Lead Opinion
(Retired, Specially Assigned).
Maryland Code, § 10-222(a) of the State Government Article (SG), which is part of the State Administrative Procedure Act, provides, generally, that a party aggrieved by the final decision of a covered agency in a contested case is entitled to judicial review. Section 10-222(b) contains an exception to the “final decision” requirement. It permits immediate judicial review of an interlocutory order in certain enumerated circumstances. The issue before us is whether an interlocutory order by an administrative law judge (ALJ) that denied a motion to dismiss the administrative proceeding on the ground of collateral estoppel satisfied those conditions. We shall hold that it did not.
BACKGROUND
Petitioner, Tamara A., is the mother of three young children—Nathaniel, Madeline, and Shirah. In February, 2004, shortly before Shirah was born, Judge Savage of the Circuit Court for Montgomery County, sitting as a juvenile court on a petition filed by respondent, Montgomery County Department of Health and Human Services (DHHS), found Nathaniel and Madeline to be children in need of assistance (CINA). There was a dual basis for the CINA finding as to Nathaniel. In October, 2003, out of anger or frustration, Tamara grabbed and pulled on the child’s arm, fracturing his humerus. Tamara also had a history of subjecting Nathaniel to a substantial number of unnecessary medical visits, apparently from an unreasonable anxiety on her part over the child’s health, which, the evidence showed, was generally good. The court found both the October episode and the unnecessary medical attention to constitute abuse.
The situation with Madeline was different. There was no evidence that she had ever been directly abused or subjected to excessive medical treatment. Nonetheless, relying upon several decisions of the Court of Special Appeals, the juvenile court found that Tamara’s treatment of Nathaniel, coupled with evidence of her untreated depression and anger, put
Shirah was born on April 14, 2004—some two months after the CINA findings with respect to Nathaniel and Madeline. Immediately upon her birth, the child was removed from Tamara’s custody and placed in shelter care, and the next day DHHS filed a petition to have Shirah declared CINA.
At the May 13, 2004, hearing on the CINA petition, before Judge Boynton, DHHS elected to proceed in summary fashion. It presented no evidence other than the record of the proceeding involving Nathaniel and Madeline, of which Judge Boynton took judicial notice. Although Tamara was offered the opportunity to present evidence, she chose not to do so at the adjudicatory phase of the proceeding. After reading the transcripts of the hearings held before Judge Savage five months earlier, Judge Boynton declared that Tamara’s “psychiatric or psychological or personality disorder,” which led to the dual forms of abuse of Nathaniel, still existed. From that, he concluded that “there is a substantial risk that that same manifestation could occur to [Shirah]” and that Tamara was “unable and unwilling to provide for the need of this child.” The judge found that:
“[E]ven though there’s been nothing, no direct harm done to Shirah, no direct action taken against her at this time, I believe that the prior pattern which was caused by the existence of conditions that have not yet been treated or changed, creates a substantial risk of harm to the child.”
At or about the time of the DHHS finding, Tamara noted an appeal from the three CINA determinations, and proceedings before OAH were stayed pending resolution of that appeal. In January, 2005, the Court of Special Appeals affirmed the CINA determinations. See In re Nathaniel A., 160 Md.App. 581,
“[T]he merits of Shirah’s case do not focus on whether there was actual harm to her, but rather, like Madeline’s situation, based on the prior conduct of appellant, whether her newborn child is at a ‘substantial risk of harm,’ which would mandate that the child be removed from the parent [citations omitted]. We must determine whether appellant’s ‘ability to care for the needs of one child is probative of [her] ability to care for other children in the family’ [citation omitted]. The child may be considered ‘neglected’ before actual harm occurs, as long as there is ‘fear of harm’ in the future based on ‘hard evidence’ and not merely a ‘gut reaction’ [citation omitted].”
Id, at 601,
When eventually informed of the appellate decision, OAH lifted the stay and scheduled a hearing for March 22, 2006.
After reviewing the record, the ALJ concluded that, although the parties in the instant proceeding were also parties in the CINA case and that the CINA finding constituted a final judgment with respect to that litigation, thus satisfying two of the elements of collateral estoppel, the facts decided in that litigation were not the same as those presented in the administrative proceeding. She noted that the CINA finding as to Shirah was based solely on the potential for harm inferable from what occurred with respect to Nathaniel, not on any actual neglect of Shirah, but, notwithstanding that the definition of “neglect” for purposes of the instant proceeding was the same as for the CINA case,
Considering itself aggrieved by that ruling. DHHS filed a petition for immediate judicial review in the Circuit Court for Montgomery County. Tamara did not contest DHHS’s right to immediate judicial review of the order—indeed, she conceded that right—but nonetheless moved to dismiss the petition on the ground that the ALJ’s decision was correct and there was no basis for overturning it.
