Walenski v. Connecticut State Employees Retirement Commission , 185 Conn. App. 457 ( 2018 )

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CAROL WALENSKI v. CONNECTICUT STATE
EMPLOYEES RETIREMENT
COMMISSION ET AL.
(AC 40603)
Lavine, Moll and Bishop, Js.
Syllabus
The plaintiff appealed to the trial court from the decision of the defendant
Connecticut State Employees Retirement Commission denying her claim
for certain spousal retirement benefits pursuant to the State Employees
Retirement Act (§ 5-152 et seq.). The plaintiff’s husband, W, a former
state employee, had elected a retirement benefit option that reduced
his retirement benefits during his lifetime and provided spousal benefits
to his surviving spouse after his death. At the time of his retirement, W
was married to his first wife. Following his divorce from his first wife
but before he had married the plaintiff, W attempted to change the
beneficiary of his surviving spouse benefits, but he was informed that
he could not do so. Thereafter, W and the plaintiff were married and
remained so until W’s death, after which the plaintiff contacted the
retirement services division of the Office of the State Comptroller to
discuss her claim that she was entitled to receive spousal retirement
benefits. The assistant director of the division sent the plaintiff a letter
that advised her that the letter was an administrative denial of her
request for spousal benefits and informed her of her right to make a
written claim to the commission requesting review of the administrative
denial. In response, the plaintiff made a written request for review and
for a full hearing before the commission but did not receive a response.
The plaintiff then appealed to the trial court, and the commission filed
a motion to dismiss on the ground that the court lacked subject matter
jurisdiction because the plaintiff failed to exhaust her administrative
remedies. During the hearing on the motion to dismiss, the commission
expressed a willingness to reach a final decision in the case by waiving
the fifth step of its administrative process but asked that the plaintiff
complete the fourth step by requesting reconsideration of the denial of
her claim for benefits. Relying on the commission’s representation, the
trial court ordered that the case be remanded to the commission for a
hearing and a final decision on the plaintiff’s claim, and it retained
jurisdiction over the matter. Thereafter, the commission held an informal
hearing, denied the plaintiff’s request for reconsideration and indicated
in a letter to the plaintiff that the act did not allow for a change in
election or beneficiary after benefits had been provided to a member.
Following the reinstatement of the plaintiff’s appeal, the court, sua
sponte, questioned its subject matter jurisdiction over the matter and
ordered supplemental briefing. Thereafter, the court rendered judgment
dismissing the appeal, concluding that it lacked subject matter jurisdic-
tion because the plaintiff had not appealed from a final decision and
had failed to exhaust her administrative remedies. On the plaintiff’s
appeal to this court, held:
1. The plaintiff could not prevail on her claim that the trial court had subject
matter jurisdiction over her appeal because the commission agreed that
the court had jurisdiction and because the court’s order remanding the
case to the commission and its decision to exercise jurisdiction over
the appeal at that time constituted the law of the case; it is well settled
that parties cannot, by waiver or agreement, confer subject matter juris-
diction on the court, and, under the law of the case doctrine, one judge
of the Superior Court is not bound by a prior judge’s decision regarding
the court’s subject matter jurisdiction.
2. The plaintiff’s claim that the dismissal of her appeal was improper because
she appealed from a final decision by an administrative agency in accor-
dance with the applicable statute (§ 4-166 [5] [A] and [C]) was unavailing,
as the plaintiff did not possess a statutory or regulatory right to have
the commission decide her rights or privileges in a hearing and, thus,
did not appeal from an agency determination in a contested case, which
is a proceeding in which the legal rights, duties or privileges of a party
are required by statute or regulation to be determined by an agency
after an opportunity for a hearing; even if this court assumed that the
plaintiff’s legal rights or privileges were at issue before the commission,
neither the governing statutes nor the applicable regulations required
the commission to hold a hearing to determine her rights or privileges in
a hearing, and neither the letter the plaintiff received from the division’s
assistant director notifying her that her request for spousal benefits had
been administratively denied, nor the commission’s denial of her claim
following the trial court’s remand order were agency determinations in
a contested case as defined by the act, and the fact that a hearing was
in fact held before the commission did not render the plaintiff’s appeal
as having been taken from a final decision under the act.
Argued May 16—officially released October 16, 2018
Procedural History
Appeal from the decision by the named defendant
denying the plaintiff’s claim for certain survivor bene-
fits, and for other relief, brought to the Superior Court
in the judicial district of New Britain, where the court,
Schuman, J., granted in part the defendants’ motions to
dismiss; thereafter, the court, Huddleston, J., rendered
judgment dismissing the appeal, from which the plain-
tiff appealed to this court. Affirmed.
Harold J. Geragosian, for the appellant (plaintiff).
Cindy M. Cieslak, with whom, on the brief, was
Michael J. Rose, for the appellee (named defendant).
