                                                                             FIFTH DIVISION
                                                                             July 21, 2006




No. 1-05-1464

CATAMOUNT CARGO SERVICES, LLC,                                   )   Appeal from the
                                                                 )   Circuit Court of
       Plaintiff-Appellant,                                      )   Cook County
                                                                 )
v.                                                               )   No. 04 CH 12373
                                                                 )
ILLINOIS DEPARTMENT OF EMPLOYMENT                                )   Honorable
SECURITY,                                                        )   Rita M. Novak,
                                                                 )   Judge Presiding.
       Defendant-Appellee.                                       )


       PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

       Plaintiff, Catamount Cargo Services, LLC, appeals the dismissal of its complaint for

administrative review. The circuit court dismissed the action for lack of jurisdiction because

plaintiff named only the Illinois Department of Employment Security (the Department) as a

defendant, and failed to name the Director of Employment Security (the Director). We affirm.

       On June 28, 2004, an administrative decision was rendered against plaintiff, assessing

unemployment insurance contributions in the amount of $24,384.75 plus interest and penalties.

The heading after the case caption on the first page of the decision states, ADecision of the

Director of Employment Security.@ The last page of the decision contains the signature of

Brenda A. Russell and, immediately below the signature line, states, ABrenda A. Russell,

Director of Employment Security.@

       On August 2, 2004, plaintiff filed a complaint for administrative review of the Director's

final administrative decision. Plaintiff named the Department, but did not name the Director.
1-05-1464

        On September 7, 2004, defendant appeared and filed a motion to dismiss plaintiff's

complaint for lack of subject matter jurisdiction. Defendant argued that it, the Department, was

not the Aadministrative agency@ that issued the final decision sought to be reviewed. Defendant

contended that the Aadministrative agency@ was the Director and that, pursuant to section 3-107

of the Administrative Review Law (the Review Law) (735 ILCS 5/3-107 (West 2004)), plaintiff

was required to name the Director as a defendant in its complaint for administrative review.

        Plaintiff responded to the motion to dismiss and filed a motion for leave to amend the

complaint to add the Director as a defendant. Plaintiff contended that sections 3-103 and 3-

107(a) of the Review Law (735 ILCS 5/3-103, 3-107(a) (West 2004)) authorized amendment of

its complaint to add the Director as a defendant. Defendant replied that those sections did not

authorize amendment of the complaint, under the circumstances of the instant case, where

plaintiff had essentially failed, in the first instance, to name Athe administrative agency@ in its

complaint. The circuit court agreed with defendant that the Director was the administrative

agency and, thus, sections 3-103 and 3-107(a) did not authorize amendment under the

circumstances of this case. Accordingly, the circuit court dismissed plaintiff's complaint.

Plaintiff filed this timely appeal.

        This appeal involves only the legal issue of whether dismissal of the complaint was

correct under the requirements of the Review Law. Thus, our review is de novo. Collinsville

Community Unit School District No. 10 v. Regional Board of School Trustees, 218 Ill. 2d 175,

181, 843 N.E.2d 273, 277 (2006).

        Under section 3-103 of the Review Law, a complaint to review a final administrative



                                                  2
1-05-1464

decision must be filed and summons issued within 35 days of the date that a copy of the

administrative decision was served upon the party affected by the decision. 735 ILCS 5/3-103

(West 2004). Prior to 1997, the courts interpreted the Review Law as requiring all proper

defendants to be correctly named within the 35-day period for filing a complaint for review.

Fragakis v. Police & Fire Comm'n, 303 Ill. App. 3d 141, 707 N.E.2d 660 (1999). In 1997,

however, the General Assembly adopted a number of amendments to the Review Law. Pub. Act

89-685 '25, eff. June 1, 1997. The purpose of the amendments was Ato reduce the possibility of

error in naming and serving individuals who [were] acting in their official capacities as

employees, agents, or members of the administrative agency or governmental entity and to avoid

the harsh result of dismissing the complaint where the agency or entity ha[d] been named and

served.@ Bunnell v. Civil Service Comm'n, 295 Ill. App. 3d 97, 101, 692 N.E.2d 384, 387 (1998).

       Section 3-107(a) of the Review Law, as amended, provides:

       ANo action for administrative review shall be dismissed for lack of jurisdiction

       based upon the failure to name an employee, agent, or member, who acted in his

       official capacity, of an administrative agency, board, committee, or government

       entity, where the administrative agency, board committee, or government entity,

       has been named as a defendant as provided in this [s]ection.@ (Emphasis added.)

       735 ILCS 5/3-107(a) (West 2004) (language added by Pub. Act 89-685, '25, eff.

       June 1, 1997 (1996 Ill. Laws 3706, 3721)).

Plaintiff contends that this language should be interpreted to mean that its failure to name the

Director, an employee, who was acting in her official capacity, of an administrative agency, i.e.



                                                 3
1-05-1464

the Department, does not warrant dismissal of its complaint for administrative review because it

named the administrative agency, i.e. the Department. In arguing that section 3-107(a), as

amended, applies here, plaintiff's argument is as follows: (1) the Aadministrative agency@ is the

Department; (2) plaintiff named the Aadministrative agency@; and (3) because plaintiff named the

administrative agency, it is not prohibited from amending its complaint to name an employee of

that administrative agency, i.e., the Director, who acted in an official capacity as Aa party of

record to the administrative proceeding@ (735 ILCS 5/3-107(a) (West 2004)). Defendant,

however, contends that the Director, in rendering her decision, was the Aadministrative agency.@

Thus, plaintiff did not name the administrative agency and the trial court correctly dismissed

plaintiff's complaint.

