ORDERS:
ORDER OF DISMISSAL
Grievance No. Lee-0533-00
I. Introduction
South Carolina Department of Corrections (DOC) brings this motion to dismiss on the ground that Larry
Rivera (Rivera) failed to serve DOC with the notice of appeal within 30 days of written notice of DOC's
final decision. DOC seeks the dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000)
and ALJD Temporary Rule (TR) 62. Rivera filed no written opposition to the motion.
II. Analysis
The ALJD has jurisdiction to hear matters of this type under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d
742 (2000). In Al-Shabazz, the S.C. Supreme Court stated:
The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice
of Department's final decision.
(emphasis added). The controlling language of TR 62 states:
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).
Thus, DOC must be served with a copy of the notice of appeal within thirty (30) days of the appellant's
receipt of DOC's final decision. In this case, DOC was not served with the notice of appeal within 30 days
of Rivera's receipt of DOC's final decision and therefore Rivera has not invoked the jurisdiction of the
ALJD. Accordingly, this matter must be dismissed for lack of jurisdiction.
A court must dismiss an appeal when 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). Further, 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).
While the ALJD recognizes the harsh result of this decision, it is constrained by the applicable rules and the
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 afterserving the other
party instead of filing the summons and complaint before such service, as required by SCRCP 5(d)).
III. Order
DOC's motion to dismiss is GRANTED and this case is ended.
AND IT IS SO ORDERED
______________________________
RAY N. STEVENS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Dated: April 4, 2001
Columbia, South Carolina |
