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Abulkhair v. State


April 9, 2009


On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0625-08.

Per curiam.


Argued February 25, 2009

Before Judges Waugh and Newman.

Plaintiff Assem A. Abulkhair appeals from the dismissal of his complaint, sounding in negligence and breach of contract, alleging that the State of New Jersey (State) and the Passaic County Board of Social Services (Board) wrongfully withheld $3,407 from benefits he received from the Social Security Administration (SSA). The dismissal was based on the doctrine of res judicata arising out of the fact that Abulkhair had unsuccessfully appealed the withholding of those same funds in Assem Abulkhair v. Passaic County Bd. of Soc. Servs., No. A-1683-05T5 (App. Div. Mar. 23, 2007) (Abulkhair I). We affirm.


Abulkhair applied to the Board and received benefits from the General Assistance component of the Work First New Jersey welfare program (WFNJ/GA). N.J.S.A. 44:10-71 to -94. In the case of Passaic County residents, the WFNJ/GA program is implemented at the local level by the Board, which is the county welfare agency, pursuant to regulations of the Department of Human Services (Department), Division of Family Development (Division). See N.J.S.A. 44:10-73.

WFNJ/GA regulations permit the local welfare agencies to grant interim financial assistance to individuals who have applied to the SSA for Supplemental Security Income (SSI) benefits and whose applications are pending. N.J.A.C. 10:90-14.5(a). As a condition of receiving interim assistance, N.J.A.C. 10:90-14.5(c) requires that WFNJ/GA applicants execute authorization forms sanctioned by 42 U.S.C.A. § 1383(g) and 20 C.F.R. §§ 416.1901-.1922. The forms authorize the SSA to forward some or all of the recipient's initial SSI payment directly to the welfare agency, rather than the recipient, so that the welfare agency can recoup the amount of the WFNJ/GA assistance granted from the time of the recipient's filing for SSI through the month in which SSI payments begin. 42 U.S.C.A. § 1383(g); 20 C.F.R. §§ 416.1901-.1922.

Along with his application, Abulkhair executed an authorization for reimbursement form. The form stated:

I, Assem Abulkhair of the municipality of Passaic in the County of Passaic, in consideration of General Assistance to be granted me, do hereby authorize and instruct the Social Security Administration to send to the municipal treasurer my . . . initial SSI payment.

I further authorize the Director of Welfare to deduct from my . . . initial SSI payment as reimbursement an amount equal to the total amount of General Assistance which I received from this and other New Jersey municipalities . . . .

Abulkhair executed identical authorizations on November 17, 2003, and May 5, 2004. Abulkhair also executed a general agreement to repay form, which states in pertinent part:

I am applying for assistance for myself . . . under the Work First New Jersey Program. I understand that Public Law 1997, Chapter 14 requires me to repay from any lump sum of money or income that may be available to me . . . some or all of the assistance I or my household assistance unit have received from Work First New Jersey. . . .

I agree to repay the county/municipal agency an amount equal to the cash assistance and/or emergency assistance granted to me . . . if I or an assistance unit member receive such a lump sum of money or income.

In June 2003, the Board granted Abulkhair's application for interim assistance and he began to receive the interim benefits. In April 2004, the SSA granted Abulkhair's application for SSI benefits. Pursuant to Abulkhair's authorizations for reimbursement, the SSA divided Abulkhair's retroactive payment, sending $3,407 directly to the Board as reimbursement for interim WFNJ/GA assistance and sending the remaining $14,916.81 directly to Abulkhair.

Abulkhair filed an administrative appeal of the Board's action, which was adjudicated by the Division. In the administrative appeal, Abulkhair asserted that he had not signed any reimbursement authorizations and argued that, in any event, he had no obligation to reimburse the Board because of work he had been required to perform as a condition of receiving the assistance. In October 2005, the Division's Director issued a final agency decision affirming the Board's reimbursement action. Based upon a review of the documentary evidence submitted by the parties, the Director found that Abulkhair had in fact executed the SSI reimbursement forms. The Director also rejected Abulkhair's claim of entitlement to a credit for the work activity he performed, pointing out that performance of work activity is a program requirement. See N.J.A.C. 10:90-4.1.

