ORDERS:
ORDER OF DISMISSAL
On October 23, 2000, Respondent 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 file 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) and
SCRCP 12(b)(1), and (6)
In this case, the Department rendered its final decision on July 21, 2000, and the Appellant received
the decision on August 8, 2000. Appellant filed his notice of appeal on September 14, 2000. On November
9, 2000, Appellant filed his response to the motion to dismiss stating that ALJDTR 55 provides that
"...intermediate Saturdays, Sundays, and holidays shall be excluded in the computation of time." However, a
complete reading of ALJTR 55 reveals that it only excludes Saturdays, Sundays, and holidays when the last
day of the period so computed is a Saturday, Sunday, or State or Federal holiday or when the period
prescribed is less than seven days. The period prescribed is thirty (30) days in this case and the last day of the
period so computed is not a Saturday, Sunday or holiday. Since no Saturday, Sunday or holiday is excluded in
the computation of time in this case, Appellant has failed to file the notice of appeal within thirty (30) days
of receipt of Respondent's decision.
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 62 , the notice of appeal must be filed within thirty (30) days of the
Appellant's receipt of the final decision of the Department. In this case, the notice of appeal was not filed
within 30 days of Appellant's receipt of the Department's final decision as such period is computed under
ALJD TR 55.
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 notice of appeal was not filed within 30 days, as required in Al-Shabazz and TR
62, and therefore Appellant has not invoked the jurisdiction of this tribunal.
This matter must be dismissed . Case law supports the proposition that a court must dismiss an appeal where
the appellant fails to file and serve a party with the notice of appeal in a timely manner.
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 above-captioned case bearing Docket Number 00-ALJ-04-00705-AP is hereby dismissed.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 6, 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. |
