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Kalu v. Boston Retirement Board

Appeals Court of Massachusetts, Norfolk

October 14, 2016

OBIDIYA KALU
v.
BOSTON RETIREMENT BOARD & another. [1]

          Heard: May 4, 2016.

         Civil action commenced in the Superior Court Department on July 21, 2014.

         The case was heard by Peter B. Krupp, J., on motions for judgment on the pleadings.

          Charles E. Berg for the plaintiff.

          Elizabeth Kaplan, Assistant Attorney General, for Contributory Retirement Appeal Board.

          Edward H. McKenna for Boston Retirement Board.

          Present: Katzmann, Carhart, & Sullivan, JJ. [2]

          SULLIVAN, J.

         The plaintiff, Obidiya Kalu, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB). CRAB had determined that while Kalu's appeal from the denial of accidental disability retirement benefits by the Boston Retirement Board (BRB) was timely, she was not entitled to those benefits.[3] We conclude that the appeal was timely, but we vacate the judgment affirming the denial of benefits and remand the case for further proceedings.

         1. Timeliness of appeal from retirement board decision.

         The first issue presented is whether the fifteen-day appeal period from an adverse decision of a retirement board set forth in G. L. c. 32, § 16(4), begins to run when a represented applicant receives proper notice of the retirement board's decision, or when an applicant's legal counsel receives such notice. We defer to CRAB's reasonable interpretation of its enabling statute and conclude that the appeal period begins to run when notice is received by the applicant's counsel.

         After a hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) made factual findings on the issue of when notice was received, and by whom, all of which were adopted by CRAB. "We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts." Rockett v. State Bd. of Retirement, 77 Mass.App.Ct. 434, 438 (2010) (citation omitted). We summarize the pertinent findings, all of which were supported by substantial evidence.

         Attorney James Ellis filed the claim for accidental disability retirement benefits on Kalu's behalf on December 30, 2006. In October, 2008, the BRB held a hearing on Kalu's claim. Kalu was represented by Attorney Dennis Ellis, who is a member of a different law firm, at the hearing before the BRB. On June 23, 2009, the BRB denied Kalu's application, and subsequently sent a decision letter to Kalu's home address via certified mail. The decision letter stated that an appeal to CRAB must be filed "within 15 days of receipt of this notice." There was no evidence in the record that the decision letter was sent to (or received by) either Attorney Ellis.

         Kalu, due to her son's death in Nigeria, went to Nigeria from June until August of 2009, and had arranged for her daughter to collect her mail during this period. The daughter signed for the BRB decision letter on June 26, 2009. Contrary to her mother's directions, Kalu's daughter threw away some of the mail, including the decision letter.[4] Kalu, who retrieved her mail from her daughter promptly upon return, did not see the decision letter, and her daughter did not mention it to her.[5]

         Beginning in November, 2008, Attorney James Ellis's firm had made repeated inquiries to the BRB concerning any decision on Kalu's application. The BRB promised him (repeatedly) that it would provide him a copy, but did not. Attorney James Ellis did not receive a copy of the decision until November of 2009. James Ellis mailed Kalu's notice of appeal of the BRB's adverse determination to CRAB on November 12, 2009.[6]

         The BRB argued that Kalu's appeal was untimely because it was not filed within fifteen days of June 26, 2009, the date of signature on the certified mail receipt. The DALA magistrate concluded, however, that the fifteen-day appeal period "does not come into play until the appropriate person has received notice of the board's decision." Because Kalu was represented by legal counsel, the magistrate reasoned, "it was her legal counsel's receipt of [the decision letter] that triggered the fifteen day filing period and not . . . Kalu's receipt of that letter as received by her daughter on June 26, 2009." CRAB likewise concluded:

"[T]he appeal to DALA was filed 'within fifteen days of notification of such action or decision of the retirement board, ' as required by G. L. c. 32, § 16(4). Under § 16(4), notification must be made to the 'person' who is 'aggrieved' by the decision. Where Kalu was represented by counsel, notice to her counsel was, in effect, notice to her, and commenced the fifteen-day appeal window. While it was proper to send notice to Kalu as the 'person . . . aggrieved' under § 16(4), we agree with the magistrate that, where a retirement board is aware that a party is represented by counsel, notice also must be sent to counsel of record. A represented party is justified in expecting that, after the commencement of a proceeding and the appearance of counsel, copies of all notices will be sent to her attorney."