Alayna M. Stone, assistant attorney general, with
whom, on the brief, was George Jepsen, for the appel-
lees (defendant state of Connecticut et al.).
Robert J. Kor, with whom was Marialta Sparagna,
for the appellee (defendant Arlene M. Walenski).
Opinion
LAVINE, J. The sole issue in this appeal is whether
the trial court properly dismissed the administrative
appeal filed by the plaintiff, Carol Walenski, for lack of
subject matter jurisdiction due to her failure to obtain
a final decision from, or to otherwise exhaust her
administrative remedies with, the named defendant, the
Connecticut State Employees Retirement Commission
(commission).1 On appeal, the plaintiff claims that the
trial court, Huddleston, J., improperly dismissed her
appeal because (1) the commission and a prior judge
of the Superior Court concluded that the court had
subject matter jurisdiction, and (2) she appealed from
a final decision by an administrative agency pursuant
to General Statutes § 4-166 (5) (A) and (C).2 We affirm
the judgment of the trial court.
The present appeal involves a rather tangled proce-
dural history that arose when the plaintiff, the second
wife of a former state employee, Walter Walenski (Wal-
ter), was denied certain spousal retirement benefits in
accordance with the State Employees Retirement Act
(act), General Statutes § 5-152 et seq. At the root of
the appeal was Walter’s decision to elect a retirement
benefit option that reduced his retirement benefits dur-
ing his lifetime and provided spousal benefits to his
surviving spouse after his death. See General Statutes
§ 5-165 (a).
The trial court’s memorandum of decision and the
record reveal the following undisputed facts and proce-
dural history that are relevant to this appeal. Walter
retired from state employment in 1989. At the time he
retired, Walter was married to his first wife the defen-
dant Arlene M. Walenski (Arlene).3 On September 30,
1997, Walter and Arlene divorced and, in their separa-
tion agreement, agreed that each of them would retain
his or her own pension free and clear of any claims
from the other. In 1997, sometime after he was divorced
from Arlene, but before he married the plaintiff, Walter
attempted to change the beneficiary of his surviving
spouse benefits. He was informed that he could not do
so. On April 18, 1998, approximately seven months after
he was divorced from Arlene, Walter married the plain-
tiff. Walter and the plaintiff remained married until Wal-
ter passed away on May 20, 2015.
The plaintiff subsequently contacted the retirement
services division of the Office of the State Comptroller
(retirement services) after Walter’s death to discuss
receiving spousal retirement benefits.4 Cindy Wilson, a
representative of retirement services, sent the plaintiff
a letter, dated June 4, 2015, indicating that she was
‘‘entitled to receive 50 [percent] of [Walter’s retirement]
benefits . . . .’’ After the plaintiff received this corre-
spondence, however, another representative from
retirement services verbally told her that the informa-
tion in the letter she received from Wilson was incorrect
and that her application for benefits was denied. In a
follow up letter, dated July 14, 2015, Bonnie Price, the
assistant director of retirement services, ‘‘advised [the
plaintiff] that [the letter was] an administrative denial
[of her request for spousal benefits]’’ and informed her
that she ‘‘[had] the right to make a written claim to the
[commission] requesting review of [the] administrative
denial.’’5 Thereafter, on July 30, 2015, the plaintiff made
a written request for review and for a full hearing
‘‘before the commission to exhaust available remedies
. . . .’’ She did not receive a response to her July 30,
2015 letter.
On March 31, 2016, the plaintiff commenced the
underlying action and, in an amended complaint,
alleged four counts: (1) an administrative appeal from
the commission pursuant to General Statutes § 4-183;
(2) breach of an agreement; (3) various common-law
claims against Arlene; and (4) a request for declaratory
judgment.6 On May 20, 2016, the commission filed a
motion to dismiss. The commission argued, among
other grounds, that the court lacked subject matter
jurisdiction over the claims alleged against it because
the plaintiff failed to exhaust her administrative reme-
dies. According to the commission, the plaintiff failed
to exhaust its ‘‘five-step administrative process.’’7 On
June 22, 2016, the defendant state of Connecticut and
the defendant Connecticut state comptroller filed a joint
motion to dismiss. See footnotes 1 and 6 of this opinion.
Among other grounds, they, too, argued that the court
lacked subject matter jurisdiction over the counts
directed against them because the plaintiff failed to
exhaust her administrative remedies. The plaintiff
opposed the motions to dismiss.
