Christina Silviera-Francisco v. Board of Education of Elizabeth(074974) ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Christina Silviera-Francisco v. Board of Education of the City of Elizabeth (A-28-14) (074974)
Argued October 27, 2015 -- Decided January 27, 2016
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers appellate jurisdiction of an agency decision and the appropriate response
when an appellate tribunal encounters on its calendar an interlocutory order from which leave to appeal was neither
sought nor granted.
This appeal arises in the context of a petition to establish tenure and seniority rights filed with the
Commissioner of Education (Commissioner) by Christina Silviera-Francisco, a principal who was returned to the
classroom due to a reduction-in-force (RIF). The petition was transferred to the Office of Administrative Law
(OAL) as a contested case, and Silviera-Francisco’s employer, the Board of Education of the City of Elizabeth
(Elizabeth Board), challenged the validity of her principal certification.
Following a hearing, an Administrative Law Judge (ALJ) adopted the Elizabeth Board’s position, and
recommended that the petition be dismissed. In September 2012, the Commissioner rejected the ALJ’s Initial
Decision. The Commissioner emphasized that the dispute before the DOE was limited to a determination of
whether Silviera-Francisco obtained tenure, not a challenge to the DOE certification process. The Commissioner
remanded the matter to the OAL for calculation of Silviera-Francisco’s tenure and seniority rights in accordance
with the presumptively valid certificate issued by the DOE.
The ALJ complied, and, on remand, concluded that Silviera-Francisco acquired tenure before the RIF. In
April 2013, the Commissioner adopted the ALJ’s Initial Decision on remand, and granted Silviera-Francisco’s
petition to be reinstated. The Elizabeth Board filed a timely notice of appeal.
The Elizabeth Board’s argument on appeal focused entirely on the Commissioner’s September 2012
decision that rejected the ALJ’s Initial Decision and remanded for calculation of Silviera-Francisco’s tenure and
seniority rights. The appellate panel declined to review that decision. The Appellate Division held that the
September 2012 decision was a final order from which the Elizabeth Board could have filed an appeal as of right.
Having failed to do so, the panel concluded that the Elizabeth Board waived its right to appeal the September 2012
decision. The panel proceeded to affirm the decision of the Commissioner substantially for the expressed reasons in
the Commissioner’s April 2013 final decision.
The Court granted the Elizabeth’s Board’s petition for certification. 220 N.J. 207 (2014).
HELD: The Commissioner’s September 2012 decision, which rejected the ALJ’s Initial Decision and remanded to the
OAL for calculation of tenure and seniority rights, was an interlocutory order. Until the calculation was complete and
adopted by the Commissioner, all of the issues presented by the petitioner remained unresolved. The order became a
final decision from which an appeal could be filed as of right only when the Commissioner adopted the decision of the
ALJ following the remand proceedings.
1. The Rules of Court authorize an appeal as of right to the Appellate Division from final decisions or actions of any
state administrative agency or officer and to review the validity of any rule promulgated by a state administrative
agency with the exception of certain tax matters. Absent a final judgment, an appeal from an interlocutory order or
decision may only be taken by leave granted by the Appellate Division. (p. 10)
2. Generally, a trial court order is considered final if it disposes of all issues as to all parties. The same principle
pertains to orders and decisions of state administrative agencies. Another feature of a final agency decision is the
absence of or exhaustion of all avenues of internal administrative review. A final agency decision is one in which
the agency communicates with unmistakable written notice the finality of its decision. Final agency action is also
characterized by findings of fact, conclusions of law, a definitive ruling, and a clear statement that the interested
party may seek review of the decision and the manner in which that may be accomplished. A remand order from an
agency to the OAL for further consideration is by its very nature interlocutory. (pp. 10-16)
3. Many disputes concerning the interpretation and application of the education laws are referred to and resolved by
the Commissioner. Questions have arisen concerning whether a particular decision rendered by the Commissioner
is interlocutory or final agency action. One of the indicia of final agency action is whether a decision is subject to
further review within the agency including review by the Commissioner, or whether the matter has been referred to
