JOSE VELAZQUEZ VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2115-18T3
JOSE VELAZQUEZ,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
_________________________
Argued telephonically May 26, 2020 –
Decided June 12, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-90216.
Jennifer L. Gottschalk argued the cause for appellant.
Nels J. Lauritzen, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Jeffrey David Padgett,
Deputy Attorney General, on the brief).
PER CURIAM
Petitioner Jose Velazquez appeals from the New Jersey Division of
Pension and Benefits (Division) final decision affirming the Police and
Fireman's Retirement System (PFRS) Board of Trustees' (Board) rejection of his
appeal from a March 11, 2014 determination he is not eligible to file an
application for an accidental disability retirement allowance because he was not
a member in service. The Division concluded Velazquez's appeal, which was
filed four years after the March 11, 2014 determination he was not eligible to
file the application, was time-barred under N.J.A.C. 17:1-1.3(b). We agree and
affirm.
I.
Velazquez first enrolled in PFRS in 2000, when he became employed by
the Camden County Department of Corrections. Less than a year later, he
became employed by the City of Camden as a police officer, and transferred his
enrollment in PFRS under his new position.
In August 2005, Velazquez applied for an accidental disability retirement
allowance, to be effective September 1, 2005. The application sought an
accidental disability retirement allowance based on a work-related incident that
occurred nine months earlier on December 5, 2004. Velazquez subsequently
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changed his retirement date to February 1, 2006, and, later, requested a change
of his retirement date to August 1, 2006. On July 17, 2006, Velazquez cancelled
his planned retirement and was advised "if and when [he] decide[d] to retire, it
[would] be necessary for [him] to file a new retirement application." Velazquez
returned to full duty as a police officer on September 26, 2006.
On January 22, 2007, the Camden police department suspended Velazquez
with pay for violating the department's rules and regulations. More particularly,
Velazquez was suspended because the Camden County Prosecutor determined
Velazquez could not possess a weapon for any purpose as the result of a
domestic violence incident. Following an initial hearing, Velazquez was
suspended on March 14, 2007, without pay pending the outcome of a
departmental hearing.
Velazquez subsequently obtained other public employment and, as a
result, became enrolled in the Public Employees' Retirement System on
September 1, 2008. In November 2008, the Board advised Velazquez his PFRS
account would expire on March 31, 2009, because he last contributed to his
PFRS account in March 2007.
On October 6, 2011, Camden terminated Velazquez from his position as
a police officer. Velazquez appealed the termination of his employment to the
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Civil Service Commission, and subsequently filed separate civil litigation
related to the termination of his employment. When his employment with
Camden ended on October 6, 2011, Velazquez had no pending application for
an accidental disability retirement before the PFRS.
On November 19, 2012, Velazquez submitted a new application to PFRS
for an accidental disability retirement allowance based on the same December
5, 2004 incident for which he sought the allowance in his August 2005
application. By letter dated November 27, 2012, the Division notified
Velazquez that it determined he "did not file [his] application within
five . . . years from the date of the [December 5, 2004] accident that caused the
alleged disability," and that the Board could not consider the application unless
Velazquez demonstrated the failure to file the application within the five-year
period was "due to a delayed manifestation of the disability or to circumstances
beyond [his] control." The Division further advised that if the necessary
documentation supporting the late filing was not provided within six ty-days,
Velazquez's application would be cancelled.
Velazquez's then-counsel sent a December 19, 2012 letter to the Division,
advising he was in the process of obtaining medical documentation to support
the filing of the application more than five-years after the December 5, 2004
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incident, and he requested additional time to obtain the information. In a
February 8, 2013 letter to Velazquez's counsel, the Board acknowledged receipt
of the request for "additional time to submit the appropriate documentation on"
Velazquez's behalf, but noted that no information or documentation had been
supplied. The Board requested that counsel notify it within ten days whether he
intended to submit additional information or wished to close the matter. The
record is devoid of any evidence the requested additional information was ever
supplied.
In response to an inquiry made by Velazquez, the Division notified him
in a January 28, 2014 letter that his November 2012 application for an accidental
disability retirement allowance was rejected because he was removed from his
position on October 6, 2011, and, therefore, he was not a member in service
when the application was filed. The letter, which was also sent to Velazquez's
counsel, informed him of his right to appeal from the decision to the Board.
Velazquez appealed.
In a March 11, 2014 letter decision addressed to Velazquez's counsel, the
Board explained Velazquez's employment with the Camden police department
terminated on October 6, 2011, and he did not file his application for an
accidental disability retirement allowance until November 2012. The Board
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found Velazquez was not a member in service under N.J.A.C. 17:4-6.7 when he
filed his application, and, therefore, the application was denied in accordance
with N.J.S.A. 43:16A-7, which permits the filing of an application for an
accidental disability retirement allowance by "a member-in-service." The Board
also denied the application because it was not supported by two medical reports
as required by N.J.A.C. 17:4-6.1(d).
