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Radiation Data, Inc. v. New Jersey Department of Environmental Protection

Superior Court of New Jersey, Appellate Division

November 2, 2018

RADIATION DATA, INC., Plaintiff-Respondent,

          Argued October 9, 2018

          On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1260-16.

          Robert J. McGuire, Deputy Attorney General, argued the cause for appellants (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Robert J. McGuire and Benjamin H. Zieman, Deputy Attorney General, on the briefs).

          David J. Singer argued the cause for respondent (Vella, Singer and Associates, PC, attorneys; David J. Singer and Lisa M. Leili, of counsel and on the briefs).

          Before Judges Sabatino, Haas and Sumners.


          SABATINO, P.J.A.D.

         On leave granted, the New Jersey Department of Environmental Protection ("DEP") and three individual DEP officials named as co-defendants in this civil action appeal the Law Division's June 30, 2017 interlocutory order insofar as it partially denied defendants' motion to dismiss plaintiffs claims asserting constitutional and certain statutory violations.

         Because we are persuaded the trial court misapplied principles of qualified immunity from suit in partially denying the dismissal motion, we reverse the court's ruling and remand for further proceedings to adjudicate the remaining counts of plaintiff Radiation Data, Inc.'s ("RDI's") complaint. The agency did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against plaintiff, and by directing that communications between plaintiff and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing.


         Briefly stated, the backdrop of this matter is as follows.[1] RDI is a New Jersey corporation and is the largest radon measurement business in the State. RDI has been certified periodically by the DEP to provide radon services pursuant to the Radiation Protection Act, N.J.S.A. 26:2D-1 to -89, and associated regulations, N.J.A.C. 7:28-27.1 to -27.35. The regulatory program is administered through the DEP's Radon Section.

         Between August 2009 and June 2010, the DEP issued six Administrative Orders and Notices of Prosecution ("AO/NOP") to RDI. RDI requested adjudicatory hearings for each of the six AO/NOPs. The matters were transmitted to the Office of Administrative Law ("OAL") and consolidated. On March 14, 2013, an Administrative Law Judge ("the first ALJ") issued a partial summary decision on the six AO/NOPs. The first ALJ found in favor of the DEP on all but two of the violations in the AO/NOPs.

         The DEP then issued three additional AO/NOPs against RDI in February 2011, June 2013, and December 2014. RDI requested an administrative hearing before the OAL on these additional claimed violations. The matter was tried on intermittent days before a second Administrative Law Judge ("the second ALJ") between October 2015 and February 2016.

         Ultimately, on June 28, 2017, the second ALJ issued a lengthy decision finding the DEP had proven a majority of the violations. RDI filed exceptions to those findings with the DEP Commissioner. On November 1, 2017, the Commissioner issued a final agency decision adopting the decision of both ALJs, with slight modification. RDI's appeal in A-1777-17 ensued. Given the pendency of that appeal, the DEP has yet to bring a penalty enforcement action against RDI based on the violations.

         Meanwhile, in September 2016, RDI filed the present civil action in the Law Division against the DEP and various DEP officials.[2] In general, the lawsuit alleges defendants retaliated against RDI after the company contested the AO/NOPs issued by the agency.

         More specifically, RDI alleges that defendants engaged in a "pattern of harassing, intimidating, discriminatory, and threating conduct." RDI contends this retaliation began in September 2015, approximately one month before the OAL hearing before the second ALJ, and continued through the trial. The alleged misconduct includes: refusing to respond to RDI's telephone calls and emails regarding business and compliance matters because of the pending OAL hearing; and prohibiting RDI from hand-delivering a license renewal form to the DEP's offices. In addition, RDI contends DEP officials made several threatening remarks to or about RDI, refused to meet with an RDI representative, and that one DEP official uttered an anti-Semitic slur about the President of RDI.

         As amended, RDI's complaint asserts claims of equal protection, procedural due process, and substantive due process violations of the New Jersey Constitution, the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49; and tortious interference with prospective economic advantage. Although it is not expressly pled in its complaint, RDI also relies on the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 ("NJCRA"). Only the constitutionally-based and NJCRA claims are presently at stake in this interlocutory appeal.

         Shortly after the filing of RDI's lawsuit, a trial judge denied RDI's ex parte motion for temporary restraints. Thereafter, the judge conducted a hearing and issued a preliminary injunction that partially granted relief to RDI. The judge found that RDI had failed to demonstrate a sufficient nexus between defendants' alleged misconduct and any irreparable harm to RDI. However, the preliminary injunction requires defendants to accept email communications from RDI and respond within one business day if the email is not marked "urgent," or respond within one hour if the email is so marked and is transmitted within business hours. The injunction also requires RDI to submit documents to DEP by regular, certified, or overnight mail during the pendency of the litigation.[3]

         Defendants moved to dismiss various claims asserted in the complaint. Most pertinent to the present appeal, defendants invoked principles of qualified immunity and argued that RDI's constitutional and NJCRA claims must be dismissed because defendants violated no "clearly established" ...

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