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17-P-330                                            Appeals Court

      JESSICA DiGIULIO vs. DIRECTOR OF THE DEPARTMENT OF
                    UNEMPLOYMENT ASSISTANCE.


                            No. 17-P-330.

       Suffolk.        December 7, 2017. - October 24, 2018.

            Present:     Agnes, Blake, & McDonough, JJ.


Employment Security, Eligibility for benefits, Voluntary
     unemployment, Good cause. Statute, Construction.


     Civil action commenced in the Chelsea Division of the
District Court Department on December 21, 2015.

    The case was heard by Benjamin C. Barnes, J.


     David A. Guberman, Special Assistant Attorney General
(Carolyn E. Hunt also present) for the defendant.
     Doreen M. Zankowski for the plaintiff.


    AGNES, J.     The sole question before us is whether the

plaintiff, Jessica DiGiulio, is entitled to unemployment

benefits after leaving her employment in Massachusetts to

relocate to Puerto Rico with her husband, a special agent with

the Drug Enforcement Administration (DEA), who was transferred

to work on the island.    We conclude that the twelfth paragraph
                                                                      2


of G. L. c. 151A, § 25 (e), controls the outcome of this case

and precludes DiGiulio from receiving unemployment benefits.     We

therefore reverse the judgment issued by the District Court

judge.

     Background.    The essential facts are not in dispute.

DiGiulio worked full time as a registered nurse for Ideal Image

of Massachusetts beginning in May, 2014.    Her husband works as a

special agent for the DEA.     In April, 2015, DiGiulio's husband

was notified by the DEA that he would be transferred to Puerto

Rico in July, 2015, for a period of at least three years.

DiGiulio subsequently informed her manager that she intended to

resign from her position in August, 2015, due to her husband's

relocation.   Her husband moved to Puerto Rico and began his

assignment on July 27, 2015.    DiGiulio's last day of work was on

August 26, 2015.    She remained in Massachusetts for

approximately one month before joining her husband in Puerto

Rico.

     DiGiulio filed a claim for unemployment compensation with

the Department of Unemployment Assistance (department) in

September, 2015.    In paperwork DiGiulio submitted to the

department, she explained that she could no longer continue

working at her job due to her "[h]usband's job relocating us to

[P]uerto [R]ico."   The department issued a notice of

disqualification on September 25, 2015.     On September 30, 2015,
                                                                     3


DiGiulio requested a hearing on the matter, and a telephonic

hearing was conducted before a department review examiner on

October 20, 2015.     The review examiner concluded that DiGiulio

was disqualified from receiving unemployment compensation on the

basis that she left her employment to relocate with her husband

to Puerto Rico.     DiGiulio appealed the decision of the review

examiner to the department's board of review (board), which

denied review and thereby adopted the review examiner's

decision.    See G. L. c. 151A, § 41 (c).   Thereafter, DiGiulio

filed a complaint for review in the District Court.     The judge

ultimately vacated the decision of the board and ordered the

department "to pay [DiGiulio] her unemployment compensation, if

she is otherwise eligible."     The judgment was stayed pending

final disposition of the department's appeal, which is now

before us.

    Discussion.      We review the board's decision based on the

standards set forth in G. L. c. 30A, § 14 (7).     See G. L.

c. 151A, § 42.    "The agency's decision may only be set aside if

the court determines that the decision is unsupported by

substantial evidence or is arbitrary or capricious, an abuse of

discretion, or not in accordance with law."     Coverall N. Am.,

Inc. v. Commissioner of the Div. of Unemployment Assistance, 447

Mass. 852, 857 (2006).     "[W]here an agency determination is

based on a question of law, we review the matter de novo."        Cape
                                                                   4


Cod Collaborative v. Director of the Dep't of Unemployment

Assistance, 91 Mass. App. Ct. 436, 440 (2017).

    General Laws c. 151A, § 25, sets forth a number of

circumstances under which a claimant may be disqualified from

receiving unemployment benefits.    Subsection (e) of G. L.

c. 151A, § 25, has been amended numerous times since it was

first enacted in 1941.     The first paragraph of G. L. c. 151A,

§ 25 (e), provides that a claimant may be barred from receiving

unemployment benefits where she leaves her employment

"voluntarily unless the employee establishes by substantial and

credible evidence that [s]he had good cause for leaving

attributable to the employing unit or its agent."      The third

paragraph of § 25 (e) (paragraph three), however, goes on to

provide that "[a]n individual shall not be disqualified from

receiving benefits under the provisions of this subsection, if

such individual establishes to the satisfaction of the

commissioner that his reasons for leaving were for such an

urgent, compelling and necessitous nature as to make his

separation involuntary."    G. L. c. 151A, § 25 (e).   There are

decisions of both this court and the Supreme Judicial Court

recognizing that a claimant's personal circumstances, including

relocating with one's spouse or partner to another locality, may

constitute such "urgent, compelling and necessitous" reasons for

leaving gainful employment so as to render the claimant's
                                                                     5


"separation involuntary."    Id.   See Norfolk County Retirement

Sys. v. Director of the Dep't of Labor & Workforce Dev., 66

Mass. App. Ct. 759, 765 (2006), and cases cited.     Indeed, in

Director of the Div. of Employment Sec. v. Fingerman, 378 Mass.

461, 462, 464 (1979), the Supreme Judicial Court held that the

board properly awarded unemployment benefits to a claimant who

left her job to move with her husband after he secured

employment in California.    Similarly, in Reep v. Commissioner of

the Dep't of Employment & Training, 412 Mass. 845, 852 (1992),

the court concluded that a claimant who left her job in order to

relocate with her partner to another part of the State was

entitled to receive unemployment benefits.

