Vol. 8, No. 4, Pg. 24. Exhaustion of Administrative Remedies: Overview of South Carolina Law.

• Author: By Edwin E. Evans

South Carolina Lawyer

1997.

Vol. 8, No. 4, Pg. 24.

Exhaustion of Administrative Remedies: Overview of South Carolina Law

24Exhaustion of Administrative Remedies: OVERVIEW OF SOUTH CAROLINA LAWBy Edwin E. Evans"The rule is well settled in this State 'that generally the exhaustion of administrative relief available to a party is necessary before, the party can seek redress in the courts.'" Ex Parte Allstate Ins. Co., 248 S.C. 550, 567,151 S.E.2d 849, 855 (1966) (citing, e.g., Lominick v. City of Aiken, 244 S.C. 32, 135 S.E.2d 305 (1964)).

Furthermore, when factual disputes are involved, "one must pursue the administrative remedy or be precluded from seeking relief in the courts." Hyde v. South Carolina Dep't of Mental Health, 314 S.C. 207, 208, 442 S.E.2d 582, 583 (1994), citing Meredith v. Elliot, 247 S.C. 335, 147 S.E.2d 244 (1966).

Moreover, the South Carolina Supreme Court unequivocally requires the exhaustion of administrative remedies if a quasi-judicial remedy, governed by the South Carolina Administrative Procedures Act, S.C. Code Ann. §§1-23-301 through 400 (1976), is involved. Nucor Steel v. South Carolina Pub. Serv. Comm'n., 312 S.C. 79, 439 S.E.2d 270 (1994).

APPLICATION OF THE RULE

Two different interpretations of the exhaustion rule have been applied by the South Carolina appellate courts. First, the exhaustion rule has occasionally been characterized as a limitation on the subject matter jurisdiction of the courts, and therefore may be raised at any time and cannot be waived even by agreement. Betterson v. Stewart, 238 S.C. 574, 121 S.E.2d 102 (1961). On the other hand, the court has also characterized the exhaustion doctrine "as a rule of 'policy, convenience and discretion, rather than one of law, and not jurisdictional'." Vaught v. Waites, 300 S.C. 201, 205, 387 S.E.2d 91, 93 (Ct. App. 1989) (quoting Andrews Bearing Corp. v. Brady, 261 S.C. 533, 536, 201 S.E.2d 241, 243 (1973)). Thus, the court recognizes that "it is not an invariable rule." Ex parte Allstate Ins. Co., 248 S.C. at 567, 151 S.E.2d at 855. The Vaught court, however, recognized, at least by inference, that in accord with certain statutory schemes, the exhaustion requirement may still be a jurisdictional limitation. Vaught, 300 S.C. at 205 n.2, 387 S.E.2d at 93 n.2.

The uncertainty concerning whether the exhaustion requirement limits a court's subject matter jurisdiction encourages a practitioner to make an exhaustion argument at the earliest pleading opportunity.

Consistent with...