Bagley v. SCDPPP

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Bernard Bagley, Appellant,

v.

South Carolina Department of Probation, Parole and
Pardon Services, Respondent.

Appellate Case No. 2019-000934

Appeal From The Administrative Law Court
S. Phillip Lenski, Administrative Law Judge

Unpublished Opinion No. 2022-UP-008
Submitted November 1, 2021 – Filed January 12, 2022

AFFIRMED

Bernard Bagley, pro se.

Tommy Evans, Jr., of the South Carolina Department of
Probation, Parole and Pardon Services, of Columbia, for
Respondent.

PER CURIAM: Bernard Bagley appeals an order from the Administrative Law
Court (ALC) dismissing his appeal of a determination by the Department of
Probation, Parole and Pardon Services (the Department) that he could not be
considered for a pardon because he was eligible for parole. On appeal, Bagley
argues the ALC erred in finding he did not comply with SCALC Rule 59(C), and
did not exhaust his administrative remedies. The ALC did not err because the
record does not indicate that Bagley ever submitted, or was precluded from
submitting, a formal pardon application. Accordingly, we affirm pursuant to Rule
220(b)(1), SCACR, and the following authorities: Sanders v. S.C. Dep't of Corr.,
379 S.C. 411, 417, 665 S.E.2d 231, 234 (Ct. App. 2008) ("Although this court shall
not substitute its judgment for that of the AL[C] as to findings of fact, we may
reverse or modify decisions which are controlled by error of law or are clearly
erroneous in view of the substantial evidence on the record as a whole."); Conran
v. Joe Jenkins Realty, Inc., 263 S.C. 332, 334, 210 S.E.2d 309, 310 (1974) ("The
burden of proof is on the appellant to convince [an appellate court] that the lower
court was in error. In order to do this he must place in the record sufficient
[evidence] to serve as a foundation for his argument . . . ."); SCALC Rule 59(C)
("The notice of appeal from the final decision to be heard by the [ALC] shall be
filed with the [ALC] and . . . . shall contain . . . a copy of the final decision which
is the subject of the appeal . . . ."); Brown v. James, 389 S.C. 41, 52 n.11, 697
S.E.2d 604, 610 n.11 (Ct. App. 2010) ("[T]he finality requirement is concerned
with whether the initial agency decision maker has arrived at a definitive position
on the issue that inflicts an actual, concrete injury . . . ." (quoting Darby v.
Cisneros, 509 U.S. 137, 144 (1993))); S.C. Baptist Hosp. v. S.C. Dep't of Health &
Env't Control, 291 S.C. 267, 270, 353 S.E.2d 277, 279 (1987) ("An agency
decision which does not decide the merits of a contested case . . . is not a final
agency decision subject to judicial review."); Brown, 389 S.C. at 48, 697 S.E.2d at
608 ("The doctrine of exhaustion of administrative remedies requires that where a
remedy before an administrative agency is provided, relief must be sought by
exhausting this remedy before the courts will act." (quoting 2 Am. Jur. 2d
Administrative Law § 595 (1962))).1

AFFIRMED.2

WILLIAMS, A.C.J., MCDONALD, J., and LOCKEMY, A.J., concur.

1
Although Bagley also argues the ALC had subject matter jurisdiction to hear his
case and erred in declining to reverse the Department's determination, these issues
are not preserved for appellate review because they were not ruled upon by the
ALC. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It
is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the [ALC] to be preserved for appellate
review.").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.