ELLEN MOYNIHAN v. CONTRIBUTORY RETIREMENT APPEAL BOARD & Another.

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

23-P-167

ELLEN MOYNIHAN

vs.

CONTRIBUTORY RETIREMENT APPEAL BOARD & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Ellen Moynihan, has worked as a public

school teacher and administrator since 1988. She began her

career in Norfolk, Virginia, where she taught elementary school

for four years before moving away from the area. She then

taught in Stamford, Connecticut for three years and in Sutton,

Massachusetts for six years before accepting a position in

Worcester, where she continued to work until the time of this

appeal. In 2016, pursuant to G. L. c. 32, § 3 (4), she applied

to the Massachusetts Teachers' Retirement System (MTRS) to

"purchase" credit for her years of service outside of Worcester.2

1 Massachusetts Teachers' Retirement System.

2General Laws c. 32, § 3 (4), permits public school
employees to contribute a sum of money to their pension fund to
represent payments they would have made during years they spent
teaching elsewhere. This act is referred to as "purchasing"
The plaintiff was permitted to purchase credit for her Stamford

and Sutton years of service, but MTRS denied her request with

respect to her time in Norfolk, reasoning that she was

prohibited by statute and regulation from purchasing service for

which she had already received a retirement allowance.

The plaintiff appealed that denial to the Division of

Administrative Law Appeals (DALA), which affirmed it. She then

appealed DALA's decision to the Contributory Retirement Appeal

Board (CRAB), which also affirmed the MTRS ruling. Having

exhausted her administrative remedies, the plaintiff sought

review in the Superior Court, where a judge denied her motion

for judgment on the pleadings and instead granted judgment to

the defendants on much of the same reasoning as had been offered

by MTRS and DALA. Discerning no error, we likewise affirm.

Discussion. "It is well established that judicial review

of a CRAB decision pursuant to G. L. c. 30A, § 14, is narrow."

Lydon v. Contributory Retirement Appeal Bd., 101 Mass. App. Ct.

365, 366-367 (2022), quoting Murphy v. Contributory Retirement

Appeal Bd., 463 Mass. 333, 344 (2012). While we review

questions of law de novo, we nonetheless typically defer to

CRAB's expertise and accord great weight to its interpretation

those years of service. Doing so permits teachers to increase
the size of payments they receive from MTRS in retirement. See
Massachusetts Teachers' Retirement Sys. v. Contributory
Retirement Appeal Bd., 466 Mass. 292, 294-295 (2013).

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and application of the statutory provisions it administers. Id.

at 367. "We will reverse or amend CRAB's decision only if it is

arbitrary or capricious, based upon an error of law or unlawful

procedure, unwarranted by the facts found by the agency . . . or

unsupported by substantial evidence" (citation omitted). Id.

"In certain situations, a member of a retirement system may

purchase additional creditable service, or credit, for work or

other service performed before becoming a member of a retirement

system." Massachusetts Teachers' Retirement Sys. v.

Contributory Retirement Appeal Bd., 466 Mass. 292, 294 (2013).

Importantly, however, "no credit shall be allowed . . . for any

service for which the member shall be entitled to receive a

retirement allowance from any other state." G. L. c. 32,

§ 3 (4).

This case turns on the meaning of the phrase "retirement

allowance." The plaintiff's chief argument is that this phrase

is "commonly understood" to refer to "the retirement benefit

that a member obtains at retirement," but the principal case on

which she relies to support this proposition plainly refers to

retirement allowances provided by the Massachusetts retirement

system.3 See Young v. Contributory Retirement Appeal Bd., 486

3 At times, the plaintiff alludes to the definition offered
in G. L. c. 32, § 1, as supporting her cause. Section 1 defines
retirement allowance as "the sum of the amount of the annuity
and the amount of the pension provided for in sections one to

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Mass. 1, 3 (2020) (describing "retirement allowance" in context

of G. L. c. 32). As such, we decline to adopt this narrow

reading of the statute, as "[t]he language of the statute is not

to be enlarged or limited by construction unless its object and

plain meaning require it." Dube v. Contributory Retirement

Appeal Bd., 50 Mass. App. Ct. 21, 23-24 (2000), quoting

Gateley's Case, 415 Mass. 397, 399 (1993). Instead, MTRS, under

authority granted to it by G. L. c. 32, § 20 (5) (b), has

promulgated 807 Code Mass. Regs. § 19.04 (2010), which states:

"(1) [G. L. c. 32, § 3 (4),] provides that no credit shall
be allowed and no payment shall be accepted for any service
for which the member shall be entitled to receive a
retirement allowance from any other state.

"(2) For purposes of 807 CMR 19.04(1), the term 'retirement
allowance' means any out of state governmental defined
benefit plan, or defined contribution plan offered in lieu
of a defined benefit plan or as the sole retirement plan
but not as a supplemental plan, in which a member is
eligible to receive, or has received, a benefit based in
whole or in part upon employer contributions."

