SACHCHIDANAND JHA & Another v. DEPARTMENT OF EARLY EDUCATION AND CARE.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-221

SACHCHIDANAND JHA & another1

vs.

DEPARTMENT OF EARLY EDUCATION AND CARE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Sachchidanand and Ranjana Jha, operated

child care programs on the first and second floors of their two-

family home in Belmont until the defendant, the Department of

Early Education and Care (department), declined to renew their

licenses in 2019.2 The Jhas thereafter made several unsuccessful

attempts, before both the Division of Administrative Law Appeals

(DALA) and the Superior Court, see note 3, infra, to challenge

the department's decisions. The Jhas filed the present matter,

1 Ranjana Jha.
2 As alleged, Sachchidanand and Ranjana each operated separate
programs, located on the residence's second and first floors,
respectively. Although their allegations are not entirely
clear, it appears as if Sachchidanand Jha's license was not
renewed in 2018, and Ranjana Jha's license was not renewed in
2019. For purposes of this appeal, distinctions between their
programs, if any, are not material and unless otherwise
indicated we refer to the plaintiffs, collectively, as the
"Jhas" or "plaintiffs."
their third successive Superior Court action, in May 2021 under

G. L. c. 258, the Massachusetts Tort Claims Act. The department

moved to dismiss the Jhas' complaint pursuant to Mass. R. Civ.

P. 12, 365 Mass. 754 (1974). Following a hearing, a Superior

Court judge allowed the motion, dismissed the Jhas' complaint,

and denied leave to amend, ruling that the department had

immunity from liability under G. L. c. 258, §§ 10 (b)

(discretionary function), and 10 (e) (licensing). The Jhas now

appeal therefrom. We affirm.

The department regulates the programs and services provided

by the Jhas and is tasked with monitoring and evaluating them

"on an ongoing basis." G. L. c. 15D, § 2 (h). To accomplish

this the department may -- and in the case of such "large family

day care homes" as are at issue here, must -- conduct both

announced and unannounced site visits and inspections. G. L.

c. 15D, § 9 (a), (b). Subject to the right of "[a]ny party

aggrieved by a final decision of the department" to seek

judicial review under G. L. c. 30A, the department has broad

statutory authority and discretion to "impose any . . .

sanctions it considers appropriate" on such providers as it

finds to be noncompliant; the department may also "suspend,

revoke, . . . [or] refuse to . . . renew the license of any

person" operating a program found to be noncompliant. G. L.

c. 15D, § 10.

2
In 2019 the department inspected the Jhas' programs, found

multiple regulatory violations, and imposed certain sanctions.

After additional site visits uncovered more violations, the

department issued new orders, including an order of suspension

and notice that the department would not renew the program's

license. As noted, Ranjana Jha thereafter unsuccessfully

challenged the department's decisions, both administratively and

through civil litigation, on several occasions.3

In the present matter, the Jhas allege, inter alia, that

between 2017 and 2019, employees of the department, while

inspecting the Jhas' programs and otherwise carrying out their

duties, were "disrespectful," "humiliated them in the presence

of the children" and others, and "spied" on them. The Jhas

further allege that (i) departmental employees were in numerous

instances untruthful in their observations, reports, other

communications, and testimonies, and (ii) the department

improperly sanctioned the Jhas, failed to clarify the Jhas'

3 Those earlier challenges resulted in the following decisions
and judgments: (i) a January 2020 DALA decision in the
department's favor; (ii) a Superior Court judgment, entered on
July 14, 2020, dismissing Ranjana Jha's 2019 action as moot; and
(iii) a Superior Court judgment, entered on June 24, 2021,
dismissing Ranjana Jha's subsequent G. L. c. 30A action filed in
2020. A panel of this court later affirmed the Superior Court
judgment dismissing Ranjana Jha's c. 30A action. See Jha v.
Department of Early Educ. & Care, 101 Mass. App. Ct. 1110
(2022).

3
obligations, failed to carry out its duties, and improperly

declined to renew their licenses.

Preliminarily, and without considering whether the Jhas'

present claims are barred by the prior judgments, we disagree

that the motion judge misunderstood the Jhas' allegations,

exhibited "a poor understanding of the" issues presented, or

otherwise mischaracterized the Jhas' complaint. On our

independent record review, we are satisfied that the judge

demonstrated a thorough understanding of the Jhas' present

allegations as well as a full appreciation of this matter's

lengthy history. Indeed, the judge's thoughtful, careful

decisional memorandum counters such claims.

