ORDERS:
ORDER GRANTING MOTION TO DISMISS
This
matter is before the Administrative Law Court (ALC or Court) pursuant to
Respondent’s Motion to Dismiss which was filed on April 28, 2008. In its
Motion, Respondent moved the ALC to dismiss this matter with prejudice for
Petitioner’s failure to timely file her Request for a Contested Case Hearing in
this matter, and thus failing to properly invoke the jurisdiction of the
Court. The Petitioner has not filed a response to the Respondent’s Motion.
BACKGROUND
Petitioner
is a retired member of the South Carolina Retirement System (“SCRS” or
“System”), who was retired by the Retirement Systems on a disability allowance
on December 13, 2007, the day after she was terminated from all active
employment under SCRS. Petitioner, however, sought review of the Retirement
Systems’ determination of her retirement date, contending that she should have
had an earlier date of retirement in August 2007. Petitioner exhausted her
agency remedies before the Retirement Systems on her claim, and, on February 7, 2008, the Director of the Retirement Systems issued Final Agency Determination
No. 08-003, in which she found that Petitioner’s December 13, 2007 retirement
date had been properly determined by the Retirement Systems.
This
Final Agency Determination was mailed to Petitioner on February 7, 2008, and,
according to her request for a contested case hearing, was received by
Petitioner on February 9, 2008. The cover letter accompanying the Final Agency
Determination notified Petitioner of her right to challenge the Determination
before the Administrative Law Court; clearly explained the procedures and
deadlines for filing a request for a contested case to make such a challenge;
and provided Petitioner with two “Request for Contested Case Hearing” forms to
use if she decided to request review of the Determination before the Court. In
particular, the letter informed Petitioner that
If you disagree with
the Determination, you may, in accordance with S.C. Code Ann. § 9-21-60 (Supp. 2007), request a contested case hearing on the Determination before an
administrative law judge by filing a Request for a Contested Case Hearing with
the Administrative Law Court within thirty (30) consecutive calendar days after
your receipt of this Final Agency Determination. However, if you fail to
respond within this time limitation, your right to appeal the Final Agency
Determination will end.
The ALC received
Petitioner’s request for a contested case hearing to challenge the
determination on April 8, 2008.
DISCUSSION
The South Carolina
Administrative Law Court is authorized to hear contested cases concerning
disputes between a member of the South Carolina Retirement System and the
Retirement Systems. See S.C. Code Ann. §§ 1-23-600(B) (Supp. 2007), 9-21-60 (Supp. 2007). However, for the Court to hear such a contested case, its
jurisdiction must be properly invoked through a timely request for a contested
case. See Botany Bay Marina, Inc. v. Townsend, 296 S.C. 330, 372
S.E.2d 584 (1988) (holding that a party’s failure to file an appeal of a zoning
decision within the statutory time period divested the board of adjustment of
jurisdiction to hear the appeal), overruled on other grounds by Woodard
v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995); Burnett v. S.C.
State Highway Dep’t, 252 S.C. 568, 167 S.E.2d 571 (1969) (holding that a
landowner’s failure to timely appeal a condemnation decision by the Highway
Department deprived the reviewing court of jurisdiction to hear the appeal); see
also, e.g., Schaible Oil Co. v. N.J. Dep’t of Envtl. Prot., 586 A.2d
853, 854-55 (N.J. Super. Ct. App. Div. 1991) (“The statutory time limitation
for requesting an adjudicatory hearing is mandatory and jurisdictional[;] . . .
. enlargement of statutory time for appeal to a state administrative agency
lies solely within the power of the Legislature . . . and not with the agency
or the courts.”); Lewis v. N.C. Dep’t of Human Res., 375 S.E.2d 712, 714
(N.C. Ct. App. 1989) (“The right to appeal to an administrative agency is
granted by statute, and compliance with statutory provisions is necessary to
sustain the appeal.”).
Pursuant to ALC
Rule 11(C), a request for a contested case hearing to challenge a final agency
determination “must be filed and served within thirty (30) days after actual or
constructive notice of the agency’s determination.” Similarly, Section 9-21-60
of the South Carolina Retirement Systems Claims Procedures Act provides that a
request for contested case review of a final decision by the Retirement Systems
must be filed “within thirty calendar days after the claimant receives the
[R]etirement [S]ystems’ final decision.” S.C. Code Ann. § 9-21-60. In the case at hand, Petitioner did not file a request for a contested case hearing to
challenge the Retirement Systems’ Final Agency Determination with the Court
within thirty days after she received—and thus had actual notice of—the
Determination on February 9, 2008. Rather, Petitioner did not file her request
for a contested case to challenge the Retirement Systems’ Final Agency Determination
until some fifty-nine days after she had received the Determination.
For the foregoing
reasons,
IT
IS HEREBY ORDERED that Respondent’s Motion to Dismiss is granted.
AND IT IS SO
ORDERED.
_______________________________
Honorable
Carolyn C. Matthews
Administrative
Law Judge
May 23, 2008
Columbia, South Carolina
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