Notwithstanding the arguments regarding the plain-
tiff’s alleged failure to exhaust her administrative reme-
dies, during a hearing on the motions to dismiss, the
commission ‘‘expressed a willingness to reach a final
decision in [the] case by October 20, 2016.’’ More specifi-
cally, the commission indicated that it would ‘‘waive
the fifth step of its administrative process’’—i.e., a
declaratory ruling—in an effort to avoid further delay,
but asked that the plaintiff obtain a ‘‘final decision’’
from the commission by requesting reconsideration
(step four of administrative process). See footnote 7 of
this opinion. Relying on the commission’s representa-
tion, the court, Schuman, J., remanded count one—
the administrative appeal—to the commission. Judge
Schuman’s September 1, 2016 order addressing the
motions to dismiss provided in relevant part: ‘‘[T]he
court remands count one to the full commission to hear,
decide, and reach a final decision on the plaintiff’s claim
by October 20, 2016. The court retains jurisdiction. In
the event of a commission decision adverse to the plain-
tiff, the plaintiff may return to court by motion to rein-
state the appeal.’’ The court dismissed counts two and
four of the amended complaint due to a lack of subject
matter jurisdiction; it stayed count three.8
On September 15, 2016, in response to Judge Shu-
man’s order, the plaintiff filed a substitute complaint
(operative complaint). The operative complaint
sounded in two counts: (1) an administrative appeal
from the commission pursuant to § 4-183 and (2) a sin-
gle count directed against Arlene, which alleged various
common-law claims.
On October 20, 2016, the commission held an informal
hearing and denied what it considered ‘‘[the plaintiff’s]
request for reconsideration of [retirement services’]
denial of a spousal benefit.’’ The commission further
indicated in a letter, also dated October 20, 2016, that
it ‘‘agree[d] that [§] 5-165 (a) does not allow for a change
in election or beneficiary after benefits have been pro-
vided to the member.’’ On October 27, 2016, the plaintiff
filed a motion to reinstate the appeal in the Superior
Court, which Judge Huddleston granted absent
objection.
Following the reinstatement of the plaintiff’s appeal,
a dispute arose between the parties regarding the
proper record before the court. During oral argument
addressing the parties’ dispute about the record, Judge
Huddleston, sua sponte, questioned the court’s subject
matter jurisdiction. The court ordered supplemental
briefing, and in their memoranda of law, both the plain-
tiff and the commission argued that the court had sub-
ject matter jurisdiction.9 The plaintiff relied primarily
on Judge Schuman’s September 1, 2016 order and con-
tended that the hearing before the commission on Octo-
ber 20, 2016, was a contested case under § 4-166 (4)
and (5). The commission argued that it was futile to
remand the case to it and that it had waived the fifth
step of its usual administrative procedure. Relying prin-
cipally on Derwin v. State Employees Retirement Com-
mission, 234 Conn. 411, 661 A.2d 1025 (1995), and
Ahern v. State Employees Retirement Commission, 48
Conn. App. 482, 710 A.2d 1366, cert. denied, 245 Conn.
911, 718 A.2d 16 (1998), Judge Huddleston disagreed,
concluding that the plaintiff had not appealed from a
‘‘final decision’’; see General Statutes § 4-166 (5); and
had failed to exhaust her administrative remedies. See
General Statutes § 4-183 (a). This appeal followed.10
We begin by setting forth the principles of law govern-
ing our standard of review. ‘‘In an appeal from the
granting of a motion to dismiss on the ground of subject
matter jurisdiction, this court’s review is plenary. A
determination regarding a trial court’s subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record. . . . It is a familiar principle that
a court which exercises a limited and statutory jurisdic-
tion is without jurisdiction to act unless it does so under
the precise circumstances and in the manner particu-
larly prescribed by the enabling legislation.’’ (Internal
quotation marks omitted.) Berka v. Middletown, 181
Conn. App. 159, 163, 185 A.3d 596, cert. denied, 328
Conn. 939, 184 A.3d 268 (2018).
‘‘When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone. . . . In undertaking this
review, we are mindful of the well established notion
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged.’’ (Internal quotation marks omit-
ted.) Cuozzo v. Orange, 315 Conn. 606, 614, 109 A.3d
903 (2015).
We quickly can dispose of the plaintiff’s first claim
on appeal. She first argues that the court had subject
matter jurisdiction over her appeal because the commis-
sion, in response to Judge Huddleston’s supplemental
briefing order, agreed that the court had jurisdiction.
Second, she argues that Judge Schuman’s September
1, 2016 order, and his decision to exercise jurisdiction
over the appeal, constituted the ‘‘law of the case.’’ As
to the first argument, it is well settled that parties can-
not, by waiver or agreement, confer subject matter juris-
diction on the court. See Kleen Energy Systems, LLC v.
Commissioner of Energy & Environmental Protection,
319 Conn. 367, 380–81, 125 A.3d 905 (2015). As to the
second argument, one judge of the Superior Court,
under the law of the case doctrine, is not bound by
a prior judge’s decision regarding the court’s subject
matter jurisdiction.11 See Lewis v. Gaming Policy
Board, 224 Conn. 693, 698–99, 620 A.2d 780 (1993).