the OAL for further action. (pp. 16-17)
4. When a party appeals from a final judgment, the party may seek review of interlocutory orders that have not been
rendered moot or definitively ruled upon by an appellate court in a prior or separate appeal. An interlocutory order
is preserved for appeal with the final judgment or final agency decision if it is identified as a subject of the appeal,
either in the notice of appeal or the case information statement. (pp. 17-18)
5. Jurisdiction is an issue that a court may raise at any time. A court that recognizes a jurisdictional defect should
notify the parties and permit them to address the issue of the court’s jurisdiction. (p. 18)
6. Here, the need for further administrative proceedings to adjudicate Silviera-Francisco’s petition is a strong
indicator that the Commissioner’s September 2012 decision was not a final agency decision. Because the single,
narrow issue presented in the petition remained unresolved, the Commissioner’s September 2012 decision
remanding the matter to the OAL must be considered an interlocutory order. Appellate Division jurisdiction could
therefore only be secured by submission and grant of a motion for leave to appeal. The failure by the Elizabeth
Board to seek leave to appeal or to identify the September 2012 decision by date in its Notice of Appeal cannot be
considered a waiver of its right to review that earlier, interlocutory order. The Elizabeth Board clearly identified the
September 2012 decision in the Case Information Statement submitted with its Notice of Appeal. (pp. 18-20)
7. Finally, an appellate tribunal always has the authority to question whether its jurisdiction has been properly
invoked. When a tribunal identifies a pending appeal that may be from an interlocutory order for which leave has
not been granted, the better practice is to notify the parties and to permit them to comment on the issue rather than
dismissing the appeal or declining to review a fully briefed issue without notice to the parties. (p. 21)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for consideration
of the issues presented by the Elizabeth Board in its appeal.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and
SOLOMON join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
2
SUPREME COURT OF NEW JERSEY
A-28 September Term 2014
074974
CHRISTINA SILVIERA-FRANCISCO,
Petitioner-Respondent,
v.
BOARD OF EDUCATION OF THE
CITY OF ELIZABETH, UNION
CITY,
Respondent-Appellant.
Argued October 27, 2015 – Decided January 27, 2016
On certification to the Superior Court,
Appellate Division.
Bruce S. Rosen argued the cause for
appellant (McCusker, Anselmi, Rosen, &
Carvelli, attorneys; Mr. Rosen and Kristina
D. Pasko, on the briefs).
Lawrence N. Lavigne argued the cause for
respondent (Mr. Lavigne, attorney; Mr.
Lavigne and Jignesh J. Shah, on the brief).
Donna Sue Arons argued the cause for amicus
curiae New Jersey Commissioner of Education
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney; Lewis A. Scheindlin,
Assistant Attorney General, of counsel; Beth
N. Shore, Deputy Attorney General, on the
letter brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This appeal presents a narrow issue of appellate
jurisdiction of an agency decision and the appropriate response
1
by an appellate tribunal when it encounters on its calendar an
interlocutory order from which leave to appeal was neither
sought nor granted. The appeal arises in the context of a
petition filed by a principal who was returned to the classroom
due to a reduction-in-force (RIF), which included elimination of
all vice-principal positions throughout the district.
Here, the principal filed a petition with the Commissioner
of Education (Commissioner) to establish her tenure and
seniority rights as a vice-principal. Her employer, the Board
of Education of the City of Elizabeth (Elizabeth Board),
challenged the validity of her principal certification, which
challenge, if successful, affected her tenure and seniority
rights. An Administrative Law Judge (ALJ) adopted the Elizabeth
Board’s position, but the Commissioner rejected the Initial
Decision and remanded the matter to the Office of Administrative
Law (OAL) for calculation of the petitioner’s tenure and
seniority rights. The ALJ promptly complied, the Commissioner
adopted the Initial Decision, and the Elizabeth Board filed a
timely notice of appeal.
The Appellate Division held that the Commissioner’s first
decision was a final order from which the Elizabeth Board could
have filed an appeal as of right. Having failed to do so, the
panel concluded that the Elizabeth Board waived its right to
appeal the Commissioner’s first decision. The appellate panel
2
raised the issue of the timeliness of the appeal sua sponte and
determined that the Commissioner’s first decision rejecting the
ALJ’s Initial Decision was a final order from which the employer
should have taken an appeal. We disagree.
