Appeals Court: PHILLIP CUCCHI vs. CIT OF NEWTON

Keywords:   Civil Service, Decision of Civil Service Commission, Judicial review, Promotion, Fire fighters. Fire Fighter. Declaratory Relief.

The Appeals Court today issued its decision in Cucchi v City of Newton, et al, in which it held that the strict 30 day appeal period under C. 31, sec. 44 remains unaffected by a motion for rehearing, notwithstanding c. 30A, sec. 14’s reference to motions for a rehearing. The appeal period is not tolled under the applicable law.  The case was remanded on the claim for a declaratory judgment, which the lower court had dismissed without explanation.

(Excerpt from decision) – “In Curley v. Lynn, 408 Mass. 39, 41-42 (1990), the court held that a person seeking judicial review of a Civil Service Commission (commission) decision under G. L. c. 31, § 44, as then in effect, was required to file a petition seeking such review within thirty days of receipt of the commission’s decision, and that such time was not tolled by filing a request for reconsideration with the commission.  Section 44 was subsequently amended in 1992, primarily to shift jurisdiction to conduct judicial review to the Superior Court, but also to include a cross-reference to judicial review under G. L. c. 30A, § 14.  Section 14(1) provides that the timely filing of a petition for rehearing with an agency tolls the time for seeking judicial review of the agency decision.

The question we face here is whether § 44, as now in effect, continues to impose the strict thirty-day deadline for seeking review of commission decisions identified in Curley, or instead whether its cross-reference to § 14 means that the time for seeking review is tolled by the timely filing of a petition for rehearing.  We conclude that § 44 continues to impose a strict thirty-day deadline and, thus, we affirm the portion of the judgment dismissing, as untimely, the plaintiffs’ claim for judicial review.  As for the plaintiffs’ claim for declaratory relief, however, which was dismissed without explanation, we vacate that portion of the judgment and remand for further proceedings.”

Click here for the full text of the Appeal Court’s decision.

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