Accordingly, we are unpersuaded by the plaintiff’s con-
tention that Judge Huddleston improperly determined
that the court lacked subject matter jurisdiction over
her administrative appeal due to the commission’s
agreement that the court had subject matter jurisdiction
or on the basis of Judge Schuman’s order of September
1, 2016.
We now turn to the plaintiff’s remaining claim on
appeal, namely, that she appealed from a final decision
by an administrative agency pursuant to § 4-166 (5) (A)
and (C).12 It is well settled that ‘‘[t]here is no absolute
right of appeal to the courts from a decision of an
administrative agency. . . . The [Uniform Administra-
tive Procedure Act (UAPA), General Statutes § 4-166 et
seq.] grants the Superior Court jurisdiction over appeals
of agency decisions only in certain limited and well
delineated circumstances. . . . Judicial review of an
administrative decision is governed by . . . § 4-183 (a)
of the UAPA, which provides that [a] person who has
exhausted all administrative remedies . . . and who is
aggrieved by a final decision may appeal to the superior
court . . . .’’ (Internal quotation marks omitted.) Fer-
guson Mechanical Co. v. Dept. of Public Works, 282
Conn. 764, 771, 924 A.2d 846 (2007). ‘‘Accordingly,
[courts] have consistently held that the Superior Court
has jurisdiction only over appeals from a ‘final decision’
of an administrative agency.’’ Derwin v. State Employ-
ees Retirement Commission, supra, 234 Conn. 418.
Section 4-166 provides in relevant part: ‘‘As used in
this chapter. . . (5) ‘Final decision’ means (A) the
agency determination in a contested case, (B) a declara-
tory ruling issued by an agency pursuant to section 4-
176, or (C) an agency decision made after reconsidera-
tion. The term does not include a preliminary or inter-
mediate ruling or order of an agency, or a ruling of an
agency granting or denying a petition for reconsidera-
tion . . . .’’
‘‘A contested case is defined in § 4-166 [4] as a pro-
ceeding . . . in which the legal rights, duties or privi-
leges of a party are required by state statute or
regulation to be determined by an agency after an
opportunity for hearing or in which a hearing is in fact
held . . . .13 Not every matter or issue determined by
an agency qualifies for contested case status. . . . [Our
Supreme Court has] determined that even in a case
where a hearing is in fact held, in order to constitute
a contested case, a party to that hearing must have
enjoyed a statutory [or regulatory] right to have his legal
rights, duties or privileges determined by that agency
holding the hearing. . . . In the instance where no
party to a hearing enjoys such a right, the Superior
Court is without jurisdiction over any appeal from that
agency’s determination. . . .
‘‘A party seeking review of a state agency’s action,
therefore, must establish more than aggrievement
(injury in fact); [she] must establish that the injury
resulted from a final decision in a contested case . . . .
Our courts have had ample opportunity to construe the
definition of contested case. The test for determining
contested case status has been well established and
requires an inquiry into three criteria, to wit: (1) whether
a legal right, duty or privilege is at issue, (2) and is
statutorily [or regulatorily] required to be determined
by the agency, (3) through an opportunity for hearing
or in which a hearing is in fact held.’’ (Citations omitted;
emphasis in original; footnote added; footnotes omitted;
internal quotation marks omitted.) Ferguson Mechani-
cal Co. v. Dept. of Public Works, supra, 282 Conn.
771–72; see also Summit Hydropower Partnership v.
Commissioner of Environmental Protection, 226
Conn. 792, 800–801, 629 A.2d 367 (1993).
The plaintiff claims that she has, in fact, appealed
from a final decision in accordance with § 4-166 (5) (A)
and (C). More specifically, she first appears to claim
that the letter she received from retirement services
on July 14, 2015, which notified her that it was ‘‘an
administrative denial’’ of her request for spousal bene-
fits and also informed her of her ‘‘right to make a written
claim to the [commission] requesting review of [retire-
ment services’] administrative denial,’’ was a ‘‘final
agency decision.’’ Second, she argues that the October
20, 2016 decision by the commission, which Judge Schu-
man prompted by his September 1, 2016 order, was
‘‘the date of exhaustion of administrative remedies with
the [commission] as well as the date of the final decision
. . . .’’ Additionally, she argues that the court had sub-
ject matter jurisdiction pursuant to General Statutes
§ 5-155a (k).14 We are unpersuaded by the plaintiff’s
arguments and agree with Judge Huddleston’s well rea-
soned decision that the court lacked subject matter
jurisdiction.
As defined by § 4-166 (5) (A), a ‘‘final decision’’ is
‘‘the agency determination in a contested case . . . .’’
