the] case”). Because 

the agency does not reach the merits of the request when it 

declines to issue a declaratory ruling, the merits of the 

party’s petition for a declaratory ruling are not before the 

superior court and thus are not before this Court. See id. at 

___, 754 S.E.2d at 249 (“offer[ing] no opinion on the merits of 

[petitioner’s] request for a declaratory ruling [because] [t]hat 

issue was not before the trial court and is not before this 

Court”).
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Instead, our review is limited solely to the agency’s 

decision to deny the request. Because Dr. Jemsek contends that 

the Board committed an error of law in denying his request for a 

declaratory ruling, we review the denial de novo. Craven Reg’l 

Med. Auth. v. N.C. Dep’t of Health & Human Servs., 176 N.C. App. 

46, 51, 625 S.E.2d 837, 840 (2006) (“Where a party asserts an 

error of law occurred [in an administrative agency decision], we 

apply a de novo standard of review.”).

In this case, we believe that the trial court correctly 

dismissed Dr. Jemsek’s petition challenging the Board’s refusal 

to issue a declaratory ruling. In 21 N.C.A.C. 32A.0112, the 

Board has made clear that it “shall decline to issue a 

declaratory ruling where . . . there has been a similar 

controlling factual determination made by the Board in a 

contested case.” 21 N.C.A.C. 32A.0112(c)(1) (emphasis added).

Here, the Board’s 21 August 2006 order — entered after a two-day 

disciplinary hearing on Dr. Jemsek’s diagnostic and treatment 

methods for Lyme disease — clearly constitutes a prior Board 

decision on a similar factual determination in a contested case. 

See N.C. Gen. Stat. § 150B-2(2) (2013) (defining contested case 

as “an administrative proceeding . . . to resolve a dispute 

between an agency and another person that involves the person’s 
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rights, duties, or privileges, including licensing or the levy 

of a monetary penalty . . . .”).

Thus, while Dr. Jemsek contends that his petition for a 

declaratory ruling presented issues that did not exist at the 

time of the initial hearing in 2006, he cannot dispute that 

there was, in fact, a prior determination by the Board

concerning his approach to diagnosing and treating patients with 

putative diagnoses of Lyme disease. Indeed, the bulk of Dr. 

Jemsek’s petition for a declaratory ruling centered around his 

request for a determination by the Board that its 21 August 2006 

disciplinary order was improper. Specifically, Dr. Jemsek

sought a ruling from the Board declaring that it had utilized 

the incorrect standard of care and improperly disciplined him 

for exercising his medical judgment, which, in his view, did not 

establish a departure from accepted practices.

As this Court has previously explained in a different 

context, an agency may properly deny a request for a declaratory 

ruling when the request is based upon a factual situation that 

the agency has already decided in a prior case. See CharlotteMecklenburg Hosp. Auth. v. Bruton, 145 N.C. App. 190, 192-93, 

550 S.E.2d 524, 526-27 (2001) (holding that denial of request 

for declaratory ruling regarding Medicaid eligibility of legal 
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aliens was appropriate given that agency “had previously decided 

the actual cases from which petitioners drew their facts”), 

disc. review denied, 355 N.C. 210, 559 S.E.2d 798 (2002). We 

reasoned that “[t]o hold otherwise would be to require an agency 

to twice decide the same case, between the same parties, by

applying the same statute to the same facts.” Id. at 193, 550

S.E.2d at 526 (citation and quotation marks omitted).

In this case, Dr. Jemsek’s petition for a declaratory 

ruling essentially sought to relitigate the Board’s conclusion 

set out in its 21 August 2006 order that Dr. Jemsek’s practices 

departed from acceptable and prevailing standards regarding the 

diagnosis and treatment of Lyme disease and requested that the 

Board rescind its 2006 order. The trial court’s order 

dismissing Dr. Jemsek’s petition for judicial review

specifically ruled that “[t]he matters requested for such ruling 

have been previously adjudicated by the Board in a final 

decision by the Medical Board which was not appealed” and that 

“[t]he current request by Petitioner is no more than an attempt 

to untimely appeal the Medical Board’s 2006 disciplinary order.”

We agree. The Board’s denial of the request for a 

declaratory ruling conformed with 21 N.C.A.C. 32A.0112(c)(1) and 

was in no way inconsistent with N.C. Gen. Stat. § 150B-4. 
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Therefore, we hold that the trial court did not err in 

dismissing Dr. Jemsek’s petition.

Conclusion

For the reasons stated above, we affirm the trial court’s 

order.

AFFIRMED.

Judges ELMORE and McCULLOUGH concur.

Report per Rule 30(e).