High Watch Recovery Center, Inc. v. Dept. of Public Health ( 2021 )

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HIGH WATCH RECOVERY CENTER, INC. v.
DEPARTMENT OF PUBLIC
HEALTH ET AL.
(AC 43546)
Bright, C. J., and Moll and Harper, Js.
Syllabus
The plaintiff, a substance abuse treatment facility in Kent, appealed from
the judgment of the trial court dismissing its administrative appeal from
the final decision of the defendant Department of Public Health approv-
ing the application of the defendant B Co. for a certificate of need to
establish a substance abuse treatment facility in Kent. B Co. submitted
its application to the Office of Health Care Access pursuant to statute
((Rev. to 2017) § 19a-638 (a) (1)). The OHCA sent a notice to B Co.
stating that it would hold a hearing and that the notice was issued
pursuant to a statute ((Rev. to 2017) § 19a-639a (f) (2)), which provides
that the OHCA ‘‘may’’ hold a public hearing with respect to any certificate
of need application. The plaintiff filed a notice of appearance with the
OHCA and submitted a letter requesting to be designated as an intervenor
with full rights to participate in the proceeding. The OHCA granted the
plaintiff’s request and held a hearing on the application. B Co. and the
department entered into an agreement in which B Co.’s application was
approved subject to specific conditions, which constituted the final
order. The plaintiff appealed to the Superior Court, claiming that the
department abused its discretion when it approved B Co.’s application.
The defendants filed motions to dismiss on the grounds that there was
a lack of a final decision in a contested case and that the plaintiff was
not aggrieved by the department’s decision. The trial court granted the
defendants’ motions to dismiss on the ground that there was no final
decision in a contested case from which the plaintiff could appeal, and
concluded, therefore, that it did not have subject matter jurisdiction to
consider the plaintiff’s appeal. Held:
1. The trial court did not err in granting the defendants’ motions to dismiss:
nothing in the other subsections of § 19a-639a indicates that the legisla-
ture intended for the word ‘‘may’’ in § 19a-639a (f) (2) to be interpreted
in any other way except as to confer discretion, and, thus, a hearing
was not statutorily required on B Co.’s application; thus, the mere oppor-
tunity for a hearing, coupled with the holding of a hearing, in the absence
of a specific statute or regulation under which the hearing was required
to be held, was insufficient to constitute a contested case; moreover,
the plaintiff’s argument that a mandatory hearing was held because a
hearing officer stated at the beginning of the hearing that the proceeding
was being conducted as a contested case failed because the hearing
officer could not have converted the proceeding into a contested case
by her words alone, especially when the notice plainly stated that it
was being issued pursuant to § 19a-639a (f) (2), and, because that statute
does not mandate a hearing, the requirements for a contested case were
not met under the applicable provision (§ 4-166 (4)) of the Uniform
Administrative Procedure Act, and, therefore, there was no final decision
from which the plaintiff could have appealed.
2. The plaintiff could not prevail on its claim that the trial court erred in
concluding that a letter written by the plaintiff to the OHCA requesting
to intervene was insufficient to constitute a request for a public hearing
pursuant to statute ((Rev. to 2017) § 19a-639a (e)): although § 19a-639a
(e) does not explicitly delineate what the content of the written request
for a hearing must include, the plain language of that statute requires
that a request be made, in writing, that a public hearing be held on the
certificate of need application, and the plaintiff’s letter did not make
such a request; instead, the plaintiff requested only to intervene and to
participate with full rights in the scheduled hearing; moreover, even if
the plaintiff’s letter could have been construed as a request for a hearing,
the requirements of § 19a-639e (e) still would not have been met because,
although the plaintiff argued that its letter should be liberally construed,
there was nothing in the letter from which this court could infer that
the plaintiff met the numerical requirements of § 19a-639a (e).
Argued May 12—officially released September 14, 2021
Procedural History
Appeal by the plaintiff from the decision of the named
defendant approving the application of the defendant
Birch Hill Recovery Center, LLC, for a certificate of
need to establish a substance abuse treatment facility,
brought to the Superior Court in the judicial district of
New Britain, where the court, Cohn, J., granted the
defendants’ motions to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
Proloy K. Das, with whom were Paul E. Knag and
Emily McDonough Souza, for the appellant (plaintiff).
Clare E. Kindall, solicitor general, with whom were
Kerry Anne Colson, assistant attorney general, and,
on the brief, William Tong, attorney general, for the
appellee (named defendant et al.).
Jeffrey J. Mirman, with whom, on the brief, was
Alexa T. Millinger, for the appellee (defendant Birch
Hill Recovery Center, LLC).
Opinion
HARPER, J. The plaintiff, High Watch Recovery Cen-
ter, Inc., appeals from the judgment of the Superior
Court dismissing its administrative appeal from the final
decision of the defendant Department of Public Health
(department) approving the application of the defen-
dant Birch Hill Recovery Center, LLC (Birch Hill), for
a certificate of need to establish a substance abuse
treatment facility in Kent.1 On appeal, the plaintiff
claims that the court erred in (1) granting the defen-
dants’ motions to dismiss after concluding that it lacked
subject matter jurisdiction to review the department’s
approval of Birch Hill’s certificate of need application
and (2) concluding that a letter written by the plaintiff
to the Office of Health Care Access (OHCA) requesting
to intervene in the matter concerning Birch Hill’s appli-
cation was insufficient to constitute a request for a
public hearing for purposes of General Statutes (Rev.
to 2017) § 19a-639a (e).2 We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts and procedural history, as found
by the court or as undisputed in the record, are relevant
to this appeal. The plaintiff is a nonprofit substance
abuse treatment facility located in Kent. Birch Hill is a
Connecticut limited liability company that was formed
in 2017. In an effort to establish a substance abuse
treatment facility for the ‘‘care of substance abusive or
dependent persons located in Kent,’’ Birch Hill submit-
ted a certificate of need application to the OHCA3 on
September 20, 2017, pursuant to General Statutes (Rev.
