By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appeal and Appellate Law Attorney

Today, I want to discuss a rather obscure topic and one you’re least likely to be aware of- appealing the decision of an administrative agency (aka the fourth branch of government).

So what is an administrative agency?  It is any type of agency that is run by the executive branch of the state government.  The Department of Human Services is an agency.  For those of you that are covered by Medicaid, you may have dealt with an administrative agency.  The Department of Environmental Protection, which issues construction and other land use permits, is an administrative agency.  These are all run by Commissioners appointed by the Governor and approved by the New Jersey Senate.  If you dispute a determination by an agency, you usually cannot use the traditional litigation process to resolve your dispute.  Instead you must use the administrative appeal process.

So how does it work?  Let us pretend you are denied benefits from the Board of Social Services through Medicaid.  You file a notice of appeal with the agency stating the reason why you think the denial of benefits was incorrect.  The case is then brought before an administrative law judge (ALJ) in what is called a “fair hearing”.  This judge is not your typical black-robed judge you see in a courtroom.  He or she is an employee of another executive agency whose sole purpose is to hear these agency disputes.  In our case, this judge would listen to your arguments as to why you should get benefits, and listen to the arguments from the agency as to why you do not qualify for benefits.  Like any other judge, the ALJ will make findings of fact, apply the regulations at issue, and make a determination about benefits.

The Division that oversees the agency then reviews the ALJ’s determinations, findings of fact, and how he or she applies the regulations and either adopts the conclusion or rejects it.  The Commissioner, or his designee, is bound to the findings of fact made by the ALJ, but can overturn the conclusion if he or she feels the regulations were not applied properly.

So let us say you have your fair hearing, the ALJ upholds the denial, and the Commissioner of Human Services adopts the denial of benefits.  Your recourse is to file a further appeal to an actual judicial court- the Superior Court, Appellate Division, where they will review the decision.  But, like many appellate courts, the court is constrained in how it may review decisions.  The court only intervenes and reverses an agency if the action taken is inconsistent with the statute the agency was acting on.  The reason for this is that the agency who put out the regulation and the court is not in a position to substitute its view on the law if the agency was attempting to enforce the law.  But a court will intervene if it feels the decision was made arbitrarily, if it was made inappropriately based on the applicable statutes, or if the decision is not supported by substantial credible evidence.

The agency dispute process is similar in many ways to litigating in court, but is not as formal as a court proceeding.  Many other agency disputes are handled by the ALJs, such as whether a child can receive payment by their home school district for tuition in a private school that provides them a special education, or whether a permit in a construction process was denied properly.  No matter your dispute, a lawyer on your side throughout the process is a real plus.

To discuss your NJ Appeal and Appellate Law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.