IN THE MATTER OF JOSE MONTALVO CITY OF CAMDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF JOSE MONTALVO,

CITY OF CAMDEN.

_____________________________________________________________

May 16, 2014

Submitted April 30, 2014 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Civil Service Commission, Docket No. 2012-1721.

Fusco & Macaluso, LLC, attorneys for appellant Jose Montalvo (Brent DiMarco, on the brief).

Anna P. Pereira, Corporation Counsel, attorney for respondent City of Newark (Kenneth G. Calhoun, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Jose Montalvo appeals from the August 2, 2012 final decision of the Civil Service Commission (Commission), denying his request to reinstate the withdrawn appeal of his 120-day suspension and removal. Because appellant has not provided good cause for reinstating the appeal, we affirm.

As background, appellant is a former Newark police officer. In September 2006, the police department served him with two Final Notices of Disciplinary Action suspending him for 120 days and removing him from employment. He appealed the disciplinary action to the Merit System Board (Board),1 (now the Commission) which transferred the matter to the Office of Administrative Law (OAL) as a contested matter. One day before the scheduled January 30, 2008 hearing, appellant's attorney notified the Administrative Law Judge (ALJ) assigned to the case that he was withdrawing his appeal. The matter was returned to the Board, and at its meeting on June 11, 2008, the Board issued a final agency decision directing that the "appeal be withdrawn and that the case be removed from the hearing calendar and considered closed."

Appellant, in turn, filed a complaint in the United States District Court for the District of New Jersey alleging, among other claims, wrongful termination in retaliation for filing an affirmative action complaint. He sought both monetary damages and reinstatement. In August 2011, a jury found that Newark wrongfully terminated appellant for retaliatory reasons, and awarded him a judgment of $700,000. Appellant moved before the District Court for reinstatement of his position as a police officer, which the court denied on August 17, 2011. Appellant appealed the denial of his motion for reinstatement to the Third Circuit in October 2011. On December 12, 2012, the Third Circuit affirmed the verdict and the District Court order denying reinstatement. Montalvo v. City of Newark, 508 F. App'x 175 (3d Cir. 2012).

While the federal appeal was pending, appellant petitioned the Commission to reconsider the administrative appeal withdrawn by the Board in 2008.2 In August 2012, the Commission issued its final decision under N.J.A.C. 4A:2-1.1(a)3 denying appellant's request as untimely because he filed it three years after the Board's 2008 decision. The Commission also denied the request due to appellant's failure to present a sufficient basis to reopen the appeal under N.J.A.C. 1:1-19.2(c).

The Commission recognized N.J.A.C. 1:1-19.2(c) provides a party an opportunity to move to reopen a withdrawn case before the transmitting agency head, but does not specify a timeframe within which such a request must be made. To address this issue, the Commission analogized the regulation to Rule 4:37-1(a), governing voluntary dismissals without prejudice. Under this rule, a party seeking reinstatement of a voluntarily dismissed complaint must show good cause. In denying appellant's request the Commission found:

At the time the petitioner withdrew his appeal, he was represented by an attorney (with the same firm as his current attorney). The record clearly demonstrates that through his attorney, the petitioner voluntarily elected to withdraw his administrative appeal to pursue his removal in District Court[.]

. . . .

It would be prejudicial to the appointing authority to permit the petitioner now to reopen his administrative appeal, almost six years after the disciplinary action in question and over four years after he withdrew, simply because the petitioner's remedies in the District Court litigation were not satisfactory to him.

. . . .

Moreover, the Commission finds that the petitioner was afforded the administrative protections due him. Upon his timely appeal of his suspension and removal, he was granted a hearing at the OAL . . . . [A] state cannot be held to have violated due process requirements when it has made procedural protections available and the plaintiff has simply refused to avail himself of them." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Moreover, the petitioner successfully challenged his removal in District Court as retaliatory. Thus, the merits of his case were heard. It is emphasized that due process does not afford the right to litigate the same question twice.

. . . .

The petitioner is not permitted to forum shop. He has filed an appeal with the Third Court regarding the District Court's denial of his motion for reinstatement. Therefore, relief may be awarded in that forum. Accordingly, the petitioner's request to reinstate his appeal is denied.

[Citations and internal quotation marks omitted.]

On appeal, appellant raises the following claims:

I. THE UNDERLYING INTERESTS OF [APPELLANT'S] CASE PRESENT GOOD CAUSE SUFFICIENT TO JUSTIFY RELAXING THE PROCEDURAL RULES AND REOPENING THE MATTER.

II. [APPELLANT'S] CASE SHOULD BE REOPENED BECAUSE THE OPPOSITION WILL NOT SUFFER PREJUDICE.

III. [APPELLANT'S] CASE SHOULD BE REOPENED BECAUSE IT WOULD BE UNJUST TO PRECLUDE HIS CASE AT THE ADMINISTRATIVE LEVEL BECAUSE HE HAS AN APPEAL BEFORE THE THIRD CIRCUIT COURT OF APPEALS.

