South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Ernest Jones Lawton vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
Ernest Jones Lawton

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
00-ALJ-04-00538-AP

APPEARANCES:
n/a
 

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).


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