PAUL C. NORDBERG
COMMONWEALTH & others.
Heard: April 10, 2019.
action commenced in the Superior Court Department on October
11, 2017. A motion to dismiss was heard by Jane E. Mulqueen,
C. Nordberg, pro se.
Maryanne Reynolds, Assistant Attorney General, for the
Present: Rubin, Henry, & Wendlandt, JJ.
plaintiff, Paul C. Nordberg, appeals from a judgment
dismissing his complaint seeking a declaration, pursuant to
the Declaratory Judgment Act, G. L. c. 231A, §§ 1-9
(the act), as to the proper construction of line items set
forth in the general appropriation acts in each of four
consecutive years ("budget statutes"). The line
items at issue appropriate certain funds for
"enhanced" salaries for teachers working at the
Department of Youth Services (DYS). The defendants moved to
dismiss pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass.
754 (1974), and Mass. R. Civ. P. 12 (h) (3), 365 Mass. 754
(1974), contending that neither the act nor the budget
statutes created a private right of action for such a
declaration and they have not waived sovereign immunity. A
Superior Court judge allowed the motion. We reverse in part.
is a teacher employed by the Collaborative for Educational
Services (CES) of Northampton. CES contracts to provide
education services for youth in the custody of
DYS. Pursuant to the contract, Nordberg has
taught at DYS facilities for the last twelve years. For each
fiscal year from 2015 to 2018, the general appropriation act
included a line item for "enhanced salaries for teachers
at the department of youth services." See note 2,
supra. The complaint alleges that the purpose of
these line items was to make DYS teachers' salaries more
competitive. While the precise amount allocated to the line
items varied from year to year, it was always slightly over
$3 million. Nordberg alleges that the full amount
appropriated was not spent. For two of the fiscal years,
Nordberg asserts that DYS received less than $300, 000 in
salary increases; for one fiscal year, Nordberg asserts none
of the appropriated funds were spent.
brought this action pursuant to G. L. c. 231A, seeking a
declaratory judgment that the line items required DYS to
increase teachers' salaries such that (1) for each fiscal
year, DYS teachers' aggregate raises had to equal the
full amount in each fiscal year's respective line item,
and (2) for each subsequent year, the base salary scale for
teachers should have been increased by the prior year's
allocation. The defendants moved to dismiss, arguing that
Nordberg does not have a private right of action and there
had been no waiver of sovereign immunity.
review the allowance of a motion to dismiss pursuant to rule
12 (b) (1) for lack of subject matter jurisdiction de novo,
accepting the complaint's allegations as true and drawing
all reasonable inferences in favor of the plaintiff. See
New Bedford Educators Ass'n v.
Chairman of the Mass. Bd. of Elementary & Secondary
Educ, 92 Mass.App.Ct. 99, 106 (2017); 311 W.
Broadway LLC v. Board of Appeal of
Boston, 90 Mass.App.Ct. 68, 73 (2016). Subject matter
jurisdiction "concerns a court's competence to
adjudicate a particular category of cases" and requires
us to ask whether the "Legislature empowered the court
to hear cases of a certain genre." Wachovia Bank,
Natl Ass'n v. Schmidt, 546 U.S.
303, 316 (2006). See Weiler v.
PortfolioScope, Inc., 469 Mass. 75, 93 n.38 (2014).
Private right of action.
defendants contend that the court lacks subject matter
jurisdiction over Nordberg's complaint because Nordberg
does not have a private right of action to seek a declaratory
judgment as to the meaning of the line items. Whether a
plaintiff has a private right of action does not concern the
court's subject matter jurisdiction. See
Arroyo-Torresv.Ponce Fed. Bank,
F.B.S., 918 F.2d 276, 280 (1st Cir. 1990). Compare
Loffredov.Center for Addictive
Behaviors, 426 Mass. 541, 543, 547 (1998) (affirming
grant of summary judgment where enabling statute did not
create private right of action to enforce regulation).
Instead, the issue whether a private right of action exists
affects whether the plaintiff has an actionable claim. See
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974) (dismissal
for failure to state claim for which relief can be granted).
"The question whether a statute creates a cause of
action, either expressly or by implication, is basically a
matter of statutory construction." Unitrode
Corp. v.Dynamics Corp. of Am., 379
Mass. 487, 491 (1980), quoting Transamerica Mtge.
Advisors, Inc. v.Lewis, 444 U.S. 11,
15 (1979). We will not construe a statute to establish a
private right ...