Petition for Writ of Certiorari — PDX North, Inc., Petitioner v. Robert Asaro-Angelo, Commissioner, New Jersey Department of Labor and Workforce Development

Supreme Court briefMar 19, 2021

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APPENDIX

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion of the Court in the United

States Court of Appeals for the Third

Circuit

(October 22, 2020) . . . . . . . . . . . . . App. 1

Appendix B Judgment in the United States Court

of Appeals for the Third Circuit

(October 22, 2020) . . . . . . . . . . . . App. 27

Appendix C Opinion in the United States District

Court for the District of New Jersey

(July 29, 2019) . . . . . . . . . . . . . . App. 29

Appendix D Order in the United States District

Court for the District of New Jersey

(July 29, 2019) . . . . . . . . . . . . . . App. 51

Appendix E Statutory Provisions Involved . . . App. 53

App. 1

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 19-2968 and 19-2993

[Filed: October 22, 2020]

__________________________________________

PDX NORTH, INC.;

)

)

SLS DELIVERY SERVICES, INC.

)

(Intervenor in District Court)

)

)

v.

)

)

COMMISSIONER NEW JERSEY

)

DEPARTMENT OF LABOR AND

)

WORKFORCE DEVELOPMENT

)

)

PDX North, Inc.,

)

Appellant in No. 19-2968

)

)

SLS Delivery Services, Inc.,

)

Appellant in No. 19-2993

)

__________________________________________)

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-15-cv-07011)

District Judge: Honorable Brian R. Martinotti

App. 2

Argued: April 15, 2020

Before: CHAGARES, SCIRICA, and ROTH, Circuit

Judges

(Filed: October 22, 2020)

Allison L. Hollows

Fox Rothschild

101 Park Avenue

17th Floor

New York, NY 10178

Jack L. Kolpen

Corinne L. McCann Trainor [ARGUED]

Ian D. Meklinsky

Fox Rothschild

997 Lenox Drive

Princeton Pike Corporate Center, Building 3

Lawrenceville, NJ 08648

Counsel for Appellant in No. 19-2968

Vafa Sarmasti [ARGUED]

271 Route 46 West

Suite A205

Fairfield, NJ 07004

Counsel for Appellant in No. 19-2993

Emily M. Bisnauth, Esq. [ARGUED]

Christopher W. Weber

Office of Attorney General of New Jersey

Department of Law & Public Safety

Division of Law

App. 3

Richard J. Hughes Justice Complex

25 Market Street, P.O. Box 112

Trenton, NJ 08625

Counsel for Appellee

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge

This case involves a dispute over the employment

classification of delivery drivers, either as independent

contractors or as employees. The precipitating event in

this litigation is the State of New Jersey’s assertion of

non-payment of unemployment compensation taxes

because of the employers’ misclassification. To resolve

a part of this dispute, we must apply the abstention

doctrine of Younger v. Harris, 401 U.S. 37 (1971).

PDX North, Inc., a last-mile shipper, long classified

its delivery drivers as independent contractors. After

audits by the New Jersey Department of Labor and

Workforce Development (the “Department”), PDX was

told that its drivers were misclassified. Because they

were employees, the Department asserted PDX owed

unemployment compensation taxes. PDX challenged

this determination before the New Jersey Office of

Administrative Law (the “New Jersey OAL”) on

February 19, 2015.

On September 22, 2015, PDX filed this suit in

federal court against the Department’s Commissioner

contending New Jersey’s statutory scheme for

classifying workers was preempted by the Federal

App. 4

Aviation Administration Authorization Act of 1994 (the

“FAAAA”) and was unconstitutional under the

Interstate Commerce Clause.

On February 29, 2016, the New Jersey OAL action

was stayed at PDX’s request and with the consent of

the Department. Since then, this stay has been

renewed every six months and remains in effect.

Meanwhile, SLS Delivery Services, Inc., also a lastmile shipper, was audited by the Department. Because

SLS classified its drivers as independent contractors,

it moved to intervene in PDX’s action against the

Commissioner on December 1, 2017. Intervention was

granted on July 27, 2018 and SLS filed a complaint

alleging nearly identical claims to PDX. The

Department’s audit against SLS is still pending.

The Commissioner filed a motion for judgment on

the pleadings in the federal action on October 7, 2018,

contending the case was barred by the Younger

abstention doctrine. The trial court agreed and

dismissed the entire case. We hold that the trial court

correctly dismissed PDX, but it erred in dismissing

SLS. Accordingly, we will affirm in part, reverse in

part, and remand this matter for further proceedings.1

1

The trial court possessed subject-matter jurisdiction under 28

U.S.C. § 1331, assuming that the Tax Injunction Act does not

withdraw that jurisdiction. See Tenet v. Doe, 544 U.S. 1, 6 n.4

(2005) (noting that the Younger abstention doctrine “represents

the sort of ‘threshold question’ [that] may be resolved before

addressing jurisdiction”). We exercise jurisdiction under 28 U.S.C.

§ 1291 over the trial court’s Younger abstention decision.

App. 5

I.

PDX is a last-mile shipper of wholesale auto parts

in New Jersey and other states along the Eastern

Seaboard. Last-mile shippers, also known as same-day

shippers, are companies providing domestic

transportation of shipments within a 24-hour period,

often on a same-day basis with geographic coverage

generally limited to a single metropolitan area.

Depending on the volume and timing of its customers’

shipping needs, PDX hires “independent owneroperators” on an “as-needed” basis. PDX long classified

these drivers as independent contractors.

In May 2012, after completing an audit of PDX for

2006 through 2009, the Department determined that

PDX had misclassified its drivers, finding they were

employees, not independent contractors. The

Department reached the same conclusion in two

subsequent audits examining 2010 through 2015. The

parties do not provide the factual basis for this

determination, nor do they provide the Department’s

reasoning.

Under N.J. Stat. Ann. § 43:21-19(i)(6) (the

“Independent Contractor Test”), New Jersey presumes

workers are employees unless three statutory elements

are met. Those elements generally require the business

to show the worker is “free from [its] control or

direction,” the worker provides a service “outside the

usual course of business,” and the worker is

“customarily engaged in an independently established

trade.” N.J. Stat. Ann. § 43:21-19(i)(6)(A)–(C). Some

working relationships, however, are exempt from the

Independent Contractor Test. One exemption, the

App. 6

Large Motor Carrier Exemption, may apply if, among

other things, the drivers’ vehicles weigh 18,000 pounds

or more, the vehicles are used for the “highway

movement of motor freight,” and the driver receives “a

percentage of the gross revenue generated.” N.J. Stat.

Ann. § 43:21-19(i)(7)(X) (the “Large Motor Carrier

Exemption”). If the Large Motor Carrier Exemption

applies, the elements of the Independent Contractor

Test do not need to be satisfied for the worker to

qualify as an independent contractor. Id.

Because the Department determined PDX had

misclassified its drivers and did not qualify for the

Large Motor Carrier Exemption, it concluded the

drivers were employees for which PDX had not

withheld unemployment compensation taxes. The

Department assessed PDX for the amount owed,

including principal, interest, and penalties, totaling

$1,831,291.83 and filed administrative judgments for

those assessments in 2015 and 2018.2 As noted, PDX

sought review of the assessment amounts before the

New Jersey OAL on February 19, 2015 and that action

is currently stayed by PDX’s motion (and without

objection by the Department or Commissioner).

As noted, after filing its challenges with the New

Jersey OAL, PDX brought an action for declaratory and

2

After PDX’s Amended Complaint was filed in July 2018, the

Department filed an administrative judgment in New Jersey state

court. In addition to the amount owed alleged in PDX’s Amended

Complaint, the judgment reveals $498,134.86 in interest,

$81,540.00 in penalties, and $680.30 as an administrative cost

assessment. As of September 2018, it appears PDX owed at least

$2,411,645.91.

App. 7

injunctive relief in federal court on September 22, 2015.

PDX accepts, for purposes of this suit, that it can

neither satisfy the elements of the Independent

Contractor Test nor the requirements for the Large

Motor Carrier Exemption. As a result, its drivers must

be classified as employees. In addition to the state and

federal tax burdens, PDX complains of the additional

costs and obligations of employment. It asserts that

classifying these drivers as employees would require

additional administrative and human resources costs,

the outlay of capital to buy and maintain a fleet of

trucks, and a larger payroll to ensure it can always

meet peak demand. If it must classify its drivers as

employees, PDX alleges, “it will be driven out of

business.”

PDX contends the Independent Contractor Test and

the Large Trucker Exemption are preempted by the

FAAAA because they are “related to a price, route, or

service” of an interstate motor carrier. 49 U.S.C.

§ 14501(c)(1). Moreover, PDX asserts these provisions

violate the Interstate Commerce Clause, U.S. Const.

art. I, § 8, cl. 3, because of the “undue burdens” they

impose on its business. It requested the trial court to

find the Independent Contractor Test and the Large

Motor Carrier Exemption preempted by the FAAAA

and unconstitutional under the Interstate Commerce

Clause. It also requested the trial court to enjoin the

enforcement of the administrative judgments and the

performance of future audits.

In a motion to dismiss for failure to state a claim

and for lack of jurisdiction under Rule 12(b) filed on

October 30, 2015, the Commissioner contended PDX’s

App. 8

case should be dismissed on three separate abstention

grounds. The Commissioner did not raise the Younger

abstention doctrine. The trial court determined none of

the cited abstention grounds were applicable, explicitly

noting it did not rule on Younger abstention because no

party had briefed the issue.

The case was reassigned to another judge and

proceeded to discovery. As noted, SLS moved to

intervene in the action on December 1, 2017 because it

operated under a similar business model and was being

audited by the Department. Intervention was granted

on July 27, 2018, PDX submitted an amended

complaint, and SLS submitted a complaint containing

nearly identical allegations to PDX’s amended

complaint. After responding to the complaints, the

Commissioner filed a motion for judgment on the

pleadings under Rule 12(c) on October 7, 2018,

contending for the first time that Younger abstention

required dismissal.

The trial court granted the Rule 12(c) motion on

Younger abstention grounds, dismissing the case in its

entirety. It reasoned the Younger abstention doctrine

applied because the proceeding was quasi-criminal in

nature as to both PDX and SLS. The trial court then

considered the applicable Middlesex factors3 for both

3

In Middlesex, the Supreme Court announced three factors for

courts to consider when determining whether Younger abstention

is appropriate: (1) whether there is an ongoing judicial proceeding,

(2) whether an important state interest is implicated in the state

proceeding, and (3) whether the state proceedings provide an

App. 9

PDX and SLS and concluded each factor favored

abstention. Importantly, the trial court held the

Department’s audit of SLS was an ongoing state

judicial proceeding. In the alternative, the trial court

noted SLS may have waived its argument that it was

not subject to an ongoing state proceeding. The trial

court also raised the Tax Injunction Act (“TIA”), sua

sponte, and stated it had “significant doubts that the

TIA would permit this action to go forward” because

this was “an action to enjoin the collection of New

Jersey unemployment compensation contributions.”

But the trial court never ruled on the application of the

Tax Injunction Act.

PDX and SLS timely appealed, focusing on two

main issues.4 First, they contend either Federal Rule of

Civil Procedure 12 or judicial estoppel prevented the

invocation of the Younger abstention doctrine. Second,

they contend the trial court incorrectly applied Younger

abstention.

adequate opportunity to present constitutional arguments.

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 432 (1982).

4

On appeal, the parties briefed and argued whether the TIA bars

this action. Because the trial court never made any findings nor

ruled on this issue, we decline to address it in the first instance.

See Forestal Guarani S.A. v. Daros Int’l, Inc., 613 F.3d 395, 401 (3d

Cir. 2010) (“We ordinarily decline to consider issues not decided by

a district court, choosing instead to allow that court to consider

them in the first instance.”) (citations omitted). On remand, we

direct the trial court to address the application of the Tax

Injunction Act as to SLS.

App. 10

II.5

First, we will consider whether Federal Rule of Civil

Procedure 12 prohibited the trial court from

considering Younger abstention. PDX and SLS contend

the trial court should not have considered the Rule

12(c) motion because it was filed after extensive

discovery was completed. They also contend the trial

court should not have considered the Younger

abstention argument, because the Commissioner

consented to federal jurisdiction by not arguing it in

the first motion to dismiss or by consenting to a stay in

PDX’s state action. We conclude it was not an abuse of

discretion for the trial court to consider the

Commissioner’s 12(c) motion or to consider the Younger

abstention arguments.