More substantively, the judge did not erroneously apply

G. L. c. 258, § 10 (e), which provides an exception to the

Commonwealth's sovereign immunity waiver for "any claim based

upon," among other things, the "failure or refusal to issue,

deny, suspend or revoke any . . . license." While the Jhas

attempt to characterize at least some of the department's

alleged acts as independent torts unrelated to licensing,

§ 10 (e) "encompasses not only claims resulting directly from a

licensing decision, but also claims 'rooted in' the licensing

process" (footnote omitted). Andrade v. Somerville, 92 Mass.

App. Ct. 425, 429 (2017), quoting Smith v. Registrar of Motor

Vehicles, 66 Mass. App. Ct. 31, 33 (2006). "If the gravamen of

4
a plaintiff's complaint can be traced back to any one or more of

the types of events or activities delineated in § 10 (e), then

the action is barred." Smith, supra.

In this case, the gravamen of the Jhas' complaint is that

the department, in carrying out its statutory oversight and

licensing duties, improperly found regulatory and other

violations; issued sanctions and other orders; suspended and

then declined to renew the Jhas' licenses; and defended its

findings and decisions before administrative and judicial

tribunals, all to the Jhas' and their business's injury. As

such, the Jhas' claims are rooted in the "issuance, denial,

suspension or revocation [of] or failure . . . to issue" any

license or similar authorization. G. L. c. 258, § 10 (e). See

Andrade, 92 Mass. App. Ct. at 429 (where agency allegedly

returned firearm to individual whose license had been revoked,

failed to retrieve that firearm, and perpetrator thereafter used

firearm to shoot victim, agency immune from liability, court

concluded that "while the [victim's] injuries were not caused

directly by the issuance or revocation of a firearms license,

they are based upon the department's decision to revoke [the

perpetrator's] license" [quotation omitted]). Indeed, the Jhas

acknowledge as much in their briefing, asserting that their

claims "arise[] from the [department's] actions . . . during

5
2015-2019 [culminating] in delicensing of" the Jhas "to provide

childcare at their home." There was no error.

Nor do we perceive any error with respect to the judge's

alternative holding under the so-called discretionary function

exception. See G. L. c. 258, § 10 (b). As the judge noted, the

Jhas' allegations all arise out of the performance of

discretionary functions and duties entrusted by statute to the

department and its employees. In particular, in carrying out

the department's statutory duties in this case, its employees

were called upon to exercise professional judgment, weigh

competing evidence, make credibility assessments, and interpret

legal principles as those principles apply to the department's

actions. Accordingly, the department's actions as here alleged

fall squarely within § 10 (b)'s ambit. See Sena v.

Commonwealth, 417 Mass. 250, 257 (1994) ("the conduct of law

enforcement officials in investigating potentially criminal

conduct and in seeking warrants for the arrest of those whom

they investigate, are discretionary functions and therefore fall

within the exception in § 10 [b]"). This is particularly so in

this case where the Jhas had available to them, and in fact

pursued, administrative and other alternative remedies. See

Pina v. Commonwealth, 400 Mass. 408, 414 (1987) (agency immune

from liability for erroneous determination by agency employees

that plaintiff no longer disabled where, among other things,

6
"there is obviously an alternate remedy available to the injured

individual other than an action for damages" [quotation and

citation omitted]).

We are unpersuaded that, because the department's decisions

"arose from the actions of employees in a regional office," they

were nondiscretionary. See Harry Stoller & Co. v. Lowell, 412

Mass. 139, 143 (1992) ("Even decisions made at the operational

level, as opposed to those made at the policy or planning level,

would involve conduct immunized by the discretionary function

exception if the conduct were the result of policy

determinations"). We likewise are unpersuaded that the

discretionary function exception could not properly be applied

at the pleading stage. See Greenwood v. Easton, 444 Mass. 467,

468 n.3 (2005) ("It is important to determine immunity issues

early to protect . . . government agencies from unwarranted

disruption and harassing litigation"). In this regard we note

that the Jhas have not identified, either here or below, any

anticipated discovery that could plausibly have supported a

triable claim falling outside the scope of § 10 (b).

Finally, for the reasons discussed above and to the extent

the Jhas so argue, we are unable to conclude that the judge

abused his discretion by denying the Jhas' motion for leave to

amend. See Tocci v. Tocci, 490 Mass. 1, 24 (2022) (leave to

amend properly denied where "the amendment would be futile").

7
See also G. L. c. 258, § 2 ("no . . . public employee . . .

shall be liable for any injury or loss of property . . . caused

by [their] negligent or wrongful act or omission while acting

within the scope of [their] office or employment"). In light of

the foregoing we need not address the Jhas' remaining arguments,

to the extent made. Nor need we address the alternative grounds

pressed upon us by the department.

Judgment affirmed.

By the Court (Milkey,
Neyman & Smyth, JJ.4),

Clerk

Entered: February 8, 2023.

4 The panelists are listed in order of seniority.

8