Opinion
PC-2017-1008
09-21-2017
LINDA RESNICK v. RETIREMENT BOARD OF THE EMPLOYEES RETIREMENT SYSTEM OF RHODE ISLAND
For Plaintiff: Vicki J. Bejma, Esq. For Defendant: John H. McCann, Esq.
Providence County Superior Court
For Plaintiff: Vicki J. Bejma, Esq.
For Defendant: John H. McCann, Esq.
DECISION
PROCACCINI, J.
Plaintiff Linda Resnick (Plaintiff or Resnick) appeals from a decision of the Retirement Board of the Employees' Retirement System of Rhode Island (Defendant or Board) in which it affirmed the denial of her petition for an award of litigation expenses, which was made pursuant to the Equal Access to Justice for Small Businesses and Individuals Act (EAJA), G.L. 1956 §§ 42-92-1 et seq. For the reasons set forth in this Decision, this Court affirms the decision of the Board.
I
Facts and Travel
Plaintiff worked as a teacher's assistant in the Pawtucket School Department for approximately twenty years until she retired in June 2013 under Title 45, as a member of the Municipal Employees' Retirement System (MERS). Before retiring, Resnick researched whether or not she would be permitted to substitute teach without risking suspension of her pension. Resnick's research directed her attention to G.L. 1956 § 16-16-24(a) , G.L. 1956 § 45-21-54 , and publications made by the Employees' Retirement System of Rhode Island (System), dating back to 2002. In addition, Resnick claimed that an employee of the System informed her that she could substitute teach for up to seventy-five days. Based on her research, and this communication, Resnick decided that she was eligible to substitute teach-while continuing to collect her MERS retirement pension-and subsequently began substitute teaching with the Pawtucket School Department. In early 2014, to clarify just how many days Resnick could substitute teach, her husband contacted the System and inquired as to how many days Resnick could substitute teach without impinging her benefits. This inquiry was considered by the Executive Director of the System, Frank Karpinski (Karpinski).
Section 16-16-24 states, in pertinent part:
"Any teacher or athletic coach certified pursuant to chapter 11.1 of this title, who has retired under the provisions of any law of this state, may substitute as a teacher at state schools and in the public schools of this state for a period of no more than ninety (90) days in any one school year without any forfeiture of, or reduction in, the retirement benefits and allowances the teacher is receiving, or may receive, as a retired teacher." Sec. 16-16-24(a).
Section 45-21-54 states, in pertinent part: "Any retired member of the [Municipal Employees' Retirement System] is permitted to reenter the service of the system for not more than seventy-five (75) working days in a calendar year without interruption of pension benefits."
In particular, Resnick relied upon a memorandum from 2002 which was written by Frank Karpinski, who is the Executive Director of the Employees' Retirement System of Rhode Island, which stated: "An individual who has retired pursuant to R.I.G.L. § 16, § 36 or § 45 is permitted to substitute [teach] but is still subject to the prohibitions and limitations contained within R.I.G.L. § 16-16-24 (i.e., 90 full days, 180 half days, etc.)" (Karpinski Mem. 2, Sept. 5, 2002.) In addition, Resnick relied upon the website of the System, which stated: "ERSRI or MERS retirees may substitute teach for a period of not more than 90 days or 180 half-days in any one school year . . . ."
On May 16, 2014, after consideration, Karpinski issued an Administrative Denial (Denial). Karpinski explained that the retirement laws of Rhode Island, specifically § 16-16-24, provide that in order to substitute teach after retirement without impinging on pension benefits, an individual must have retired as a teacher or athletic coach. Karpinski goes on to say that, because Resnick "retired as a municipal employee non-certified from the Pawtucket School Department and is collecting a pension from MERS[, ] . . . she is not eligible to engage in post-retirement employment by substituting as a teacher." Karpinski stated further that § 45-21-54, which governs post-retirement employment of retirees of MERS and allows a MERS retiree to work for a municipality for 75 full days in a calendar year, "does not authorize municipal retirees to be employed as a substitute teacher as that employment is governed by RIGL § 16-16-24." Karpinski concluded by stating: "Given that Ms. Resnick did not retire as a teacher, but rather retired as a municipal employee, she would be limited to post retirement employment with a city or town or a non-certified position with a school department." (Denial 2-3, May 16, 2014.) After receiving Karpinski's denial, Resnick timely requested a hearing on the Denial.