A.

PDX and SLS’s first contention is that the

Commissioner’s Rule 12(c) motion could not be

considered because it was filed too late. They argue

because “PDX ha[d] already submitted all of its

discovery” it was inappropriate for the trial court to

consider the Rule 12(c) motion. Appellants’ Br. 21. We

disagree.6

5

PDX and SLS couch these alleged Rule 12 violations as equitable

issues but fail to specify which equitable doctrines were violated.

As such, we will consider these issues under Rule 12, not under

equitable doctrines.

6

Generally, “matters of docket control,” like whether to consider

a motion, “are committed to the sound discretion of the district

court.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.

1982) (citations omitted). We review for abuse of discretion and

App. 11

Rule 12(c) states that such motions must be filed

“[a]fter the pleadings are closed—but early enough not

to delay trial.” The pleadings in this case closed on

October 5, 2018, only after SLS was permitted to

intervene. The Commissioner’s Rule 12(c) motion was

filed on October 7, 2018. The motion therefore satisfies

the first requirement of Rule 12(c). It also satisfies the

second requirement because no trial date had been

set—and therefore no trial date could have been

delayed by its filing.7 The trial court did not abuse its

discretion in considering the Commissioner’s Rule 12(c)

motion.

“will not interfere with a trial court’s control of its docket ‘except

upon the clearest showing that the procedures have resulted in

actual and substantial prejudice to the complaining litigant.’” Id.

at 817 (quoting Eli Lilly & Co. v. Generix Drug Sales, Inc., 460

F.2d 1096, 1105 (5th Cir. 1972)).

7

PDX and SLS cite three cases contending the Rule 12(c) motion

was too late. But they are distinguishable because they confronted

the appropriateness of ruling on a Rule 12(c) motion

notwithstanding factual disputes on the merits, not considerations

of the timeliness of abstention. See Grajales v. P.R. Ports Auth.,

682 F.3d 40, 45–46 (1st Cir. 2012) (considering “the question of

whether it is appropriate to apply the plausibility standard after

substantial pretrial discovery has taken place”); Ideal Steel Supply

Corp. v. Anza, 652 F.3d 310, 325 (2d Cir. 2011) (discussing

appropriateness of Rule 12(c) because “evidence that had already

been produced during discovery would fill the perceived gaps in the

Complaint”); Ion Wave Techs., Inc. v. SciQuest, Inc., 21 F. Supp. 3d

376, 380 (D. Del. 2014) (finding disposition of a claim involved

“material factual disputes” and declining to decide its merits on a

Rule 12(c) motion).

App. 12

B.

PDX and SLS’s second contention is that the

Commissioner consented to federal jurisdiction over

these matters. PDX and SLS point to the

Commissioner’s agreement to stay PDX’s state court

matter pending the outcome of the federal case and

their failure to raise Younger abstention in their first

motion to dismiss.8 The Commissioner asserts he has

never formally consented to federal court jurisdiction or

waived his Younger abstention argument.

Consent to a stay of the state court proceeding in

this case was not a waiver of Younger abstention, nor

is it consent to federal jurisdiction. See Ohio Civil

Rights Comm’n v. Dayton Christian Sch., 477 U.S. 619,

626 (1986) (holding there was no waiver or consent

because the state had not requested the federal court

to adjudicate the merits); Addiction Specialists, Inc. v.

Twp. of Hampton, 411 F.3d 399, 409 (3d Cir. 2005)

(concluding state’s consent to stay of state action is

irrelevant to Younger abstention analysis and does not

constitute consent or waiver). The trial court did not

err in considering the Commissioner’s Younger

abstention argument.

8

PDX and SLS have not argued Younger abstention was waived

under Rule 12. Although it appears to be without merit, we will not

consider whether a failure to raise Younger abstention in a 12(b)

motion would have prohibited the Commissioner from raising it in

a 12(c) motion. See Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316,

322, 322 n.5 (3d Cir. 2015) (stating Rule 12 permits filing a Rule

12(c) motion on grounds that were available, but not previously

raised, in a Rule 12(b)(6) motion).

App. 13

III.

Second, we will consider whether the Commissioner

is judicially estopped from asserting Younger

abstention.9 PDX and SLS argue the Commissioner

was estopped from asserting the Younger abstention

doctrine based on inconsistent litigation positions:

consenting to a stay of PDX’s state court action and

asserting Younger abstention in federal court. Judicial

estoppel “applies to preclude a party from assuming a

position in a legal proceeding inconsistent with one

previously asserted.” Oneida Motor Freight, Inc. v.

United Jersey Bank, 848 F.2d 414, 419 (3d Cir. 1988).

As stated previously, the Commissioner’s position is

not inconsistent. Addiction Specialists, Inc., 411 F.3d

at 409 (concluding state’s consent to stay of state action

is irrelevant to Younger abstention analysis).

Accordingly, judicial estoppel did not preclude the trial

court from considering Younger abstention.10

9

We review the invocation of judicial estoppel for abuse of

discretion. Montrose Med. Grp. Participating Sav. Plan v. Bulger,

243 F.3d 773, 780 (3d Cir. 2001). A court “abuses its discretion

when its ruling is founded on an error of law or a misapplication

of law to the facts.” Id. (quoting In re O’Brien, 188 F.3d 116, 122

(3d Cir. 1999)).

10

PDX and SLS also contend the law-of-the-case doctrine

foreclosed the trial court from deciding whether there was an

“ongoing judicial proceeding” for Younger purposes. “Courts apply

the law of the case doctrine when their prior decisions in an

ongoing case either expressly resolved an issue or necessarily

resolved it by implication.” United Artists Theatre Cir. v. Twp. of

Warrington, 316 F.3d 392, 397–98 (3d Cir. 2003) (emphasis

omitted) (quoting Aramony v. United Way of Am., 254 F.3d 403,

410 (2d Cir. 2001)). Whether the law-of-the- case doctrine applies

App. 14

IV.

Third, we determine whether the trial court erred

in dismissing PDX and SLS’s cases under Younger

abstention.11

is subject to plenary review. Coca-Cola Bottling Co. of Shreveport

v. Coca-Cola Co., 988 F.2d 414, 429 (3d Cir. 1993). Reviewing the

previous trial court opinion, we conclude no issue relating to

Younger abstention was either explicitly or implicitly decided.

11

“We exercise plenary review over a trial court’s . . .

determination of whether Younger abstention is proper.” Hamilton

v. Bromley, 862 F.3d 329, 333 (3d Cir. 2017) (citation omitted). At

an earlier time, we reviewed the decision to abstain—after

ensuring the legal requirements had been met—for abuse of

discretion. See, e.g., Addiction Specialists, Inc., 411 F.3d at 408

(“Once we determine that the requirements have been met, we

review a district court’s decision to abstain under Younger

abstention principles for abuse of discretion.” (quoting Gwynedd

Props., Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1199 (3d Cir.

1995)) (citations omitted)). But the Supreme Court in Sprint

Communications, Inc. v. Jacobs, 571 U.S. 69, 72 (2013) stated

“Younger exemplifies one class of cases in which federal-court

abstention is required . . . .” And since then we have applied a de

novo standard.

This practice is not uniform throughout the circuits, but

several have found the same. Compare Sirva Relocation, LLC v.

Richie, 794 F.3d 185, 191 (1st Cir. 2015) (applying de novo

standard of review to Younger abstention), Trump v. Vance, 941

F.3d 631, 636 (2d Cir. 2019) (same), Aaron v. O’Connor, 914 F.3d

1010, 1015 (6th Cir. 2019) (same), Mulholland v. Marion Cnty.

Election Bd., 746 F.3d 811, 816 (7th Cir. 2014) (same), Rynearson

v. Ferguson, 903 F.3d 920, 924 (9th Cir. 2018) (same), and Elna

Sefcovic, LLC v. TEP Rocky Mt., LLC, 953 F.3d 660, 669 (10th Cir.

2020) (same), with Golphin v. Thomas, 855 F.3d 278, 286 (4th Cir.

2017) (applying abuse of discretion standard of review to Younger

abstention), Gates v. Strain, 885 F.3d 874, 879 (5th Cir. 2018)

App. 15

The trial court correctly dismissed PDX’s case but

erred in dismissing SLS’s case because, for SLS, there

was no ongoing judicial proceeding.

Generally, “a federal court’s ‘obligation’ to hear and

decide a case is ‘virtually unflagging.’” Sprint

Commc’ns., Inc. v. Jacobs, 571 U.S. 69, 77 (2013)

(quoting Colo. River Water Conservation Dist. v. United

States, 424 U.S. 800, 817 (1976)). Younger abstention

is an exception to that rule that applies when certain

types of state proceedings are ongoing at the time a

federal case is commenced. Id. Abstention serves a

dual-purpose in these situations: (1) to promote comity,

“a proper respect for state functions,” by restricting

federal courts from interfering with ongoing state

judicial proceedings and (2) to restrain equity

(applying de novo standard of review for legal determinations and

abuse of discretion standard of review for decision to abstain to

Younger abstention), Oglala Sioux Tribe v. Fleming, 904 F.3d 603,

609–10 (8th Cir. 2018) (same), Tokyo Gwinnett, LLC v. Gwinnett

Cnty., 940 F.3d 1254, 1266 (11th Cir. 2019) (applying abuse of

discretion standard of review to Younger abstention), and Handy

v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 349 (D.C. Cir.

2003) (applying de novo standard of review for legal

determinations and abuse of discretion standard of review for

decision to abstain to Younger abstention).

When we review a district court’s judgment on a Rule 12(c)

motion for judgment on the pleadings, we must “view the facts

presented in the pleadings and the inferences to be drawn

therefrom in the light most favorable to the nonmoving party,” and

we may not affirm the grant of such a motion “unless the movant

clearly establishes that no material issue of fact remains to be

resolved and that he is entitled to judgment as a matter of law.”

Wolfington v. Reconstructive Orthopaedic Assocs. II PC, 935 F.3d

187, 195 (3d Cir. 2019) (quotation marks omitted).

App. 16

jurisdiction from operating when state courts provide

adequate legal remedies for constitutional claims and

there is no risk of irreparable harm. Id.

Younger abstention is only appropriate in three

types of underlying state cases: (1) criminal

prosecutions, (2) civil enforcement proceedings, and

(3) “civil proceedings involving orders in furtherance of

the state courts’ judicial function.” ACRA Turf Club,

LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014)

(citing Sprint Commc’ns., Inc., 571 U.S. at 78). In this

case, the parties agree that Younger abstention is only

proper if we determine the underlying state

proceedings are civil enforcement proceedings that are

quasi-criminal in nature.

To assess whether underlying proceedings are

quasi-criminal in nature, we consider whether:

(1) the action was commenced by the State in its

sovereign capacity, (2) the proceeding was

initiated to sanction the federal plaintiff for

some wrongful act, and (3) there are other

similarities to criminal actions, such as a

preliminary investigation that culminated with

the filing of formal charges. . . . We also consider

whether the State could have alternatively

sought to enforce a parallel criminal statute.

ACRA Turf Club, LLC, 748 F.3d at 138 (citing Sprint

Commc’ns., Inc., 571 U.S. at 79–80).

If we conclude the civil proceeding here was quasicriminal in nature, we must then consider the

Middlesex factors: (1) whether there are “ongoing

judicial proceeding[s]”; (2) whether those “proceedings

App. 17

implicate important state interests”; and (3) whether

there is “an adequate opportunity in the state

proceeding to raise constitutional challenges.”

Middlesex Cnty. Ethics Comm., 457 U.S. at 432.

A.

We will consider three factors described in Sprint to

determine whether PDX and SLS are subject to civil

enforcement actions that are quasi-criminal in

nature.12 As described below, each factor supports a

finding that the underlying proceedings are civil

enforcement actions that are quasi-criminal in nature.

1.