The decision also notified Velazquez that if he disagreed with the Board's
decision, he had forty-five days to submit a written statement to the Board
setting forth the reasons for his disagreement with its decision. The decision
further advised that "[i]f no such written statement is received within the [forty-
five-day] period, the determination of the Board shall be final." The forty-five-
day time period ended on April 26, 2014.
Velazquez did not file the required written statement appealing the
Board's decision by April 26, 2014, and, indeed, he waited more than four years
to challenge the Board's March 11, 2014 determination. In a March 13, 2018
letter to the Board, Velazquez's new counsel requested that her letter be
"consider[ed] . . . an appeal" from the Board's March 11, 2014 decision denying
Velazquez's application for an accidental disability retirement. The letter also
noted Velazquez's appeal from Camden's termination of his employment had
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been resolved on March 5, 2018, in the Office of Administrative Law with
Velazquez's withdrawal of his appeal without prejudice. 1
On July 9, 2018, Velazquez and his counsel appeared before the Board,
and requested that it permit an out-of-time appeal of the Board's March 11, 2014
decision. Velazquez's counsel presented written submissions and exhibits to the
Board supporting the request.
In a July 11, 2018 letter decision, the Board noted that it considered
Velazquez's submissions, and it explained he waited "almost four years beyond
the regulatory timeframe permitted" under N.J.A.C. 17:1-1.3(b) to file his
appeal. The Board determined Velazquez failed to present good cause
permitting a relaxation of the timeframe for the filing of the appeal, and it denied
his request that the Board consider his appeal from its March 11, 2014 decision.
The Board later denied Velazquez's request for reconsideration of its
decision and rejected his request for a hearing in the Office of Administrative
Law, finding there were no facts in dispute requiring a hearing. The Board also
1
The record on appeal includes limited correspondence related to his appeal to
the Civil Service Commission from Camden's termination of his employment,
as well as some orders entered in the proceedings by the Office of
Administrative Law. We discern from the limited information provided that
there were numerous procedural issues and delays during the proceedings which,
at least in part, explain the lengthy pendency of that matter.
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directed that the Board secretary prepare a draft of "detailed Findings of Fact
and Conclusions of Law that will . . . become the Board's final administrative
determination" upon its formal adoption by the Board. It appears the Board
adopted Findings of Fact and Conclusions of Law denying Velazquez's request
for reconsideration and for a hearing on December 10, 2018. 2
Velazquez appealed from the Board's decisions. In its final agency
determination, the Division found the Board's March 11, 2014 decision advised
Velazquez and his counsel that an appeal from a denial of his application must
be filed within forty-five days. The Division further found the Board was not
informed Velazquez had appealed the termination of his employment with
Camden until his current counsel mentioned that fact in her March 13, 2018
letter requesting permission to appeal from the Board's March 11, 2014 denial
of his application. The Division determined Velazquez was aware the appeal of
his termination was pending in March 2014, and, in support of his request that
the Board accept an appeal filed four years beyond the regulatory deadline,
Velazquez did "not present new, previously unavailable information" and did
2
The Findings of Fact and Conclusions of Law adopted by the Board on
December 10, 2018, are not included in the record on appeal. See R. 2:6-1(a)(1)
(stating the appendix "shall contain . . . such other parts of the record . . . as are
essential to the proper consideration of the issues").
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not demonstrate "good cause to reopen" the March 11, 2014 decision. The
Division rejected Velazquez's request for leave to appeal out of time. This
appeal followed.
II.
Our "review of administrative agency action is limited. 'An administrative
agency's final quasi-judicial decision will be sustained unless there is a clear
showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record.'" Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206
N.J. 14, 27 (2011) (citations omitted). "A reviewing court 'may not substitute
its own judgment for the agency's, even though the court might have reached a
different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (citation omitted).
"[C]ourts afford substantial deference to an agency's interpretation of a
statute that the agency is charged with enforcing." Richardson v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). "Such deference has
been specifically extended to state agencies that administer pension statutes,"
because "'a state agency brings experience and specialized knowledge to its task
of administering and regulating a legislative enactment within its field of
expertise.'" Piatt v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App.
Div. 2015) (citations omitted). However, "[a]n appellate court, . . . is 'in no way
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bound by the agency's interpretation of a statute or its determination of a strictly
legal issue.'" Richardson, 192 N.J. at 196 (citation omitted). We "apply de novo
review to an agency's interpretation of a statute or case law." Russo, 206 N.J.
at 27.
