NOOR MOODNEY VS. DEPARTMENT OF HUMAN SERVICES (DEPARTMENT OF HUMAN…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1808-18T4

NOOR MOODNEY,

          Petitioner-Appellant,

v.

DEPARTMENT OF HUMAN
SERVICES,

     Respondent-Respondent.
___________________________

                    Argued October 6, 2020 — Decided October 16, 2020

                    Before Judges Yannotti and Mawla.

                    On appeal from the New Jersey Department of Human
                    Services.

                    Noor Moodney, appellant, argued the cause pro se.

                    Tanjika Nicole Williams-Parks, Deputy Attorney
                    General, argued the cause for respondent (Gurbir S.
                    Grewal, Attorney General, attorney; Melissa H. Raksa,
                    Assistant Attorney General, of counsel; Shereen R.
                    Youssef, Deputy Attorney General, on the brief).

PER CURIAM
      Petitioner Noor Moodney appeals from a November 20, 2018 final

determination by the New Jersey Department of Humans Services (DHS)

denying his request of a fair hearing before an administrative law judge (ALJ).

We affirm.

      Moodney receives services from the Commission for the Blind and

Visually Impaired (Commission). In April 2017, he submitted a bid to operate

a vending facility in the Hudson County Administration Building, which was

awarded to another bidder.      In May 2017, Moodney sent an email to the

Commission's Executive Director, complaining about the result.             The

Commissioner responded denying the grievance because "[s]ome of the factual

basis of [Moodney's] claims [were] inaccurate" and advised him he was entitled

to file a request for a hearing before an ALJ.

      Moodney did not request a hearing. Instead, in July 2017, he sent emails

to the Acting Commissioner of DHS and the assistant to the Commissioner. He

argued: 1) the winning applicant should not have received an administrative

score because he or she had been working in a location for less than a year; 2)

the interview panel was improperly convened because a field representative was

not a member of the panel; 3) his application was denied for discriminatory

reasons and the Commission requested he withdraw his bid; and 4) the


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Commission dismissed his grievance "without any investigation, review, or fair

hearing."

      On August 8, 2017, the Acting Commissioner responded to Moodney's

emails by letter advising that DHS had reviewed his grievances and was satisfied

the Commission "acted properly and lawfully[,]" and "found no impropriety."

The letter advised the Hudson County vending location was awarded to the

applicant with the highest score and that the winning applicant was an active

licensee. The letter rejected Moodney's argument that the winning bidder should

not have been awarded a score stating "[n]othing in [N.J.A.C. 10:97-7.4]

prohibits [the Commission] from giving the winning applicant an administrative

score because he/she has been working in a location for less than one year." The

Acting Commissioner acknowledged the field representative "should be a

member of the interview panel" pursuant to N.J.A.C. 10:97-7.4, but concluded

there "[wa]s no showing that this adversely affected the award process. Indeed,

the make-up of the interview panel was identical for each of the applicants."

The letter found no evidence race had played a role or that the Commission

requested Moodney withdraw his bid and noted there was nothing illegal about

awarding the Hudson County location to another applicant since it was "the

location that [Moodney] vacated upon being awarded a Newark location."


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                                       3
Lastly, the letter noted the Commission previously offered Moodney a fair

hearing before the Office of Administrative Law (OAL) and again advised he

could request a hearing emphasizing "[i]f you wish to have a fair hearing, you

must respond in writing within thirty days of the date of this letter."

      Moodney did not respond to the letter. In January 2018, his vending

license was suspended for thirty days. Moodney appealed the suspension, a

hearing was scheduled before an ALJ, but the matter settled beforehand.

Pursuant to the settlement agreement, Moodney's license was restored and he

was temporarily assigned the vending location in the Martin Luther King

Courthouse in Newark. At the settlement hearing in April 2018, the Deputy

Attorney General representing the Commission noted that awarding Moodney

the Newark vending location "would situate him favorably . . . when another

contract comes up in May at the Hudson County Courthouse.                 There's no

guarantee he gets that contract . . . it's a bidding process and he would be [able

to bid] . . . with an active license."

      In August 2018, Moodney emailed the DHS commissioner requesting an

administrative hearing.      He requested the Commission be enjoined from

awarding the Hudson County location to another applicant, and that it be




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                                         4
compelled to name Moodney the winner of the bid and award him the Hudson

County location. Moodney sent a similar email on September 10, 2018.

      On September 17, 2018, DHS responded and denied the request for a

hearing as untimely because Moodney failed to respond to its August 8, 2017

letter. On September 20, 2018, Moodney sent an additional email and mailed

correspondence requesting a hearing. On November 20, 2018, DHS responded,

confirming its August 8, 2017 letter had set forth its reasoning for rejecting his

grievance and advised him of his right to request an OAL hearing within thirty

days, which he failed to do.

      On appeal, Moodney repeats the arguments raised in his correspondence

with DHS.     He asserts the final decision did not address his claim of

discrimination in the bidding process. He contends the temporary appointment

of another vendor in the Hudson County location turned into a permanent award,

which violated the bidding rules. He argues the current vendor operates at two

locations at once, in violation of regulations requiring vendors to be physically

present at a location. He asserts DHS violated its regulations by not disclosing

the name of the competing vendor.

      Appellate review of an agency action is deferential and limited. In re

Herrmann, 192 N.J. 19, 27 (2007). A "strong presumption of reasonableness


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                                        5
attaches to the actions of the administrative agencies." In re Carroll, 339 N.J.

Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205

(App. Div. 1993)). We are not bound by an agency's interpretation of the law.

Thurber v. City of Burlington, 191 N.J. 487, 502 (2007) (quoting Mayflower

Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We will, however, generally

"afford substantial deference to an agency's interpretation of a statute that the

agency is charged with enforcing." Patel v. N.J. Motor Vehicle Comm'n, 200

N.J. 413, 420 (2009) (quoting Richardson v. Board of Trs., 192 N.J. 189, 196

(2007)). Substantial deference must be extended to an agency's interpretation

of its own regulations, particularly on technical matters within the agency's

expertise. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89

(2004) (citation omitted). We will sustain an administrative agency's decision

"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).

      N.J.A.C. 10:97-8.3(c) states the Commission "shall afford an opportunity

for an [a]dministrative hearing, also known as a [f]ull [e]videntiary [h]earing, to

each operator in accordance with the Administrative Procedure Act [(APA)] . . .

and the Uniform Administrative Procedure Rules [(UAPR)]. . . ." The UAPR


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                                        6
state: "A contested case may be commenced by the agency itself or by an

individual . . . as provided in the rules and regulations of the agency." N.J.A.C.

1:1-3.1(a). The APA states "agencies may place on any party the responsibility

of requesting a hearing if the agency notifies him in writing of his right to a

hearing and of his responsibility to request the hearing." N.J.S.A. 52:14B-9(g).

      Here, it is undisputed that DHS sent Moodney correspondence on August

8, 2017, and re-sent it on September 14, 2017, expressly notifying him of his

right to request a fair hearing in the OAL if he responded within thirty days. We

reject Moodney's argument that his request was timely because the final decision

"ignored entirely [the] 2018 facts[,]" and the Hudson County location case "was

re-opened by [DHS] . . . ." Moodney's grievance arose from the 2017 bidding

process for the Hudson County location, and the grievance was adjudicated with

finality in 2017.

      DHS's adherence to the thirty-day time period for requesting a fair hearing

was not arbitrary, capricious, or unreasonable. For these reasons, we do not

reach the balance of Moodney's arguments as they have been foreclosed , due to

his failure to seek a hearing in the OAL in a timely fashion.

      Affirmed.




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