Nordberg v. Commonwealth

• Decision Date: 10 October 2019
• Docket Number: No. 18-P-1071,18-P-1071
• Court: Appeals Court of Massachusetts
• Parties: Paul C. NORDBERG v. COMMONWEALTH & others.

96 Mass.App.Ct. 237

133 N.E.3d 859

Paul C. NORDBERG

v.COMMONWEALTH & others.¹

No. 18-P-1071

Appeals Court of Massachusetts, Worcester..

Argued April 10, 2019

Decided October 10, 2019

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, 83 N.E.3d 166 (2017) ; 311 W. Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73, 56 N.E.3d 854 (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, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 93 n.38, 12 N.E.3d 354 (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-Torres v. Ponce Fed. Bank, F.B.S., 918 F.2d 276, 280 (1st Cir. 1990). Compare Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543, 547, 689 N.E.2d 799 (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, 399 N.E.2d 5 (1980), quoting Transamerica Mtge. Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). We will not construe a statute to establish a private right of action without express terms or clear legislative intent to that effect. See Loffredo, supra at 543, 689 N.E.2d 799. Whether subject matter jurisdiction exists and whether a party had a private right of action both raise questions of law that we can assess on the record before us. Accordingly, we address both issues.

Nordberg maintains that subject matter jurisdiction is appropriate under § 2 of the act and that he has a cause of action for a determination of the proper construction of the line items of the budget statutes and the defendants' compliance therewith. Section 2 provides, inter alia, that "[t]he procedure [for obtaining a declaratory judgment] under section one^{[5 ]} may be used to secure determinations of right, duty, status or other legal relations under ... [a] statute ... including determination of any question of construction or validity thereof which may be involved in such determination." G. L. c. 231A, § 2. Section 2 provides further that the declaratory judgment procedure under § 1 may be used "to obtain a determination of the legality of the administrative practices and procedures of any ... state agency or official which practices or procedures^{[6 ]} are alleged to be in violation of ... [the] laws of the commonwealth ... which violation has been consistently repeated ...." Id.

The complaint here falls within the act. It seeks a determination that it is the duty of DYS to allocate the full amount of funds appropriated in the line items for teacher raises. The complaint avers that, for each of the fiscal years at issue, DYS's repeated and usual method of conducting its business -- specifically, its failure to expend (in full) the funds appropriated for teacher raises -- violated its obligation under the budget statutes, and seeks a declaration that Nordberg's construction of these statutes is correct.

Relying on Boston Med. Ctr. Corp. v. Secretary of the Executive Office of Health & Human Servs., 463 Mass. 447, 471, 974 N.E.2d 1114 (2012) ( Boston Medical ), the defendants maintain that the act cannot be used to circumvent the legislative decision not to create a private right of action within the budget statutes themselves. The Supreme Judicial Court rejected a similar argument in Service Employees Int'l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 335, 14 N.E.3d 216 (2014), holding that "[a] plaintiff may seek the equitable remedy of declaratory relief, even if the relevant statute does not provide a private right of action" (citation omitted).⁷ More recently, the court has reiterated that "a dispute over an official interpretation of a statute constitutes a justiciable controversy for purposes of declaratory relief." Kain v. Department of Envtl. Protection, 474 Mass. 278, 281, 49 N.E.3d 1124 (2016), quoting Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 493, 425 N.E.2d 745 (1981).

Boston Medical is not to the contrary. That case concerned a comprehensive statutory scheme and complex rate setting algorithm for hospitals serving low-income and vulnerable populations. Boston Medical, 463 Mass. at 451-452, 974 N.E.2d 1114. Significantly, the rate setting statute provided for judicial review of certain rates but explicitly excluded hospital rates from this process. See Id. at 454-455, 974 N.E.2d 1114. In that context, the court held that the act cannot be used to "circumvent a legislative judgment denying a provider the opportunity to seek ... judicial review of the reasonableness of payment rates" (citation omitted). Id. at 471, 974 N.E.2d 1114. See Second Church in Dorchester v. Boston, 343 Mass. 477, 479-480, 179 N.E.2d 598 (1962) (action under act impermissible where allowing action would circumvent statute of limitations applicable to tax controversies). Here, unlike in Boston Medical, the budget statutes do not prohibit judicial review of the proper construction of a line item. See Service Employees Int'l Union, Local 509, 469 Mass. at 336, 14 N.E.3d 216 ("To be sure, a party may not seek declaratory relief to effect an ‘end run’ around the absence of a private right of action where the Legislature intended to foreclose certain remedies" [emphasis added] ).

Indeed, as the defendants acknowledge, the Supreme Judicial Court has exercised subject matter jurisdiction to resolve disputes between an individual with standing and State officials regarding the proper construction of line items in budget statutes. See, e.g., Garcia v. Department of Hous. & Community Dev., 480 Mass. 736, 743, 751, 108 N.E.3d 945 (2018) (exercising jurisdiction over claim that State agency's practices regarding placement of families on emergency assistance failed to comply with line items in budget statute); Wilson v. Commissioner of Transitional Assistance, 441 Mass. 846, 858-859, 809 N.E.2d 524 (2004) (in an action for declaratory and injunctive relief against State officials, court construed line item in budget appropriation for emergency assistance program). See also Felicetti v. Secretary of Communities & Dev., 386 Mass. 868, 873, 438 N.E.2d 343 (1982) (exercising jurisdiction over suit against State officials who refused...