ORDERS:
ORDER OF DISMISSAL
I. Introduction
Two separate motions, one filed on October 24, 2000 by the South Carolina Department of Health and Environmental
Control (DHEC) and one filed on October 30, 2000 by Carolina Orthopaedic Surgery Center (Carolina), seek to dismiss the
instant matter for lack of subject matter jurisdiction. Petitioner Greenville Hospital System (GHS) opposes the motions.
After careful consideration, I grant the motions. Accordingly, the current case is dismissed.
II. Analysis
A. Background
A contested case before the ALJD arose due to Carolina challenging DHEC's denial of Carolina's request for a CON. See
Carolina Orthopaedic Surgery Center v. DHEC, Docket No. 00-ALJ-07-0072-CC. Although GHS knew a contested case
was underway before the ALJD, GHS chose not to seek intervention under ALJD Rule 20.
Prior to a hearing on the merits, DHEC and Carolina entered into a settlement agreement. Under the agreement, Carolina
obtained a CON effective September 1, 2001. The settlement was subsequently incorporated into an ALJD Order issued on
October 9, 2000. See Carolina Orthopaedic Surgery Center v. DHEC, Docket No. 00-ALJ-07-0072-CC, October 9, 2000.
Subsequent to the October 9, 2000 order, GHS filed a Motion to Intervene and a Motion for Reconsideration. The Motion
to Intervene was denied as untimely and the Motion for Reconsideration was denied due to a lack of standing. See
Carolina Orthopaedic Surgery Center v. DHEC, Docket No. 00-ALJ-07-0072-CC, orders dated December 1, 2000.
On October 16, 2000, GHS filed a request for a contested case hearing to challenge the October 9, 2000 Order
incorporating DHEC's settlement agreement with Carolina. This request is the subject of the two motions to dismiss for
lack of subject matter jurisdiction.
B. Applicable Law
1. Introduction
GHS argues jurisdiction exists for a contested case hearing before the ALJD. None of the parties to the instant case deny
that the ALJD has jurisdiction over contested cases in which a CON is in dispute. See S.C. Code Ann. §§ 44-7- 210(D)(2),
1-23-310(2), and 1-23-600(B)(Supp. 2000). However, the argument by DHEC and Carolina is that GHS has not met the
requirements for invoking the ALJD's jurisdiction.
2. Jurisdictional Requirements
The ALJD's jurisdiction is invoked when a party presents a contested case. S.C. Code Ann. §§1-23-310(3) and
1-23-600(B)(Supp. 2000). For matters brought to the ALJD, a contested case is presented when an agency's actions
produce circumstances for which a fact-finder (here an ALJ) is "required by law to determine a party's rights after an
opportunity for a hearing." See League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424,
426, 409 S.E.2d 378, 380 (1991). Thus, the issue here is whether the October 9, 2000 Order incorporating the settlement
agreement between DHEC and Carolina was such that the law requires GHS's rights to be determined after an opportunity
for a hearing.
This issue in addressed is two steps. First, an explanation follows of the basis upon which GHS claims it has invoked the
jurisdiction of the ALJD. Second, an examination of GHS's claim is given demonstrating that GHS has failed to prove it
has invoked the jurisdiction of the ALJD.
a. Explanation of GHS's Claim of Jurisdiction in the ALJD
GHS argues that the October 9, 2000 Order granted a CON for a project that is materially different from the one for which
Carolina applied, i.e., an ambulatory surgery center which would be effective on September 1, 2001, instead of the date
indicated in Carolina's application, July, 2000. GHS thus concludes that the October 9, 2000 Order violates S.C. Code
Ann. § 44-7-230, which states that a CON is valid "only for the project described in the application . . . except as may be
modified in accordance with regulations." GHS asserts that neither it nor any other "affected person," as defined in S.C.
Code Ann. § 44-7-130, received proper notice that the CON would be materially different from that indicated in the
application. (1) GHS asserts it would have submitted its own application for a CON had GHS known DHEC was
considering a similar project which would be effective on September 1, 2001. See GHS's Affidavit of Chris Sullivan. (2)
Therefore, GHS concludes that it should be afforded the opportunity for a contested case hearing.
b. Examination of GHS's Claim of Jurisdiction in the ALJD
GHS has not invoked the jurisdiction of the ALJD. While GHS attempts to create a contested case controversy, it fails
because GHS confuses the disposition of a contested case by a final order of an ALJ with that of an initial decision of staff
personnel of DHEC to issue a CON. The two are simply not the same.
The jurisdictional issue cannot be divorced from the October 9, 2000 Order. That order ended an existing contested case
action. The fact that the order incorporated a settlement agreement is of no significance since such orders have the same
binding effect as any other Final Order and Decision issued by the ALJD. (3)
2 Am.Jur.2d Administrative Law § 381 (1994)
(An order entered upon stipulation or by consent has the same binding force as any administrative order.). Accordingly,
the October 9, 2000 order was final and disposed of the issue of whether Carolina should obtain a CON.
Given that a final order of the ALJ has granted a CON to Carolina, addressing the jurisdictional issue requires identifying
the essence of GHS's argument. In the final analysis, the essence is that GHS seeks a contested case to show that the ALJ
decision was incorrect; i.e., a CON that is granted effective September 1, 2001 is in error since setting such a date is a
substantial change amounting to a new project requiring notice to all affected parties and such notice was not given. Thus,
here, GHS's filing of a request for a new contested case action amounts to a collateral attack on the October 9, 2000 Order.