       A proper construction of the Review Law requires that this court determine precisely

which Aadministrative agency@ is involved. Contrary to plaintiff's assertions, the critical inquiry

here is determining the Director's status and whether she, as opposed to the Department

generally, was the Aadministrative agency@ to which the relevant provisions of the Review Law

pertain.

       Section 3-101 of the Review Law defines administrative agency as follows:

               A 'Administrative agency' means a person, body of persons, group, officer,

       board, bureau, commission or department (other than a court or judge) of the

       State, or of any political subdivision of the State or municipal corporation in the

       State, having power under law to make administrative decisions.@ (Emphasis

       added.) 735 ILCS 5/3-101 (West 2004).



                                                  4
1-05-1464

Because both a Aperson,@ such as the Director, and a Adepartment,@ such as the Department here,

may be an administrative agency, we must look to see which one, in the present case, had the

requisite Apower under law to make administrative decisions.@

       It has been recognized that the Director is the head of the agency known as the Illinois

Department of Employment Security. See, e.g., Veazey v. Baker, 322 Ill. App. 3d 599, 749

N.E.2d 1060 (2001). 1 Nevertheless, although the Department itself is an administrative agency, 2

       1
        The Veazey court nonetheless explained that Awhen relief is sought from an adverse

decision involving a claim for unemployment compensation benefits, the Board [of Review] is

the 'administrative agency' from which the plaintiff must seek review.@ Veazey, 322 Ill. App. 3d

at 603, 749 N.E.2d at 1063.

       2
        Under the Department's own rules, A 'agency' means the Department of

Employment Security.@ 56 Ill. Adm. Code '2720.1, as amended by 21 Ill. Reg. 12129

(eff. August 20, 1997).




                                                5
1-05-1464

it has been well-established for some time that the Director alone is also an administrative

agency. See E&E Truck Line, Inc. v. Department of Employment Security, 262 Ill. App. 3d 547,

634 N.E.2d 1191 (1994). In E&E Truck Line, this court explained that the Director was the

Aadministrative agency@ which made the final decision and had to be named in the caption of the

complaint. E&E Truck Line, Inc., 262 Ill. App. 3d at 551, 634 N.E.2d at 1194. Because the

employer had not named the Director as a defendant, the E&E Truck Line court held that the

circuit court lacked jurisdiction to hear the employer's complaint seeking judicial review of the

Director's decision. E&E Truck Line, 262 Ill. App. 3d 547, 634 N.E.2d 1191.

       Nothing in the amendments to the Review Law allows this court to have jurisdiction

where the administrative agency is not named. Thus, section 3-107(a) does not save plaintiff's

complaint because the administrative agency was not named as a defendant.

       In the present case, as in E&E Truck Line, the Director was acting pursuant to statutory

authority that was explicitly vested in her. Under section 2200 of the Unemployment Insurance

Act, the Director issues final administrative decisions regarding determinations and assessments

as to the amount to be paid for unemployment insurance contributions by an employing unit. 820

ILCS 405/2200 (West 2004). That power is not vested in the Department Agenerally.@ Under the

definition set forth in section 3-101 of the Review Law, the Director is the Aadministrative

agency@ because she is the person who has the power under law to make administrative decisions

regarding unemployment insurance assessments. We believe that the Director had to be named

as a defendant because she was the administrative agency that issued the final administrative

decision.



                                                 6
1-05-1464

       As further support for its argument that it should be allowed to add the Director to its

complaint, plaintiff cites Traficano v. Department of Human Rights, 297 Ill. App. 3d 435, 697

N.E.2d 372 (1998). In Traficano, this court held that a former employee's failure to name the

chief legal counsel of the Department of Human Rights did not prevent the former employee

from amending his complaint to add the chief legal counsel. This court concluded that

A[i]ndisputably, the chief legal counsel of the Department was an employee or agent of the

Department acting in her official capacity.@ Traficano, 297 Ill. App. 3d at 439, 697 N.E.2d at

374.

       The reasoning in Traficano does not apply here. Although the chief legal counsel in

Traficano was the final decision maker, he was not the Aadministrative agency.@ The agency was

the Department of Human Rights and it was the decision of that Aadministrative agency@ that the

chief legal counsel reviewed. Plaintiff fails to recognize that the Director's role, under the facts

of the instant case, was not quite so circumscribed. Here, the Director was not acting as an agent

or employee of the Department when she rendered her final administrative decision. Instead, the

Director was the administrative agency that made the decision. Because plaintiff's underlying

premise that the Department is the agency is incorrect, plaintiff's argument must fall.

       In sum, the Director here was the pertinent Aadministrative agency@ because she was a

Aperson@ who had the relevant Apower under law to make administrative decisions.@ 735 ILCS

5/3-101 (West 2004). She made her administrative decision under the authority vested

exclusively in her pursuant to section 2200 of the Unemployment Insurance Act. 820 ILCS

405/2200 (West 2004). Plaintiff named the Department, but that is insufficient. While the



                                                  7
1-05-1464

Department may be an administrative agency, under the statutory scheme here, it does not have

the relevant Apower under law to make administrative decisions.@ The Department may be Aan@

administrative agency, but, in the instant case, it is not Athe@ administrative agency as defined by

the statutes.

        We hold that the Director of Employment Security is the Aadministrative agency@ who is

required by section 3-107(a) of the Review Law to be named as a defendant in complaints for

administrative review of the Director's decisions. Therefore, because plaintiff failed to name the

administrative agency, i.e., the Director, within the 35-day time limit required by section 3-103

of the Review Law, the circuit court lacked jurisdiction and correctly dismissed plaintiff's

complaint.

        Affirmed.

        O'MARA FROSSARD and NEVILLE, JJ., concur.




                                                 8