DHHS appealed. In a reported opinion, the Court of Special Appeals concluded (1) that the ALJ’s ruling on the DHHS motion to dismiss satisfied the requirements of SG § 10-222(b) for immediate judicial review, and (2) that the collateral estoppel defense raised by DHHS was valid and that the ALJ erred in not dismissing the proceeding. Montgomery County v. Tamara A., 178 Md.App. 686,
DISCUSSION
The sole issue presented in the petition for certiorari is whether the denial of DHHS’s motion to dismiss was subject to immediate judicial review under SG § 10-222(b). We are not concerned here with whether the ALJ’s decision was correct. Indeed, Tamara’s argument is that the Court of Special Appeals erred in addressing that issue, as it was not properly before either the Circuit Court or the Court of Special Appeals.
(1) The administrative official who entered the order had final decision-making authority;
(2) The party would qualify for judicial review of any related final decision;
(3) The interlocutory order determines rights and liabilities;
(4) The order has immediate legal consequences; and
(5) Postponement of judicial review would result in irreparable harm.
We are not concerned here with the first two requirements. It is undisputed that the ALJ who denied the DHHS motion to dismiss had final decision-making authority -with respect to the administrative proceeding and that DHHS, if aggrieved by it, would qualify for judicial review of any final decision made by the ALJ. Our disagreement with the Court of Special Appeals lies in our conclusion that the last three requirements have not been satisfied.
“The salutary purpose of the finality requirement is to avoid piecemeal actions in the circuit court seeking fragmented advisory opinions with respect to partial or intermediate agency decisions. Not only would a contrary rule create the real prospect of unnecessary litigation, as a party choosing to seek review of an unfavorable interlocutory order might well, if the party waited to the end, be satisfied with the final administrative decision, but the wholesale exercise of judicial authority over intermediate and partial decisions could raise serious separation of powers concerns.”
Driggs Corp.,
In Holiday Spas v. Montgomery County,
Notwithstanding the statutory requirement of a “final decision,” the Court adopted the view of the Court of Special Appeals in that case (Holiday Spas v. Human Relations Comm’n,
“The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow____”
Four years after Holiday Spas, SG § 10-222(b) was enacted as part of an overall revision of the contested case provisions of the Administrative Procedure Act. The Drafter’s Note to § 10-222(b) states that it was intended to codify the Court of Appeals decision in Holiday Spas. See 1993 Md. Laws, ch. 59, at 1037. The section, and, in particular, the last three criteria, must therefore be read in conformance with the narrow window permitted under Holiday Spas.
DHHS maintains that it had a right to rely on the finding of neglect made by the juvenile court in the CINA action and thus to avoid having to relitigate that issue. It acknowledges our holding in Shoemaker v. Smith,
Although Shoemaker v. Smith involved an appeal under the collateral order doctrine, rather than an action for judicial review of an interlocutory administrative order, the case is very much in point, precisely because the rationale for not allowing interlocutory review is the same in both instances. Shoemaker confirmed two earlier holdings—in Bunting v. State,
In Bunting, the Court dismissed an appeal from an order denying a motion to dismiss criminal charges because of a violation of the “single transfer” rule embodied in the Interstate Agreement on Detainers, which the defendant regarded as a right not to be tried, like double jeopardy. In Artis and in Shoemaker we dismissed an appeal from the denial of a motion for summary judgment based on qualified immunity. The sum and substance of our holdings under the collateral order doctrine are that the right to an immediate appeal from an interlocutory order denying a motion to terminate the proceeding, founded on a right to avoid having to litigate the issues raised by the complainant, is a limited one. In the criminal context, it is limited to the defense of double jeopardy, and in the civil context, it is limited, at best, to an immunity that can be resolved as a pure issue of law, without the court having to assume any material facts or inferences that are in dispute. Shoemaker, supra,
*192 “As a general rule, interlocutory trial court orders rejecting defenses of common law sovereign immunity, governmental immunity, public official immunity, statutory immunity, or any other type of immunity, are not appealable under the Maryland collateral order doctrine.”
Although we have not had the occasion to consider, either under the collateral order doctrine or under SG § 10-222(b), whether immediate review will lie from an order denying a motion to terminate a proceeding based on collateral estoppel or res judicata, the U.S. Supreme Court recently decided that issue. In Will v. Hallock,
The action in Will was a Bivens claim against Federal customs agents.
