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Administrative Law Court
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SC Administrative Law Court Decisions

Melvin Powell vs. SCDHHS

South Carolina Department of Health and Human Services

Melvin Powell

South Carolina Department of Health and Human Services




This matter comes before me upon Mr. Melvin Powell's appeal of an administrative decision that he is not eligible for the Medicaid Aged, Blind, or Disabled Program. The South Carolina Department of Health and Human Services ("DHHS") has moved to dismiss the appeal on the grounds that the Appellant (1) failed to timely file a notice of appeal and (2) failed to meet the required level of specificity in his notice of appeal, which DHHS contends deprives the Administrative Law Judge Division ("ALJD") of jurisdiction to hear the matter.

For the reasons discussed below, I find that the Motion to Dismiss by DHHS should be GRANTED.


Mr. Powell applied for Medicaid assistance on April 8, 1996, complaining of a series of medical problems. See DHHS Administrative Decision of May 27, 1997 at 1. Acting on behalf of DHHS, the S.C. Vocational Rehabilitation Department and the Charleston County Department of Social Services found that Mr. Powell did not qualify for the Medicaid Aged, Blind, or Disabled Program. Subsequently, Mr. Powell sought review of that determination by requesting a fair hearing from DHHS.

DHHS Hearing Officer Kimberly B. Burrell presided over the fair hearing and affirmed the determination that Mr. Powell was ineligible. See DHHS Administrative Decision of May 27, 1997. Mr. Powell appealed the decision to the Department of Social Services and to the DHHS Division of Appeals and Hearings by his letters of June 24 and June 27, 1997, respectively. Mr. Powell appealed the decision to the ALJD by his letter of July 15, 1997. His letter contained no allegations of defect in the DHHS Administrative Decision of May 27, 1997, nor any other grounds for appeal.


DHHS contends that Mr. Powell did not comply with Section 1-23-380 since his notice of appeal was not timely filed. In order to invoke the jurisdiction of the Administrative Law Judge Division to appeal an agency decision, a notice stating the specific grounds for the appeal must be filed within thirty days of the receipt of the decision being appealed. S.C. Code Ann. § 1-23-380 (Supp. 1996). See also ALJD Rule 33.

Mr. Powell received the decision by the hearing officer on May 28, 1997. See AFFIDAVIT of Lisa Geiger and Return Receipt signed by Melvin Powell. Included with the decision was a cover letter indicating the process for appeal. Mr. Powell did not follow the instructions given in the cover letter which indicated that requests for review were to be directed to the ALJD within thirty days. As a result, his request for an appeal was not filed with the ALJD until July 15, 1997, clearly after expiration of the thirty-day time limit.

Generally, a notice of appeal not timely served requires dismissal of the appeal. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) and Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987). See also Witzig v. Witzig, ___ S.C. ___, 479 S.E.2d 297, 299 (Ct. App. 1996) ("Respondent's appeal from the probate court order was not timely filed; therefore, the master's order must be reversed and the order of the probate court reinstated"). "[S]tatutes should be construed liberally in favor of the right of appeal but 'there is a limit beyond which the most liberal construction cannot go.' The time prescribed by statute within which notice of appeal must be given cannot be enlarged or extended by the courts." Stroup v. Duke Power Co., 216 S.C. 79, 83, 56 S.E.2d 745, 747 (1949) (internal citations omitted). See 4 C.J.S. Appeal & Error § 14 (1993). Although Mr. Powell indicates he initially filed an appeal within the thirty-day period, but inadvertently in the wrong forum, such inadvertence or mistake does not extend the time for appeal or excuse the improper filing so as to give a reviewing court jurisdiction. See Burnett v. S.C. Highway Dept., 252 S.C. 568, 167 S.E.2d 571 (1969).

DHHS further contends that Mr. Powell's notice of appeal does not set forth the grounds or errors of law in support of the appeal. In order for an administrative appeal to be properly instituted, the Administrative Procedures Act ("APA") requires that the basis for the appeal be set forth in the notice of appeal. See S.C. Code Ann. §1-23-380 (Supp. 1996). The dispositive administrative rule, ALJD Rule 33, requires that a general statement of the grounds of appeal be set forth in the notice. Mr. Powell's letter requesting this appeal does not allege that any error was committed by DHHS during the agency-level appeal or by DSS in the underlying eligibility determination. Rather, Mr. Powell requested a review and reconsideration by the ALJD of the administrative decision. Therefore, the letter serving as notice of appeal fails to comply with the APA and ALJD Rule 33.

The APA does not allow jurisdiction to vest in the absence of a sufficient notice of appeal. Pringle v. Builders Transport, 298 S.C. 494, 381 S.E.2d 731 (1989), (citing Smith v. South Carolina Dept. of Social Services, 284 S.C. 469, 327 S.E.2d 348 (1985)):

A petition for review . . . pursuant to the Administrative Procedures Act must direct the court's attention to the abuse allegedly committed below including a distinct and specific statement of the rulings of which the appellant complains. . . . [The reviewing court] lacks jurisdiction of the appeal if the notice is insufficient.

Solomon v. W.B. Easton, Inc., 307 S.C. 518, 522, 415 S.E.2d 841, 844 (Ct. App. 1992) (citing Pringle).

[T]he term "petition" as used in paragraphs (b), (c), and (d) of § 1-23-380 denotes more than a court paper phrased in broad, vague, and unspecific terms. Rather a petition which will suffice legally must be one which will direct the court's attention to the abuse or abuses allegedly committed below through a distinct and specific statement of the rulings complained of. In short, the petition must include all that is necessary to enable the appellate court to decide whether the ruling complained of was erroneous.

Smith v. South Carolina Dept. of Social Services, 284 S.C. 469, 470-71, 327 S.E.2d 348, 349 (1985)(citing 4 Am.Jur.2d, Appeal and Error, § 430 (1962)).

Further, the Supreme Court has specifically held that the liberal policy of allowing the amendment of pleadings does not apply to the amendment of a petition for appeal filed under the APA after the expiration of the thirty-day statutory period for filing the appeal. Smith, 284 S.C. at 471, 327 S.E.2d at 349. Pringle, 298 S.C. at 495-96, 381 S.E.2d at 732. Therefore, the Appellant is now procedurally barred from amending his petition to state a basis for appeal. Accordingly, as this appeal has not been perfected as required by the APA, it must be dismissed for lack of jurisdiction.


IT IS THEREFORE ORDERED that Motion to Dismiss by DHHS is GRANTED and that this appeal is hereby DISMISSED.



Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

September 23, 1997

Columbia, South Carolina

Brown Bldg.






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