COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

Suffolk, ss.

Docket No. VS-08-436

SENETHRA T. ANDERSON, Petitioner

v.

DEPARTMENT OF VETERANS SERVICES, Respondent


DECISION

Appearance for the Petitioner:

Senethra Anderson, pro se, 101 Green St., #104, Jamaica Plain, MA 02130.

Appearance for the Respondent:

Gail Cavanaugh-McAuliffe, Esq., Dept. of Veterans Services, 600 Washington St., Suite 1100

Boston, MA 02111.

Administrative Magistrate:

Mark L. Silverstein, Esq.

Summary of Decision

Because the petitioner's pro se representation generates no income for her and is not expected to do so, it is not "employment" for purposes of establishing her eligibility for M.G.L. c. 115 veterans benefits; accordingly, the decision of the Massachusetts Department of Veterans Services sustaining the suspension of petitioner's veterans benefits based upon her refusal to accept any kind of employment is affirmed, without prejudice to a reapplication by the petitioner for M.G.L. c.115 benefits that meets the employment-related requirements of 108 CMR 7.01 and 7.02.

Introduction

Petitioner Senethra T. Anderson, an honorably-discharged Air Force veteran, appeals from a decision of the Massachusetts Department of Veterans Services (DVS), issued on May 15, 2008 following a hearing, sustaining the suspension of her M.G.L. c. 115 veterans benefits by the City of Boston Veterans Services Department based upon her refusal to accept any kind of employment. See 108 CMR 7.01(4). Ms. Anderson contends that her benefits should not have been suspended because she is employed full-time as a pro se litigant and therefore cannot accept other employment.

Ms. Anderson appealed the DVS decision on May 23, 2008. The appeal was timely but was filed initially with DVS, which transferred it to the Division of Administrative Law Appeals (DALA), together with a copy of its decision and the exhibits that DVS marked in evidence at its May 13, 2008 hearing (DVS Hrg. Exhs. 1-7).

After receiving written notice that DALA had received her appeal, Ms. Anderson filed a motion to dismiss in which she asserted that DALA lacked adjudicatory jurisdiction until her appeal was "reheard" by "the Veterans Department of Health and Human Services." DALA did not decide the motion at the time and instead issued, on July 28, 2008, a notice scheduling a hearing for August 29, 2008.

DVS appeared for the scheduled hearing, but Ms. Anderson did not appear. I did not dismiss the appeal, however. Noting that the appeal raised only a legal issue, I determined that Ms. Anderson had elected to waive a hearing and present her case upon written submissions. Order Following Hearing (Aug. 28, 2008), at 2; see 801 CMR 1.02(10)(b).[1] I also allowed time for each party to file a memorandum of law if it chose to do so. Ms. Anderson filed, in response to this Order, a letter restating her objection to DALA's jurisdiction. DVS did not file a memorandum or a response to Ms. Anderson's letter.

For the reasons stated below, I sustain DALA's jurisdiction to adjudicate this appeal, and I conclude that Ms. Anderson's pro se representation is not "employment" for purposes of establishing M.G.L. c. 115 benefits eligibility because it is beyond genuine dispute that this activity generates no income and is not expected to do so. Accordingly, I affirm the appealed DVS decision, without prejudice to a reapplication by Ms. Anderson for M.G.L. c.115 benefits that meets the employment-related requirements of 108 CMR 7.01 and 7.02.

[1] The Informal/Fair Hearing Rules of the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.02, apply to adjudicatory proceedings, such as this appeal, "involving review of action or inaction of an Agency or of a Veterans' agent with respect to a claim for benefits or services."

Findings of Fact

I make the following findings of fact based upon the documents in the record before me.

1. Ms. Anderson is an honorably-discharged Air Force veteran. (DVS Decision, May 15, 2008, at 1)

2. Ms. Anderson worked as a financial service representative at American Express in 2003 and 2004, a customer service representative at the Fleet Center in Boston between 2002 and 2004 [2], an assistant manager at The Black Library (probably the Black Library Booksellers) in Dorchester between 2004 and 2005, and a parking monitor at Harvard University in Cambridge between 2004 and 2007. (DVS Hrg. Exh. 7: Resume of Senethra T. Anderson.)

3. Ms. Anderson attended the Harvard University Continuing Education program in 2006 and yoga instructor certification courses in 2007 and 2008. (DVS Hrg. Exh. 7: Resume of Senethra T. Anderson; DVS Hrg. Exh. 4: copy of email to Ms. Anderson from Fitness Resources Associates in Needham, MA.)

