ORDERS:
ORDER OF DISMISSAL
Respondent South Carolina Department of Corrections ("Respondent" or "Department") filed a motion to
dismiss this matter. Respondent seeks a dismissal on the grounds that Appellant failed to file the notice of
appeal with the Administrative Law Judge Division within thirty (30) days of written notice of Respondent's
final decision.
This Division has jurisdiction to hear this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742
(2000). In Al-Shabazz, the S.C. Supreme Court stated that:
The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice
of Department's final decision.
Id. at 33 (emphasis added). The Court in Al-Shabazz cited ALJD Rule 33 in support of this requirement.
The Division has since adopted TR 62 for use in lieu of ALJD Rule 33. The language in TR 62 is virtually
identical to ALJD Rule 33 (1). TR 62 provides that:
The notice of appeal from the final decision of an agency to be heard by the [Division] shall be filed with the
Division and a copy served on each party and DOC within thirty (30) days of receipt of the decision from
which the appeal is taken.. . .
TR 62 (emphasis added).
As set forth in Al-Shabazz and TR 57 and 62, the notice of appeal must be filed and a copy served on the
Department within thirty (30) days of the appellant's receipt of the final decision of the Department. In this
case, there is no evidence in the record, and, although Appellant has had ample time to respond to the Motion
to Dismiss (2), Appellant has not provided any evidence that notice of appeal was filed with the Division
within 30 days of Appellant's receipt of the Department's final decision . Therefore, Appellant has not
properly invoked the jurisdiction of this tribunal.
It is also well-established that a court does not have the authority to extend the time for taking an appeal
from a decision of an administrative agency. e.g., Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985);
Burnette v. S.C. State Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969) (addressing an appeal from the
Board of Condemnation). This tribunal recognizes the harsh result of this decision but is constrained by the
rules of this tribunal and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512
(1994) [recognizing harsh result of dismissing a case where the appellant filed a summons and complaint
after serving the other party instead of filing the summons and complaint before such service, as required by
SCRCP 5(d)].
IT IS THEREFORE ORDERED that Respondent's Motion to Dismiss is GRANTED and the appeal of
Appellant Andre McDaniel, Jr., Docket No. 00-ALJ-04-01166-AP is hereby dismissed.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 6, 2001
Columbia, South Carolina
1. Pursuant to the opinion of the Supreme Court in Al-Shabazz, temporary rules were adopted by the ALJD to
apply exclusively to appeals from final decisions of the Department of Corrections. These rules are virtually
identical to corresponding ALJD appellate rules 33-41.
2. The Department swore by affidavit that Appellant was served a copy of the Motion to Dismiss on February
26, 2001. |