TAMARA A. v. MONTGOMERY COUNTY DEPT. OF HEALTH AND HUMAN SERVICES.
No. 39 Sept.Term, 2008.
Court of Appeals of Maryland.
Jan. 14, 2009.
963 A.2d 773
Sandra Barnes, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.
ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, JJ, and JOHN C. ELDRIDGE (Retired, Specially Assigned), IRMA S. RAKER (Retired, Specially Assigned) and ALAN M. WILNER (Retired, Specially Assigned), JJ.
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, 864 A.2d 1066 (2005), cert. denied, 386 Md. 181, 872 A.2d 47 (2005). With respect to Shirah, the Court of Special Appeals concluded:
“[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].”
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,3 she found that entry into the registry had to be based on some actual abuse or neglect, not merely the potential for it. Upon that analysis, the ALJ denied the motion.
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.4 The court agreed with
Tamara, but instead of dismissing the petition, it affirmed the ruling, which had the same effect of placing the matter back before the ALJ to resolve the merits of Tamara‘s challenge.
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
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
- The administrative official who entered the order had final decision-making authority;
- The party would qualify for judicial review of any related final decision;
- The interlocutory order determines rights and liabilities;
- The order has immediate legal consequences; and
- 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., 348 Md. at 407, 704 A.2d at 443.
In Holiday Spas v. Montgomery County, 315 Md. 390, 554 A.2d 1197 (1989), this Court recognized a very limited exception to the finality requirement with respect to judicial review of an administrative agency order. The law then applicable to the case, which emanated from Montgomery County and did not involve the State Administrative Procedure Act, permitted a person aggrieved by the final decision in a contested case to seek judicial review. There was no counterpart in the county law (or, at the time, in the State APA) to current SG § 10-
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, 70 Md.App. 344, 521 A.2d 340 (1987)) and a number of Federal courts that a form of finality can attach to an agency order that imposes on a party an immediate impact similar to that of an injunction, even if that order does not terminate the administrative proceeding. The Court quoted favorably from Isbrandtsen Co. v. United States, 211 F.2d 51, 55 (D.C.Cir.), cert. denied, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954):
“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
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, 353 Md. 143, 169–70, 725 A.2d 549, (1999) that “the idea that an issue is not effectively reviewable after the termination of trial because it involves a ‘right’ to avoid the trial itself, should be limited to double jeopardy claims and a very few other extraordinary situations,” but urges that its collateral estoppel defense is the equivalent of a double jeopardy claim or other “extraordinary situation.” We disagree.
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, 312 Md. 472, 480, 540 A.2d 805, 808 (1988) and in Artis v. Cyphers, 100 Md.App. 633, 642, 642 A.2d 298 (1994), affirmed for reasons stated by Court of Special Appeals in Artis v. Cyphers, 336 Md. 561, 649 A.2d 838 (1994).
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, 353 Md. at 170, 725 A.2d at 563. Indeed, in Dawkins v. Baltimore Police Dept., 376 Md. 53, 65, 827 A.2d 115, 122 (2003), we held that:
“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
The action in Will was a Bivens claim6 against Federal customs agents. The plaintiffs previously filed a claim against the Government under the Federal Tort Claims Act based largely on the same facts, and, when the court dismissed that action on the ground that the agents’ activities fell within an exception to the Tort Claims Act‘s waiver of sovereign immunity, the defendant agents moved to dismiss the Bivens action. The District Court denied the motion, the agents appealed, and the U.S. Court of Appeals affirmed. The Supreme Court vacated the appellate judgment, concluding that the District Court order was not subject to immediate appeal.
Analogizing the statutory judgment bar emanating from the Tort Claims Act to the defense of res judicata, the Court noted that neither “reflect[ed] a policy that a defendant should be scot free of any liability,” but only the avoidance of duplicative litigation. Id. at 354, 126 S.Ct. at 960, 163 L.Ed.2d
“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, 546 U.S. at 355, 126 S.Ct. at 960–61, 163 L.Ed.2d at 848.7
Notes
“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, 305 Md. 774, 787, 506 A.2d 625, 631 (1986). See also Furnitureland v. Comptroller, 364 Md. 126, 132, 771 A.2d 1061, 1065 (2001).
