Opinion
22-ALJ-30-0236-CC
08-29-2022
Jessica S. Smith, Petitioner. v. South Carolina Department of Employment and Workforce, Respondent.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
SHIRLEY C. ROBINSON, ADMINISTRATIVE LAW JUDGE
This matter is before the South Carolina Administrative Law Court (ALC or Court) pursuant to the Request for Contested Case Hearing (Request) filed by Jessica S. Smith (Petitioner). Petitioner is seeking judicial review of a determination of a hearing officer of the South Carolina Department of Employment and Workforce (Department) regarding the Debt Setoff Collection Act. This case was assigned to the undersigned on July 13, 2022.
Petitioner filed her request for a contested case hearing with the ALC on June 24, 2022, but failed to serve the Department with the Request. The Department filed the Agency Information Sheet and Notice of Appearance on July 27, 2022. Subsequently, on August 4, 2022, the Department filed a Motion to Dismiss for Failure to Timely File the Request for Contested Case Hearing (Motion) pursuant to section § 12-56-65(c) of the South Carolina Code Ann. (2021). Specifically, the Department asserts that the case should be dismissed because Petitioner failed to timely file and serve the Request for Contested Case Hearing (1) pursuant to the Statute of Creation, and (2) on jurisdictional grounds. Petitioner responded to the Department's Motion on August 9, 2022.
DISCUSSION
South Carolina Code Ann. §1-23-600 (B) (2021) provides
All requests for a hearing before the Administrative Law Court must be filed in accordance with the court's rules of procedure, A party that files a request for a hearing with the Administrative Law Court must simultaneously serve a copy of the request on the affected agency.S.C. Code Ann §1-23-600(B)(2021).
Rule 11(C) of the Rules of Procedure for the Administrative Law Court (SCALC Rules) provides "[u]nless otherwise provided by statute, a request must be filed and served within thirty (30) days after actual or constructive notice of the agency's determination." (Emphasis added).
South Carolina Code §12-56-65(c) provides
A debtor may seek relief from the hearing officer's determination by requesting, within thirty days of the determination, a contested case hearing before the Administrative Law Court. A request for a hearing before the Administrative Law Court must be made in accordance with its rules.S.C. Code Ann §12-56-65 (c) (2021) (Emphasis added).
In this case, the final determination of the Department's hearing officer was mailed to Petitioner on May 20, 2022. Therefore, Petitioner's Request for Contested Case hearing must have been filed with the court and served upon the Department no later than June 20, 2022. Petitioner did not file her appeal until June 24, 2022, four days past the thirty days allowed by S.C. Code Ann. § 12-56-65 (c).
The thirtieth day for filing the request for contested case hearing was June 29, 2022, which was a Sunday. Under SCALC Rule 3 (A), the request for contested case hearing was due the next business day, which was Monday, June 20, 2022.
Petitioner filed a response to the Motion on August 9, 2022. In her response, Petitioner asserts that she did file her request for contested case hearing on June 13, 2022. It appears that Petitioner made this request to the Department of Employment and Workforce not the ALC. In addition, Petitioner asserts that the Court should overlook her failure to timely file because the Department failed to provide her with the address of the ALC or a checklist of what she needed to file with the ALC. It is undisputed that Petitioner did not timely file a request for relief with the ALC within thirty days of the Department determination pursuant to section 12-56-65(C) and SCALC Rule 11(C).
The Legislature has unquestionably established a prescribed procedure to seek review of these matters within a specific time frame. Under South Carolina law, a statute that creates a new liability and affixes the time within which an action may be commenced is a "statute of creation," and commencement within the time affixed is an indispensable condition of the action. Knight Publ'g Co. v. Univ. of S.C., 295 S.C. 31, 33, 367 S.E.2d 20, 22 (1988), overruled on other grounds by McLendon v. S.C Dept of Highways and Public Transp., 313 S.C. 525, 443 S.E.2d 539 (1994). Although the failure to timely commence an action pursuant to a statute of creation is not a subject matter jurisdiction defect, such an action "cannot be maintained unless brought within the time allowed by that statute." Simpson v. Sanders, 314 S.C. 413,415 n.1, 445 S.E.2d 93, 94 n.1 (1994). Further,
[w]hen a statute both creates a cause of action and includes a time limit for its commencement, the time is an ingredient of the cause and is so incorporated with the remedy given as to make compliance with the time limit a condition precedent to the maintenance of the action. Such a statutory time limit conditions the existence of the right of action, thereby creating a substantive, rather than procedural, limitation on the right.54 C.J.S. Limitations of Actions § 30.
Because the Petitioner failed to timely file under that statutes, the Court lacks jurisdiction to hear this case.
Lastly, a pro se litigant, like Petitioner, who knowingly elects to represent 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 court will not hold a layman to any lesser standard than is applied to an attorney." Goodson v. American Bankers Ins. Co. of Florida, 295 S.C. 400, 403, 369 S.E.2d 687, 689 (Ct. App. 1988). While this 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).
Because Petitioner's request for relief was untimely, the Department's Motion must be granted.
IT IS THEREFORE ORDERED that the Department's Motion to Dismiss is GRANTED, and that this matter is DISMISSED WITH PREJUDICE.
AND IT IS SO ORDERED.