Broadhurst v. Director of the Division of Employment Security
Broadhurst v. Director of the Division of Employment Security
Opinion of the Court
These are two cases brought under G. L. c. 151A, §42, as amended through St. 1975, c. 377, §§ 2 and 3, one by Susan Broadhurst and the other by Ellen Mintz, against the Director (director) of the Division of Employment Security (DES). In each case a judge of the District Court of Hampshire entered an order that the director pay to the plaintiff a specified sum of money in unemployment benefits “plus interest and costs.” Each case is now before us on the director’s appeal limited to that part of the order requiring the payment of interest and costs to the plaintiff in addition to the unemployment benefits.
Because of the limited scope of these appeals it is not necessary to describe the administrative proceedings which led to the entry of the two cases in the District Court, nor is it necessary to consider the amounts of the benefits claimed or awarded, which are no longer in dispute except as to the “interest and costs.”
After entry of the judge’s orders the director filed a motion in each case asking that the order be amended by eliminating the requirement for the payment of “interest and costs.” The grounds for the motions were that the Commonwealth cannot be sued or held liable without its consent, and that there is no provision in G. L. c. 151A, the Employment Security Law, imposing liability on the Commonwealth for interest and costs in such proceedings. The judge denied both motions and the director then claimed the appeals which are now before us. The appeals were followed by a report and were completed in accordance with the Massachusetts Rules of Appellate Procedure, all as prescribed by G. L. c. 151A, § 42.
We consider below whether the judge was correct in ordering that in addition to the unemployment benefits each plaintiff be paid “interest and costs.”
1. Costs.
“As a general rule in Massachusetts, a litigant must bear his own expenses except in so far as (1) a statute permits awards of costs, Loyal Protective Life Ins. Co. v. Massachusetts Indent. & Life Ins. Co., 362 Mass. 484, 494
The only express statutory authorization for imposition of costs against the Commonwealth in a G. L. c. 151A, § 42,
We disagree also with the plaintiffs’ argument that the award of costs against the Commonwealth is authorized by G. L. c. 261, § 13 (as appearing in St. 1973, c. 1114, § 345), which provides: “In civil actions or other proceedings in which no provision is expressly made by law, the costs shall be wholly in the discretion of the court, but no greater amount shall be taxed therein than is allowed for similar charges in actions in which costs are expressly provided for by law.” The plaintiffs argue that § 13
Pursuant to our reasoning, we think it was error for the judge to have awarded costs to the plaintiffs, and against the director in his official capacity. Without statutory authority, the judge was prohibited from so acting.
2. Interest.
General Laws c. 151A, in toto, and § 42 in particular, are silent as to the addition of interest to an award on a petition for overdue unemployment benefits. With respect to the payment of benefits, § 42 provides only that during the pendency of any appeal to this court these are to be paid or denied in accordance with the decision of the judge below. On our final determination as to any such appeal, the director of DES is to enter an order in accordance with our decision terminating the DES proceedings.
The plaintiffs, in arguing for the interest awards, state that it is well established that the assessment of interest is necessary to the full and just compensation of an indi
The plaintiffs have also misplaced their reliance on
For all the reasons discussed above we hold that the portions of the orders of the judge purporting to require the director to pay interest and costs to the plaintiffs were error. The orders are reversed and the cases are remanded to the District Court of Hampshire for the entry of new orders providing that the benefits previously awarded to the plaintiffs are awarded without interest or costs.
So ordered.
See 20 Am. Jur. 2d Courts § 84 (1965); J.W. Smith & H.B. Zobel, Rules Practice §§ 1.9 and 1.10 (1974).
Federal Rule of Civil Procedure 54 (d) is identical in substance to Mass. R. Civ. P. 54 (d) in that it provides that “costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law.”
Pursuant to Dist. Mun. Cts. R. Civ. P. 54 (1975), Mass. R. Civ. P. 54 is applicable to the District Courts with one exception: Dist. Mun. Cts. Rule 54 (a) differs from Mass. R. Civ. P. 54 in the definition of the terms “judgment” and “final judgment” as they include or fail to include “judgments” rendered under certain of the rules. However, such differences have no effect on the operation in the District Courts of Mass. R. Civ. P. 54 (d). See J.W. Smith & H.B. Zobel, Rules Practice § 54.12 (1977).
The plaintiffs argue that Mass. R. Civ. P. 54 (d) and the other District Municipal Courts Rules of Civil Procedure are inapplicable to an action for judicial review under G. L. c. 151 A, § 42, since such an action is not among those cases “traditionally considered tort, contract, replevin, or equity actions” pursuant to Dist. Mun. Cts. R. Civ. P. 81 (a) (1975). Granted that an action for judicial review of a DES disqualification of an applicant from unemployment benefits may not be among those “traditional” actions enumerated above, rule 81 (a) however also provides that “[i]n respects not governed by statute or by other District Court rules, the practice in civil proceedings to which these rules do not apply shall follow the course of the common law, as near to these rules as may be.” The practice under the common law, and as near to rule 54 as possible, is, as noted supra, that the Commonwealth can be impleaded only on consent and in the manner and extent expressed by statute.
Under Fed. R. Civ. P. 54 (d), as noted supra, note 4, and pre-1966 Federal practice, express statutory authority was to be found before costs could be assessed against the Federal government. United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926). Walling v. Frank Adam Elec. Co. 163 F.2d 277, 283 (8th Cir. 1947). Walling v. Norfolk S. Ry., 162 F.2d 95, 96 (4th Cir. 1947). Conners Marine Co. v. Petterson Lighterage & Towing Corp., 152 F.2d 657 (2d Cir. 1945), cert, denied, 327 U.S. 804 (1946). Aycrigg v. United States, 124 F. Supp. 416, 417 (1954). 10 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2671 (1973). 6 Moore’s Federal Practice par. 54.75 [3.-1] at 1553 (2d ed. 1976). Contrary to the Massachusetts provision, however, 28 U.S.C. § 2412, as amended by Act of July 18, 1966, Pub. L. 89-507, provided explicit statutory authorization for judgments of costs (excepting attorneys’ fees), to be awarded to the “prevailing party” in a civil action brought by or against the United States or its agencies or officers.
The plaintiffs argue that the doctrine of “sovereign immunity” should not preclude the award of costs in this action in view of this court’s disfavor with governmental immunity as articulated in Morash & Sons v. Commonwealth, 363 Mass. 612 (1973). Indeed, since the filing of the actions presently before us, we have expressed our strong view in Whitney v. Worcester, ante, 208, 209-210 (1977), that the immunity doctrine is “unjust and indefensible as a matter of logic and sound public policy,” and our intention in the future to abrogate immunity if the Legislature does not act first. However, our opinion in Whitney, although embodying our intention to broaden the liability of the sovereign as to damages, did not express such an intention regarding the awarding of costs. Any future abrogation of the doctrine of sovereign immunity does not necessarily herald the repeal of statutes such as G. L. c. 261, § 14, where the Legislature has spoken definitively as to the assessment of costs against the Commonwealth, a matter we deem “ancillary” to the underlying concern of liability for damages. Cf. Class v. Norton, 505 F.2d 123, 126-127 (2d Cir. 1974). Likewise, we see nothing in our discussion of immunity in Whitney, which in the future would implicitly negate the application of Mass. R. Civ. P. 54 (d).
St. 1964, c. 548.
Reference
- Full Case Name
- Susan Broadhurst v. Director of the Division of Employment Security & another (and a companion case)
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- 59 cases
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- Published