Appellant primarily argues the federal jury's favorable verdict on his constitutional claims constitutes good cause to permit his appeal to be reopened in order to consider his claim for reinstatement to his employment. We are not persuaded.

Appellate review of an administrative agency decision, to which there attaches a strong presumption of reasonableness, is limited. In re Herrmann, 192 N.J. 19, 27 (2007). In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Thus, the final decision of an administrative body, such as the Commission should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Ibid.; see also Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). The party opposing the action must demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

Although we must defer to an agency's expertise and superior knowledge of a particular field, we "need not defer to an agency's determination of a question of law not inextricably related to the agency's expertise[,]" Steinmann v. State, Dep't of Treasury, 116 N.J. 564, 576 (1989). Moreover, "[w]hen an agency's decision is manifestly mistaken . . . the interests of justice authorize a reviewing court to shed its traditional deference to agency decisions." P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 530 (1995).

Governed by this standard, we discern no error, much less manifest mistake in the Commission's denial of appellant's motion to rescind his withdrawal and to reinstate his petition. "In the absence of some legislative restriction, administrative agencies have the inherent power to reopen or to modify and to rehear orders that have been entered." Burlington Cnty. Evergreen Park Mental Hosp. v. Cooper, 56 N.J. 579, 600 (1970). This power may be invoked by administrative agencies upon a showing of "good cause[.]" In re Van Orden, 383 N.J. Super. 410, 419 (App. Div. 2006). "Good cause may be established by showing that reopening proceedings would 'serve the ends of essential justice and the policy of the law[.]'" Id. at 421 (quoting Handlon v. Belleville, 4 N.J. 99, 107 (1950)).

Here, appellant has simply failed to establish good cause for reopening his closed case. Appellant freely and knowingly withdrew his appeal after consultation with counsel on the eve of administrative hearing. He chose to forego the administrative protections available to him in State court to pursue his claims in federal court. On appeal, the Third Circuit upheld the jury's verdict and the trial judge's denial of appellant's subsequent motion seeking reinstatement to his former position."

Appellant's contention that his favorable verdict supports reopening the appeal to permit him to pursue his claim for reinstatement anew in an administrative forum is also preluded by the doctrine of collateral estoppel. Collateral estoppel bars relitigation of any issue which was actually determined in a prior action. See, e.g., Gannon v. Am. Home Prods., 211 N.J. 454, 469 (2012). When the prior action is the subject of a prior federal court judgment, the binding effect of that judgment, whether applying principles of res judicata or collateral estoppel, is determined by the law of the jurisdiction that rendered it. Ibid.; Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 411-12 (1991). Here, a federal court rendered the judgment the appellant seeks to apply. Thus, we look to the law of the Third Circuit, to determine the prior judgment's preclusive effect. See Gannon, supra, 211 N.J. at 469; (internal quotation omitted) ("Our conclusion that federal principles must govern the preclusive effect of a federal judgment is grounded in our recognition that cohesion between state and federal courts is necessary for the continuing validity of the federalist system").

The Third Circuit has held that "in order for a judgment to be entitled to be given the effect of collateral estoppel, or issue preclusion, there must be a coalescence of four factors[.]" Id. at 471. These factors have been identified as follows:

(1) the identical issue was decided in a prior adjudication; (2) there was a final judgment on the merits; (3) the party against whom the bar is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the bar is asserted had a full and fair opportunity to litigate the issue in question.

Id. at 471-72 (quoting Del. River Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 574 n.10 (3d Cir. 2002)).

Here, there is no dispute appellant seeks to present to an administrative tribunal the same issues he pursued in both the District Court and the Third Circuit, namely, his claim for reinstatement to his position as a police officer. Appellant had a full and fair opportunity to present his evidence and to have his claims litigated on the merits. There was a final judgment entered denying reinstatement, which judgment was upheld on appeal. Thus, we conclude the Commission reasonably determined appellant may not litigate the case a second time in an administrative forum. Collateral estoppel bars appellant's efforts to do so.

Appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are further satisfied that, under the circumstances, the equities simply do not warrant the relief requested by appellant. Therefore, we discern no error in the Commission's final decision denying the motion to reopen. R. 2:11-3(e)(1)(D).

Affirmed.

1 An Act signed into law on June 30, 2008, provides that the duties of the Merit System Board be transferred to the Civil Service Commission. P.L. 2008, c. 29 (codified at N.J.S.A. 11A:11-1). Our use of the term "Board" will denote actions that took place prior to June 30, 2008.

2 Although appellant requested reconsideration of the withdrawn appeal, that request is technically inaccurate, as the Board never made a decision on the request. We agree with the Commission that the appropriate characterization is one to reopen or reinstate the appeal. For purposes of this opinion, we treat these terms as used in the parties' briefs interchangeably.

3

Under N.J.A.C. 4A:2-1.6(a), a party to an appeal may petition the Commissioner or Board for reconsideration within forty-five days of receipt of a decision.