ORDERS:
ORDER OF DISMISSAL
GRIEVANCE NO. KerCI-0423-00
On October 10, 2000, Respondent South Carolina Department of Corrections (Respondent or Department) filed a motion to dismiss
this matter. Respondent seeks a dismissal on the basis that Appellant failed to serve Respondent with the notice of appeal within 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 or Division), ALJD Temporary Rule (TR) 57 (requiring
service of papers on all parties in case), SCRCP 12(b)(1) for lack of subject matter jurisdiction, and SCRCP 12(b)(5) for
insufficiency of service of process. Appellant did not oppose this motion.
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 states 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).
Like its civil procedure corollary, the summons, the notice of appeal "is not mere notice, but a means for giving jurisdiction to the
court, and unless it is waived, the court cannot otherwise obtain personal jurisdiction." Brown v. Evatt, 322 S.C. 189, 194, 470
S.E.2d 848, 850 (1996), citing Wren v. Johnson, 62 S.C. 533, 40 S.E. 937 (1902). 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. Because the notice of appeal is jurisdictional, this tribunal cannot
extend the time for filing or service of process. "Therefore, original jurisdiction was not properly instituted and . . . [this tribunal] did
not have personal jurisdiction over Respondent." Brown at 194, 850.
Consequently, 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. The ALJD has subject matter jurisdiction over this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d
742 (2000), and cannot be divested by action or inaction by the parties. However, 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.
Consequently, this matter must be dismissed for lack of personal jurisdiction over the Department of Corrections. 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 hereby GRANTED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 24, 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). |