ORDERS:
ORDER OF DISMISSAL
Grievance No. PCI-0374-00
I. Introduction
South Carolina Department of Corrections (DOC) brings this motion to dismiss on the ground that Ernest
Jones Lawton (Lawton) failed to serve DOC with the notice of appeal within 30 days of written notice of
DOC's final decision. DOC seeks the dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742
(2000) and ALJD Temporary Rule (ALJDTR) 57 (requiring service of papers on all parties in case). The
motion is granted since service of the notice of appeal was not made on DOC.
II. Analysis
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:
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 ALJDTR Rule 62 for use in lieu of ALJD Rule 33. The language in
ALJDTR Rule 62 is virtually identical to ALJD Rule 33 (1). ALJDTR Rule 62 states:
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.. . .
ALJDTR Rule 62 (emphasis added).
As set forth in Al-Shabazz and ALJDTR Rules 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 Lawton's receipt of the Department's final decision. Rather, the only statement from Lawton is
that he filed and served his Appellant's brief. However, no evidence shows a service of the Notice of Appeal.
DOC moves to dismiss this matter on the grounds that Lawton's failure to serve the notice of appeal on DOC
divests the ALJD of subject matter jurisdiction or, in the alternative, that this matter should be dismissed for
insufficiency of service of process. Although normally 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 ALJDTR Rules 57 and 62, and
therefore Lawton has not invoked the jurisdiction of the ALJD.
Accordingly, 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). While such a decision may be harsh, the decision is required by the rules of appeal
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)).
III. Order
The South Carolina Department of Corrections' motion to dismiss is hereby GRANTED.
AND IT IS SO ORDERED
______________________________
RAY N. STEVENS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Dated: March 29, 2001
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 Southbridgedecisions
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 Mearsdecision and dismissing case
for lack of jurisdiction where notice appeal was not filed in a timely manner). |