On November 2, 2005, Abulkhair filed a notice of appeal. On appeal, he contended, as he did before the administrative agency, that he did not authorize reimbursement from his SSI benefits and that he owed no money because of his performance of WFNJ/GA work activity. On March 23, 2007, we affirmed the Director's determination. Abulkhair I, supra, No. A-1683-05T5.

In June 2007, Abulkhair applied to the Supreme Court of New Jersey for leave to file a petition for certification out of time. The Supreme Court denied Abulkhair's application and dismissed the petition for certification as moot. Abulkhair v. Passaic County Board of Soc. Servs., Motion No. M-25-07 (2007).

In September 2007, Abulkhair filed a petition for a writ of certiorari in the Supreme Court of the United States. On November 26, 2007, the Supreme Court denied Abulkhair's petition. Abulkhair v. Passaic County Bd. of Soc. Servs., 128 S.Ct. 667; 169 L.Ed. 2d 524 (2007).

In February 2008, Abulkhair filed a complaint in the Law Division, alleging that the State and the Board were negligent and in breach of contract because they recouped SSI benefits in the amount of $3,400 despite his having "provided (615) hours of work equivalent to $9,458.70." Although the named defendants were the State and the Board, Abulkhair's complaint was mistakenly served on the Department of Labor and Workforce Development in Elizabeth, New Jersey. Nevertheless, the State entered an appearance and filed a motion to dismiss Abulkhair's complaint in lieu of an answer on April 21, 2008. After hearing oral argument, Judge John Pisansky held that Abulkhair's complaint regarding the recoupment of his SSI had been fully litigated "in the administrative process and the appellate process, including the Appellate Division and . . . the New Jersey and the United States Supreme Courts." Consequently, he granted the motion and dismissed the complaint. Abulkhair appeals that decision.


An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

Judge Pisansky correctly determined that Abulkhair cannot relitigate the issues decided as part of his administrative appeal in a separate action.

The term "res judicata" refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated. Cf. In re Coruzzi, 95 N.J. 557, 568, appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed. 2d 8 (1984) (doctrine of collateral estoppel not mandated by constitution or statute). In essence, the doctrine of res judicata provides that a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding. Roberts v. Goldner, 79 N.J. 82, 85 (1979).

The rationale underlying res judicata recognizes that fairness to the defendant and sound judicial administration require a definite end to litigation. Restatement (Second) of Judgments, § 19 comment a (1982). See generally 1B J. Moore, J. Lucas, & J. Currier, Moore's Federal Practice para. 0.405 (2d Ed. 1988) (discussing principles underlying res judicata). The doctrine evolved in response to the specific policy concerns of providing finality and repose for the litigating parties; avoiding the burdens of relitigation for the parties and the court, ibid.; and maintaining judicial integrity by minimizing the possibility of inconsistent decisions regarding the same matter. Id. at n. 30.

For a judicial decision to be accorded res judicata effect, it must be a valid and final adjudication on the merits of the claim. Restatement (Second) of Judgments, supra, § 27.

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. [Ibid.]

[Velasquez v. Franz, 123 N.J. 498, 505-06 (1991).]

See also Orthopaedic Assocs. v. Dep't. of Banking & Ins., 405 N.J. Super. 54, 66 (App. Div. 2009).

Because the Board administers the WFNJ/GA program under the supervision of the Division, Abulkhair's administrative appeal was properly determined by the Division. N.J.A.C. 10:90-9.1 to -9.17. Appeals from final decisions of such State administrative agencies are properly made to the Appellate Division. Infinity Broadcasting Corp. v. New Jersey Meadowlands Comm'n, 187 N.J. 212, 223 (2006). Consequently, our earlier affirmance of the administrative decision, which both the New Jersey and United States Supreme Courts declined to review, was dispositive of the issues raised by Abulkhair administratively and in the Law Division. They are essentially the same issues.


In summary, we affirm Judge Pisansky's dismissal of Abulkhair's complaint with prejudice because the issues raised in the complaint were conclusively adjudicated in the prior administrative action. New Jersey law simply does not permit him to relitigate the same issues again in another forum.



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