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17-P-754                                           Appeals Court

       COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION     vs.
             DEPARTMENT OF ENVIRONMENTAL PROTECTION.


                           No. 17-P-754.

           Suffolk.     March 6, 2018. - June 21, 2018.

            Present:   Green, C.J., Sacks, & Shin, JJ.


Administrative Law, Judicial review, Remand to agency,
     Evidence. Practice, Civil, Review of administrative
     action. Department of Environmental Protection.




     Civil action commenced in the Superior Court Department on
September 24, 2015.

     A motion for leave to present additional evidence was heard
by Peter M. Lauriat, J., and motions to vacate judgment and for
reconsideration were considered by him.


     Seth Schofield, Assistant Attorney General, for the
defendant.
     John MacAulay Allen (William A. Zucker also present) for
the plaintiff.
                                                                     2


     SACKS, J.    This appeal presents the question whether a

court conducting judicial review under G. L. c. 30A, § 14, of an

agency's adjudicatory decision may issue an order of remand to

the agency under § 14(6) 1 that reverses various agency

evidentiary and discovery rulings -- rulings that would

ordinarily be reviewed, along with the remainder of the agency's

decision, under § 14(7).    Here, a Superior Court judge issued

such an order and corresponding judgment, and the agency

appealed.    We conclude that the appeal is properly before us and

that the judge erred in acting under § 14(6); the challenge to

the agency's rulings should instead have been resolved under

§ 14(7).    We also conclude that instead of entering a judgment,

the judge should have retained jurisdiction.    We therefore

vacate the order and judgment and remand to the Superior Court

for further proceedings.




     1   Section 14(6) provides in full:

     "If application is made to the court for leave to present
     additional evidence, and it is shown to the satisfaction of
     the court that the additional evidence is material to the
     issues in the case, and that there was good reason for
     failure to present it in the proceeding before the agency,
     the court may order that the additional evidence be taken
     before the agency upon such conditions as the court deems
     proper. The agency may modify its findings and decision by
     reason of such additional evidence and shall file with the
     reviewing court, to become part of the record, the
     additional evidence, together with any modified or new
     findings or decision."
                                                                   3


     Background.   The plaintiff Commercial Wharf East

Condominium Association (CWECA) is an association of owners of

condominiums located at the landward end of Boston's Commercial

Wharf, but seaward of the historic low water mark, in an area

constituting "Commonwealth tidelands" under G. L. c. 91, § 1.

The defendant Department of Environmental Protection

(department) is charged with administering c. 91, the Waterways

Act, which "generally is viewed as an encapsulation of the

Commonwealth's public trust authority and obligations" regarding

tidelands.   Arno v. Commonwealth, 457 Mass. 434, 454 (2010),

quoting from Fafard v. Conservation Commn. of Barnstable, 432

Mass. 194, 200 n.11 (2000).

     1.   Determination of applicability.   In 2011, an abutting

property owner filed with the department a "request for a

determination of applicability," seeking a ruling that a portion

of CWECA's property was being used for nonwater-dependent

purposes (parking and vehicular access) and that such uses, not

being authorized by statute, were impermissible unless CWECA

obtained a license under c. 91.   In 2012, the department's

waterways regulation program issued a positive determination of

applicability, concluding that the property at issue was subject

to c. 91 and that its current nonwater-dependent uses were

unauthorized.
                                                                     4


     2.   Administrative appeal.   a.   Motion for summary

decision.   CWECA filed an administrative appeal of the

determination and requested an adjudicatory hearing.    CWECA

filed a prehearing statement that listed no disputes of fact,

but only legal issues, as requiring resolution.    CWECA

identified the issues as whether its current use of the area in

question was authorized either by statute, by an existing c. 91

license, or by correspondence in the 1970s between one of

CWECA's predecessors in interest and the State Department of

Public Works (DPW), which had administered c. 91 until 1975.

See St. 1975, c. 706, §§ 123, 312.

