SPINA, J.
When Joseph F. Frawley, Jr., retired on March 4, 2004, from his position as a sergeant with the Cambridge police department (department), the police commissioner for the city of Cambridge (city) issued him a "retired officer identification card" (ID card) that had no expiration date. On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken. The successor police commissioner (commissioner) denied the application, stating that Frawley "ha[d] not met the standard set by the Department." On November 28, 2012, Frawley filed an amended complaint for declaratory and injunctive relief in the Superior Court. He sought a declaration that the commissioner had breached his duty under 501 Code Mass. Regs. §§ 13.00 (2008) (regulations), which set forth the standards for identification cards for retired law enforcement officers, by refusing to issue Frawley a replacement ID card. The ID card, together with a so-called "Law Enforcement Officers Safety Act Training and Certification Card" (training certification card), allows the holder to carry a concealed firearm in accordance with the provisions of the Law Enforcement Officers Safety Act of 2004 (LEOSA), Pub. L. No. 108-277, 118 Stat. 865 (2004), codified insofar as relevant here at 18 U.S.C. § 926C (2012). See 501 Code Mass. Regs. § 13.04(2)(a). After determining that Frawley had standing to seek declaratory relief, a judge allowed Frawley's motion for summary judgment, declaring that he was entitled to receive a replacement ID card because he had retired "in good standing." Id. at §§ 13.02, 13.03. The commissioner appealed, and we transferred the case to this court on our own motion. We affirm, but for reasons different from those articulated by the judge.
On July 22, 2004, Congress enacted LEOSA, which permits a "qualified retired law enforcement officer" who possesses the requisite State-issued identification to "carry a concealed firearm that has been shipped or transported in interstate or foreign commerce," subject to certain enumerated restrictions. 18 U.S.C. § 926C. Several years later, on January 11, 2008, the Massachusetts Executive Office of
The department is a "law enforcement agency" within the meaning of 501 Code Mass. Regs. § 13.02. The commissioner is its "chief law enforcement officer" under the provisions of § 2.52.010
The department hired Frawley on October 14, 1980. He worked as a full-time patrol officer until April 1, 1990, when he was promoted to the rank of sergeant. Frawley served in that position until March 4, 2004, the effective date of his retirement. His tenure with the department was not entirely without incident.
Commencing on February 6, 2001, Frawley was suspended without pay for five days for insubordination toward a superior officer. Subsequently, on November 19, 2003, Frawley, the city, and the Cambridge Police Superior Officers Association (union) entered into a written memorandum of agreement (agreement) in which they resolved several employment disputes. Among other matters, Frawley agreed to accept a fifteen-day unpaid suspension in partial resolution of disciplinary charges that the city had brought against him in April, 2002. These charges followed a department investigation which concluded that on several occasions when Frawley
At around the time of Frawley's retirement, the Cambridge city council adopted a resolution "expressing its appreciation to Joseph F. Frawley, Jr., for his twenty-nine [sic] years of dedicated service to the citizens and to the City of Cambridge and wish[ing] him much happiness in his retirement." The commissioner's predecessor then issued Frawley an ID card,
On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken. He attested on his application that, among other factors,
In his amended complaint, Frawley sought a declaration that the commissioner had breached his legal duty under 501 Code Mass. Regs. § 13.03 to issue Frawley an ID card based on his status as a "qualified retired law enforcement officer." Frawley claimed that he had been "materially disadvantaged" by the commissioner's denial of his application. In his answer to the amended complaint, the commissioner denied that Frawley had retired from the department in good standing and should be deemed a "qualified retired law enforcement officer" within the meaning of 501 Code Mass. Regs. § 13.02. The commissioner also raised several affirmative defenses, including lack of standing to bring an action for declaratory judgment.
Frawley subsequently filed a motion for summary judgment. The commissioner filed a cross motion for summary judgment, together with an affidavit explaining his rationale for denying Frawley's application for a replacement ID card. The commissioner stated in his affidavit that, at the time of Frawley's retirement, "open charges remained relating to [Frawley's] fail[ure] to tell the truth during a [department] investigation," and Frawley was "under investigation for a claim made by a member of the public that [he] had engaged in a false arrest." The commissioner also pointed out that Frawley had been suspended for insubordination toward a superior officer, and for misconduct arising from his abuse of sick leave. Finally, the commissioner stated that after giving the matter serious consideration, he exercised his discretion as commissioner, based on his knowledge of Frawley's history with the department, and concluded that Frawley would not be issued a replacement ID card.
