ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is currently pending before the Administrative Law Judge Division (ALJD) pursuant to the South
Carolina Department of Corrections' (Respondent or Department) Motion to Dismiss filed on January 12,
2001. Respondent seeks a dismissal on the grounds that Appellant failed to serve Respondent with 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), ALJD Rule 33, ALJD Temporary
Rule (TR) 57 (requiring service of papers on all parties in case), Rule 12(b)(1), SCRCP for lack of subject
matter jurisdiction, and Rule 12(b)(5), SCRCP for insufficiency of service of process. In Appellant's
Response to Respondent's Motion to Dismiss, Appellant stated that he mailed a copy of the Notice of Appeal
to Respondent at the same time that he mailed the Notice of Appeal to the ALJD. However, Appellant failed
to provide an Affidavit of Service or any other evidence that he served the Respondent with 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 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 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.
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. 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 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.
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). 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 appeal of
Appellant Jasper Pickett, Docket Number 00-ALJ-04-01059-AP, is hereby dismissed.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
April 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.
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). |