     After a prehearing conference, the hearing officer

determined that "[t]he issues appear to be amenable to

resolution by motion for summary decision." 2   In December, 2012,

CWECA filed such a motion, seeking to overturn the positive

determination of applicability.    The department's waterways

regulation program and the abutter opposed the motion, and the

abutter asked that the positive determination be upheld.

     In 2013, the hearing officer issued a recommended decision

concluding that there were no genuine issues of material fact




     2 See 310 Code Mass. Regs. § 1.01(11)(f) (2004). A motion
for summary decision "is the administrative equivalent of a
motion for summary judgment." Zoning Bd. of Appeals of Amesbury
v. Housing Appeals Comm., 457 Mass. 748, 763 (2010).
                                                                     5


and that as a matter of law the positive determination should be

upheld.    See 310 Code Mass. Regs. § 1.01(11)(f) (2004) ("Summary

decision, when appropriate, may be made against the moving

party").    Of particular note, the hearing officer ruled that a

1964 statute relied upon by CWECA 3 had not extinguished public

trust rights in the Commercial Wharf area, as any legislation

doing so must be explicit; that absent such legislation, the

department's c. 91 licensing process provided the mechanism for

protecting public trust rights in tidelands; and that

correspondence of the type cited by CWECA could not satisfy

c. 91.

     b.    Motion to reopen proceeding and take discovery.   While

the recommended decision was awaiting final action by a deputy

commissioner of the department (the commissioner having recused

himself), CWECA filed a "motion to reopen proceeding and take

discovery."    The motion argued that the recommended decision had

revealed disputes of fact as to whether the DPW had authorized

the property uses in question "through license or

correspondence" in the 1970s.    CWECA sought to take discovery




     3 CWECA relied upon St. 1964, c. 663, "An Act Authorizing
the Department of Public Works and the Boston Redevelopment
Authority to Exercise Certain Powers in Regard to Certain
Tidelands along the Atlantic Avenue and Commercial Street
Waterfront in the City of Boston."
                                                                   6


from the department and others to explore the existence of such

documents. 4

     In November, 2014, the hearing officer denied CWECA's

motion, on three grounds. 5   First, the hearing officer ruled that

the motion was procedurally improper, because the recommended

decision had ordered the parties not to move to reargue any part

of that decision now that it was before the deputy commissioner

for final action.

     Second, although a department regulation allowed for a

motion to reopen a hearing to submit "new evidence," the hearing

officer ruled that CWECA had failed to show that "the evidence

to be introduced was not reasonably available for presentation

at the hearing," 310 Code Mass. Regs. § 1.01(14)(e) (2004), nor

had CWECA previously asserted that any material facts were in

dispute.

     Third, the hearing officer ruled that the evidence that

CWECA hoped to discover was legally immaterial.    To the extent

that CWECA hoped to discover a c. 91 license from the 1970s

authorizing the disputed uses, not only had CWECA failed to find




     4 CWECA also asserted that, at the prehearing conference two
years earlier, it had argued that discovery would be necessary,
but that the hearing officer had rejected this argument.

     5 We express no view on the merits of these grounds, or on
the correctness of the positive determination of applicability.
                                                                      7


any evidence of such a license in the department's publicly-

accessible licensing files, but, by law, any c. 91 license not

recorded by the licensee at the registry of deeds within a

specified time after issuance (formerly one year, now sixty

days) would be void.   See G. L. c. 91, § 18.    To the extent that

CWECA hoped to discover correspondence approving the disputed

uses, the existence of such correspondence was "purely

speculative," and in any event such correspondence could not

authorize a particular use of tidelands.   Only an explicit

statute or a c. 91 license could do so.

     c.   Final department action.   At the same time as the

hearing officer denied CWECA's motion to reopen, the

department's deputy commissioner adopted the recommended

decision as the department's final decision.     CWECA's motion for

reconsideration was denied.