Analogizing the statutory judgment bar emanating from the Tort Claims Act to the defense of res judicata, the Court noted that neither “reflected] a policy that a defendant should be scot free of any liability,” but only the avoidance of duplicative litigation. Id. at 354,
“The judgment bar at issue in this case has no claim to greater importance than the typical defense of claim preclusion, and we hold true to form in deciding what Digital Equipment implied, that an order rejecting the defense of judgment bar under 28 U.S.C. § 2676 cries for no immediate appeal of right as a collateral order.”
Will v. Hallock, supra,
The reasoning in Will is compelling, and we adopt it and the natural conclusion from it. That approach is entirely consistent with the language of SG § 10-222(b) itself, especially
Moreover, we fail to see how postponement of judicial review would cause any irreparable harm to DHHS. Indeed, although the correctness of the ALJ’s decision is not presently before us, the statutory construct itself suggests that an appeal of a finding of indicated child abuse or neglect is not necessarily precluded by a CINA determination. FL § 5-706.1(a) requires DHHS to notify the individual alleged to have abused or neglected a child of its finding and of the opportunity to appeal the finding.
FL § § 5—706.1(b)(3) and (4) require OAH to stay a hearing in such an appeal if either criminal charges based on the alleged abuse or neglect or a CINA proceeding is pending, until any such proceeding is concluded. If the individual is found guilty of criminal charges arising out of the alleged abuse or neglect, OAH must dismiss the administrative appeal. FL § 5—706.1(b)(3)(ii). Conviction, in other words, does act as an absolute statutory bar to further prosecution of the administrative appeal. That is not the case with respect to a CINA proceeding, however. In sharp contrast, § 5-706.1(b)(4)(ii) provides that “[a]fter the conclusion of the CINA case, the [OAH] shall vacate the stay and schedule further proceedings in accordance with this section.”
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AND REMAND THE CASE TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE PETITION FOR JUDICIAL REVIEW AND REMAND THE CASE TO THE OFFICE OF ADMINISTRATIVE HEARINGS FOR FURTHER PROCEEDINGS. COSTS IN THE COURT OF SPECIAL APPEALS AND THIS COURT TO BE PAID BY RESPONDENT.
Concurring opinion by ELDRIDGE, J., which BELL, C.J., BATTAGLIA and J., join.
Notes
. The principle set forth in those Court of Special Appeals decisions, and the underpinning of the CINA finding as to Madeline (and Shirah) in this case, is that, in light of the definition of "neglect” in the CINA law (Maryland Code, § 3-80 l(s) of the Cts. & Jud. Proc. Article), a child who is the subject of a CINA petition "need not have suffered actual harm,” but may be declared CINA if "placed at substantial risk of harm,” and that a child may be found to be at a substantial risk of harm if another child in the family has been harmed. See In re Andrew A.,
. At oral argument before us, DHHS acknowledged that, by reason of the CINA findings regarding Nathaniel and Madeline, Tamara was already listed in the registry. How and when that occurred is not clear.
. See FL § 5-701(s) and compare Cts. & Jud. Proc. Article, § 3-801(s).
. In her motion to dismiss the judicial review action, Tamara agreed that DHHS "has a right to judicial review of the OAH decision in the
. In the Circuit Court, as noted, Tamara conceded that DHHS had a right of immediate judicial review. That issue, which goes to the
"While the failure to invoke and exhaust an administrative remedy does not ordinarily result in a trial court’s being deprived of fundamental jurisdiction, nevertheless, because of the public policy involved, the matter is for some purposes treated like a jurisdictional question. Consequently, issues of primary jurisdiction and exhaustion of administrative remedies will be addressed by this Court sua sponte even though not raised by any party."
Bd. of Ed. for Dorchester Co. v. Hubbard,
. See Bivens v. Six Unknown Fed. Narcotics Agents,
. Digital Equipment was, indeed, a harbinger. The Court there held, unanimously, that a trial court’s grant of the plaintiff’s motion to vacate a voluntary dismissal and rescind a settlement agreement due to misrepresentations by the defendant, which restored the case, was not subject to immediate appeal under the collateral order doctrine. Addressing the same argument made by DHHS here—that the effect of the settlement agreement and voluntary dismissal was a right not to have to stand trial—the Court observed that calling the interest a “right not to stand trial” was of little consequence, as "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ ” Digital Equipment,
"Allowing immediate appeals to vindicate every such right would move [28 U.S.C.] § 1291 [the Federal counterpart to the final judgment requirement in Maryland Code, § 12-301 of the Cts. & Jud. Proc. Article] aside for claims that the district court lacks personal jurisdiction [citations omitted], that the statute of limitations has run [citation omitted], that the movant has been denied his Sixth Amendment right to a speedy trial [citation omitted], that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case.... ” Id. (Emphasis added).
