Opinion
22-ALJ-22-0037-AP
03-21-2024
Crystal A. Fucito, Appellant, v. South Carolina Department of Employment and Workforce, Respondent.
ORDER
Milton G. Kimpson, South Carolina Administrative Law Judge
STATEMENT OF THE CASE
This matter comes before the South Carolina Administrative Law Court (Court) pursuant to a Notice of Appeal filed by Crystal A. Fucito (Appellant). Appellant is seeking review of a final decision issued by the Appellate Panel (Panel) of the South Carolina Department of Employment and Workforce (Department), which upheld the Appeal Tribunal's (Tribunal) dismissal of her appeal as untimely. This Court has jurisdiction to hear this matter pursuant to S.C. Code Ann. §41-35-750 of the South Carolina Code (2021). Upon consideration of arguments raised by the parties, a review of the Record on Appeal (Record) and the law, the Panel's decision is affirmed.
BACKGROUND
On March 25, 2021, Appellant filed a claim for unemployment benefits with the Department. On April 19, 2021, the Department's claims adjudicator found Appellant ineligible to receive Pandemic Unemployment Assistance (PUA) benefits, concluding that she had not met the eligibility requirements because she had not shown she was unemployed or partially unemployed as a direct result of the COVID-19 public health emergency. On June 29, 2021, the Appellant thereafter appealed the claims adjudicator's ineligibility determination to the Tribunal. The Tribunal determined her appeal from the claims adjudicator's decision was untimely filed and dismissed her case. She appealed to the Panel which remanded the case to the Tribunal for a determination on the timeliness of Appellant's appeal.
On October 27, 2021, a hearing was conducted. Appellant appeared by telephone before the hearing officer on the sole issue of the timeliness of her appeal of the claims adjudicator's determination. On November 2, 2021, a decision from the Tribunal was issued finding that Appellant did not timely file her appeal from the claims adjudicator's decision. The Tribunal thus affirmed the determination of the claims adjudicator. On November 8, 2021, Appellant appealed the Tribunal decision to the Panel and on December 20, 2021, the Panel affirmed the decision of the Tribunal. This appeal was taken from that decision.
ISSUE ON APPEAL
Did the Panel err in affirming the Tribunal's decision that Appellant's appeal of the claims adjudicator's decision to the Tribunal was untimely?
STANDARD OF REVIEW
The Department is an "agency" under the Administrative Procedures Act (APA). See Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984) (finding that the Employment Security Commission, the predecessor of the Department, was an agency within the meaning of the APA). Accordingly, the APA's standard of review governs appeals from decisions of the Department. See S.C. Code Ann. §§ 1-23-380, 1-23-600(D) (Supp. 2020); Gibson, 282 S.C. at 386, 318 S.E.2d at 367; McEachern v. S.C. Employment Sec. Comm'n, 370 S.C. 553, 557, 635 S.E.2d 644, 646-47 (Ct. App. 2006). Section 1-23-380(5) of the South Carolina Code (Supp. 2020) provides the standard used by appellate bodies to review agency decisions. See § 1-23-600(D) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). That section states:
The court may reverse or modify the decision [of an agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a)in violation of constitutional or statutory provisions;
(b)in excess of the statutory authority of the agency;
(c)made upon unlawful procedure;
(d)affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.§ 1-23-380(5).
A decision is supported by substantial evidence when the record as a whole allows reasonable minds to reach the same conclusion as the agency. Friends of the Earth v. Pub. Serv. Comm'n of S.C., 387 S.C. 360, 366, 692 S.E.2d 910, 913 (2010). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings from being supported by substantial evidence. Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996). In applying the substantial evidence rule, "a reviewing court will not overturn a finding of fact by an administrative agency 'unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based.'" Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep't of Natural Res., 345 S.C. 594, 603-04, 550 S.E.2d 287, 292 (2001) (quoting Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981)). When applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C 348, 461 S.E.2d 388 (1995). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, 467 S.E.2d at 917.
DISCUSSION
Appellant asserts the Panel erred in affirming the Tribunal's decision that her appeal of the claims adjudicator's decision to the Tribunal was untimely. The Court must disagree.
Pursuant to S.C. Code Ann. §41-35-660, a claimant may file an appeal from the agency determination [claims' adjudicator's decision] "not later than ten days after the determination was mailed to his last known address." The question of compliance with the statutes, regulations, and rules governing an appeal is one of appellate jurisdiction and an appellate body may not extend the time to appeal. Allison v. W.L. Gore & Assocs, 394 S.C. 185, 188-89, 714 S.E.2d 547, 549-50 (2011). Section 41-35-660 clearly states Appellant had ten days from the date the Department's determination was mailed to file her appeal. The Record reflects, and the Panel so found, that the claims adjudicator's decision was mailed to Appellant on April 20, 2021, but that she did not file her appeal to the Tribunal until June 29, 2021, well past the ten (10) day deadline, rendering the appeal untimely.
Appellant argues that when she received the claims adjudicator's decision, she began calling the Department to speak with someone about it, but could not get through. On April 22, 2021, she went into her online account and added documents from the State of New Jersey which had informed her that any claim for PUA benefits needed to be filed in South Carolina. She also stated she could not get through to the Department by fax, but did not present any evidence of the fax history to show such an inability. Despite the fact that decision from the claims adjudicator contained a bolded statement instructing her how to timely appeal, Appellant did not file an appeal until June 29, 2021. She began her appeal letter with the words "I know I am late writing you an appeal, …." Accordingly, the Court finds that there is substantial evidence to support the Panel's determination that the Appellant filed an untimely appeal of the Department's decision.
The claims' adjudicator decision contained the following regarding appeals to the Tribunal:
IMPORTANT: This determination will be the final decision of the Department unless you file an appeal setting forth in detail the ground for appeal by 04/30/2021. Yor appeal may be filed by mail addressed to the "Appeal Tribunal, Post Office Box 995, Columbia, SC 20202" or by fax to 803-737-0287. For additional information on filing an appeal, contact the Appeals Department at 803-737-2520 or visit our website at www.dew.sc.gov/individuals/mamange-your-benefits/appeals . (emphasis in original)The Court recognizes Appellant's testimony that she attempted to telephone the Department for assistance but given the clear instruction that the deadline to appeal was 04/30/2021, the reasonable action would have been to file her appeal by that deadline. Moreover, if the Department's fax line was busy, all Appellant needed to have done is to mail the appeal to the Tribunal by the deadline. Finally, even if Appellant's upload of the New Jersey unemployment decision evidences some intent to appeal, substantial evidence supports the Panel decision that this communication was not a valid appeal under South Carolina law to the Tribunal. While unfortunate, this Court has no authority to excuse the untimeliness of her appeal.
Therefore, based on the foregoing, IT IS HEREBY ORDERED that the Department's decision is AFFIRMED.
AND IT IS SO ORDERED