ORDERS:
ORDER OF DISMISSAL
On November 7, 2000, South Carolina Department of Corrections (Department) filed a motion to
dismiss this matter. The Respondent seeks a dismissal on the grounds that the Appellant failed to serve
the Respondent with the notice of appeal within thirty (30) days of written notice of the Respondent's
final decision. The 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 (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.
However, this Division need not reached that matter. It appears from the documents filed with the
Division by Appellant that he has failed to file a timely appeal. The 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 57 and 62, the Appellant must file a
Notice of Appeal within thirty (30) days of the Appellant's receipt of the final decision of the
Department.
In this case, the documents show that the Department's decision was reached on September 2, 2000.
The section of the Inmate Grievance Form which shows when the Appellant was notified was left blank.
However, in his appeal, Appellant states that he was notified on September 2, 2000. Appellant filed his
Notice of Appeal on October 17, 2000, which is more than thirty (30) days after receiving notice of the
Department's decision. Therefore, the Appellant has not properly invoked the jurisdiction of this
tribunal.
IT IS THEREFORE ORDERED that this case is hereby DISMISSED.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
May 21, 2001
Columbia, South Carolina
APPEAL RIGHTS
You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition
for judicial review in circuit court within thirty (30) days after receipt of this order. S.C. Code Ann. §
1-23-610 (Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is
neither arbitrary nor unreasonable, and provided that no statute controls venue in a particular type of
case. The review of the administrative law judge's order must be confined to the record. The reviewing
tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify
the decision if the substantive rights of the petitioner have been prejudiced because the finding,
conclusion, or decision is: (a) in violation of constitutional or statutory provisions; (b) in excess of the
statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
1. Pursuant to the opinion of the Supreme Court in Al-Shabazz, temporary rules were adopted by the Division 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. |