SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned case is before the Court pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2007) upon the request of Petitioner Mark Campbell (“Petitioner”) for a contested case hearing. In this matter, Petitioner challenges Final Agency Determination No. 07-021 issued by Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (“Retirement Systems”), in which the Retirement Systems denied his request for the reinstatement of his disability retirement benefits because it was not timely filed. On January 30, 2008, the Retirement Systems filed a Motion for Summary Judgment in this matter, in which it contends that there is no genuine issue as to any material fact regarding the timeliness of Petitioner’s request for the reinstatement of his benefits and that the Retirement Systems is entitled to judgment in its favor as a matter of law because, by failing to timely file his request, Petitioner failed to exhaust his administrative remedies with the Retirement Systems prior to seeking relief before this Court. Petitioner did not file a response to this Motion. The Court heard arguments on the Retirement Systems’ Motion for Summary Judgment on Thursday, March 6, 2008, at the Administrative Law Court in Columbia, South Carolina. Having fully considered the arguments presented at that hearing and in the Retirement Systems’ Motion, and having carefully examined the applicable law, I find that the Retirement Systems’ Motion for Summary Judgment should be granted for the reasons set forth below.

BACKGROUND

Petitioner Mark Campbell is a forty-four-year-old retired member of the South Carolina Retirement System, who retired from employment as a flight paramedic with the Medical University of South Carolina on October 6, 1998, pursuant to a disability retirement allowance under the System. However, as discussed in detail below, Petitioner’s benefits were discontinued in July 2002 for his failure to participate in the continuing disability review process, and Petitioner failed to timely exhaust his administrative remedies before the Retirement Systems with regard to that discontinuance.

Upon the approval of Petitioner’s application for disability retirement benefits in October 1998, the Retirement Systems conditioned Petitioner’s award upon the successful completion of a continuing disability review (“CDR”) of his medical condition in May 1999.[1] On April 1, 1999, the Retirement Systems mailed a Continuing Disability Review Report and several authorizations for the release of medical records to Petitioner for him to complete and return to the Retirement Systems as part of the scheduled review of his disability claim. As requested, Petitioner returned the completed forms to the Retirement Systems on May 17, 1999, and, upon receipt of the forms, the Retirement Systems forwarded Petitioner’s file to the Department of Vocational Rehabilitation (“VR”) for evaluation. Based upon a favorable recommendation from the VR disability examiner, the Retirement Systems approved the continuation of Petitioner’s disability benefits, notifying Petitioner of the decision by a letter dated July 20, 1999. In the letter, the Retirement Systems informed Petitioner that “[y]our benefit period has been extended to 06/01/2002,” at which time his benefits would be subject to another continuing disability review.

By a letter dated April 2, 2002, the Retirement Systems reminded Petitioner of the continuing disability review of his disability benefits scheduled for June 1, 2002, and enclosed a Continuing Disability Review Report and five authorizations for the release of medical records for Petitioner to complete and return to the Retirement Systems as part of that continuing disability review. The letter required Petitioner to return the completed Continuing Disability Review Report and authorization forms to the Retirement Systems by May 1, 2002, and cautioned Petitioner that, “[i]f you do not return these forms to South Carolina Retirement Systems as requested, your disability retirement benefit payments will be discontinued the month following your scheduled review date.” (Respt. Mot. for Summ. J. Ex. #1, at 30 (emphasis in original).) This letter and the attached forms were sent by certified mail to Petitioner at 8767 Yearling Drive, Apartment 8H, Charleston, South Carolina 29406-8010. Petitioner had certified this Yearling Drive address as his correct mailing address on January 19, 2002, in response to an inquiry from the Retirement Systems regarding some returned mail from his prior address, and the Retirement Systems had mailed other correspondence, including documents that had been returned from his prior address, to Petitioner at the Yearling Drive address between January and April 2002 without complication.