4. Ms. Anderson's resume does not state that she has attended or received a degree from any law school or that she is admitted to the bar of any state. (DVS Hrg. Exh. 7: Resume of Senethra T. Anderson.)

5. Ms. Anderson describes her current occupation as "Legal Self-Representation...Pro Se,"and in her resume summarized her work in this capacity thus:

Task includes preparing motions, briefs, summons, complaints and memoranda for litigative arguments. Arraignments, motions hearing, bench trials, appeals and judgements. Has familiar knowledge in criminal and civil legal proceedings. Study work consisted of case law, statute, ordinance, constitutional law and procedural law. All research management done at Harvard, Northeastern, Suffolk, State Libraries. Cases which are most challenging are unemployment insurance appeals.

(DVS Hrg. Exh. 7: Resume of Senethra T. Anderson.)

6. Ms. Anderson received M.G.L. c. 115 veterans benefits at various times in 2001, 2002, 2006 and 2007 and, as well, in early 2008. (DVS Hrg. Exh. 5: DVS Request for Authorization of Veterans' Benefits-Form VS-21A.) These benefits were paid to Ms. Anderson by the City of Boston Veterans Services Department, acting as DVS veterans services agent. ( Id.). See M.G.L. c. 115, §

7. The City of Boston Veterans Services Department notified Ms. Anderson on March 26, 2008 that her M.G.L. c. 115 veterans benefits would be suspended on April 1, 2008 based upon her refusal to accept any kind of employment, citing 108 CMR 1.01(4). (DVS Hrg. Exh. 5: DVS Request for Authorization of Veterans' Benefits-Form VS-21A; DVS Hrg. Exh. 6: Notice of Intent dated Mar. 26, 2008.)

8. On April 17, 2008, Ms. Anderson challenged the decision of the City of Boston Veterans Services Department to suspend her benefits by filing an appeal with DVS. (DVS Hrg. Exh. 1)

9. DVS held a hearing on Ms. Anderson's appeal on May 13, 2008. Ms. Anderson testified on her own behalf. Two other witnesses testified at the DVS hearing: Evan Makrinikolas, DVS's Chief Authorizer, and George Egan, the Director of the City of Boston Veterans' Services Department. (DVS Decision, May 15, 2008, at 1.)

10. In its decision following the hearing, DVS rejected Ms. Anderson's contention that her "pro se advocacy" was "a form of employment in itself." (DVS Decision, May 15, 2008, at 2-3). It concluded that Ms. Anderson was "voluntarily unemployed" and was required to seek and accept full-time employment in order to be eligible for benefits under M.G.L. c. 115. DVS therefore sustained the suspension of her benefits. ( Id.)

11. On May 23, 2008, Ms. Anderson filed with DVS an appeal challenging the DVS decision.

12. DVS transferred the appeal to DALA, which acknowledged receipt of the appeal on June 17, 2008. (DALA Corrected Acknowledgment dated July 11, 2008.)

[2] Ms. Anderson's resume states that her employer in 2002-04 was "TD Banknorth Garden," but although that was the sports arena's name when this appeal was commenced, it was known as the Fleet Center before it was renamed "TD Banknorth Garden" in July 2005. I regard the error as inadvertent.

Discussion

1.

DALA alone has jurisdiction to adjudicate this appeal.

The DVS regulations specify, at 108 CMR 8.07, the procedure by which an applicant for benefits may appeal "any action taken by a veterans' agent"-for example (as in this case), the suspension of M.G.L. c. 115 benefits by the local Veterans Services Department.

The appeal is first to the Secretary of DVS, within 21 days of the date of notice of the veterans' agent's action. See 108 CMR 8.07(1). Ms. Anderson timely exercised, on April 17, 2008, her right to appeal the suspension of her M.G.L. c. 115 benefits by the Boston Veterans Services Department to the DVS Commissioner.

The regulations direct that a DVS hearing officer conduct a hearing on the appeal challenging a veterans' agent's action and issue a decision in writing to the applicant and the veterans' agent. 108 CMR 8.07(3). DVS met these requirements when its hearing officer held a hearing on Ms. Anderson's appeal on May 13, 2008 and issued a written decision on May 15, 2008 sustaining the suspension of her M.G.L. c. 115 benefits.