First, we consider whether the underlying action

was commenced by New Jersey in its sovereign

capacity. PDX contends it initiated the challenge to the

assessment, not New Jersey. We disagree. The state

administrative action was commenced by New Jersey

in its sovereign capacity as to PDX. Unlike in ACRA

Turf Club, LLC, where “no state actor conducted an

investigation or filed any type of formal complaint,”

here the Commissioner performed multiple audits of

PDX and issued multiple formal assessments after the

culmination of those audits. ACRA Turf Club, LLC, 748

F.3d at 138. The New Jersey OAL action only occurred

12

We will not evaluate whether there are “other similarities to

criminal actions,” as it is sufficiently clear from the other factors

that this is a civil enforcement action that is quasi-criminal in

nature.

App. 18

because of the Commissioner’s actions.13 As the trial

court explained, “[t]he fact that PDX is technically the

party seeking review before the [New Jersey OAL] is a

mere function of New Jersey administrative

procedure.” As to PDX, the New Jersey OAL action

was, for Younger purposes, commenced by New Jersey

in its sovereign capacity.

2.

Second, we consider whether the proceeding

sanctions wrongful conduct. PDX and SLS contend the

proceeding does not because the only remedies

available are civil in nature. The Commissioner

disagrees, pointing out that misclassification of

workers and failure to withhold unemployment

compensation taxes is wrongful and can result in

penalties, fines, and imprisonment. See N.J. Stat. Ann.

§ 43:21-14 (describing civil penalties for failing to

report or withhold unemployment compensation taxes);

N.J. Stat. Ann. § 43:21-16(e) (describing criminal fine

and term of imprisonment for intentionally false or

fraudulent report). As to both PDX and SLS,

assessment may result in sanctions for a wrongful act.

“Sanctions are retributive in nature and are

typically imposed to punish the sanctioned party ‘for

some wrongful act.’” ACRA Turf Club, LLC, 748 F.3d at

140 (quoting Sprint Commc’ns., Inc., 571 U.S. at 79).

Misclassification of workers that results in the nonpayment of state taxes is “wrongful conduct.”

13

The Supreme Court does not require the state to commence the

judicial proceedings, as PDX seems to suggest, but only notes it is

often the case. See Sprint Commc’ns., Inc., 571 U.S. at 79.

App. 19

Further, the Commissioner has imposed over

$30,000 in penalties on PDX—in addition to the back

taxes and interest allegedly owed—and could penalize

SLS similarly. See N.J. Stat. Ann. § 43:21-14

(describing civil penalties for failing to report or

withhold unemployment compensation taxes).

Penalties are, by their very nature, retributive: a

sanction for wrongful conduct. See Gonzalez v.

Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 182

(3d Cir. 2014) (concluding a “disciplinary hearing” and

possible termination of employment were sanctions for

wrongful conduct, making false statements).

Accordingly, we find this second factor favors finding

this is a civil enforcement action that is quasi-criminal

in nature.

3.

Third, we consider whether there is also a criminal

analog to this action. PDX and SLS contend there is no

criminal analog because they have not been criminally

charged. But the question is not whether the current

action is criminal or whether criminal charges are

warranted. To hold as PDX and SLS contend would

erase the quasi-criminal category of abstention, as it

would require criminal charges to be brought for a

quasi-criminal action to exist.

The question is whether there is a criminal analog.

See Gonzalez, 755 F.3d at 182 (holding this factor

satisfied because “New Jersey could have vindicated

similar interests by enforcing its criminal perjury

statute”). Under New Jersey law, employers who do not

pay or withhold contributions as lawfully required may

face a $1,000 fine and a sentence of imprisonment of up

App. 20

to ninety days. N.J. Stat. Ann. § 43:21-16(e). PDX and

SLS acknowledge the risk of New Jersey criminally

charging them in their pleadings, stating they fear

criminal consequences. There is a criminal analog here.

This third factor favors finding this civil enforcement

action is quasi-criminal in nature. Considering these

factors together, we hold this is a civil enforcement

action that is quasi-criminal in nature.

B.

Because we have determined this is a civil

enforcement action that is quasi-criminal in nature, we

will consider the Middlesex factors as to PDX and SLS.

The trial court did not err in finding the Middlesex

factors favored Younger abstention as to PDX’s case.

PDX’s New Jersey OAL action is an ongoing judicial

proceeding in which New Jersey has a strong interest

and PDX may raise any constitutional claims. But the

trial court erred in finding there was an ongoing

judicial proceeding as to SLS and in dismissing SLS’s

case on Younger abstention grounds, because SLS is

not subject to an ongoing state judicial proceeding.

Because the analyses diverge, we will discuss PDX and

SLS separately.

1.

First, we consider whether PDX is involved in

ongoing judicial proceedings. PDX contends it is not

subject to an ongoing state judicial proceeding because

the New Jersey OAL matter is stayed.14 But “state

14

PDX does not disagree that the New Jersey OAL matter is

judicial in nature. We note proceedings presided over by an

App. 21

proceedings are ‘ongoing’ for Younger abstention

purposes, notwithstanding [a] state court’s stay of

proceedings” if the state proceeding “was pending at

the time [the plaintiff] filed its initial complaint in

federal court.” Addiction Specialists, Inc., 411 F.3d at

408–09. The New Jersey OAL action was ongoing at

the time PDX brought its federal action. This

Middlesex factor favors Younger abstention as to PDX.

Second, we consider whether these proceedings

implicate an important state interest. PDX sidesteps

this issue by pointing to the merits of its federal case

and arguing federal preemption supersedes any state

interest to the contrary. Even assuming PDX is correct

about the merits of its claims, we do not consider the

merits “when we inquire into the substantiality of the

State’s interest in its proceedings.” O’Neill v. City of

Phila., 32 F.3d 785, 791–92 (3d Cir. 1994) (quoting New

Orleans Pub. Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 364–65 (1989)). “Rather, what

we look to is the importance of the generic proceedings

to the State.” Id. New Jersey has an interest in the

collection of unemployment compensation taxes

through proper enforcement actions in the New Jersey

OAL and its courts. PDX provides nothing to rebut this

fact. The state administrative proceedings implicate

important state interests.

Administrative Law Judge at the New Jersey OAL are judicial for

purposes of Younger abstention. See, e.g., Zahl v. Harper, 282 F.3d

204, 209 (3d Cir. 2002) (discussing a New Jersey OAL action

presided over by an ALJ and concluding “[s]tate administrative

proceedings such as this have long been recognized as judicial in

nature”).

App. 22

Finally, we consider whether there is an adequate

opportunity in the state proceedings for PDX to present

its constitutional claims. PDX is currently subject to a

New Jersey OAL action. PDX argues the New Jersey

OAL lacks the authority to consider their constitutional

claims because the New Jersey OAL may only consider

constitutional issues that are necessary to the issue

presented. They narrowly define the issue presented to

the New Jersey OAL to include only whether the

workers were properly classified. But PDX admits that

constitutional questions may be reserved for the

judicial review process, after the administrative

process is complete.

“The Supreme Court has held that this third

element is satisfied in the context of a state

administrative proceeding when the federal claimant

can assert his constitutional claims during state-court

judicial review of the administrative determination.”

O’Neill, 32 F.3d at 792 (citing Dayton Christian Sch.,

477 U.S. at 629; Middlesex Cnty. Ethics Comm., 457

U.S. at 436). As noted, PDX admits its claims may be

heard at the judicial review phase. Our review of New

Jersey law confirms that these constitutional claims

may be raised in this state judicial proceeding. PDX

has an adequate opportunity to present those claims.

Balancing these factors, we will affirm the trial

court’s conclusion that it should abstain as to PDX. All

the Middlesex factors point towards abstention and the

trial court did not err in dismissing PDX’s case on

Younger abstention grounds.

App. 23

2.

The trial court erred in dismissing SLS’s case on

Younger abstention grounds. We first consider whether

there was an ongoing judicial proceeding. The first

Middlesex factor does not favor Younger abstention as

to SLS because it is still at the audit stage. The

Commissioner urges us not to reach the issue, offering

three points in rebuttal: (1) SLS waived this argument

in the trial court; (2) SLS concedes a state action is

imminent; and (3) SLS is stonewalling the

Commissioner, thwarting its ability to conclude the

audit and issue an assessment. We disagree with each

contention.

We see no waiver. The trial court erred because

“failures to raise [an] issue in the District Court . . . are

. . . more properly characterized as forfeitures rather

than as waivers.” Barna v. Bd. of Sch. Dirs. of Panther

Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir. 2017).

Moreover, SLS twice pointed out in its opposition brief

that Younger abstention does not apply because there

is no pending state proceeding. While this contention

may have benefitted from further factual and legal

development, it was neither waived nor forfeited.

The Commissioner’s final two contentions are

inapposite. If a judicial proceeding is only imminent,

Younger abstention is inappropriate because that

proceeding is not pending or ongoing. See Malhan v.

Sec’y U.S. Dep’t of State, 938 F.3d 453, 463–64 (3d Cir.

2019) (“That Malhan’s garnishment proceeding is

merely threatened . . . makes abstention ‘clearly

erroneous.’” (quoting Miller v. Mitchell, 598 F.3d 139,

146 (3d Cir. 2010))). The Commissioner’s assertion that

App. 24

SLS is stonewalling cannot be considered under our

standard of review: we must draw all reasonable

inferences in favor of SLS based on the allegations in

its complaint. It is also unsupported by the evidence of

record.

Accordingly, we consider whether SLS’s audit is an

“ongoing judicial proceeding.” The Commissioner’s

position seems to be that once the Department initiates

a formal audit, an “ongoing judicial proceeding” exists

for Younger purposes. SLS’s position is that a

proceeding is only ongoing once it becomes judicial in

nature. On these facts, we find the initiation of an

audit is insufficient to serve as an ongoing judicial

proceeding for Younger purposes.

The trial court—and the Commissioner—rely on two

cases that involved the issuance of a search warrant

and a grand jury subpoena.15 Both cases are inapposite

because they (1) are criminal Younger cases, (2) rely on

New York state law as to the definition of “criminal

proceeding,” and (3) involve judicial oversight not part

of the Department’s audit process. Nick v. Abrams, 717

F. Supp. 1053, 1056 (S.D.N.Y. 1989) (search warrant);

Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y.

1976) (grand jury subpoena). These cases do not inform

our decision here.

15

The trial court also cited one of our precedential cases, but that

involved a child support order that subjected an individual to an

ongoing obligation, even though he was not then obligated to

attend a judicial hearing. Anthony v. Council, 316 F.3d 412,

418–21 (3d Cir. 2003). There is no such judicial order here.

App. 25

On the relevant facts in this case, the Department’s

audit did not involve judicial oversight and cannot be

considered an ongoing judicial proceeding for Younger

abstention purposes. We believe our colleagues on the

First, Fourth, Fifth, Seventh, and Eleventh Circuits

would agree. See Google, Inc. v. Hood, 822 F.3d 212,

224 (5th Cir. 2016) (holding “that the issuance of a nonself-executing administrative subpoena does not,

without more, mandate Younger abstention”);

Mulholland v. Marion Cnty. Election Bd., 746 F.3d 811,

813 (7th Cir. 2014) (holding an ongoing election board

investigation was “too preliminary a proceeding to

warrant Younger abstention”); Guillemard-Ginorio v.

Contreras-Gomez, 585 F.3d 508, 519 (1st Cir. 2009)

(holding an “agency’s investigation . . . was at too

preliminary a stage to constitute a ‘proceeding’

triggering Younger abstention”); Telco Commc’ns., Inc.

v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989) (“We

decline to hold that Younger abstention is required

whenever a state bureaucracy has initiated contact

with a putative federal plaintiff. Where no formal

enforcement action has been undertaken, any

disruption of state process will be slight.”); Major

League Baseball v. Butterworth, 181 F. Supp. 2d 1316,

1321 n.2 (N.D. Fla. 2001), aff’d sub nom. Major League

Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003)

(holding Younger abstention inappropriate when

Florida’s attorney general served civil investigative

demands).

The first Middlesex factor does not favor Younger

abstention as to SLS. Because SLS is not subject to an

ongoing state proceeding, there is no state interest in

those proceedings and SLS does not have the

App. 26

opportunity to present its constitutional claims.

Accordingly, we will reverse the trial court’s dismissal

of SLS’s case because it erred by invoking the Younger

abstention doctrine. We will remand this matter to the

trial court to allow SLS to pursue its legal and

constitutional challenges.16

V.