The Commissioner’s first decision was plainly an
interlocutory order. He rejected the ALJ’s decision and
remanded the matter to the OAL for calculation of tenure and
seniority rights. Until that calculation was complete and
adopted by the Commissioner, all of the issues presented by the
petitioner remained unresolved. Stated differently, the order
became a final decision from which an appeal could be filed as
of right only when the Commissioner adopted the decision of the
ALJ following the remand proceedings. We therefore reverse the
judgment of the Appellate Division.
I.
Christina Silviera-Francisco was hired by the Elizabeth
Board as a teacher in September 2001. In early 2006, Silviera-
Francisco received a Certificate of Eligibility for the position
of principal. Effective September 1, 2006, she was appointed to
the position of interim vice-principal at a middle school. Soon
thereafter, she assumed the position of vice-principal at the
same middle school and remained in that position through the
2006-07 school year.
3
On September 10, 2007, Silviera-Francisco transferred to
Thomas Jefferson House of Elizabeth High School as vice-
principal.1 On January 9, 2008, Silviera-Francisco was issued a
Provisional Certificate-Principal backdated to November 2007.
By July 2009, Silviera-Francisco had completed all of the
technical requirements to receive a Standard Certificate-
Principal.
For the 2009-10 school year, Silviera-Francisco held the
position of Interim Principal2 of Thomas Jefferson House of
Elizabeth High School. In March 2010, the Assistant
Superintendent of Schools recommended Silviera-Francisco for
appointment as Principal of Thomas Jefferson House for the 2010-
11 school year. Silviera-Francisco signed and returned the
contract presented to her.
In June 2010, the Elizabeth Board instituted a RIF
abolishing the position of vice-principal throughout the
district. Silviera-Francisco, who was serving as Interim
Principal, did not receive notice that the RIF affected her.
Nevertheless, she was summoned by the Superintendent of Schools,
who informed her that she was being returned to the classroom.
The Superintendent explained that a school was being closed and
that the principal of that school would move as principal to
1 This position is also referred to as Assistant House Director.
2 This position is also referred to as Interim House Director.
4
another school because that administrator had more seniority
than Silviera-Francisco. The Superintendent acknowledged that
Silviera-Francisco’s last tenured position was as vice-
principal, but stated that she could not return to that position
because that position had been eliminated.
Soon thereafter, the Assistant Superintendent of Schools
contacted Silviera-Francisco and asked her to forward her
Standard Certificate-Principal to human resources. Because
Silviera-Francisco had never received that certificate, she
contacted the Department of Education (DOE). She was informed
that the certificate had not been forwarded to her because she
had not paid the $200 fee and had not submitted an application.
The Director of the Office of Certification and Induction of the
DOE instructed her that an application would be sent to her and
that she should return it and a $200 check to the DOE.
Silviera-Francisco was also informed that she was in good
standing for the next school year because the DOE recognized the
effective date of her Standard Certificate-Principal as
September 2009.
II.
On July 14, 2011, Silviera-Francisco filed a petition3 with
the DOE to establish her tenure rights. See N.J.S.A. 18A:3B-
3 On July 20, 2010, Silviera-Francisco filed a complaint in
Superior Court in which she claimed that she had been demoted
5
6(f), 6-9.4 Silviera-Francisco’s petition was transferred to the
OAL as a contested case.
Following a hearing, an ALJ issued an Initial Decision
concluding that the DOE decision to make Silviera-Francisco’s
Standard Certificate-Principal retroactive to September 2009 was
ultra vires. The ALJ found that Silviera-Francisco was eligible
to receive her Standard Certificate-Principal in September 2009
because she met all of the necessary requirements for
certification. However, the ALJ found that the delay in
perfecting her certification was attributable to Silviera-
Francisco’s failure to file the application and pay the fee in a
timely manner. The ALJ determined that the Coordinator in the
Office of Certification and Induction lacked the statutory or
regulatory authority to backdate Silviera-Francisco’s
certificate. The ALJ therefore concluded that Silviera-
Francisco did not earn time toward her tenure as a principal
during the 2009-10 school year while serving as a provisional
principal. The ALJ recommended that the petition should be
dismissed.
due to pregnancy contrary to the Law Against Discrimination
(LAD). See N.J.S.A. 10:5-12 (prohibiting discrimination in
employment due to pregnancy). The Superior Court action was
stayed pending resolution of the administrative proceeding.
