SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to Respondent's Motion to Dismiss filed August 28, 2000. Respondent asserts the Division lacks jurisdiction because Appellant failed to timely file a Notice of Appeal with the Division.

According to ALJD Temporary Rule 62, the Notice of Appeal must be filed with the Division within thirty days of receipt of the decision from which the appeal is taken. In this case, Appellant is appealing Respondent's final decision dated May 31, 2000, and received by Appellant on June 13, 2000. The Notice of Appeal, therefore, was due on or before July 13, 2000. Appellant, however, did not file the Notice of Appeal until July 17, 2000. ALJD Temporary Rule 65 provides "an Administrative Law Judge may dismiss an appeal for failure to comply with any of the rules of procedure for appeals, including the failure to comply with any of the time limits provided by this section." Pursuant to this rule, the undersigned can dismiss this case for failure to timely file a Notice of Appeal as required by ALJD Temporary Rule 62.

Furthermore, the failure to timely file a Notice of Appeal deprives a court of appellate jurisdiction. See Dewitt v. South Carolina Dep't of Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980) (a circuit court's jurisdiction over a magistrate's decision is appellate in nature and a circuit court does not have the right to extend the time within which an appeal may be taken from the magistrate's decision). Because the Division acts as an appellate court in inmate cases filed pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the Division lacks jurisdiction in cases where the inmate fails to timely file a Notice of Appeal. As a result, the Division lacks jurisdiction in this case.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted and Appellant's appeal is dismissed with prejudice.

AND IT IS SO ORDERED.

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MARVIN F. KITTRELL

Chief Administrative Law Judge

August 29, 2000

Columbia, South Carolina

You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for judicial review in circuit court and serving such petition on opposing parties within thirty (30) days after receipt of this order. S.C. Code Ann. § 1-23-610 (Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is neither arbitrary nor unreasonable, and provided that no statute controls venue in a particular type of case. The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.