ORDERS:
ORDER OF DISMISSAL
This matter is before the Administrative Law Judge Division ("Division") pursuant to Respondent's Motion to Dismiss
Appeal filed October 12, 2000. Respondent asserts the Division lacks jurisdiction in this appeal because Appellant failed
to timely file a Notice of Appeal with the Division. Appellant is appealing Respondent's final decision dated October 28,
1999, and served on Appellant on November 17, 1999.
According to ALJD Rule 33, the Notice of Appeal must be filed with the Division within thirty days of receipt of the
decision from which the appeal is taken. The Notice of Appeal, therefore, was due on or before December 17, 1999.
ALJD Rule 38 provides, "Upon motion of any party, or on its own motion, an administrative law judge may dismiss an
appeal for failure to comply with any of the rules of procedure for appeals, including the failure to comply with any of the
time limits provided by this section." Pursuant to this rule, the undersigned can dismiss this case for failure to timely file a
Notice of Appeal as required by ALJD Rule 33.
Furthermore, the failure to timely file a Notice of Appeal deprives a court of appellate jurisdiction. See Dewitt v. South
Carolina Dep't of Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980) (a circuit court's jurisdiction over a
magistrate's decision is appellate in nature and a circuit court does not have the right to extend the time within which an
appeal may be taken from the magistrate's decision).
On May 11, 2000, Appellant filed a letter with the Clerk of the Division and enclosed part of the last page of
Respondent's final decision dated October 28, 1999. Because the Notice of Appeal must have been filed on or before
December 17, 1999, the Division lacks jurisdiction to hear an appeal of Respondent's final decision.
On September 26, 2000, Appellant submitted Respondent's complete final decision of October 28, 1999, a letter from the
United States Office of Personnel Management dated September 19, 2000, and a letter requesting "assistance in reopening
my appeal of the action taken against me by the SC Board of Medical Examiners October 28, 1999, and a later action taken
September 19, 2000, which resulted from the first action." Appellant is attempting to appeal a decision of the United States
Office of Personnel Management. The Division, however, is an agency of the executive branch of the State of South
Carolina. S.C. Code Ann. § 1-23-500 (A) (Supp. 2000). As an administrative agency, the Division only has such powers
as have been conferred upon it by law and must act within the authority created for that purpose. Bazzle v. Huff, 319 S.C.
443, 462 S.E.2d 273 (1995). The Division, therefore, lacks jurisdiction to hear an appeal of a decision of the United States
Office of Personnel Management.
IT IS HEREBY ORDERED that Appellant's appeal is dismissed with prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
February 6, 2001
Columbia, South Carolina |