4 As of the 2012-13 school year, a controversy or dispute arising
from dismissal or reduction in compensation of tenured persons in
a public school system is referred to an arbitrator. See L. 2012,
c. 26 §§ 4, 28.
6
The Commissioner rejected the ALJ's Initial Decision. In
his September 14, 2012 decision, the Commissioner determined
that the ALJ did not have jurisdiction to hear and decide a
challenge to the agency action. Rather, the Commissioner
determined that such a challenge should be heard in the
Appellate Division. The Commissioner further found that in the
context of a petition to determine whether a principal had
achieved tenure, the DOE was a necessary party but had never
been joined as a party. The Commissioner emphasized that the
dispute before the DOE was limited to a determination whether
Silviera-Francisco obtained tenure as a vice-principal, not a
challenge to the DOE certification process. Holding that
Silviera-Francisco received her Standard Certificate–Principal
on August 11, 2010, that the certificate was effective September
2009, and that the certificate was valid on its face, the
Commissioner remanded the matter to the OAL to determine
Silviera-Francisco’s tenure and seniority rights in accordance
with the presumptively valid certificate issued by the DOE.
On remand, the parties stipulated that if the ten months
between September 2009 and June 2010 counted towards tenure as a
vice-principal, Silviera-Francisco had attained tenure and
should have returned to a classroom teacher position with the
salary of a vice-principal.
7
In accordance with the parties’ stipulation, the ALJ
concluded that Silviera-Francisco acquired tenure as a vice-
principal before the RIF. In a decision dated April 17, 2013,
the Commissioner adopted the ALJ’s Initial Decision on remand
and granted Silviera-Francisco’s petition to be reinstated as a
vice-principal by the Elizabeth Board and paid the difference
between her salary as a teacher and as a vice-principal
retroactive to June 2010. The Elizabeth Board filed a timely
notice of appeal in the Appellate Division.
The Elizabeth Board’s argument on appeal focused entirely
on the Commissioner’s September 14, 2012 decision that rejected
the Initial Decision of the ALJ and remanded to the OAL for
calculation of Silviera-Francisco’s tenure and seniority rights.
The appellate panel declined to review that decision for two
reasons. First, the Elizabeth Board did not identify the 2012
decision as the subject of the appeal in its Notice of Appeal.
Second, the panel determined that the Commissioner’s 2012
decision was a final decision from which the Elizabeth Board had
a right to appeal when it was issued. The panel proceeded to
affirm the decision of the Commissioner substantially for the
expressed reasons in the Commissioner’s April 2013 final
decision.
8
This Court granted the Elizabeth Board’s petition for
certification. Silviera-Francisco v. Bd. of Educ. of Elizabeth,
220 N.J. 207 (2014).
III.
The Elizabeth Board argues that the September 2012 decision
of the Commissioner was an interlocutory order from which there
was no right to appeal. It therefore contends that the
Appellate Division erred when it treated the 2012 decision as a
final decision of an administrative agency from which the
Elizabeth Board could have filed a notice of appeal as of right.
The Elizabeth Board also maintains that the Appellate Division
raised the issue of whether the 2012 order was interlocutory or
final without notice to it and without providing an opportunity
to address the issue. It therefore insists that the appellate
panel deprived it of its right to due process.
Silviera-Francisco responds that the Commissioner’s 2012
decision clearly advised the parties that the decision was a
final order subject to appeal. Silviera-Francisco contends that
the Elizabeth Board waived its right to appeal the September
2012 decision when it failed to file a notice of appeal from
that decision. She also maintains that the appellate panel did
not err in raising an issue that affected its jurisdiction for
the first time during oral argument.