to 2017) § 19a-638 (a) (1).4 In a letter dated March 6,
2018, the OHCA sent a notice to Birch Hill regarding
its application stating that, ‘‘[p]ursuant to . . . § 19a-
639a (e),5 [the] OHCA shall hold a hearing upon receiv-
ing a properly filed request from the requisite number
of members of the public. This hearing notice is being
issued pursuant to General Statutes [Rev. to 2017] § 19a-
639a (f) (2) . . . .’’6 (Footnote added; internal quotation
marks omitted.) The letter also included a copy of a
notice that was to be published in the Waterbury Repub-
lican-American newspaper on March 8, 2018, which
advised that ‘‘[a]ny person who wishe[d] to request
status in the . . . public hearing may file a written peti-
tion no later than March 23, 2018 . . . pursuant to
[§§ 19a-9-26 and 19a-9-27 of] the Regulations of Con-
necticut State Agencies . . . . If the request for status
is granted, such person shall be designated as a [p]arty,
an [i]ntervenor or an [i]nformal participant in the . . .
proceeding.’’7 Thereafter, on March 22, 2018, the plain-
tiff filed a notice of appearance with the OHCA and
also submitted a letter requesting to be designated as
an intervenor with full rights, including the right of
cross-examination.8 On March 23, 2018, the OHCA
granted the plaintiff’s request to intervene pursuant to
General Statutes § 4-177a, which sets forth the proce-
dural requirements for conferring intervenor status in
contested cases, and directed the plaintiff to submit its
prefiled testimony by March 26, 2018.9 On March 26,
2018, the plaintiff submitted the prefiled testimony of
Jerry Schwab, the plaintiff’s president and chief execu-
tive officer, and Gerald D. Shulman, a deputy editor of
the third edition of a textbook published by the Ameri-
can Society of Addiction Medicine. See D. Mee-Lee et
al., The ASAM Criteria: Treatment Criteria for Addictive,
Substance-Related and Co-Occurring Conditions (3d
Ed. 2013).
On March 28, 2018, the OHCA held a public hearing
on Birch Hill’s application, which was conducted by
hearing officer Attorney Micheala Mitchell.10 At the
beginning of the hearing, Mitchell stated that the hear-
ing was being held ‘‘pursuant to . . . [§ 19a-639a], and
[would] be conducted as a contested case, in accor-
dance with the provisions of chapter 54 of the Connecti-
cut General Statutes,’’ which contains the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-166 et seq. The hearing was then continued
until May 10, 2018, when the OHCA held a second public
hearing on Birch Hill’s application, which was con-
ducted by hearing officer Attorney Kevin T. Hansted.
On November 6, 2018, on the basis of the testimony
and evidence presented, Hansted recommended in a
proposed final decision that Birch Hill’s application to
establish a psychiatric outpatient clinic and facility in
Kent be denied. Birch Hill thereafter filed a brief in
opposition to the proposed final decision and requested
oral argument. In March, 2019, after oral argument was
conducted and briefs were filed, Birch Hill and the
department entered into an agreement in which Birch
Hill’s application was approved subject to the specific
conditions set forth in the agreement. The agreement
constituted the final order.
The plaintiff then appealed from the department’s
final order to the Superior Court pursuant to General
Statutes § 4-183, naming the department, Birch Hill, and
the OHS as defendants.11 The plaintiff claimed that the
department had abused its discretion and authority
when it approved Birch Hill’s application. On June 17,
2019, the defendants filed motions to dismiss the plain-
tiff’s complaint on the grounds that there was a lack
of a final decision in a contested case, and the plaintiff
was not aggrieved by the department’s decision. In its
motion to dismiss, Birch Hill argued that the plaintiff
had not appealed from a final decision in a contested
case. Specifically, Birch Hill relied on our Supreme
Court’s decision in Middlebury v. Dept. of Environmen-
tal Protection, 283 Conn. 156, 164–65, 172–81, 927 A.2d
793 (2007), in which the court articulated that, pursuant
to § 4-166 (2)12 of the UAPA, a contested case does not
arise if an agency merely holds a gratuitous hearing
and is not required by state statute or regulation to
hold a hearing. The department and the OHS made
essentially the same argument as to the lack of an
appealable final decision. As to the issue of
aggrievement, Birch Hill argued that the plaintiff was
not aggrieved because the basis of its aggrievement was
that it would be impacted negatively by having Birch
Hill as a competitor, and precedent from our Supreme
Court has established that competition, without more, is
insufficient to establish aggrievement. The department
and the OHS argued that the plaintiff was not aggrieved
because the plaintiff did not fall within the zone of
interests covered by § 19a-638 (a).
In its opposition to the defendants’ motions to dis-
miss, the plaintiff argued that Birch Hill’s certificate of
need proceeding constituted a contested case because
it satisfied the three-pronged test articulated by our
Supreme Court in Herman v. Division of Special Reve-
nue, 193 Conn. 379, 382, 477 A.2d 119 (1984). The plain-
tiff argued that it met the contested case test under the
applicable provisions of the UAPA because ‘‘there [was]
a legal right or privilege at issue by virtue of Birch Hill
having filed the [a]pplication . . . that legal right or
privilege is statutorily required to be determined by the
applicable state agency [pursuant to § 19a-639a (d)]
. . . [and] [§] 19a-639a (e) provides an opportunity for
a statutorily required hearing.’’ In essence, the plaintiff
argued that the court should consider all of the provi-
sions under § 19a-639a to determine whether it had met
the requirements of a contested case, not just § 19a-
639a (f) (2). The plaintiff also claimed that, because the
hearing was held as a contested case and the OHCA
already had scheduled a hearing on the certificate of
need application, the plaintiff’s letter requesting interve-
nor status should be construed as meeting the require-
ments under § 19a-639a (e). As to aggrievement, the
plaintiff asserted, inter alia, that it was aggrieved
because it was in the zone of interest, as Birch Hill’s
proposed facility would have a ‘‘significant and detri-
mental impact not only on the statewide health care
delivery system generally, but on [the plaintiff] specifi-
cally.’’
A hearing on the defendants’ motions to dismiss was
held on August 7, 2019. During that hearing, counsel
for the department and the OHS asserted that the reason
Mitchell conducted the certificate of need hearing as a
contested case was ‘‘because [Mitchell] [did not] know
if in two days [she was] going to [receive] a petition . . .
