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 
2

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.
1

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 
2

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 
3

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, SilvieraFrancisco 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. 
4

On September 10, 2007, Silviera-Francisco transferred to 

Thomas Jefferson House of Elizabeth High School as viceprincipal.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 CertificatePrincipal. 

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.
5

another school because that administrator had more seniority 

than Silviera-Francisco. The Superintendent acknowledged that 

Silviera-Francisco’s last tenured position was as viceprincipal, 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 
6

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 SilvieraFrancisco’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 SilvieraFrancisco 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.
7

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. 
8

In accordance with the parties’ stipulation, the ALJ 

concluded that Silviera-Francisco acquired tenure as a viceprincipal 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. 
9

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. 
10

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. 
11

Div. 2000) (citations omitted). Thus, in a multi-party, multiissue 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 
12

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 
13

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.
14

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 
15

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 
16

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 decisionmaker on a charter school application, see N.J.S.A. 18A:36A4(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-
17

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 
18

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 
19

therefore did not resolve the question posed by SilvieraFrancisco 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. 
20

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
21

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 
22

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.
 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 

CHECKLIST REVERSE/

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