The System held a hearing in front of Hearing Officer Marcaccio (Marcaccio) on September 16, 2014. After the hearing, Marcaccio issued a decision in which he held that Resnick could substitute teach up to seventy-five days in a calendar year-as opposed to a school year-without impinging upon her MERS pension. Marcaccio specifically noted: "I cannot find any language that precludes a municipal retiree from working as a substitute teacher in the Rhode Island school systems." (Marcaccio Decision 6, Dec. 2, 2014.) The Board adopted Marcaccio's decision on February 24, 2015 and ruled that Resnick could substitute teach for seventy-five days while continuing to collect her MERS pension. Following the Board's adoption of Marcaccio's decision, Resnick, through her counsel, submitted to the System a petition for an award of her litigation expenses. Karpinski issued an Administrative Denial of the petition in which he stated: "We have reviewed the applicable statutes regarding [Resnick's] claims relative to fees under the EAJA and have concluded that the Executive Director had substantial justification for his [initial] decision." (Admin. Denial 1, July 28, 2015.) Again, Resnick timely requested a hearing on this denial.
The System held a hearing in front of Hearing Officer Rusbino (Rusbino) on February 23, 2016. After the hearing, but before Rusbino issued her decision, an amendment to § 16-16-24 became effective on July 12, 2016. Rusbino later issued a decision holding that Resnick was not entitled to an award of litigation expenses because the position of the System was substantially justified. The Board scheduled consideration of Rusbino's decision for February 8, 2017. The Board adopted Rusbino's decision and sent Resnick notice of its decision on February 15, 2017. Resnick timely commenced this action on March 3, 2017.
Section 16-16-24 states:
"Any retired member of the employees retirement system of Rhode Island under title 36 or 45, who is certified as a substitute teacher, may substitute as a teacher at state schools and in the public schools of this state for a period of no more than ninety (90) days in any one school year without any forfeiture of, or reduction in, the retirement benefits and allowances the substitute teacher is receiving, or may receive, as a retiree under any title." Sec. 16-16-24(e).
II
Analysis
The EAJA "'was propounded to mitigate the burden placed upon individuals and small businesses by the arbitrary and capricious decisions of administrative agencies made during adjudicatory proceedings.'" Tarbox v. Zoning Bd. of Review of Town of Jamestown, 142 A.3d 191, 199 (R.I. 2016) (quoting Krikorian v. R.I. Dep't of Human Servs., 606 A.2d 671, 674 (R.I. 1992)). The act encourages individuals and small businesses to challenge agency actions that are not substantially justified. See Tarbox, 142 A.3d at 200; see also Gutierrez v. Barnhart, 274 F.3d 1255, 1261 (9th Cir. 2001) (reiterating that "'a clearly stated objective of [the EAJA] is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority.'") (quoting Ardestani v. INS, 502 U.S. 129, 138 (1991)). Section 42-92-3 outlines a party's application for litigation expenses under the EAJA:
The EAJA was modeled on the Federal Equal Access to Justice Act, 28 U.S.C.A. § 2412. See Krikorian, 606 A.2d at 673. As a result, our Supreme Court has held that courts should look to federal case law when interpreting the EAJA. See id. at 674.
"Whenever the agency conducts an adjudicatory proceeding subject to this chapter, the adjudicative officer shall award to a prevailing party reasonable litigation expenses incurred by the party in connection with that proceeding. The adjudicative officer will not award fees or expenses if he or she finds that the agency was substantially justified in actions leading to the proceedings and in the proceeding itself." Sec. 42-92-3(a).
Therefore, a prevailing party in an agency action may be awarded reasonable litigation expenses if the agency was without substantial justification.