[requesting a hearing]. And [Mitchell] wouldn’t want to
run a proceeding that’s not compliant [on] the first
day with [the department’s] contested case rules [of
procedure and] . . . have to start [the proceedings]
over. . . . [I]t’s [particularly] . . . appropriate, when
[there is] something that allows a subsequent—a change
from a gratuitous to a mandatory hearing. [So] [t]hat
you comply with [the department’s rules of procedure
for contested cases]—you use contested case proceed-
ings. . . . In addition, the contested case proceedings
meet due process, or exceed due process requirements.
So the agency’s making sure by merely . . . utilizing
[the department’s rules of procedure for contested
cases]. . . . So . . . the fact that they utilize . . . the
contested case manner of operating, doesn’t convert it
into a contested case. It’s [particularly] . . . important
to do so, because you don’t know when something
would change in these circumstances from a gratuitous
to a mandatory hearing.’’
The court considered only the defendants’ first
ground for dismissal, namely, that there was no final
decision in a contested case from which the plaintiff
could appeal, and granted the defendants’ motions to
dismiss. In so ruling, the court expressly rejected the
plaintiff’s argument that, so long as the provisions of
§ 19a-639a, in general, provided an opportunity for a
hearing, the contested case requirement was met. More-
over, the court reasoned that the hearing was held pur-
suant to § 19a-639a (f) (2), as provided in the hearing
notice sent by the OHCA, and that statutory provision
does not mandate a hearing but, rather, leaves the deci-
sion of whether to hold a hearing to the discretion of
the administrative agency. The court also noted that
the hearing notice stated that § 19a-639a (e) permitted
an appropriate request to be filed, and noted that,
‘‘[u]nder § 19a-639a (e), a written request for a hearing
would have to be filed by three or more individuals or
by an individual representing an entity with five or more
people,’’ which would convert the discretionary hearing
under § 19a-639a (f) (2) into a mandatory hearing. The
court underscored the fact that the plaintiff’s letter did
not state that the plaintiff ‘‘was one of three individuals
or that the individual [attorney] was representing an
entity with five or more people.’’ The court further
observed that the plaintiff’s letter requesting intervenor
status made no reference to § 19a-639a (e), but focused
only on asserting its intervenor status for the impending
public hearing. Additionally, the plaintiff’s letter did not
request that the already scheduled public hearing be
converted to a mandatory hearing. The court also disre-
garded Mitchell’s statement at the beginning of the hear-
ing on March 28, 2019, that the hearing was being held
as a contested case, because the plaintiff had failed to
submit a petition under § 19a-639a (e). Thus, because
the court concluded that the hearing was not a con-
tested case under § 4-166 (4) of the UAPA, it determined
that there was no final decision, as required by § 4-183
(a). Accordingly, the court concluded that it did not
have subject matter jurisdiction to consider the plain-
tiff’s administrative appeal.13 This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
On appeal, the plaintiff first claims that the court
erred in granting the defendants’ motions to dismiss
after concluding that it lacked subject matter jurisdic-
tion to hear the plaintiff’s appeal. Specifically, the plain-
tiff contends that, because § 19a-639a provides an
opportunity for a hearing and a hearing was in fact
held, the requirements for a contested case pursuant
to § 4-166 (4) were met, and, therefore, there was a
final decision from which it could appeal. Stated differ-
ently, the plaintiff claims that, because ‘‘§ 4-166 (4),
together with § 19[a]-639a, [provide] a party contesting
a [certificate of need] application with the opportunity
for a hearing,’’ the legislature intended for ‘‘contested’’
certificate of need applications to be subject to judicial
review. (Internal quotation marks omitted.) The plain-
tiff also claims that a mandatory hearing was held
because the hearing officer deemed it a contested case
at the beginning of the hearing and conducted the hear-
ing in accordance with the department’s rules of proce-
dure for contested cases. In response, the defendants
argue that, because the OHCA had stated in the hearing
notice that the notice was being issued pursuant to
§ 19a-639a (f) (2), under which a hearing is not manda-
tory, the requirements for a contested case were not
met. We agree with the defendants.
‘‘We first set forth our standard of review governing
an appeal from a judgment granting a motion to dismiss
on the ground of a lack of subject matter jurisdiction.
A motion to dismiss properly attacks the jurisdiction
of the court, essentially asserting that the plaintiff can-
not as a matter of law and fact state a cause of action
that should be heard by the court. . . . A court decid-
ing a motion to dismiss must determine not the merits
of the claim or even its legal sufficiency, but rather,
whether the claim is one that the court has jurisdiction
to hear and decide. . . . Our Supreme Court has deter-
mined that when ruling upon whether a complaint sur-
vives a motion to dismiss, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.
. . . [B]ecause [a] determination regarding a trial
court’s subject matter jurisdiction is a question of law,
our review is plenary.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Bailey v.
Medical Examining Board for State Employee Disabil-
ity Retirement, 75 Conn. App. 215, 219, 815 A.2d 281(2003). ‘‘Whether the plaintiffs have a statutory right to
appeal from the decision of the department is a question
of statutory interpretation over which our review is
plenary. . . . Relevant legislation and precedent guide
the process of statutory interpretation. General Statutes
§ 1-2z provides that, ‘[t]he meaning of a statute shall,
in the first instance, be ascertained from the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall
not be considered.’ ’’ (Citation omitted.) Middlebury v.
Dept. of Environmental Protection, supra, 283 Conn.
166‘‘It is well established that [t]here is no absolute right
of appeal to the courts from the decision of an adminis-
trative agency. . . . The [UAPA] grants the Superior
Court jurisdiction over appeals of agency decisions only
in certain limited and well delineated circumstances.
. . . Lewis v. Gaming Policy Board, 224 Conn. 693,
699–700, 620 A.2d 780 (1993). Specifically, a party may
appeal to the Superior Court only from a final decision
in a contested case as provided in §§ 4-183 and 4-166
[4]14 and [5].15 . . . Section 4-166 [4] defines a con-
tested case in relevant part as a proceeding . . . in
which the legal rights, duties or privileges of a party
are required by [state] statute [or regulation] to be deter-
mined by an agency after an opportunity for hearing
or in which a hearing is in fact held . . . .
‘‘The test for determining contested case status has
been well established and requires an inquiry into three
criteria, to wit: (1) whether a legal right, duty or privilege
is at issue, (2) and is statutorily required to be deter-
mined by the agency, (3) through an opportunity for
hearing or in which a hearing is in fact held. Herman
v. Division of Special Revenue, [supra, 193 Conn. 382].
