JOSE BERRIOS v. DEPARTMENT OF COMMUNITY AFFAIRS DIVISION OF HOUSING AND COMMUNITY AFFAIRS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5905-10T4

JOSE BERRIOS,

Plaintiff-Appellant,

v.

DEPARTMENT OF COMMUNITY AFFAIRS,

DIVISION OF HOUSING AND COMMUNITY

AFFAIRS,

Defendant-Respondent.

___________________________________

April 16, 2012

 

Argued March 26, 2012 - Decided

 

Before Judges Grall and Alvarez.

 

On appeal from Superior Court of New

Jersey, Law Division, Cumberland County,

Docket No. L-1151-10.

 

Daniel S. Orlow argued the cause for

appellant (Begelman, Orlow & Melletz,

attorneys; Paul R. Melletz, on the brief).

 

Patricia E. Stern, Deputy Attorney General,

argued the cause for respondent (Jeffrey S.

Chiesa, Attorney General, attorney; Lewis A.

Scheindlin, Assistant Attorney General, of

counsel; Ms. Stern, on the brief).

PER CURIAM

Plaintiff, Jose Berrios, is a former temporary employee of defendant, the Division of Housing and Community Affairs in New Jersey's Department of Community Affairs (Department). He appeals from an order dismissing a complaint he filed in the Law Division claiming entitlement to appointment as a permanent employee and reimbursement for car expenses incurred in the course of performing his duties over a six-month period. For reasons set forth below, we transfer the matter to the Department pursuant to Rule 1:13-4(a).

The Department hired Berrios as a temporary service employee to inspect housing under the Department's jurisdiction. Before commencing his employment on February 5, 2007, Berrios was given and signed a form notice advising that temporary employees have no civil service protection, are not covered by collective bargaining agreements and may be terminated at will and without prior notice. During his employment, two competitive examinations for permanent positions were announced, but Berrios did not apply. Those examinations were held on December 6, 2007, and January 19, 2009.

On October 16, 2009, an attorney representing Berrios and another employee wrote to the Department's personnel office. In that letter, the attorney asserted that his clients had been employed as temporary employees for at least three years and should have been made permanent employees after one year of employment. By letter dated November 25, 2009, the Department's Director of Human Services responded and advised that employees serving in such temporary positions do not obtain permanent status based on service.

On April 1, 2010, Berrios' attorney filed a formal complaint with the Commissioner seeking permanent appointment and payment of mileage charges Berrios was allegedly owed for use of his personal vehicle in the performance of his duties over the past six months. By letter dated April 23, 2010, the Director denied the request for permanent appointment and advised that his "mileage reimbursement requests [were] currently under review by the [Department]."

Berrios took no further action to pursue his claims before the agency. He waited until November 15, 2010, 206 days after the Director denied his request for permanent appointment, to file his civil complaint.

The Department moved to dismiss Berrios' complaint on the ground that the Appellate Division has exclusive jurisdiction to review a state agency action and, in the alternative, on the ground that Berrios had not exhausted his administrative remedies. Accepting the State's position, the trial judge dismissed.

Pursuant to Rule 2:2 3(a)(2), this court has exclusive jurisdiction to review State agency action that is final. Prado v. State, 186 N.J. 413, 422 (2006); N.J. Dental Ass'n v. Metropolitan Life Ins. Co., 424 N.J. Super. 160, 167 (App. Div. 2012). Where a complaint challenging the action or inaction of a State agency is misfiled in the Law Division, the trial court generally should transfer it to this court pursuant to Rule 1:13-4(a) rather than dismiss it. N.J. Dental, supra, 424 N.J. Super. at 167. Similarly, if a state agency has jurisdiction over a claim, the trial court should transfer that claim to that agency. R. 1:13-4(a). Under the same Rule, this court should transfer claims that are within the primary jurisdiction of the state agency. Ibid.

There is an exception that permits a trial court to dismiss a complaint challenging agency action when it was not filed within the time permitted for appeal. See Kohlbrenner Recycling v. Burlington Cty., 228 N.J. Super. 624, 629 (Law Div. 1987); see R. 2:4-1; R. 2:4-4. We cannot conclude that the exception applies here. An agency decision must give unmistakably clear notice of its finality to trigger the forty-five-day period prescribed by Rule 2:4-1(b). Northwest Covenant Medical Center v. Fishman, 167 N.J. 123, 138-39 (2001). The decision in this case did not. To the contrary, Berrios' administrative complaint included two claims, but the decision he received on April 23, 2010 addressed only one and advised that the other was still under consideration. Furthermore, it did not indicate that the decision was final and there is no question that the agency still has not acted to address Berrios' claim for mileage reimbursement. The parties acknowledged that fact during oral argument presented on this appeal.

Because the Department has resolved only one of two claims raised in Berrios' administrative complaint and has not indicated whether its decision on the claim that it did resolve is final, or whether there are other administrative remedies available to Berrios in the Department or another state agency,1 we transfer the matter to the Department pursuant to Rule 1:13-4(a). Upon receipt of this opinion, the Department shall resolve Berrios' outstanding claim for mileage reimbursement and issue a determination on both issues and either identify the administrative remedies available to Berrios or advise him of the finality of its determinations.

The matter is transferred to the Department for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 We mention exhaustion of administrative remedies because the transcript of the trial court's decision indicates that the Department argued that the matter belonged in either the Office of Administrative Law or the Appellate Division.