Commercial Wharf East Condominium Assoc. v. Department of Environmental Protection

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17-P-754 Appeals Court
COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION vs.
DEPARTMENT OF ENVIRONMENTAL PROTECTION.
No. 17-P-754.
Suffolk. March 6, 2018. - June 21, 2018.
Present: Green, C.J., Sacks, & Shin, JJ.
Administrative Law, Judicial review, Remand to agency,
Evidence. Practice, Civil, Review of administrative
action. Department of Environmental Protection.
Civil action commenced in the Superior Court Department on
September 24, 2015.
A motion for leave to present additional evidence was heard
by Peter M. Lauriat, J., and motions to vacate judgment and for
reconsideration were considered by him.
Seth Schofield, Assistant Attorney General, for the
defendant.
John MacAulay Allen (William A. Zucker also present) for
the plaintiff.
2
SACKS, J. This appeal presents the question whether a
court conducting judicial review under G. L. c. 30A, § 14, of an
agency's adjudicatory decision may issue an order of remand to
the agency under § 14(6) 1 that reverses various agency
evidentiary and discovery rulings -- rulings that would
ordinarily be reviewed, along with the remainder of the agency's
decision, under § 14(7). Here, a Superior Court judge issued
such an order and corresponding judgment, and the agency
appealed. We conclude that the appeal is properly before us and
that the judge erred in acting under § 14(6); the challenge to
the agency's rulings should instead have been resolved under
§ 14(7). We also conclude that instead of entering a judgment,
the judge should have retained jurisdiction. We therefore
vacate the order and judgment and remand to the Superior Court
for further proceedings.
1 Section 14(6) provides in full:
"If application is made to the court for leave to present
additional evidence, and it is shown to the satisfaction of
the court that the additional evidence is material to the
issues in the case, and that there was good reason for
failure to present it in the proceeding before the agency,
the court may order that the additional evidence be taken
before the agency upon such conditions as the court deems
proper. The agency may modify its findings and decision by
reason of such additional evidence and shall file with the
reviewing court, to become part of the record, the
additional evidence, together with any modified or new
findings or decision."
3
Background. The plaintiff Commercial Wharf East
Condominium Association (CWECA) is an association of owners of
condominiums located at the landward end of Boston's Commercial
Wharf, but seaward of the historic low water mark, in an area
constituting "Commonwealth tidelands" under G. L. c. 91, § 1.
The defendant Department of Environmental Protection
(department) is charged with administering c. 91, the Waterways
Act, which "generally is viewed as an encapsulation of the
Commonwealth's public trust authority and obligations" regarding
tidelands. Arno v. Commonwealth, 457 Mass. 434, 454 (2010),
quoting from Fafard v. Conservation Commn. of Barnstable, 432
Mass. 194, 200 n.11 (2000).
1. Determination of applicability. In 2011, an abutting
property owner filed with the department a "request for a
determination of applicability," seeking a ruling that a portion
of CWECA's property was being used for nonwater-dependent
purposes (parking and vehicular access) and that such uses, not
being authorized by statute, were impermissible unless CWECA
obtained a license under c. 91. In 2012, the department's
waterways regulation program issued a positive determination of
applicability, concluding that the property at issue was subject
to c. 91 and that its current nonwater-dependent uses were
unauthorized.
4
2. Administrative appeal. a. Motion for summary
decision. CWECA filed an administrative appeal of the
determination and requested an adjudicatory hearing. CWECA
filed a prehearing statement that listed no disputes of fact,
but only legal issues, as requiring resolution. CWECA
identified the issues as whether its current use of the area in
question was authorized either by statute, by an existing c. 91
license, or by correspondence in the 1970s between one of
CWECA's predecessors in interest and the State Department of
Public Works (DPW), which had administered c. 91 until 1975.
See St. 1975, c. 706, §§ 123, 312.
After a prehearing conference, the hearing officer
determined that "[t]he issues appear to be amenable to
resolution by motion for summary decision." 2 In December, 2012,
CWECA filed such a motion, seeking to overturn the positive
determination of applicability. The department's waterways
regulation program and the abutter opposed the motion, and the
abutter asked that the positive determination be upheld.
In 2013, the hearing officer issued a recommended decision
concluding that there were no genuine issues of material fact
2 See 310 Code Mass. Regs. § 1.01(11)(f) (2004). A motion
for summary decision "is the administrative equivalent of a
motion for summary judgment." Zoning Bd. of Appeals of Amesbury
v. Housing Appeals Comm., 457 Mass. 748, 763 (2010).