When the required forms had not been returned to the Retirement Systems by May 1, 2002, the Retirement Systems sent a reminder notice to Petitioner at the Yearling Drive address regarding his obligation to submit the continuing disability review forms. This second notice, dated May 2, 2002, contained additional copies of the required continuing disability review forms and again cautioned Petitioner that, “[i]f you do not return these forms to South Carolina Retirement Systems without delay, your disability retirement benefit payments will be discontinued the month following your scheduled review date of 06/01/2002.” (Respt. Mot. for Summ. J. Ex. #1, at 33 (emphasis in original).) Subsequently, on May 13, 2002, the Retirement Systems’ April 2 first notice letter to Petitioner regarding his continuing disability review was returned to the Retirement Systems from the Yearling Drive address, marked “unclaimed.” Upon receiving the returned letter, the Retirement Systems re-mailed the correspondence to Petitioner at the Yearling Drive address by regular mail. Neither this re-sent first notice nor the May 2 second notice mailed to Petitioner at the Yearling Drive address was returned to the Retirement Systems as “unclaimed” or otherwise undeliverable.

When the required continuing disability review forms had still not been received by the Retirement Systems by June 2, 2002, the Retirement Systems sent a final reminder letter to Petitioner regarding the submission of the continuing disability review forms. Like the two prior notices, this notice enclosed copies of the required continuing disability review forms, including the Continuing Disability Review Report, and warned Petitioner that the failure to timely submit the required forms would result in the discontinuance of his disability retirement benefits the month following his June 1, 2002 review date. This final notice was sent to Petitioner by certified mail to his Yearling Drive address. However, the notice was returned to the Retirement Systems on June 17, 2002, marked “return to sender” and listing a new address for Petitioner at 145 Butler Street, Summerville, South Carolina 29485-6905. In response to this returned mail, the Retirement Systems mailed a form to Petitioner at the Butler Street address on June 17, 2002, asking him to confirm that the Butler Street address was his new mailing address. No response to this change of address form was received by the Retirement Systems.

Because the Retirement Systems had not received the required continuing disability review forms, or any other correspondence, from Petitioner by the beginning of July 2002, the Retirement Systems was unable to proceed with the continuing disability review of Petitioner’s disability retirement benefits and discontinued those benefits effective July 2, 2002.[2] By a letter dated July 2, 2002, the Retirement Systems mailed notice to Petitioner of the discontinuance of his disability retirement benefits by certified mail to his Yearling Drive address, which remained his only address of record with the Retirement Systems. This notice of discontinuance was returned to the Retirement Systems on July 15, 2002, marked “return to sender” and listing the Butler Street address as Petitioner’s forwarding address. Upon receiving the returned notice, the Retirement Systems re-sent the notice of discontinuance to Petitioner at the Butler Street address by certified mail on July 18, 2002. However, this notice was returned to the Retirement Systems on August 9, 2002, marked “unclaimed.” In addition, on July 18, 2002, the Retirement Systems had also mailed a second change of address confirmation form to Petitioner at the Butler Street address. However, as with the first change of address form sent to that address, the Retirement Systems did not receive a response to the form.

On November 19, 2002, over four and a half months after the notice of discontinuance was mailed to Petitioner—and over three and a half months after Petitioner first failed to receive a benefit check as a result of the discontinuance of his benefits—Petitioner called the Retirement Systems to inquire as to the status of his disability retirement benefits. During this call, the Retirement Systems’ customer service representative explained why Petitioner’s disability benefits had been discontinued and informed Petitioner that, while his opportunity to appeal the discontinuance had expired, he could, nevertheless, submit a written explanation of any extenuating circumstances related to his failure to submit the required forms to the Retirement Systems for consideration. However, Petitioner did not submit any written explanation for his failure to comply with the continuing disability review process until submitting a brief letter on February 24, 2003, some three months after his conversation with the customer service representative and some seven months after the discontinuance of his disability retirement benefits. It does not appear that the Retirement Systems provided a formal response to this correspondence.

After submitting his letter in February 2003, Petitioner did not contact the Retirement Systems regarding the discontinuance of his disability benefits for nearly three and a half years, until he made a visit to the Retirement Systems on July 3, 2006. At that visit, Petitioner obtained a Continuing Disability Review Report, which he subsequently completed and returned to the Retirement Systems on July 7, 2006, along with five authorizations for the release of his medical records. However, by a letter dated July 17, 2006, Lauren Chandler, a manager in the Retirement Systems’ Customer Annuity Claims Department, informed Petitioner that the Retirement Systems could not accept his continuing disability review paperwork filed in 2006, because it was not timely submitted in connection with the June 2002 continuing disability review of his disability retirement benefits.

