LLC v. Commissioner, Department of Public Health (2011)

MEMORANDUM OF DECISION

The defendant, department of public health (DPH) ¹ has moved to dismiss on subject matter jurisdictional grounds an administrative appeal brought by Sanaa Enterprises, LLC (Sanaa) that alleges as follows:  (1) Sanaa, d/b/a Sunshine Food Market, operates a food mart in Meriden, Connecticut;  (2) It was an authorized vendor pursuant to the special supplemental nutrition program for women, infants and children (WIC) vendor agreements;  (3) On or about March 12, 2010, DPH sent a notice of disqualification to Sanaa, alleging non-compliance with the current vendor agreement;  (4) On May 20, 2010, a review and hearing relative to the notice of disqualification was held by DPH;  (5) On June 24, 2010, a DPH hearing officer issued a proposed memorandum affirming the sanctions as set forth in the notice of disqualification, effectively disqualifying Sanaa from the WIC program for three years;  and (6) A reviewer for DPH confirmed the hearing officer's decision on November 5, 2010.   Sanaa alleges that the disqualification violated its present and prior vendor agreements as well as state and federal law.

The DPH has moved to dismiss because under General Statutes § 4–183(a), Sanaa may only appeal from a “final decision” of an agency.²  A “final decision” means “the agency determination in a contested case.” § 4–166(3).   A “contested case” is defined as a proceeding held because a hearing is mandated by state statute or regulation to determine one's legal rights. § 4–166(2).   Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 629 A.2d 367 (1993);  Lewis v. Gaming Policy Board, 224 Conn. 693, 620 A.2d 780 (1993).   The DPH argues that no statute or regulation allows for a hearing concerning a disqualification from the WIC program.

Sanaa argues, in essence, that there is a right to a hearing by regulation.   Sanaa points to WIC regulation § 19a–59c–6(c)(6):  “Notice of review:  Any person aggrieved by an order issued by the state WIC program may request a review of the order by the commissioner.”   In addition, Sanaa refers the court to written materials issued by the DPH to Sanaa:  (1) a letter from the DPH issued with the proposed decision stating that “pursuant to § 4–179,” it may present briefs and oral argument at the review and (2) the WIC vendor agreement entered into by Sanaa that allows for notice and cross-examination at a WIC sanctions proceeding and also requires the DPH to give notice of the right of a court appeal from a final DPH decision.

Thus, the principal issue presented by this case is whether the phrase “request a review” as set forth in DPH regulation § 19a–59c–6(c)(6) establishes the right to a hearing sufficient to create a contested case pursuant to § 4–166(2).³  In Dillon v. Department of Public Health, Superior Court, judicial district of Hartford–New Britain, Docket No. CV 97 0670364 (September 25, 1997, McWeeny, J.), Judge McWeeny set forth an approach to resolve this issue.   In Dillon, a plaintiff appealed under § 19a–229 from a city lead abatement order to the DPH;  the DPH commissioner was to examine into the merits of such case, and may vacate, modify or affirm such order.”   DPH rejected Dillon's appeal and Dillon then proceeded to court under the Uniform Administrative Procedure Act (UAPA).

The DPH moved to dismiss Dillon's appeal for lack of subject matter jurisdiction as the phrase, “examine into the merits” was claimed by the DPH not to provide for a statutorily-required hearing.   In ruling on the motion,

The court has considered the phrase “request a review” in this case and concludes, unlike Dillon, that it does not provide for a “hearing” required by a state regulation.   First, our Supreme Court in Morel v. Commissioner of Public Health, 262 Conn. 222, 236, n. 14, 811 A.2d 1256 (2002) ⁵ finds that the only WIC regulation that provides a hearing for a vendor is § 19a–59c–6(c)(2)(G), allowing a hearing “where a vendor has been disqualified and challenges that disqualification on the ground that it would impose an undue hardship.”   Moreover, in other contexts, the WIC regulations specifically allow a participant in the WIC program or an applicant to the program who is sanctioned to have a hearing.   See §§ 19a–59c–6(a)(1)(D);  19a–59c–6(b)(2)(C).  Thus, taking into account the entire regulatory scheme, it is logical to conclude that the DPH has provided for a “hearing” by regulation with regard to certain groups, but has not provided more than a “review” for a vendor not claiming undue hardship.