         The question before us is whether CRAB erred as a matter of law in construing G. L. c. 32, § 16(4), as amended through St. 1996, c. 306, § 21A, which provides in pertinent part:

"[A]ny person . . . aggrieved by any action taken or decision of the retirement board . . . may appeal to [CRAB] by filing therewith a claim in writing within fifteen days of notification of such action or decision of the retirement board" (emphasis supplied).

See Fender v. Contributory Retirement Appeal Bd., 72 Mass.App.Ct. 755, 760 (2008) (CRAB decision reviewable for error of law).[7]

         "As with any statute, we review questions concerning the meaning of an agency's enabling statute de novo. If the meaning of a term is clear in the plain language of a statute, we give effect to that language as the clearest expression of the Legislature's purpose. If, however, the statutory language is sufficiently ambiguous to support multiple, rational interpretations, we look to the cause of [the statute's] enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Peterborough Oil Co., LLC v. Department of Envtl. Protection, 474 Mass. 443, 448 (2016) (citations and quotations omitted). Additionally, "[w]hile the duty of statutory interpretation is for the courts ... an administrative agency's interpretation of a statute within its charge is accorded weight and deference. . . . Where the [agency's] statutory interpretation is reasonable . . . the court should not supplant [its] judgment." Id. at 449 (quotation omitted).

         The statute does not define "notification" (or any variant of the term) and is ambiguous with respect to who must be notified in the case of a represented applicant. See G. L. c. 32, §§ 1, 16; Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 188 (2009) (undefined language in statute is ambiguous where "susceptible of multiple, rational interpretations"). We therefore look to the intent of the statute, and any interpretive regulations, which also have the force of law. See Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 329 (2011). See also Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496 (2010) ("[A] properly promulgated regulation has the force of law and must be given the same deference accorded to a statute").

         The Public Employee Retirement Administration Commission (PERAC) promulgates regulations governing disability retirement proceedings before local retirement boards. See 840 Code Mass. Regs. §§ 10.00.[8] These include a section specifically authorizing representation by counsel before the local board, and requiring counsel to file a written appearance providing counsel's name, address, and telephone number to the board. See 840 Code. Mass. Regs. § 10.05(3) (1998).[9] Counsel's name, address, and telephone number are supplied for a reason. "Indeed, we may presume that a party who has retained counsel . . . has done so precisely because that party does not wish to assume personal responsibility for complying with the various procedural requirements of the [statute]. Moreover, the appeal period ... is very short; consequently, under [a] statutory construction [where the appeal period begins upon notice to the applicant], a party who receives notice of the . . . decision must promptly forward such notice to his or her counsel to avoid forfeiting the right to appeal. It is extremely unlikely that the [L]egislature intended to impose such a burden on a party who has retained counsel for the specific purpose of representing the party on such matters." Schreck v. Stamford, 250 Conn. 592, 598 (1999) (ten-day appeal period for workers' compensation claim begins to run when counsel is sent notice).

         CRAB's construction of the enabling statute is also consistent with the practice in other fora, [10] and promotes the purposes of the statute. "It shall be the policy of the retirement board to make every reasonable effort to assist retirement system members to exercise all rights and obtain all benefits to which entitled and as authorized by the laws governing ordinary and accidental disability retirement, while protecting the retirement system and the public against claims and payments for disability retirement not authorized by law." 840 Code. Mass. Regs. § 10.02 (1998). Notifying counsel of the disposition of an application for benefits is essential to the preservation of the applicant's right to obtain benefits, where warranted, and has no deleterious consequences in the event that the applicant is not entitled to benefits under applicable law.

         CRAB's determination that the appeal period began to run when counsel received notice is reasonable, and is entitled to deference. Kalu's appeal was timely because it was filed within fifteen days of notice to counsel.

         2. Entitlemen ...


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