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
22-P-221
SACHCHIDANAND JHA & another1
vs.
DEPARTMENT OF EARLY EDUCATION AND CARE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Sachchidanand and Ranjana Jha, operated
child care programs on the first and second floors of their two-
family home in Belmont until the defendant, the Department of
Early Education and Care (department), declined to renew their
licenses in 2019.2 The Jhas thereafter made several unsuccessful
attempts, before both the Division of Administrative Law Appeals
(DALA) and the Superior Court, see note 3, infra, to challenge
the department's decisions. The Jhas filed the present matter,
1 Ranjana Jha. 2 As alleged, Sachchidanand and Ranjana each operated separate programs, located on the residence's second and first floors, respectively. Although their allegations are not entirely clear, it appears as if Sachchidanand Jha's license was not renewed in 2018, and Ranjana Jha's license was not renewed in 2019. For purposes of this appeal, distinctions between their programs, if any, are not material and unless otherwise indicated we refer to the plaintiffs, collectively, as the "Jhas" or "plaintiffs." their third successive Superior Court action, in May 2021 under
G. L. c. 258, the Massachusetts Tort Claims Act. The department
moved to dismiss the Jhas' complaint pursuant to Mass. R. Civ.
P. 12, 365 Mass. 754 (1974). Following a hearing, a Superior
Court judge allowed the motion, dismissed the Jhas' complaint,
and denied leave to amend, ruling that the department had
immunity from liability under G. L. c. 258, §§ 10 (b)
(discretionary function), and 10 (e) (licensing). The Jhas now
appeal therefrom. We affirm.
The department regulates the programs and services provided
by the Jhas and is tasked with monitoring and evaluating them
"on an ongoing basis." G. L. c. 15D, § 2 (h). To accomplish
this the department may -- and in the case of such "large family
day care homes" as are at issue here, must -- conduct both
announced and unannounced site visits and inspections. G. L.
c. 15D, § 9 (a), (b). Subject to the right of "[a]ny party
aggrieved by a final decision of the department" to seek
judicial review under G. L. c. 30A, the department has broad
statutory authority and discretion to "impose any . . .
sanctions it considers appropriate" on such providers as it
finds to be noncompliant; the department may also "suspend,
revoke, . . . [or] refuse to . . . renew the license of any
person" operating a program found to be noncompliant. G. L.
c. 15D, § 10.
2 In 2019 the department inspected the Jhas' programs, found
multiple regulatory violations, and imposed certain sanctions.
After additional site visits uncovered more violations, the
department issued new orders, including an order of suspension
and notice that the department would not renew the program's
license. As noted, Ranjana Jha thereafter unsuccessfully
challenged the department's decisions, both administratively and
through civil litigation, on several occasions.3
In the present matter, the Jhas allege, inter alia, that
between 2017 and 2019, employees of the department, while
inspecting the Jhas' programs and otherwise carrying out their
duties, were "disrespectful," "humiliated them in the presence
of the children" and others, and "spied" on them. The Jhas
further allege that (i) departmental employees were in numerous
instances untruthful in their observations, reports, other
communications, and testimonies, and (ii) the department
improperly sanctioned the Jhas, failed to clarify the Jhas'
3 Those earlier challenges resulted in the following decisions and judgments: (i) a January 2020 DALA decision in the department's favor; (ii) a Superior Court judgment, entered on July 14, 2020, dismissing Ranjana Jha's 2019 action as moot; and (iii) a Superior Court judgment, entered on June 24, 2021, dismissing Ranjana Jha's subsequent G. L. c. 30A action filed in 2020. A panel of this court later affirmed the Superior Court judgment dismissing Ranjana Jha's c. 30A action. See Jha v. Department of Early Educ. & Care, 101 Mass. App. Ct. 1110 (2022).
3 obligations, failed to carry out its duties, and improperly
declined to renew their licenses.
Preliminarily, and without considering whether the Jhas'
present claims are barred by the prior judgments, we disagree
that the motion judge misunderstood the Jhas' allegations,
exhibited "a poor understanding of the" issues presented, or
otherwise mischaracterized the Jhas' complaint. On our
independent record review, we are satisfied that the judge
demonstrated a thorough understanding of the Jhas' present
allegations as well as a full appreciation of this matter's
lengthy history. Indeed, the judge's thoughtful, careful
decisional memorandum counters such claims.
More substantively, the judge did not erroneously apply
G. L. c. 258, § 10 (e), which provides an exception to the
Commonwealth's sovereign immunity waiver for "any claim based
upon," among other things, the "failure or refusal to issue,
deny, suspend or revoke any . . . license." While the Jhas
attempt to characterize at least some of the department's
alleged acts as independent torts unrelated to licensing,
§ 10 (e) "encompasses not only claims resulting directly from a
licensing decision, but also claims 'rooted in' the licensing
process" (footnote omitted). Andrade v. Somerville, 92 Mass.
