Opinion
No. CV 10 5015246S
September 12, 2011
MEMORANDUM OF DECISION
The plaintiff, John Sugros, brings this purported administrative appeal from a denial of his request that he receive a refund of his late wife's accumulated contributions and interest thereon paid to the defendant teachers retirement board (the board). On December 22, 2010, the board moved to dismiss the appeal on the ground of subject matter jurisdiction, that of aggrievement. At oral argument on the board's motion, the court raised another subject matter jurisdictional issue — whether the "final decision" requirement of General Statutes § 4-183(a) was met in this case. The parties submitted supplemental briefs and affidavits on this point.
See Practice Book § 10-31 and Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
The affidavits are not in conflict on the facts and show as follows:
1. On September 17, 1970, Joanne Sugros submitted a membership application to the board.
2. On January 23, 2009, the board was notified that Joanne Sugros had died. The plaintiff, Joanne Sugros' husband, was informed by the board that he was entitled to a $600 month benefit as the surviving spouse.
3. On October 22, 2009, an attorney for the plaintiff asked the board for the return of his wife's contributions.
4. On November 16, 2009, the board informed the plaintiff that the board was not statutorily authorized to return his wife's contributions to his wife's estate or to him.
5. On March 24, 2010, the plaintiff requested the return of the contributions in an e-mail message and the board replied with a denial.
6. On March 25, 2010, the plaintiff requested a hearing with the board to contest the denial.
7. On May 6, 2010, a meeting was held with the board's administrator, the attorney for plaintiff and the plaintiff. At this meeting, discussions were held, but no formal testimony or documentary evidence was taken.
8. On August 19, 2010, the parties convened again and three members of the board were also present. The issue of refunding the plaintiff was again explored, the plaintiff gave the board a position paper, but no formal testimony or documentary evidence was taken. The full board was not present.
9. On September 1, 2010, notice of denial was given to the plaintiff by an e-mail message sent by the board's administrator.
The court must decide on these facts whether a "final decision" was rendered by board in this case as required by § 4-183(a), so that the plaintiff may institute this administrative appeal. The lack of a final decision is grounds for dismissal. See, e.g., Sanaa Enterprises LLC v. Dept. of Public Health, Superior Court, judicial district of New Britain, Docket No. 10-6008202 (February 28, 2011, Cohn, J.) [ 51 Conn. L. Rptr. 525]. A "final decision" means "the agency determination in a contested case." § 4-166(3). A "contested case" is defined as a proceeding held because a hearing is mandated by state statute or regulation to determine one's legal rights. § 4-166(2). Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 629 A.2d 367 (1993); Lewis v. Gaming Policy Board, 224 Conn. 693, 620 A.2d 780 (1993). A gratuitously-given administrative hearing does not provide the basis for an administrative appeal. Herman v. Division of Special Revenue, 193 Conn. 379, 477 A.2d 119 (1984).
Section 4-183(a) states, in relevant part: "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."
The parties agree that there is no statutory right to a hearing. The plaintiff, however, relies upon a portion of board regulation § 10-183l-18: "Hearings will be held upon a timely written request for a hearing by any person receiving notice pursuant to section 10-183l-19 of the board's intention to discontinue or reduce the amount of his or her periodic benefits . . ." See also Canterbury v. Rocque, 78 Conn.App. 169, 826 A.2d 1201 (2003) (a timely request for an administrative hearing made the hearing mandatory and provided jurisdiction under § 4-183(a)).
There is no dispute that the plaintiff in this case did request a hearing on March 24, 2010. Regulation § 10-183l-18, as quoted above, allows for a hearing when the board intends to "discontinue or reduce the amount of his or her periodic benefits . . . See also regulation § 10-183l-19: "Prior to the discontinuance or reduction of any periodic benefit provided for in chapter 167a for reasons other than those contemplated by the payment plan election made under section 10-183j of the Connecticut General Statutes the board shall provide the beneficiary with notice of such intention and a statement of the reason and legal authority therefor."
The board argues that the request for a hearing was not "timely," but the court does not reach this issue.
The request for a hearing in this case was to dispute the refusal of the board to return the plaintiff's decedent's contributions, not to contest "discontinuance or reduction" of any type of benefit. Indeed, the board's offer to provide a monthly survivor benefit has been rejected by the plaintiff in his attempt to obtain the contributions. See letter, October 22, 2009, Exhibit 4, plaintiff's supplemental brief. The court's construction of the regulation "must [comport] with the plain and ordinary meaning of the [provision] as . . . used in common parlance." Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 122-23, 735 A.2d 782 (1999). The regulation providing for a hearing thus does not apply to this situation, namely a request for a hearing over a refusal to return contributions.
This is not a situation where the plaintiff is litigating over the size of his surviving spouse benefit as opposed to his wife's presumably larger benefit. He wants no benefit at all. Moreover he is not claiming that the board had no right to "discontinue" his wife's pension.
The plaintiff under regulation §§ 10-183l-18 and 10-183l-20 is free to pursue a declaratory ruling on the board's interpretation under the general statutes that has differed with his position on the refund. The board proceedings of May and August 2010 do not constitute a declaratory ruling proceeding. See § 10-183l-20; Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn.App. 134, 141, 779 A.2d 817 (2001); Peruta v. Commissioner of Public Safety, 128 Conn.App. 777, 785, 20 A.2d 691 (2011).
Since there was no hearing required by state statute or regulation, the motion to dismiss based on a lack of subject matter jurisdiction is granted.