Section 4-166 (4), in turn, defines a ‘‘contested case’’
as ‘‘a proceeding . . . in which the legal rights, duties
or privileges of a party are required by state statute
or regulation to be determined by an agency after an
opportunity for hearing or in which a hearing is in fact
held . . . .’’ (Emphasis added.) Even if we assume that
the plaintiff’s legal right or privilege was at issue before
the commission, neither the governing statutes nor the
applicable regulations requires the commission to hold
a hearing to determine her right or privilege in a hearing.
See Ferguson Mechanical Co.v. Dept. of Public Works,
supra, 282 Conn. 778 (‘‘because the department was not
under a statutory or regulatory mandate to conduct a
hearing with respect to the plaintiff’s allegations, there
was no agency determination in a contested case’’).
Section 5-155a (g) provides in relevant part: ‘‘The
commission may hold hearings when deemed neces-
sary in the performance of its duty. . . .’’ (Emphasis
added.) Thus, the commission is not required by statute
to hold a hearing to determine the plaintiff’s right or
privilege. See Derwin v. State Employees Retirement
Commission, supra, 234 Conn. 419 n.12 (rejecting plain-
tiff’s claim that he appealed from ‘‘contested case’’ pur-
suant to § 4-166 (3) (A) [now § 4-166 (5) (A)] ‘‘[b]ecause
the hearing was not statutorily mandated’’ under § 5-
155a [g]); Ahern v. State Employees Retirement Com-
mission, supra, 48 Conn. App. 488 (Lavery, J., concur-
ring) (‘‘The statutes governing the state employees
retirement commission, General Statutes §§ 5-152
through 5-156f, do not require that a hearing be held
to determine a party’s legal rights or privileges. There-
fore, in any matter brought before this agency, it
appears that there can never be a ‘contested case’ as
defined in § 4-166 [4].’’).
Additionally, the applicable regulations adopted by
the commission pursuant to General Statutes § 5-155b
do not require that a hearing be held.15 Section 5-155-
9 (c) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘Subject to any directives of
the commission, all applications to . . . obtain any
benefit authorized by law . . . are processed by the
retirement division as routine business.’’ (Emphasis
added.) A claimant has a right to petition the commis-
sion for review of an application, but the regulations
simply provide that the claim will be placed on the
commission’s agenda, with the claimant being sched-
uled to appear ‘‘if warranted,’’ and do not explicitly
provide for a hearing. See Regs. Conn. State Agencies
§ 5-155-10. Finally, § 5-155-11 of the Regulations of Con-
necticut State Agencies provides: ‘‘All hearings con-
ducted in the state employees’ retirement commission
are conducted in accordance with the requirements of
and procedures suggested in sections 4-177 through
4-182 inclusive of the 1971 Supplement to the General
Statutes as the same may be amended from time to
time. Conferences, interviews, and informal hearings
conducted or held as a part of the administrative pro-
cesses of the state employees’ retirement commission
are conducted on an informal basis, in accordance with
standards designed to meet the purposes to be accom-
plished by the proceeding.’’ (Emphasis added.)
By their plain terms, the applicable regulations do
not require that a hearing be held;16 rather, consistent
with § 5-155b, they establish a procedure in which a
hearing may be held and provide that such hearings
‘‘are conducted in accordance with the requirements
of and procedures’’ set forth in §§ 4-177 through 4-182.
Regs. Conn. State Agencies § 5-155-11. Section 4-177
(a), in turn, provides: ‘‘In a contested case, all parties
shall be afforded an opportunity for hearing after rea-
sonable notice.’’ (Emphasis added.); see also General
Statutes §§ 4-177a through 4-181a (referencing proce-
dures ‘‘in a contested case’’). As previously stated, § 4-
166 (4) defines a ‘‘contested case’’ as ‘‘a proceeding
. . . in which the legal rights, duties or privileges of a
party are required by state statute or regulation to
be determined by an agency after an opportunity for
hearing or in which a hearing is in fact held . . . .’’
(Emphasis added.) Simply put, the regulations promul-
gated by the commission, although convoluted, do not
require that a hearing be held before the commission
to determine a party’s rights or privileges.
Under the circumstances presented, neither the letter
the plaintiff received from retirement services on July
14, 2015, nor the commission’s October 20, 2016 denial
is an agency determination in a contested case as
defined by the UAPA. In addition, the fact that a hearing
‘‘was in fact held’’; General Statutes § 4-166 (4); before
the commission on October 20, 2016, following Judge
Schuman’s remand order, does not render the plaintiff’s
appeal to the Superior Court as having been taken from
a ‘‘final decision’’ under the UAPA. See, e.g., Ferguson
Mechanical Co. v. Dept. of Public Works, supra, 282
Conn. 772 (‘‘where a hearing is in fact held, in order to
constitute a contested case, a party to that hearing must
have enjoyed a statutory [or regulatory] right to have
his legal rights, duties or privileges determined by that
agency holding the hearing’’ [internal quotation marks
omitted]); Derwin v. State Employees Retirement Com-
mission, supra, 234 Conn. 419 n.12 (fact that commis-
sion actually held hearing does not convert plaintiff’s
case into ‘‘contested case’’ under § 4-166 (2) [now § 4-
166 (4)]). Accordingly, the plaintiff did not appeal to
the Superior Court from an agency determination in a
contested case because she did not possess a statutory
or regulatory right to have the commission decide her
rights or privileges in a hearing. See General Statutes
§ 4-166 (5) (A).