The regulations make no provision for further or different proceedings at DVS to challenge a veterans' agent's action, and accordingly the written decision that DVS issues pursuant to 108 CMR 8.07(3) marks the appeal's last stop at that agency. However, "the aggrieved party may further appeal, in writing, to DALA by filing an appeal within ten days of the receipt of the decision" issued by DVS. See 108 CMR 8.07(3). This route of further appeal to DALA following DVS's written decision is exclusive. DVS can adjudicate the matter no further once it issues its decision under 108 CMR 8.07(3), even if the appealing party requests further DVS review or files a timely appeal of the DVS decision with DVS rather than directly at DALA, as occurred here. See Finding 11, above, at 5.

Ms. Anderson's motion to dismiss this proceeding and transfer her appeal back to DVS was without merit, consequently, and I deny it.

2.

With her appeal properly before DALA, Ms. Anderson was entitled only to the hearing that DALA scheduled upon notice to her. Her failure to appear for the scheduled hearing on August 29, 2008 cannot be justified by DALA's alleged lack of jurisdiction to adjudicate her appeal. It was within my discretion, therefore, to issue to Ms. Anderson an order to show cause why her appeal should not be dismissed for failure to appear at the hearing, see 310 CMR 1.02(10)(d), or to determine instead, as I did here, that Ms. Anderson had elected to waive a hearing and present her case upon written submissions. See 801 CMR 1.02(10)(b). The latter option was appropriate in this case. First, the appeal is unburdened by factual dispute and raises a purely legal issue-whether Ms. Anderson's pro se representation qualifies as employment and precludes the suspension of her benefits for refusal to accept any kind of employment under108 CMR 7.01(4). Second, this legal issue is likely to resurface if Ms. Anderson reapplies for M.G.L. c. 115 veterans benefits, as this Decision allows her to do, and the issue is not now decided. [3] I turn to this issue next.

a.

108 CMR 7.01(4), entitled "employability of the applicant," provides that: The veterans' agent shall deny further veterans' benefits to employable applicants who refuse, without good cause, to accept any bona fide offer of employment for which they are reasonably qualified based on their skills, training, physical condition and present circumstances. Notwithstanding the foregoing, applicants may be required to accept minimum wage employment.

Neither M.G.L. c. 115 nor the DVS Regulations define "employment." The regulations define "voluntary unemployment" as "unemployment brought about by one's own act or failure to act." 108 CMR 2.02. The regulations also direct the local veterans' agent to determine that the applicant is voluntarily unemployed" if "all the circumstances of the case, including age, physical condition, skills, length of time unemployed, economic conditions, etc. indicate that the applicant has not made, or is not making a good faith effort to obtain any type of employment for which he or she is reasonably suited..." 108 CMR 3.06(1)(b). [4]

No statutory or regulatory definition clarifies, thus, what activities in general comprise "employment" for M.G.L. c. 115 benefits-related purposes or, more specifically, how it is to be determined whether pro se representation is employment that precludes a discontinuation of benefits under 108 CMR 3.06(1)(b) or under 108 CMR 7.01(4). There appears to be, in addition, no caselaw addressing either of these points.

Working without the benefit of any such guideposts, the DVS hearing officer found that Ms. Anderson was "involved in" an unidentified lawsuit that was "ongoing for some time" and had "become an all encompassing aspect of her life," and that "[h]er pro se advocacy is preventing her from working." DVS Decision (May 15, 2008), at 2. She noted that although "[l]awsuits by their very nature are adversarial" and "are time consuming and costly," Ms. Anderson's pro se advocacy was not, as she contended, "a form of employment in itself," and nor can employment and pro se representation "be construed to be the same," citing Blacks Law Dictionary. [5] The hearing officer reasoned further that:

Although the petitioner's desire to have her pro se representation in her civil suit be considered work it cannot be. If that were the case then anyone involved in civil litigation would be entitled to receive state aid. That is not the case. Law suits are timely, costly and emotionally draining at best however they do not exclude one from participating in gainful employment unless they become physically disabled. The petitioner is not physically disabled.

Based upon this reasoning, the hearing officer concluded that Ms. Anderson was voluntarily unemployed and that the veterans' agent had properly discontinued payment of M.G.L. c. 115 benefits to her.

b.

Because neither M.G.L. c. 115 nor the DVS regulations define "employment," what constitutes employment under the regulations is determined from the word's common or ordinary meaning such as dictionary definitions supply, provided that this determination is consistent with the plain language and purpose of the statute and regulations. See T.B.I., Inc. v. Board of Health of North Andover, 431 Mass. 9, 725 N.E.2d 188 (2000).