The parties do not dispute that the Norfolk, Virginia

school system made payments into the Virginia retirement fund on

the plaintiff's behalf, and that she received a payout in the

amount of $4,156.20 from that system when she ended her

twenty-eight inclusive." G. L. c. 32, § 1. The internal
reference to §§ 1 to 28 reflects, however, that the definition
offered in § 1 refers only to retirement benefits provided under
the statute -- that is, for work performed specifically in
Massachusetts. The plaintiff eventually concedes this point in
her brief before this court.

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employment there and departed the area in 1992. CRAB concluded

that Norfolk's contributions to the plaintiff's retirement fund

constituted employer contributions, and the payment of those

funds to her amounted to a retirement allowance. We defer to

CRAB's interpretation of its regulation. See Lydon, 101 Mass.

App. Ct. at 367. Accordingly, we conclude that the plaintiff

was properly precluded from purchasing her Norfolk years of

service by MTRS and discern no error on the part of the Superior

Court judge in denying the plaintiff's motion on that basis.

The plaintiff raises several additional arguments in urging

us to reverse CRAB's ruling, which we address in turn. First,

she contends that the proper time for determining whether she

qualified for retirement benefits from another agency was the

time at which she applied to MTRS to purchase credit for her

Norfolk years of service, and that, at that time, she did not

qualify for a retirement allowance from Virginia. We are

unpersuaded by this argument, however. The case on which the

plaintiff relies for this principle, Dube, 50 Mass. App. Ct. at

24-25, distinguished a set of facts in which a party could not

be prohibited from purchasing years of service based on the

nebulous possibility that they might become qualified to receive

a retirement allowance in the future. Where, as here, the

plaintiff has actually received the retirement allowance from

another system, we do not read Dube to preclude MTRS's

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interpretation of the definition of retirement allowance in 807

Code Mass. Regs. § 19.04(2).

Second, the plaintiff argues that the denial of her request

to purchase credit for her Norfolk years of service, as compared

to CRAB's acceptance of her Stamford and Sutton years,

constitutes a "distinction without a difference" that defeats

the purpose of G. L. c. 32, § 3 (4). We are not persuaded.

While we are not without sympathy to the obvious similarity

between the various retirement schemes, the plaintiff conceded

that "those funds [received from Virginia] supplemented [her]

income" as part of her argument that the funds did not

constitute a retirement allowance. The plaintiff's ability to

dispose of that cash sum however she saw fit in the intervening

years since her departure from Virginia constitutes a material

difference between her retirement allowance in Virginia and the

funds from Stamford and Sutton that she rolled into the MTRS

fund.

Third, the plaintiff argues that the administrative

magistrate and CRAB erred in ruling as a matter of law and

denying her an evidentiary hearing to explore "the nature of the

Virginia retirement plan, the contributions made for [the

plaintiff] and her entitlement to a retirement allowance." This

argument, however, conflates legal and factual disagreements

between the parties. The underlying facts of this case are not

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in dispute and, accordingly, we discern no error in concluding

that an evidentiary hearing was not warranted.

Finally, the plaintiff argues that the defendants should be

estopped from disallowing the purchase of credit for her years

of service in Norfolk because they relied on those years in

calculating her payments to MTRS. This argument suffers from

several fatal defects,4 but, regardless, "[t]he courts cannot

estop the conduct of a governmental officer or agency, as they

might a private actor, because the public interest in the lawful

work of the governmental actor overrides the unfairness or

injury to the private complainant." Ridgeley Mgt. Corp. v.

4 In order to establish a claim of equitable estoppel, the
plaintiff is required to show:

"(1) a representation or conduct amounting to a
representation intended to induce a course of conduct on
the part of the person to whom the representation is made;
(2) an act or omission resulting from the representation,
whether actual or by conduct, by the person to whom the
representation is made; and (3) detriment to the reliant
person as a consequence of the act or omission."
(Quotations, citation, emphasis, and internal punctuation
omitted.)

Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct.
419, 426-427 (2008). We agree with the Superior Court judge and
would be hard pressed to conclude that the plaintiff has
suffered a detriment where she was required to make higher
payments to the MTRS only because her salary was increased based
on her years of service in Norfolk. Even if all three parts of
the prima facie case were satisfied, the allegedly wrongful
conduct in question -- miscalculation of the plaintiff's salary
-- was performed by the Worcester school system, which is not a
party to this case.

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Planning Bd. of Gosnold, 82 Mass. App. Ct. 793, 801 (2012). On

these facts, we discern no reason to deviate from this general

rule.

Judgment affirmed.

By the Court (Rubin,
Massing & Desmond, JJ.5),

Assistant Clerk

Entered: May 28, 2024.

5 The panelists are listed in order of seniority.

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