For the reasons expressed, we will affirm in part,

reverse in part, and remand this matter to the trial

court for further proceedings.

16

The trial court did not address the merits of the action. The

Commissioner contends we may still consider the merits of the

action and should affirm the trial court’s dismissal of the case,

even if we conclude Younger abstention is inapplicable. While we

may affirm on any grounds apparent from the record, we decline

to address the merits here. Khazin v. TD Ameritrade H2olding

Corp., 773 F.3d 488, 491 (3d Cir. 2014).

App. 27

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 19-2968 and 19-2993

[Filed: October 22, 2020]

__________________________________________

PDX NORTH, INC.;

)

)

SLS DELIVERY SERVICES, INC.

)

(Intervenor in District Court)

)

)

v.

)

)

COMMISSIONER NEW JERSEY

)

DEPARTMENT OF LABOR AND

)

WORKFORCE DEVELOPMENT

)

)

PDX North, Inc.,

)

Appellant in No. 19-2968

)

)

SLS Delivery Services, Inc.,

)

Appellant in No. 19-2993

)

__________________________________________)

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-15-cv-07011)

District Judge: Honorable Brian R. Martinotti

Argued: April 15, 2020

App. 28

Before: CHAGARES, SCIRICA, and ROTH, Circuit

Judges

________________

JUDGMENT

________________

This cause came to be heard on the record from the

United States District Court for the District of New

Jersey and was argued on April 15, 2020. On

consideration whereof, it is now hereby

ORDERED and ADJUDGED by this Court that the

order of the District Court entered July 29, 2019, be,

and the same is hereby AFFIRMED in part,

REVERSED in part and REMANDED. No costs will be

taxed. All the above in accordance with the opinion of

this Court.

ATTEST:

s/ Patricia S. Dodszuweit

Clerk

DATED: October 22, 2020

App. 29

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Case No.: 3:15-cv-7011-BRM-TJB

[Filed: July 29, 2019]

__________________________________________

PDX NORTH, INC.

)

)

Plaintiff,

)

)

and

)

)

SLS DELIVERY SERVICES, INC.

)

)

Plaintiff-Intervenor, )

)

v.

)

)

ROBERT ASARO-ANGELO, in his capacity )

as Commissioner of the New Jersey

)

Department of Labor and Workforce

)

Development

)

)

Defendant.

)

__________________________________________)

OPINION

App. 30

MARTINOTTI, DISTRICT JUDGE

Before this Court are Defendant Robert AsaroAngelo’s Motion for Judgment on the Pleadings or for

a Stay of Proceedings (ECF No. 63) and Plaintiff PDX

North, Inc.’s (“PDX”) Cross-Motion for Summary

Judgment (ECF No. 69). Both motions are opposed

(ECF Nos. 70, 74, & 78). Having reviewed all parties’

submissions filed in connection with the motion and

having declined to hear oral argument pursuant to

Federal Rule of Civil Procedure 78(b), for the reasons

set forth below and for good cause having been shown,

the Defendant’s Motion for Judgment on the Pleadings

is GRANTED, and PDX’s Cross-Motion for Summary

Judgment is ADMINISTRATIVELY TERMINATED.

I.

FACTUAL AND PROCEDURAL BACKGROUND1

A. N e w

Jersey’s

Compensation Law

Unemployment

Robert Asaro-Angelo (the “Commissioner”) is New

Jersey’s Commissioner of Labor and Industry and leads

the state’s Department of Labor and Workforce

Development. See N.J. Stat. Ann. § 34:1A-2. The

Commissioner enforces New Jersey’s unemployment

compensation law. See id. § 43:21-7f. The

unemployment compensation law requires employers

to pay into the state’s unemployment compensation

1

When reviewing a motion for judgment on the pleadings, “[t]he

court will accept the complaint’s well-pleaded allegations as true,

and construe the complaint in the light most favorable to the

nonmoving party, but will not accept unsupported conclusory

statements.” DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262-63 (3d

Cir. 2008).

App. 31

fund an amount in proportion to the wages each

employer pays to its employees. See id. § 43:21-7. The

statutory calculation exempts payments both to

independent contractors and to certain commercial

freight truck drivers. See id. § 43:21-19(i)(6), (i)(7)(X).

B. PDX North, Inc.

“PDX is a company that facilitates, brokers, and

provides distribution and transportation services of

wholesale auto parts to auto dealers and third-party

auto suppliers throughout New Jersey, Pennsylvania,

New York, Connecticut, Rhode Island, Massachusetts,

and Vermont.” (PDX’s Am. Compl. ¶ 11.) The company

specializes in providing its customers with these auto

parts on demand, often on short notice. (Id. ¶ 20.)

Given the nature of its business model, PDX’s

“shipments are often time-sensitive and unscheduled.”

(Id.) To meet customers’ needs, the company contracts

with drivers to perform deliveries. (Id.)

PDX characterizes its drivers as an independent

contractors. (Id.) However, the company fears that its

drivers will not meet the statutory exemption in

§ 43:21-19(i)(6) or (i)(7)(X). (Id. ¶ 6.) The company

alleges that if it were forced to treat its drivers as

employees for purposes of the unemployment

compensation law, the company would incur additional

costs so great that its current business model would no

longer be viable. (Id. ¶ 5.)

The Commissioner audited PDX three times in

connection with the company’s obligations under the

unemployment compensation law, covering the years

2006-09 (first audit), 2010-12 (second audit), and 2013-

App. 32

15 (third audit). (Id. ¶¶ 22-25.) Following the audits,

the Commissioner determined PDX owed a total of

approximately $1.83 million in unpaid contributions to

the unemployment compensation fund, interest on

those unpaid contributions, and financial penalties.

(Id.) PDX appealed the Commissioner’s decision to the

New Jersey Office of Administrative Law. See PDX N.,

Inc. v. N.J. Dep’t of Labor & Workforce Dev., OAL Dkt.

No. LID 02451-2015 S (filed Feb. 19, 2015). PDX also

brought this action seeking declaratory and injunctive

relief against the Commissioner, alleging that the

Federal Aviation Administration Authorization Act of

1994 (“FAAAA”), 49 U.S.C. § 14501(c)(1), preempts

New Jersey’s unemployment compensation law, and

the Dormant Commerce Clause, see U.S. Const., art. I,

§ 8, bars the enforcement of New Jersey’s

unemployment compensation law. (ECF No. 52 ¶¶ 5067.)

The Court previously denied the Commissioner’s

motion to dismiss, holding that neither sovereign

immunity nor the the Rooker-Feldman,2 Colorado

River,3 or Burford4 doctrines barred the Court from

hearing this case on the merits, and PDX stated a valid

claim for relief under Federal Rule of Civil Procedure

12(b)(6). (ECF No. 22, at 6-10.) The Court also denied

PDX’s motion for summary judgment. (ECF No. 22, at

2

D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482-87 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-17 (1923).

3

4

Burford v. Sun Oil Co., 319 U.S. 315, 331-34 (1943).

Colo. River Water Consv’n Dist. v. United States, 424 U.S. 800,

817-20 (1976).

App. 33

12.) The Commissioner subsequently moved for

judgment on the pleadings, while PDX moved again for

summary judgment.

C. SLS Delivery Services, Inc.

“SLS is a motor carrier that facilitates and provides

interstate distribution, delivery[,] and transportation

services of packages as a contractor to national and

international carriers between and within the States of

New Jersey and New York.” (SLS’s Compl. ¶ 11.) The

company’s business model is to transport packages ondemand and as-needed between shipping companies—

for instance, between the U.S. Postal Service and

private shipper DHL. (Id. ¶¶ 24-25.) These intercarrier “shipments are often time-sensitive and asneeded.” (Id. ¶ 26.) SLS contracts with drivers to

shuttle packages between shipping companies. (Id.)

SLS also characterizes its drivers as independent

contractors. (Id. at ¶ 25.) However, the company alleges

that its drivers will not meet the statutory exemption

in § 43:21-19(i)(6). (Id. ¶ 6.) SLS alleges that if it were

forced to treat its drivers as employees for purposes of

the unemployment compensation law, the company

would incur additional costs so great that its current

business model would no longer be viable. (Id. ¶ 5.)

The Commissioner initiated an audit of SLS for the

years 2013 to the present, in an effort to determine

whether SLS improperly characterized its drivers as

independent contractors and therefore underpaid its

obligations to New Jersey’s unemployment

compensation fund. (Id. ¶ 28.) Although the audit is not

yet complete, SLS expects that the audit will determine

App. 34

that SLS improperly characterized its drivers as

independent contractors because the Commissioner

“audited a substantially smaller entity affiliated with

SLS with the same business model as SLS,” and found

that the smaller entity should not have characterized

its drivers as independent contractors. (Id. ¶ 31.)

The Court granted SLS’s motion to intervene as a

plaintiff on July 27, 2018. (ECF No. 50.) The company

filed its own complaint seeking declaratory and

injunctive relief, arguing that the FAAAA preempts

New Jersey’s unemployment compensation law and

that the Dormant Commerce Clause bars the

enforcement of New Jersey’s unemployment

compensation law.

II.

LEGAL STANDARD

“After the pleadings are closed—but early enough

not to delay trial—a party may move for judgment on

the pleadings.” Fed. R. Civ. P. 12(c). When reviewing a

motion for judgment on the pleadings, the Court may

not review matters outside the pleadings without

converting the motion into a motion for summary

judgment. Fed. R. Civ. P. 12(d).

“A court will grant a motion for judgment on the

pleadings if the movant establishes that ‘there are no

issues of material fact, and that he is entitled to

judgment as a matter of law.’” Allstate Prop. & Cas.

Ins. Co. v. Squires, 667 F.3d 388, 390 (3d Cir. 2012)

(quoting Sikirica v. Nationwide Ins. Co., 416 F.3d 214,

220 (3d Cir. 2005)). “In considering the motion for

judgment on the pleadings, [this] Court [is] required to

accept all of the [non-movants’] allegations as true and

App. 35

draw all reasonable inferences in their favor.” Sherzer

v. Homestar Mortg. Servs., 707 F.3d 255, 257 (3d Cir.

2013).

A motion for judgment on the pleadings is an

appropriate vehicle to address an argument for

abstention. See Disability Rights N.Y. v. New York, 916

F.3d 129, 131 (2d Cir. 2019).

III.

YOUNGER ABSTENTION

The Commissioner argues that this Court should

abstain from exercising jurisdiction over the plaintiff’s

and plaintiff-intervenor’s claims. See Younger v.

Harris, 401 U.S. 37, 44-45 (1971). The Court agrees.

The Younger abstention doctrine provides that

federal courts should generally abstain from exercising

jurisdiction over cases that seek to interfere with

certain types of pending state litigation, when “the

State’s interests in the proceeding are so important

that exercise of the federal judicial power would

disregard the comity between the States and the

National Government.” Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 11 (1987). One qualifying type of state

litigation is “civil enforcement proceedings.” New

Orleans Pub. Serv., Inc. v. Council of the City of New

Orleans (“NOPSI”), 491 U.S. 350, 368 (1989).

A qualifying “civil enforcement proceeding” has

certain characteristics. Traditionally, courts looked to

three so-called Middlesex factors: (1) whether there was

an ongoing state proceeding that was judicial in nature,

(2) whether the state proceeding implicated important

state interests, and (3) whether the state proceeding

offered an adequate opportunity for the federal plaintiff

App. 36

to litigate federal constitutional challenges. Middlesex

Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 432 (1982). However, recent decisions caution that

“these three factors [are not] the alpha and omega of

the abstention inquiry,” and “were never intended to be

independently dispositive.” Gonzalez v. Waterfront

Comm’n of N.Y. Harbor, 755 F.3d 176, 182 (3d Cir.

2014); see also Hamilton v. Bromley, 862 F.3d 329, 337

(3d Cir. 2017). Before analyzing the Middlesex factors,

courts must first determine whether the state

proceedings possess a quasi-criminal character. Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 81 (2013).

A. Quasi-Criminal Proceedings

“[Q]uasi-criminal proceedings of this ilk share

several distinguishing features.” Gonzalez, 755 F.3d at

181. For instance, the proceeding will

“characteristically [be] initiated to sanction the federal

plaintiff, i.e., the party challenging the state action, for

some wrongful act.” Sprint Commc’ns, 571 U.S. at 79.

