MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR
JUDGMENT ON THE PLEADINGS
MICHAEL D. RICCIUTI, Justice of the Superior Court
Massachusetts Department of Correction ("DOC")
moves pursuant to G.L. c. 30A, § 14, G.L. c. 151B,
§ 6, Superior Court Standing Order 1-96, and Mass. R.
Civ. P. 12(c) to vacate an assessment of interest on
attorneyâs fees and costs imposed by defendant Massachusetts
Commission Against Discrimination ("MCAD") in a
decision rendered in favor of defendant Pamela Scanlon, a DOC
employee, on September 28, 2017. MCAD opposes and cross-moves
for judgment on the pleadings. Scanlan adopts and
incorporates the MCADâs arguments.
consideration of the partiesâ memoranda of law and oral
arguments, and for the reasons that follow, DOCâs motion for
judgment on the pleadings is
ALLOWED and the MCADâs cross-motion
for judgment on the pleadings is
for judicial review of administrative agency proceedings are
resolved through motions for judgment on the pleadings under
Mass. R. Civ. P. 12(c). Massachusetts Superior Court Standing
Order 1-96, § 4. The Courtâs "review shall be
confined to the record." Id. at § 5.
"Such record âshall consist of ... the entire
proceeding." Id. at § 2, quoting G. L. c.
30A, § 14. The record in this case reveals the following
Scanlon filed a charge of discrimination against the DOC and
litigated it before the MCAD pursuant to G. L. c. 151B,
§ 5, not in Superior Court pursuant to G.L. c. 151B,
§ 9. On or about March 19, 2013, and pursuant to G. L.
c. 151B, § 5, an MCAD Hearing Officer issued a decision
in favor of Scanlon and awarded her compensatory damages. On
or about March 29, 2013, Scanlon submitted a petition for
attorneyâs fees and costs.
appealed to the Full Commission of the MCAD.
September 28, 2017, the Full Commission affirmed the Hearing
Officerâs decision and awarded Scanlon attorneyâs fees of
$41, 600 and costs of $386, to which the MCAD added interest
calculated at 12% "from the date the petition for
attorneyâs fees was filed, until paid, or until this order is
reduced to a court judgment and post-judgment interest begins
to accrue." The Order concluded that "[t]his order
represents the final action of the Commission for purposes of
M.G.L. c. 30A. Any party aggrieved by this final
determination may contest the Commissionâs decision by filing
a complaint in superior court seeking judicial review ...
Failure to file a petition in court within thirty (30) days
of service of this order will constitute a waiver of the
aggrieved partyâs right to appeal pursuant to M.G.L c. 151B,
November 1, 2017, DOC field a timely complaint in this court,
seeking an order vacating the award of interest on attorneyâs
fees and costs.
Court may set aside the MCADâs decision only on the grounds
enumerated in G.L. c. 30A, § 14. See Howard
Johnson Co. v. Alcoholic Beverages Control Commân, 24
Mass.App.Ct. 487, 490 (1987). The Court thus reviews the
MCADâs decision to determine whether it was not supported by
substantial evidence, was arbitrary or capricious, or was
based on an error of law. G.L. c. 30A, § 14(7);
see also, e.g., The Local
Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228
(2010). A moving party bears a heavy burden of establishing
that an agencyâs decision is invalid. See
Merisme v. Board of Appeals on Motor Vehicle Policies and
Bonds, 27 Mass.App.Ct. 470, 474 (1989); Mass. Assân
of Minority Law Enforcement Officers v. Abban, 434 Mass.
256, 263-64 (2001).
generally review an agencyâs interpretation of law
de novo. However, we grant deference to the
interpretations administrative agencies make of the statutory
scheme that they administer." Trustees of Health &
Hosps. of the City of Boston, Inc. v. Massachusetts Commân
Against Discrimination, 65 Mass.App.Ct. 329, 333 (2005)
(citations omitted), affâd sub nom. Trustees of
Health & Hosps. of City of Boston, Inc. v. Massachusetts
Commân Against Discrimination, 449 Mass. 675 (2007).
Further, the Court gives due weight to the "experience,
technical competence, and specialized knowledge of the
agency" and the discretionary authority conferred upon
it, see G. L. c. 30A, § 14(7), and will not
substitute its judgment for that of the agency. Southern
Worcester Cnty. Regâl Cov. Sch. Dist. v. Labor Relations
Commân, 386 Mass. 414, 420-21 (1982).
151B claims are resolved through one of two generally
mutually-exclusive methods - before the MCAD pursuant to
§ 5 or before the Superior Court pursuant to § 9.
This is a § 5 case. Two years ago, in a § 9 case,
the Supreme Judicial Court decided Brown v. Office of the
Commissioner of Probation, 475 Mass. 675 (2016), in
which the Court found that sovereign immunity barred a
Superior Court from awarding post-judgment interest on an
award of attorneyâs fees and costs against a public
agency. The MCAD concedes that post-judgment
interests on attorneyâs fees and costs does not accrue under
Brown, but contests when "judgment" is
issued. Because the instant case was adjudicated before the
MCAD under § 5, not in Superior Court under § 9 as
was the case in Brown, the MCAD argues that the
Court should not read Brown to find that interest on
attorneyâs fees and costs imposed by the MCAD
constitutes post-judgment interest. Instead, the MCAD claims
that all the interest that accrues based upon the MCADâs
decision issued under § 5 is pre-judgment interest
because the MCAD must seek enforcement of a § 5 order in
Superior Court; until the Superior Court rules, it claims,
any interest that accrues on the judgment is
pre-judgment interest not within the scope of Brown.
MCADâs position is flawed. It proceeds from the erroneous
premise that the MCAD must always proceed in Superior Court
under § 6 for its § 5 order to be final. This is
not the case. Section 6 permits, but does not require, resort
to Superior Court by the MCAD or anyone who is
"aggrieved" by its decision. G.L. c. 151B, § 6
("Any complainant, respondent or other person aggrieved
by such order of the commission may obtain judicial review
thereof, and the commission may obtain an order of
court for its enforcement, in a proceeding as provided in
this section") (emphasis added). Unless a timely action
is filed in superior court, a § 5 decision of the MCAD
is final - and, indeed, will be given preclusive
effect under ...