5
and that as a matter of law the positive determination should be
upheld. See 310 Code Mass. Regs. § 1.01(11)(f) (2004) ("Summary
decision, when appropriate, may be made against the moving
party"). Of particular note, the hearing officer ruled that a
1964 statute relied upon by CWECA 3 had not extinguished public
trust rights in the Commercial Wharf area, as any legislation
doing so must be explicit; that absent such legislation, the
department's c. 91 licensing process provided the mechanism for
protecting public trust rights in tidelands; and that
correspondence of the type cited by CWECA could not satisfy
c. 91.
b. Motion to reopen proceeding and take discovery. While
the recommended decision was awaiting final action by a deputy
commissioner of the department (the commissioner having recused
himself), CWECA filed a "motion to reopen proceeding and take
discovery." The motion argued that the recommended decision had
revealed disputes of fact as to whether the DPW had authorized
the property uses in question "through license or
correspondence" in the 1970s. CWECA sought to take discovery
3 CWECA relied upon St. 1964, c. 663, "An Act Authorizing
the Department of Public Works and the Boston Redevelopment
Authority to Exercise Certain Powers in Regard to Certain
Tidelands along the Atlantic Avenue and Commercial Street
Waterfront in the City of Boston."
6
from the department and others to explore the existence of such
documents. 4
In November, 2014, the hearing officer denied CWECA's
motion, on three grounds. 5 First, the hearing officer ruled that
the motion was procedurally improper, because the recommended
decision had ordered the parties not to move to reargue any part
of that decision now that it was before the deputy commissioner
for final action.
Second, although a department regulation allowed for a
motion to reopen a hearing to submit "new evidence," the hearing
officer ruled that CWECA had failed to show that "the evidence
to be introduced was not reasonably available for presentation
at the hearing," 310 Code Mass. Regs. § 1.01(14)(e) (2004), nor
had CWECA previously asserted that any material facts were in
dispute.
Third, the hearing officer ruled that the evidence that
CWECA hoped to discover was legally immaterial. To the extent
that CWECA hoped to discover a c. 91 license from the 1970s
authorizing the disputed uses, not only had CWECA failed to find
4 CWECA also asserted that, at the prehearing conference two
years earlier, it had argued that discovery would be necessary,
but that the hearing officer had rejected this argument.
5 We express no view on the merits of these grounds, or on
the correctness of the positive determination of applicability.
7
any evidence of such a license in the department's publicly-
accessible licensing files, but, by law, any c. 91 license not
recorded by the licensee at the registry of deeds within a
specified time after issuance (formerly one year, now sixty
days) would be void. See G. L. c. 91, § 18. To the extent that
CWECA hoped to discover correspondence approving the disputed
uses, the existence of such correspondence was "purely
speculative," and in any event such correspondence could not
authorize a particular use of tidelands. Only an explicit
statute or a c. 91 license could do so.
c. Final department action. At the same time as the
hearing officer denied CWECA's motion to reopen, the
department's deputy commissioner adopted the recommended
decision as the department's final decision. CWECA's motion for
reconsideration was denied.
3. Superior Court proceedings. CWECA then filed in the
Superior Court a complaint for judicial review, under G. L.
c. 30A, § 14, of the department's decision. After the
department filed the record of administrative proceedings, see
§ 14(4), CWECA filed what it styled a "motion for leave to
present additional evidence," seeking to reopen the department
hearing to "take discovery that was wrongfully denied CWECA."
As authority for the court to issue such an order, CWECA cited
G. L. c. 30A, § 14(6), which required it to show "that the
8
additional evidence is material to the issues in the case, and
that there was good reason for failure to present it in the
proceeding before the agency." See note 1, supra.
Over the department's opposition, the judge granted CWECA's
motion. The judge ruled that a 1972 statute, when read together
with the 1964 statute relied upon by CWECA, 6 "might" have
implicitly dispensed with the need for CWECA's predecessor in
interest to obtain a c. 91 license for the disputed uses. The
judge thus implicitly rejected -- on a basis that CWECA had not
argued to the department -- the final decision's conclusion
that, because no statute explicitly authorized those disputed
uses, c. 91 required CWECA to obtain a license.
The judge further ruled that evidence on implementation of
the 1964 and 1972 statutes was "material," and that the
department's denial of CWECA's request for discovery -- which
the department had based in part on its conclusion that the
materials CWECA sought were not material -- constituted "good
reason" for CWECA's failure to present such evidence to the
department. The judge thus implicitly concluded that the
department's reasons for denying CWECA's request were not good
reasons. The judge did not mention any deference due to the
6 The judge cited St. 1972, c. 310, which bore the same
title as the 1964 statute CWECA relied upon. See note 3, supra.