The Board argues, without citing to any legal authority, that Resnick is not a prevailing party because she was only granted the ability to substitute teach seventy-five days, not ninety days, as she had originally requested. This Court finds this argument unavailing. Resnick's goal was to be able to substitute teach without impinging upon her pension benefits and, although the Board did not grant her the ability to substitute teach up to ninety days, it did grant her the ability to substitute teach without impinging upon her pension benefits. Simply because the Board granted Resnick the ability to substitute teach up to seventy-five days, and not ninety, does not mean that she was not a prevailing party. See Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003) ("[A] [party] is a prevailing party under the EAJA if [it] succeed[s] on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit.") (internal quotations omitted).
"Substantial justification" is defined in § 42-92-2(7): "the initial position of the agency, as well as the agency's position in the proceedings, has a reasonable basis in law and fact." The agency "must show 'not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct.'" Krikorian, 606 A.2d at 675 (quoting Taft v. Pare, 536 A.2d 888, 893 (R.I. 1988)). However, "[s]ince fees are awarded only to a prevailing party, it follows that the fact that the government lost does not create a presumption that its position was not substantially justified." U.S. v. Yoffe, 775 F.2d 447, 450 (1st Cir. 1985).
Resnick argues that Karpinski lacked substantial justification, as is required by the EAJA. Resnick focuses her argument on Karpinski's "unexplained reversal of his earlier interpretation of the retirement statutes, " rather than Karpinski's position that she was unable to substitute teach under both § 16-16-24 and § 45-21-54. Resnick's focus is misplaced. The inquiry for this Court is not whether the change in interpretation was substantially justified, but rather whether Karpinki's, and, therefore, the Board's, initial position that Resnick could not substitute teach without impinging her benefits was substantially justified. See § 42-92-2(7) (defining substantial justification as "the initial position of the agency, as well as the agency's position in the proceedings, has a reasonable basis in law and fact"). Although the focus of Resnick's argument is misplaced, this Court will nevertheless consider whether Karpinski's initial position that Resnick could not substitute teach without impinging on her pension benefits was substantially justified. See § 42-92-5:
Resnick, in her Memorandum of Law to this Court, first argues that the doctrine of res judicata bars the Board from re-litigating the issue of substantial justification. Resnick claims that Hearing Officer Marcaccio's decision "impliedly found that [Karpinski] lacked substantial justification when forbidding Ms. Resnick to substitute teach without pension suspension." However, Marcaccio did not rule on whether Karpinski's decision was substantially justified because he "f[ound] that [Resnick's] claim [for fees] under the EAJA [was] premature, " as any award under the EAJA "shall be made at the conclusion of any adjudicatory proceeding . . . ." Marcaccio correctly noted that the Board's decision to accept, reject or modify his decision would be the conclusion of the adjudicatory proceeding.
"Any party dissatisfied with the fee determination by the adjudicatory officer may appeal to the court having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. If the court grants the petition, it may modify the fee determination if it finds that the failure to make an award, or calculation of the amount of the award, was not substantially justified based upon a de novo review of the record." (Emphasis added).
Based upon this Court's de novo review of the record, it finds that the initial position of Karpinski-that Resnick was ineligible to substitute teach-was substantially justified. A thoughtful reading of the applicable statutes on which Karpinski based his decision leads this Court to that conclusion.
When reviewing a statute, the Court's "'ultimate goal is to give effect to the purpose of the act as intended by the legislature.'" Providence Journal Co. v. Rhode Island Dep't of Pub. Safety ex rel. Kilmartin, 136 A.3d 1168, 1173 (R.I. 2016) (quoting Webster v. Perrotta, 774 A.2d 68, 75 (R.I. 2001)). In addition, "'[i]t is well settled that the plain statutory language is the best indicator of the General Assembly's intent.'" Twenty Eleven, LLC v. Botelho, 127 A.3d 897, 900 (R.I. 2015) (quoting Zambarano v. Ret. Bd. of the Emps.' Ret. System of R.I., 61 A.3d 432, 436 (R.I. 2013) (internal quotations omitted)). Moreover, if a statute's language "is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012). Regarding the plain meaning of words in a statute, our Supreme Court has said:
"In giving words their plain-meaning . . . we note that this approach is not the equivalent of myopic literalism. When we determine the true import of statutory language, it is entirely proper for us to look to the sense and meaning fairly deducible from the context. As we previously have held, it would be foolish and myopic literalism to focus narrowly on one statutory section without regard for the broader context." Ryan v. City of Providence, 11 A.3d 68, 71 (R.I. 2011) (internal citations and quotations omitted).