. . . Under this test, if an agency is not statutorily
required to hold a hearing, but nonetheless holds a
hearing gratuitously, a contested case does not arise.
See New England Dairies, Inc. v. Commissioner of
Agriculture, 221 Conn. 422, 427–29, 604 A.2d 810 (1992)
(no contested case when commissioner of agriculture
held hearing on application for milk license, but was
not required by statute to do so); Herman v. Division
of Special Revenue, supra, 386–87 (no contested case
when division of special revenue held hearing on
request to reinstate patron at jai alai fronton, but was
not required by statute to do so); Taylor v. Robinson,
171 Conn. 691, 696–97, 372 A.2d 102 (1976) (no con-
tested case when board of parole held hearing on
inmate’s request for parole, but was not required by
statute to do so) . . . .’’ (Citations omitted; footnotes
added; internal quotation marks omitted.) Middlebury
v. Dept. of Environmental Protection, supra, 283
Conn. 163–64.
Section 4-183 (a) of the UAPA provides in relevant
part that ‘‘[a] person who has exhausted all administra-
tive remedies available within the agency and who is
aggrieved by a final decision may appeal to the Superior
Court . . . .’’ Section 4-166 (5) defines a final decision
in relevant part as an ‘‘agency determination in a con-
tested case . . . a declaratory ruling issued by an
agency pursuant to [§] 4-176, or . . . an agency deci-
sion made after reconsideration. . . .’’ As noted pre-
viously in this opinion, § 4-166 (4) defines a contested
case in relevant part as ‘‘a proceeding . . . in which
the legal rights, duties or privileges of a party are
required by state statute or regulation to be determined
by an agency after an opportunity for hearing or in
which a hearing is in fact held . . . .’’
In Middlebury, our Supreme Court construed the def-
inition of a contested case to include a hearing required
by state statute or regulation. See Middlebury v. Dept.
of Environmental Protection, supra, 283 Conn. 175–76.
The court in Middlebury also determined that a con-
tested case does not arise simply because a hearing in
fact was held, even though it was not required by state
statute or regulation. See id. Moreover, our Supreme
Court has construed § 4-166 (4) ‘‘as manifesting a legis-
lative intention to limit contested case status to pro-
ceedings in which an agency is required by statute to
provide an opportunity for a hearing to determine a
party’s legal rights or privileges. . . . If a hearing is not
statutorily mandated, even if one is gratuitously held,
a contested case is not created. . . . Accordingly, if
the [hearing officer] conducted the hearing gratuitously
and not pursuant to a statutory entitlement to a hearing,
the mere fact of the existence of the hearing, alone,
would not entitle the applicant to an appeal.’’ (Citations
omitted; internal quotation marks omitted.) Canterbury
v. Rocque, 78 Conn. App. 169, 175, 826 A.2d 1201 (2003),16
quoting Summit Hydropower Partnership v. Commis-
sioner of Environmental Protection, 226 Conn. 792,
800–801, 629 A.2d 367 (1993). Middlebury makes it clear
that the threshold inquiry in determining whether a
contested case is involved is whether a state statute or
regulation requires the agency to provide an opportu-
nity for a hearing to determine the legal rights, duties,
or privileges of a party, or if a hearing that is held to
determine such rights, duties, or privileges is required
by state statute or regulation. See Middlebury v. Dept.
of Environmental Protection, supra, 175–76. Moreover,
this court has established that, ‘‘in order to constitute
a contested case, a party to that hearing must have
enjoyed a statutory right to have his legal rights, duties,
or privileges determined by that agency holding the
hearing. . . . [W]here no party to a hearing enjoys such
a right, the Superior Court is without jurisdiction over
any appeal from that agency’s determination.’’ (Empha-
sis added; internal quotation marks omitted.) Canter-
bury v. Rocque, supra, 175.
In accordance with the foregoing principles, we first
look to the language of the statute under which the
hearing notice was issued, § 19a-639a (f) (2), to deter-
mine whether that statute requires the OHCA ‘‘to deter-
mine the legal rights, duties or privileges of a party after
an opportunity for hearing or in which a hearing is in
fact held . . . .’’ (Internal quotation marks omitted.)
Id., 174. Section 19a-639a (f) (2) provides in relevant
part that the OHCA ‘‘may hold a public hearing with
respect to any certificate of need application submitted
under this chapter. . . .’’ (Emphasis added.) ‘‘We first
note that [t]o determine the intent of the legislature,
we first consider whether the statutory language yields
a plain and unambiguous resolution. . . . If the words
are clear and unambiguous, it is assumed that [they]
express the intention of the legislature. . . . The words
of a statute must be interpreted according to their ordi-
nary meaning unless their context dictates otherwise.
. . . We further note that [i]n construing statutes, we
must use common sense and must not interpret statutes
to yield bizarre and irrational results.’’ (Citation omit-
ted; internal quotation marks omitted.) Bona v. Free-
dom of Information Commission, 44 Conn. App. 622,
632–33, 691 A.2d 1 (1997). The meaning of the statute’s
language in the present case ‘‘appears plain and does
not appear amenable to other interpretations by refer-
ence to extrinsic sources.’’17 Canterbury v. Rocque,
supra, 78 Conn. App. 178.
‘‘[T]he word may imports permissive conduct and the
conferral of discretion. . . . Only when the context of
legislation permits such interpretation and if the inter-
pretation is necessary to make a legislative enactment
effective to carry out its purposes, should the word
may be interpreted as mandatory rather than directory.’’
(Internal quotation marks omitted.) Stone v. East Coast
Swappers, LLC, 337 Conn. 589, 601, A.3d
(2020). Additionally, nothing in the other subsections
of § 19a-639a indicates that the legislature intended for
the word ‘‘may’’ to be interpreted in any other manner
except as to confer discretion. For instance, § 19a-639a
(c) (1) provides in relevant part that, ‘‘[n]ot later than
thirty days after the date of filing of the application,
the [OHCA] may request such additional information
as the [OHCA] determines necessary to complete the
application. . . .’’ (Emphasis added.) Moreover, § 19a-
639a (d) provides in relevant part that ‘‘[u]pon request
or for good cause shown, the [OHCA] may extend the
review period for a period of time not to exceed sixty
days. If the review period is extended, the [OHCA] shall
issue a decision on the completed application prior to
the expiration of the extended review period. . . . ’’
(Emphasis added.); cf. Stone v. East Swappers, LLC,
supra, 602 (court held that legislature intended for word
‘‘may’’ to be interpreted as mandatory in relevant statute
in light of fact that legislature included words ‘‘may, in
its discretion’’ in one subsection of statute but included
only word ‘‘may’’ in another subsection of same statute,
indicating that discretion was conferred only in subsec-
tion that included the words ‘‘may, in its discretion’’
(emphasis omitted; internal quotation marks omitted)).
