Daniel J. Barufaldi v. City of Dover

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2021-0244

DANIEL J. BARUFALDI

v.

CITY OF DOVER

Argued: January 11, 2022
Opinion Issued: September 9, 2022

Douglas, Leonard & Garvey, P.C., of Concord (Benjamin T. King on the
brief and orally), for the plaintiff.

Joshua M. Wyatt, city attorney, and Jennifer Perez, deputy city attorney,
of Dover (Joshua M. Wyatt and Jennifer Perez on the brief, and Joshua M.
Wyatt orally), for the defendant.

HANTZ MARCONI, J. The plaintiff, Daniel J. Barufaldi, appeals a
decision of the Superior Court (Howard, J.) dismissing his complaint against
the defendant, the City of Dover. The plaintiff asserts that the trial court erred
in concluding that: (1) declaratory judgment was not an available theory of
relief; and (2) the plaintiff was required to exhaust his administrative remedies
prior to filing suit. We affirm.
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The following facts are derived from the plaintiff’s complaint and
accompanying documentation and are assumed to be true for the purposes of
this appeal. See Beane v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010). The
plaintiff was first hired as the Director of Economic Development for the Dover
Business and Industry Development Authority (DBIDA) for a fixed term from
March 2009 through February 2012. As a condition of his employment with
DBIDA, the plaintiff was required to waive participation in the New Hampshire
Retirement System (NHRS). After his initial term of employment expired in
2012, the plaintiff was reappointed for one-year extensions until 2017.

In 2017, the City created a new Director of Economic Development
position and appointed the plaintiff to the position. Prior to executing a new
employment agreement, the plaintiff asked the Dover City Manager if he would
now be eligible to participate in the NHRS. The Dover City Manager informed
the plaintiff that he was not eligible for enrollment in the NHRS because his
employment contract was for “a fixed time period.” Around March 2020, the
plaintiff contacted the NHRS to inquire about his eligibility for enrollment. In
July 2020, the NHRS notified the City that it was obligated to enroll the
plaintiff in the NHRS. The City subsequently enrolled the plaintiff in the NHRS
prospectively.

Thereafter, the plaintiff submitted a “request for cost calculation to
purchase service credit” because of “employer enrollment oversight.”
(Capitalization omitted.) The NHRS administratively reviewed the request and
determined, pursuant to RSA 100-A:3, VI(d)(1), that the plaintiff was partially
at fault for the failure to be enrolled in the NHRS following his appointment in
2017 as Director and, therefore, ineligible to purchase service credit. It also
determined that DBIDA was not an NHRS participating employer and that the
plaintiff’s employment contract with DBIDA waived any right to participate in
the NHRS. In a letter dated August 4, 2020, the NHRS notified the plaintiff of
its determination and informed him that he had 45 days in which to appeal the
administrative decision by requesting a hearing before the agency. See N.H.
Admin. R., Ret 204.01 (any member aggrieved by a decision of the retirement
system under RSA chapter 100-A may request the commencement of an
adjudicative proceeding by filing with the NHRS a written petition no later than
45 days after the date of notice of the decision). The plaintiff did not request
such a hearing but, instead, filed a complaint in superior court.

In his complaint, the plaintiff asked the trial court to determine that he
was eligible for enrollment in the NHRS as early as 2009 and requested that
the court “order the City of Dover to obtain and pay for the actuary’s statement
within the meaning of RSA 100-A:3, VI, to determine the credit for prior
service.” The City moved to dismiss, asserting, inter alia, that declaratory relief
is not available for the plaintiff because: (1) the doctrine of primary jurisdiction

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requires that the issue be decided by the NHRS in the first instance; and (2) the
plaintiff failed to exhaust his administrative remedies. The trial court granted
the City’s motion, finding that: (1) declaratory judgment was not “an available
theory as a matter of law” and, therefore, the plaintiff’s “only potential avenue
for relief [was] a writ of certiorari from the decision of the NHRS”; and (2) the
plaintiff failed to exhaust his administrative remedies. The trial court further
determined that, even if it were to construe the complaint as a request for a
writ of certiorari, the request was not timely filed. The court subsequently
denied the plaintiff’s motion for partial reconsideration.

