64. How Do You Appeal to the Court?

One must appeal the Board’s final decision—whether it is a denial of the request for review, or a denial after acceptance of the decision—by filing a complaint for judicial review within 30 days of the date on the front of the page of the Board’s decision.

Either party may file a complaint or petition for judicial review within 30 days of the Board’s decision. Again, if there is no decision within the 21‑day period, the application is deemed denied on the 21stday, and the party must take an appeal within 30 days thereof i.e., within 51 days of filing the application for review. The Court must receive the complaint or petition before the expiration of the 30-day period; it is not sufficient for the complaint or petition to simply be postmarked within that time. Garrett v. Dir. of the Div. of Emp't Sec., 394 Mass. 417, 475 N.E.2d 1221 (1985).

An appeal lies in the District Court within the judicial district where a party lives, last worked, or has a usual place of business. G.L. c. 151A, § 42. As DUA’s principal office is in Boston, a one-party appeal may be filed in the Boston Municipal Court.  Judicial review is provided pursuant to the state Administrative Procedure Act, G.L. c. 30A, § 14.

For indigent claimants, the filing fee may be waived pursuant to G.L. c. 261, § 27C. Although the statute does not require it, many District Court clerks insist on documentary proof of the assertions in the Affidavit of Indigency (e.g., a copy of a claimant’s EBT card (welfare receipt) or showing eligibility for food stamps, Medicaid, or other means tested programs) or require approval of the waiver request by a judge.

Note: Any delay in approving the waiver of the filing fee occasioned by a clerk’s seeking further information or judicial approval does not toll the filing deadline for the complaint. Do not leave the courthouse without insuring that the clerk has filed and docketed your case—and ask the clerk to stamp your copy of the complaint with the date and the docket number.  Although in some District Courts, the clerk will insist that the matter go before a Judge, if the affidavit is regular and complete on its face this should not be necessary. Reade v. Secr. of Commonwealth, 472 Mass. 573, 36 N.E. 3d 519, 525 (2015).

Under G.L. c. 151A, § 42, the plaintiff must serve the complaint upon each defendant (the Director of DUA and the employer, or simply the Director of DUA in a one-party appeal) by registered or certified mail, return-receipt requested, within seven days after commencing the action for judicial review; and the defendant employer must file its answer within 28 days. In Caldwell v. A-Sales, Inc., 385 Mass. 753, 754–55, 434 N.E.2d 174, 175 (1982), the SJC held that where an employer deliberately chose not to file an answer in an employee’s District Court action seeking review of denial of UI benefits, this went beyond an “innocuous mistake,” precluding the employer’s right to appeal the District Court’s judgment. The SJC also noted that because the requirement to file an answer within 28 days of service of the complaint was a statutory requirement and not governed by the rules of civil procedure, the District Court had improperly allowed the employer’s late-filed appeal. Nonetheless, DUA’s Legal Counsel has assented to late-filed answers by employers’ attorneys.

The answer does not include the record of the proceedings (including the transcript); DUA is simply required to make a “reasonable effort” to file the record with the answer. G.L. c. 151A, § 42. DUA may also file a copy of the record in lieu of an answer, which is increasingly DUA’s practice.

The court will review the administrative record but will not conduct an evidentiary hearing. The petitioner must mark up the case for a court hearing, although some District Courts will automatically schedule a hearing after receipt of the case record. Although DUA will argue that the court should defer to its expertise, the SJC has frequently held that “principles of deference [to the interpretation by administrative agencies] however, are not principles of abdication.”  Smith v. Comm'r of Transitional Assistance, 431 Mass. 638, 646 (2000).

The court will only admit any new evidence after it has granted a motion to remand to DUA. It is important to request that the court retain jurisdiction pending remand to avoid the necessity of filing a new petition, along with an additional filing fee, if the claimant is again disqualified after the second DUA hearing and Board of Review appeal. Any further appeal from the District Court is taken to the Appeals Court in accordance with the Massachusetts Rules of Appellate Procedure.

(A sample complaint for judicial review is attached as Appendix M.)