This is more than mere “negative consequences.” ACRA

Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 140 (3d Cir.

2014). “Sanctions are retributive in nature and are

typically imposed to punish the sanctioned party ‘for

some wrongful act.’” Id. (quoting Sprint Commc’ns, 571

U.S. at 79). Sanctions must be more than the mere

“cost of doing business, with the choice of whether to

make such payment resting entirely with Plaintiffs.”

Id.

Additionally, “a state actor [will] routinely [be] a

party to the state proceeding and often initiates the

action.” Sprint Commc’ns, 571 U.S. at 79. “To be sure,

the Supreme Court has not directly held that Younger

App. 37

applies only when a state actor files a complaint or

formal charges.” ACRA Turf Club, 748 F.3d at 140.

However, “the state’s ‘initiation’ procedure must

proceed with greater formality than merely sending a

targeted advisory notice to a class of people that may

be affected by new legislation.” Id.

Often, “the proceeding [will be] both in aid of and

closely related to criminal statutes.” Huffman v.

Pursue, Ltd., 420 U.S. 592, 604 (1975). A proceeding is

more likely to be quasi-criminal if “the State could have

alternatively sought to enforce a parallel criminal

statute” that “vindicates similar interests.” ACRA Turf

Club, 748 F.3d at 138; see also Trainor v. Hernandez,

431 U.S. 434, 444 (1977); Gonzalez, 755 F.3d at 182.

For that reason, “[i]nvestigations are commonly

involved, often culminating in the filing of a formal

complaint or charges.” Sprint Commc’ns, 571 U.S. at

79-80; see also Gonzalez, 755 F.3d at 182.

While quasi-criminal proceedings may share many

attributes with actual criminal prosecutions, they will

differ in one key respect: unlike a criminal prosecution,

a quasi-criminal proceeding need not occur before the

state’s judiciary. To the contrary, abstention will apply

“to state administrative proceedings in which

important state interests are vindicated, so long as in

the course of those proceedings the federal plaintiff

would have a full and fair opportunity to litigate his

constitutional claim.” Ohio Civil Rights Comm’n v.

Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1986);

see also Gonzalez, 755 F.3d at 182 (describing a state

administrative proceeding as “a textbook example of a

quasi-criminal action”).

App. 38

The administrative proceedings in this case—which

seek to recover unpaid unemployment compensation

payments—constitute quasi-criminal proceedings

because they meet all5 of these elements. First, New

Jersey’s unemployment compensation law provides for

sanctions against employers who are delinquent in

their payment of unemployment compensation

contributions. However, not all the remedies available

to the Commissioner constitute sanctions. For instance,

the Commissioner can institute a civil action to collect

the unpaid contributions. N.J. Stat. Ann. § 43:21-14(b).

Likewise, the Commissioner may collect interest on

those unpaid contributions. Id. § 43:21-14(a). The

statute authorizes the Commissioner to issue a

certificate detailing an employer’s liability for unpaid

unemployment compensation contributions, and

provides that the certificate “shall have the same force

and effect as a judgment obtained in the Superior

Court of New Jersey.” Id. § 43:21-14(e).

The unemployment compensation law empowers the

Commissioner with punitive remedies, as well. The

Commissioner may fine an employer “who makes a

5

PDX argues a state proceeding necessarily lacks a quasi-criminal

character if the proceeding is missing even a single one of the

above attributes. This argument misunderstands the nature of the

inquiry. These factors are not a mandatory checklist for quasicriminal proceedings; instead, a court determining a state

proceeding’s quasi-criminal character weighs the factors above; no

single factor is dispositive. See Sprint Commc’ns, 571 U.S. at 79-81

(noting that quasi-criminal proceedings “characteristically” exist

to sanction the federal plaintiff, “commonly” following an

investigation by a state actor who “routinely” is a party and “often”

initiates the proceeding, “often” by the filing of formal charges).

App. 39

false statement or representation, knowing it to be

false, or who knowingly fails to disclose a material fact,

. . . [in order] to avoid or reduce any contribution or

other payment required” under the unemployment

compensation law. Id. § 43:21-16(b)(1). “Any penalties

imposed by this paragraph shall be in addition to those

otherwise prescribed” by the unemployment

compensation law. Id. The statutory scheme intends

these fines to be punitive: the statute is itself entitled

“Penalties; investigative staff.” Id. Because these fines

are more than the mere cost of doing business, they

constitute sanctions as contemplated by the Younger

abstention framework.

Second, a state actor—the Commissioner—is a

party to administrative proceedings. See N.J. Stat.

Ann. § 34:1A-1 (establishing6 the Department of Labor

and Workforce Development); id. § 34:1A-2 (creating a

“Commissioner of Labor and Industry” to head the

department). No party contests that the Commissioner

is a state actor.

Third, the state in its sovereign capacity initiated

the administrative proceedings with sufficient

formality. After conducting multiple audits, the

Commissioner gave PDX formal notice of its liability

for unpaid unemployment compensation contributions,

interest, and penalties—including the exact amounts

6

The New Jersey Legislature created the “Department of Labor

and Industry” in 1948. See N.J. Stat. Ann. § 34:1A-1. A statute

renamed the department to the “Department of Labor” in 1981.

See id. § 34:1A-1.1. The department obtained its current name,

“Department of Labor and Workforce Development,” following a

2004 enactment. See id. § 34:1A-1.2.

App. 40

owed in each category. The Commissioner also filed

certificates concerning PDX’s liability—certificates

with the force and effect of court judgments. See id.

§ 43:21-14(e). Because there are few, if any, legal

documents with more formality than a court judgment,

the filing of certificates with the force and effect of

court judgments constitutes sufficiently formal notice

from the Commissioner that it sought to initiate

proceedings against PDX for unpaid unemployment

compensation contributions.

PDX and SLS focus their argument not on the

formality of the notice, but on the identity of the party

who initiated the administrative proceedings. They

characterize PDX—not the Commissioner—as the

initiating party because PDX filed an administrative

appeal of the Commissioner’s liability determination.

This argument places form over function. The

Commissioner, not PDX, initiated an investigation and

audit of PDX’s unemployment compensation

contribution payments. The Commissioner, not PDX,

filed the certificates concerning PDX’s unemployment

compensation liability—certificates with the force and

effect of court judgments. The fact that PDX is

technically the party seeking review before the Office

of Administrative Law is a mere function of New Jersey

administrative procedure.7 PDX’s request for review

7

Generally speaking, administrative proceedings begin “in the

State agency with appropriate subject matter jurisdiction.” N.J.

Admin. Code § 1:1-3.1(a). The agency then transmits these cases

to the Office of Administrative Law. See id. However, the agency

may issue a rule or regulation assigning to the private party the

obligation of seeking review in the Office of Administrative Law.

See N.J. Stat. Ann. § 52:14B-9(g). The Commissioner has issued

App. 41

before the Office of Administrative Law merely

continues the ongoing legal process initiated in

substance by the state when the Commissioner began

auditing PDX. Because the proceedings are, in

substance, initiated by the state in its sovereign

capacity, this factor weighs in favor of finding that the

state administrative proceedings possess a quasicriminal character.

Fourth, the administrative provisions to recover

unpaid unemployment compensation contributions are

in aid of, and are closely related to, criminal statutes.

The criminal provisions are so closely related that they

fall within the same statutory section as the civil

enforcement language. See N.J. Stat. Ann. § 43:21-16.

The criminal and civil enforcement provisions vindicate

similar interests: namely, encouraging the prompt, full

payment of unemployment compensation contributions

and the recovery of unpaid payments. Compare id.

§ 43:21-16(e)(1) (criminal provisions), with id. § 43:2116(b) (civil enforcement provisions). The investigation

of civil non-payment violations in this case may lead to

a potential criminal fraud prosecution. Accordingly, the

close relationship between the administrative and

criminal proceedings suggests that the administrative

proceedings constitute quasi-criminal proceedings.

Because every factor weighs in this direction, the

administrative proceedings at issue here possess a

quasi-criminal character. The next step in the Younger

analysis is to consider the Middlesex factors. See

Gonzalez, 755 F.3d at 182.

such a rule. See N.J. Admin. Code § 12:16-22.2(a).

App. 42

B. Middlesex Factors

Middlesex outlines three factors weighing in favor

of abstention. See id. First, a court determines whether

there was an ongoing state proceedings that is judicial

in nature. See NOPSI, 491 U.S. at 370. This is not to

say the proceedings must occur before the state’s

judiciary: administrative proceedings suffice, if they

“command the respect due court proceedings.” Dayton

Christian Schs., 477 U.S. at 627 (quoting Gibson v.

Berryhill, 411 U.S. 564, 576-77 (1973)). Courts consider

whether the state proceeding shares the hallmarks of

court litigation: the “present[ation] of facts and

evidence in an open hearing;” a decision-maker

“empowered to make factual determinations with

respect to the charges filed” against the federal

plaintiff; whether the state proceeding provides the

federal plaintiff “with an opportunity to be heard, the

right to be represented by counsel, and the right to

present evidence and witnesses on [the federal

plaintiff’s] behalf;” and whether the state courts have

jurisdiction over any appeal of the “ultimate decision.”

Gonzalez, 755 F.3d at 183.

Second, a court considers whether the proceeding

implicates important state interests. See Middlesex

Cty. Ethics Comm., 457 U.S. at 432. This inquiry

focuses “narrowly [on the state’s] interest in the

outcome of the particular case—which could arguably

be offset by a substantial federal interest in the

opposite outcome. Rather, what [courts] look to is the

importance of the generic proceedings to the State.”

NOPSI, 491 U.S. at 365.

App. 43

Finally, a court inquires into whether the federal

plaintiff has an adequate opportunity to raise federal

constitutional claims in the state proceeding. See

Dayton Christian Schs., 477 U.S. at 627. Federal

plaintiffs “need be accorded only an opportunity to

fairly pursue their constitutional claims in the ongoing

state proceedings, and their failure to avail themselves

of such opportunities does not mean that the state

procedures were inadequate.” Juidice v. Vail, 430 U.S.

327, 337 (1977) (citing Berryhill, 411 U.S. at 577).

Where the decision-maker in the state proceeding is an

attorney (not a lay-person), or is a body made up

primarily of attorneys (rather than lay-persons`),

courts assume that the decision-maker will entertain

federal constitutional claims in the state proceeding.

Middlesex Cty. Ethics Comm., 457 U.S. at 435. The

right to appeal the proceeding’s result in a state court

also demonstrates that a federal plaintiff will receive a

hearing on any federal constitutional claims. See

Dayton Christian Schs., 477 U.S. at 629 (citing

Middlesex Cty. Ethics Comm., 457 U.S. at 436);

Gonzalez, 755 F.3d at 184. Generally speaking, courts

will assume the existence of an adequate opportunity

to raise federal constitutional claims in the state

proceeding unless state law explicitly prohibits the

state decision-maker from considering them. See

Pennzoil, 481 U.S. at 14; Moore v. Sims, 442 U.S. 415,

425-26 (1979); Gonzalez, 755 F.3d at 184.

All three Middlesex factors weigh in favor of

abstention. First, the administrative proceedings at

issue in this case are ongoing and judicial in nature.

New Jersey’s Administrative Procedure Act (“APA”),

N.J. Stat. Ann. § 52:14B-1 et seq., governs these

App. 44

administrative proceedings. See N.J. Admin. Code

§ 12:16-22.4. Courts routinely find that administrative

proceedings governed by New Jersey’s APA are

“judicial in nature.” See Howard v. N.J. Div. of Youth

& Fam. Servs., 398 F. App’x 807, 811 (3d Cir. 2010);

Zahl v. Harper, 282 F.3d 204, 209 (3d Cir. 2002);

Getson v. New Jersey, Civ. No. 07-3509, 2008 WL

11161698, at *6 (D.N.J. July 31, 2008).

The nature of APA proceedings demonstrates why.

An administrative law judge presides over the hearing.

See N.J. Stat. Ann. § 52:14B-10(c) (emphasis added).