II

In reviewing an order granting a motion to dismiss, we assume the truth
of the facts as alleged in the plaintiff’s pleadings and construe all reasonable
inferences in the light most favorable to the plaintiff. Beane, 160 N.H. at 711.
The standard of review in considering a motion to dismiss is whether the
plaintiff’s allegations are reasonably susceptible of a construction that would
permit recovery. Id. This threshold inquiry involves testing the facts alleged in
the pleadings against the applicable law. Id. The trial court may also consider
documents attached to the plaintiff’s pleadings, or documents, the authenticity
of which are not disputed by the parties, official public records, or documents
sufficiently referred to in the complaint. Id. We will uphold the granting of the
motion to dismiss if the facts pled do not constitute a basis for legal relief. Id.

The plaintiff asserts that the trial court erred in determining that he was
barred from seeking a declaratory judgment. He argues that declaratory
judgment is the “appropriate vehicle” for his case because it “satisfies all the
requirements for a declaratory judgment proceeding.” (Capitalization and
bolding omitted.) Specifically, he argues that because the question presented
is one of law rather than fact, it is a matter “for a court to decide, not an
agency.”

Here, the plaintiff filed the “request for cost calculation to purchase
service credit” because of “employer enrollment oversight” under RSA 100-A:3,
VI(d)(1). The NHRS denied the plaintiff’s request, finding that he was partially
at fault within the meaning of the statute. Because RSA chapter 100-A does
not provide for judicial review, see RSA ch. 100-A (2013 & Supp. 2021), a writ
of certiorari is the sole remedy available to a party aggrieved by a decision of
the NHRS. Petition of Malisos, 166 N.H. 726, 728 (2014). Such review on a
petition for certiorari is constrained and does not afford a de novo declaration
of rights. See, e.g., Petition of Chase Home for Children, 155 N.H. 528, 532
(2007) (“Our review of an administrative agency’s decision on a petition for
certiorari is limited to determining whether the agency has acted illegally with
respect to jurisdiction, authority or observance of the law or has unsustainably
exercised its discretion or acted arbitrarily, unreasonably or capriciously.”)
Thus, the trial court did not err in determining that “[a] declaratory judgment

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action [was] not an available theory as a matter of law” and that “a writ of
certiorari” was the plaintiff’s “sole remedy.” See Jaskolka v. City of Manchester,
132 N.H. 528, 531 (1989).

Likewise, we conclude that the trial court did not err in determining that,
even if it were to construe the complaint as a request for writ of certiorari, the
request was untimely. The trial court has the discretion to dismiss a petition
for writ of certiorari that is not filed within a reasonable period of time. See
Chauffeurs Local Union No. 633 v. Silver Bro’s, Inc., 122 N.H. 1035, 1037
(1982). A reasonable period of time for filing a request for a writ of certiorari is
determined by the appeal period set forth in a substantively analogous statute
or situation. Wentworth-Douglass Hosp. v. N.H. Dept. of Health & Welfare, 131
N.H. 364, 366 (1988). We have held that the thirty-day time limit imposed by
RSA 541:6 (2021), which governs appeals from State administrative agencies, is
the appropriate guideline for petitions for writ of certiorari from State
administrative decisions. See id. at 366-67; see also Petition of Goffstown
Educ. Support Staff, 150 N.H. 795, 798-99 (2004) (applying the thirty-day
limitations period to a certiorari petition challenging a decision of the
NHRS). The plaintiff in this case filed his complaint approximately three
months after the NHRS decision — well outside of this thirty-day
window. Thus, the trial court did not unsustainably exercise its discretion in
dismissing the complaint as untimely.

Because we affirm the trial court’s conclusion that declaratory judgment
was not an available remedy in this case, we need not address the plaintiff’s
argument that he was not required to exhaust his administrative remedies
prior to bringing such an action. We have reviewed the plaintiff’s remaining
arguments and determine that they are without merit and do not warrant
further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,
concurred.

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