9
The Commissioner contends that the Appellate Division
properly determined that the scope of its review was limited to
the Commissioner’s April 17, 2013 final decision and did not
encompass any issues addressed in the Commissioner’s September
2012 decision.
IV.
Judicial review of administrative agency action is a
constitutional right. See N.J. Const. art. VI, § 5, ¶ 4. Rule
2:2-3(a)(2) also authorizes an appeal as of right to the
Appellate Division from final decisions or actions of any state
administrative agency or officer and to review the validity of
any rule promulgated by a state administrative agency with the
exception of certain tax matters. In the absence of a final
judgment or order considered final by rule or law, an appeal
from an interlocutory order or decision may only be taken by
leave granted by the Appellate Division. R. 2:2-3(b).
Whether a trial court order is final or interlocutory has
bedeviled courts and attorneys for decades. See generally
Robert A. Clifford, Civil Interlocutory Appellate Review in New
Jersey, 47 Law & Contemporary Probs. 87 (1984); Mark A.
Sullivan, Interlocutory Appeals, 92 N.J.L.J. 161 (1969).
Generally, an order is considered final if it disposes of all
issues as to all parties. Petersen v. Falzarano, 6 N.J. 447,
452-53 (1951); In re Donohue, 329 N.J. Super. 488, 494 (App.
10
Div. 2000) (citations omitted). Thus, in a multi-party, multi-
issue case, an order granting summary judgment, dismissing all
claims against one of several defendants, is not a final order
subject to appeal as of right until all claims against the
remaining defendants have been resolved by motion or entry of a
judgment following a trial. McGlynn v. State, 434 N.J. Super.
23, 29 (App. Div.) (citing Yuhas v. Mudge, 129 N.J. Super. 207,
209 (App. Div. 1974)), certif. denied, 217 N.J. 589 (2014).
The same principle pertains to orders and decisions of
state administrative agencies. In re CAFRA Permit No. 87-0959-
5, 152 N.J. 287, 299 (1997); Donohue, supra, 329 N.J. Super. at
494. Another feature of a final agency decision is the absence
of or exhaustion of “all avenues of internal administrative
review.” Bouie v. N.J. Dep’t of Cmty. Affairs, 407 N.J. Super.
518, 527 (App. Div. 2009). A final agency decision has also
been described as one in which the agency communicates with
“unmistakable written notice the finality” of its decision.
CAFRA Permit, supra, 152 N.J. at 301.
Notwithstanding those principles, parties’ failure to
properly categorize agency action as interlocutory or final
recurs with some regularity. See generally Pressler & Verniero,
Current N.J. Court Rules, comment 3.3 on R. 2:2-3 (2016). The
Court in CAFRA Permit, supra, analyzed the issuance of a permit
by the Department of Environmental Protection (DEP) to identify
11
the indicia of a final agency action in the context of permits
issued. 152 N.J. at 301-03. The Court explained that an
initial permit that contained a waiver of certain regulations
and a plethora of conditions was a final agency action. Ibid.
Similarly, when the developer sought, and the DEP permitted, a
subsequent modification of the permit, the Court stated that the
numerous conditions and the accompanying voluminous factual
findings signified that the agency had issued a final decision
that triggered the time for filing a notice of appeal of the
modified permit. Ibid. The objector therefore was barred from
challenging the waiver of certain regulations included in the
initial permit and maintained in the modified permit, because it
failed to appeal the issuance of the initial permit. Id. at
204-06. In contrast, a permit issued by an agency, which was
required to be referred for review by another agency, could not
be considered a final agency action until the other agency
conducted its review and the issuing agency accepted, rejected,
or modified the recommendation of the other agency. In re N.J.
Dep’t of Envtl. Prot. Conditional Highlands Applicability
Determination, Program Interest No. 435434, 433 N.J. Super. 223,
234-35 (App. Div. 2013).
