SC Administrative Law Court Decisions

On November 28, 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), ALJD Temporary Rule (TR) 62 (requiring that the Notice of Appeal be filed with the Division and a copy served on the Department within thirty days of receipt of the decision from which the appeal is taken), SCRCP 12(b)(1) for lack of subject matter jurisdiction, and SCRCP 12(b)(6) for failure to state facts sufficient to constitute a cause of action.

Appellant's brief in opposition to the Department's motion to dismiss stated that he received the agency's final decision on September 11, 2000. However, Appellant has presented no credible evidence to support his assertion. This tribunal has carefully reviewed the dates in this matter. The Notice of Appeal was filed with the Division on October 10, 2000. The original Step 2 Grievance Form is signed by the Appellant indicating that he received the agency's final decision on September 6, 2000. Thus, the uncontroverted evidence shows that Appellant filed his Notice of Appeal outside the thirty-day requirement of ALJDTR 62. Therefore, this appeal must be dismissed for failure to timely file the notice of appeal.

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). As set forth in Al-Shabazz and TR 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.

Because the notice of appeal is jurisdictional, this tribunal cannot extend the time for filing or service of process. 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 failure to state facts sufficient to constitute a cause of action. 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. "Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong." Brown v. Evatt, 322 S.C. 189, 193, 470 S.E.2d 848, 850 (1996), citing Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994). However, 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.

The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of "appellate" jurisdiction over the case, but it does not affect the court's subject matter jurisdiction.

Great Games, Inc. v. S.C. Dept. of Revenue, 339 S.C. 79, 529 S.E.2d 6, 8 (2000).

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

December 29, 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.