A ‘‘final decision’’ under § 4-166 (5) (C) is defined as
‘‘an agency decision made after reconsideration . . . .’’
With respect to the plaintiff’s contention under this
statutory subsection, Derwin v. State Employees
Retirement Commission, supra, 234 Conn. 411, con-
trols. In Derwin, the commission denied John T. Der-
win’s request to include prior municipal service in its
calculation of his retirement benefits, granted his
request for reconsideration under § 5-155a (k), and
affirmed its original denial of his claim. See id., 416–17.
Derwin appealed, and the trial court sustained the
appeal and remanded the case to the commission. Id.,
417. On appeal to our Supreme Court, Derwin argued
‘‘that the trial court correctly concluded that it had
[subject matter] jurisdiction over [his] appeal because
the commission’s denial of his request constituted ‘an
agency decision made after reconsideration’ within the
meaning of § 4-166 (3) (C) [now § 4-166 (5) (C)].’’ Id.,
419.
Our Supreme Court rejected Derwin’s claim. The
court observed that: ‘‘In determining the proper scope
of § 4-166 (3) (C), we look first to General Statutes
§ 4-181a, which governs the reconsideration of agency
decisions pursuant to the UAPA. Under § 4-181a (a)
(1), an agency is authorized to reconsider only final
decisions in contested cases. Thus, an agency decision
is subject to reconsideration under the UAPA only if
the decision already is a final decision for purposes of
appeal. The plaintiff, however, urges an interpretation
of § 4-166 (3) (C) that would convert a nonfinal decision
for purposes of appeal into an appealable final decision,
a construction that is inconsistent with the dictates of
§ 4-181a. In the absence of a clear legislative mandate
to do so, we will not construe § 4-166 (3) (C) so as to
render it incompatible with another provision of the
same statutory scheme.’’ Id., 420–22. After reviewing
the relevant legislative history for § 4-166 (3) (C), the
court further noted: ‘‘As understood by its drafters . . .
§ 4-166 (3) (C) was not intended to create a new cate-
gory of appealable decisions for noncontested cases
but, rather, to clarify that a party in a contested case
may appeal either from a final decision of an agency
under § 4-166 (3) (A) or from an agency decision ren-
dered after reconsideration pursuant to § 4-181a.’’
(Emphasis in original.) Id., 422–23. The court stated:
‘‘When read in the proper statutory and historical con-
text, § 4-166 (3) (C) may fairly be construed only to
include decisions after reconsideration in contested
cases.’’ Id., 424.
Indeed, this court described the judicial gloss pro-
vided by Derwin as follows: ‘‘[I]n any matter brought
before [the commission], there can never be a ‘con-
tested case’ as defined by § 4-166 [4] because decisions
of the commission are not final for purposes of the
UAPA.’’ Ahern v. State Employees Retirement Commis-
sion, supra, 48 Conn. App. 485; see also Southern New
England Telephone Co. v. Dept. of Public Utility Con-
trol, 64 Conn. App. 134, 142, 779 A.2d 817 (2001)
(‘‘[r]econsideration for purposes of § 4-166 [5] (C) is
limited to a decision that was final before reconsidera-
tion because it was made in a contested case’’), appeal
dismissed, 260 Conn. 180, 799 A.2d 294 (2002) (certifica-
tion improvidently granted). Accordingly, the plaintiff,
here, did not appeal from an agency decision made after
reconsideration. See General Statutes § 4-166 (5) (C).
The record reflects that the parties and the court
were well intentioned, and we acknowledge that this
serpentine process resulted in an unfortunately pro-
longed journey to this court for the plaintiff. Nonethe-
less, ‘‘[i]f the available administrative procedure . . .
provide[s] the [plaintiff] with a mechanism for attaining
the remedy that [she] seek[s] . . . [she] must exhaust
that remedy.’’ (Internal quotation marks omitted.) River
Bend Associates, Inc. v. Water Pollution Control
Authority, 262 Conn. 84, 101, 809 A.2d 492 (2002). That
simply did not occur in the present case, and the parties
were not at liberty to bypass the available administra-
tive remedies. See Peters v. Dept. of Social Services,
273 Conn. 434, 441, 870 A.2d 448 (2005) (subject matter
jurisdiction requirement may not be waived and court
can question its jurisdiction at any time); see also foot-
notes 7 and 11 of this opinion.