9
department's view of the various statutes bearing on materiality
or to the department's procedural rulings. He ordered the case
remanded to the department for CWECA to conduct discovery.
A judgment of remand then entered. The department moved
for reconsideration and to vacate the judgment, arguing that the
remand order was erroneous and that, even if the judge declined
to overturn it, he should in any event vacate the judgment and
retain jurisdiction over the case, as § 14(6) assertedly
required. The judge denied the motion, and this appeal
followed.
Discussion. 1. Appellate jurisdiction. At the outset we
consider and reject CWECA's argument that the order remanding
the case, being interlocutory in character, was not appealable
by the department. We conclude that although the order was
interlocutory, 7 the department's appeal "fall[s] within the so
called Cliff House exception" and is therefore proper. Wrentham
v. West Wrentham Village, LLC, 451 Mass. 511, 515 (2008) (West
7 We give no weight to the fact that the order was also
memorialized in a document labeled a judgment. As CWECA and the
department agree, a remand under § 14(6) is interlocutory. Cf.
Marlborough Hosp. v. Commissioner of Pub. Welfare, 346 Mass.
737, 738 (1964) ("final decree" remanding matter to agency for
further proceedings was interlocutory; "[t]he title 'final
decree' did not make the decree of remand final in substance").
For clarity, our discussion will refer to the remand order. We
return later to the department's argument that no judgment
should have entered.
10
Wrentham Village), citing Cliff House Nursing Home, Inc. v. Rate
Setting Commn., 378 Mass. 189 (1979).
"Typically a judge's remand order to an agency is not
subject to appeal. However, the Cliff House exception to
this rule allows an 'administrative agency [to] appeal[] a
[judge's] remand order that is final as to the agency.'
Thus, where a remand order is final as to the agency to
which the matter is remanded by a judge, the Cliff House
exception allows that agency to seek immediate appellate
review because the agency 'cannot logically appeal from its
own decision on remand.'"
West Wrentham Village, 451 Mass. at 515-516 (citations omitted).
Under Cliff House, remand orders under § 14(7) have been
held final as to, and thus appealable by, the agency, even
though they did not compel a particular result on the merits, 8
but merely required taking additional evidence, see J.C.
Hillary's v. Massachusetts Commn. Against Discrimination, 27
Mass. App. Ct. 204, 206-207 & n.4 (1989), or related solely to
what the reviewing Superior Court viewed as an agency procedural
or evidentiary error. See Kelly v. Civil Serv. Commn. 427 Mass.
75, 76 n.4 (1998) (remand to reconsider without reliance on
erroneously admitted evidence); Lincoln v. Personnel
Adminstrator of the Dept. of Personnel Admin., 432 Mass. 208,
210-211 (2000) (remand to follow different procedure); Chief
8 CWECA observes that in West Wrentham Village, a remand
order was held nonappealable by a local board under Cliff House
because the order left the board discretion about the final
result. See West Wrentham Village, 451 Mass. at 514, 516.
11
Justice for Admin. & Mgmt. of the Trial Court v. Massachusetts
Commn. Against Discrimination, 439 Mass. 729, 730 n.5, 734
(2003) (remand for additional findings). These Supreme Judicial
Court decisions, all cited in West Wrentham Village, 451 Mass.
at 515, show that it is not a prerequisite to the application
of Cliff House that a remand order compel a particular result on
the merits. 9
Here, the remand order was final as to the department, and
thus immediately appealable, because it rejected two department
rulings in a manner that the department might otherwise never be
able to appeal. The remand order effectively overruled the
department's conclusions that CWECA's discovery request was
procedurally improper and sought information that was
substantively immaterial. Had the department proceeded in
accordance with the remand order, there was no assurance that
the matter would ever have returned to the Superior Court or led
to a judgment from which the department could appeal. The only
9 Whatever uncertainty there may be about the exact reach of
Cliff House, see n. 8 supra, we choose to apply it and reach the
merits here, particularly because the issue on appeal -- whether
§ 14(6) may be used to challenge agency rulings reviewable under
§ 14(7) -- is an important one that might otherwise escape
appellate review. We do not decide whether a proper § 14(6)
order, which as discussed infra the order here was not, would
necessarily be appealable by the agency under Cliff House.