     3.   Superior Court proceedings.   CWECA then filed in the

Superior Court a complaint for judicial review, under G. L.

c. 30A, § 14, of the department's decision.     After the

department filed the record of administrative proceedings, see

§ 14(4), CWECA filed what it styled a "motion for leave to

present additional evidence," seeking to reopen the department

hearing to "take discovery that was wrongfully denied CWECA."

As authority for the court to issue such an order, CWECA cited

G. L. c. 30A, § 14(6), which required it to show "that the
                                                                     8


additional evidence is material to the issues in the case, and

that there was good reason for failure to present it in the

proceeding before the agency."   See note 1, supra.

     Over the department's opposition, the judge granted CWECA's

motion.    The judge ruled that a 1972 statute, when read together

with the 1964 statute relied upon by CWECA, 6 "might" have

implicitly dispensed with the need for CWECA's predecessor in

interest to obtain a c. 91 license for the disputed uses.    The

judge thus implicitly rejected -- on a basis that CWECA had not

argued to the department -- the final decision's conclusion

that, because no statute explicitly authorized those disputed

uses, c. 91 required CWECA to obtain a license.

     The judge further ruled that evidence on implementation of

the 1964 and 1972 statutes was "material," and that the

department's denial of CWECA's request for discovery -- which

the department had based in part on its conclusion that the

materials CWECA sought were not material -- constituted "good

reason" for CWECA's failure to present such evidence to the

department.   The judge thus implicitly concluded that the

department's reasons for denying CWECA's request were not good

reasons.   The judge did not mention any deference due to the




     6 The judge cited St. 1972, c. 310, which bore the same
title as the 1964 statute CWECA relied upon. See note 3, supra.
                                                                       9


department's view of the various statutes bearing on materiality

or to the department's procedural rulings.      He ordered the case

remanded to the department for CWECA to conduct discovery.

     A judgment of remand then entered.      The department moved

for reconsideration and to vacate the judgment, arguing that the

remand order was erroneous and that, even if the judge declined

to overturn it, he should in any event vacate the judgment and

retain jurisdiction over the case, as § 14(6) assertedly

required.   The judge denied the motion, and this appeal

followed.

     Discussion.   1.    Appellate jurisdiction.   At the outset we

consider and reject CWECA's argument that the order remanding

the case, being interlocutory in character, was not appealable

by the department.      We conclude that although the order was

interlocutory, 7 the department's appeal "fall[s] within the so

called Cliff House exception" and is therefore proper.      Wrentham

v. West Wrentham Village, LLC, 451 Mass. 511, 515 (2008) (West




     7 We give no weight to the fact that the order was also
memorialized in a document labeled a judgment. As CWECA and the
department agree, a remand under § 14(6) is interlocutory. Cf.
Marlborough Hosp. v. Commissioner of Pub. Welfare, 346 Mass.
737, 738 (1964) ("final decree" remanding matter to agency for
further proceedings was interlocutory; "[t]he title 'final
decree' did not make the decree of remand final in substance").
For clarity, our discussion will refer to the remand order. We
return later to the department's argument that no judgment
should have entered.
                                                                  10


Wrentham Village), citing Cliff House Nursing Home, Inc. v. Rate

Setting Commn., 378 Mass. 189 (1979).

     "Typically a judge's remand order to an agency is not
     subject to appeal. However, the Cliff House exception to
     this rule allows an 'administrative agency [to] appeal[] a
     [judge's] remand order that is final as to the agency.'
     Thus, where a remand order is final as to the agency to
     which the matter is remanded by a judge, the Cliff House
     exception allows that agency to seek immediate appellate
     review because the agency 'cannot logically appeal from its
     own decision on remand.'"

West Wrentham Village, 451 Mass. at 515-516 (citations omitted).

     Under Cliff House, remand orders under § 14(7) have been

held final as to, and thus appealable by, the agency, even

though they did not compel a particular result on the merits, 8

but merely required taking additional evidence, see J.C.

