Opinion
23-ALJ-22-0354-AP
10-23-2023
Tammie R. McHomes, Appellant, v. South Carolina Department of Employment and Workforce and Xerox State Healthcare, LLC, Respondent.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
CRYSTAL, M. ROOKARD ADMINISTRATION LAW JUDGE
This matter is before the South Carolina Administrative Law Court (ALC or Court) pursuant to the Notice of Appeal filed by Tammie R. McHomes (Appellant). Appellant is seeking review of a final decision rendered by the Appellate Panel (Panel) of the South Carolina Department of Employment and Workforce (Department). This case was assigned to the undersigned on September 12, 2023. Subsequently, on September 28, 2023, the Department filed a motion requesting this appeal be dismissed with prejudice pursuant to SCALC Rule 33 and § 41 35-750 of the South Carolina Code (2021). Specifically, the Department alleges Appellant failed to timely file and serve the Notice of Appeal, therefore, this Court lacks jurisdiction over the appeal. As of the date of this order, Appellant has not filed a response to the Motion to Dismiss.
SCALC Rule 33 provides in pertinent part that:
The notice of appeal from the final decision of an agency 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. . .[i]n appeals from decisions of the Department of Employment and Workforce, the notice of appeal must be filed and served within thirty (30) days of the date of mailing of the decision of the Department of Employment and Workforce Appellate Panel.SCALC Rule 33 (emphasis added). Likewise, § 41-35-750 require the petition for judicial review be filed with the court and served on all parties within thirty days from the mailing date of the Department's final decision S.C. Code Ann § 41-35-450 (2021).
In this case, the Appellant Panel's final decision was mailed to Appellant on August 1, 2023 Thus, Appellant's Notice of Appeal must have been filed with the Court and served upon the Respondent no later than August 31, 2023. Appellant did not file and serve her appeal until September 12, 2023, twelve days past the thirty days allowed by SCALC Rule 33 and § 41-35-750.
The South Carolina Supreme Court has determined that the timely filing and service of the notice of appeal upon the agency are jurisdictional requirements. See Allison v. W.L. Gore & Assocs., 394 S.C. 185, 189, 714 S.E.2d 547, 550 (2011) ("an appellate body may not extend the time to appeal''); See also Elam v. S.C. Dept. of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004) ("If a party misses the deadline, the appellate court lacks jurisdiction to consider the appeal and has no authority or discretion to 'rescue' the delinquent party by extending or ignoring the deadline for service of the notice."). Additionally, ALC Rule 38 allows for dismissal of 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. SCALC Rule 38.
Consequently, because Appellant failed to timely file and serve the Notice of Appeal as required by statute and the ALC rules cited above, this Court lacks jurisdiction over this appeal. While the Court recognizes the harsh result of this decision, it is constrained by the rules and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994).
THEREFORE, IT IS HEREBY ORDERED that the Department's Motion to Dismiss is GRANTED and this appeal is DISMISSED.
AND IT IS SO ORDERED.