The proceeding must allow “all parties to respond,

appear and present evidence and argument on all

issues involved.” Id. § 52:14B-9(c). This includes the

introduction of documentary evidence and the

presentation of witnesses, including the right to crossexamination. See id. § 52:14B-10(a). New Jersey’s APA

generally requires that proceedings remain open to the

public. See N.J. Admin. Code § 1:1-14.1(a). The state

APA also entitles the parties to representation by

counsel. See id. § 1:1-5.1. Following the close of

evidence and argument, the administrative law judge

makes findings of fact and conclusions of law. See N.J.

Stat. Ann. § 52:14B-10(c); N.J. Admin. Code § 1:1-18.1.

The Commissioner issues a final decision. See N.J.

Stat. Ann. § 52:14B-10(d); N.J. Admin Code § 12:1622.6(a). The state judiciary has jurisdiction over any

appeal from the Commissioner’s decision. See N.J.

Court Rule 2:2-3(a)(2); N.J. Admin. Code § 12:1622.6(b). Given these features, the administrative

proceeding at issue here qualifies as judicial in nature.

See Zahl, 282 F.3d at 209; Getson, 2008 WL 11161698,

at *6.

App. 45

Second, the proceedings below implicate an

important state interest—namely, the timely and

prompt collection of unemployment compensation

payments. Cf. Ardan v. Bd. of Rev., 177 A.3d 768, at

774-75 (N.J. 2018) (noting, outside the context of

Younger abstention, that “[t]he Legislature enacted the

Unemployment Compensation Law to further an

important public policy”). This Court agrees with its

sister courts that a state’s “interest in the

administration of its unemployment compensation

system is a sufficiently important state interest to

bring the case within the ambit of the Younger

doctrine.” Kelly v. Lopeman, 680 F. Supp. 1101, 1108

(S.D. Ohio 1987); see also Bridgeforth v. U.S. Dep’t of

Labor, Civ. No. 13-120, 2013 WL 1914313, at *4 (D.

Del. May 7, 2013); Lorah v. Delaware, 2010 WL

2132059, at *3 (D. Del. May 25, 2010); cf. Moore v.

Ross, 502 F. Supp. 543, 550 (S.D.N.Y. 1980) (finding

that “the administration of unemployment insurance

programs arguably constitutes a significant state

interest” but declining to abstain under Younger

because “there is presently no on-going proceeding”).

Finally, the federal plaintiffs will have an adequate

opportunity to raise any federal constitutional

challenges in the state proceeding in light of their right

to appeal any adverse administrative determination to

the New Jersey judiciary. See N.J. R. Ct. 2:2-3(a)(2);

N.J. Admin. Code § 12:16-22.6(b). The right to “appeal

to the New Jersey Superior Court, Appellate Division”

satisfies the requirement that the federal plaintiff have

an adequate opportunity to raise constitutional claims

in the state proceeding. Gonzalez, 755 F.3d at 184.

App. 46

Because this quasi-criminal proceeding satisfies all

three Middlesex factors, the Court will abstain from

exercising jurisdiction over this case. As a result, PDX’s

complaint is dismissed. Berryhill, 411 U.S. at 577. PDX

remains free to present its federal claims in the state

proceedings. Id.

C. “Pending” Proceedings

SLS argues that even if Younger requires this Court

to abstain from deciding PDX’s action, Younger does

not apply to SLS because unlike PDX, SLS is not a

party to any “pending” state “proceedings.” The Court

disagrees in light of the broad scope of the phrase

“pending proceeding” under Younger.8

The Supreme Court has issued dicta stating that

Younger applies to federal actions that seek “to restrain

an already-pending or an about-to-be-pending state

criminal action, or civil action involving important

state interests.” Morales v. TWA, Inc., 504 U.S. 374,

381 n.1 (1992) (emphasis added). For example, the

Third Circuit held that federal plaintiffs subject to

state child support obligations were parties to an

8

Additionally, the Court finds that SLS has waived its argument

that SLS is not party to any pending proceeding. “[C]asual mention

of an issue in a brief is cursory treatment insufficient to preserve

the issue” for review. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.

1993); see also Vente v. Gonzales, 415 F.3d 296, 299 n.3 (3d Cir.

2005). “[A]n argument consisting of no more than a conclusory

assertion such as the one made here (without even a citation to the

record) will be deemed waived.” Reynolds v. Wagner, 128 F.3d 166,

178 (3d Cir. 1997). SLS’s brief makes only a passing reference to

Younger’s “pending proceeding” requirement, without citing any

authority. (ECF No. 74, at 16.)

App. 47

“ongoing proceeding” for Younger purposes, even

though the plaintiffs were “not currently appearing or

scheduled to appear in any particular child support

hearing.” Anthony v. Council, 316 F.3d 412, 419 (3d

Cir. 2003). “For purposes of Younger,” the Third Circuit

explained, “such a comprehensive and fluid system

designed to address the ever-present and ever-changing

realities of child support orders must be viewed as a

whole, rather than as individual, discrete hearings,”

especially in light of the fact that the plaintiffs could

expect to “be subject to future ongoing contempt

proceedings.” Anthony, 316 F.3d at 420-21. In the

criminal context, courts have determined that the

issuance of a grand jury subpoena and the issuance of

a search warrant each constitute a “pending

proceeding” under Younger, irrespective of whether any

indictment was yet pending. See Nick v. Abrams, 717

F. Supp. 1053, 1056 (S.D.N.Y. 1989) (search warrants);

Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y.

1976) (grand jury subpoena).

SLS finds itself in a similar situation: the

Commissioner has audited SLS for multiple tax years,

and an assessment and subsequent administrative

challenge are imminent. On these facts, the

Commissioner’s audit is part of a “pending proceeding”

under Younger, even though SLS has not yet formally

requested review before the Office of Administrative

Law.

Because the Court previously considered and

rejected all other arguments against Younger

App. 48

abstention,9 see parts III.A. & III.B., supra, abstention

is appropriate. Accordingly, SLS’s complaint is

dismissed. See Berryhill, 411 U.S. at 577. SLS remains

free to submit its federal claims in the state

proceedings. See id.

IV.

TAX INJUNCTION ACT

No party briefed whether the Tax Injunction Act

(“TIA”), 28 U.S.C. § 1341, deprives this Court of

jurisdiction over this case. Even so, a district court is

generally “required to raise the issue on [its] own

motion, as a determination that the [TIA] precludes a

suit deprives the federal courts of subject matter

jurisdiction over that action, and a state cannot waive

the [TIA]’s protection” by failing to raise the issue. In

re Hechinger Inv. Co. of Del., 335 F.3d 243, 247 n.1 (3d

Cir. 2003). While the general rule requires sua sponte

consideration of the TIA, the general rule yields when

there are multiple threshold issues which preclude a

court from considering a case’s merits. See, e.g., Tenet

v. Doe, 544 U.S. 1, 6 n.4 (2005) (noting that a court may

choose to dismiss a case on abstention before

addressing jurisdiction). Because the parties briefed

the abstention issue but not the application of the TIA,

9

SLS also adopts PDX’s Younger arguments by reference and

incorporates them into its brief. This Court generally permits this

practice. See, e.g., Polanco v. Omnicell, Inc., 988 F. Supp. 2d 451,

466 n.15 (D.N.J. 2013); cf. Fed. R. App. P. 28(i). Therefore, SLS has

not waived any of the Younger arguments that PDX briefed and

argued. However, PDX did not address the existence of a “pending

proceeding.” Accordingly, SLS’s adoption and incorporatation of

PDX’s arguments does not save SLS from waiver of any “pending

proceeding” argument.

App. 49

judicial economy weighs in favor of deciding this case

on the basis of abstention.

Nonetheless, the Court has significant doubts that

the TIA would permit this action to go forward, even if

abstention did not compel the same result. The TIA

provides, “The district courts shall not enjoin, suspend

or restrain the assessment, levy or collection of any tax

under State law where a plain, speedy and efficient

remedy may be had in the courts of such State.” 28

U.S.C. § 1341. This action to enjoin the collection of

New Jersey unemployment compensation contributions

would appear to qualify. See Sipe v. Amerada Hess

Corp., 689 F.2d 396, 402-03 (3d Cir. 1982) (holding that

“it cannot be seriously disputed that the unemployment

compensation and disability benefits contributions

mandated by New Jersey law are ‘taxes’ within the

meaning of the” TIA and that the TIA’s prohibition

against judicial interference with any “essential

administrative mechanism for the orderly collection of

taxes” likewise applies to state unenemployment

compensation statutes).

V.

CONCLUSION

For the reasons set forth above, the Commissioner’s

Motion for Judgment on the Pleadings is GRANTED,

and PDX’s Cross-Motion for Summary Judgment is

ADMINISTRATIVELY TERMINATED. An

appropriate order will follow.

App. 50

Dated: July 29, 2019

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

App. 51

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Case No.: 3:15-cv-7011-BRM-TJB

[Filed July 29, 2019]

_______________________________________

PDX NORTH, INC.

)

)

Plaintiff,

)

)

and

)

)

SLS DELIVERY SERVICES, INC.

)

)

Plaintiff-Intervenor, )

)

v.

)

)

ROBERT ASARO-ANGELO, in his

)

capacity as Commissioner of the New

)

Jersey Department of Labor and

)

Worforce Development

)

)

Respondent.

)

_______________________________________)

ORDER

THIS MATTER is before the Court on on

Defendant Robert Asaro-Angelo’s (“Defendant”) Motion

App. 52

for Judgment on the Pleadings or for a Stay of

Proceedings (ECF No. 63) and Plaintiff PDX North,

Inc.’s (“Plaintiff”) Cross-Motion for Summary Judgment

(ECF No. 69). Having reviewed all parties’ submissions

filed in connection with the motions and having

declined to hear oral argument pursuant to Federal

Rule of Civil Procedure 78(b), for the reasons set forth

for the reasons set forth in the accompanying Opinion,

and for good cause shown,

IT IS on this 29th day of July, 2019,

ORDERED that the Defendant’s Motion of

Judgment on the Pleadings (ECF No. 63) is

GRANTED; and it is further

ORDERED that the Plaintiff’s Cross-Motion for

Summary Judgment (ECF No. 69) is

ADMINISTRATIVELY TERMINATED; and it is

further

ORDERED that this case is DISMISSED; and it

is further

ORDERED that the matter shall be marked

CLOSED.

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

App. 53

APPENDIX E

STATUTORY PROVISIONS INVOLVED

N.J.S.A. 43:21-14

43:21-14. Collection of contributions

Effective: November 9, 2015

Currentness

(a)(1) In addition to such reports as may be required

under the provisions of subsection (g) of R.S.43:21-11,

every employer shall file with the controller periodic

contribution reports on such forms and at such times as

the controller shall prescribe, to disclose the employer’s

liability for contributions under the provisions of this

chapter (R.S.43:21-1 et seq.), and at the time of filing

each contribution report shall pay the contributions

required by this chapter (R.S.43:21-1 et seq.), for the

period covered by such report. The controller may

require that such reports shall be under oath of the

employer. Any employer who shall fail to file any

report, required by the controller, on or before the last

day for the filing thereof shall pay a penalty of $10.00

for each day of delinquency until and including the fifth

day following such last day and for any period of

delinquency after such fifth day, a penalty of $10.00 a

day or 25% of the amount of the contributions due and

payable by the employer for the period covered by the

report, whichever is the lesser; if there be no liability

for contributions for the period covered by any

contribution report or in the case of any report other

App. 54

than a contribution report, the employer or employing

unit shall pay a penalty of $10.00 a day for each day of

delinquency in filing or $50.00, whichever is the lesser;

provided, however, that when it is shown to the

satisfaction of the controller that the failure to file any

such report was not the result of fraud or an

intentional disregard of this chapter (R.S.43:21-1 et

seq.), or the regulations promulgated hereunder, the

controller, in his discretion, may remit or abate any

unpaid penalties heretofore or hereafter imposed under

this section. On or before October 1 of each year, the

controller shall submit to the Commissioner of Labor

and Workforce Development a report covering the

12-month period ending on the preceding June 30, and

showing the names and addresses of all employers for

whom the controller remitted or abated any penalties,

or ratified any remission or abatement of penalties, and

the amount of such penalties with respect to each

employer. Any employer who shall fail to pay the

contributions due for any period, on or before the date

they are required by the controller to be paid, shall pay

interest on the amount thereof from such date until the

date of payment thereof, at the rate of 1% a month

through June 30, 1981 and at the rate of 1 1/4% a

month after June 30, 1981. Upon the written request of

any employer or employing unit, filed with the

controller on or before the due date of any report or

contribution payment, the controller, for good cause

shown, may grant, in writing, an extension of time for

the filing of such report or the paying of such

contribution, with interest at the applicable rate;

provided no such extension shall exceed 30 days and

that no such extension shall postpone payment of any

contribution for any period beyond the day preceding

App. 55

the last day for filing tax returns under Title IX of the

federal Social Security Act1 for the year in which said

period occurs.