By decision dated September 22, 2014, the judge allowed Frawley's motion for summary judgment and declared that he was entitled to receive a replacement ID card from the commissioner
The commissioner contends that the judge erred in concluding that Frawley had standing to bring a cause of action for declaratory relief predicated on the commissioner's failure to issue him a replacement ID card in accordance with the mandate of 501 Code Mass. Regs. § 13.03. The commissioner maintains that the regulations do not permit, either expressly or by implication, a private cause of action to compel the chief law enforcement officer for a law enforcement agency to issue an ID card. Further, he continues, the enabling statute on which the regulations are based, G. L. c. 140, § 131 (r), does not suggest any legislative intent to create an enforceable right. We conclude that a complaint for declaratory judgment is not the appropriate means to challenge a chief law enforcement officer's decision to deny the issuance of an ID card. Rather, the proper avenue for relief is a civil action in the nature of certiorari pursuant to G. L. c. 249, § 4.
It is undisputed that the regulations do not provide, in express terms, a private right of action for an aggrieved party to challenge the denial of an ID card. Contrast, e.g., 118 Code Mass. Regs. § 14.03(5) (2005) (individual wanting to challenge decision by executive director of Disabled Persons Protection Commission regarding personal data may seek judicial review pursuant to G. L. c. 214, § 3B); 961 Code Mass. Regs. § 4.03(5) (1993) (aggrieved party may obtain judicial review of denial of permit to conduct raffle or bazaar by filing petition for review in District Court). The inquiry therefore becomes whether a private right of action can be inferred from the regulations. We conclude that it cannot.
In Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 546 (1998), this court held that "a private cause of action cannot be inferred solely from an agency regulation." See Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 38 (2006) (regulations governing asbestos removal did not provide
General Laws c. 140, § 131 (r), and 18 U.S.C. § 926C are the enabling statutes pursuant to which the Secretary of the Executive Office of Public Safety and Security promulgated the regulations governing ID cards for qualified retired law enforcement officers. See 501 Code Mass. Regs. §§ 13.00. Section 131 governs licenses to carry firearms, and subsection (r) authorizes the Secretary to promulgate regulations to carry out the purposes of § 131. Neither § 131, in general, nor subsection (r), in particular, addresses ID cards, either explicitly or implicitly. Section 131 does, however, include a private right of action for a party aggrieved by the denial of a license to carry a firearm. It states that "[a]ny applicant or holder aggrieved by a denial, revocation or suspension of a license [to carry] . . . may . . . file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license." G. L. c. 140, § 131 (f). A license to carry a firearm is substantively different from an ID card. Nothing in § 131 suggests that the Legislature intended to confer a private right of action on a retired law enforcement officer who has been denied an ID card. Similarly, at least one Federal court has held that Congress did not intend, either explicitly or implicitly, to create a private cause of action under 18 U.S.C. § 926C for retired law enforcement officers who have been denied a State-issued photographic identification. See Johnson v. New York State Dep't of Correctional Servs., 709 F.Supp.2d 178, 183-186 (N.D.N.Y. 2010). On the basis of both State and Federal law, we conclude that Frawley cannot assert a private cause of action to compel the commissioner to issue him a replacement ID card.
Apparently recognizing the absence of a private right of action, Frawley proceeded by filing a complaint for declaratory and
In his amended complaint, Frawley states that the parties have a genuine dispute over the commissioner's legal obligation under 501 Code Mass. Regs. § 13.03 to issue Frawley a replacement ID card.
The purpose of a civil action in the nature of certiorari is "to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open." Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014), quoting Swan v. Justices of the Superior Court, 222 Mass. 542, 544 (1916). See G. L. c. 249, § 4. "Certiorari also has been described as `a limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi-judicial tribunal.'" Figgs, supra, quoting School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 575-576 (2007). See Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 790-791 (2000); Gloucester v. Civil Serv. Comm'n, 408 Mass. 292, 297 (1990). "To obtain certiorari review of an administrative decision, the following three elements must be present: (1) a judicial or quasi judicial proceeding, (2) from which there is no other reasonably adequate remedy, and (3) a substantial injury or injustice arising from the proceeding under review." Indeck v. Clients' Sec. Bd., 450 Mass. 379, 385 (2008). See Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 83 (1968). We conclude that the commissioner's decision satisfies the necessary elements for certiorari review.