Sanaa also relies on a letter sent by a staff member of DPH that it might submit a brief and have oral argument on the proposed DPH decision “pursuant to § 4–179.”   This letter, even if it were based upon WIC regulation § 19a–59c–6(c)(6),⁶ does not provide authorization for a hearing.   Nor does § 4–179 itself meet the requirement of a hearing mandated by statute.   In Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 798, 855 A.2d 174 (2004), the court concluded that under § 4–179 an agency was conducting a “proceeding,” not holding a “hearing.”   See also Rybinski v. State Employees Retirement Commission, 173 Conn. 462, 470, 378 A.2d 547 (1977) (oral argument alone, without adversarial proceeding, does not constitute “hearing”).

Sanaa argues finally that its vendor agreement provided for a trial-type hearing and a right to appeal.   It is clear, however, that this language in the vendor agreement, providing for an adversary hearing and allowing an appeal to the court, was drawn from federal regulations.   Sanaa's reliance on the federal regulations to make a claim that the “request to review” in WIC regulation § 19a–59c–6(c)(6) is a “hearing” was similarly rejected in Morel.  “[T]he legislature has authorized participation in the WIC program in accordance with federal law and regulations.   That authorization merely refers to the requirement of governing federal law in any event, and, as the plaintiff agreed in oral argument before this court, the federal government could at any time amend those regulations to eliminate the requirement for such a hearing.   Under these circumstances, we do not read the broad, general language of § 19a–59c as evidencing the kind of legislative policy choice, informing our UAPA, that lies behind the hearing requirement at issue.”  Morel v. Commissioner of Public Health, supra, 262 Conn. 239.   In addition, our Supreme Court in Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 927 A.2d 793 (2007) followed Morel in rejecting the proposition that federal law might establish a “hearing” for purposes of a “contested case.”  Id., 171.   The Court also pointed out that the amendment to § 4–166(2), adding a regulation-mandated hearing, specifically deleted an initial draft allowing the regulation to be either a state or federal regulation.   Id., 180, n.19. P.A. 04–94 only encompassed state regulations.

Under these circumstances, the “request to review” is not a hearing mandated by a state regulation.   Therefore there is no “contested case” and hence no “final decision” under § 4–183(a).   The court lacks subject matter jurisdiction and the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The commissioner of public health is also a defendant..  FN1. The commissioner of public health is also a defendant.

FN2. Section 4–183(a) states, in relevant part:  “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section.”.  FN2. Section 4–183(a) states, in relevant part:  “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section.”

FN3. Even if the DPH conducted a “hearing,” if it were not a hearing required by statute or regulation, this court lacks subject matter jurisdiction.   See Herman v. Division of Special Revenue, 193 Conn. 379, 389, 477 A.2d 119 (1984) (“the proceeding, lacking the essential element of a right to be heard, remained gratuitous and did not qualify as a hearing in fact held.   Consequently, there was no contested case to which the provisions of the UAPA might apply.”  [Internal quotation marks omitted.] )..  FN3. Even if the DPH conducted a “hearing,” if it were not a hearing required by statute or regulation, this court lacks subject matter jurisdiction.   See Herman v. Division of Special Revenue, 193 Conn. 379, 389, 477 A.2d 119 (1984) (“the proceeding, lacking the essential element of a right to be heard, remained gratuitous and did not qualify as a hearing in fact held.   Consequently, there was no contested case to which the provisions of the UAPA might apply.”  [Internal quotation marks omitted.] ).

FOOTNOTE.  

FN5. Morel held specifically that General Statutes § 19a–59c did not provide for a hearing and therefore the Superior Court lacked subject matter jurisdiction to consider a UAPA appeal..  FN5. Morel held specifically that General Statutes § 19a–59c did not provide for a hearing and therefore the Superior Court lacked subject matter jurisdiction to consider a UAPA appeal.

FN6. The letter was actually sent after the proposed decision was rendered by the DPH hearing officer..  FN6. The letter was actually sent after the proposed decision was rendered by the DPH hearing officer.

Cohn, Henry S., J.