ORDERS:
ORDER OF DISMISSAL
On August 7, 2000, South Carolina Department of Corrections ("Respondent" or "Department") filed a motion to dismiss this matter.
Respondent seeks a dismissal on the grounds that Appellant failed to serve Respondent with the notice of appeal within thirty (30)
days of written notice of Respondent's final decision. Respondent seeks a dismissal under Al-Shabazz v. State, 338 S.C. 354, 527
S.E.2d 742 (2000), Rule 33 of the Administrative Law Judge Division ("ALJD"), ALJD Temporary Rule ("TR") 57 (requiring service
of papers on all parties in case), Rule 12(b)(1), SCRCP for lack of subject matter jurisdiction, and Rule 12(b)(5), SCRCP for
insufficiency of service of process. Appellant responded to Respondent's motion stating, among other things, that "he served notice
upon Respondent on June 12, 2000, pertaining to his Motion via ADJ (sic) Division...."
This Division has jurisdiction to hear this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the
S.C. Supreme Court stated that:
The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice of Department's final
decision.
Id. at 33 (emphasis added). The Court in Al-Shabazz cited ALJD Rule 33 in support of this requirement. The Division has since
adopted TR 62 for use in lieu of ALJD Rule 33. The language in TR 62 is virtually identical to ALJD Rule 33 (1). TR 62 provides
that:
The notice of appeal from the final decision of an agency to be heard by the [Division] shall be filed with the Division and a copy
served on each party and DOC within thirty (30) days of receipt of the decision from which the appeal is taken.
. . .
TR 62 (emphasis added).
As set forth in Al-Shabazz and TR 57 and 62, the Department must be served with a copy of the notice of appeal within thirty (30)
days of the appellant's receipt of the final decision of the Department. In this case, there is no evidence in the record that the
Department was served with the notice of appeal within 30 days of Appellant's receipt of the Department's final decision. The
Department is not deemed served "via the ADJ (sic) Division."
Respondent moves to dismiss this matter on the grounds that Appellant's failure to serve the notice of appeal on Respondent divests
the ALJD of subject matter jurisdiction or, in the alternative, that this matter should be dismissed for insufficiency of service of
process. Although the ALJD has subject matter jurisdiction over this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742
(2000), the Department was not served with the notice of appeal within 30 days, as required in Al-Shabazz and TR 57 and 62, and
therefore Appellant has not invoked the jurisdiction of this tribunal.
This matter must be dismissed for lack of jurisdiction. Case law supports the proposition that a court must dismiss an appeal where
the appellant fails to serve a party with the notice of appeal in a timely manner. See Southbridge Properties, Inc. v. Jones, 292 S.C.
198, 355 S.E.2d 535 (1987) (applying appellate court rules and dismissing case for failure to serve a notice of intent to appeal in a
timely manner); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (applying appellate court rules and finding lack of jurisdiction
for failure to serve a notice of intent to appeal in a timely manner). (2)
It is also well-established that a court does not have the authority to extend the time for taking an appeal from a decision of an
administrative agency. e.g., Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnette v. S.C. State Highway Dep't, 252 S.C.
568, 167 S.E.2d 571 (1969) (addressing an appeal from the Board of Condemnation). This tribunal recognizes the harsh result of this
decision but is constrained by the rules of this tribunal and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444
S.E.2d 512 (1994) (recognizing harsh result of dismissing a case where the appellant filed a summons and complaint after serving the
other party instead of filing the summons and complaint before such service, as required by SCRCP 5(d)).
IT IS THEREFORE ORDERED that Respondent's motion to dismiss is granted and that the appeal of Appellant O'Dinga Mack,
Docket Number 00-ALJ-04-00343-AP, is hereby dismissed.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
September 12, 2000
Columbia, South Carolina
1. Pursuant to the opinion of the Supreme Court in
Al-Shabazz, temporary rules were adopted by the ALJD to apply exclusively to appeals from final decisions
of the Department of Corrections. These rules are virtually identical to corresponding ALJD appellate rules 33-41.
2. James E. MacDonald v. S.C. Dep't of Labor, Licensing and Regulation, Real Estate Comm'n, Dkt. No. 99-ALJ-11-0527-AP (Hon. Marvin F. Kittrell, Oct.
27, 1999) (citing Mears and Southbridge decisions and dismissing case for lack of jurisdiction where notice appeal was not filed and served in a timely manner); see Rama Simun, Director, Early Years Learning Center v. S.C. Dep't of Social Services, Dkt. No. 98-ALJ-18-0427-AP (Hon. Marvin F. Kittrell, August 17,
1998) (citing Mears decision and dismissing case for lack of jurisdiction where notice appeal was not filed in a timely manner). |
