Opinion
11-P-331
11-23-2011
DEDHAM MEDICAL ASSOCIATES, INC. v. DIRECTOR OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Dedham Medical Associates, Inc. (Dedham Medical), appeals from the dismissal of its declaratory judgment action brought pursuant to G. L. c. 231A, §§ 1 et seq. The complaint sought a declaration that the Department of Workforce Development (DWD) had 'acted arbitrarily, capriciously, with abuse of discretion and otherwise not in accordance with the law' when it denied Dedham Medical's request for a retroactive change in its method of unemployment insurance payment, from the contributory method to the reimbursable method. We affirm.
We summarize the facts alleged in the complaint, accepting them as true and drawing all reasonable inferences in Dedham Medical's favor. In February, 2008, Dedham Medical, pursuant to G. L. c. 151A, § 14A, elected to change from a contributory to a reimbursable method of payment. At the same time, Dedham Medical asked that DWD grant a fifteen-month period of retroactivity for the change (back to January 1, 2007). Dedham Medical made this request pursuant to G. L. c. 151A, § 14A(a)(5), as amended through St. 1990, c. 177, § 257, which provides as follows:
'[DWD] may for good cause extend the period within which a notice of election, or a notice of termination, shall be filed and may permit an election to be retroactive but not earlier than January first of the calendar year immediately preceding the date said notice was filed.'DWD, on February 29, 2008, denied Dedham Medical's request for retroactivity. Discussions followed, but Dedham Medical was unsuccessful in its efforts 'to obtain reconsideration of the Director's decision.' Dedham Medical's complaint alleged that all 'available administrative remedies have been exhausted, and the decision is apparently final.'
Discussion. Dedham Medical's complaint sought only a declaration under the declaratory judgment statute; it was not an action for certiorari. The crux of the issue before us is whether the agency's decision to reject Dedham Medical's request for a fifteen-month period of retroactivity was discretionary such that the only avenue of relief was through an action in the nature of certiorari.
The complaint itself avers that the defendant committed an abuse of discretion in denying the request for retroactivity. This could easily be read as an acknowledgement that the nature of the decision was discretionary. Even though we do not end our analysis on that basis, we consider the admission in the complaint to bear on it.
'[T]he primary source of insight into the intent of the Legislature is the language of the statute.' International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). Here, the statute provides that the commissioner 'may permit an election to be retroactive' (emphasis added), with certain constraints pertaining to the length of the period of retroactivity. G. L. c. 151A, § 14A(a)(5). 'The use of the word 'may' denotes a discretionary power.' Provencal v. Commonwealth Health Ins. Connector Authy., 456 Mass. 506, 513 (2010), citing Brittle v. Boston, 439 Mass. 580, 594 (2003) ('may' is permissive, not mandatory), and Turnpike Amusement Park, Inc. v. Licensing Commn. of Cambridge, 343 Mass. 435, 437 (1962) ('The word 'may' in a statute commonly imports discretion'). 'Massachusetts law has consistently held that the word 'may' in a statute 'is a word of permission and not of command." Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 527 (2008), quoting from Cline v. Cline, 329 Mass. 649, 652 (1953). 'In general, throughout our statutes, the distinction between words of permission or discretion and words of command, including the distinction between 'may' and 'shall,' has been carefully observed.' Cline v. Cline, supra, quoting from Brennan v. Election Commrs. of Boston, 310 Mass. 784, 786 (1942). We see no reason to depart from that consistent practice here.
Because the determination whether to grant retroactivity is, by virtue of the plain language of G. L. c. 151A, § 14A(a)(5), a discretionary one, declaratory judgment under G. L. c. 231A was not the proper mechanism by which to seek review of that decision. See Johnson Prods., Inc., v. City Council of Medford, 353 Mass. 540, 543-546 (1968). An action in the nature of certiorari under G. L. c. 249, § 4, was the only proper procedural avenue for relief. See Bermant v. Selectmen of Belchertown, 425 Mass. 400, 403-404 (1997).
For these reasons, the judgment of dismissal is affirmed.
Deciding as we do, we do not reach Dedham Medical's argument that its request for retroactivity should have been allowed on the merits.
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So ordered.
By the Court (Green, Sikora & Wolohojian, JJ.),