The Appellate Division addressed the final versus
interlocutory distinction in Donohue, supra, in a context
strikingly similar to the procedural course presented in this
12
appeal. 329 N.J. Super. 488. In Donohue, rate analysts
employed by the DEP, who had been employed initially by the
Board of Public Utilities (BPU), were affected by a RIF and
sought to expand their demotional rights to the BPU. Id. at
491-92. They filed a petition with the Merit System Board and
the Commissioner of Personnel5 to relax a rule that confined
their demotional rights to the department that employed them at
the time of a RIF. Id. at 492. In the alternative, they sought
reassignment or transfer to other positions in the DEP to lessen
the possibility of future layoffs. Ibid. The Commissioner of
Personnel declined to relax the rule but ordered a
classification review of their titles. Id. at 492-93.
The agency conducted a classification review but denied the
request for reclassification. Id. at 493. The employees sought
reconsideration and then filed another appeal when they received
layoff notices. Id. at 493-94. In their appeal, the laid-off
rate analysts renewed their request to relax the rule defining
the layoff unit. Id. at 494. When the Commissioner of
Personnel denied relief, the terminated rate analysts filed
their appeal in the Appellate Division. Ibid.
5 Effective June 30, 2008, all responsibilities of the Merit
System Board and the Department of Personnel were assumed by the
Civil Service Commission. N.J.S.A. 11A:11-1, 2.
13
Referring expressly to the employees’ efforts to avoid
being laid off and their subsequent termination because the
Commissioner of Personnel refused to relax the rule defining the
layoff unit, the Appellate Division rejected the Commissioner of
Personnel’s contention that the employees should have filed a
notice of appeal from the Commissioner of Personnel’s initial
decision. Ibid. The appellate panel regarded the DEP
Commissioner’s initial decision as interlocutory because the
employees’ alternative request for reclassification remained
open. Ibid. Indeed, the panel observed that any appeal from
the Commissioner of Personnel’s first decision would have been
dismissed as an appeal from an interlocutory decision. Ibid.
The panel further stated that “[t]he Commissioner [of
Personnel]’s decision was not final because it left
unadjudicated appellant’s request for reclassification.” Id. at
495.
Final agency action is also characterized by findings of
fact, conclusions of law, a definitive ruling, and a clear
statement that the interested party may seek review of the
decision and the manner in which that may be accomplished.
DeNike v. Bd. of Trs., Emps. Ret. Sys. of N.J., 34 N.J. 430,
435-36 (1961). Thus, a letter without those necessary elements
and written in terms that caused the Court to consider the
letter no more than “a polite refusal” by the agency to change
14
its previously stated position could not be considered final
agency action for purposes of triggering a right to appeal. Id.
at 436.
Finally, a remand order from an agency to the OAL for
further consideration is by its very nature interlocutory. See,
e.g., Dir., Office of Workers’ Comp. Programs v. Bath Iron Works
Corp., 853 F.2d 11, 14 (1st Cir. 1988) (“Because the Board did
not purport definitively to resolve the controversy between the
parties, but instead remanded to the ALJ for further
proceedings, the present order did not close out the case. No
legal consequences flowed directly and inexorably from it. To
the contrary, the order contemplated that something further
needed to be done.”); see also CH2M Hill Cent., Inc. v. Herman,
131 F.3d 1244, 1246 (7th Cir. 1997) (reviewing prior cases that
held “remand to the ALJ is not an order ‘directing other
appropriate relief’” and concluding that “the prevailing wisdom
is correct”); Cooper Stevedoring Co. v. Dir., Office of Workers’
Comp. Programs, 826 F.2d 1011, 1014 (11th Cir. 1987) (per
curiam) (“[R]emand of a . . . claim to an ALJ for further
findings of fact is not an appealable order.”); S.C. Baptist
Hosp. v. S.C. Dep’t of Health & Envtl. Control, 353 S.E.2d 267,
270 (S.C. 1987) (“An agency decision which does not decide the
merits of a contested case, but merely remands to the Department
for further action is not a final agency decision subject to
15
judicial review.”). Indeed, Judge Lefelt emphasizes that “[a]
party who is particularly upset with a remand [to an ALJ] must
seek leave to appeal in the Appellate Division.” See 37 New
Jersey Practice, Administrative Law and Practice § 6.20, at 334
(Steven L. Lefelt et al.) (2d ed. 2000).