Consequently, the Court is required to "consider the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections." Twenty Eleven, LLC, 127 A.3d at 900 (internal quotations omitted).
In applying these rules to the applicable statutes, this Court is satisfied that Karpinski's initial position was substantially justified. At the time Karpinski denied Resnick the ability to substitute teach in May of 2014, subsection (e) of § 16-16-24, which expanded the class of individuals who could substitute teach, did not exist. When Karpinski denied Resnick the ability to substitute teach, §16-16-24 consisted of four subsections, (a)-(d). Those subsections allowed retired teachers and retired athletic coaches to work after retirement-including as a substitute teacher-and described the limitations of any such post-retirement employment. See § 16-16-24(a)-(d). Those subsections did not reference individuals who retired as a teacher's assistant, however. See id. Thus, giving the words of § 16-16-24 their plain and ordinary meaning, this statute, at the time Karpinski denied Resnick the ability to substitute teach, would not have applied to Resnick and would not have permitted her to substitute teach. Therefore, Karpinski's decision to deny Resnick the ability to substitute teach under § 16-16-24 was reasonable and well founded in fact and law. See Krikorian, 606 A.2d at 675.
Karpinski was also substantially justified in denying Resnick the ability to substitute teach under § 45-21-54. As noted earlier, Resnick retired as a member of MERS. This means that at the time Karpinski denied her the ability to substitute teach, her ability to work post-retirement would have been governed by § 45-21-54. Section 45-21-54 states, in pertinent part: "Any retired member of the [Municipal Employees' Retirement System] is permitted to reenter the service of the system . . . ." As Karpinski testified to in the hearing in front of Marcaccio, teachers are not covered by MERS, but rather they are covered by the State Employees' Retirement System. Therefore, this Court finds that if a member of MERS began to substitute teach, then he or she would not have "reenter[ed] the service of the system" as teachers are not covered by MERS.
In addition, the language of § 45-21-54 makes no mention of whether a member of MERS can or cannot substitute teach after retirement. Without clear language permitting MERS retirees to substitute teach, and without specific evidence that the Legislature intended for MERS retirees to be able to substitute teach, this Court is in no position to find that substitute teaching is permitted by the statute. See New England Die Co. v. General Products Co., 92 R.I. 292, 298, 168 A.2d 150, 154 (1961) ("[I]t is not within the province of this [C]ourt to insert in a statute words or language that does not appear therein except in those cases where it is plainly evident from the statute itself that the [L]egislature intended that the statute contain such provisions.").
Furthermore, the addition of subsection (e) to §16-16-24 suggests that, at the time Karpinski denied Resnick the ability to substitute teach, § 45-21-54 did not permit MERS retirees to substitute teach. As noted previously, § 16-16-24(e), which became effective in July 2016, states, in pertinent part: "Any retired member of the employees retirement system of Rhode Island under title 36 or 45, who is certified as a substitute teacher, may substitute as a teacher . . . ." If, at the time Karpinski made his decision regarding Resnick's eligibility to substitute teach, MERS retirees-those who retired under title 45-were permitted to substitute teach pursuant to § 45-21-54, then the addition of subsection (e) to § 16-16-24 would have been unnecessary. Therefore, because the Legislature, by adding subsection (e) to § 16-16-24 has now made it clear that a MERS retiree can substitute teach, Karpkinski's decision to deny Resnick the ability to substitute teach under § 45-21-54 was reasonable and well founded in fact and law. See Krikorian, 606 A.2d at 675.
III Conclusion
The Court finds that Karpinski was substantially justified in denying Resnick the ability to substitute teach under both § 16-16-24, as it was written in 2014, and § 45-21-54. Counsel shall submit an appropriate order and judgment for entry consistent with this Decision.