Almost a year later, on July 11, 2007, Petitioner submitted an appeal of the initial rejection of his 2006 continuing disability review paperwork to the Director of the Retirement Systems. On August 20, 2007, the Director of the Retirement Systems issued Final Agency Determination No. 07-021, affirming the initial finding that Petitioner’s Continuing Disability Review Report was not timely filed and should not be processed because of Petitioner’s failure to timely exhaust his agency remedies. On September 25, 2007, Petitioner requested a contested case hearing before this Court to challenge that determination.

DISCUSSION

In this matter, Respondent Retirement Systems has moved for summary judgment pursuant to Rule 56, SCRCP, and ALC Rules 19(A) and 68. Specifically, the Retirement Systems contends that this Court should grant summary judgment in its favor in this case, because there are no genuine issues of material fact in dispute concerning the timeliness of Petitioner’s request for the reinstatement of his disability retirement benefits and the Retirement Systems is entitled to judgment in its favor as a matter of law based upon Petitioner’s failure to exhaust his administrative remedies regarding the discontinuance of those benefits.

Summary judgment is appropriate in a case when it is clear that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; see also, e.g., Brandt v. Goodling, 368 S.C. 618, 626, 630 S.E.2d 259, 263 (2006). The party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact through the introduction of pleadings, depositions, answers to interrogatories, admissions on file, affidavits, and other documentary evidence. See Rule 56(c), (e), SCRCP; see also, e.g., Regions Bank v. Schmauch, 354 S.C. 648, 659, 582 S.E.2d 432, 438 (Ct. App. 2003). However, once the moving party has met this initial burden, the opposing party cannot rest on mere allegations or denials contained in the pleadings, but must come forward with specific facts showing that there is a genuine issue for trial. Rule 56(e), SCRCP; see also, e.g., Regions Bank, 354 S.C. at 660, 582 S.E.2d at 438. If the opposing party does not so respond, summary judgment, if appropriate, shall be entered in favor of the moving party. Rule 56(e), SCRCP.

In the case at hand, the Retirement Systems has, through the affidavits and exhibits attached to its Motion for Summary Judgment, met its burden of demonstrating the absence of a genuine issue of material fact with regard to the timeliness of Petitioner’s challenge to the discontinuance of his retirement benefits. And, in response to that showing, Petitioner has not come forward with specific facts to establish that there is genuine issue for trial. In fact, there does not appear to be any factual dispute in this matter as to the basic timeline surrounding the discontinuance of Petitioner’s benefits and his failure to respond to that discontinuance. Rather, the only factual disputes identified by Petitioner at the hearing on the Retirement Systems’ motion were those associated with his claim that he failed to receive the continuing disability review forms that were required to be completed for the continuation of his benefits in June 2002 and with his claim that he received certain misinformation regarding his ability to challenge the discontinuance of his disability benefits during his later contacts with the Retirement Systems in 2006. However, the Retirement Systems concedes that Petitioner did not receive the continuing disability review forms during the summer of 2002, and any issues of fact related to Petitioner’s contacts with the Retirement Systems in 2006 are not material to the question of whether he timely sought relief for the discontinuance of his benefits in 2002. Accordingly, the only remaining issue to be resolved in this matter is the legal question of whether, based upon the undisputed facts in the record, Petitioner’s belated challenge to the decision to discontinue his benefits is barred by the doctrine of the exhaustion of administrative remedies. As set forth in detail below, I find that Petitioner’s claim is not properly before this Court as a result of his failure to exhaust his administrative remedies and that summary judgment should, therefore, be granted in favor of the Retirement Systems.