12
sure way for the department to obtain review of the remand order
was to appeal from it directly, as Cliff House permits. 10
2. Propriety of action under § 14(6). We now come to the
question whether, when an agency has rejected a party's request
to consider certain evidence, a judge acting under § 14(6) may
allow the party's motion to remand to the agency to consider
that same evidence, where doing so would effectively overturn
the agency's ruling. We hold that § 14(6) may not be used in
this manner; instead, such a remand may be sought under § 14(7),
and granted if warranted under the standards of review set forth
therein. Section 14(6) is not an alternative means of obtaining
review of an agency ruling or decision. Rather, it is a
mechanism for supplementing the original agency record, in
narrow circumstances, before the court completes its review of
the agency's decision under § 14(7).
10Finally, we reject CWECA's claim that the department is
judicially estopped from asserting that the remand order is
final as to the department so as to implicate Cliff House.
Although the department filed, in addition to this appeal, an
unsuccessful petition to a single justice, under G. L. c. 231,
§ 118, first par., seeking interlocutory review of the remand
order, the department's filing stated that it might also be
entitled to a full appeal under Cliff House. The department
thus has not "use[d] the judicial process in an inconsistent way
that courts should not tolerate," so as to warrant applying
judicial estoppel. East Cambridge Sav. Bank v. Wheeler, 422
Mass. 621, 623 (1996). See also McMenimen v. Passatempo, 452
Mass. 178, 188 (2008) (party that was unsure whether order was
interlocutory, or was appealable as of right, could both
petition single justice and file notice of appeal).
13
Section 14(7) authorizes the reviewing court to, among
other things, "remand the matter for further proceedings before
the agency" if a party's substantial rights have been prejudiced
because the agency's decision either violates constitutional
provisions, exceeds the agency's statutory authority or
jurisdiction, is based upon an error of law or unlawful
procedure, is unsupported by substantial evidence, or is
arbitrary or capricious, an abuse of discretion, or otherwise
not in accordance with law. Importantly,
"[t]he court shall make the foregoing determinations upon
consideration of the entire record, or such portions of the
record as may be cited by the parties. The court shall
give due weight to the experience, technical competence,
and specialized knowledge of the agency, as well as to the
discretionary authority conferred upon it."
G. L. c. 30A, § 14(7). Thus, where an agency denies a party's
request to consider (or permit discovery to obtain) certain
evidence, based on the agency's view that the request is
procedurally improper or that the evidence is legally
immaterial, that party remains free to challenge the agency
ruling on any of the § 14(7) grounds just mentioned.
Here, for example, CWECA's complaint for judicial review
challenged the department's discovery ruling on multiple
grounds, including that it violated CWECA's procedural rights,
and was premised on legal errors in the department's
interpretation of the c. 91 scheme it is charged with enforcing
14
and of other statutes relevant to the public trust in tidelands.
CWECA's § 14(6) motion added a claim that the discovery ruling
was arbitrary, capricious, and an abuse of discretion. As
CWECA's own motion conceded, all of these claims were reviewable
under § 14(7).
But the two subsections are not interchangeable
alternatives. Section 14(6) is, in a sense, a narrow exception
to the rule that "an issue not raised before the [agency] is
deemed waived" on judicial review under § 14(7). Vaspourakan,
Ltd. v. Alcoholic Bevs. Control Commn., 401 Mass. 347, 354
(1987). If the party challenging the agency decision has failed
to present material evidence to the agency, but can show "good
reason" for that failure, then § 14(6) allows a remand so that
the agency can take the additional evidence, and supplement its
findings or decision if necessary, before the court undertakes
its review of the final agency decision. If, on the other hand,
the party has attempted to present the evidence, but was
prevented from doing so by an agency ruling, the party's remedy
is not to seek a remand under § 14(6), but to challenge the
agency ruling under § 14(7).
Importantly, § 14(7) relief may be granted only after
review of "the entire record" (or those portions cited by the
parties), and only after giving "due weight to the experience,
technical competence, and specialized knowledge of the agency,
15
as well as to the discretionary authority conferred upon it."
Such judicial deference is required -- but apparently was not
afforded -- in each of the three areas implicated by the
department's ruling here.
First, where (as here) the agency's challenged evidentiary
ruling is based on its interpretation of the statutes it
administers, the reviewing court must be mindful that "[w]hile
the 'duty of statutory interpretation is for the courts . . . an
administrative agency's interpretation of a statute within its
charge is accorded weight and deference. . . . Where the
[agency's] statutory interpretation is reasonable . . . the
court should not supplant [its] judgment' (citations
omitted)." Peterborough Oil Co. v. Department of Envtl.
