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April 17, 1980

Alicia VILLINES, Plaintiff,
Patricia HARRIS, Secretary of HEW.

The opinion of the court was delivered by: BIUNNO

This case is a "civil action", begun by complaint in the usual course, for judicial review of a final decision of the Secretary of the Department of Health, Education and Welfare (HEW) denying application for benefits claimed under the Social Security Act, Title 42 U.S.C.

The jurisdiction of the court arises from statute, 42 U.S.C. § 405(g). The provisions of the statute, taken together with the accumulated decisional law, make the action essentially the same in nature and scope as the common law writ of certiorari, a prerogative writ. The action, as well as the rule of decision, is closely analogous to those governing that prerogative writ. The evidence consists of the record of proceedings before the administrative agency. The rule of decision, on review of that record, is whether it contains substantial evidence to support the agency decision in most cases. In some cases, the review may include the question whether the agency decision correctly applied governing law (including rules and regulations), and in others may bring into question the meaning and interpretation of that law, or its validity, or the constitutionality of one provision or another, or of the procedures employed.

 Since the federal courts are not courts of general jurisdiction possessing all the powers of the Kings Bench, the accumulation of precedent in the general field is somewhat nebulous, especially since the law in each of the circuits is controlled by the decisions of the Court of Appeals in the particular circuit until such time as a decision of the Supreme Court of the United States resolves differences between the circuits. *fn1"

 New Jersey's first Constitution, adopted July 2, 1776, terminated its status as an English colony and began its sovereign existence as a State. Art. 22 of that Constitution continued the common law of England in force. That constitution was replaced by the Constitution of 1844, modelled largely in structure and content on the Constitution of the United States. By Art. 10, par. 1, it, too, continued in force the common law, as well as the existing courts of law and equity. So, also, the current Constitution of 1947, by Art. 11, sec. 1, par. 3, continued in force all existing law.

 It was long ago settled that the former Supreme Court, as established by the Constitution of 1844, was vested with all the powers of the Kings Bench, which the Legislature was powerless to cut down, or to assign to other courts. This principle was especially strong in the field of prerogative writs, of which certiorari was the one most frequently sought. See, for example, City of East Orange v. Hussey, 70 N.J.L. 244, 57 A. 1086 (E & A 1904); In re Vice Chancellors, 105 N.J.Eq. 759, 148 A. 570 (Ch. 1930); Flanagan v. Plainfield, 44 N.J.L. 118 (1882).

 The complexities and technicalities involving the prerogative writs, including certiorari, induced the draftsmen of the 1947 Constitution to erase the procedural niceties while preserving the judicial authority and the remedies. This was achieved by a single sentence:

"Prerogative writs are superseded, and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where review shall be discretionary." N.J.Const.1947, Art. 6, sec. 5, par. 4.

 Thus, in New Jersey, where prerogative writ jurisdiction is constitutionally placed in the Superior Court, judicial review of administrative action is afforded as of right, and no statute is needed to provide that review. See Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952).

 With this context, it is easily seen that the "civil action" allowed by the Congress in 42 U.S.C. § 405(g) amounts to a specific statutory authorization for the equivalent of prerogative writ review of final decisions of HEW. By very close analogy, it is the equivalent, in the New Jersey system, of prerogative writ review of the final decisions of State administrative agencies, a remedy procedurally provided by rule through what is called an "appeal" to the Appellate Division of Superior Court under N.J.Const. Rule R.2:2-3(a)(2), although in fact the Appellate Division is exercising original jurisdiction in such cases, rather than truly "appellate" jurisdiction, because the tribunal below is an administrative agency of the executive branch, and not a "court" of any kind in the judicial branch.

 The civil action authorized by 42 U.S.C. § 405(g) is essentially the same, and this court's function is essentially the same.

 A collateral issue has arisen in this case because HEW applied for an extension of time for the filing of answer. Under F.R.Civ.P. 12, agencies of the United States are allowed 60 days to serve and file answer. Under 42 U.S.C. § 405(g), the Secretary "shall", as part of the answer, file a certified copy of the transcript of the agency proceedings. *fn2"

 Plaintiff declined the customary consent to the request for extension, not out of obstinacy but out of what counsel conceives to be essential to preserve the ...

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