At the time Petitioner’s disability retirement benefits were discontinued in July 2002, the proper recourse for a member of the South Carolina Retirement System who disagreed with a determination made by the Retirement Systems, including a determination involving the cancellation or suspension of benefits, was to seek administrative review of that determination under the Retirement Systems’ internal administrative review procedures.[3] See Internal Administrative Review Procedures for the South Carolina Retirement Systems § 1(a)(8) (1997) [hereinafter SCRS Administrative Review Procedures]. Under those procedures, the member would initiate the administrative review by requesting that the appropriate department manager review the disputed decision and issue a formal administrative ruling in the matter, which could, in turn, be appealed to the appropriate Deputy Director of the Retirement Systems and then the Director of the Retirement Systems. SCRS Administrative Review Procedures §§ 2(a)-(b), 3(a). In order to properly initiate review of a decision of the Retirement Systems, the member was required to make the initial request for formal review by the department manager within thirty days of his notification of the determination at issue. SCRS Administrative Review Procedures § 2(a) (“The request for formal review must be made within thirty (30) days after notification of the determination.”) (emphasis added). And, if the member failed to timely make that request, or otherwise failed to comply with the administrative review procedures, the review of the determination would terminate and the Retirement Systems’ initial decision would “be deemed the final decision of the agency and the Budget and Control Board.” SCRS Administrative Review Procedures § 1(c).

In the case at hand, the Retirement Systems’ decision to discontinue Petitioner’s disability retirement benefits for his failure to participate in the continuing disability review process was issued, and became effective, on July 2, 2002. Petitioner first received notice of the decision upon delivery of the Retirement Systems’ certified notice letter to Petitioner’s last address of record on file with the Retirement Systems, i.e., the Yearling Drive address, on or about July 10, 2002, even though Petitioner did not actually receive the notice at that time. It has been well-recognized that, where an individual fails to inform a governmental agency of a change in his address of record through his own neglect, the individual will be deemed under the law to have constructive notice of a mailing properly sent by that agency to his last of address of record, regardless of whether the individual actually receives the mailing. See, e.g., Pearison v. Pinkerton’s Inc., 90 Fed. Appx. 811, 813 (6th Cir. 2004) (holding that appellant, who did not receive a right-to-sue letter from the EEOC because he failed to notify the EEOC of a change in his address, “had constructive notice of the [right-to-sue] letter when the EEOC mailed it to his address of record”); Colo. Dep’t of Revenue v. Garner, 66 P.3d 106, 110 (Colo. 2003) (holding that a driver, who did not receive actual notice of the suspension of his driver’s license, “had constructive notice of the restraint because the Department mailed the notice to his last address of record and [the driver] had not reported his new address to the Department”); Martin v. Dosohs I, Ltd., No. 04-98-00829-CV, 1999 WL 102218, at *2 (Tex. App. Feb. 26, 1999) (not designated for publication) (holding that where a litigant failed to receive a decree that was sent to the address shown in the record as her current address but was returned unclaimed, the unclaimed notice provided the litigant with constructive notice of the decree).

Petitioner received further constructive notice of the discontinuance of his benefits after he failed to receive his benefit check for July 2002. Based upon prior correspondence from the Retirement Systems, Petitioner had knowledge that his disability benefits were scheduled for review in June 2002 and that he should expect to receive his monthly benefit check no later than five business days after the last business day of each month. Further, Petitioner had received a monthly benefit check from the Retirement Systems every month for the nearly four years between his retirement in November 1998 and the discontinuance of his benefits in June 2002. Consequently, when Petitioner failed to receive his benefit check for July 2002, he had knowledge of sufficient facts to put him on inquiry regarding the status of his retirement benefits, such that, as a matter of law, he is presumed to have had constructive notice of the discontinuance of his benefits on or about August 7, 2002. See, e.g., Strother v. Lexington County Recreation Comm’n, 332 S.C. 54, 63 n.6, 504 S.E.2d 117, 122 n.6 (1998) (defining “constructive notice” as “notice imputed to a person whose knowledge of facts is sufficient to put him on inquiry; if these facts were pursued with due diligence, they would lead to other undisclosed facts,” such that the person is “presumed to have actual knowledge of the undisclosed facts”).

Finally, regardless of when Petitioner is deemed to have received constructive notice of the discontinuance of his benefits, there is no question that he received actual notice that his benefits had been discontinued when he called the Retirement Systems’ customer service department on November 19, 2002, and was specifically informed that his benefits had been discontinued. See, e.g., Strother, 332 S.C. at 63 n.6, 504 S.E.2d at 122 n.6 (“Actual notice means all the facts are disclosed and there is nothing left to investigate.”).

