South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Dr. Alva S. Pack, III vs. HHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
Dr. Alva S. Pack, III

Respondent:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
04-ALJ-08-00172-AP

APPEARANCES:
n/a
 

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. Footnote 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. Footnote 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. Footnote 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


Brown Bldg.

 

 

 

 

 

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