THE COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF TRANSPORTATION
MITT ROMNEY
GOVERNOR
/t
KERRY HEAl.E¥
LIEUTENANT GOVERNOR
JOHN COGLIANO
SECRETARY
To:
Through:
From:
,J
Secretary John Cogliano, EOT
Commissioner Luisa Paiewonsky, MHD
1 .J\' I)J
Stephen H. Clark, Administrative Law JUd~ V' Date:
May 25, 2006
Re:
Report and Recommendation .
I am pleased to submit for your consideration and approval the attached report
and recommendation.
The pending administrative appeals of Modern Continental
Construction, Inc. (MCC) arising from MHD contract #31157
should be dismissed because MCC has f"ded an action against
the Massachusetts Highway Department in Superior Court,
SUCV No. 04-4837F. The subject matter of the claims pending
in this office and the subject matter of the claims asserted by
MCC in court are virtually identical. The Attorney General
has the exclusive constitutional and statutory authority to
conduct the defense of suits brought against the Department.
Accordingly, all MCC's pending appeals in this office should
be dismissed.
TELEPHONE:
TEN PARK PLAZA, BOSTON, MA 02116-3969
(617) 973-7000 • TELEFAX: (617) 523-6454 • TOO: (617) 973-7306 • WWW.MASS.Gov/EOT
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INTRODUCTION
Modern Continental Construction, Inc. (MCC) filed one or more statements of
claim in the office of the Administrative Law Judge (ALJ) in 2002, 2003 and 2004 to
appeal denials of claims brought before the Department’s claims committee arising from
MHD contract #31157 (Contract). The appeals all related to the construction of the
Brightman Street Bridge (Bridge) in Fall River. Because MCC has filed a civil action
against the Department in the superior court, I recommend that, in accordance with its
standard practice, the Department forthwith dismiss all MCC’s identical appeals here.
MCC’s appeals all stem from claims it filed in the form of MCC “change
proposals” (C. P.’s) seeking equitable adjustments in the Contract price pursuant to G.L.
c.30, s. 39N due to changed conditions MCC claims it encountered in the work.
Specifically, MCC’s changed conditions claims related to (a) boring work on the East
pier (C.P. #16), (b) work affected by the change in stability of shaft 17W on the West pier
(C.P. #8), and (c) altered soil conditions on shaft W1 on the East Pier (C. P. #5). Other
MCC claims were denied by the claims committee and were duly appealed to this office.
The additional appeals, which also arose from the Brightman Street Bridge project, were
set forth by MCC in C. P.’s #6, #10 and #11.
MCC filed its civil action on November 3, 2004. See SUCV No. 04-4837F.
MCC’s complaint alleged, inter alia, damages “in excess of $16,127,669.00” for failure
of the Department to allow equitable adjustments under G..L. c.30, s. 39N due to the
changed condition MCC had specified in its appeal to this office (C. P. #16). On June 15,
2005 the Department, through the office of the Attorney General, filed an answer and
counterclaim in that action. In March 2006 MCC amended its complaint to add certain
claims that were originally denied by the claims committee and appealed to this office.
The subject matters of the claims made by MCC’s amended complaint in superior court
and of its appeals filed in this office are essentially identical with MCC’s claims
originally brought by MCC in C. P.’s #5, #8, #10, #11, #25 and #27.
DISCUSSION
Because MCC’s amended action in SUCV No. 04-4837F is in all material aspects
duplicative of the appeals pending in this office, 1 I recommend that all MCC’s appeals in
this office be dismissed to avoid any possible interference with the Attorney General’s
management of the underlying litigation. Actions of the Department in defending MCC’s
six administrative appeal will conflict, or have the potential to conflict, with the
constitutional or statutory functions of the Attorney General. As a matter of policy, this
office should not hear, consider or decide appeals that may affect the defense of identical
or related actions defended by the Attorney General in court.
The Department of the Attorney General represents the departments of the
Commonwealth—including the Massachusetts Highway Department—when an action is
filed in court. The Attorney General has exclusive jurisdiction to appear for the
Department “in all suits … in which the commonwealth is a party or interested, or in
which the official acts and doings of said [Department] … are called in question, in all
the courts of the commonwealth …. All such suits and proceedings shall be prosecuted
or defended by him or under his direction.” G.L. c. 12, s. 3. This obligation has been
construed to mean that, once a lawsuit has been filed against the Commonwealth, the
Attorney General has exclusive control over the matter in litigation. See Attorney
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In its lawsuit MCC has apparently abandoned its claim relating to C. P. #6 and added claims related to C.
P.’s #25 and #27, which were not appealed to this office.
2
General v. Depart. of Public Utilities, 342 Mass. 662 (1961). In addition, only the
Attorney General has the power to compromise or settle civil proceedings in which a
department of the Commonwealth was a party or interested. See 6 Op. Atty. Gen. 1921,
p.169. See also Feeney v. Commonwealth, 373 Mass. 359 (1977) (in the exercise of his
statutory and Constitutional powers, the Attorney General assumes primary control over
the conduct of litigation that involves the interests of the Commonwealth, and in so doing
he decides matters of legal policy normally reserved to a client in the ordinary attorneyclient relationship).
The full exercise of the Attorney General’s powers means that the Department,
through proceedings before its Administrative Law Judge, should refrain from any action
that could even potentially interfere with the Attorney General’s conduct of identical or
closely related litigation. A hearing or disposition of any of MCC’s administrative
appeals pending in this office has the potential of conflicting with the exclusive statutory
and constitutional authority of the Attorney General to conduct MCC’s claims asserted in
SUCV2004-4837F.
Practitioners before the office of the administrative law judge understand that the
filing of a court action results in the immediate dismissal of related administrative
appeals pending in this office. The report of the “20th Annual Conference on
Massachusetts Construction Law” states (at page III-5):
It should be noted further that wherever a claim is asserted in a court action, the
MHD Hearing Officer … will refuse to entertain such claim. Accordingly, no
action can be brought in court on any claim which is pending before the MHD
Hearing Officer or it will be immediately be dismissed by the MHD Hearing
Officer.
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MCC, by filing suit against the Department concerning Contract #31157, elected
to pursue all its claims in court and forego any possible administrative remedy under the
Contract. See Subsection 7.16. Because the Attorney General has exclusive control over
the MCC litigation arising from Contract #31157, all MCC administrative appeals
pending in this office should be dismissed forthwith.
RECOMMENDATION
The Commissioner should dismiss all pending appeals in this office arising under
Contract #31157.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: May 25, 2006
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