Nordberg v. Commonwealth

          Heard: April 10, 2019.

          Civil action commenced in the Superior Court Department on October 11, 2017. A motion to dismiss was heard by Jane E. Mulqueen, J.

          Paul C. Nordberg, pro se.

          Maryanne Reynolds, Assistant Attorney General, for the Commonwealth.

          Present: Rubin, Henry, & Wendlandt, JJ.

          WENDLANDT, J.

         The 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).^[2] 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.

         Background.

         Nordberg 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.^[3] 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.^[4]

         Nordberg 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.

         Discussion.

         We 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).

         1. Private right of action.

         The 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 ...