As to the first element of the Indeck test, when assessing whether a proceeding is quasi judicial, "we have looked to the form of the proceeding . . . and the extent to which that proceeding resembles judicial action." Hoffer v. Board of Registration in Med., 461 Mass. 451, 457 (2012). Here, Frawley completed an application for a replacement ID card in which he attested that he satisfied the necessary criteria to be deemed a "qualified retired law enforcement officer." Then, a "professional standards review" was conducted. Based on the results of that investigation, the commissioner determined that Frawley had not met "the standard set by the Department" and, therefore, was not entitled to receive a replacement ID card. This was not a legislative or regulatory proceeding, characterized by interested persons advocating or disapproving a proposed policy to be implemented by a local licensing board. See id. See also School Comm. of Hudson, 448 Mass. at 576; Pronghorn, Inc. v. Licensing Bd. of Peabody, 13 Mass.App.Ct. 70, 72-73 (1982). Rather, notwithstanding the
With respect to the second element of the Indeck test, absent a civil action in the nature of certiorari, there is no other remedy available to Frawley, as we have discussed, supra. Finally, the commissioner's denial of a replacement ID card constitutes a substantial injury or injustice. See Indeck, 450 Mass. at 385. "The injury requirement has been interpreted as requiring (1) a justiciable injury, (2) that is particular to the plaintiff[] rather than common to the public or a segment thereof, and (3) that is more than `hypothetical.'" Hoffer, 461 Mass. at 457 n.8, quoting Fiske v. Selectmen of Hopkinton, 354 Mass. 269, 271 (1968). The ID card, together with a training certification card, would allow Frawley to carry a concealed firearm across State lines in accordance with the provisions of LEOSA. See 501 Code Mass. Regs. § 13.04(2)(a). See also 18 U.S.C. § 926C. By denying Frawley a replacement ID card, the commissioner has rendered him ineligible to exercise this Federal right. Such injury is sufficient to satisfy the third element of the Indeck test.
Our conclusion that a civil action in the nature of certiorari is the appropriate avenue of relief for Frawley is consistent with the relief that is afforded to an individual who is denied a license to carry firearms under G. L. c. 140, § 131. Judicial review of a firearms licensing decision is available first by way of "a petition to obtain judicial review in the district court," G. L. c. 140, § 131 (f), and then "by way of an action in the nature of certiorari pursuant to G. L. c. 249, § 4." Firearms Records Bur. v. Simkin, 466 Mass. 168, 179-180 (2013). See Chardin v. Police Comm'r of Boston, 465 Mass. 314, 317, cert. denied sub nom. Chardin v. Davis, 134 S.Ct. 525 (2013). "On certiorari review, the Superior Court's role is to examine the record of the District Court and to `correct substantial errors of law apparent on the record adversely affecting material rights.'" Simkin, supra at 180, quoting Cambridge Hous.
Having ascertained the proper form of judicial review of the commissioner's decision, we now consider the separate matter of the standard of review to be applied to such decision. See Diatchenko, 471 Mass. at 31. "It is well established that `the standard of review [under G. L. c. 249, § 4,] may vary according to the nature of the action for which review is sought.'" Figgs, 469 Mass. at 361, quoting Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012). We have yet to decide the appropriate standard of review of a police commissioner's decision to deny the issuance of an ID card to a retired law enforcement officer. Although the commissioner "shall issue" an ID card where an applicant has satisfied the enumerated criteria for being deemed a "qualified retired law enforcement officer," 501 Code Mass. Regs. § 13.03, whether in fact an applicant has satisfied such criteria is a discretionary decision. We recognize that the majority of the criteria are objective. See note 2, supra. Significantly, however, the commissioner must determine whether the applicant retired "in good standing." 501 Code Mass. Regs. § 13.02. Because the commissioner may use his judgment in making this determination, his decision will be construed as an exercise of administrative discretion. A reviewing court will examine whether the commissioner's decision was arbitrary and capricious such that it constituted an abuse of his discretion. See Diatchenko, supra (abuse of discretion standard appropriate to review decision whether to grant parole to particular juvenile homicide offender); Garrity, supra; Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217 (1989).
Employing an abuse of discretion standard for reviewing the denial of an ID card is consistent with the standard of review
When reviewing the commissioner's decision in this case, the inquiry is twofold. First, it must be determined whether the commissioner erred in reopening Frawley's case, given that the prior police commissioner had issued Frawley an ID card. Second, it must be determined whether the commissioner abused his discretion in deciding that Frawley had not met "the standard set by the Department" and, therefore, was not entitled to a replacement ID card. See 501 Code Mass. Regs. § 13.03. A decision is arbitrary or capricious such that it constitutes an abuse of discretion where it "lacks any rational explanation that reasonable persons might support." Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 6 (2002), quoting Fire Chief of E. Bridgewater v. Plymouth County Retirement Bd., 47 Mass.App.Ct. 66, 69 (1999). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of discretion occurs when there has been clear error of judgment in weighing relevant factors such that decision falls outside range of reasonable alternatives). "It is not the place of a reviewing court to substitute its own opinion" for that of the commissioner. Doe, supra.
