1. 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.

2. 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)

3. 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

4. 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

5. 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

6. 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

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

8. 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

9. 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

10. Mailing Notice of Objection to CRAB
Appeals to CRAB must be mailed or delivered – not faxed or ed
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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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