However, no matter which of these three dates of notice is used as the date on which Petitioner received notification of the Retirement Systems’ discontinuance of his benefit, Petitioner’s request for administrative review of that decision was not timely. Rather than filing a request for review within thirty days of his notice of the discontinuance of his benefits, Petitioner did not submit his written request for further review of that decision until February 24, 2003—some seven and a half months after the Retirement Systems’ notice letter was delivered to his last address of record on or about July 10, 2002; some six and a half months after he was put on notice to inquire as to the status of his benefits on or about August 7, 2002; and some ninety-seven days after he was directly informed by a customer service representative on November 19, 2002, that his benefits had been discontinued. By failing to timely submit his request for review, Petitioner lost his opportunity to pursue his objections to the discontinuance of his disability benefits under the Retirement Systems’ administrative review procedures. See SCRS Administrative Review Procedures § 1(c). And, as a consequence of forgoing those administrative appeals before the Retirement Systems, Petitioner failed to exhaust his administrative remedies with the Retirement Systems regarding the discontinuance of his benefits, such that he is now precluded from pursuing his challenge to that decision before this Court.

The doctrine of exhaustion of administrative remedies generally requires a person seeking relief from the action of an administrative agency to pursue all available administrative remedies before seeking such relief from the courts. See, e.g., Pullman Co. v. Pub. Serv. Comm’n, 234 S.C. 365, 108 S.E.2d 571 (1959); see generally Richard H. Seamon, Administrative Agencies—General Concepts and Principles, in South Carolina Administrative Practice and Procedure 1, 83-96 (Randolph R. Lowell & Stephen P. Bates eds. 2004). However, this exhaustion principle applies not only when a party is seeking judicial review of an agency action, but also when a party is seeking review of an agency action before another administrative agency, such as the South Carolina Administrative Law Court (ALC). See, e.g., S.C. Code Ann. § 9-21-60 (Supp. 2007) (requiring, under the South Carolina Retirement Systems Claims Procedures Act, an exhaustion of agency remedies with the Retirement Systems prior to a claim being brought before the ALC). And, the basic rationale for the doctrine of exhaustion is equally applicable to judicial review of agency decisions and to contested case review of agency decisions by the ALC. See Video Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000) (noting that “[e]xhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review”). Therefore, prior to requesting a contested case hearing with the ALC to challenge a decision of the Retirement Systems, a claimant must exhaust all administrative remedies with the Retirement Systems, including timely filing a request for administrative review of the decision in question. See S.C. Code Ann. § 9-21-60; see also, e.g., Meredith v. Elliott, 247 S.C. 335, 147 S.E.2d 244 (1966) (holding that taxpayers were precluded from challenging the assessed value of their property in the courts because they had failed to exhaust their administrative remedies by appealing the decision of the county board of assessment appeals to the South Carolina Tax Commission); Lominick v. City of Aiken, 244 S.C. 32, 135 S.E.2d 305 (1964) (holding that an individual could not challenge a municipal zoning decision in court because she had failed to exhaust her administrative remedies by appealing the decision to the local zoning board of adjustment).

Moreover, such exhaustion principles are commonly recognized in pension litigation. For example, in litigation related to private pension plans under ERISA, federal courts have routinely held that a claimant must comply with, and exhaust, the pension plan’s internal appeals process, including meeting all applicable filing deadlines, in order to subsequently pursue his or her claim before the courts. See, e.g., Gayle v. United Parcel Serv., 401 F.3d 222 (4th Cir. 2005); Terry v. Bayer Corp., 145 F.3d 28, 40-41 (1st Cir. 1998).