It is clear that the OHCA has discretion under § 19a-
639a (f) (2) as to whether to hold a public hearing for
a certificate of need application. Accordingly, in the
present case, a hearing was not statutorily mandated
on Birch Hill’s application under § 19a-639a (f) (2). The
plaintiff’s contention that § 4-166 (4) requires only that
there be an opportunity for a hearing under the statutory
scheme of § 19a-639a in order to confer contested case
status would yield absurd results because, in the case
of certificate of need applications, all certificate of need
hearings would be conferred contested case status sim-
ply by the nature of those proceedings, irrespective of
whether the statutory provision under which the hear-
ing is held or the opportunity for a hearing is provided
by the agency actually mandates a hearing. ‘‘The law
favors a rational statutory construction and we presume
that the legislature intended a sensible result.’’ (Internal
quotation marks omitted.) Wiele v. Board of Assessment
Appeals, 119 Conn. App. 544, 551–52, 988 A.2d 889(2010).
We also note that the plaintiff’s interpretation of § 4-
166 (4) would thwart the legislature’s intent to require
that there be a contested case before a right to judicial
review is triggered. ‘‘[T]here is no [common-law] right
to judicial review of administrative determinations.
Judicial review of an administrative decision is a crea-
ture of statute.’’ (Internal quotation marks omitted.)
Canterbury v. Rocque, supra, 78 Conn. App. 174.
According to the plaintiff, the requirements for a con-
tested case are satisfied ‘‘whenever the [department]
holds a hearing on a [certificate of need application]
. . . .’’ If the plaintiff’s position were correct, a right
to judicial review of an agency decision would exist in
every instance in which there was an opportunity for
a hearing and a hearing was in fact held, which is
contrary to our Supreme Court’s determination that
contested case status is limited to proceedings in which
a hearing is mandated by state statute or regulation.
See Middlebury v. Dept. of Environmental Protection,
supra, 283 Conn. 175–76; see also id., 164–65 (‘‘‘[W]hen
§ 4-166 [4] is read as a whole, it is evident that the
phrase ‘‘required by statute to be determined by an
agency after an opportunity for hearing’’ cannot be
divorced from the phrase ‘‘or in which a hearing is in
fact held.’’ If it were otherwise, every time an agency
gratuitously conducted a hearing, a ‘‘contested case’’
would be spawned. Such an interpretation of § 4-166
[4] would chill, to the detriment of those [submitting a
certificate of need application] . . . [to] the agency,
the inclination of an agency to hold any type of an
inquiry to gather information when it was not required
by statute to do so. We believe, consequently, that the
phrase ‘‘or in which a hearing is in fact held’’ was not
intended by the legislature to mean that if a hearing,
not required by statute, is in fact held by agency dispen-
sation, it will result in a contested case.’ ’’ (Emphasis
added.)). We fail to see how a mere opportunity for a
hearing, coupled with the holding of a hearing, in the
absence of a specific statute or regulation under which
the hearing is required to be held, are sufficient to
constitute a contested case in light of Summit
Hydropower Partnership, and the aforementioned
cases cited in this opinion.18 See Summit Hydropower
Partnership v. Commissioner of Environmental Pro-
tection, supra, 226 Conn. 800 (‘‘[W]e have determined
that even in a case where a hearing is in fact held, in
order to constitute a contested case, a party to that
hearing must have enjoyed a statutory right to have his
legal rights, duties, or privileges determined by that
agency holding the hearing. . . . In the instance where
no party to a hearing enjoys such a right, the Superior
Court is without jurisdiction over any appeal from that
agency’s determination.’’ (Internal quotation marks
omitted.)). Accordingly, the plaintiff’s contention in that
regard fails.
Likewise, the plaintiff’s argument that a mandatory
hearing was held because Mitchell stated at the begin-
ning of the hearing that the proceeding was being con-
ducted as a contested case fails, because ‘‘[a]lthough
the [‘hearing’] exhibited the characteristic elements of
a hearing in that evidence was presented, witnesses
were heard, and testimony was taken in an adversarial
setting, the plaintiff has failed to demonstrate that the
[agency] was statutorily required . . . [to hold a hear-
ing on the certificate of need application]. Therefore,
the proceeding, lacking the essential element of a ‘right
to be heard,’ remained gratuitous . . . . Consequently,
there was no contested case to which the provisions
of the UAPA might apply.’’ (Footnote omitted.) Herman
v. Division of Special Revenue, supra, 193 Conn. 386–
87. In the present case, the hearing officer could not
have converted the proceeding into a contested case
by her words alone, especially when the notice advised
that the hearing was being held pursuant to § 19a-639a
(f) (2).
The hearing notice in this case plainly stated that it
was being issued pursuant to § 19a-639a (f) (2). As such,
the plaintiff’s argument that the requirements for a con-
tested case under § 4-166 (4) are met simply because
other provisions in § 19a-639a provide an opportunity
for a hearing is untenable. Irrespective of whether the
opportunity for a hearing was afforded and a hearing
was in fact held, because the public hearing in the
present case was held under § 19a-139a (f) (2), which
does not mandate a hearing, the requirements for a
contested case were not met under § 4-166 (4), and,
therefore, there was no final decision from which the
plaintiff could have appealed for purposes of § 4-183.
Accordingly, the plaintiff’s first claim fails.
