ORDERS:
ORDER
Carolyn Caughman
(hereinafter the “Appellant”) has appealed the decision of the State Employee
Grievance Committee upholding her termination from employment by the South
Carolina Department of Motor Vehicles (hereinafter the “SCDMV” or “Respondent”)
to this Court. SCDMV has moved this Court to DISMISS the appeal pursuant to ALC
Rule 33 and/or ALC Rule 38, for Appellant’s failure to comply with the Rules of
Procedure of this Court. For the reasons set forth below, this Court GRANTS
the motion of SCDMV, and dismisses with prejudice this appeal for lack of
jurisdiction.
Appellant was
terminated from employment by SCDMV effective October 5, 2007, for cause.
(ROA, p. 79). Following Appellant’s exhaustion of her internal grievance
rights, she filed an appeal of her termination with the State Employee
Grievance Committee on November 14, 2007. (ROA, pp. 71-72).
On June 24, 2008,
the State Employee Grievance Committee held a hearing concerning Appellant’s
termination. (ROA, p. 5). On or about July 10, 2008, the State Employee
Grievance Committee published its written decision, upholding the termination
on grounds that it found “Appellant has failed to establish that the agency’s
decision was made in excess of statutory authority; was clearly erroneous in
view of the substantial evidence on the whole record; or was arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion. The Committee finds, considering the record as a
whole, that reasonable minds could find that Appellant behaved in violation of
SCDMV policies. The Committee finds Appellant was properly terminated for an
accumulation of three offenses where the first offense calls for a Level I or
Level II Reprimand within a period of two years.” (ROA, pp. 9-10).
On or about August
8, 2008, Appellant filed a “Notice of Appeal” with this Court, appealing the
decision of the State Employee Grievance Committee. (ROA, p. 11). However, despite
Appellant’s knowledge that SCDMV was a party to the underlying case, Appellant
never served her “Notice of Appeal” on SCDMV, in violation of her
responsibilities under Rule 33 and S.C. Code
Ann. § 1-23-380(A)(1). For that reason, Appellant’s appeal must be
dismissed, as it violates S.C. Code Ann. §
1-23-380(A)(1) and ALC Rule 33.
ALC Rule 33
provides as follows:
The notice
of appeal from the final decision of the agency to be heard by the Administrative Law Judge Court shall be filed with the Court and a copy served on each party and the agency whose final decision is the subject of the appeal within thirty
(30) days of receipt of the decision from which the appeal is taken. The
notice shall be accompanied by a filing fee as provided in Rule 71 and shall
contain the following information:
A. the name, address and
telephone number of the party requesting the appeal, and the name, address and
telephone number of the attorney or other authorized representative, if any,
representing that party;
B. a general
statement of the grounds for appeal as provided in S.C. Code Ann. § 1-23-380(A)(6)
[now codified at 1-23-280(A)(5)]. The grounds for appeal may be
amended, supplemented or modified in the statement of issues in the brief
required by Rule 37(B)(1);
C. a copy of the
final decision which is the subject of the appeal and the date received;
D. a copy of the request
for the transcript.
(emphasis
added). S.C. Code Ann. § 1-23-380(A)(1) provides that:
Proceedings
for review are instituted by serving and filing notice of appeal as
provided in the South Carolina Appellate Court Rules within thirty days after
the final decision of the agency or, if a rehearing is requested, within thirty
days after the decision is rendered. Copies of the notice of appeal must be
served upon the agency, the Administrative Law Court, and all parties of record.
(emphasis added).
Appellant
has also argued that a letter dated August 11, 2008 from the South Carolina Budget & Control Board to
Appellant’s counsel, which was copied to SCDMV’s counsel, referenced an
enclosed “copy of the recording of the above referenced Committee hearing” and
is sufficient to serve as “notice” of the appeal. However, the letter does not
reference an appeal to this Court or otherwise reference an appeal of any
kind. In any event, it cannot serve as an acceptable substitute for the notice
of appeal required by S.C. Code Ann. § 1-23-380(A)(1)
and ALC Rule 33.
Because Appellant
failed to serve SCDMV with the Notice of Appeal within thirty (30) days of the
Appellant’s receipt of the final decision of the State Employee Grievance
Committee, the Court is divested of jurisdiction in this matter. Elam v.
S.C. Dept. 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 notice”); Lane v. S.C. Dept. of Motor Vehicles, 2008 WL 2828612, 08-ALJ-21-0161-AP (S.C.A.L.C. June 11, 2008)
(appeal of pro se litigant dismissed where she failed serve a notice of
appeal on a party); McDuffie v. S.C. Dept. of Motor Vehicles, 2008 WL 2045857, 08-ALJ-21-0027-AP (S.C.A.L.C. April 17, 2008)
(appeal dismissed where appellant failed to meet requirement of service of
notice of appeal on each party as provided by ALC Rule 33); Shepard v. S.C. Dept. of Motor Vehicles, 2007 WL 2707696, 07-ALJ-21-0054-AP (S.C.A.L.C. August 20, 2007)
(setting forth that, where a party fails to serve a notice of appeal on a party
in a timely manner, the appeal must be dismissed).
For these reasons, this
Court finds that Carolyn Caughman’s appeal of decision of the State Employee
Grievance Committee upholding her termination from employment with the South
Carolina Department of Motor Vehicles is dismissed with prejudice.
IT IS SO ORDERED.
The
Honorable John D. McLeod
Administrative
Law Court
State
of South Carolina
December 16, 2008
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