ORDERS:
ORDER OF DISMISSAL
This matter is before me pursuant to the Motion of the Respondent, South Carolina
Department of Social Services (Department), to dismiss this case on the grounds that the Appellant's
appeal was not timely filed. Upon careful consideration of the Motion and the supporting and
opposing memoranda, I conclude that the Motion to Dismiss must be granted and this matter must
be dismissed.
STATEMENT OF THE CASE
This is an appeal of the Department's decision to revoke the license of Appellant's day care
center. The written decision was dated May 8, 1998, and sent to the Appellant by certified mail on
May 11, 1998. The letter accompanying the decision advises the Appellant of her right to appeal the
decision, the thirty day period for perfecting the appeal, and states: "You should refer to governing
statutes and regulations for the steps to take, applicable time frames, and the appropriate
jurisdiction."(1) On June 6, 1998, Appellant sent a letter to the Department's Director stating that "I
would like to appeal the results of the hearing and present my case again." In response to this letter,
the Department sent Appellant a letter dated June 9, 1998, which advised Appellant that "any appeal
of the results of the hearing you attended on April 16, 1998, must be made to the Division of
Administrative Law Judge [sic]. If you are going to exercise that option, you must act quickly
because the appeal must be perfected within thirty days of the date you received the certified copy
of the hearing decision." Appellant took no further steps to perfect her appeal until July 9, 1998,
when her attorney forwarded an "Amended Notice of Appeal" to the Administrative Law Judge
Division.
DISCUSSION
The Department asserts that Appellant's letter of June 9, 1998, to the Department's Director
is insufficient to invoke the appellate jurisdiction of the Administrative Law Judge Division, and that
her "Amended Notice of Appeal" was untimely. Appellant argues that the letter of June 9 was
sufficient to put the Department on notice of her intent to appeal and that this letter was served
within the thirty day statutory period. Appellant avers that the applicable statutes, rules, and case
law only require that the notice of appeal be served on the opposing party prior to the expiration of
the thirty day period, and that there is no requirement that the notice be filed within that time frame.
In support of this assertion, Appellant cites Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).
However, Mears was decided pursuant to the Supreme Court Rules (now the South Carolina Rules
of Appellate Procedure), which required only that the notice be served on the opposing parties within
the thirty day period and allowed for filing with the Court at a later date. This case, however, is
governed by the Administrative Procedures Act and the ALJD Rules of Procedure. Pursuant to S.C.
Code Ann. § 1-23-380 (A)(1) and (B), an appeal to the Administrative Law Judge Division is
initiated by filing a notice of appeal with the Division within thirty days after the final decision of
the agency. Furthermore, ALJD Rule 33 provides that "[t]he notice of appeal from the final decision
of an agency to be heard by the Administrative Law Judge Division shall be filed with the Division
and a copy served on each party and the agency whose final decision is the subject of the appeal
within thirty (30) days of receipt of the decision from which the appeal is taken." Therefore, in
appeals to the Division, actual filing of the notice of appeal with the Division within the thirty-day
time period is required to invoke jurisdiction. In this case, there is no dispute that, even assuming
that the letter of June 9 constituted a notice of appeal, it was not filed with the Division during the
allowable time frame, despite the Department's warning to Appellant that the appeal had not been
perfected and time was running out. This Division has no authority to expand the time within which
the notice of appeal must be filed. See Mears, supra. Accordingly, this case must be dismissed for
lack of subject matter jurisdiction.
ORDER
For all the foregoing reasons, the Respondent's Motion to Dismiss is hereby granted and this
case is dismissed for lack of subject matter jurisdiction.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August 17, 1998
1. I note that this statement in the Department's cover letter is inadequate to notify this pro se party
of the proper steps to follow in order to perfect her appeal. However, any error committed in this regard
was cured by the letter of June 9, which does direct the Appellant to the proper appellate forum and
further warns her of the impending expiration of the thirty day period. |
