ORDERS:
ORDER OF DISMISSAL
STATEMENT OF
THE CASE
This
matter comes before the Administrative Law Court (ALC or Court) pursuant to the
filing of a Notice of Appeal by William J. Griggs (Appellant). Appellant seeks
review of a decision issued by the South Carolina Department of Health and
Human Services (Department) dated July 6, 2007. The Department filed a Motion
to Dismiss on November 9, 2007, asserting that the Court lacks jurisdiction in
this appeal because the Appellant failed to timely file the Notice of Appeal.
DISCUSSION
According
to ALC Rule 33, the Notice of Appeal must be filed with the Court within thirty
(30) days of receipt of the decision from which the appeal is taken. In this
case, the Appellant received the final decision on July 14, 2007. The Notice
of Appeal, therefore, was due within thirty (30) days of that date. The
Appellant, however, did not file his appeal until September 27, 2007. ALC Rule
38 provides “an Administrative Law Judge may dismiss an appeal for failure to
comply with any of the rules of procedure for appeals, including the failure to
comply with any of the time limits provided by this section.” Pursuant to this
rule, the undersigned can dismiss this case for failure to timely file a Notice
of Appeal as required by ALC Rule 38.
Furthermore,
the failure to timely file a Notice of Appeal deprives a court of appellate
jurisdiction. See Elam v. S.C Department of Transportation,
361 S.C. 9, 15, 602 S.E. 2d 772, 775 (2004) (“The requirement of service of the
notice of appeal is jurisdictional, i.e., if a party misses the deadline, the
appellate court lacks jurisdiction to consider the appeal and has no authority
or discretion to ‘rescue’ the delinquent party by extending or ignoring the
deadline for service of the notice.”); Dewitt v. South Carolina Dep’t of
Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980) (a circuit
court’s jurisdiction over a magistrate’s decision is appellate in nature and a
circuit court does not have the right to extend the time within which an appeal
may be taken from the magistrate’s decision).
Although
the Notice of Appeal in this case was due within thirty (30) days of July 14,
2007, the Appellant did not file it until September 27, 2007. The Court,
therefore, lacks jurisdiction over this matter.
IT IS HEREBY
ORDERED that the Appellant’s appeal is DISMISSED, WITH PREJUDICE.
AND IT IS SO
ORDERED.
_______________________________
John D. McLeod
Administrative Law Judge
January 3, 2008
Columbia, South Carolina
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