ROGER J. BOUCHARD ET AL.
STATE EMPLOYEES RETIREMENT COMMISSION
September 13, 2017
Michael J. Walsh, for the appellants-appellees (plaintiffs).
Michael J. Rose, with whom was Cindy M. Cieslak, for the
Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson and
Espinosa, Js. [*]
Longley v. State Employees Retirement
Commission, 284 Conn. 149, 177-78, 931 A.2d 890 (2007),
this court held that the defendant, the State Employees
Retirement Commission, had improperly interpreted statutes
governing retirement benefits by failing to directly add a
retiree's final, prorated longevity payment to the salary
earned in the retiree's final year of state employment
for the purposes of calculating the retiree's base
salary. Although the commission contended in Longley
that it had calculated retirement benefits in accordance with
its interpretation since the 1960s; id., 166; this
court afforded relief to the two plaintiffs in that case
without expressing a view on whether the decision applied
retroactively. Id., 178. The commission subsequently
ordered the recalculation and award of increased retirement
benefits, in accordance with Longley, of any person
who had retired, or whose benefits were not finalized, on or
after October 2, 2001, the six year period preceding the date
of the Longley decision. The present case raises the
question of whether all state employees, irrespective of when
they retired, are entitled to have their benefits
recalculated in accordance with Longley.
question comes to us by way of an unusual procedural
posture-a two count complaint bringing (1) an administrative
appeal from the commission's decision denying a petition
for a declaratory ruling filed by the plaintiffs, retirees
Roger J. Bouchard, James J. Malone and James E. Fox, and (2)
a declaratory judgment action on behalf of a class,
represented by the plaintiffs, of all state employees who
retired and began collecting pensions before October 2, 2001.
The trial court granted relief to the plaintiffs in the
administrative appeal, but denied relief to the class on the
ground that the declaratory judgment count was time barred.
The plaintiffs appealed from the trial court's judgment
insofar as it denied relief for the class. The commission
cross appealed from the judgment insofar as it granted relief
to the plaintiffs, and raised numerous alternative procedural
and substantive grounds for affirming the judgment denying
relief to the class. We conclude that the plaintiffs'
claims for recalculation of benefits were time barred, and
for the reasons supporting that conclusion neither they nor
the class is entitled to relief. Accordingly, we affirm in
part and reverse in part the trial court's judgment.
record reveals the following undisputed facts and procedural
history. The three plaintiffs retired after decades of state
service-in 1990, 1997, and 2000, respectively. The commission
audited and finalized their retirement benefits in April,
1994, May, 1998, and April, 2001, respectively.
October 2, 2007, this court issued its decision in
Longley. At a meeting held a few weeks after that
date, the commission discussed the effect of that decision.
It voted that, with the exception of the two Longley
plaintiffs, calculations including the prorated longevity
payments would be made only on a prospective basis for
persons retiring on or after the date of that decision.
December, 2007, Bouchard sent a letter to the commission
requesting recalculation of his benefits in accordance with
Longley. The commission denied the request, citing
its October, 2007 decision. Bouchard delayed further action
while a federal class action was pending in which state
retirees challenged the application of Longley on a
prospective only basis and the commission's multitiered
interim, our Superior Court issued a decision rejecting the
commission's position that Longley applied
prospectively only. See Malerba v. State
Employees Retirement Commission, Superior Court,
judicial district of New Britain, Docket No.
HHB-CV-06-4011383 (July 15, 2008) (45 Conn. L. Rptr. 853).
The court in Malerba also rejected the
commission's argument that the claims in the consolidated
administrative appeals before the court were time barred,
noting that this defense had not been raised in the
administrative proceedings. Id., 854. The court
specifically limited its holding to administrative appeals
pending before the court when Longley was decided,
expressing no opinion as to its retroactive application to
other cases. Id., 855 n.5.
in April, 2009, the commission adopted a second resolution in
order to ‘‘fully conform with'' the
October 2, 2007 Longley decision. It directed the
retirement services division of the Office of the State
Comptroller to calculate and award increased retirement
benefits in accordance with Longley to any person
who had retired on or after October 2, 2001, or who had
retired before that date but whose retirement was not
finalized as of that date.
