ORDERS:
ORDER OF DISMISSAL
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 serve Respondent with the notice of appeal within thirty (30) days of written notice of
Respondent's final 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 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, and although Appellant has had
ample
time to respond to the Motion to Dismiss (2), Appellant has not provided any evidence that the
Department was served with the notice of appeal within 30 days of Appellant's receipt of the
Department's final decision .
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
properly invoked the jurisdiction of this tribunal.
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). (3)
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 the
appeal of Appellant Jimmy G. Gilchrist, Sr., Docket No. 01-ALJ-04-00022-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.
2. The Department swore by affidavit that Appellant was served a copy of the Motion to Dismiss on May 30, 2001.
3. 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). |