ORDERS:
ORDER OF DISMISSAL
STATEMENT OF CASE
The Appellant filed an appeal of the South Carolina Department of Health and Human
Services’ (Department) decision on May 24, 2004. The Appellant requests that the
Department’s decision be reversed and that he be granted a contested case hearing concerning
this matter before the Administrative Law Court (ALC or Court). On June 1, 2004, the
Department filed a Motion to Dismiss this appeal because it was not timely filed with the Court.
Although the Appellant timely responded to the Department’s Motion, I find that this matter was
not timely filed and should be dismissed.
DISCUSSION
The Appellant contends that ALC Rules 1 and 2 entitle him to a contested case hearing
before the Court. More specifically, he contends that a hearing is required by due process. The
Appellant appeared pro se at a hearing before the Department on February 11, 2004.
Afterwards, the Appellant received the Department’s decision on March 11, 2004. The
Appellant thereafter filed an appeal with the Administrative Law Court on May 24, 2004.
Therefore, the Appellant appealed this case seventy-four (74) days after he received the
Department’s decision.
ALC Rule 33 provides that a “notice of appeal from the final decision of an agency to be
heard by the Administrative Law Court shall be filed with the Court 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.” Accordingly, Rule 33 creates a fixed
time to seek review before the ALC.
Furthermore, the South Carolina Supreme Court has held
that: “One cannot complain of a due process violation if he has recourse to a constitutionally
sufficient administrative procedure but . . .fails to take advantage of it.” Zaman v. S.C. State Bd.
of Medical Examiners, 408 S.E.2d 213, 215 (1991). Here, the Appellant had the opportunity to
bring this matter before the Administrative Law Court within the time prescribed by law and did
not avail himself of this process. Therefore, there is no due process violation.
The Appellant also argues that the Department is in breach of contract pursuant to S.C.
Code Ann. § 15-3-230(2) (Supp. 2003). An action for breach of contract does not lie in the
jurisdiction of the Administrative Law Court but in the Circuit Court. Nevertheless, the
Appellant contends that Administrative Law Court Rule 68 grants this Court the authority to
hear an action for breach of contract. ALC Rule 68 sets forth that: “The South Carolina Rules of
Civil Procedure may, where practicable, be applied in proceedings before the Court to resolve
questions not addressed by these rules.” However, though the South Carolina Rules of Civil
Procedure (SCRCP) may be used to supplement the Rules of Procedure for the Administrative
Law Court, ALC Rule 68 does not, nor could it, authorize the creation of jurisdiction where it
does not exist.
Likewise, the Appellant attempts to invoke the authority of ALC Rule 68 to assert that
the Department committed fraud or mistake as set forth in SCRCP 9. Again, ALC Rule 68 does
not, nor could it, authorize the creation of jurisdiction where it does not exist. Moreover, since
this Court does not hear these claims, SCRCP Rule 9 is not helpful in resolving any procedural
issue in this case.
The Appellant also argues that dismissal of this case would be in contravention to ALC
Rule 46's admonition to “promote justice.” Indeed Rule 46 provides that “[c]onsistent with law,
the administrative law judge is authorized to do all things necessary and proper to the
performance of the foregoing and to promote justice, fairness, and economy. . . .” ALC Rule
46, however, applies to hearings which address the need or reasonableness of proposed
regulations. Moreover, though it should always be a desire of the Court to “promote justice,”
that goal cannot be used to unlawfully create contested case jurisdiction or expand the time for
the Appellant to perfect his appeal. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).
Finally, the Appellant asserts that since he is not an attorney, he does not have the
familiarity of the law and its processes an attorney possesses. I have considered the possibility
that he may be raising the doctrine of excusable neglect and, accordingly, I have considered that
issue. Nevertheless, “a party has a duty to monitor the progress of his case. Lack of familiarity
with legal proceedings is unacceptable and the court will not hold a layman to any lesser
standard than is applied to an attorney.” Goodson v. Am. Bankers Ins. Co., 295 S.C. 400, 403,
368 S.E.2d 687, 689 (Ct. App.1988). Moreover, though I do not find excusable neglect exists in
this case, even if the Appellant established excusable neglect in failing to promptly file an appeal
of the Department’s decision, that excuse does not toll or otherwise stay a statute of limitations.
See Perdue v. Hess, 484 S.E.2d 182 (W. Va.1997); City of Tupelo v. Martin, 747 So.2d 822
(Miss.1999); Mitchell v. State Recreation Com'n Snowmobile Trails, 968 P.2d 37 (Wyo.1998);
Cf. Mears v. Mears, supra.
ORDER
Based on the foregoing:
IT IS THEREFORE ORDERED that this matter is hereby Dismissed.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson, III
Administrative Law Judge
July 6, 2004
Columbia, South Carolina |