Protection, 474 Mass. 443, 449 (2016), quoting from Dowling
v. Registrar of Motor Vehicles, 425 Mass. 523, 525 (1997). 11
Second, "regulation of the administrative discovery process
lies within the sound exercise of the hearing officer's
discretion, just as regulation of the discovery process in
judicial proceedings lies within the sound exercise of judicial
11This is no less true in the c. 91 context. See Navy Yard
Four Assocs. v. Department of Envtl. Protection, 88 Mass. App.
Ct. 213, 221 (2015) (department's interpretations of c. 91 were
"reasonable and entitled to deference," citing Goldberg v. Board
of Health of Granby, 444 Mass. 627, 633 [2005]).
16
discretion." Augis Corp. v. Massachusetts Commn. Against
Discrimination, 75 Mass. App. Ct. 398, 404–405 (2009).
Third, where (as here) the evidentiary or discovery ruling
is bound up with matters of agency procedure, "agencies have
broad discretion over procedural matters before them." Zachs
v. Department of Pub. Util., 406 Mass. 217, 227 (1989). A
reviewing court should "defer to an agency's procedural
rulings," reviewing them only for error of law or abuse of
discretion, "in particular when the ruling concerns whether to
reopen a proceeding or an administrative record (emphasis
added)." Brockton Power Co. v. Energy Facilities Siting Bd.,
469 Mass. 215, 219 (2014).
A party challenging an agency evidentiary or discovery
ruling cannot evade these deferential § 14(7) standards of
review, and thereby disrupt the proper balance of authority
between agencies and courts, by bringing its challenge under
§ 14(6). It is true that § 14(6) requires a showing "to the
satisfaction of the court" that the proposed additional evidence
is material and that there was good reason for the failure to
present it to the agency, and that § 14(6) allows the court, if
satisfied, to order the additional evidence taken before the
agency "upon such conditions as the court deems proper." But
this does not imply that a party may elect, by proceeding under
§ 14(6) rather than § 14(7), to have the agency's ruling
17
reviewed solely for whether it comports with the court's own
views on the agency's governing statutes and internal
procedures. To the contrary, it implies that § 14(6) is
addressed only to those situations where, for "good reason," the
agency has not already been presented with and ruled upon the
evidentiary question. Where there is no relevant agency ruling
for the court to review under deferential § 14(7) standards, the
court's own views necessarily assume heightened importance. 12
Moreover, where the agency has already ruled on the
evidentiary issue, it would make little sense to permit the
challenging party to use § 14(6) to bifurcate the judicial
review process, by bringing claims of erroneous exclusion of
evidence through a motion under § 14(6), while challenging the
agency's other claimed errors through the well-established
process for judicial review under § 14(7). See Superior Court
Standing Order 1-96. All claims of agency error should be
reviewed together, based "upon consideration of the entire
12We do not suggest that the court acting under § 14(6)
owes any less deference than under § 14(7) to any preexisting
agency interpretations of relevant statutes, agency procedural
rules or practices, and prior agency rulings that may bear on
whether the proposed additional evidence meets § 14(6)
standards. We decide simply that § 14(6) applies only where
there is no agency ruling in the proceeding under review that
addresses the proposed additional evidence at issue.
18
record" or the portions cited by the parties. 13 G. L. c. 30A,
§ 14(7). Such plenary consideration tends to maintain the
required focus both on the substantive review standards of
§ 14(7) and on whether "the substantial rights of any party may
have been prejudiced" by any agency error that occurred. Ibid.
Piecemeal review, examining some issues under § 14(6) and others
under § 14(7), would lead to an inefficient use of judicial and
agency resources, as well as delay and disruption.
Established standards of appellate review support this
conclusion. An appellate court reviewing a Superior Court's
ruling under § 14(7) "is conducting an analysis of the same
agency record, and there is no reason why the view of the
Superior Court should be given any special weight. Both in the
Superior Court and in [the appellate] court the scope of review
is defined by G. L. c. 30A, § 14." Southern Worcester County.
Regional Vocational Sch. Dist. v. Labor Relations Commn., 377
Mass. 897, 903 (1979) (citations omitted). See Heineken U.S.A.,
Inc. v. Alcoholic Bevs. Control Commn., 62 Mass. App. Ct. 567,
568 n.3 (2004). A judge's action under § 14(6), in contrast, is
reviewed for abuse of discretion. Massachusetts Assn. of
Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266
13But see G. L. c. 30A, § 14(5) ("in cases of alleged
irregularities in procedure before the agency, not shown in the
record, testimony thereon may be taken in the court").