II
The plaintiff next claims that the court erred by con-
cluding that its March 22, 2018 letter setting forth its
request to intervene was insufficient to constitute a
request for a public hearing for purposes of § 19a-639a
(e). Specifically, the plaintiff claims that its letter should
have been liberally construed because § 19a-639a (e)
does not specify what is required in a written request
for a hearing. Birch Hill, in response, contends that the
plaintiff’s letter did not conform to requirements under
§ 19a-639a (e) because the letter was merely a request
for intervenor status, did not include a request for a
hearing, made no mention of § 19a-639a (e), and did
not meet the numerical requirement under § 19a-639a
(e). Similarly, the department and the OHS contend,
inter alia, that the language in the statute clearly demon-
strates that the ‘‘legislature . . . intended [that] the
written document expressly state a request for a public
hearing,’’ because doing so provides ‘‘notice to [the]
OHCA that a mandatory public hearing is being sought
by the requester’’ under § 19a-639a (e). We conclude
that the court did not err in concluding that the plain-
tiff’s letter requesting intervenor status was insufficient
to satisfy the requirements under § 19a-639a (e).
We first set forth the applicable standard of review.
Because we are addressing whether the plaintiff’s letter
requesting intervenor status complied with the require-
ments under § 19a-639a (e), our review is plenary.
‘‘Under the plenary standard of review, we must decide
whether the court’s conclusions are legally and logically
correct and supported by the facts in the record.’’ (Inter-
nal quotation marks omitted.) Estela v. Bristol Hospi-
tal, Inc., 179 Conn. App. 196, 207–208, 180 A.3d 595(2018).
After the court determined that a contested case did
not arise because the plaintiff had failed to establish
that the hearing held was statutorily required under
§ 19a-639a (f) (2), the court noted that the plaintiff could
have invoked a mandatory hearing by way of satisfying
the requirements under § 19a-639a (e), as articulated in
the March 6, 2018 hearing notice. Section 19a-639a (e)
provides in relevant part that ‘‘the [OHCA] shall hold
a public hearing on a properly filed and completed
certificate of need application if three or more individ-
uals or an individual representing an entity with five
or more people submits a request, in writing, that a
public hearing be held on the application. . . .’’
(Emphasis added.) The court found that the plaintiff’s
letter did not satisfy the requirements under § 19a-639a
(e) because the letter addressed only its request to
intervene and ‘‘merely mentioned that the hearing had
been set . . . .’’
At the outset, we note that, although § 19a-639a (e)
does not explicitly delineate what the content of the
written request for a hearing must include, the plain
language of the statute requires that a request be made
‘‘in writing, that a public hearing be held on the [certifi-
cate of need] application.’’ (Emphasis added.) Notably,
as stated previously in this opinion, the notice sent by
the OHCA on March 6, 2018, stated that, ‘‘[p]ursuant to
. . . § 19a-639a (e), [the] OHCA shall hold a hearing
upon receiving a properly filed request from the requi-
site number of members of the public. This hearing
notice is being issued pursuant to . . . § 19a-639a (f)
(2).’’ Our review of the plaintiff’s letter requesting inter-
venor status reveals that no such request was made;
instead, the plaintiff requested only to intervene and
participate with full rights in the hearing that the OHCA
had already scheduled. See footnote 8 of this opinion.
Additionally, the plaintiff titled its letter ‘‘Petition of
[High Watch Recovery, Inc.] To Be Designated as an
Intervenor With Full Rights Including [Cross-Examina-
tion],’’ which is simply language adopted from § 4-177a.
See footnote 8 of this opinion. A request to intervene,
such as the one that the plaintiff submitted, without
additional language also indicating a request for a hear-
ing, cannot be deemed to meet the requirements of
§ 19a-639a (e).
Even if the plaintiff’s letter could be construed as a
request for a hearing, the requirements of § 19a-639a
(e) still would not have been met because the letter did
not set forth the requisite number of individuals as
required under the statute. When an individual is relying
on a request to intervene to support a claim that the
numerical requirement under § 19a-639a (e) has been
satisfied, there must be some indication in that request
that the entity the individual is representing consists
of five or more people or that there are three or more
individuals requesting a hearing. Otherwise, the agency
would not be able to determine whether the numerical
requirements under § 19a-639a (e) are met upon the
filing of a petition to request a hearing.
The plaintiff contends that it met the numerical
requirement because it is a seventy-eight bed, inpatient
treatment center that is ‘‘regulated by its number of
beds.’’ The plaintiff claims that, on the date it filed its
request to intervene, more than five of its beds were
occupied. Moreover, the plaintiff asserts that it had a
nineteen member executive staff, seven directors, and
ninety-five employees on the date that it submitted its
request to intervene. The plaintiff’s argument concern-
ing the numerical requirement is unavailing because the
information regarding how many beds were occupied
or the composition of the company was not included
in the plaintiff’s letter.19 The only description of the
plaintiff in the letter stated: ‘‘The [i]ntervenor is a pri-
vate, [nonprofit], freestanding facility that is located
. . . seven . . . miles away from the site of the pro-
posed [f]acility. The [i]ntervenor is licensed by the
[department] to provide several services including,
those to treat substance abusive or dependent persons.
Such persons are the same service population that the
proposed [f]acility intends to serve.’’ The plaintiff
merely provided a description of the facility in its
request and the reasons it should be granted intervenor
status, as well as its desire to participate in the already
scheduled hearing. See footnote 8 of this opinion. The
OHCA would not have been able to determine whether
it needed to convert the proceedings into a contested
proceeding by virtue of § 19a-639a (e), as provided in
the hearing notice, without the plaintiff explicitly delin-
eating in its letter how it met the requisite number of
individuals under § 19a-639a (e).
If a request for intervenor status that makes no men-
tion of any of the requirements under § 19a-639a (e) is
granted and deemed to be sufficient to meet the stan-
dards set forth in § 19a-639a (e), then, in essence, the
grant of intervenor status alone would be sufficient to
convert a gratuitous hearing under § 19a-639a (f) (2)
into a mandatory hearing under § 19a-639a (e). That
result potentially would confer contested case status
on every individual who is granted intervenor status in
a proceeding conducted under § 19a-639a (f) (2), even
when that individual does not explicitly request a hear-
ing or does not set forth how it meets one of the numeri-
cal requirements.20 Such a result would contravene the
legislature’s intent of requiring, in most cases, that there
be a sufficient showing of public interest before requir-
ing that a hearing be held on a certificate of need appli-
cation.21 See 46 H.R. Proc., Pt. 6, 2003 Sess., pp. 1709–17,
remarks of Representative Arthur J. Feltman (In
instances when it is in the commissioner’s discretion
to have a hearing on a certificate of need, ‘‘[there is]
. . . one case in which we do ask that the hearings be
mandatory. In addition to whenever the public requests
it, it’s if the capital costs of a new improvement would
exceed 20 million dollars or a new piece of equipment
exceed a million dollars. . . . But in any case, if there
is a public expression of interest, the public hearing
will be held.’’); see also Report on Bills Favorably
Reported by Committee, Public Health, House Bill No.
