Commonwealth v. Pennsylvania Higher Education Assistance Agency (Lawyers Weekly No. 09-019-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV02682-BLS2 ____________________ COMMONWEALTH OF MASSACHUSETTS v. PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY d/b/a FedLoan Servicing ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS The Commonwealth of Massachusetts has sued the Pennsylvania Higher Education Assistance Agency (PHEAA) for engaging in allegedly unfair and deceptive acts and practices against Massachusetts student loan borrowers. It appears to be undisputed that PHEAA, although originally established to help provide student loans and grants for Pennsylvania residents, has become one of the largest student loan servicers in the country and now manages the federal student loan accounts of hundreds of thousands of Massachusetts residents under a contract with the United States Department of Education. The Commonwealth claims that PHEAA violated the federal Consumer Financial Protection Act and G.L. c. 93A by charging and collecting amounts not owed by borrowers, failing to process borrowers’ applications for income driven repayment plans in a timely and accurate manner, and failing to properly count borrowers’ qualifying payments under the Public Service Loan Forgiveness program. PHEAA has moved to dismiss this action on several grounds. The Court will DENY this motion because it is not convinced that PHEAA is an arm of the Commonwealth of Pennsylvania and shares in its sovereign immunity, that PHEAA cannot be sued under G.L. c. 93A or that its alleged misconduct is exempt from c. 93A because it is affirmatively permitted by federal law, or that the United States Department of Education is an indispensable party. 1. Background—PHEAA’s Enabling Act. Certain aspects of the enabling act that created PHEAA provide background relevant to PHEAA’s claims that it is entitled to invoke the Commonwealth of Pennsylvania’s sovereign immunity and that it cannot be sued under G.L. c. 93A because it is a public entity. – 2 – PHEAA was established by the Pennsylvania Legislature as “a public corporation and government instrumentality.” 24 Pa. Stat. § 5101. It is authorized to make, guarantee, and service student loans. Id. § 5104(3). By statute, PHEAA has substantial financial and operational independence from the Commonwealth of Pennsylvania. PHEAA can spend money “for any of its purposes” without needing any legislative appropriation. Id. § 5104(3). Although PHEAA must deposit its revenues “in the State Treasury,” it may use its funds whenever it wants “at the discretion of the board of directors for carrying out any of the corporate purposes of the agency.” Id.; see also id. § 5105.10 (PHEAA’s loan servicing, loan repayment, and other revenues are held within State Treasury in a segregated “Educational Loan Assistance Fund,” are all “appropriated to [PHEAA’s] board,” and “may be applied and reapplied as the board shall direct and shall not be subject to lapsing”). And PHEAA may […]
Categories: News Tags: 0901918, Agency, Assistance, Commonwealth, Education, Higher, Lawyers, Pennsylvania, Weekly
New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-654 Appeals Court NEW BEDFORD EDUCATORS ASSOCIATION vs. CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]). No. 16-P-654. Middlesex. May 4, 2017. – August 23, 2017. Present: Trainor, Vuono, & Sullivan, JJ. Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review. Declaratory Relief. Mandamus. Board of Education. Commonwealth, Education. Education. School and School Committee. Labor, Public employment. Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014. After consolidation, motions to dismiss were heard by Kimberly S. Budd, J. Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants. VUONO, J. In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J. The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3] The unions sought declaratory relief pursuant to G. L. c. 231A. NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5. The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction. Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions. On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing. For the reasons […]
Categories: News Tags: 1110817, Association, Bedford, Board, cases, Chairman, consolidated, Education, Educators, Elementary, Lawyers, massachusetts, Secondary, Weekly
Plymouth Public Schools v. Education Association of Plymouth & Carver, et al. (Lawyers Weekly No. 11-077-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-906 Appeals Court PLYMOUTH PUBLIC SCHOOLS vs. EDUCATION ASSOCIATION OF PLYMOUTH & CARVER & another.[1] No. 15-P-906. Plymouth. April 11, 2016. – June 30, 2016. Present: Cypher, Katzmann, & Massing, JJ. School and School Committee, Professional teacher status, Maternity leave, Arbitration, Termination of employment. Arbitration, Arbitrable question, School committee. Public Employment, Paid leave, Termination. Family & Medical Leave Act. Civil action commenced in the Superior Court Department on February 18, 2014. The case was heard by Frank M. Gaziano, J., on motions for summary judgment. Matthew D. Jones (Ashley F. Call with him) for the defendants. Michael J. Long for the plaintiff. MASSING, J. Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of five consecutive school years. She took maternity leave during two of them. The district tendered a notice of nonrenewal at the end of the fifth year. Bilbo asserts that her service, interrupted only by her leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA), entitles her to professional teacher status,[2] giving her rights including arbitration of her dismissal.