Under N.J.A.C. 17:1-1.3(b), the Board's March 11, 2014 decision became
final unless Velazquez "file[d] a request for a hearing within [forty-five] days
after the date of the written notice of the decision." Velazquez does not dispute
he received the Board's decision on or about March 11, 2014; he was aware of
the forty-five-day deadline for filing his request for a hearing; and he failed to
file a timely appeal.
Velazquez instead argues the Board and the Division erred because he was
entitled to equitable tolling of the forty-five-day deadline due to "his disabling
PTSD and depression, and his attorneys' collective omissions to act on his behalf
to secure his pension benefits." He claims he "had at least four attorneys
pursuing claims . . . over his suspension and termination" from the Camden
police department, "yet none had completed the cases in [Velazquez's] favor"
and the attorneys either forgot or ignored Velazquez's accidental disability
retirement claim. He also asserts the Board "either misled him or ignored him
about the status of his application and account."
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"Equitable tolling is traditionally reserved for limited occasions." F.H.U.
v. A.C.U., 427 N.J. Super. 354, 379 (App. Div. 2012). A statute of limitations
may be tolled "(1) [if] the defendant has actively misled the plaintiff, (2) if the
plaintiff has 'in some extraordinary way' been prevented from asserting his
rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the
wrong forum . . . ." Ibid.; see also Freeman v. State, 347 N.J. Super. 11, 31
(App. Div. 2002).
Equitable tolling affords relief from "inflexible, harsh or unfair
application of a statute of limitations, but it requires the exercise of reasonable
insight and diligence by a person seeking its protection." Villalobos v. Fava,
342 N.J. Super. 38, 52 (App. Div. 2001). However, "absent a showing of
intentional inducement or trickery by a defendant, the doctrine of equitable
tolling should be applied sparingly and only in the rare situation where it is
demanded by sound legal principles as well as the interests of justice." Freeman,
347 N.J. Super. at 31.
Velazquez makes no showing his failure to timely file his appeal from the
Board's March 11, 2014 decision was the result of trickery or because he was
misled about his appeal rights. He argues the Board misinformed him about the
reason for its rejection of his application for an accidental disability retirement,
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but the March 11, 2014 decision left not room for confusion—it expressly stated
respondent's application was rejected because he was not a member in service
when he filed his application in November 2012 since his employment with
Camden ended in October 2011, and because he failed to provide the required
medical reports. The record also established the Board acted in exacting
compliance with the requirements of N.J.A.C. 17:1-1.3(d); the March 11, 2014
decision included a notice advising Velazquez he was required to file his appeal
from the Board's decision within forty-five days or the decision would become
final.
Moreover, Velazquez failed to present any evidence demonstrating he was
prevented from exercising his right to appeal. See F.H.U., 427 N.J. Super. at
379. He argues in conclusory fashion he is entitled to equitable tolling because
he has PTSD, but he did not present any competent evidence demonstrating his
PTSD prevented him from timely filing his appeal in 2014, or that his PTSD
prevented him from filing an appeal from the March 11, 2014 decision at any
time during the ensuing four years. 3
3
The psychiatric and psychological reports submitted to the Board and Division
in connection with Velazquez's request to file his appeal four years beyond the
deadline are from 2006 and 2013, prior to the issuance of the Board's March 11,
2014 decision. Velazquez did not provide any reports stating that any purported
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The record also is bereft of any evidence showing Velazquez exercised
diligence in pursuing the appeal from the March 11, 2014 decision. As he
acknowledges, equitable tolling requires a plaintiff to "diligently pursue their
claims" because although it "'affords relief from inflexible, harsh or unfair
application of a statute of limitations,' [it] does not excuse claimants from
exercising the reasonable insight and diligence required to pursue their claims."
Freeman, 347 N.J. Super. at 31-32 (quoting Villalobos, 342 N.J. Super. at 52).
Velazquez does not, however, dispute he received the decision, which clearly
advised it would become final if an appeal was not filed within forty-five days.
Yet, he failed to present evidence he took any action to ensure an appeal was
timely filed or pursued over the next four years. In other words, he made no
showing of the requisite diligence in pursing his appeal.
Velazquez faults the purported failures of the numerous attorneys he
employed over the years concerning his employment related issues, the appeal
of his termination, and his application for an accidental disability retirement.
"[I]t has been held that '[i]n non-capital cases, attorney error, miscalculation,
inadequate research or other mistakes have not been found to rise to the level of
illness or disability interfered with his ability to diligently pursue a timely appeal
during the four years following the Board's decision.
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the "extraordinary" circumstances required for equitable tolling.'" Binder v.