Many disputes concerning the interpretation and application
of the education laws, N.J.S.A. 18A:1-1 to 76-4, are referred to
and resolved by the Commissioner. N.J.S.A. 18A:6-9. Questions
have arisen concerning whether a particular decision rendered by
the Commissioner is interlocutory or final agency action. One
of the indicia of final agency action is whether a decision is
subject to further review within the agency including review by
the Commissioner, or whether the matter has been referred to the
OAL for further action. Thus, where the Legislature has
declared that the Commissioner is the final agency decision-
maker on a charter school application, see N.J.S.A. 18A:36A-
4(c), a decision rejecting or approving a charter school
application by the Commissioner is a final agency decision. In
re Proposed Quest Acad. Charter Sch., 216 N.J. 370, 383 (2013).
Similarly, when the DOE adopts a regulation that makes no
provision for an appeal of a decision issued by a unit of the
department to the Commissioner or the State Board of Education,
the decision issued by that unit of the DOE is final agency
action and is appealable as of right pursuant to Rule 2:2-
16
3(a)(2). Bd. of Educ. of Lenape Reg’l High Sch. Dist. v. N.J.
State Dep’t of Educ., 399 N.J. Super. 595, 605 (App. Div. 2008)
(holding that decision of Office of Special Education Programs
is final agency decision). In addition, when neither the
Legislature nor the DOE directed that the decision of a board of
review is reviewable by the Commissioner or the State Board of
Education, a decision by the board of review is properly
considered final agency action from which an appeal may be filed
as of right. Winslow Twp. Bd. of Educ. v. Bd. of Review, 275
N.J. Super. 206, 210 (App. Div. 1994).
When a party appeals from a final judgment, the party may
seek review of interlocutory orders that have not been rendered
moot or definitively ruled upon by an appellate court in a prior
or separate appeal. See Elmora Hebrew Ctr., Inc. v. Fishman,
239 N.J. Super. 229, 232 (App. Div. 1990), aff’d, 125 N.J. 404
(1991). An interlocutory order is preserved for appeal with the
final judgment or final agency decision if it is identified as a
subject of the appeal. In re Carton, 48 N.J. 9, 15 (1966).
That may be done in the notice of appeal or the case information
statement. Synnex Corp. v. ADT Sec. Servs. Inc., 394 N.J.
Super. 577, 588 (App. Div. 2007) (permitting consideration of
order granting partial summary judgment identified in case
information statement); Sikes v. Twp. of Rockaway, 269 N.J.
Super. 463, 465-66 (App. Div.) (declining to review trial ruling
17
not identified in notice of appeal), aff’d o.b., 138 N.J. 41
(1994). Failure to identify an interlocutory order may be
considered a waiver of any objection to that order. Sikes,
supra, 269 N.J. Super. at 465-66. Jurisdiction is an issue that
a court may raise at any time. Pressler & Verniero, supra,
comment 1.2.4 on R. 2:8-2. When a court recognizes that it
lacks jurisdiction, such as when it recognizes that the appeal
is not from a final judgment or final agency action, it may
dismiss the appeal. Ibid. Notice and an opportunity to respond
to an issue raised by a party or a court are fundamental
elements of due process and a fair hearing. Mettinger v. Globe
Slicing Mach. Co., 153 N.J. 371, 389 (1998). Therefore, a court
that recognizes a jurisdictional defect should notify the
parties and permit them to address the issue of the court’s
jurisdiction. N.J. Office of Emp. Relations v. Commc’n Workers
of Am., 154 N.J. 98, 108 (1998).
V.
Silviera-Francisco filed a petition with the DOE to
establish her tenure rights. The Elizabeth Board interjected
the issue of the legitimacy of a DOE practice of backdating
certificates to the date of application or the commencement of
the school year in which certification is granted or the
certificate is issued. The Initial Decision of the ALJ did not
address directly the tenure rights of Silviera-Francisco and
18
therefore did not resolve the question posed by Silviera-
Francisco in her petition. The Commissioner rejected the
Initial Decision submitted by the ALJ and remanded the petition
to the OAL for the ALJ to make findings of fact and conclusions
of law on the single and narrow issue presented in the petition.