Dictionary definitions of "employment" equate employment with an activity to which one devotes time or effort or with activity that is "gainful." See, e,g., The American Heritage Dictionary, 2d ed. 1991 (definitions of "employ" and "employment"). These definitions are only partly helpful, as they furnish no means of distinguishing between an activity that is steadily gainful from one that is time-consuming but gainful sporadically, or from one that is gainful in the sense that it avoids costs or is beneficial in some other manner.

The definition quoted by the DVS hearing officer is somewhat more helpful, as it equates employment with "[w]ork for which one has been hired and is being paid by an employer." However, while this definition equates employment with payment, it does not clarify how this definition applies in the context of self-employment, where one is not necessarily paid steadily by an employer as one works and payment may not occur until all work has been completed.

Perhaps because the dictionary definition was no more helpful than were the statute and regulations in distinguishing pro se representation from employment, the DVS hearing officer focused instead upon another approach in distinguishing one from the other. It cannot be the case, she reasoned, that one is entitled to state aid because of involvement in civil litigation, and although civil litigation is "timely, costly and emotionally draining," it does not preclude one from "participating in gainful employment" unless one becomes physically disabled, which Ms. Anderson was not. As inviting as this reasoning is, however, it still provides no functional way to determine, under the DVS regulations, whether pro se representation is employment.

Defining employment in the context of public benefits eligibility need not depend upon whether a particular activity is found on a "master list" of occupations or upon whether the agency administering a benefits program (or the benefits applicant) perceives a particular form of activity as the equivalent of employment. One alternative approach is to forego relying upon any such subjective definition of employment, or to dispense altogether with creating occupation lists or defining employment and to require, instead, that an applicant submit proof of income to meet an employment prerequisite for state aid. Some states specify, for example, the forms of proof that suffice to show earned income from wages or self-employment, or from other sources such as royalties from one's published works, honoraria, stipends, or federal or state work/study program grants, and also the forms of proof that do not show earned income, such as receipts for participating in clinical drug trials or for donating blood or plasma. [6]

The DVS regulations are not similarly specific, but they show, nonetheless, that the agency has adopted an income-based approach in determining whether a veteran or dependent who is otherwise eligible for M.G.L. c. 115 benefits is employed or is, instead, voluntarily unemployed.

First, the regulations clarify that the payment of benefits under M.G.L. c. 115 "constitutes a grant of public assistance to the veteran or his or her dependent," 108 CMR 5.01(2), and that eligibility for this type of assistance is based upon demonstrated financial need. The "general rule for determination of benefits" under M.G.L. c. 115 is that "[o]nly such amounts shall be paid to or for any veteran or dependent as may be necessary to afford him or her sufficient relief or support and such benefits shall not be paid to any person who is able to support himself or herself or who is in receipt of income from any source sufficient for his or her support." 108 CMR 5.01(1) (emphasis added). [7]

Second, the regulations require that self-employed persons "whose self-employment efforts have failed to generate income which is adequate enough to afford them sufficient relief or support, and who have no foreseeable prospects of generating income" must "complete an employment plan and conduct job searches as required by 108 CMR 7.13(3) and (4) as a condition of receiving benefits." 108 CMR 7.02(2)(emphases added).

"Employment" for purposes of the DVS regulations means, consequently, employment that generates income. Moreover, income from self-employment must generate, or must have a foreseeable prospect of generating, income that is adequate enough to afford the applicant "sufficient relief or support."

c.

Far less effort is needed to determine what qualifies as "income" under the DVS regulations, because the regulations define this term. Income is "the combined money or its earned or unearned equivalent as further defined in 108 CMR 6.01(4)." 108 CMR 2.02. 108 CMR 6.01(4), entitled "Types of Exempt Income," provides that:

(a) A veteran's income from annuities received under the provisions of M.G.L. c. 115, § 6B, shall not be counted as income to be deducted in determining veterans' benefits.

(b) Money which an applicant has received from the United States or the Commonwealth as a "bonus" for military service or enrollment shall not be considered as income to be deducted in determining benefits.

(c) Earned income of children attending high school shall not be counted.

(d) Earned income for children attending college shall not be counted.

(e) Payments made to an applicant from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In Re Agent Orange Product Liability Litigation, M.D.L. No. 381 (E.D.N.Y.) and the Radiation Exposure Compensation Program shall not be considered income in determining veterans' payments.

