ORDERS:
ORDER OF DISMISSAL
The above-captioned case is before the Administrative Law Court (“Court”) upon the request of Petitioner Felicia Blocker (Petitioner) for a contested case hearing to challenge the decision of the Richland County School District One (Respondent) to collect set-off debt in the amount of $440.07 for re-payment of an overpayment owed by Petitioner to Respondent.
On April 26, 2010 the Court issued an Order for Continuance and Notice of Hearing scheduling the hearing for May 24, 2010. The Court received a message, which was left on Sunday, May 23, 2010, from Petitioner stating that she will not be at the hearing “due to unforeseen circumstances.” The Court made several attempts on the morning of the hearing to contact Petitioner to inquire as to the reason(s) for her absence and notifying her of the requirement of ALC Rule 19(B) that motions for continuance must be in writing.
At the hearing Respondent moved to dismiss this matter based on 1) failure to serve the Respondent with the Request for Contested Case Hearing as required by ALC Rule 11; and 2) failure to prosecute. For the reasons set forth below, I find that Respondent’s motions to dismiss must be granted.
Proper Service of Request for Hearing
Concerning Respondent’s motion to dismiss for failure to serve a copy of the Request for Hearing upon Respondent, on November 4, 2009, Respondent issued a Final Determination to Petitioner, in which the District Hearing Officer upheld Respondent’s September 30, 2009 decision. The November 4, 2009 letter of decision explained how to challenge the determination by filing a request for a contested case hearing with the Administrative Law Court. The cover letter explained that the request must be filed with the Administrative Law Court within thirty days after the final decision and provided Petitioner with the address to the Court. In addition, the letter informed Petitioner that, “Requesting a hearing must be made in accordance with its rules.” The blank form filled out by Petitioner included the instructions, “A copy of the Request must also be served on the agency from which you are appealing. If you do not know, you should contact the agency to determine the name of the person to be served with this document.”
Petitioner filed a Request for a Contested Case Hearing with a Certificate of Service with the Court on December 1, 2009. On May 24, 2010 at the hearing Respondent stated that it had not been served with a copy of the Notice of Request for Contested Case Hearing and did not know about the notice until it was served with the Notice of Assignment from the Court.
For this Court to hear 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, 855-56 (N.J. Super. Ct. App. Div. 1991) (“The statutory time limit 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 S.C. Code Ann. § 1-23-600(B) a party that files a request for a contested case hearing “must simultaneously serve a copy of the request on the affected agency.” ALC Rule 11(C) requires a request for a contested case hearing “in cases arising under the Set-off Debt Collection Act, the request must be filed and served within thirty (30) days after the date of the written decision.” In the case at hand, Petitioner did not timely serve Respondent with the request for a contested case hearing. Therefore, while Petitioner did attempt to timely file a request for a contested case hearing by sending a request to the Court within the thirty-day period after she received the final determination, she did not cross the mandatory jurisdictional threshold of timely serving the request on a necessary party. Accordingly, this Court has no choice but to find that Petitioner failed to properly invoke this Court’s jurisdiction and to conclude that this matter must be dismissed. See, Mears v. Mears, 387 S.C. 168, 337 S.E.2d 206 (1995).
Failure to Prosecute
Respondent’s request for a Motion to Dismiss on the ground for failure to prosecute is pursuant to ALC Rule 23(A), which states:
(A) The administrative law judge may dismiss a contested case…adverse to the defaulting party. A default occurs when a party fails to …prosecute or defend, [or] fails to appear at a hearing without the proper consent of the judge.
Petitioner failed to timely notify the Respondent and the Court that she would not be attending the hearing, failed to request a continuance pursuant to ALC Rule 19(B), and failed to appear at the hearing. By virtue of her request for a contested case hearing, Petitioner had an obligation to advance her position. Nonetheless, Petitioner failed to appear at the hearing in support of her case. Therefore, this Court will grant Respondent’s Motions to Dismiss.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that Respondent’s Motions to Dismiss are GRANTED and the above-captioned case is DISMISSED with prejudice.
AND IT IS SO ORDERED.
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Deborah Brooks Durden
Administrative Law Judge
May 25, 2010
Columbia, South Carolina
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