App. Ct. 425, 429 (2017), quoting Smith v. Registrar of Motor
Vehicles, 66 Mass. App. Ct. 31, 33 (2006). "If the gravamen of
4 a plaintiff's complaint can be traced back to any one or more of
the types of events or activities delineated in § 10 (e), then
the action is barred." Smith, supra.
In this case, the gravamen of the Jhas' complaint is that
the department, in carrying out its statutory oversight and
licensing duties, improperly found regulatory and other
violations; issued sanctions and other orders; suspended and
then declined to renew the Jhas' licenses; and defended its
findings and decisions before administrative and judicial
tribunals, all to the Jhas' and their business's injury. As
such, the Jhas' claims are rooted in the "issuance, denial,
suspension or revocation [of] or failure . . . to issue" any
license or similar authorization. G. L. c. 258, § 10 (e). See
Andrade, 92 Mass. App. Ct. at 429 (where agency allegedly
Free access — add to your briefcase to read the full text and ask questions with AI
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
22-P-221
SACHCHIDANAND JHA & another1
vs.
DEPARTMENT OF EARLY EDUCATION AND CARE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Sachchidanand and Ranjana Jha, operated
child care programs on the first and second floors of their two-
family home in Belmont until the defendant, the Department of
Early Education and Care (department), declined to renew their
licenses in 2019.2 The Jhas thereafter made several unsuccessful
attempts, before both the Division of Administrative Law Appeals
(DALA) and the Superior Court, see note 3, infra, to challenge
the department's decisions. The Jhas filed the present matter,
1 Ranjana Jha. 2 As alleged, Sachchidanand and Ranjana each operated separate programs, located on the residence's second and first floors, respectively. Although their allegations are not entirely clear, it appears as if Sachchidanand Jha's license was not renewed in 2018, and Ranjana Jha's license was not renewed in 2019. For purposes of this appeal, distinctions between their programs, if any, are not material and unless otherwise indicated we refer to the plaintiffs, collectively, as the "Jhas" or "plaintiffs." their third successive Superior Court action, in May 2021 under
G. L. c. 258, the Massachusetts Tort Claims Act. The department
moved to dismiss the Jhas' complaint pursuant to Mass. R. Civ.
P. 12, 365 Mass. 754 (1974). Following a hearing, a Superior
Court judge allowed the motion, dismissed the Jhas' complaint,
and denied leave to amend, ruling that the department had
immunity from liability under G. L. c. 258, §§ 10 (b)
(discretionary function), and 10 (e) (licensing). The Jhas now
appeal therefrom. We affirm.
The department regulates the programs and services provided
by the Jhas and is tasked with monitoring and evaluating them
"on an ongoing basis." G. L. c. 15D, § 2 (h). To accomplish
this the department may -- and in the case of such "large family
day care homes" as are at issue here, must -- conduct both
announced and unannounced site visits and inspections. G. L.
c. 15D, § 9 (a), (b). Subject to the right of "[a]ny party
aggrieved by a final decision of the department" to seek
judicial review under G. L. c. 30A, the department has broad
statutory authority and discretion to "impose any . . .
sanctions it considers appropriate" on such providers as it
finds to be noncompliant; the department may also "suspend,
revoke, . . . [or] refuse to . . . renew the license of any
person" operating a program found to be noncompliant. G. L.
c. 15D, § 10.
2 In 2019 the department inspected the Jhas' programs, found
multiple regulatory violations, and imposed certain sanctions.
After additional site visits uncovered more violations, the
department issued new orders, including an order of suspension
and notice that the department would not renew the program's
license. As noted, Ranjana Jha thereafter unsuccessfully
challenged the department's decisions, both administratively and
through civil litigation, on several occasions.3
In the present matter, the Jhas allege, inter alia, that
between 2017 and 2019, employees of the department, while
inspecting the Jhas' programs and otherwise carrying out their
duties, were "disrespectful," "humiliated them in the presence
of the children" and others, and "spied" on them. The Jhas
further allege that (i) departmental employees were in numerous
instances untruthful in their observations, reports, other
communications, and testimonies, and (ii) the department
improperly sanctioned the Jhas, failed to clarify the Jhas'
3 Those earlier challenges resulted in the following decisions and judgments: (i) a January 2020 DALA decision in the department's favor; (ii) a Superior Court judgment, entered on July 14, 2020, dismissing Ranjana Jha's 2019 action as moot; and (iii) a Superior Court judgment, entered on June 24, 2021, dismissing Ranjana Jha's subsequent G. L. c. 30A action filed in 2020. A panel of this court later affirmed the Superior Court judgment dismissing Ranjana Jha's c. 30A action. See Jha v. Department of Early Educ. & Care, 101 Mass. App. Ct. 1110 (2022).
3 obligations, failed to carry out its duties, and improperly
declined to renew their licenses.
Preliminarily, and without considering whether the Jhas'
present claims are barred by the prior judgments, we disagree
that the motion judge misunderstood the Jhas' allegations,
exhibited "a poor understanding of the" issues presented, or
otherwise mischaracterized the Jhas' complaint. On our
independent record review, we are satisfied that the judge
demonstrated a thorough understanding of the Jhas' present
allegations as well as a full appreciation of this matter's
lengthy history. Indeed, the judge's thoughtful, careful
decisional memorandum counters such claims.