Price Waterhouse & Co., 393 N.J. Super. 304, 313-14 (App. Div. 2007) (quoting
Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)). Velazquez relies on the Third
Circuit Court of Appeals's decision in Schlueter v. Varner, for the proposition
that "egregious attorney misconduct may justify equitable tolling." 384 F.3d 69,
77 (3d Cir. 2004). But, the court in Schlueter held "attorney
malfeasance . . . without more, is not sufficient to warrant equitable tolling" of
a statute of limitations. Ibid. A plaintiff "must also show he [or she] acted with
reasonable diligence, and that the extraordinary circumstances caused his [or
her] petition to be untimely." Ibid. (quoting Baldayaque v. United States, 338
F.3d 145, 153 (2d Cir. 2003)); see also Binder, 393 N.J. Super. at 314 (same).
The court in Schlueter rejected the plaintiff's claim his attorney's malfeasance
required the equitable tolling of the statute of limitations because the plaintiff
failed to present evidence he exercised reasonable diligence to ensure his
petition was timely filed. Id. at 78.
The same result is appropriate here. Plaintiff failed to present evidence
he exercised reasonable diligence to pursue a timely appeal from the March 11,
2014 decision. As noted, the record does not disclose any action taken by him
to ensure the timely filing of his appeal. See Binder, 393 N.J. Super. at 314
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(rejecting the assertion the plaintiff's attorney's errors equitably tolled the statute
of limitations because the plaintiff did not show "he acted with reasonable
diligence in filing the state court matter and . . . failed to present a legitimate
reason why his filing was untimely"). We therefore discern no basis to conclude
the Division arbitrarily, capriciously, or unreasonably rejected Velazquez's
claim his appeal from the March 11, 2014 decision was timely based on
equitable tolling grounds.
Velazquez also argues that tolling the time period for the filing of his
appeal from the Board's decision "makes sense" because other litigation he
prosecuted following the termination of his employment, and his appeal to the
Civil Service Commission from the termination of his employment, "could have
favorably resolved [his] employment issues with . . . Camden" and, if
successful, "probably would have protected his PFRS pension." The assertion
does not offer any justification for the failure to timely appeal the Board's March
11, 2014 decision or excuse the abject lack of any diligence by Velazquez in
prosecuting a timely appeal. In addition, as it turns out, Velazquez was n ot
successful in his appeal from Camden's October 2011 termination of his
employment and, as such, it appears there is no basis to challenge the Board's
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March 11, 2011 determination Velazquez was not entitled to apply for benefits
in November 2012 because, at that time, he was no longer a member in service.
We recognize it is "well-settled . . . that since pension laws are remedial
legislation, they must be liberally construed in favor of the persons intended to
be benefitted thereby." Bumbaco v. Bd. of Trs. of Pub. Emps.' Ret. Sys., 325
N.J. Super. 90, 94 (App. Div. 1999). It is also well-settled the Board has the
authority to reopen a decision upon a showing of good cause. Duvin v. State,
Dep't of Treasury, Pub. Emps.' Ret. Sys., 76 N.J. 203, 207 (1978). "[I]n the
absence of legislative restriction," the Board has the inherent power "to reopen
or to modify and to rehear orders previously entered by it." Ibid. However, the
power to reopen, modify, or rehear orders "must be exercised reasonably, and
application seeking its exercise must be made with reasonable diligence." Ibid.;
see e.g., Steinmann v. State, Dep't of Treasury, Div. of Pensions, 116 N.J. 564,
573 (1989) (explaining "the Board may honor a pensioner's request to reopen [a]
retirement selection after it is due and payable if a showing of good cause,
reasonable grounds, and reasonable diligence has been made").
Measured against that standard, we are not convinced the Division's
decision to deny Velazquez's request to file his appeal four years beyond the
deadline was arbitrary, capricious, or unreasonable. Velazquez presented no
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evidence establishing good cause for his long delay in filing his appeal after
being notified in March 2014, that if he failed to file the appeal within forty-five
days the Board's decision became final. He exercised no due diligence in
pursuing the claim during the four-year period, and contrary to his assertions,
there is no evidence he was misinformed or misled about the Board's decision,
his right to appeal, or his obligation to appeal within the forty-five-day deadline.
We are convinced the record lacks any showing of the good cause and due
diligence required to allow the Division to ignore the regulatory deadline.
Velazquez devotes the balance of his brief to arguments concerning the
merits of the Board's March 11, 2014 decision. We need not address those
arguments because Velazquez did not timely appeal to this court from the
Board's decision. See R. 2:4-1(b); R. 2:4-4(a). In addition, Velazquez presently
appeals solely from an order denying his request for leave to file an untimely
appeal from the Board's March 11, 2014 decision. The Division affirmed the
Board's denial of the request, and, therefore, the Division did not address the
merits of Velazquez's challenge to the March 11, 2014 decision. Because we
are convinced the Division correctly denied Velazquez's request to file an
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untimely appeal, we also find it unnecessary to address Velazquez's claims the
Board erred by rejecting his application in 2014.
Affirmed.
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