Judicial review of the commissioner's decision proceeds under the same standard whether conducted by this court or remanded to the Superior Court for reconsideration. The decision by a reviewing court is a ruling of law that does not require findings of fact, determinations of credibility, or the application of administrative expertise. See Doe, 437 Mass. at 5-6 & n.6; Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass.App.Ct. 670, 673-674 (2003). Instead, the reviewing court simply must determine whether the commissioner, on the basis of the evidence before him, abused his discretion in a manner that adversely affected Frawley's material rights. See Simkin, 466 Mass. at 179-180; Gloucester, 408 Mass. at 297. We stand in the
We begin by considering whether the commissioner erred in reopening Frawley's case. Once Frawley submitted an application to obtain a replacement ID card, the commissioner was required to issue the card, provided that Frawley was a "qualified retired law enforcement officer," which meant that, among other things, he had retired "in good standing." 501 Code Mass. Regs. §§ 13.02, 13.03. The commissioner argues on appeal that it was not a "historical fact" that Frawley had satisfied this criterion. Therefore, the commissioner continues, he was compelled to reopen Frawley's case to ascertain whether, in fact, Frawley had retired in good standing. We agree.
The commissioner's predecessor issued Frawley an ID card at around the time of Frawley's retirement on March 4, 2004. The regulations setting forth the standards for the issuance of an ID card were not promulgated until January 11, 2008. 501 Code
The commissioner is vested with the authority to "organize and administer the Department." Ordinances § 2.52.030(A). This authority encompasses the issuance of an ID card to a "qualified retired law enforcement officer." To the extent that there was any question as to Frawley's classification as such, it was well within the commissioner's discretion to reexamine Frawley's status. Cf. Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 395 (2013), and cases cited ("An administrative agency, in the absence of statutory limitations, generally has the inherent authority to reconsider a decision or reopen a proceeding to prevent or mitigate a miscarriage of justice"). We conclude that the commissioner did not err in reopening Frawley's case.
We now consider whether the commissioner abused his discretion in deciding that Frawley had not met "the standard set by the Department" and, therefore, was not entitled to a replacement ID card. As we have mentioned, when the Executive Office of Public Safety and Security promulgated the regulations, it did not define what it meant to retire "in good standing." 501 Code Mass. Regs. § 13.02. Consequently, the commissioner described the meaning of this phrase when he issued Policy 151, in accordance with his authority under Ordinances § 2.52.010. Policy 151 § IV(F)(1)(a). Given that Policy 151 was issued four months before Frawley applied for a replacement ID card, the commissioner could use the definition therein to assess whether Frawley should be deemed a "qualified retired law enforcement officer." There is no evidence that the Executive Office of Public Safety and Security intended to deny the city, or the commissioner acting in conformity with the Ordinances, the right to enact policies and procedures that would be consistent with the regulations. A municipality
In his affidavit, the commissioner cited several reasons why Frawley did not meet "the standard set by the Department." First, the commissioner stated that Frawley, at the time of his retirement, was "under investigation for a claim made by a member of the public that [he] had engaged in a false arrest." Pursuant to Policy 151, a police officer has not retired "in good standing" where, at the time of retirement, the officer was "under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty." Policy 151 § IV(F)(1)(a). We acknowledge that the citizen complaint would appear to disqualify Frawley from receipt of a replacement ID card. However, at the time the commissioner evaluated Frawley's application in 2012, he would have known that the department had cleared Frawley of any purported wrongdoing with respect to the citizen complaint. The commissioner could not ignore this information where it plainly removed an impediment to Frawley being deemed an officer who retired "in good standing."
Second, the commissioner stated that, at the time of Frawley's retirement, "open charges remained relating to [Frawley's] fail[ure] to tell the truth during a [department] investigation." Pursuant to the November 19, 2003, agreement, however, the city agreed to take no action on such charges unless Frawley was suspended for five or more days in the future, at which point the city could revive the charges. During the remainder of Frawley's tenure with the department, the city did not revive the charges,
Finally, the commissioner pointed out that Frawley had been suspended for insubordination toward a superior officer, and for misconduct arising from his abuse of sick leave. Neither of these incidents was pending "at the time of retirement." Policy 151 § IV(F)(1)(a). As a consequence, they could not serve as a basis for the commissioner's determination that Frawley had not retired "in good standing."
The commissioner abused his discretion in deciding that Frawley had not met "the standard set by the Department." Accordingly, Frawley is entitled to receive a replacement ID card. We vacate the declaratory judgment and remand the case to the Superior Court for entry of a judgment directing the commissioner to issue a replacement ID card to Frawley.
So ordered.