Kelley v. Boston Fire Department

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13-P-1701 Appeals Court

JOSEPH KELLEY & others1 vs. BOSTON FIRE DEPARTMENT & another.2

No. 13-P-1701. November 18, 2014.

Fire Fighter, Appointment. Municipal Corporations, Fire
department. Boston. Civil Service, Appointment.
Practice, Civil, Review of interlocutory action.

Four fire lieutenants employed by the city of Boston (city)
fire department filed an appeal with the Civil Service
Commission (commission) pursuant to G. L. c. 31, § 2(b) and (c),
claiming to be aggrieved by the practice of appointing out-of-
grade acting captains without following the provisions of the
civil service laws. The commission found that the city violated
G. L. c. 31, § 31, by appointing acting captains on an emergency
basis without initially notifying the Division of Human
Resources (HRD), and without obtaining the consent of HRD to
extend the emergency appointments after the initial thirty days.
The commission ordered the city to cease appointing acting
captains in this manner, and the city ended the practice
effective July 1, 2009.3 However, the commission ultimately
dismissed the plaintiffs' appeal, concluding that compliance
with § 31 procedures was "ministerial," and that the plaintiffs

1
Phillip Sifford, Michael Finn, and Lawrence MacDougall.
2
Civil Service Commission.
3
The emergency appointments were made by seniority, in
accordance with the provisions of the collective bargaining
agreement for appointing acting captains, while the temporary
appointments sought by the plaintiffs would have been made from
the civil service list.
2

had failed to demonstrate that the appointments did not meet the
statutory criteria set forth in G. L. c. 31, § 31.4

The lieutenants appealed the commission's decision pursuant
to G. L. c. 30A, § 14. A judge of the Superior Court vacated
the commission's decision, concluding as a matter of law that
the statutory notice and consent requirements were not
ministerial, and that the burden of proving that the § 31
criteria were met rested with the city, not the plaintiffs. The
matter was remanded to the commission for a new evidentiary
hearing to allow the plaintiffs to offer proof of the specific
appointments made in violation of § 31 that "they should have
received because of their position on the promotion list." The
city has appealed. No appeal was filed by the commission.

"As a general rule, an aggrieved litigant cannnot as a
matter of right pursue an immediate appeal from an interlocutory
order unless a statute or rule authorizes it." Elles v. Zoning
Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008). This
general rule applies with equal force to appeals by litigants
who appear before administrative agencies. "[A]n order of
remand to an administrative agency is interlocutory and may not
be appealed from by the parties to the underlying action."
Chief Justice for Admin. & Mgmt. of the Trial Ct. v.
Massachusetts Commn. Against Discrimination, 439 Mass. 729, 730
n.5 (2003).5

4
Section 31 provides, in pertinent part, that an emergency
appointment to a civil service position may be made "only when
the circumstances requiring it could not have been foreseen and
when the public business would be seriously impeded by the time
lapse incident to the normal appointment process."
5
Under the so-called Cliff House exception, see Cliff House
Nursing Home, Inc. v. Rate Setting Commn., 378 Mass. 189, 191
(1979), "an exception to this general rule exists where an
administrative agency appeals a remand order that is final as to
the agency." Kelly v. Civil Serv. Commn., 427 Mass. 75, 76 n.2
(1998). See Chief Justice for Admin. & Mgmt. of the Trial Ct.
v. Massachusetts Commn. Against Discrimination, supra; Wrentham
v. West Wrentham Village, LLC, 451 Mass. 511, 515-516 (2008).
As noted above, the commission has not appealed from the order
of remand, and no claim is made by it that this exception
applies. Contrast Lincoln v. Personnel Administrator of the
Dept. of Personnel Admin., 432 Mass. 208, 210 (2000).
3

The fact that the city has raised the jurisdictional issue
of standing for the first time in the Superior Court and on
appeal further underscores the propriety of adhering to the
general rule. There is "no reason why the [city] would be
unable to obtain effective appellate review of the standing
issue on appeal after [remand]." Elles v. Zoning Bd. of Appeals
of Quincy, 450 Mass. at 674. Sound jurisprudence militates in
favor of allowing the administrative process to run its course.
See Gill v. Board of Registration of Psychologists, 399 Mass.
724, 727 (1987) (dismissing declaratory judgment action where
"[t]he board ha[d] held no hearing on the jurisdictional
question raised by the plaintiff and ha[d] had no opportunity to
render a considered decision under the facts of th[e] case").
Like the doctrine of exhaustion of administrative remedies, the
rule that we hear appeals from final judgments, not
interlocutory orders,

"is a sound principle of law and jurisprudence aimed at
preserving the integrity of both the administrative and
judicial processes. In the absence of such a requirement a
court would be in the position of reviewing administrative
proceedings in a piecemeal fashion, Broderick's Case, 320
Mass. 149, 151 (1946) . . . . More important, however,
allowing the administrative process to run its course
before permitting full appellate review gives the
administrative agency in question a full and fair
opportunity to apply its expertise to the statutory scheme
which, by law, it has the primary responsibility of
enforcing. East Chop Tennis Club v. Massachusetts Comm'n
Against Discrimination, 364 Mass. 444 (1973)."

Assuncao's Case, 372 Mass. 6, 8-9 (1977).

Accordingly, we decline to hear this appeal, which is
premature.

Appeal dismissed.

Robert J. Boyle, Jr., for Boston Fire Department.
F. Robert Houlihan for the plaintiffs.