We conclude by noting that, under the present cir-
cumstances, ‘‘[t]he legislature . . . has the primary and
continuing role in deciding which class of proceedings
should enjoy the full panoply of procedural protections
afforded by the UAPA to contested cases, including
the right to appellate review by the judiciary. Deciding
which class of cases qualifies for contested case status
reflects an important matter of public policy and the
primary responsibility for formulating public policy
must remain with the legislature.’’ (Internal quotation
marks omitted.) Peters v. Dept. of Social Services,
supra, 273 Conn. 445.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The state of Connecticut, the Connecticut state comptroller and Arlene
M. Walenski also were named as defendants.
2
It is undisputed that the commission is an ‘‘agency’’ under § 4-166 (1).
3
Walter and Arlene were married on July 4, 1959.
4
Pursuant to the act, the commission is an independent entity within
retirement services that administers the state employees retirement system.
See General Statutes § 5-155a (a) (‘‘[t]he State Employee Retirement Com-
mission shall be within the Retirement Division of the office of the Comptrol-
ler for administrative purposes only’’); see also General Statutes § 5-155a
(c) (‘‘[t]he [State Employees] Retirement Commission shall administer this
retirement system’’).
5
The July 14, 2015 letter stated in relevant part: ‘‘Please be advised that
this is an administrative denial for the reasons noted below:
‘‘[1] Pursuant to [§ 5-165] an election or change of election must be filed
before retirement payments [begin].
‘‘[2] Specifically, in the event of remarriage after retirement, Option ‘A’
is not transferable to the new spouse and the retiree continues to receive
the reduced retirement allowance. The benefit is based on the age of the
retiree and spouse at the time of election.
‘‘[3] Additionally, the State Employees Retirement System (SERS) Plan
rules are not subject to subsequent divorce judgments.
‘‘Notwithstanding the information contained herein, you have the right
to make a written claim to the [commission] requesting review of our admin-
istrative denial.’’
6
The first, second, and fourth counts of her amended complaint were
each directed against the commission, the state comptroller, and the state
of Connecticut. See footnote 1 of this opinion.
7
The five step administrative process is as follows: (1) a final agency
decision from retirement services; (2) review of a claimant’s appeal by a
subcommittee within the commission, which makes a recommendation to
the full commission; (3) the full commission’s review of the subcommittee’s
recommendation, which the full commission will decide to accept or reject;
(4) reconsideration of the commission’s decision in one of two ways, either
(a) reconsideration based upon the record and information before the com-
mission or (b) a hearing in front of the full commission; and (5) a petition
for a declaratory ruling, with ‘‘the declaratory ruling itself [being] considered
the final decision of the commission for purposes of appeal to [the] Supe-
rior Court.’’
On July 20, 2016, prior to the commission filing its motion to dismiss,
the subcommittee on purchase of service related matters—a subcommittee
within the commission—reviewed the plaintiff’s request for spousal benefits
and recommended denying her request (step two of administrative process).
The commission approved the subcommittee’s recommendation on August
18, 2015 (step three of administrative process).
8
With respect to count three of the amended complaint, which was
directed against Arlene, the court noted that it could not adjudicate that
count until the commission made a final ruling on the distribution of Walter’s
retirement benefits. Thus, the court stayed count three pending disposition
of count one.
9
The state, the comptroller, and Arlene did not file memoranda of law
regarding the court’s subject matter jurisdiction.
10
Following the court’s dismissal of the administrative appeal, the court,
in response to a motion filed by the plaintiff, transferred the remaining
count of the operative complaint against Arlene to the regular civil division
of the Superior Court.
11
Judge Schuman’s September 1, 2016 order did not expressly conclude
that the court had subject matter jurisdiction. Nonetheless, insofar as his
order directed the commission to ‘‘reach a final decision’’ on the plaintiff’s
claim regarding her entitlement to spousal retirement benefits, the court
asserted jurisdiction over the plaintiff’s administrative appeal.
The commission argues, as an alternative ground to affirm, that the trial
court lacked jurisdiction on September 1, 2016, because, at that point, the
plaintiff had failed to exhaust her administrative remedies. We acknowledge
this argument and question whether the trial court had jurisdiction to enter
its September 1, 2016 order. Given the procedural irregularities of the present
case and because the alternative ground to affirm does not affect the out-
come of this appeal, we decide whether the trial court lacked subject matter
jurisdiction as framed by the plaintiff’s arguments on appeal.