Hillary's v. Massachusetts Commn. Against Discrimination, 27

Mass. App. Ct. 204, 206-207 & n.4 (1989), or related solely to

what the reviewing Superior Court viewed as an agency procedural

or evidentiary error.   See Kelly v. Civil Serv. Commn. 427 Mass.

75, 76 n.4 (1998) (remand to reconsider without reliance on

erroneously admitted evidence); Lincoln v. Personnel

Adminstrator of the Dept. of Personnel Admin., 432 Mass. 208,

210-211 (2000) (remand to follow different procedure); Chief




     8 CWECA observes that in West Wrentham Village, a remand
order was held nonappealable by a local board under Cliff House
because the order left the board discretion about the final
result. See West Wrentham Village, 451 Mass. at 514, 516.
                                                                   11


Justice for Admin. & Mgmt. of the Trial Court v. Massachusetts

Commn. Against Discrimination, 439 Mass. 729, 730 n.5, 734

(2003) (remand for additional findings).   These Supreme Judicial

Court decisions, all cited in West Wrentham Village, 451 Mass.

at 515, show that it is not a prerequisite to the application

of Cliff House that a remand order compel a particular result on

the merits. 9

     Here, the remand order was final as to the department, and

thus immediately appealable, because it rejected two department

rulings in a manner that the department might otherwise never be

able to appeal.   The remand order effectively overruled the

department's conclusions that CWECA's discovery request was

procedurally improper and sought information that was

substantively immaterial.   Had the department proceeded in

accordance with the remand order, there was no assurance that

the matter would ever have returned to the Superior Court or led

to a judgment from which the department could appeal.   The only




     9 Whatever uncertainty there may be about the exact reach of
Cliff House, see n. 8 supra, we choose to apply it and reach the
merits here, particularly because the issue on appeal -- whether
§ 14(6) may be used to challenge agency rulings reviewable under
§ 14(7) -- is an important one that might otherwise escape
appellate review. We do not decide whether a proper § 14(6)
order, which as discussed infra the order here was not, would
necessarily be appealable by the agency under Cliff House.
                                                                     12


sure way for the department to obtain review of the remand order

was to appeal from it directly, as Cliff House permits. 10

     2.    Propriety of action under § 14(6).   We now come to the

question whether, when an agency has rejected a party's request

to consider certain evidence, a judge acting under § 14(6) may

allow the party's motion to remand to the agency to consider

that same evidence, where doing so would effectively overturn

the agency's ruling.   We hold that § 14(6) may not be used in

this manner; instead, such a remand may be sought under § 14(7),

and granted if warranted under the standards of review set forth

therein.    Section 14(6) is not an alternative means of obtaining

review of an agency ruling or decision.   Rather, it is a

mechanism for supplementing the original agency record, in

narrow circumstances, before the court completes its review of

the agency's decision under § 14(7).


     10Finally, we reject CWECA's claim that the department is
judicially estopped from asserting that the remand order is
final as to the department so as to implicate Cliff House.
Although the department filed, in addition to this appeal, an
unsuccessful petition to a single justice, under G. L. c. 231,
§ 118, first par., seeking interlocutory review of the remand
order, the department's filing stated that it might also be
entitled to a full appeal under Cliff House. The department
thus has not "use[d] the judicial process in an inconsistent way
that courts should not tolerate," so as to warrant applying
judicial estoppel. East Cambridge Sav. Bank v. Wheeler, 422
Mass. 621, 623 (1996). See also McMenimen v. Passatempo, 452
Mass. 178, 188 (2008) (party that was unsure whether order was
interlocutory, or was appealable as of right, could both
petition single justice and file notice of appeal).
                                                                  13


     Section 14(7) authorizes the reviewing court to, among

other things, "remand the matter for further proceedings before

the agency" if a party's substantial rights have been prejudiced

because the agency's decision either violates constitutional

provisions, exceeds the agency's statutory authority or

jurisdiction, is based upon an error of law or unlawful

procedure, is unsupported by substantial evidence, or is

arbitrary or capricious, an abuse of discretion, or otherwise

not in accordance with law.   Importantly,

     "[t]he court shall make the foregoing determinations upon
     consideration of the entire record, or such portions of the
     record as may be cited by the parties. The court shall
     give due weight to the experience, technical competence,
     and specialized knowledge of the agency, as well as to the
     discretionary authority conferred upon it."