(2)(A) For the calendar quarter commencing July 1,

1984 and each successive quarter thereafter, each

employer shall file a report with the controller within

30 days after the end of each quarter in a form and

manner prescribed by the controller, listing the name,

social security number and wages paid to each

employee and the number of base weeks (as defined in

subsection (t) of R.S.43:21-19) worked by the employee

during the calendar quarter. (B) Any employer who

fails without reasonable cause to comply with the

reporting requirements of this paragraph (2) shall be

liable for a penalty in the following amount for each

employee with respect to whom the employer is

required to file a report but who is not included in the

report or for whom the required information is not

accurately reported for each employee required to be

included, whether or not the employee is included:

(i) For the first failure for one quarter in any eight

consecutive quarters, $5.00 for each employee;

(ii) For the second failure for any quarter in any eight

consecutive quarters, $10.00 for each employee; and

(iii) For the third failure for any quarter in any eight

consecutive quarters, and for any failure in any eight

consecutive quarters, which failure is subsequent to the

third failure, $25.00 for each employee.

1

See 42 U.S.C.A. § 1101 et seq.

App. 56

(C) Information reported by employers as requested by

this paragraph (2) shall be used by the Department of

Labor and Workforce Development for the purpose of

determining eligibility for benefits of individuals in

accordance with the provisions of R.S.43:21-1 et seq.

Notwithstanding the provisions of subsection (g) of

R.S.43:21-11, the Department of Labor and Workforce

Development is hereby authorized to provide the

Department of Human Services and the Higher

Education Student Assistance Authority with

information reported by employers as required by this

paragraph (2). For each fiscal year, the Director of the

Division of Budget and Accounting of the Department

of the Treasury shall charge the appropriate account of

the Department of Human Services and the Higher

Education Student Assistance Authority in amounts

sufficient to reimburse the Department of Labor and

Workforce Development for the cost of providing

information under this subparagraph (C).

(D) (Deleted by amendment, P.L.2015, c. 135)

(b) The contributions, penalties, and interest due from

any employer under the provisions of this chapter

(R.S.43:21-1 et seq.), from the time they shall be due,

shall be a personal debt of the employer to the State of

New Jersey, recoverable in any court of competent

jurisdiction in a civil action in the name of the State of

New Jersey; provided, however, that except in the

event of fraud, no employer shall be liable for

contributions or penalties unless contribution reports

have been filed or assessments have been made in

accordance with subsection (c) or (d) of this section

before four years have elapsed from the last day of the

App. 57

calendar year with respect to which any contributions

become payable under this chapter (R.S.43:21-1 et

seq.), nor shall any employer be required to pay

interest on any such contribution unless contribution

reports were filed or assessments made within such

four-year period; provided further that if such

contribution reports were filed or assessments made

within the four-year period, no civil action shall be

instituted, nor shall any certificate be issued to the

Clerk of the Superior Court under subsection (e) of this

section, except in the event of fraud, after six years

have elapsed from the last day of the calendar year

with respect to which any contributions become

payable under this chapter (R.S.43:21-1 et seq.), or July

1, 1958, whichever is later. Payments received from an

employer on account of any debt incurred under the

provisions of this chapter (R.S.43:21-1 et seq.) may be

applied by the controller on account of the contribution

liability of the employer and then to interest and

penalties, and any balance remaining shall be

recoverable by the controller from the employer. Upon

application therefor, the controller shall furnish

interested persons and entities certificates of

indebtedness covering employers, employing units and

others for contributions, penalties and interest, for

each of which certificates the controller shall charge

and collect a fee of $2.00 per name; no such certificate

to be issued, however, for a fee of less than $10.00. All

fees so collected shall be paid into the unemployment

compensation administration fund.

(c) If any employer shall fail to make any report as

required by the rules and regulations of the division

pursuant to the provisions of this chapter (R.S.43:21-1

App. 58

et seq.), the controller may make an estimate of the

liability of such employer from any information it may

obtain, and, according to such estimate so made, assess

such employer for the contributions, penalties, and

interest due the State from him, give notice of such

assessment to the employer, and make demand upon

him for payment.

(d) After a report is filed under the provisions of this

chapter (R.S.43:21-1 et seq.) and the rules and

regulations thereof, the controller shall cause the

report to be examined and shall make such further

audit and investigation as it may deem necessary, and

if therefrom there shall be determined that there is a

deficiency with respect to the payment of the

contributions due from such employer, the controller

shall assess the additional contributions, penalties, and

interest due the State from such employer, give notice

of such assessment to the employer, and make demand

upon him for payment.

(e) As an additional remedy, the controller may issue to

the Clerk of the Superior Court of New Jersey a

certificate stating the amount of the employer’s

indebtedness under this chapter (R.S.43:21-1 et seq.)

and describing the liability, and thereupon the clerk

shall immediately enter upon his record of docketed

judgments such certificate or an abstract thereof and

duly index the same. Any such certificate or abstract,

heretofore or hereafter docketed, from the time of

docketing shall have the same force and effect as a

judgment obtained in the Superior Court of New

Jersey, and the controller shall have all the remedies

and may take all the proceedings for the collection

App. 59

thereof which may be had or taken upon the recovery

of such a judgment in a civil action upon contract in

said court. Such debt, from the time of docketing

thereof, shall be a lien on and bind the lands,

tenements and hereditaments of the debtor.

The Clerk of the Superior Court shall be entitled to

receive for docketing such certificate, $0.50, and for a

certified transcript of such docket, $0.50. If the amount

set forth in said certificate as a debt shall be modified

or reversed upon review, as hereinafter provided, the

Clerk of the Superior Court shall, when an order of

modification or reversal is filed, enter in the margin of

the docket opposite the entry of the judgment, the word

“modified” or “reversed,” as the case may be, and the

date of such modification or reversal.

The employer, or any other party having an interest in

the property upon which the debt is a lien, may deposit

the amount claimed in the certificate with the Clerk of

the Superior Court of New Jersey, together with an

additional 10% of the amount thereof, or $100.00,

whichever amount is the greater, to cover interest and

the costs of court, or in lieu of depositing the amount in

cash, may give a bond to the State of New Jersey in

double the amount claimed in the certificate, and file

the same with the Clerk of the Superior Court. Said

bond shall have such surety and shall be approved in

the manner required by the Rules Governing the

Courts of the State of New Jersey.

After the deposit of said money or the filing of said

bond, the employer, or any other party having an

interest in the said property, may, after exhausting all

administrative remedies, secure judicial review of the

App. 60

legality or validity of the indebtedness or the amount

thereof, and the said deposit of cash shall be as security

for, and the bond shall be conditioned to prosecute, the

judicial review with effect.

Upon the deposit of said money or the filing of the said

bond with the Clerk of the Superior Court, all

proceedings on such judgment shall be stayed until the

final determination of the cause, and the moneys so

deposited shall be subject to the lien of the

indebtedness and costs and interest thereon, and the

lands, tenements, and hereditaments of said debtor

shall forthwith be discharged from the lien of the State

of New Jersey and no execution shall issue against the

same by virtue of said judgment.

Notwithstanding the provisions of subsections (a)

through (c) of this section, the Department of Labor

and Workforce Development may, with the concurrence

of the State Treasurer, when all reasonable efforts to

collect amounts owed have been exhausted, or to avoid

litigation, reduce any liability for contributions,

penalties and interest, provided no portion of those

amounts represents contributions made by an

employee pursuant to subsection (d) of R.S.43:21-7.

(f) If, not later than two years after the calendar year

in which any moneys were erroneously paid to or

collected by the controller, whether such payments

were voluntarily or involuntarily made or made under

mistake of law or of fact, an employer, employing unit,

or employee who has paid such moneys shall make

application for an adjustment thereof, the said moneys

shall, upon order of the controller, be either credited or

refunded, without interest, from the appropriate fund.

App. 61

For like cause and within the same period, credit or

refund may be so made on the initiative of the

controller.

(g) All interest and penalties collected pursuant to this

section shall be paid into a special fund to be known as

the unemployment compensation auxiliary fund; all

moneys in this special fund shall be deposited,

administered and disbursed in the same manner and

under the same conditions and requirements as is

provided by law for other special funds in the State

Treasury, and shall be expended, under legislative

appropriation, for the purpose of aiding in defraying

the cost of the administration of this chapter

(R.S.43:21-1 et seq.); for the repayment of any interest

bearing advances made from the federal unemployment

account pursuant to the provisions of section 1202(b) of

the Social Security Act, 42 U.S.C. s.1322; and for

essential and necessary expenditures in connection

with programs designed to stimulate employment, as

determined by the Commissioner of Labor and

Workforce Development, except that any moneys in

this special fund shall be first applied to aiding in the

defraying of necessary costs of the administration of

this chapter (R.S.43:21-1 et seq.) as determined by the

Commissioner of Labor and Workforce Development.

The Treasurer of the State shall be ex officio the

treasurer and custodian of this special fund and,

subject to legislative appropriation, shall administer

the fund in accordance with the directions of the

controller. Any balances in this fund shall not lapse at

any time, but shall be continuously available, subject to

legislative appropriation, to the controller for

expenditure. The State Treasurer shall give a separate

App. 62

and additional bond conditioned upon the faithful

performance of his duties in connection with the

unemployment compensation auxiliary fund, in an

amount to be fixed by the division, the premiums for

such bond to be paid from the moneys in the said

special fund.

(h) All disputes under R.S.43:21-1 et seq. unless

specifically indicated otherwise, shall be resolved in

accordance with the “Administrative Procedure Act,”

P.L.1968, c. 410 (C.52:14B-1 et seq.).

(i) Notwithstanding any of the provisions of this

section, or any other law, to the contrary, all functions,

powers and duties of the controller and the

Commissioner of Labor and Workforce Development

relating to receiving reports, receiving billings,

receiving correspondence, remittance processing, data

entry and imaging required pursuant to this section

shall be performed by the Division of Revenue in the

Department of the Treasury.

App. 63

N.J.S.A. 43:21-16

43:21-16. Penalties; investigating staff

Effective: January 17, 2014

Currentness

(a)(1) Whoever makes a false statement or

representation, knowing it to be false, or knowingly

fails to disclose a material fact, to obtain or increase or

attempts to obtain or increase any benefit or other

payment under this chapter (R.S.43:21-1 et seq.), or

under an employment security law of any other state or

of the federal government, either for himself or for any

other person, shall be liable to a fine of 25% of the

amount fraudulently obtained, to be recovered in an

action at law in the name of the Division of

Unemployment and Temporary Disability Insurance of

the Department of Labor and Workforce Development

of the State of New Jersey or as provided in subsection

(e) of R.S.43:21-14, said fine when recovered shall be

immediately deposited in the following manner: 10

percent of the amount fraudulently obtained deposited

into the unemployment compensation auxiliary fund

for the use of said fund, and 15 percent of the amount

fraudulently obtained deposited into the

unemployment compensation fund; and each such false

statement or representation or failure to disclose a

material fact shall constitute a separate offense. Any

penalties imposed by this subsection shall be in

addition to those otherwise prescribed in this chapter

(R.S.43:21-1 et seq.).

(2) For purposes of any unemployment compensation

program of the United States, if the department

App. 64

determines that any benefit amount is obtained by an

individual due to fraud committed by the individual,

the department shall assess a fine on the individual

and deposit the recovered fine in the same manner as

provided in paragraph (1) of subsection (a) of this

section. As used in this paragraph, “unemployment

compensation program of the United States” means:

(A) Unemployment compensation for federal civilian

employees pursuant to 5 U.S.C. 8501 et seq.;

(B) Unemployment compensation for ex-service

members pursuant to 5 U.S.C. 8521 et seq.;

(C) Trade readjustment allowances pursuant to 19

U.S.C. 2291-2294;

(D) Disaster unemployment assistance pursuant to 42

U.S.C. 5177(a);

(E) Any federal temporary extension of unemployment

compensation;

(F) Any federal program that increases the weekly

amount of unemployment compensation payable to

individuals; and

(G) Any other federal program providing for the

payment of unemployment compensation.

