Appeals in Public Retirement Cases Catherine E. Sullivan Chair, Contributory Retirement Appeal Board MACRS Conference, Springfield, MA October 2, 2018 These comments represent the opinions and conclusions of the presenter and not necessarily those of CRAB or the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.

Appeal Basics G.L. c. 32, sec. 16(4) Appeal may be taken to the Division of Administrative Law Appeals (DALA): By “aggrieved person” From decisions by retirement boards or PERAC (Public Employee Retirement Administration Commission)

Excludes appeals from: Involuntary retirement orders under G.L. c. 32, § 16(1) Orders forfeiting retirement benefits under G.L. c. 32, § 15 These appeals go directly to District Court

Timing is Jurisdictional Appellant has 15 days from receipt of retirement board or PERAC decision to appeal If no decision is rendered one month after a written request, the appellant then has 15 days to appeal from the failure to act

Retirement board must provide appeal rights If no appeal rights given, decision not considered final Time limits strictly enforced and jurisdictional -- late appeals must be dismissed Motion to reconsider does NOT toll 15 days

DALA Basics DALA hearing is de novo – RB findings not binding Magistrate may dismiss for failure to state a claim Case may be decided on summary disposition if: -- no material facts in dispute, and -- one party prevails as a matter of law

Tips from DALA Retirement boards Be specific when issuing decisions Parties Elect decision on papers well before hearing Consider dispositive motions early

Tips from DALA (cont.) File single exhibit packet, include agency action, notice of appeal Put medical records in chrono order by provider Use joint stipulations Cite to record Be sure to file change of address

Appeals to Contributory Retirement Appeal Board (CRAB) from DALA Basics 15 day appeal period runs from DATE OF DALA DECISION NOT from date of receipt 15 day appeal period is jurisdictional – late appeals must be dismissed

Mailing Notice of Objection to CRAB Appeals to CRAB must be mailed or delivered – not faxed or emailed CRAB considers appeal filed on date of US Postal Service postmark Best practice: certified mail or US Postal Service proof of mailing Pitney Bowes postmark not accepted

Filing Exhibits at CRAB Appellant must file ALL exhibits marked at DALA by both parties 3 copies Table of Contents Either tabs or numbered pages – so a particular exhibit can be located

Filing Memoranda at CRAB Appellant must file memorandum of up to 20 pages Include record cites by page or number 3 copies of memorandum Appellant filings due 40 days from DALA decision

Appellee may file response memorandum 30 days after receipt of appellant filings Enlargements of time may be sought in writing from CRAB Chair Please provide a specific date for the requested enlargement

Special Situations Cross appeals Parties should cooperate and file only 3 sets of exhibits Each party may file memorandum and, if wish, response memo Review ordered by CRAB CRAB will request exhibits from DALA Each party may file memorandum and, if wish, response memo

CRAB Standard of Review “Substantial deference”- DALA findings of fact based on live testimony CRAB must explain if such finding not accepted “Some deference” - DALA findings based on written record Legal issues decided de novo

Appeal to Superior Court, G.L. c. 30A, § 14 Final decisions of CRAB Civil action filed within 30 days of receipt of CRAB decision 30 days jurisdictional unless Superior Court judge allows an extension BEFORE the 30- day period expires Unlike appeals to DALA and CRAB, a motion for reconsideration filed within 30 days tolls (stops) running of 30 day period

Superior Court Standard of Review Administrative appeals – deferential standard Review on administrative record only: Arbitrary, capricious, abuse of discretion, or unlawful Unconstitutional Legal, jurisdictional, procedural errors Not based on substantial evidence or unwarranted by findings

Appeal to Appeals Court 60 days from date of Superior Court judgment Notice of appeal filed in Superior Court, then clerk assembles record and case is “entered” in Appeals Court Same deferential standard of review

Appeal to Supreme Judicial Court Appeals Court decision final when “rescript” (official notice) sent to the Superior Court Rescript issues 20 days after Appeals Court decision Request for further appellate review in Supreme Judicial Court must be filed sooner than 20 days after Appeals Court decision SJC decides whether to accept a case for further appellate review

Appeal to United States Supreme Court Highly unlikely that Supreme Court would take case Supreme Ct has jurisdiction if SJC upholds a state statute in the face of a Federal constitutional challenge (28 USC § 1257) Party has 90 days from entry of judgment in SJC to file petition for writ of certiorari in Supreme Court