SC Administrative Law Court Decisions

On November 16, 2001, the Final Order and Decision in this matter held that the permit sought by Edisto Island Yacht Club (Club) from the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) must be denied. On November 26, 2001, Richard L. Embry (Embry) and Richard M. Sasnett, D.D.S. (Sasnett), the "winning" parties, filed a Motion To Reconsider that order.

The motion does not allege that errors warranting a reversal of the decision were made nor does the motion seek to persuade the Administrative Law Judge (ALJ) that the decision was wrong. On the contrary, the motion agrees that the Order correctly decides the matter by denying the permit due to the incompatibility with Regulations 30-5, 30-11, and 30-12 that granting such a permit would present. Rather, the motion is filed as a protective measure.

The cover letter accompanying the motion explains that Embry and Sasnett filed the Motion due to a concern about preservation of issues on appeal. They believe that if they fail to obtain a ruling on positions argued at the hearing but not ruled upon in the final order, they may be barred from later raising those positions should a "losing" party appeal the permit denial.

Thus, the issue is straightforward. To preserve issues for appellate review, must a "winning" party in an OCRM permit dispute obtain a ruling on issues raised to but not ruled on by the ALJ?

The answer is "no." Since the Motion to Reconsider is filed as a protective action and since I find that no protection is needed, the Motion to Reconsider is denied.

In an Administrative Procedures Act (APA) review of an ALJ's denial of an OCRM permit, the winning party's right to raise issues on appeal may be restricted either by OCRM's statutes and regulations or by the APA. These provisions impose only one limitation: the issues must be supported by the record.

1. Agency Statutes and Regulations

A final order of an ALJ denying an OCRM permit is appealable to the Coastal Zone Management Appellate Panel (Panel). ALJD Rule 31(A) ("The decision of the [ALJ] may be appealed as provided by law."); S.C. Code Ann. § 48-39-150(D) ("direct appeal [allowed] from the decision of the Administrative Law Judge to the Coastal Zone Management Appellate Panel."). Hearings before the Panel are governed by § 48-39-150(D) and § 1-23-610. Regs. 30-1(D)(10) (the Panel's duty is to hear appeals "pursuant to SC Code of Laws, Section 1-23-610 and 48-39-150(D).").

At Panel hearings, the aggrieved party "may challenge the validity of any or all reasons given for denial." § 48-39-150(D) (emphasis added). Thus, the aggrieved party is limited to arguing the "reasons given for the denial." However, no restrictions are imposed on the non-aggrieved parties. ⁽¹⁾

Further, no OCRM "exhaustion-of-administrative-remedies" regulation or statute limits the issues a winning party may raise to the Panel. The OCRM exhaustion regulation requires the parties to pursue a contested case before the ALJ and to present an appeal to the Panel, but imposes no restriction on the issues the winning party may raise to the Panel. Regs. 30-7(A) ("Pursuant to Section 1-23-380, SC Code of Laws (1976) a party must seek relief through the appeals process set forth in R.30-6 [by a contested case before an ALJ and review by the Panel] . . . before seeking judicial review of the agency's action."). ⁽²⁾ Thus, no OCRM statute or regulation limits the issues the winning party may present at the Panel review level ⁽³⁾ and §§ 1-23-610 and 1-23-380 of the APA specifically governs issues available at the judicial level.

2. Statutes of the Administrative Procedures Act

The APA imposes a single limitation on issues that a winning party may raise on appeal to the circuit court and the appellate courts. The applicable statutes are §§ 1-23-610, 1-23-380, and 1-23-390.

a. Section 1-23-610

No APA appellate statutes deal precisely with the winning party's rights to raise issues on appeal. Rather, and as one would logically expect, the appeal statutes are more concerned with the losing party. See e.g. § 1-23-610(A) (where no mention is made of the winning party since the statute explains "a petition by an aggrieved party must be filed with the appropriate board or commission and served on the opposing party . . ."). However, § 1-23-610(D) indirectly restricts the issues that a winning party may raise.

Section 1-23-610(D) limits all parties on appeal to those issues supported by the record. See § 1-23-610(D) ("[t]he review of the administrative law judge's order must be confined to the record."). Thus, on appeal to the circuit court, Embry and Sasnett are restricted to raising only those issues supported by the record. ⁽⁴⁾

b. Section 1-23-380

In addition to § 1-23-610(D), section 1-23-380(A)'s reference to exhaustion of administrative remedies warrants examination. In their Motion to Reconsider, Embry and Sasnett submit several issues which were raised to the ALJ but were not ruled upon. For issue preservation purposes, some authorities hold that a failure to rule upon precise issues at an administrative hearing can amount to a failure to exhaust administrative remedies. See e.g. Rivera-Zurita v. I.N.S., 946 F.2d 118 (C.A.10th 1991) ("The failure to raise an issue on appeal to the Board constitutes failure to exhaust administrative remedies with respect to that question."). Thus, one could suggest that if Embry and Sasnett fail to file a Motion to Reconsider requesting rulings on unruled upon issues they also fail to exhaust their administrative remedies.