August, 2009, after the federal class action was dismissed;
see Belanger v. Blum, 628 F.Supp.2d 260,
267 (D. Conn. 2009); the plaintiffs followed a series of
administrative steps before the commission in an unsuccessful
effort to challenge its limited retroactive application of
Longley that excluded them and other retirees
similarly situated. They filed a petition for a declaratory
ruling, which the commission treated as a
‘‘claim'' for benefits; see General
Statutes § 5-155a (j); an appeal from the final decision
denying that claim; see General Statutes § 5-155a (k); a
request for reconsideration of the denial of the appeal; see
General Statutes § 5-155a (k); and a second petition for
a declaratory ruling as to each plaintiff, which was treated
as a separate petition for each plaintiff by the commission.
See General Statutes § 4-176.
commission issued a final decision denying the
plaintiffs' petitions, citing four broad conclusions as
support. First, it concluded that its decision to adopt a six
year limitation on recalculation was reasonable, and thus was
not arbitrary or capricious. It explained that, like the
approach taken for claims under federal pension law, which
also contains no statute of limitations, it had looked to the
most suitable time limit to apply in light of the nature of
the action and the rights at issue. It found the six year
limitation for actions sounding in contract to be the most
suitable. See General Statutes § 52-576.
relying on the six year limitation period to establish the
scope of ‘‘pending'' cases, the
commission concluded that its decision to limit retroactive
relief to pending cases was not arbitrary or capricious. It
reasoned that Longley was a new interpretation of
the law and that, in the absence of impermissible
discrimination, it was reasonable to limit retroactive relief
to pending cases.
it concluded that its decision to limit retroactive relief to
pending cases also was proper in light of the significant
adverse financial effect that unlimited retroactive
application would have on the state retirement plan. The
commission noted that it had construed and applied the
retirement statutes; see General Statutes §§ 5-154
and 5-162; so as not to include the final, prorated longevity
payment since 1967. The commission estimated that unlimited
retroactive application of Longley would cost the
retirement fund between approximately $48 million and $157
million, if statutory interest of 5 percent was applied.
the commission concluded that the plaintiffs could not avoid
the six year time bar in § 52-576 under theories of
either a continuing violation of §§ 5-154 and 5-162
or a deliberate concealment of that violation. The commission
deemed the continuing violation theory inapplicable as a
matter of law because the retirement plan was neutral (i.e.,
nondiscriminatory) in operation. It rejected the allegation
of wrongful concealment as unsupported by any proof and
contradicted by the Appellate Court's view in
Longley that the construction of § 5-162 raised
a question on which there was little precedent to provide
guidance. See Longley v. State Employees
Retirement Commission, 92 Conn.App. 712, 717, 887 A.2d
904 (2005), rev'd in part, 284 Conn. 149, 931 A.2d 890
the commission made clear that its ruling applied only to the
three plaintiffs. It noted that the petitions had sought the
recalculation of not only the plaintiffs' benefits but
also the pensions of ‘‘all retirees.''
The commission asserted that, to the extent that the
plaintiffs were attempting to bootstrap a class action onto
their petitions for a declaratory ruling, the Uniform
Procedure Act, General Statutes § 4-166 et seq., does
not permit class certification in an administrative
the commission's decision, the plaintiffs filed a two
count ‘‘Administrative Appeal and Class Action
Complaint'' in the Superior Court. Count one,
captioned ‘‘Administrative Appeal, ''
alleged that the plaintiffs had been deprived of benefits
owed to them by virtue of the commission's arbitrary and
capricious application of its 2009 resolution imposing the
six year time limitation. Count two, captioned
‘‘Declaratory Judgment for Class, ''
incorporated the allegations in count one and alleged that,
in addition to bringing their individual administrative
appeal, the plaintiffs brought this action as a class action
under Practice Book § 9-8. The plaintiffs subsequently
filed a motion seeking to certify a mandatory class in the
declaratory action (i.e., certification covering all members
of the class without a procedure for members to
‘‘opt in'' or ‘‘opt
out'' of the class).
commission filed a motion to dismiss and/or strike the second
count of the complaint, as well as an objection to class
certification. The court, Hon Howard T Owens, Jr, judge trial
referee, concurrently issued decisions granting the
plaintiffs' motion for class certification, but not as a
mandatory class, and denying the commission's motion to
dismiss or strike count two.
and disclosure of expert witnesses ensued, largely directed
at the question of the actual financial impact of a decision
requiring retroactive relief for the entire class.