Collateral attack on an administrative order is available where the issuing authority lacks jurisdiction to issue the order, or
the order is procured by fraud, or the order is issued under the cloud of a mistake of such a magnitude that reopening the
judgment is required. 2 Am.Jur.2d Administrative Law § 380 (1994). Here, no allegations are made that the ALJ acted in
excess of his jurisdiction or that the Order was brought about by fraud or mistake. Rather, GHS alleges that the October 9
Order granted a CON different from that applied for, that the Order issued a CON for a new project, that the Order failed to
give notice prior to issuing the CON for the new project, and that GHS is entitled to challenge the Order. These allegations
do not present any grounds supporting a collateral attack on the October 9, 2000 order.
Moreover, to allow collateral attack of an Administrative Law Judge's final order by a nonparty that had notice of, and an
opportunity to intervene in, a contested case proceeding would result in endless litigation and would result in the erosion of
the public trust in the integrity of rights acquired on the faith of the adjudicatory process. Cf. 47 Am.Jur.2d Judgments §
898 (1995)(purpose of rule prohibiting collateral attack on the judgment of a court). The efficiency of the administrative
adjudicatory process would be greatly impaired if consent orders, signed by all admitted parties and the presiding judge, are
not final, binding decisions.
The purpose of the general rule prohibiting collateral attacks is to avoid endless litigation. The rule is based upon public
interest in the final adjudication of controversies. The observance of the rule is required by a due regard for the repute of
the courts and for the solemnity of judicial proceedings. The rule has been adopted as the result of weighing, on the one
hand, the desire of the courts to avoid results which effect positive injustice to individuals, and on the other hand,
considerations affecting public policy and convenience, especially in regard to the maintenance of the integrity of property
rights acquired on the faith of judicial proceedings. The fact that a party has an opportunity for redress in a direct
proceeding is also sometimes stated as an additional reason for the application of the rule.
47 Am.Jur.2d Judgments § 898 (1995) (emphasis added). Likewise, an order of the fact-finder in an administrative
proceeding must carry with it the same expectation of finality accorded to a judgment of a court. See 2 Am.Jur.2d
Administrative Law § 380 (1994) (Generally, an administrative order cannot be collaterally attacked.).
Accordingly, the remedy sought by GHS of seeking a second contested case hearing is an improper collateral attack.
Rather, GHS must challenge the order by a direct attack, i.e. an appeal to the DHEC Board if GHS can meet the
requirements for such an appeal. See S.C. Code Ann. § 1-23-610 (Supp. 2000). (4)
C. Conclusion
To obtain a contested case remedy, GHS must prove that the ALJD's contested case jurisdiction has been properly invoked.
Eldridge v. City of Greenwood, 331 S.C. 398, 503 S.E.2d 191 (S.C.App. 1998), rehearing denied (Aug 20, 1998), certiorari
denied (May 14, 1999). Here, GHS has failed to prove that a contested case is available to it. Thus, GHS has failed to
invoke the subject matter jurisdiction of the ALJD and the Motions to Dismiss must be granted.
III. Order
Accordingly, DHEC's and Carolina's Motions to Dismiss are granted.
AND IT IS SO ORDERED.
_______________________________
RAY N. STEVENS
Administrative Law Judge
Dated: February 8, 2001
Columbia, South Carolina
1. Regs. 61-15, § 403.1. explains that any "affected person with standing to contest the grant or denial of an application may
request a contested case hearing." Here, GHS operates an outpatient surgery center in the same area as that proposed by
Carolina and is an affected party. See 44-7-130(1) ("'Affected person' means. . ., persons located in the health service area
in which the project is to be located and who provide similar services to the proposed project, . . .").
2. GHS submitted the affidavit on the same day as the hearing on the Motions to Dismiss, but did so after the hearing had
concluded. Carolina objected to the affidavit as being untimely.
In reviewing evidence for admission, a judge exercises discretion (Gamble v. International Paper Realty Corp., 323 S.C.
367, 474 S.E.2d 438 (1996) and that discretion includes considering the degree of prejudice that might result from the
admission. Stevens v. Allen, 336 S.C. 439, 520 S.E.2d 625 (Ct.App.1999). Here, no meaningful degree of prejudice results
to Carolina. While the affidavit was submitted late, Carolina had knowledge of the affidavit long before the hearing since
GHS supplied the same affidavit to Carolina when it filed its Motion for Reconsideration in Carolina Orthopaedic Surgery
Center v. DHEC, Docket No. 00-ALJ-07-0072-CC. Thus, lateness is not a sufficient basis for excluding the affidavit.
3. Even if DHEC had continued opposition to the CON throughout the previous contested case, the possibility existed that
DHEC would not appeal any order of this tribunal granting the CON following a full adjudicatory hearing.
4. This provision states
For quasi-judicial review of any final decision of an administrative law judge of cases involving departments governed by a
board or commission authorized to exercise the sovereignty of the State, a petition by an aggrieved party must be filed with
the appropriate board or commission and served on the opposing party not more than thirty days after the party receives the
final decision and order of the administrative law judge. Appeal in these matters is by right. A party aggrieved by a final
decision of a board in such a case is entitled to judicial review of that decision by the Circuit Court . . . .
S.C. Code Ann. § 1-23-610 (Supp. 2000). Whether GHS meets the appeal requirements is a matter not before me. |