Opinion
11-P-2104
01-08-2013
JOHN F. BAKER v. DIRECTOR OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE.
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, John F. Baker, appeals from an order of the District Court affirming the Division of Unemployment Assistance's (DUA) decision denying the plaintiff's claim for unemployment benefits and dismissing his complaint. As of May, 2007, the plaintiff worked as a track laborer for the Massachusetts Bay Transportation Authority and a photo engraver for the Boston Herald newspaper. On or about July 6, 2007, the plaintiff suffered an injury that left him unable to work at either job. The plaintiff received workers' compensation benefits from July 6, 2007, until October 9, 2009, when he received a lump sum payment and was cleared to return to work.
The agency is now known as the Department of Unemployment Assistance.
While he was receiving workers' compensation benefits, the plaintiff's employment was terminated at both of his prior jobs. On October 9, 2009, the plaintiff filed a claim for unemployment benefits with the DUA, which was denied because he had not earned sufficient wages during the base period of two years. The plaintiff appealed the adverse decision, and the review examiner denied the appeal. The plaintiff requested review by the DUA Board of Review, which denied his request, making the examiner's decision the decision of the board. G. L. c. 151A, § 41(c). The plaintiff sought judicial review of the board's decision before the Taunton District Court pursuant to G. L. c. 151A, § 42, and G. L. c. 30A, § 14(7). A hearing was conducted at which the plaintiff indicated that his claim was based exclusively on the constitutionality of the statutes applied by DUA. The District Court judge denied the plaintiff's motion to remand the case to the DUA, affirmed the DUA's decision, and dismissed the plaintiff's complaint.
Disability payments, including workers' compensation payments, do not constitute wages for purposes of entitlement to unemployment benefits. See G. L. c. 151A, § 1(s)(A)(1).
The base period consists of 'the last four completed calendar quarters immediately preceding the first day of an individual's benefit year,' G. L. c. 151A, § 1 (a), as appearing in St. 1994, C. 260, § 2A, which in most cases is the 'period of fifty-two consecutive weeks beginning on the Sunday immediately preceding' the date the claim for unemployment benefits is filed. G. L. c. 151A, § 1(c), as appearing in St. 1951, c. 763, § 1 (c). However, if a claimant received workers' compensation benefits for at least seven weeks during the initial base period, the base period can be lengthened by the number of weeks the claimant was on workers' compensation, to a maximum of fifty-two additional weeks. G. L. c. 151A, § 1(a). Because the plaintiff received workers' compensation for more than fifty-two weeks, his base period extended to the maximum two-year period.
On appeal to this court, the plaintiff renews his constitutional challenge and argues that the base earnings provision of G. L. c. 151A, § 24(a), violates G. L. c. 151B (Massachusetts antidiscrimination law), G. L. c. 151B (Massachusetts Fair Employment Practices Act), G. L. c. 93, § 103(a) (Massachusetts Equal Rights Act), and the Massachusetts Declaration of Rights by discriminating against handicapped individuals who have been unable to work for more than two years. The parties are in agreement about the terms of the statute. The plaintiff does not argue that the DUA improperly applied the provision of the statute to his case but, rather, that the statute itself is unconstitutional. Such a challenge cannot be made in the context of an appeal of an agency decision pursuant to G. L. c. 30A.
General Laws c. 151A, § 42, provides for a direct appeal to the Appeals Court from a District Court decision reviewing a DUA decision.
Substantive challenges to the validity of a statute or regulation governing an administrative agency must be brought by means of declaratory judgment action pursuant to G. L. c. 231A, § 2, and G. L. c. 30A, § 7. See Salisbury Nursing & Rehabilitation Center, Inc. v. Division of Administrative Law Appeals, 448 Mass. 365, 371(2007); Doe v. Sex Offender Registry Bd., 459 Mass. 603, 629-31 (2011); Naranjo v. Department of Rev. Mass. App. Ct. 260, 266 (2005). General Laws c. 231A, § 2, grants the Superior Court 'specific, exclusive authority to issue injunctive relief and determinations as to 'the legality of the administrative practices and procedures of any. . . state agency,' to the extent that the practices and procedures are alleged to violate the United States Constitution, or the Constitution or laws of the Commonwealth, or any rule or regulations promulgated under such laws.' Naranjo v Department of Rev., supra, quoting from G. L. c. 231A, § 2, inserted by St. 1974, c. 630, § 1. While this court has jurisdiction to review a District Court decision under G. L. c. 151A, § 42, a challenge to the constitutionality of a statute the agency is required to apply, as opposed to the manner in which it was applied, cannot be litigated in an administrative proceeding before that agency, but must be brought in an independent action. See Doe v. Sex Offender Registry Bd., supra at 631 ('board does not have the authority to determine the constitutionality of the regulations that it must employ'; 'because Doe failed to file an original action for declaratory relief in the Superior Court, we are without jurisdiction to decide the constitutionality of the classification scheme'). See also Beth Israel Hosp., Inc. v. Rate Setting Commn., 24 Mass. App. Ct. 495, 502 (1987). Therefore, the District Court decision dismissing the plaintiff's complaint was correct.
Order entered January 3, 2011 affirmed.
By the Court (Grasso, Fecteau & Agnes, JJ.),