    However, the same year that Reep was decided, the

Legislature again amended G. L. c. 151A, § 25 (e), see St. 1992,

c. 26, § 20, by adding the following final paragraph (paragraph

twelve) to subsection (e):

    "Notwithstanding the provisions of this subsection, no
    waiting period shall be allowed and no benefits shall be
    paid to an individual under this chapter for the period of
    unemployment next ensuing and until the individual has had
    at least eight weeks of work and in each of said weeks has
    earned an amount equivalent to or in excess of the
    individual's weekly benefit amount after having left work
                                                                   6


     to accompany or join one's spouse or another person at a
     new locality."1,2

The department argues that the enactment of paragraph twelve

renders paragraph three inoperative if the sole basis of a

claimant's request for unemployment benefits stems from his or

her leaving a job to relocate with a spouse or partner.    We

agree.

     We review questions of statutory interpretation de novo,

giving substantial deference to an agency's reasonable

interpretation of legislative edicts existing within a complex

statutory scheme that it is tasked with enforcing.   See Attorney

Gen. v. Commissioner of Ins., 450 Mass. 311, 319 (2008).   "It is

elementary that the meaning of a statute must, in the first

instance, be sought in the language in which the act is framed,

and if that is plain, . . . the sole function of the courts is

to enforce it according to its terms."   James J. Welch & Co. v.

Deputy Comm'r of Capital Planning & Operations, 387 Mass. 662,

666 (1982), quoting Caminetti v. United States, 242 U.S. 470,




     1 Section 20 of St. 1992, c. 26, was enacted on April 27,
1992, and took effect that same day. The court's decision in
Reep issued on June 11, 1992, and involved events that occurred
prior to the amendment of the statute.

     2 The above quoted statutory provisions requiring a claimant
to earn a wage equal to or greater than his or her weekly
unemployment benefit amount for a period of at least eight weeks
as a precondition to receiving unemployment benefits is not at
issue in the present appeal.
                                                                     7


485 (1917).    The Legislature's use of the words

"[n]otwithstanding the provisions of this subsection" in

paragraph twelve "clearly signals the drafter's intention that

the provisions of the 'notwithstanding' section override

conflicting provisions of any other section."       Attorney Gen.,

supra, quoting Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18

(1993).

     Prior to the Legislature's enactment of paragraph twelve in

1992, a claimant was entitled to obtain unemployment benefits

after leaving a job to follow a spouse to another locality.

See, e.g., Fingerman, 378 Mass. at 464.    However, by adding

paragraph twelve to § 25 (e) in 1992, including the language

"[n]otwithstanding the provisions of this subsection," the

Legislature made a clear statement that the limiting language in

paragraph twelve prevailed over any other conflicting language

within § 25 (e), including the language contained in paragraph

three.    To conclude otherwise would require that we "ascrib[e]

no meaning to the 'notwithstanding' language" set forth in

paragraph twelve.    Attorney Gen., supra at 320.    See G. L. c. 4,

§ 6, Third.3   This result would contravene the most fundamental




     3 "Words and phrases shall be construed according to the
common and approved usage of the language; but technical words
and phrases and such others as may have acquired a peculiar and
appropriate meaning in law shall be construed and understood
according to such meaning." G. L. c. 4, § 6, Third.
                                                                    8


tenet of statutory interpretation:    a "statute is to be

construed as written, in keeping with its plain meaning."    Stop

& Shop Supermkt. Co. v. Urstadt Biddle Props., Inc., 433 Mass.

285, 289 (2001).    Thus, regardless of whether leaving a job to

follow a spouse or partner to another locality was at one time

considered an "urgent, compelling and necessitous" reason for

leaving gainful employment under paragraph three, since the 1992

amendment inserting paragraph twelve the statute has explicitly

prohibited a claimant from receiving unemployment benefits

"after having left work to accompany or join one’s spouse or

another person at a new locality."

    While we recognize that G. L. c. 151A is to "be construed

liberally in aid of its purpose, which purpose is to lighten the

burden which now falls on the unemployed worker and his family,"

G. L. c. 151A, § 74, we cannot ignore a clear legislative

mandate.   Moreover, it is not for us to "comment on the wisdom

of legislative enactments."    Administrative Justice of the Hous.

Court Dep't v. Commissioner of Admin., 391 Mass. 198, 205

(1984).    Because DiGiulio's only articulated basis for leaving

work was to accompany her husband to Puerto Rico, she is not

entitled to unemployment benefits, based on the statutory
                                                                9


language set forth in paragraph twelve of G. L. c. 151A,

§ 25 (e).4

     The judgment is reversed, and a new judgment shall enter

affirming the decision of the board.

                                   So ordered.




     4 DiGiulio further argues that she is entitled to benefits
based on § 1212(F) of the department's "Service Representatives
Handbook," which was in effect at the time she applied for
unemployment benefits. This provision has since been rescinded
by the department. We need not decide whether the department
had the authority to issue such subregulatory guidance because
DiGiulio would not be eligible for unemployment benefits even if
§ 1212(F) were applicable. Section 1212(F) provided that the
spouse of a serving member in the armed forces was entitled to
obtain unemployment benefits after resigning his or her
employment in the event the claimant's spouse was involuntarily
transferred to a new duty station. Here, DiGiulio's husband is
an agent of the DEA and thus does not qualify as a serving
member in the armed forces. See G. L. c. 4, § 7 ("'Armed
forces' shall include army, navy, marine corps, air force and
coast guard"). See also 10 U.S.C. § 101(a)(4) (2012) ("The term
'armed forces' means the Army, Navy, Air Force, Marine Corps,
and Coast Guard").
