South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
NewCon Construction, Inc. vs. SCDOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioners:
NewCon Construction, Inc.

Respondents:
South Carolina Department of Transportation
 
DOCKET NUMBER:
01-ALJ-19-0518-IJ

APPEARANCES:
For the Petitioner: Henry P. Wall, Esq.

For the Respondent: Linda C. McDonald, Esq.
 

ORDERS:

ORDER

This matter is before me pursuant to the motion of the Petitioner, NewCon Construction, Inc., for an award of attorney's fees under S.C. Code Ann. § 15-77-300 (Supp. 2001). A hearing on the motion was held at the offices of the Administrative Law Judge Division ("Division") in Columbia, South Carolina, on January 28, 2002. After having carefully reviewed the Motion for Attorney's Fees, the Response submitted by the South Carolina Department of Transportation ("Department"), the arguments made by counsel at the hearing and the testimony of Rogie Nelson, as well as pertinent statutes and case law, I conclude that the motion should be denied.



Brief HistoryPetitioner previously filed a request for a contested case hearing to review a decision of the Department denying Petitioner's application for certification as a Disadvantaged Business Enterprise ("DBE"). Pursuant to the request, a hearing was held by the undersigned on November 15, 2000 and a Final Decision and Order was issued on March 6, 2001. The Order held that Sandra Brown owned and controlled Petitioner for purposes of 49 C.F.R. Part 26 and that her application for certification in the area of erosion control as a Disadvantaged Business Enterprise should be granted. It was noted at Footnote 1 in the Order that "the DBE" regulations permit a firm to become certified in areas other than the one in which the firm originally qualified, without submitting a new application for certification, upon a showing that the disadvantaged owner controls the firm in the additional type of work. 49 C.F.R. § 26.73 (n).

Subsequently, after conversation with Rogie Nelson, a Certification Analyst with the Department, Petitioner filed a request with the Department on April 18, 2001 requesting an expanded certification in the areas of clearing and grubbing, grading, water lines, sewer lines, and storm drain lines. Notwithstanding the fact that no on-site investigation nor any other investigation was performed by the Department, the request was denied by the full DBE review team in May 2001. Pursuant to procedural policy, the recommendation of the full DBE review team was forwarded to Deputy Director Robert J. Probst for concurrence or nonconcurrence. No further action was taken by the Department on Petitioner's request.

On several occasions thereafter, Petitioner requested that the Department respond to its request. When no action was taken by the Department, Petitioner filed a Writ of Mandamus with the Division on November 14, 2001, requesting that the Division order the Department to take action on Petitioner's request for expanded certification. On December 5, 2001, the Department issued its formal Notice of Denial of Petitioner's request. Again, no additional investigation had been performed by the Department. The Petition for Writ of Mandamus was dismissed as being moot by Order of this tribunal on December 12, 2001. (1) Subsequently, the Petitioner filed its Motion for Attorney's Fees.



Discussion

Petitioner argues that it is entitled to attorney's fees under S.C. Code Ann. § 15-77-300 (Supp. 2001). This statute, in pertinent part, reads as follows:

In any civil action brought by the State, any political subdivision of the State or any party who is contesting state action, unless the prevailing party is the State or any political subdivision of the State, the court may allow the prevailing party to recover reasonable attorney's fees to be taxed as court costs against the appropriate agency, if:



(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and



(2) The court finds that there are no special circumstances that would make the award of attorney's fees unjust.



The Department argued in its response to the Motion that the Petition for a Writ of Mandamus was not a "civil action" with in the meaning of § 15-77-300. Further, it stated that a "civil action" is commenced by the filing and service of a summons and complaint which Petitioner did not do.

The threshold requirement for an award of costs under this statutory provision is that the action in question must be a "civil action." The term "civil action" is defined as "an action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation." Black's Law Dictionary 30 (7th ed. 1999). The term "action" is defined as "the process of doing something; conduct or behavior. . . . A civil or criminal judicial proceeding." Black's Law Dictionary 28 (7th ed. 1999).

A civil action in the courts of record of this State shall be commenced by service of a summons. Clarence C. Clay, South Carolina Practice Forms 1 (1952). The Rules of Procedure govern in all South Carolina courts in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81. Under the Rules of Civil Procedure applicable to courts in the judicial branch, "there shall be one form of action to be known as "civil action." SCRCP, Rule 2. The terms "action" and "suit" are nearly synonymous. Proceedings in courts of law are usually termed "actions" whereas proceedings in courts of equity are usually termed "suits." The word "suit," as used in the Judiciary Act of 1784 and later Federal statutes, applies to any proceeding in a court of justice in which the plaintiff pursues in such court the remedy which the law affords him. Edwin E. Bryant, The Law of Pleading under the Codes of Civil Procedure 3 (2d ed. 1899).