6452 (March 18, 2003) (‘‘[t]his bill would allow for
greater opportunity for the public to comment about
certificates of need and requiring public hearings on
them, if requested by the public’’ (emphasis added)).
Although the plaintiff argues that, if its letter is liber-
ally construed, it meets the requirements under § 19a-
639a (e), there is nothing in the letter from which we
can infer that the plaintiff met the numerical require-
ment under the statute. As such, the court did not err
in determining that the plaintiff’s letter was insufficient
to satisfy § 19a-639a (e). Accordingly, the plaintiff’s sec-
ond claim fails.22
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also named the department’s Office of Health Strategy (OHS)
as a defendant in this action. The plaintiff alleged that the OHS was included
in its appeal because its executive director ‘‘is empowered to . . . exercise
independent authority’’ on all certificate of need applications deemed com-
pleted by the Office of Health Care Access. (Internal quotation marks omit-
ted.) In this opinion, we refer to the department, the OHS, and Birch Hill
collectively as the defendants and individually by name when necessary.
2
In this opinion, our references to § 19a-639a (e) are to the 2017 revision
of the statute.
3
Pursuant to General Statutes (Rev. to 2017) § 19a-612d, the deputy com-
missioner of public health was responsible for directing and overseeing the
OHCA at the time that Birch Hill submitted its certificate of need application.
Pursuant to No. 18-91, § 1, of the 2018 Public Acts, which became effective
May 14, 2018, the statutes pertaining to the OHS were amended to create
a Health Systems Planning Unit, in lieu of the OHCA. Thus, when the final
order concerning Birch Hill’s application for a certificate of need was issued,
the OHS was responsible for directing and overseeing the Health Systems
Planning Unit and the OHCA was no longer in existence. In this opinion,
however, in the interest of simplicity, we refer to the OHCA, instead of the
Health Systems Planning Unit, because the OHCA was repeatedly referenced
in the record of the underlying proceedings and is referred to by the parties
in their appellate briefs.
4
General Statutes (Rev. to 2017) § 19a-638 (a) provides in relevant part:
‘‘A certificate of need issued by the [OHCA] shall be required for: (1) The
establishment of a new health care facility . . . .’’ Our references in this
opinion to § 19a-638 (a) are to the 2017 revision of the statute.
5
General Statutes (Rev. to 2017) § 19a-639a (e) provides in relevant part:
‘‘Except as provided in this subsection, the [OHCA] shall hold a public
hearing on a properly filed and completed certificate of need application if
three or more individuals or an individual representing an entity with five
or more people submits a request, in writing, that a public hearing be held
on the application. . . . Any request for a public hearing shall be made to
the [OHCA] not later than thirty days after the date the [OHCA] determines
the application to be complete.’’
6
General Statutes (Rev. to 2017) § 19a-639a (f) (2) provides: ‘‘The [OHCA]
may hold a public hearing with respect to any certificate of need application
submitted under this chapter. The [OHCA] shall provide not less than two
weeks’ advance notice to the applicant, in writing, and to the public by
publication in a newspaper having a substantial circulation in the area served
by the health care facility or provider. In conducting its activities under this
chapter, the [OHCA] may hold hearing[s] on applications of a similar nature
at the same time.’’ Our references in this opinion to § 19a-639a (f) (2) are
to the 2017 revision of the statute.
7
Section 19a-9-26 of the Regulations of Connecticut State Agencies con-
cerns the designation of parties to a hearing for a contested case or in
actions for declaratory rulings. Section 19a-9-27 of the Regulations of Con-
necticut State Agencies sets forth the procedures for the designation as an
intervenor in a contested case or a declaratory ruling hearing.
8
The plaintiff’s letter requesting to intervene stated in relevant part that it
was petitioning the OHCA ‘‘to receive intervenor status, with full procedural
rights, so that the [i]ntervenor may present its opposition to the . . . [c]ertif-
icate of [n]eed [a]pplication . . . that is to be heard at the public hearing
scheduled to commence on March 28, 2018 . . . .
‘‘The [i]ntervenor is a private, [nonprofit], freestanding facility . . . . The
[i]ntervenor proposes to participate in the hearing and to present oral and
written testimony and evidence establishing grounds for denial of the . . .
[certificate of need] [a]pplication. . . .
‘‘The [i]ntervenor’s participation in the hearing with full procedural rights
will assist [the] OHCA in resolving the issues of the pending contested case,
will be in the interest of justice, and will not impair the orderly conduct of
the proceedings.
‘‘In addition, the [i]ntervenor respectfully petitions and seeks the right to
cross-examine [Birch Hill] and any of its witnesses, experts or other persons
submitting oral or written testimony in support of the . . . [certificate of
need] [a]pplication at the hearing . . . . As you know, this is a disputed
[a]pplication, such that cross-examination will help clarify the pertinent
issues and will assist in bringing out all the facts so as to provide for a fully
informed decision on the [certificate of need] [a]pplication.
‘‘The undersigned will serve as the contact person for the [i]ntervenor
with respect to this matter . . . .’’
9
General Statutes § 4-177a provides in relevant part: ‘‘(a) The presiding
officer shall grant a person status as a party in a contested case if that
officer finds that: (1) Such person has submitted a written petition to the
agency and mailed copies to all parties, at least five days before the date of
hearing; and (2) the petition states facts that demonstrate that the petitioner’s
legal rights, duties or privileges shall be specifically affected by the agency’s
decision in the contested case.
‘‘(b) The presiding officer may grant any person status as an intervenor
in a contested case if that officer finds that: (1) Such person has submitted
a written petition to the agency and mailed copies to all parties, at least
five days before the date of hearing; and (2) the petition states facts that
demonstrate that the petitioner’s participation is in the interests of justice
and will not impair the orderly conduct of the proceedings. . . .