(b)(1) An employing unit or any officer or agent of an

employing unit or any other person who makes a false

statement or representation, knowing it to be false, or

who knowingly fails to disclose a material fact, to

prevent or reduce the payment of benefits to any

individual entitled thereto or to avoid becoming or

remaining subject hereto or to avoid or reduce any

App. 65

contribution or other payment required from an

employing unit under this chapter (R.S.43:21-1 et seq.),

or under an employment security law of any other state

or of the federal government, or who willfully fails or

refuses to furnish any reports required hereunder

(except for such reports as may be required under

subsection (b) of R.S.43:21-6) or to produce or permit

the inspection or copying of records, as required

hereunder, shall be liable to a fine of $100.00, or 25%

of the amount fraudulently withheld, whichever is

greater, to be recovered in an action at law in the name

of the Division of Unemployment and Temporary

Disability Insurance of the Department of Labor and

Workforce Development of the State of New Jersey or

as provided in subsection (e) of R.S.43:21-14, said fine

when recovered to be paid to the unemployment

compensation auxiliary fund for the use of said fund;

and each such false statement or representation or

failure to disclose a material fact, and each day of such

failure or refusal shall constitute a separate offense.

Any penalties imposed by this paragraph shall be in

addition to those otherwise prescribed in this chapter

(R.S.43:21-1 et seq.).

(2) Any employing unit or any officer or agent of an

employing unit or any other person who fails to submit

any report required under subsection (b) of R.S.43:21-6

shall be subject to a penalty of $25.00 for the first

report not submitted within 10 days after the mailing

of a request for such report, and an additional $25.00

penalty may be assessed for the next 10-day period,

which may elapse after the end of the initial 10-day

period and before the report is filed; provided that

when such report or reports are not filed within the

App. 66

prescribed time but it is shown to the satisfaction of the

director that the failure was due to a reasonable cause,

no such penalty shall be imposed. Any penalties

imposed by this paragraph shall be recovered as

provided in subsection (e) of R.S.43:21-14, and when

recovered shall be paid to the unemployment

compensation auxiliary fund for the use of said fund.

(3) Any employing unit, officer or agent of the

employing unit, or any other person, determined by the

controller to have knowingly violated, or attempted to

violate, or advised another person to violate the

transfer of employment experience provisions found at

R.S.43:21-7 (c)(7), or who otherwise knowingly

attempts to obtain a lower rate of contributions by

failing to disclose material information, or by making

a false statement, or by a misrepresentation of fact,

shall be subject to a fine of $5,000 or 25% of the

contributions under-reported or attempted to be

under-reported, whichever is greater, to be recovered

as provided in subsection (e) of R.S.43:21-14, and when

recovered to be paid to the unemployment

compensation auxiliary fund for the use of said fund.

For the purposes of this subsection, “knowingly” means

having actual knowledge of, or acting with deliberate

ignorance or reckless disregard for the prohibition

involved.

(c) Any person who shall willfully violate any provision

of this chapter (R.S.43:21-1 et seq.) or any rule or

regulation thereunder, the violation of which is made

unlawful or the observance of which is required under

the terms of this chapter (R.S.43:21-1 et seq.), and for

which a penalty is neither prescribed herein nor

App. 67

provided by any other applicable statute, shall be liable

to a fine of $50.00, to be recovered in an action at law

in the name of the Division of Unemployment and

Temporary Disability Insurance of the Department of

Labor and Workforce Development of the State of New

Jersey or as provided in subsection (e) of R.S.43:21-14,

said fine when recovered to be paid to the

unemployment compensation auxiliary fund for the use

of said fund; and each day such violation continues

shall be deemed to be a separate offense.

(d)(1) When it is determined by a representative or

representatives designated by the Director of the

Division of Unemployment and Temporary Disability

Insurance of the Department of Labor and Workforce

Development of the State of New Jersey that any

person, whether (I) by reason of the nondisclosure or

misrepresentation by him or by another of a material

fact (whether or not such nondisclosure or

misrepresentation was known or fraudulent), or (ii) for

any other reason, has received any sum as benefits

under this chapter (R.S.43:21-1 et seq.) while any

conditions for the receipt of benefits imposed by this

chapter (R.S.43:21-1 et seq.) were not fulfilled in his

case, or while he was disqualified from receiving

benefits, or while otherwise not entitled to receive such

sum as benefits, such person, unless the director (with

the concurrence of the controller) directs otherwise by

regulation, shall be liable to repay those benefits in

full. The employer’s account shall not be charged for

the amount of an overpayment of benefits if the

overpayment was caused by an error of the division and

not by any error of the employer. The sum shall be

deducted from any future benefits payable to the

App. 68

individual under this chapter (R.S.43:21-1 et seq.) or

shall be paid by the individual to the division for the

unemployment compensation fund, and such sum shall

be collectible in the manner provided for by law,

including, but not limited to, the filing of a certificate

of debt with the Clerk of the Superior Court of New

Jersey; provided, however, that, except in the event of

fraud, no person shall be liable for any such refunds or

deductions against future benefits unless so notified

before four years have elapsed from the time the

benefits in question were paid. Such person shall be

promptly notified of the determination and the reasons

therefor. The determination shall be final unless the

person files an appeal of the determination within

seven calendar days after the delivery of the

determination, or within 10 calendar days after such

notification was mailed to his last-known address, for

any determination made on or before December 1,

2010, and any initial determination made pursuant to

paragraph (1) of subsection (b) of R.S.43:21-6 after

December 1, 2010, or within 20 calendar days after the

delivery of such determination, or within 20 calendar

days after such notification was mailed to his lastknown address, for any determination other than an

initial determination made after December 1, 2010.

(2) Interstate and cross-offset of state and federal

unemployment benefits. To the extent permissible

under the laws and Constitution of the United States,

the commissioner is authorized to enter into or

cooperate in arrangements or reciprocal agreements

with appropriate and duly authorized agencies of other

states or the United States Secretary of Labor, or both,

whereby:

App. 69

(A) Overpayments of unemployment benefits as

determined under subsection (d) of R.S.43:21-16 shall

be recovered by offset from unemployment benefits

otherwise payable under the unemployment

compensation law of another state, and overpayments

of unemployment benefits as determined under the

unemployment compensation law of another state shall

be recovered by offset from unemployment benefits

otherwise payable under R.S.43:21-1 et seq.; and

(B) Overpayments of unemployment benefits as

determined under applicable federal law, with respect

to benefits or allowances for unemployment provided

under a federal program administered by this State

under an agreement with the United States Secretary

of Labor, shall be recovered by offset from

unemployment benefits otherwise payable under

R.S.43:21-1 et seq., or any federal program

administered by this State, or under the

unemployment compensation law of another state or

any federal unemployment benefit or allowance

program administered by another state under an

agreement with the United States Secretary of Labor,

if the other state has in effect a reciprocal agreement

with the United States Secretary of Labor as

authorized by subsection (g) of 42 U.S.C.s.503, and if

the United States agrees, as provided in the reciprocal

agreement with this State entered into under

subsection (g) of 42 U.S.C.s.503, that overpayments of

unemployment benefits as determined under

subsection (d) of R.S.43:21-16 and overpayments as

determined under the unemployment compensation

law of another state which has in effect a reciprocal

agreement with the United States Secretary of Labor

App. 70

as authorized by subsection (g) of 42 U.S.C.s.503, shall

be recovered by offset from benefits or allowances

otherwise payable under a federal program

administered by this State or another state under an

agreement with the United States Secretary of Labor.

(e)(1) Any employing unit, or any officer or agent of an

employing unit, which officer or agent is directly or

indirectly responsible for collecting, truthfully

accounting for, remitting when payable any

contribution, or filing or causing to be filed any report

or statement required by this chapter, or employer, or

person failing to remit, when payable, any employer

contributions, or worker contributions (if withheld or

deducted), or the amount of such worker contributions

(if not withheld or deducted), or filing or causing to be

filed with the controller or the Division of

Unemployment and Temporary Disability Insurance of

the Department of Labor and Workforce Development

of the State of New Jersey, any false or fraudulent

report or statement, and any person who aids or abets

an employing unit, employer, or any person in the

preparation or filing of any false or fraudulent report or

statement with intent to defraud the State of New

Jersey or an employment security agency of any other

state or of the federal government, or with intent to

evade the payment of any contributions, interest or

penalties, or any part thereof, which shall be due under

the provisions of this chapter (R. S.43:21-1 et seq.),

shall be liable for each offense upon conviction before

any Superior Court or municipal court, to a fine not to

exceed $1,000.00 or by imprisonment for a term not to

exceed 90 days, or both, at the discretion of the court.

The fine upon conviction shall be payable to the

App. 71

unemployment compensation auxiliary fund. Any

penalties imposed by this subsection shall be in

addition to those otherwise prescribed in this chapter

(R.S.43:21-1 et seq.).

(2) Any employing unit, officer or agent of the

employing unit, or any other person, who knowingly

violates, or attempts to violate, or advise another

person to violate the transfer of employment experience

provisions found at R.S.43:21-7 (c)(7) shall be, upon

conviction before any Superior Court or municipal

court, guilty of a crime of the fourth degree. For the

purposes of this subsection, “knowingly” means having

actual knowledge of, or acting with deliberate

ignorance or reckless disregard for the prohibition

involved.

(f) Any employing unit or any officer or agent of an

employing unit or any other person who aids and abets

any person to obtain any sum of benefits under this

chapter to which he is not entitled, or a larger amount

as benefits than that to which he is justly entitled,

shall be liable for each offense upon conviction before

any Superior Court or municipal court, to a fine not to

exceed $1,000.00 or by imprisonment for a term not to

exceed 90 days, or both, at the discretion of the court.

The fine upon conviction shall be payable to the

unemployment compensation auxiliary fund. Any

penalties imposed by this subsection shall be in

addition to those otherwise prescribed in this chapter

(R.S.43:21-1 et seq.).

(g) There shall be created in the Division of

Unemployment and Temporary Disability Insurance of

the Department of Labor and Workforce Development

App. 72

of the State of New Jersey an investigative staff for the

purpose of investigating violations referred to in this

section and enforcing the provisions thereof.

(h) An employing unit or any officer or agent of an

employing unit who makes a false statement or

representation, knowing it to be false, or who

knowingly fails to disclose a material fact, to reduce

benefit charges to the employing unit pursuant to

paragraph (1) of subsection (c) of R.S.43:21-7, shall be

liable to a fine of $1,000, to be recovered in an action at

law in the name of the Division of Unemployment and

Temporary Disability Insurance of the Department of

Labor and Workforce Development of the State of New

Jersey or as provided in subsection (e) of R.S.43:21-14.

The fine when recovered shall be paid to the

unemployment compensation auxiliary fund for the use

of the fund. Each false statement or representation or

failure to disclose a material fact, and each day of that

failure or refusal shall constitute a separate offense.

Any penalties imposed by this subsection shall be in

addition to those otherwise prescribed in R.S.43:21-1 et

seq.

(i) The Department of Labor and Workforce

Development shall arrange for the electronic receipt of

death record notifications from the New Jersey

Electronic Death Registration System, pursuant to

section 16 of P.L.2003, c. 221 (C.26:8-24.1), and

establish a verification system to confirm that benefits

paid pursuant to the “Temporary Disability Benefits

Law,” P.L.1948, c. 110 (C.43:21-25 et al.), and the

“unemployment compensation law,” R.S.43:21-1 et seq.,

are not being paid to deceased individuals.

App. 73

(j) The Department of Labor and Workforce

Development shall arrange for the electronic receipt of

identifying information from the Department of

Corrections, pursuant to section 6 of P.L.1976, c. 98

(C.30:1B-6), and from the Administrative Office of the

Courts and any county which does not provide county

inmate incarceration information to the Administrative

Office of the Courts, and establish a verification system

to confirm that benefits paid pursuant to the

“unemployment compensation law,” R.S.43:21-1 et seq.,

are not being paid to individuals who are incarcerated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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