Opinion
22-ALJ-22-0412-AP
03-07-2023
Lindsay E. Williams, Appellant, v. South Carolina Department of Employment and Workforce, Respondent, In Re: 22-HA-001500.
ORDER GRANTING MOTION TO DISMISS
ROBERT L. REIBOLD, ADMINISTRATIVE LAW JUDGE
BACKGROUND
This matter is pending before the South Carolina Administrative Law Court (the ALC or the Court) pursuant to an appeal filed by Lindsay E. Williams (Appellant). Appellant is challenging a decision of the Appellate Panel of the South Carolina Department of Employment and Workforce (the Department or DEW) that was mailed on October 11, 2022. Appellant filed her notice of appeal on November 9, 2022; however, the notice of appeal was devoid of any proof of service. By memorandum dated November 14, 2022, the Clerk's Office of the ALC instructed Appellant to provide a proof of service for all parties served and for Appellant to sign her notice of appeal. Appellant then provided her signature and a proof of service. But, on the proof of service, Appellant did not identify the document that she served, and she stated she placed the unidentified document in the U.S. mail on November 7, 2022. Appellant only listed the ALC as one of the "parties" that was served; the Department was not listed as being served.
This matter was assigned to the undersigned on December 1, 2022. In the notice of assignment, Appellant was informed that her brief would be due within twenty (20) days after the record on appeal was filed. The Department filed the record on appeal on January 3, 2023.
On February 6, 2023, the Department filed a motion to dismiss, seeking dismissal of this appeal because Appellant has neither filed nor served a brief in this matter. According to the Department, Appellant's brief was due by January 23, 2023. As of the date of this order, the Court has neither received Appellant's brief nor a response to the Department's motion.
DISCUSSION
The Court generally has appellate jurisdiction over appeals from the Department that have been properly filed and served. See generally S.C. Code Ann. § 1-23-380(1) (Supp. 2022) (stating proceedings for appellate review of an agency decision before the ALC are initiated by "serving and filing [a] notice of appeal as provided in the South Carolina Appellate Court Rules within thirty days after the final decision of the agency" (emphases added)); S.C. Code Ann. § 41-35-750 (2021) (providing for review in the ALC of the Department's decisions).
The Court questions if it has jurisdiction in this matter because the proof of service does not show that Appellant served the Department with the notice of appeal. See S.C. Code Ann. § 1-23-380(1); S.C. Code Ann. § 41-35-750; see also Elam v. Dep't of Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004) ("The requirement of service of the notice of appeal is jurisdictional, i.e., if a party misses the deadline, the appellate court lacks jurisdiction to consider the appeal and has no authority to 'rescue' the delinquent party by extending or ignoring the deadline for service of the notice."); Southbridge Props., Inc. v. Jones, 292 S.C. 198, 198-99, 355 S.E.2d 535, 535 (1987); Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985); Allison v. W.L. Gore & Assocs., 394 S.C. 185, 189, 714 S.E.2d 547, 550 (2011). However, the Court is cognizant that Appellant may have properly served the Department with her notice of appeal but failed to properly fill out a certificate of service in this matter. The Court also notes the Department has not asserted Appellant failed to properly serve it with the notice of appeal. Accordingly, without any evidence that Appellant failed to invoke the Court's jurisdiction, the Court proceeds assuming that it has jurisdiction to hear this matter.
Per SCALC Rule 37(A), Appellant had twenty (20) days from the date the record on appeal was filed, which occurred on January 3, 2023, to file her brief with the Court. See id. ("In appeals from [DEW], the appellant shall file its brief with the Court within twenty (20) days after the Record on Appeal is filed ...."). When a brief or other document is filed with the Court, the party filing the brief or document must serve the filing upon all parties. See SCALC Rule 37(C) ("At the time of filing the brief with the Court, one copy of the brief and any appendix shall be served on each party to the appeal." (emphasis added)); see also SCALC Rule 5 ("Any document filed with the Court shall be served upon all parties to the proceeding. Service shall be made upon counsel if the party is represented, or if there is no counsel, upon the party. Service shall be made by delivery, by mail to the last known address, or as otherwise approved by the Court through administrative order. Service is deemed complete upon mailing. Service that complies with Rule 5(b)(1), SCRCP, also shall satisfy this Rule.").
SCALC Rule 38 permits the Court on its own motion or upon a motion of the Department to dismiss Appellant's appeal for failure to file and serve her brief as required by the Court's rules. See id. ("Upon motion of any party, or on its own motion, an administrative law judge may dismiss an appeal or resolve the appeal adversely to the offending party 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 in these rules or by order of the Court.").
By virtue of her request for an appeal, Appellant had an obligation to advance her position, and Appellant was given ample time to do so. Nonetheless, Appellant has not filed and served a brief in support of her appeal as of the date of this order. The Court is aware the consequences of this decision appear harsh. However, applicable law drives the Court's decision. Although Appellant is pro se, she is still obligated to comply with the Court's rules. "A pro se litigant who knowingly elects to represent himself [or herself] assumes full responsibility for complying with substantive and procedural requirements of the law." State v. Policao, 402 S.C. 547, 558, 741 S.E.2d 774, 779-80 (Ct. App. 2013) (quoting State v. Burton, 356 S.C. 259, 265 n.5, 589 S.E.2d 6, 9 n.5 (2003)). "Lack of familiarity with legal proceedings is unacceptable[,] and the [C]ourt will not hold a layman to any lesser standard than is applied to an attorney." Goodson v. Am. Bankers Ins. Co. of Fla., 295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App. 1988).
ORDER
IT IS THEREFORE ORDERED that the Department's motion to dismiss is GRANTED and this appeal is DISMISSED WITH PREJUDICE.
As an independent ground, the Court also notes it has not received a return from Appellant on the Department's motion to dismiss. Thus, Appellant has implicitly consented to the Department's requested relief. See SCALC Rule 68 (permitting the ALJ to apply the South Carolina Appellate Court Rules in his or her discretion to resolve questions not addressed by the Court's rules); Rule 240(e), SCACR ("Failure of a party to timely file a return may be deemed a consent by that party to the relief sought in the motion or petition.").