12
The plaintiff does not claim that she has appealed from a declaratory
ruling issued by an agency pursuant to General Statutes § 4-176. See General
Statutes § 4-166 (5) (B). We therefore do not address whether the plaintiff has
appealed from such a ruling. Nonetheless, in Ahern, Judge Lavery observed
in his concurring opinion that ‘‘it appears that the only way to get a ‘final
decision’ from the . . . commission that is appealable to the Superior Court
is by seeking a declaratory judgment pursuant to § 4-176 (a).’’ Ahern v. State
Employees Retirement Commission, supra, 48 Conn. App. 492 n.2 (Lavery,
J., concurring); see also LoPresto v. State Employees Retirement Commis-
sion, 234 Conn. 424, 432 n.15, 662 A.2d 738 (1995) (‘‘[t]he commission’s
declaratory ruling [pursuant to § 4-176 (a)] constituted a ‘final decision’ for
purposes of appeal under § 4-183’’).
13
Section 4-166 was amended by No. 14-187, § 1, of the 2014 Public Acts
(P.A. 14-187), which added additional subdivisions to the statute. Prior to
the enactment of P.A. 14-187, a ‘‘contested case’’ was defined in § 4-166 (2).
A ‘‘contested case’’ is now defined in § 4-166 (4). The material portions of
§ 4-166 remain the same for purposes of this appeal.
Additionally, ‘‘[i]n 2004, the legislature amended the statutory definition
of a contested case in § 4-166 [4] to its current form by adding the phrase
‘or regulation . . . .’ Public Acts 2004, No. 04-94, § 1.’’ Ferguson Mechanical
Co. v. Dept. of Public Works, supra, 282 Conn. 771 n.8.
14
General Statutes § 5-155a (k) provides: ‘‘If any claim [for retirement
benefits] is denied, a claimant may request that the decision be reviewed
and reconsidered by the commission. Thereafter, any such case shall be
decided as a contested case in accordance with chapter 54 [of the UAPA].’’
(Emphasis added.)
We are unpersuaded that the italicized language of § 5-155a (k) transforms
the plaintiff’s appeal into a ‘‘contested case’’; see General Statutes § 4-166
(4); and she therefore appealed to the Superior Court from a ‘‘final decision.’’
See General Statutes § 4-166 (5) (A). This court previously noted in Ahern
v. State Employees Retirement Commission, supra, 48 Conn. App. 485–86,
that § 5-155a (k) was amended during a special session in May, 1994; see
Public Acts, Spec. Sess., May 1994, No. 94-1, § 68; to add that ‘‘any such
case shall be decided as a contested case in accordance with [the UAPA].’’
(Emphasis added.) This court held ‘‘that the amendment was technical and
created no new substantive right to appeal.’’ Ahern v. State Employees
Retirement Commission, supra, 487. Accordingly, ‘‘the phrase may not be
interpreted to create the right to appeal.’’ Id.
15
General Statutes § 5-155b provides: ‘‘The State Employees Retirement
Commission shall adopt regulations, in accordance with the provisions of
chapter 54 [of the UAPA], which establish the standards and criteria used
by the commission (1) to review and reconsider decisions to deny claims
submitted to the commission and (2) to decide contested cases.’’
Notwithstanding the fact that General Statutes § 5-155 was repealed by
No. 83-533, § 53, of the 1983 Public Acts, §§ 5-155-1 through 5-155-13 of the
Regulations of Connecticut State Agencies were revised in 2015. Section 5-
155-1 of the Regulations of Connecticut State Agencies provides in relevant
part: ‘‘The State Employees’ Retirement Commission derives its duties and
authority from the following chapters of the General Statutes: Chapter 66—
State Employees Retirement System . . . .’’ General Statutes § 5-155b is
within chapter 66 of the General Statutes and directs the commission to
adopt regulations to review and reconsider decisions denying claims for
retirement benefits. Accordingly, §§ 5-155-1 through 5-155-13 of the Regula-
tions of Connecticut State Agencies apply to claims for retirement benefits
before the commission.
16
Sections 5-155a-1 and 5-155a-2 of the Regulations of Connecticut State
Agencies, which apply to petitions for a declaratory ruling before the com-
mission, do not require the commission to hold a hearing to determine a
claimant’s right or privilege; see Regs. Conn. State Agencies § 5-155a-1 (a)
(2) (‘‘[p]etitions for declaratory rulings may be filed on . . . (2) the applica-
bility to specified circumstances of a provision of the general statutes, a
regulation, or a final decision . . . on a matter within the jurisdiction of
the commission’’); Regs. Conn. State Agencies § 5-155a-1 (e) (1) (‘‘after the
filing of a complete petition for a declaratory ruling . . . the commission
shall do one of the following, in writing’’; regulation lists five options, one
of which is ‘‘order that the matter be the subject of a hearing as a contested
case’’ [emphasis added]); nor do §§ 5-165-1 through 5-165-4 of the Regulations
of Connecticut State Agencies, which generally describe a state employee’s
ability to select an optional form of retirement salary.