The effect of a party’s failure to exhaust its administrative remedies, where required, depends upon whether the party has merely prematurely sought relief from the courts or another agency, without forgoing its remedies with the initiating agency, or has sought such relief only after allowing its opportunity to pursue administrative remedies with the initiating agency to expire, thereby forgoing those remedies. See Seamon, supra, at 85-86. In the first instance, where a party has sought relief from the courts or another agency either before its opportunity to pursue remedies before the initiating agency has expired or in addition to pursuing remedies with the initiating agency, the reviewing court or agency may simply dismiss the matter without prejudice and require the party to pursue the available or pending administrative remedies before seeking further review; in such cases, review by the court or agency is not barred, but merely delayed. See S.C. Code Ann. § 9-21-60; Pullman Co. v. Pub. Serv. Comm’n, 234 S.C. 365, 108 S.E.2d 571 (1959). In the second instance, where a party has sought relief from the courts or another agency after entirely forgoing its remedies before the initiating agency, a dismissal by the reviewing court or agency for failure to exhaust administrative remedies may completely preclude review by the court or agency because the party’s opportunity to cure its failure to exhaust its remedies before the initiating agency has expired. See, e.g., Meredith, 247 S.C. at 346-47, 147 S.E.2d at 249 (“Having failed to follow the administrative remedy created by the statute for the correction of errors in the valuation of their property, [taxpayers] are precluded from resorting to the courts for relief.”); Lominick, 244 S.C. at 44, 135 S.E.2d at 310 (“It was incumbent upon [the challenging party] . . . to appeal to the Zoning Board of Adjustment from the decision of the Building Inspector if [she] . . . considered his decision erroneous . . . . Not having done so, she cannot now attack the validity of his decision.”); see also Brackenbrook North Charleston, LP v. County of Charleston, 360 S.C. 390, 399-400, 602 S.E.2d 39, 44-45 (2004) (finding that a refund suit filed by taxpayers who had pending administrative refund cases should simply be dismissed without prejudice to require the taxpayers to exhaust their administrative remedies under the Revenue Procedures Act, but further crafting a special administrative remedy for those taxpayers who had forgone their administrative remedies in reliance upon orders issued in the judicial action and who would have ordinarily been precluded from pursuing those administrative remedies).

Petitioner’s claim in this matter falls into this second class of cases. By failing to timely request administrative review of the decision to discontinue his disability benefits, Petitioner did not prematurely request a contested case before this Court prior to exhausting his remedies with the Retirement Systems, such that this case should be dismissed without prejudice, but rather, he completely forwent his remedies under the Retirement Systems’ administrative review procedures, such that the dismissal of his claim should act as a bar to any further proceedings on the discontinuance of his benefits, both before the Retirement Systems and before this Court. Moreover, Petitioner cannot circumvent this bar by claiming that his appeal of the rejection of his untimely continuing disability review report in 2006 satisfies his duty to exhaust his administrative remedies with the Retirement Systems regarding the discontinuance of his benefits in 2002. It would be nonsensical to afford Petitioner the opportunity to resurrect a claim he originally lost due to his own lack of diligence in failing to exhaust his administrative remedies under the guise of a challenge to the Retirement Systems’ subsequent decision to reject his belated attempt to file the claim, particularly where the Retirement Systems’ subsequent decision to reject the untimely claim is explicitly based upon Petitioner’s prior failure to exhaust his administrative remedies. See, e.g., Woodford v. Ngo, 548 U.S. 81, __, 126 S. Ct. 2378, 2388 (2006) (holding that allowing a grievant to bypass available administrative remedies by filing a late grievance and then appealing the denial of that grievance to the courts would render the exhaustion requirement “a toothless scheme”); Jackson v. Pollard, 208 Fed. Appx. 457, 460 (7th Cir. 2006) (holding, in part under an agency rule, that an inmate’s complaint was properly dismissed for his failure to exhaust his administrative remedies where the complaint was merely an attempt “to resurrect [an] unappealed and unexhausted” complaint that he had previously filed with the agency); Nebeker v. Utah State Tax Comm’n, 34 P.3d 180, 185 (Utah 2001) (refusing to allow a petitioner to pursue certain constitutional claims in district court without first raising the claims before the appropriate agency because “to hold otherwise would give a petitioner a way to revive claims he had originally lost due to his own lack of diligence in failing to exhaust his administrative remedies”).

In conclusion, it is clear from the record in this matter that Petitioner did not timely pursue his administrative remedies with the Retirement Systems regarding the decision to discontinue his disability retirement benefits by filing a request for review of that decision within thirty days of either his constructive or actual notice of the decision. And, because Petitioner failed to exhaust his administrative remedies with the Retirement Systems, he cannot now seek review of the decision to discontinue his disability retirement benefits before this Court.

ORDER

For the foregoing reasons, I find that the Retirement Systems is entitled to judgment in its favor in this matter as a matter of law. Therefore,

IT IS HEREBY ORDERED that Respondent South Carolina Retirement Systems’ Motion for Summary Judgment is GRANTED.

AND IT IS SO ORDERED.

___________________________________

The Honorable John D. McLeod

Administrative Law Judge

March 27, 2008

Columbia, South Carolina