The need for further administrative proceedings is a strong
indicator that the Commissioner’s 2012 decision was not a final
agency decision. See Donohue, supra, 329 N.J. Super. at 494-95.
The single and narrow issue presented in the petition filed by
Silviera-Francisco remained unresolved. Because the decision
failed to resolve any issue presented in the petition, the
Commissioner’s September 2012 decision remanding the matter to
the OAL must be considered an interlocutory order. Appellate
Division jurisdiction could therefore only be secured by
submission and grant of a motion for leave to appeal.
To be sure, the Commissioner’s September 2012 decision
contained language that a party that disagreed with his decision
could file an appeal. We decline, however, to permit the agency
to confer jurisdiction on the Appellate Division when the
substance of the decision plainly and unequivocally provides
that a final decision on the petition has not been entered. The
Commissioner’s September 2012 decision remanding the matter to
the OAL, if appealed, would have been subject to a motion to
dismiss for lack of jurisdiction.
19
We also determine that the failure by the Elizabeth Board
to seek leave to appeal or to identify the September 2012
decision of the Commissioner by date in its Notice of Appeal
cannot be considered a waiver of its right to review that
earlier, interlocutory order in the context of this case. The
Elizabeth Board clearly identified the September 2012 decision
in the Case Information Statement submitted with its Notice of
Appeal. The text of the Elizabeth Board’s summary in the Case
Information Statement of the decision that was the subject of
the appeal plainly refers to the September 2012 decision that
rejected the Elizabeth Board’s defense to the petition and
remanded the matter to the OAL for further proceedings
consistent with the Commissioner’s decision. While it may have
been better practice to identify the September 2012 decision by
date, Silviera-Francisco and the appellate panel had sufficient
notice that the Elizabeth Board sought to overturn the
Commissioner’s initial decision in this matter. Synnex Corp.,
supra, 394 N.J. Super. at 588.
Finally, no party may confer jurisdiction on an appellate
tribunal simply by filing a notice of appeal. No agreement
between or among parties may confer jurisdiction on the
Appellate Division in the absence of a final order, Hudson v.
Hudson, 36 N.J. 549, 553 (1962), and the Appellate Division has
repeatedly admonished parties for attempting to disguise an
20
interlocutory order or orders as final for purposes of pursuing
an appeal as of right, see Grow Co. v. Chokshi, 403 N.J. Super.
443, 461 (App. Div. 2008); CPC Int’l, Inc. v. Hartford Accident
& Indem. Co., 316 N.J. Super. 351, 365-66 (App. Div. 1998),
certif. denied, 158 N.J. 73 (1999). To that end, an appellate
tribunal always has the authority to question whether its
jurisdiction has been properly invoked. See R. 2:8-2. When an
appellate tribunal identifies a pending appeal that may be from
an interlocutory order for which leave has not been granted, the
better practice is always to notify the parties and to permit
them to comment on the issue rather than dismissing the appeal
or declining to review a fully briefed issue without notice to
the parties of the jurisdictional issue. Office of Emp.
Relations, supra, 154 N.J. at 108.
VI.
Having concluded that the September 2012 decision of the
Commissioner was an interlocutory order from which there was no
right to appeal, that the Elizabeth Board did not waive its
right to appeal that order once a final agency decision
addressing all issues raised in Silviera-Francisco’s petition
was issued on April 17, 2013, and that the Elizabeth Board has
not had a full and fair opportunity to have the merits of its
objections considered, we reverse the judgment of the Appellate
Division affirming the Commissioner’s 2013 order and remand for
21
consideration of the issues presented by the Elizabeth Board in
its appeal.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUDGE CUFF’s opinion. JUSTICE
FERNANDEZ-VINA did not participate.
22
SUPREME COURT OF NEW JERSEY
NO. A-28 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
CHRISTINA SILVIERA-FRANCISCO,
Petitioner-Respondent,
v.
BOARD OF EDUCATION OF THE CITY OF
ELIZABETH, UNION CITY,
Respondent-Appellant.
DECIDED January 27, 2016
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6