. Regulations of the Social Services Administration of the State Department of Human Resources echo that statutory directive. See COMAR 07.02.26.07.
. The only end product of the administrative proceeding is either entry of Tamara’s name in the central registry, if the finding of indicated neglect is sustained, or modification of the finding and expungement of references to Tamara as responsible for neglect, if the finding is not sustained. To the extent that delay in either result is of concern, we would remind DHHS that, upon notice that the CIÑA case had terminated, OAH scheduled a hearing on the merits for March 22, 2006. Regulations of the Social Services Administration require that a decision by the ALJ be rendered within 45 days after the hearing. See COMAR 07.02.26.14A. Had DHHS not caused that scheduled hearing to be converted to a hearing only on its collateral estoppel defense and then insisted on immediate judicial review when its motion was denied, the case would likely have been resolved on the merits by the middle of May, 2006.
Concurrence Opinion
concurring.
I agree with the Court’s judgment and with its holding set forth in the first paragraph of the opinion. I do not agree, however, with the Court’s equating actions for judicial review of administrative decisions with appeals from trial courts to appellate courts. More specifically, I do not believe that the criteria for allowing interlocutory appeals under the collateral order doctrine are “similar” (majority slip opinion at 8) to the
Prior to the decision in Shell Oil Co. v. Supervisor,
Consequently, in light of the earlier confusion regarding the nature of actions for judicial review of adjudicatory administrative decisions, this Court in recent years has underscored the differences between such actions and appeals from trial courts to appellate courts. For example, in Kim v. Comptroller,
“Both the circuit court and the Comptroller improperly relied upon decisions dealing with the effect of the premature filing of an appeal. Although often misinterpreted to be an appeal, this Court has repeatedly emphasized that an action for judicial review of an administrative decision is an original action. It is not an appeal.”
❖ * *
*197 “Because judicial review is an original action and not an appeal, the Comptroller’s and the circuit court’s reliance on cases dealing with the premature filing of appeals was inappropriate. The time requirements for filing appeals are ordinarily treated as jurisdictional in nature.
“The same cannot be said, however, of a prematurely filed petition for judicial review, because the time requirements for filing a petition for judicial review are not jurisdictional. It is in the nature of a statute of limitations.”
See also, e.g., Kant v. Montgomery County,
In Dorsey v. Bethel A.M.E. Church,
“Courts in some jurisdictions have analogized judicial review of administrative agency decisions to appellate court review of trial court decisions, and have seemed to hold that, if a particular type of trial court decision would be appeal-able to an appellate court, the same type of decision by the highest unit in an administrative agency would be subject to judicial review. See, e.g., Meredith v. Federal Mine Safety and Health Review Commission,177 F.3d 1042 , 1050-1051 (D.C.Cir.1999).
“Such analogy would not be appropriate under Maryland law.”
Section 10-222(a) and (b) of the State Government Article provides in pertinent part as follows:
“ § 10-222. Judicial review.
(a) Review of final decision.—(1) Except as provided in subsection (b) of this section, a party who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision as provided in this section.”
“(b) Review of interlocutory order.—Where the presiding officer has final decision-making authority, a person in a contested case who is aggrieved by an interlocutory order is entitled to judicial review if:
(1) the party would qualify under this section for judicial review of any related final decision;
(2) the interlocutory order:
(i) determines rights and liabilities; and
(ii) has immediate legal consequences; and
*199 (3) postponement of judicial review would result in irreparable harm.”
Section 10—222(b) was first enacted as part of Ch. 59 of the Acts of 1993 which extensively revised the Maryland Administrative Procedure Act. Immediately following the new subsection 10-222(b) in Ch. 59 was the following (1993 Laws of Maryland at 1037):
“DRAFTER’S NOTE: Subsection (b) is intended to codify the Court of Appeals decision in Holiday Spas v. Montgomery County Human Relations Commission,315 Md. 390 ,554 A.2d 1197 (1989).”
Holiday Spas v. Montgomery County,
Section 10-222(b) of the Administrative Procedure Act was “intended to codify the ... decision in Holiday Spas” (1993
Chief Judge BELL and Judge BATTAGLIA join this concurring opinion.
. With regard to the criteria for allowing appeals under the collateral order doctrine, see, e.g., Dawkins v. Baltimore Police,