“Allowing immediate appeals to vindicate every such right would move [
28 U.S.C.] § 1291 [the Federal counterpart to the final judgment requirement inMaryland 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).
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
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.
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.
ELDRIDGE, Judge, 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, 276 Md. 36, 343 A.2d 521 (1975), both this Court‘s opinions and numerous statutes regularly treated circuit court actions for judicial review of adjudicatory administrative decisions as “appeals,” and some cases erroneously applied the same principles to such actions as were applied to appeals from courts of limited jurisdiction to circuit courts. See the discussions in Board of License Commissioners v. Corridor, 361 Md. 403, 412-415, 761 A.2d 916, 920-921 (2000); Colao v. County Council, 346 Md. 342, 359-364, 697 A.2d 96, 104-107 (1997); Gisriel v. Ocean City Elections Board of Sup‘rs, 345 Md. 477, 493-496, 693 A.2d 757, 765-767 (1997), cert. denied, 522 U.S. 1053, 118 S.Ct. 702, 139 L.Ed.2d 645 (1998).
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, 350 Md. 527, 714 A.2d 176 (1998), where the circuit court and one of the parties had treated the period of limitations for bringing a judicial review action the same as the jurisdictional time limit for taking an appeal from a trial court to an appellate court, we stated (350 Md. at 534-536, 714 A.2d at 179-180, emphasis in original):
“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.”
***
“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, 365 Md. 269, 274, 778 A.2d 384, 386-387 (2001); Board of License Commissioners v. Corridor, supra, 361 Md. at 413-415, 761 A.2d at 921-922; Prince George‘s County v. Beretta, 358 Md. 166, 169, 747 A.2d 647, 648 (2000); Colao v. County Council, supra, 346 Md. at 359-364, 697 A.2d at 104-107; Gisriel v. Ocean City Elections Board, supra, 345 Md. at 493-496, 693 A.2d at 765-767.
In Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 825 A.2d 388 (2003), this Court held that a decision by the highest administrative body (a county Board of Appeals), remanding the case to a lower administrative body, was not subject to judicial review because there was no final administrative decision. Specifically addressing the analogy to appeals from trial courts, we stated (Dorsey, 375 Md. at 77 n. 3, 825 A.2d at 398 n. 3):
“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 appealable 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:
Ӥ 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.”
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“(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
(3) postponement of judicial review would result in irreparable harm.”
“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, 315 Md. 390, 554 A.2d 1197 (1989), was an action for judicial review, under the Montgomery County Code, of an order by the Montgomery County Commission on Human Relations. The Commission found that Holiday Spas had engaged in unlawful gender discrimination, and the Commission required Holiday Spas “to post immediately” a certain “notice in its facilities,” to change within 10 days the nature of its business to cure some aspects of the alleged gender discrimination, and later to submit to the Commission a plan “detailing its method of compliance.” Holiday Spas v. Montgomery County, supra, 315 Md. at 394, 554 A.2d at 1199. The Commission‘s order was not actually final, however, because the Commission postponed the matter of damages which several complainants sought to recover from Holiday. While pointing out that, generally, “an action for judicial review of an administrative order will lie only if the administrative order is final,” this Court held that the Commission‘s order should be “deemed final for purposes of judicial review because it operates like an injunction and will result in irreparable injury.” Holiday Spas, 315 Md. at 395, 401, 554 A.2d at 1199, 1202. The Court emphasized that the “order did not merely determine liability but, in addition, required Holiday ... to alter its practices almost at once.” Holiday Spas, 315 Md. at 399, 554 A.2d at 1201.
Chief Judge BELL and Judge BATTAGLIA join this concurring opinion.