More substantively, the judge did not erroneously apply
G. L. c. 258, § 10 (e), which provides an exception to the
Commonwealth's sovereign immunity waiver for "any claim based
upon," among other things, the "failure or refusal to issue,
deny, suspend or revoke any . . . license." While the Jhas
attempt to characterize at least some of the department's
alleged acts as independent torts unrelated to licensing,
§ 10 (e) "encompasses not only claims resulting directly from a
licensing decision, but also claims 'rooted in' the licensing
process" (footnote omitted). Andrade v. Somerville, 92 Mass.
App. Ct. 425, 429 (2017), quoting Smith v. Registrar of Motor
Vehicles, 66 Mass. App. Ct. 31, 33 (2006). "If the gravamen of
4 a plaintiff's complaint can be traced back to any one or more of
the types of events or activities delineated in § 10 (e), then
the action is barred." Smith, supra.
In this case, the gravamen of the Jhas' complaint is that
the department, in carrying out its statutory oversight and
licensing duties, improperly found regulatory and other
violations; issued sanctions and other orders; suspended and
then declined to renew the Jhas' licenses; and defended its
findings and decisions before administrative and judicial
tribunals, all to the Jhas' and their business's injury. As
such, the Jhas' claims are rooted in the "issuance, denial,
suspension or revocation [of] or failure . . . to issue" any
license or similar authorization. G. L. c. 258, § 10 (e). See
Andrade, 92 Mass. App. Ct. at 429 (where agency allegedly
returned firearm to individual whose license had been revoked,
failed to retrieve that firearm, and perpetrator thereafter used
firearm to shoot victim, agency immune from liability, court
concluded that "while the [victim's] injuries were not caused
directly by the issuance or revocation of a firearms license,
they are based upon the department's decision to revoke [the
perpetrator's] license" [quotation omitted]). Indeed, the Jhas
acknowledge as much in their briefing, asserting that their
claims "arise[] from the [department's] actions . . . during
5 2015-2019 [culminating] in delicensing of" the Jhas "to provide
childcare at their home." There was no error.
Nor do we perceive any error with respect to the judge's
alternative holding under the so-called discretionary function
exception. See G. L. c. 258, § 10 (b). As the judge noted, the
Jhas' allegations all arise out of the performance of
discretionary functions and duties entrusted by statute to the
department and its employees. In particular, in carrying out
the department's statutory duties in this case, its employees
were called upon to exercise professional judgment, weigh
competing evidence, make credibility assessments, and interpret
legal principles as those principles apply to the department's
actions. Accordingly, the department's actions as here alleged
fall squarely within § 10 (b)'s ambit. See Sena v.
Commonwealth, 417 Mass. 250, 257 (1994) ("the conduct of law
enforcement officials in investigating potentially criminal
conduct and in seeking warrants for the arrest of those whom
they investigate, are discretionary functions and therefore fall
within the exception in § 10 [b]"). This is particularly so in
this case where the Jhas had available to them, and in fact
pursued, administrative and other alternative remedies. See
Pina v. Commonwealth, 400 Mass. 408, 414 (1987) (agency immune
from liability for erroneous determination by agency employees
that plaintiff no longer disabled where, among other things,
6 "there is obviously an alternate remedy available to the injured
individual other than an action for damages" [quotation and
citation omitted]).
We are unpersuaded that, because the department's decisions
"arose from the actions of employees in a regional office," they
were nondiscretionary. See Harry Stoller & Co. v. Lowell, 412
Mass. 139, 143 (1992) ("Even decisions made at the operational
level, as opposed to those made at the policy or planning level,
would involve conduct immunized by the discretionary function
exception if the conduct were the result of policy
determinations"). We likewise are unpersuaded that the
discretionary function exception could not properly be applied
at the pleading stage. See Greenwood v. Easton, 444 Mass. 467,
468 n.3 (2005) ("It is important to determine immunity issues
early to protect . . . government agencies from unwarranted
disruption and harassing litigation"). In this regard we note
that the Jhas have not identified, either here or below, any
anticipated discovery that could plausibly have supported a
triable claim falling outside the scope of § 10 (b).
Finally, for the reasons discussed above and to the extent
the Jhas so argue, we are unable to conclude that the judge
abused his discretion by denying the Jhas' motion for leave to
amend. See Tocci v. Tocci, 490 Mass. 1, 24 (2022) (leave to
amend properly denied where "the amendment would be futile").
7 See also G. L. c. 258, § 2 ("no . . . public employee . . .
shall be liable for any injury or loss of property . . . caused
by [their] negligent or wrongful act or omission while acting
within the scope of [their] office or employment"). In light of
the foregoing we need not address the Jhas' remaining arguments,
to the extent made. Nor need we address the alternative grounds
pressed upon us by the department.
Judgment affirmed.
By the Court (Milkey, Neyman & Smyth, JJ.4),
Clerk
Entered: February 8, 2023.
4 The panelists are listed in order of seniority.