The Division is an agency of the executive branch of government rather than a part of the judiciary. See S.C. Code Ann. §§ 1-23-500 (A) (Supp. 2001). Pursuant to the Administrative Procedures Act ("APA"), Administrative Law Judges hear "contested cases." See S.C. Code Ann. §§ 1-23-310 and 1-23-600 (A) (Supp. 2001). The final decision by an Administrative Law Judge in a contested case is the final administrative step prior to judicial review. S.C. Code Ann. § 1-23-600 (B); § 1-23-610 (B) (Supp. 2001). Furthermore, in S.C. Code Ann. § 1-23-650 (Supp. 2001), which was codified by Act 183 of 1993, the General Assembly authorized the Division to promulgate "[r]ules governing practice and procedure . . . which are consistent with the rules of procedure governing civil actions in courts of common pleas. . . ." Pursuant to the Rules of Procedure of the Division, there is no requirement for a summons and complaint to be filed for this tribunal to be vested with jurisdiction. A simple filing (request for a contested case hearing) with the affected agency or with the Division properly invokes the Division's jurisdiction. See ALJD Rule 11. Thus, proceedings before the Division differ from "actions" or "civil actions" brought in the courts of the judicial branch since the Division is an agency within the executive branch.

In McDowell v. S. C. Dept. of Social Services, 304 S.C. 539, 405 S.E.2d 830 (1991), a case which predated the establishment of the Division, appellant appealed the decision of DSS which denied food stamp benefits. The circuit court affirmed the decision of DSS. Upon appeal to the Court of Appeals, the decision of DSS, as affirmed by the circuit court, was reversed. Thereafter, appellant filed a petition with the circuit court requesting attorney fees. The circuit court reversed the petition for untimeliness. On appeal, the Court of Appeals remanded the case to the circuit court for consideration on the merits. Thereafter, the circuit court held that the appellant was not entitled to attorney fees because: (1) § 15-77-300 does not apply to agency proceedings; (2) appellant is not entitled to attorney's fees for proceedings in the circuit court because DSS's denial of food stamps was substantially justified: (3) appellant is not entitled to attorney's fees on appeal to the Court of Appeals under § 15-77-300, but is entitled only to $ 750.00 pursuant to Supreme Court Rule 38, § 4.

The Supreme Court held that DSS, in the [contested case] hearing before it, was "functioning as an administrative decision-maker" and "was not pressing its claim" in litigation against appellant at that stage. However, the Court held that the appeal to circuit court, which it characterized as "an action for judicial review," brought properly in the court by petition pursuant to § 1-23-380 (B) and not by summons and complaint, was a civil action within the terms of § 15-77-300. Further, the Court said that a failure to apply § 15-77-300 to "such actions [appeals to circuit court] would eviscerate the statute since an agency typically "presses its claim" in the courts in the context of actions for judicial review."

Since the passage of the Restructuring Act in 1993, agencies now file claims and respond to claims for relief from agency determinations in the context of contested case hearings before the Division rather than acting as "administrative decision-makers" themselves. However, in this case the Petitioner is not seeking attorney's fees in the context of a contested case hearing. Rather, the Petitioner filed a petition for a writ of mandamus. Such a petition is not a request for a contested case hearing. Thus, the issue whether a contested case hearing before the Division equates to a "civil action" for purposes of § 15-77-300 is not properly before me. Moreover, the Department was not "pressing its claim" against the Petitioner in this case. Instead, the Petitioner was attempting to obtain an Order requiring the Department to act upon its certification request. Therefore, I find that S.C. Code Ann. § 15-77-300 is not applicable to this case. Since § 15-77-300 is not applicable to this case, there is no need to determine whether the Petitioner is a "prevailing party," whether the Department acted without "substantial justification," and whether "there are no special circumstances rendering an award of attorney's fees unjust."

Accordingly, it is hereby

ORDERED that the relief sought by Petitioner is denied.

AND IT IS SO ORDERED.



__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

January 29, 2002

Columbia, South Carolina

1. The Notice of Denial is the subject of a contested case hearing currently pending before another Administrative Law Judge.


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