Thereafter, the plaintiffs moved for judgment on the merits
as to count one, the administrative appeal, and for summary
judgment as to count two, the declaratory judgment action.
The defendant filed a brief in opposition to the motion for
judgment on count one, and filed a cross motion for summary
judgment on count two.
court sustained the plaintiffs' administrative appeal.
The court determined that the commission's decision to
award increased benefits for only those persons who had
retired on or after October 2, 2001, based on application of
an analogous six year statute of limitations for contract
claims, was arbitrary and capricious. It reasoned that the
six year contract statute of limitations applied by the
commission, if properly applied, would have commenced when
the right of action accrued, such right accruing when
Longley was decided in 2007, not six years prior to
that date. Having rejected the time limitation set
forth in the commission's resolution, the court pointed
to the absence of a statute or regulation in effect when
Longley was decided that prescribed a time limit for
filing a petition for a declaratory ruling with the
commission. It declined to consider the commission's
alternative arguments that the statute of limitations for
tort actions; see General Statutes § 52-577; or the time
limitation under a regulation the commission recently
adopted would apply, concluding that the
commission had to defend its decision on the grounds on which
it was based. Nonetheless, the court concluded that, insofar
as the commission relied on case law permitting the borrowing
of an analogous statute of limitations to fill such a gap,
that precedent did not apply to an administrative proceeding
and should not apply, given the commission's authority to
promulgate a regulation prescribing time limits.
absence of any governing time limitation, the court
determined that (1) the plaintiffs' benefit awards were
‘‘pending'' and not a final judgment when
Longley was decided, (2) Longley
presumptively applied retroactively to those pending awards;
see Marone v. Waterbury, 244 Conn. 1,
10-11, 707 A.2d 725 (1998) (judgment not limited to
prospective application presumed to apply retroactively to
pending cases); and (3) the commission had not satisfied one
of the criteria necessary to overcome that presumption,
namely, that ‘‘[given its prior history, purpose
and effect] retrospective application of the rule would
retard its operation . . . .'' See Chevron Oil
Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct.
349, 30 L.Ed.2d 296 (1971) (prescribing three part test);
accord State v. Harrell, 199 Conn. 255,
267-68, 506 A.2d 1041 (1986) (applying Chevron Oil
test). But see Neyland v. Board of
Education, 195 Conn. 174, 182, 487 A.2d 181 (1985) (test
inapplicable to jurisdictional determination). Accordingly,
the trial court ordered the commission to apply
Longley to the plaintiffs' retirement income
calculation from the date of their retirement, as well as to
pay postjudgment interest.
court, however, rendered summary judgment in favor of the
commission on the declaratory judgment count, concluding that
the class' claim was time barred. In reaching this
conclusion, the court acknowledged that it had applied a
different analytical approach than in its resolution of the
administrative appeal, which it justified on the basis of the
different procedural postures of the two counts.
Specifically, the court noted that case law dictates that the
timeliness of a declaratory judgment action is assessed by
the time limitation applicable to the underlying right being
enforced in such an action. Although the statutes governing
the calculation of retirement benefits contained no time
limitation, the court cited case law from this court
sanctioning the borrowing of an analogous statute of
limitations. The court reasoned that a claim for pension
benefits is more akin to a claim asserting a breach of a
statutory duty, to which the tort statute of limitations
applied, than to a breach of contract claim. As such, the
court held that the class' claim was untimely because the
three year tort statute of limitations would commence when
the class members first sustained injury, i.e., when they
received their finalized pension calculation, not when they
discovered the wrongful act. Because the ...