[3] The district contends that Bilbo is not entitled professional teacher status or arbitration because she did not serve three consecutive full years. We conclude that whether Bilbo has attained professional teacher status is for the arbitrator to decide. Background.[4] Bilbo worked full-time as a special education teacher at Plymouth North High School starting on March 10, 2008, through the end of the school year in June, 2013. She took maternity leave during her first and fourth full years as a teacher, for sixty days in 2009 and for fifty-six days in 2012. Bilbo’s leave was authorized under the FMLA. She was paid during both absences using accumulated sick time and a sick-leave bank available under the governing collective bargaining agreement. Toward the end of her fifth year of teaching, by letter dated May 31, 2013, the district provided Bilbo with notice that she would not be reappointed to a teaching position for the next school year.[5] The letter explained, “You are not being appointed to a teaching position based upon the recommendations of your supervising principal and program manager and the concerns about continuity of instruction and the education of our students.” Asserting that she possessed professional […]
Kewley v. Department of Elementary and Secondary Education, et al. (Lawyers Weekly No. 11-099-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-833 Appeals Court BARBARA KEWLEY vs. DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION & others.[1] No. 13-P-833. Suffolk. December 11, 2013. – August 22, 2014. Present: Green, Sikora, & Milkey, JJ. License. Administrative Law, Agency, Judicial review, Agency’s interpretation of statute. School and School Committee, Professional teacher status, Appointment of personnel. School and School District. Constitutional Law, Police power. Due Process of Law, License, Retroactive application of statute, Substantive rights. Statute, Retroactive application, Construction. Practice, Civil, Review of administrative action, Action in nature of mandamus. Civil action commenced in the Superior Court Department on August 6, 2009. The case was heard by Heidi E. Brieger, J., on motions for summary judgment. Daniel O’Connor (Laura Elkayam with him) for the plaintiff. John M. Stephan, Assistant Attorney General, for the Department of Elementary & Secondary Education. Thomas A. Mullen for the Wachusett Regional School Committee. SIKORA, J. In 2009 the plaintiff, Barbara Kewley, brought suit in Superior Court against three governmental defendants: the Department of Elementary and Secondary Education (DESE); the Board of Registration in Speech-Language Pathology and Audiology (board); and the Wachusett Regional School Committee (school committee) (collectively, defendants). She sought a declaratory judgment of her eligibility to practice speech and language therapy in public schools under the authority of her licensure from the DESE and without licensure from the board, and an affirmative injunction compelling the school committee to grant her a teacher’s contract as a speech therapist. The defendants contested those entitlements. At the conclusion of discovery, the parties composed a statement of agreed material facts and submitted cross motions for summary judgment. By memorandum of decision and a conforming order, a judge of the Superior Court granted full summary judgment in favor of all defendants. Kewley has appealed. For the following reasons, we now affirm. Background. 1. Early biography. In 1981 Kewley earned a bachelor of science degree in the field of speech, language, and hearing disorders. Also in 1981, she earned a license from the Department of Education certifying her as an “educator” in “all levels” of “speech,” “language,” and “hearing disorders” (DESE license). The life of the license originally was indefinite. The Legislature subsequently renamed the Department of Education as DESE. Pursuant to the Education Reform Act of 1993, DESE has required renewal of licensure at five-year intervals. G. L. […]
Categories: News Tags: 1109914, department, Education, Elementary, Kewley, Lawyers, Secondary, Weekly
School Committee of Marshfield v. Marshfield Education Association (Lawyers Weekly No. 11-007-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1737 Appeals Court SCHOOL COMMITTEE OF MARSHFIELD vs. MARSHFIELD EDUCATION ASSOCIATION. No. 12‑P‑1737. Plymouth. October 8, 2013. ‑ January 28, 2014. Present: Kafker, Vuono, & Carhart, JJ. Contract, School teacher, Collective bargaining contract, Arbitration. Public Employment, Collective bargaining, Termination. School and School Committee, Collective bargaining, Termination of employment, Arbitration, Waiver. Labor, Public employment, Collective bargaining, Arbitration. Arbitration, School committee, Collective bargaining, Authority of arbitrator, Award. Waiver. License. Public Policy. Civil action commenced in the Superior Court Department on October 14, 2010. The case was heard by Robert C. Cosgrove, J., on motions for summary judgment. James A. Toomey (Tami L. Fay with him) for the plaintiff. John M. Becker for the defendant. Stephen J. Finnegan, for Massachusetts Association of School Committees, Inc., amicus curiae, submitted a brief. Michael J. Long, for Massachusetts Association of School Superintendents, amicus curiae, submitted a brief. KAFKER, J. Review of the arbitration award here requires us to examine the teacher licensing and termination provisions in the Education Reform Act of 1994, St. 1993, c. 71, as well as various provisions in a collective bargaining agreement, and