‘‘(d) If a petition is granted pursuant to subsection (b) of this section, the
presiding officer may limit the intervenor’s participation to designated issues
in which the intervenor has a particular interest as demonstrated by the
petition and shall define the intervenor’s rights to inspect and copy records,
physical evidence, papers and documents, to introduce evidence, and to
argue and cross-examine on those issues. The presiding officer may further
restrict the participation of an intervenor in the proceedings, including the
rights to inspect and copy records, to introduce evidence and to cross-
examine, so as to promote the orderly conduct of the proceedings.’’
10
We note that, at the time of the March 28, 2018 hearing, the plaintiff
still had two days to request a mandatory hearing pursuant to § 19a-639a
(e). See General Statutes (Rev. to 2017) § 19a-639a (e) (‘‘[a]ny request for
a public hearing shall be made to the [OHCA] not later than thirty days
after the date the [OHCA] determines the application to be complete’’).
Birch Hill’s application was deemed complete by the OHCA on March 1, 2018.
11
General Statutes § 4-183 (a) provides in relevant part: ‘‘(a) A person
who has exhausted all administrative remedies available within the agency
and who is aggrieved by a final decision may appeal to the Superior Court
as provided in this section. . . .’’
12
Following the decision in Middlebury v. Dept. of Environmental Protec-
tion, supra, 283 Conn. 156, § 4-166 was amended, and the term ‘‘[c]ontested
case’’ is now defined in subsection (4), instead of subsection (2), of § 4-166.
See Public Acts 2014, No. 14-187, § 1.
13
The court did not address the defendants’ contention that the plaintiff
was not aggrieved.
14
See footnote 12 of this opinion.
15
At the time Middlebury was decided, the term ‘‘[f]inal decision’’ was
defined in subsection (3) of § 4-166. Following amendments to the statute,
it is now defined in subsection (5) of § 4-166. See Public Acts 2014, No. 14-
187, § 1.
16
We note that the court in Canterbury addressed the definition of a
contested case in § 4-166 (2), which has been moved to subsection (4) of
§ 4-166. See Canterbury v. Rocque, supra, 78 Conn. App. 174; see also Public
Acts 2014, No. 14-187, § 1.
17
There is no claim by either party that § 19a-639a (f) (2) is ambiguous.
18
Furthermore, the use of the word ‘‘or’’ in § 4-166 (4) indicates that the
legislature does not require that both an opportunity for a hearing be pro-
vided and for a hearing to be held; instead, the statute requires that a state
statute or regulation mandate that the rights, duties or privileges of a party
be determined after an opportunity for a hearing or when a hearing is
actually held. ‘‘Our Supreme Court and this court have likewise construed,
in the context of other statutes, the word ‘or’ to be disjunctive, synonymous
with ‘in the alternative.’ See, e.g., Giannitti v. Stamford, 25 Conn. App. 67,
75–76, 593 A.2d 140 (declining to ‘determine that the word ‘‘or’’ in the statute
[at issue] should be read in the conjunctive as ‘‘and’’ rather than in the
disjunctive . . .’), cert. denied, 220 Conn. 918, 597 A.2d 333 (1991); State v.
Breton, 212 Conn. 258, 279, 562 A.2d 1060 (1989) (‘[i]t is clear that by the
use of the word ‘‘or,’’ the legislature intended the separate terms in [the
subsection of the statute at issue] to apply in the alternative’).’’ U.S. Bank
National Assn. v. Karl, 128 Conn. App. 805, 810 n.4, 18 A.3d 685, cert.
denied, 302 Conn. 909, 23 A.3d 1249 (2011).
19
We assume, without deciding, that the plaintiff’s contention that the
numerical requirement would be satisfied if an individual filed a request to
intervene on behalf of a health facility that had at least five of its beds
occupied is correct.
20
Without clear language in a letter requesting intervenor status that a
hearing also is being requested and a showing that the requisite numerical
requirement is met, the requirements of § 19a-639a (e) have not been satis-
fied. For a hearing officer to grant contested case status to an individual
under such circumstances would be contrary to the statutory requirements
and would, in essence, amount to conferring the right to an administrative
appeal against the authority of the statute, which is not within the authority
of a hearing officer to do. See Middlebury v. Dept. of Environmental Protec-
tion, supra, 283 Conn. 170 (‘‘[T]he underlying purpose of the required by
statute provision in § 4-166 [4] . . . rests on the desirability of ensuring
that the legislature, rather than the agencies, has the primary and continuing
role in deciding which class of proceedings should enjoy the full panoply
of procedural protections afforded by the [UAPA] to contested cases, includ-
ing the right to appellate review by the judiciary. Deciding which class of
cases qualif[ies] for contested case status reflects an important matter of
public policy and the primary responsibility for formulating public policy
must remain with the legislature.’’ (Internal quotation marks omitted.)); see
also New England Rehabilitation Hospital of Hartford, Inc. v. CHHC, 226
Conn. 105, 132–33, 627 A.2d 1257 (1993) (‘‘[i]f designation as a party in an
agency proceeding were construed to be the equivalent of the right to be
a party in a judicial proceeding, an agency’s presiding officer would be
vested with the authority to decide not only who could appear before the
agency and what rights they would have during that proceeding, but also
who could challenge an adverse decision of the agency in court’’).
21
The plaintiff concedes that the ‘‘hearing officer’s statement alone cannot
confer jurisdiction on this court’’ but posits that the hearing officer’s state-
ment is relevant because any person would conclude that he or she did not
need to request a hearing on the basis of the fact that the hearing officer
understood that the applicable statutes provided an opportunity for a public
hearing, the plaintiff intervened after the OHCA declared that it was holding
a public hearing, and ‘‘the [thirty day] time period to demand a public hearing
had not yet run . . . when [the hearing officer] . . . opened the proceeding
by announcing that it was a contested case.’’ (Emphasis omitted.) We fail
to see how the hearing officer’s statement at the beginning of the hearing
can override the requirements set forth by the legislature in § 19a-639a (e)
and confer contested status when an individual has not taken action to
trigger a hearing under § 19a-639a (e).
22
We do not find it necessary to address the alternative ground for dis-
missal raised by the department and the OHS, namely, that the plaintiff is
not aggrieved, because we conclude that the court did not err in dismissing
the plaintiff’s appeal for lack of subject matter jurisdiction on the ground
that there was no final decision from which the plaintiff could appeal.