19
(2001); Commonwealth v. Roxbury Charter High Pub. Sch., 69 Mass.
App. Ct. 49, 53 (2007). It would make little sense for a
judge's decision either upholding or rejecting a party's
challenge to an agency evidentiary ruling to be subject to
differing standards of appellate review depending on whether the
judge had ruled under § 14(6) or § 14(7). Again, the more
logical conclusion is that § 14(6) simply does not authorize
such challenges.
Thus we think it no coincidence that, in all but one of the
reported decisions concerning motions under § 14(6), there is no
indication that the agency had already ruled on whether to
accept the additional evidence proffered to the reviewing
20
court. 14 Even the single exception we have identified 15 tends to
support our conclusion: a challenge to such an agency ruling
should be made and resolved under § 14(7).
3. Retention of jurisdiction under § 14(6). Finally, even
if the remand order under § 14(6) had been proper, the judge's
declining to retain jurisdiction would still be error. "The
14
See Fanion v. Director of Div. of Employment Security,
391 Mass. 848, 850-852 (1984); Benmosche v. Board of
Registration in Med., 412 Mass. 82, 88 (1992); Massachusetts
Assn. of Minority Law Enforcement Officers, 434 Mass. at 265-
266; Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender
Registry Bd., 452 Mass. 784, 795 (2008); She Enterprises, Inc.
v. State Bldg. Code Appeals Bd., 20 Mass. App. Ct. 271, 272-273
(1985); Northeast Metropolitan Regional Vocational Sch. Dist.
Sch. Comm. v. Massachusetts Commn. Against Discrimination, 35
Mass. App. Ct. 813, 814-815 (1994); Roxbury Charter High Pub.
Sch., 69 Mass. App. Ct. at 52-55. Notably, in the Roxbury
Charter High Pub. Sch. case, we held that a new financial
statement showing a small surplus was not "material" evidence
warranting a § 14(6) remand, "because the hearing officer
expressly anticipated that possibility in his decision, and
stated his view that such a result would not alter his
conclusions concerning the school's prospective financial
viability." Id. at 54.
15
See Northeast Metropolitan Regional Vocational Sch. Dist.
Sch. Comm. v. Massachusetts Commn. Against Discrimination, 31
Mass. App. Ct. 84 (1991) (Northeast I), and Northeast
Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v.
Massachusetts Commn. Against Discrimination, 35 Mass. App. Ct.
813 (1994) (Northeast II). As explained in Northeast II, the
Superior Court, after reviewing the agency's decision under
§ 14(7), remanded for the consideration of additional evidence.
But, for reasons unclear from the record, the propriety of that
order was not considered in the original appeal, Northeast I.
See Northeast II, 35 Mass. App. Ct. at 815-816. That and other
unusual circumstances led to the later consideration of a motion
for a remand under § 14(6). Id. at 815-816, 818-819.
21
procedure for remand delineated in [§ 14(6)] apparently
contemplates the retention of jurisdiction." White v. Director
of the Div. of Employment Security, 395 Mass. 635, 639 n.4
(1985). The text of § 14(6) leaves little room for any other
view. 16 Superior Court Standing Order 1-96, third par., issued
to facilitate the orderly resolution of claims for judicial
review under § 14 and similar statutes, has long provided that
if the court allows a § 14(6) motion, "all further proceedings
shall be stayed until the administrative agency has complied
with the provisions of [§ 14(6)]." A court ordering a § 14(6)
remand should, rather than entering a judgment, 17 retain
jurisdiction and stay its proceedings during the remand.
Conclusion. It was error to rely on § 14(6) to overturn
the department's evidentiary and procedural rulings and remand
to the department for the taking of further evidence. Such
relief was available, if at all, only under § 14(7).
Accordingly, the order and judgment under § 14(6) are vacated,
16
By providing that, after taking additional evidence,
"[t]he agency may modify its findings and decision . . . and
shall file with the reviewing court, to become part of the
record, the additional evidence, together with any modified or
new findings or decision," § 14(6) plainly envisions further
filings and proceedings in the original reviewing court. These
would be unnecessarily cumbersome, if not impossible, unless the
matter remained pending in that court.
17
A "judgment" is "the act of the trial court finally
adjudicating the rights of the parties . . . (emphasis added)."
Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974).
22
and the case is remanded to the Superior Court for further
proceedings.
So ordered.