explain their interrelationship. Gerard O’Sullivan was employed as a teacher by the Marshfield public school district (district) for almost eight years. O’Sullivan was terminated in 2008 when the school committee of Marshfield (school committee) took the position that his employment automatically ended by operation of law when his teaching license was not renewed by the Commissioner of Education (commissioner) and the commissioner denied the district superintendent’s request for a waiver of the license requirement. The school committee took no steps to terminate O’Sullivan in accordance with the terms of his teaching contract and the collective bargaining agreement (CBA) between the school committee and the Marshfield Education Association (association), to which O’Sullivan belonged. Nor did the school committee follow the teacher termination process set out in G. L. c. 71, § 42. Rather, the school committee asserted that without a license or waiver, O’Sullivan ceased to be employed as a matter of law, and as a result, was not entitled to any rights afforded a professional teacher under § 42, or under the CBA, including the one-year unpaid leave of absence O’Sullivan had requested so that he could fulfil the requirements necessary for licensure. Thereafter the association, “pursuant to the parties’ collective bargaining agreement,” […]
Categories: News Tags: 1100714, Association, Committee, Education, Lawyers, Marshfield, school, Weekly
Nordberg v. Department of Education, et al. (Lawyers Weekly No. 10-118-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11425 PAUL C. NORDBERG vs. DEPARTMENT OF EDUCATION & others.[1] July 1, 2013. Supreme Judicial Court, Appeal from order of single justice. Paul C. Nordberg appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm. Nordberg commenced an action in the Superior Court in 2007. With leave of court, he filed several amended complaints. On the defendants’ motion, Nordberg was also ordered to provide a more definite statement. Mass. R. Civ. P. 12 (e), 365 Mass. 754 (1974). Nordberg moved to file a fifth amended complaint. A judge denied that motion, but stated that a portion of the proposed fifth amended complaint satisfied the order to provide a more definite statement. Nordberg thereafter moved for entry of a default judgment. The same judge denied that motion on the grounds that the more definite statement did not require a responsive pleading, that no default had entered pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974), and that Nordberg had not complied with Rule 9A of the Rules of the Superior Court (2001).[2] Nordberg filed a petition for relief pursuant to G. L. c. 231, § 118, first par., which was denied by a single justice of the Appeals Court. His G. L. c. 211, § 3, petition followed. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires an appellant in these circumstances to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.“ Nordberg has not carried his burden under the rule, as he has not shown that the challenged rulings could not adequately be addressed in an appeal from an adverse final judgment. His argument that the judge’s rulings have made it impossible to join the issues for trial is unavailing; there is no reason the case cannot proceed in the ordinary course through discovery, summary judgment motions, and, if warranted, trial. Moreover, Nordberg had (and has already pursued) an alternative remedy, namely, a petition for relief under G. L. c. 231, § 118. “Review under G. L. c. 211, § 3, does not lie […]
Things to Know in the South End Today, March 13: Entrepreneur Workshop at Boston Center for Adult Education
1. Weather: The National Weather Service is predicting a mostly sunny day with a high of 54 degrees. 2. Calling all Entrepreneurs: Pack up your business plan and bring it to the Boston Center for Adult Education (122 Arlington St.) to join business consultant Kim L. Clark and a group of hopeful entrepreneurs for round robin discussions You’ll receive a critique of your business model; smart advice on marketing/PR/social media strategies; insights into sales distribution channels that make sense for you and your customers; and advice on financing options in today’s cruel economy. The workshop starts at 5:30 and will cost you $ 120. See here for more information. 3. Concert Tickets on Sale: Tickets went on sale today for the inaugural Boston Calling Music Festival, to be held at City Hall Plaza on May 25-26. Featured performers will include Fun, The Shins and 16 others. A one-day pass costs $ 75; a weekend pass costs $ 130. See here for more information. 4. Opening at BCA: Starting tonight at the Boston Center for The Arts (539 Tremont St.), Wellesley High Theatre Company presents a self-scripted drama Passenger, a show about one teen’s journey that moves between reality and abstraction as she faces cancer. All proceeds from Boston shows will benefit the Make a Wish Foundation. See here for more information. 5. Become a police officer: The civil service exam for police officers and state troopers is being offered on April 20 at various locations around the state. The cost is $ 100 per person, and the deadline to apply is March 18. Learn more and download an application at mass.gov/civilservice. Things you can do every day on South End Patch: Share your news with the rest of the community. Click here to add an announcement. Add your events to our events calendar. Click here to sign up for breaking news updates. Want up-to-the-minute news? Click here to follow us on Facebook or Twitter. Share your thoughts on your community in a blog. Click here to get started. South End Patch