Heard: May 4, 2016.
action commenced in the Superior Court Department on July 21,
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.
H. McKenna for Boston Retirement Board.
Present: Katzmann, Carhart, & Sullivan, JJ.
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. We conclude that
the appeal was timely, but we vacate the judgment affirming
the denial of benefits and remand the case for further
Timeliness of appeal from retirement board decision.
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.
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
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.
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. 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.
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,
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
"[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."
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
"[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).
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).
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").
Public Employee Retirement Administration Commission (PERAC)
promulgates regulations governing disability retirement
proceedings before local retirement boards. See 840 Code
Mass. Regs. §§ 10.00. 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). 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
construction of the enabling statute is also consistent with
the practice in other fora,  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.
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.