Under the circumstances of the instant case, such a suggestion is unfounded since Embry and Sasnett obtained all the relief they requested. Section § 1-23-380 makes no exhaustion claim on parties who have obtained all for which they have asked. Rather, § 1-23-380 provides that "[a] party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review." (emphasis added). Thus, the exhaustion requirement addresses the "aggrieved" party, not the winning party. As explained in footnote 1, Embry and Sasnett are not aggrieved parties.

c. Section 1-23-390

Finally, a party pursuing an APA review and anticipating a review in the appellate courts must comply with the same appellate court rules as are applicable to any other civil case dispute. See § 1-23-390 (APA appeals shall be made "in the manner provided by the South Carolina Appellate Court Rules as in other civil cases.").

Fortunately, controlling case law readily explains the rights of a winning party to raise issues under the appellate rules even when those issues have not even been raised below, let alone not ruled upon below. Except for the requirement that the issues must appear in the record, no limitation is placed on the issues that a winning party may raise on appeal.

Under the present rules, a respondent--the "winner" in the lower court--may raise on appeal any additional reasons the appellate court should affirm the lower court's ruling, regardless of whether those reasons have been presented to or ruled on by the lower court. It would be inefficient and pointless to require a respondent to return to the judge and ask for a ruling on other arguments to preserve them for appellate review. It also could violate the principle that a court usually should refrain from deciding unnecessary questions. Cf. Fairway Ford, Inc. v. County of Greenville, 324 S.C. 84, 476 S.E.2d 490 (1996) (illustrating Court's "firm policy" of declining to reach constitutional issues when it is not necessary to resolve a case).

The basis for respondent's additional sustaining grounds must appear in the record on appeal, but other requirements contained in former rules and pre-1990 precedent no longer apply.

I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716, 723 (2000)

The Motion to Reconsider requests rulings on the following matters:

1. Evidence was presented at the hearing which tended to show that the Yacht Club's actual plans envision one large non-water dependent structure, approximately one-third of which would be over land, and two-thirds of which would be over water. Although the Court correctly found that the permitted work went beyond normal repair and maintenance, the Court made no findings concerning the disputed factual issue of the Yacht Club's true plans.

2. Evidence was presented at the hearing which tended to show that applicable FEMA regulations not only did not require elevation of the existing structure, but also affirmatively prohibited the subject project. The Court made no findings of fact or law with respect to the application of FEMA flood plain regulations to the project.

3. Evidence was presented at the hearing which tended to show that OCRM issued the subject permit based upon its receipt of materially erroneous information. The Court made no findings with respect to this issue.

None of these issues were reached since none were necessary to the decision in the case. Rather, the ALJ decided the dispute by denying the permit based on the incompatibility with Regulations 30-5, 30-11, and 30-12 that granting such a permit would present. Having ended the case, no other findings were required on issues raised by the winning party.

ACCORDINGLY, the Motion to Reconsider is denied.

AND IT IS SO ORDERED

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: December 5, 2001

Columbia, South Carolina

1. The aggrieved party is the party upon whom the decision imposes a substantial impact amounting to a denial of some personal or property right or the imposition of a burden or obligation. Cisson v. McWhorter, 255 S.C. 174, 178, 177 S.E.2d 603, 605 (1970); Bivens v. Knight, 254 S.C. 10, 13, 173 S.E.2d 150, 152 (1970). A party who succeeds in obtaining what was sought is not an aggrieved party. See Mendelsohn v. Whitfield, 312 S.C. 17, 430 S.E.2d 524 (Ct.App. 1993) ("A party cannot appeal from the granting of his own motion.") affirmed in part as modified by Mendelsohn v. Whitfield, 312 S.C. 226, 439 S.E.2d 845 (1994); see also Smart Finance Co. v. Dick, 256 N.C. 669, 124 S.E.2d 862 (1962) (one obtaining a judgment entirely in ones favor is not a party aggrieved). Here, Embry and Sasnett, the "winning" parties, obtained all they sought: a denial of the OCRM permit. Hence, they are not aggrieved parties.

2. Since appeals to the Panel are pursuant to § 1-23-380, the limits (to the extent any exist) on issues available to the winning party imposed by the exhaustion of administrative remedies identified in § 1-23-380(A) is likewise required at the Panel hearing.

3. While no specific OCRM statute imposes a limitation on a winning party, Panel hearings must comply with § 1-23-610. See Regs. 30-1(D)(10) (the Panel's duty is to hear appeals "pursuant to SC Code of Laws, Section 1-23-610 and 48-39-150(D)."). Thus the limits of § 1-23-610(D) on a winning party also apply at the Panel level.

4. Since the Panel must also comply with § 1-23-610, the appeal to the Panel limits the winning party to only those issues supported by the record.