G. L. c. 30A, § 14(7).   Thus, where an agency denies a party's

request to consider (or permit discovery to obtain) certain

evidence, based on the agency's view that the request is

procedurally improper or that the evidence is legally

immaterial, that party remains free to challenge the agency

ruling on any of the § 14(7) grounds just mentioned.

     Here, for example, CWECA's complaint for judicial review

challenged the department's discovery ruling on multiple

grounds, including that it violated CWECA's procedural rights,

and was premised on legal errors in the department's

interpretation of the c. 91 scheme it is charged with enforcing
                                                                    14


and of other statutes relevant to the public trust in tidelands.

CWECA's § 14(6) motion added a claim that the discovery ruling

was arbitrary, capricious, and an abuse of discretion.   As

CWECA's own motion conceded, all of these claims were reviewable

under § 14(7).

     But the two subsections are not interchangeable

alternatives.    Section 14(6) is, in a sense, a narrow exception

to the rule that "an issue not raised before the [agency] is

deemed waived" on judicial review under § 14(7).    Vaspourakan,

Ltd. v. Alcoholic Bevs. Control Commn., 401 Mass. 347, 354

(1987).   If the party challenging the agency decision has failed

to present material evidence to the agency, but can show "good

reason" for that failure, then § 14(6) allows a remand so that

the agency can take the additional evidence, and supplement its

findings or decision if necessary, before the court undertakes

its review of the final agency decision.   If, on the other hand,

the party has attempted to present the evidence, but was

prevented from doing so by an agency ruling, the party's remedy

is not to seek a remand under § 14(6), but to challenge the

agency ruling under § 14(7).

     Importantly, § 14(7) relief may be granted only after

review of "the entire record" (or those portions cited by the

parties), and only after giving "due weight to the experience,

technical competence, and specialized knowledge of the agency,
                                                                  15


as well as to the discretionary authority conferred upon it."

Such judicial deference is required -- but apparently was not

afforded -- in each of the three areas implicated by the

department's ruling here.

     First, where (as here) the agency's challenged evidentiary

ruling is based on its interpretation of the statutes it

administers, the reviewing court must be mindful that "[w]hile

the 'duty of statutory interpretation is for the courts . . . an

administrative agency's interpretation of a statute within its

charge is accorded weight and deference. . . .   Where the

[agency's] statutory interpretation is reasonable . . . the

court should not supplant [its] judgment' (citations

omitted)." Peterborough Oil Co. v. Department of Envtl.

Protection, 474 Mass. 443, 449 (2016), quoting from Dowling

v. Registrar of Motor Vehicles, 425 Mass. 523, 525 (1997). 11

     Second, "regulation of the administrative discovery process

lies within the sound exercise of the hearing officer's

discretion, just as regulation of the discovery process in

judicial proceedings lies within the sound exercise of judicial




     11This is no less true in the c. 91 context. See Navy Yard
Four Assocs. v. Department of Envtl. Protection, 88 Mass. App.
Ct. 213, 221 (2015) (department's interpretations of c. 91 were
"reasonable and entitled to deference," citing Goldberg v. Board
of Health of Granby, 444 Mass. 627, 633 [2005]).
                                                                   16


discretion."   Augis Corp. v. Massachusetts Commn. Against

Discrimination, 75 Mass. App. Ct. 398, 404–405 (2009).

