22 Mass. App. Ct. 705 | Mass. App. Ct. | 1986
On its face, a judge of the Superior Court decided, the complaint in this case was time barred and, accordingly, he allowed a motion to dismiss under Mass.R.Civ.P. 12(b)(1) and (6), 365 Mass. 755 (1974). The case raises the question whether a person seeking review of a regulation promulgated by an administrative agency is bound by a limitation period contained in a statute which prescribes the method for reviewing
Under G. L. c. 94A, § 21, as appearing in St. 1983, c. 691, § 38, a “person aggrieved by any . . . regulation adopted by ... the commissioner [of food and agriculture] may, by petition filed within twenty days after the publication or service of such . . . regulation . . ., obtain a review by the superior court of the proceedings of the commissioner on which such . . . regulation . . \ was based.” According to their complaint, the plaintiffs, a trade association of milk dealers and a licensed milk dealer (hereinafter collectively called “the milk dealers”), are aggrieved by a regulation, 330 Code Mass. Regs. 21 (1984), which requires certain record keeping and reports. That regulation was published in the Massachusetts Register on November 8, 1984. The milk dealers brought no action within twenty days under G. L. c. 94A, § 21; rather, on December 21, 1984, forty-three days after publication, they filed a complaint for declaratory judgment. Although it was not pleaded in the complaint, the judge took into account that the milk dealers (they so asserted in a memorandum to the motion judge) did not receive a complete copy of the regulation until November 28, 1984. If one calculates from that date, the milk dealers’ complaint still was not filed within the twenty-day limit set by G. L. c. 94A, § 21, for claiming judicial review of administrative agency action under the Milk Control Law, G. L. c. 94A.
To avoid the strictures of the twenty-day limitation period, the milk dealers rely on § 7 of the State Administrative Procedure Act (G. L. c. 30A), which provides that “[u]nless an exclusive mode of review is provided by law, judicial review of any regulation . . . may be had through an action for declaratory relief . . . .” G. L. c. 30A, § 7, as appearing in St. 1974, c. 361, § 3.
In the literal sense of the word “exclude,” i.e., shutting out (see Webster’s New Inti. Diet. 793 [3d ed. 1971]), there is no express language in § 21 which bars other avenues of review. Yet § 21 sets out a particularized method of judicial review of
Our view as to the exclusivity of G. L. c. 94A, § 21, as the avenue of review in this case is reinforced by the requirement of G. L. c. 94A, § 19(g)(2), as appearing in St. 1983, c. 691, § 36, that notice of a general hearing be provided by mail “to each licensee deemed by the commissioner to be affected thereby.” In consequence there is a higher assurance that all persons concerned will have been alerted to and partaken in the rule making proceedings. There is reason to conclude that the specially alerted participants were to be bound to a prescribed limitation period. Compare the general notice requirements of the State Administrative Procedure Act which appear in G. L. c. 30A, § 3. We also take as an indicator of conscious policy the recognition accorded by the Legislature to the Milk Control Law in adopting the State Administrative Procedure Act and, conversely, to the State Administrative Procedure Act when recently amending the milk control law. Thus, when in 1954 the State Administrative Procedure Act was established, St. 1954, c. 681, § 7, expressly took account
The express reference by the Legislature to G. L. c. 94A, § 21, in St. 1954, c. 681, stands in contrast, for example, to G. L. c. 25, § 5 (review of rulings of the Department of Public Utilities), which was not mentioned in the 1954 act. Indeed, the scope of G. L. c. 25, § 5, and its applicability to general regulations was doubtful; hence a request for a declaratory judgment was an available and prudent mode of judicial review of regulations promulgated by the Department of Public Utilities. Cambridge Elec. Light Co. v. Department of Pub. Util., 363 Mass. 474, 502-503 (1973). See also Newton v. Department of Pub. Util., 339 Mass. 535, 544 (1959), comparing review under G. L. c. 25, § 5, which accords rights only to parties in interest, with the more plenary avenue of review under G. L. c. 94A, § 21, which is open to “[a]ny person aggrieved” and by its terms includes review of rule making. Unlike the uncertainty expressed by parties in the Cambridge Elec. Light Co. case, there has not been confusion in past instances as to the path to follow when challenging a regulation promulgated under the Milk Control Law. See, e.g., Dacey v. Milk Control Commn., 340 Mass. 681, 683 (1960). A party in the Dacey case, coincidentally, was Cumberland Farms, Inc. (as intervener), represented by the same lawyer who appears on its behalf in the instant case. In Dacey and a related case, Cumberland Farms, Inc. v. Milk Control Commn., 340 Mass. 672 (1960), the court reviewed milk control regulations under § 21 on both substantive and procedural grounds. On the
Particularly, in the absence of special circumstances, usually ones involving a question of broad and acute public interest, declaratory relief should not be used to circumvent a period prescribed by statute for obtaining judicial review. Second Church in Dorchester v. Boston, 343 Mass. 477, 479 & n.l (1962). Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 326 (1964). School Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 807-808 (1985). Boston v. Second Realty Corp., 9 Mass. App. Ct. 282, 284-285 (1980). Stripinis v. Whitman-Hanson Reg. Dist. Sch. Comm., 9 Mass. App. Ct. 819 (1980). Kaufman v. School Comm. of Boston, 18 Mass. App. Ct. 909, 909-910 (1984). The establishment of a time limitation for judicial review of administrative agency action does, after all, stand as a legislative judgment that it is in the public interest that agency action be authoritative and certain if it is not challenged within the prescribed time. See Natural Resources Defense Council v. Nuclear Regulatory Commn., 666 F.2d 595, 602 (D.C. Cir. 1981), which speaks of the important purpose of limitation periods for judicial review to impart finality into the administrative process and to protect “the reliance interests of regulatees who conform their conduct to the regulations.” A number of cases in the tax field which have permitted limitation periods to be surmounted by actions for declaratory relief, see, e.g., Meenes v. Goldberg, 331 Mass. 688, 691 (1954), and Madden v. State Tax Commn., 333 Mass. 734, 735-737 (1956), have not been applied in other administrative contexts. See East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass, at 449; School Comm. of Franklin v. Commissioner of Educ., 395 Mass, at 807-808.
As the Westland case suggests, a case might stand differently, i.e., it might be in the “special circumstances” category, if a party sought to challenge by declaratory relief an administrative regulation to be applied to that party and if the challenger had not been aware, or had no occasion to be aware, of the rule
Federal cases construing § 2344 of the Hobbs Act, 28 U.S.C. § 2344 (1982), are instructive on this score. They have resisted untimely attempts
The judgment dismissing the complaint is affirmed.
So ordered.
They now appear in G. L. c. 30A, § 14(7).
The time limit under the Hobbs Act for review of orders of enumerated Federal agencies is sixty days. See 28 U.S.C. §§ 2342 & 2344 (1982 & Supp. Ill 1985).