COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS

Suffolk, ss.

Mary Fitzgibbons,

Petitioner,

v. Docket No. CR-08-768

Public Employee Retirement Administration
Commission,

Respondent.

Appearance for Petitioner:

Mary D. Fitzgibbons, Pro Se

106 Pleasant View Street
Methuen, MA 01844

Appearance for Respondent:

None

Administrative Magistrate:

Richard C. Heidlage, Esq.

ORDER OF DISMISSAL

Pursuant to G.L.c.32, §16(4), the Petitioner, on December 3, 2008, filed a notice of appeal of the Respondent-assigned medical panel finding in 2002 that she is not disabled for purposes of either section 6 or 7 of Chapter 32. M.G.L. c. 32, § 16(4) provides that any person who is aggrieved by any action or decision taken by a retirement board or PERAC "may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action or decision of the retirement board or the commission . . . ." Ms. Fitzgibbons, in her letter of appeal, acknowledges that the appeal is filed more than fifteen days after the action appealed from, but notes that she "had to wait all these years for a trial" in which a jury had found that she is disabled for purposes of a handicap discrimination claim.

The Contributory Retirement Appeal Board, and therefore this Division, does not have the authority to waive the appeal period set out in §16(4). The fifteen-day appeal period is jurisdictional in nature, and if an appeal is not timely filed, neither CRAB nor DALA has jurisdiction to hear the appeal. See Flynn v. Contributory Retirement Appeal Bd., 17 Mass.App.Ct. 668, 669, 461 N.E.2d 1225 (1984)("the thirty-day limitation upon the filing of actions seeking review of administrative agency action is jurisdictional in nature and, hence, not susceptible to extension except in the limited fashion provided for in § 14[1]"); Herrick v. Essex Regional Retirement Bd., 68 Mass.App.Ct. 187, 189-190, 861 N.E.2d 32, 35 (Mass.App.Ct. 2007). When there is a lack of jurisdiction, "waiver or consent cannot confer it." Second Bank-State St. Trust Co. v. Linsley, 341 Mass. 113, 116, 167 N.E.2d 624 (1960); Flynn v. Contributory Retirement Appeal Bd., 17 Mass.App.Ct. at 670, 461 N.E.2d at 1227.

Even if this were not true, this matter would be barred for another independent reason. This same matter was before this Division and the Contributory Retirement Appeal Board in the case of Mary Fitzgibbons v. Teachers' Retirement Board, CR-03-812 (DALA 2005), aff'd (CRAB 2006). In that decision, after a full evidentiary hearing, we affirmed the decision of the Teachers' Retirement Board denying Ms. Fitzgibbons' application for Section 7 accidental disability retirement benefits on the basis that Ms. Fitzgibbons had not established that the medical panel's negative certification was the result of the application of an improper standard. That decision and conclusion are final and binding on Ms. Fitzgibbons and she is not permitted to raise the matter again in a separate appeal, this time naming PERAC as the respondent. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843-844, 832 N.E.2d 628 (2005)(doctrine of issue preclusion or collateral estoppel applies where (1) there has been a final judgment on the merits; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication, and essential to the earlier judgment).

Because there can be no dispute that this matter was not timely filed and because the petitioner would be precluded from raising the issues that underlie her appeal again in any event, the appeal is hereby DISMISSED.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

/s/ Richard C. Heidlage


First Administrative Magistrate

DATED: March 13, 2009