Christina Silviera-Francisco v. Board of Education of Elizabeth(074974), 129 A.3d 1032

Background

Christina Silviera‑Francisco, initially a vice‑principal/interim principal, claimed she acquired tenure as a vice‑principal based on a DOE Standard Certificate‑Principal made effective September 2009.
The Elizabeth Board returned her to the classroom after a district RIF that abolished vice‑principal positions; she filed a petition with the Commissioner of Education to establish tenure and seniority.
An OAL ALJ issued an Initial Decision siding with the Board, finding the DOE’s backdating of the certificate ultra vires and recommending dismissal.
The Commissioner (Sept. 14, 2012) rejected the ALJ’s Initial Decision and remanded to the OAL to calculate tenure/seniority in accordance with the DOE certificate; after remand the ALJ and Commissioner concluded she had tenure and ordered reinstatement (Apr. 17, 2013).
The Elizabeth Board appealed the April 2013 final decision to the Appellate Division, which treated the Commissioner’s Sept. 2012 remand order as a final, appealable decision and found waiver because the Board did not previously appeal that 2012 order.
The New Jersey Supreme Court granted certification to resolve whether the Commissioner’s Sept. 2012 decision was final or interlocutory and whether the Appellate Division erred in treating it as final and in raising the jurisdictional issue without notice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Commissioner’s Sept. 14, 2012 decision rejecting the ALJ’s Initial Decision and remanding to the OAL was a final, appealable agency decision	Silviera‑Francisco: the decision stated a party could appeal and thus was final; Board waived by not appealing then	Elizabeth Board: the remand left the core tenure/seniority issue unresolved and thus was interlocutory requiring leave to appeal	The Sept. 2012 decision was interlocutory; finality occurred only after the Commissioner adopted the ALJ’s remand decision in April 2013
Whether failure to seek leave to appeal the Sept. 2012 remand order or to date‑cite it in the Notice of Appeal waived review of that earlier order	Silviera‑Francisco: Board waived by not filing a direct appeal from 2012 order	Elizabeth Board: Case Information Statement sufficiently identified the 2012 decision; no waiver because appeal followed the final April 2013 decision	No waiver; identification in the Case Information Statement preserved review in context of the April 2013 final decision
Whether an appellate court may raise sua sponte a jurisdictional defect (appeal from interlocutory order) without notifying parties and allowing briefing	Silviera‑Francisco: Appellate Division acted properly in raising jurisdictional issue at argument	Elizabeth Board: Raising the issue without notice denied due process and opportunity to be heard	Jurisdiction may be raised at any time, but the better practice is to notify parties and permit them to address the issue before dismissing or declining review

Key Cases Cited

Petersen v. Falzarano, 6 N.J. 447 (finality requires disposing of all issues as to all parties)
DeNike v. Bd. of Trs., Emps. Ret. Sys. of N.J., 34 N.J. 430 (final agency action requires findings, conclusions, definitive ruling, and notice of right to review)
In re CAFRA Permit No. 87-0959-5, 152 N.J. 287 (indicia of final agency action; permit conditions and findings signal finality)
Donohue v. [Commissioner context], 329 N.J. Super. 488 (remand for further administrative action is interlocutory)
In re Proposed Quest Acad. Charter Sch., 216 N.J. 370 (where statute makes Commissioner final decisionmaker, Commissioner’s decision is final)