Opinion
14-P-1420
08-25-2015
KERRY SULLIVAN O'GRADY v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Kerry Sullivan O'Grady, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB), which denied her application for option D survivor benefits under her father's State police pension plan. We affirm.
Background. Brian Sullivan was a full-time State police trooper until his death on September 21, 2007. Shortly after he died, O'Grady applied to the State Board of Retirement (board) to receive option D survivor benefits, pursuant to G. L. c. 32, § 12(2)(d). Because the board had no option D beneficiary form for Sullivan, it denied O'Grady's request and, instead, voted to pay the lump sum amount of Sullivan's annuity account to his estate.
Under option D, a public employee enrolled in a contributory retirement system may elect to provide a designated beneficiary with a lifetime allowance should the employee die before retiring.
O'Grady appealed the board's decision to CRAB, which referred the matter to the Division of Administrative Law Appeals (DALA). No witnesses testified at the administrative hearing; the evidence consisted of eight exhibits introduced by O'Grady, and a stipulation of the parties to the general effect that neither the board nor the State police could locate any retirement documents pertaining to Sullivan.
The actual stipulation is not in the record before us. On the basis of what may have been an oral stipulation at the hearing, the DALA magistrate found that the board had "no records whatsoever" for Sullivan, and that the State police "had no records of any beneficiary information." Although no retirement enrollment form for Sullivan could be found, regular retirement deductions had been taken from his pay during the course of his employment. There is no evidence in the administrative record of the record-keeping practices of the board. The Superior Court judge noted in her decision that counsel for the board represented that Sullivan's "membership and retirement contributions were on [the board's] computer."
Among the exhibits offered by O'Grady were affidavits from herself and from Sullivan's girlfriend, Attorney Irene Carr. Both affidavits recounted discussions with Sullivan about his intentions with respect to his retirement benefits. O'Grady's affidavit stated that her father told her that he did not want his pension benefits forfeited to the State upon his death, that he "had made all of the proper arrangements regarding the beneficiary designation," and "that [she] would receive his pension benefits for the remainder of [her] life." Carr's affidavit stated that Sullivan told her that he had named O'Grady as "the lifetime beneficiary of his pension" and had "executed all of the appropriate forms to achieve this result." Carr also averred that she recalled "having a specific discussion that the 'D' form was the form to be used in this regard."
The DALA magistrate reasoned that, because the board had no documents pertaining to Sullivan's retirement, "including basic information [the board] would be expected to have," the absence of a beneficiary designation did not prove that none was ever filed. He then found that, in these circumstances, the affidavits of O'Grady and Carr sufficed to prove that Sullivan had completed and filed an option D form. Finally, the DALA magistrate concluded that the absence of the option D form was an error that could be corrected pursuant to G. L. c. 32, § 20(5)(c)(2). He, therefore, granted O'Grady's request for option D survivor benefits.
Upon the board's appeal, CRAB reversed, concluding that there was insufficient evidence to support the inference that Sullivan had filed completed option D paperwork. O'Grady then appealed to the Superior Court, pursuant to G. L. c. 30A, § 14(7). A judge of that court upheld CRAB's decision.
Standard of review. "It is well established that judicial review of a CRAB decision . . . is narrow." Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344 (2012). We consider only whether the decision was "based upon an error of law or wholly unsupported by substantial evidence." Fender v. Contributory Retirement Appeal Bd., 72 Mass. App. Ct. 755, 760 (2008) (citation omitted). See G. L. c. 30A, § 14. "We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts." Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 438 (2010) (citations omitted).
Analysis. Because there was no live testimony, CRAB was in the same position as the DALA magistrate; however, his subsidiary findings nevertheless were entitled to "some deference." Murphy, supra at 336 (citation omitted). See Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 483 n.2 (1985), and cases cited. Although O'Grady argues otherwise, it is evident that CRAB adhered to this standard and accepted the subsidiary facts found by the DALA magistrate. As it was permitted to do, however, CRAB revisited his conclusion that the evidence produced by O'Grady gave rise to an inference that the option D form had been filed as required by G. L. c. 32, § 12(2)(d).
On the state of the evidence, and given that O'Grady bore the burden of proof, see Narducci v. Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 136 (2007), CRAB's rejection of the DALA magistrate's conclusion was neither legally erroneous nor unsupported by substantial evidence. As the record stood, neither O'Grady nor Carr had personal knowledge that Sullivan actually had submitted the option D paperwork to the board. Indeed, there was no evidence that Sullivan took any of the necessary steps to effectuate an option D designation, including obtaining a copy of O'Grady's birth certificate, or having the option D form witnessed. There was no copy of the option D form, or any documentation or receipt indicating that he mailed or delivered it to the board. Nor was there any evidence of the routine practices employed by the board and the State police in receiving and keeping records.
On this state of the evidence, CRAB was entitled to conclude that it was too speculative to infer that Sullivan had filed an option D form that subsequently was lost.
Judgment affirmed.
By the Court (Cohen, Green & Trainor, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 25, 2015.