108 CMR 6.01(4)(a)-(e).

Notably absent from this list is any clause allowing other types of income to qualify as "earned or unearned equivalents of income." The list of such income that appears at 108 CMR 6.04 is therefore exclusive.

Pro se representation does not qualify as an earned or unearned equivalent of income, thus, unless it is one of the income types listed at 108 CMR 6.04(a)-(e). There is neither argument nor proof before me that pro se representation is any of these income types. It is beyond genuine dispute here, therefore, that it does not qualify as any of them.

Construing "employment" to mean "employment that generates income" makes it unnecessary to determine whether pro se representation should be regarded as employment for M.G.L. c. 115 benefits-related purposes on any other grounds, including the investment of time that pro se representation requires, the cost and time consumed by lawsuits, or any of the other grounds mentioned in the DVS Decision. It also makes it unnecessary to decide whether persons involved in civil litigation should receive state aid, or whether pro se representation should be regarded as work. Focusing upon income-generation without regard to the activity's social value requires answers to these questions alone: (1) does this activity generate income for Ms. Anderson, and, if so, (2) is this income currently, or does it have a foreseeable prospect of being, "adequate enough" to afford Ms. Anderson "sufficient relief or support"?

d.

Only the first question need be answered here. The record includes no representation by Ms. Anderson, and no proof, that her pro se representation generates income. It is beyond genuine dispute, therefore, that Ms. Anderson's pro se representation does not do so. It is also beyond genuine dispute (as noted above) that Ms. Anderson's pro se representation does not qualify as earned or unearned equivalent of income under 108 CMR 6.04.

I conclude, consequently, that Ms. Anderson's pro se representation is not "employment" under the DVS regulations, and is neither the acceptance of employment nor "good cause" to refuse employment under 108 CMR 7.01(4).

[3] DVS did not oppose this determination on the merits.
[4] Ms. Anderson did not assert inability to seek employment based upon any of the grounds recited at 108 CMR 3.06(1)(b). She asserted, instead, that her self-representation is "employment" in order to demonstrate her eligibility for M.G.L. c. 115 benefits.
[5] The DVS Decision does not cite to a particular 5 edition of Black's Law Dictionary. One of the editions currently in use defines "employment" as:

Act of employing or state of being employed; that which engages or occupies; that which consumes time or attention; also an occupation, profession, trade, post or business (citation omitted). Includes the doing of the work and a reasonable margin of time and space required in passing to and from the place where the work is to be done (citations omitted). Activity in which a person engages or is employed; normally, on a day-to-day basis.

Black's Law Dictionary, 5th ed. (West 1979), at 471.

The same edition defines "pro se" as:

[f]or himself; in his own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court.

Id., at 1099.
[6] See, e.g., Minn 6 esota Department of Human Services, Health Care Programs Manual, at ch. 3: "Eligibility Groups and Bases of Eligibility, Medical Assistance for Employed Persons With Disabilities -Definition of Employment." This document may be found on the web at: http://hcopub.dhs.state.mn.us/03_30_20_05.htm .
[7] This general rule practically mirrors the language of M.G.L. c. 115, § 5, para. 2, which states that "[o]nly such amount shall be paid to or for any veteran or dependent as may be necessary to afford him sufficient relief or support and such benefits shall not be paid to any person who is able to support himself or who is in receipt of income from any source sufficient for his support."

Disposition

I affirm the appealed DVS decision sustaining, pursuant to 108 CMR 7.01(4), the suspension of Ms. Anderson's M.G.L. c. 115 veterans benefits by the City of Boston Veterans Services Department based upon her refusal to accept any kind of employment. This disposition is without prejudice to a reapplication by Ms. Anderson for M.G.L. c.115 benefits that meets the employment related requirements of 108 CMR 7.01 and 7.02.

Notice of Appeal Rights

This is a final agency decision. Pursuant to M.G.L. c. 115, § 2, further review of such decision may be had by any party upon application made to the Governor and Council within ten days after receipt of the decision.

Whether or not an application for further review is made to the Governor and Council, this decision of the Division of Administrative Law Appeals, or the decision of the Governor and Council if an application for further review is made, is subject to judicial review in accordance with the provisions of M.G.L. c. 30A, § 14. Any such appeal must be instituted within thirty (30) days of receipt of such decision, and filed with the Superior Court Department of the Trial Court.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Mark L. Silverstein

Administrative Magistrate

Dated: August 19, 2009


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