     Third, where (as here) the evidentiary or discovery ruling

is bound up with matters of agency procedure, "agencies have

broad discretion over procedural matters before them."    Zachs

v. Department of Pub. Util., 406 Mass. 217, 227 (1989).    A

reviewing court should "defer to an agency's procedural

rulings," reviewing them only for error of law or abuse of

discretion, "in particular when the ruling concerns whether to

reopen a proceeding or an administrative record (emphasis

added)."   Brockton Power Co. v. Energy Facilities Siting Bd.,

469 Mass. 215, 219 (2014).

     A party challenging an agency evidentiary or discovery

ruling cannot evade these deferential § 14(7) standards of

review, and thereby disrupt the proper balance of authority

between agencies and courts, by bringing its challenge under

§ 14(6).   It is true that § 14(6) requires a showing "to the

satisfaction of the court" that the proposed additional evidence

is material and that there was good reason for the failure to

present it to the agency, and that § 14(6) allows the court, if

satisfied, to order the additional evidence taken before the

agency "upon such conditions as the court deems proper."     But

this does not imply that a party may elect, by proceeding under

§ 14(6) rather than § 14(7), to have the agency's ruling
                                                                    17


reviewed solely for whether it comports with the court's own

views on the agency's governing statutes and internal

procedures.   To the contrary, it implies that § 14(6) is

addressed only to those situations where, for "good reason," the

agency has not already been presented with and ruled upon the

evidentiary question.    Where there is no relevant agency ruling

for the court to review under deferential § 14(7) standards, the

court's own views necessarily assume heightened importance. 12

     Moreover, where the agency has already ruled on the

evidentiary issue, it would make little sense to permit the

challenging party to use § 14(6) to bifurcate the judicial

review process, by bringing claims of erroneous exclusion of

evidence through a motion under § 14(6), while challenging the

agency's other claimed errors through the well-established

process for judicial review under § 14(7).    See Superior Court

Standing Order 1-96.    All claims of agency error should be

reviewed together, based "upon consideration of the entire




     12We do not suggest that the court acting under § 14(6)
owes any less deference than under § 14(7) to any preexisting
agency interpretations of relevant statutes, agency procedural
rules or practices, and prior agency rulings that may bear on
whether the proposed additional evidence meets § 14(6)
standards. We decide simply that § 14(6) applies only where
there is no agency ruling in the proceeding under review that
addresses the proposed additional evidence at issue.
                                                                   18


record" or the portions cited by the parties. 13   G. L. c. 30A,

§ 14(7).   Such plenary consideration tends to maintain the

required focus both on the substantive review standards of

§ 14(7) and on whether "the substantial rights of any party may

have been prejudiced" by any agency error that occurred.      Ibid.

Piecemeal review, examining some issues under § 14(6) and others

under § 14(7), would lead to an inefficient use of judicial and

agency resources, as well as delay and disruption.

     Established standards of appellate review support this

conclusion.   An appellate court reviewing a Superior Court's

ruling under § 14(7) "is conducting an analysis of the same

agency record, and there is no reason why the view of the

Superior Court should be given any special weight. Both in the

Superior Court and in [the appellate] court the scope of review

is defined by G. L. c. 30A, § 14."    Southern Worcester County.

Regional Vocational Sch. Dist. v. Labor Relations Commn., 377

Mass. 897, 903 (1979) (citations omitted).   See Heineken U.S.A.,

Inc. v. Alcoholic Bevs. Control Commn., 62 Mass. App. Ct. 567,

568 n.3 (2004).   A judge's action under § 14(6), in contrast, is

reviewed for abuse of discretion.    Massachusetts Assn. of

Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266


     13But see G. L. c. 30A, § 14(5) ("in cases of alleged
irregularities in procedure before the agency, not shown in the
record, testimony thereon may be taken in the court").
                                                               19


(2001); Commonwealth v. Roxbury Charter High Pub. Sch., 69 Mass.

App. Ct. 49, 53 (2007).   It would make little sense for a

judge's decision either upholding or rejecting a party's

challenge to an agency evidentiary ruling to be subject to

differing standards of appellate review depending on whether the

judge had ruled under § 14(6) or § 14(7).   Again, the more

logical conclusion is that § 14(6) simply does not authorize

such challenges.

     Thus we think it no coincidence that, in all but one of the

reported decisions concerning motions under § 14(6), there is no

indication that the agency had already ruled on whether to

accept the additional evidence proffered to the reviewing
                                                                   20


court. 14   Even the single exception we have identified 15 tends to

support our conclusion:     a challenge to such an agency ruling

should be made and resolved under § 14(7).

      3.    Retention of jurisdiction under § 14(6).   Finally, even

if the remand order under § 14(6) had been proper, the judge's

declining to retain jurisdiction would still be error.     "The




      14
       See Fanion v. Director of Div. of Employment Security,
391 Mass. 848, 850-852 (1984); Benmosche v. Board of
Registration in Med., 412 Mass. 82, 88 (1992); Massachusetts
Assn. of Minority Law Enforcement Officers, 434 Mass. at 265-
266; Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender
Registry Bd., 452 Mass. 784, 795 (2008); She Enterprises, Inc.
v. State Bldg. Code Appeals Bd., 20 Mass. App. Ct. 271, 272-273
(1985); Northeast Metropolitan Regional Vocational Sch. Dist.
Sch. Comm. v. Massachusetts Commn. Against Discrimination, 35
Mass. App. Ct. 813, 814-815 (1994); Roxbury Charter High Pub.
Sch., 69 Mass. App. Ct. at 52-55. Notably, in the Roxbury
Charter High Pub. Sch. case, we held that a new financial
statement showing a small surplus was not "material" evidence
warranting a § 14(6) remand, "because the hearing officer
expressly anticipated that possibility in his decision, and
stated his view that such a result would not alter his
conclusions concerning the school's prospective financial
viability." Id. at 54.

      15
       See Northeast Metropolitan Regional Vocational Sch. Dist.
Sch. Comm. v. Massachusetts Commn. Against Discrimination, 31
Mass. App. Ct. 84 (1991) (Northeast I), and Northeast
Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v.
Massachusetts Commn. Against Discrimination, 35 Mass. App. Ct.
813 (1994) (Northeast II). As explained in Northeast II, the
Superior Court, after reviewing the agency's decision under
§ 14(7), remanded for the consideration of additional evidence.
But, for reasons unclear from the record, the propriety of that
order was not considered in the original appeal, Northeast I.
See Northeast II, 35 Mass. App. Ct. at 815-816. That and other
unusual circumstances led to the later consideration of a motion
for a remand under § 14(6). Id. at 815-816, 818-819.
                                                                    21


procedure for remand delineated in [§ 14(6)] apparently

contemplates the retention of jurisdiction."    White v. Director

of the Div. of Employment Security, 395 Mass. 635, 639 n.4

(1985).    The text of § 14(6) leaves little room for any other

view. 16   Superior Court Standing Order 1-96, third par., issued

to facilitate the orderly resolution of claims for judicial

review under § 14 and similar statutes, has long provided that

if the court allows a § 14(6) motion, "all further proceedings

shall be stayed until the administrative agency has complied

with the provisions of [§ 14(6)]."    A court ordering a § 14(6)

remand should, rather than entering a judgment, 17 retain

jurisdiction and stay its proceedings during the remand.

      Conclusion.   It was error to rely on § 14(6) to overturn

the department's evidentiary and procedural rulings and remand

to the department for the taking of further evidence.    Such

relief was available, if at all, only under § 14(7).

Accordingly, the order and judgment under § 14(6) are vacated,


      16
       By providing that, after taking additional evidence,
"[t]he agency may modify its findings and decision . . . and
shall file with the reviewing court, to become part of the
record, the additional evidence, together with any modified or
new findings or decision," § 14(6) plainly envisions further
filings and proceedings in the original reviewing court. These
would be unnecessarily cumbersome, if not impossible, unless the
matter remained pending in that court.

      17
       A "judgment" is "the act of the trial court finally
adjudicating the rights of the parties . . . (emphasis added)."
Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974).
                                                             22


and the case is remanded to the Superior Court for further

proceedings.

                                   So ordered.
