Who’s the appellant, what’s the appellee, and I don’t know if we have jurisdiction.

By Brad McCullough

The Court of Special Appeals recently issued an opinion that calls to mind the famous Abbott and Costello comedy routine, “Who’s on First.”

Writing for the Court, an exasperated Retired Judge Charles E. Moylan, Jr. asked who was the appellant, who was the appellee, what was being appealed, and whether there was an appealable decision. Judge Moylan said, “the Court feels as if it were stranded in a hall of mirrors,” and he analogized the situation to an athletic contest where the participants abruptly changed sides during the course of the event: “The players, without any formal notification to the referees, seem to be switching teams in the middle of the game.” Anne Arundel Cnty. v. Rode, No. 0809 Sept. Term 2012, 2013 WL 5903682, slip op. at 1 (Md. Ct. Spec. App. Nov. 4, 2013). After pondering whether a co-defendant could appeal “from a tactical decision made by another co-defendant,” the court concluded that it need not solve that puzzle because the case did not present an appealable final judgment. Id. at 3.

The case began when Mary Rode sought unemployment insurance benefits from the Board of Appeals of the Maryland Department of Labor, Licensing and Regulation, over the objection of her employer, Anne Arundel County. The County prevailed, the Department denied Ms. Rode’s request, and she appealed that decision to the Circuit Court for Anne Arundel County. The County and the Department responded to Ms. Rode’s appeal and appeared as defendants. At that time, each defendant “had precisely the same interest in affirming the decision of the Board of Appeals” and “they were presumably amicable co-defendants.” Id. at 1-2.

The defendants’ united front, however, soon cracked. “What followed was, at bottom, a tactical disagreement between counsel for the respective co-defendants as to how best to handle their case in the circuit court, a disagreement as to trial tactics in which Ms. Rode was totally uninvolved.” Id. at 2. The Department asked the circuit court to remand the case to the Board of Appeals to allow the Board to take a closer look at the record and to issue a new decision. The County – not wanting to risk losing the victory it had already gained – opposed the request for a remand. The circuit court granted the Department’s motion, remanded the case to the Board of Appeals, and the County noted an appeal. “Ms. Rode remained at all times above the procedural fray.” Id.

In the Court of Special Appeals, Ms. Rode was listed as the appellee, although she neither filed a brief nor participated in oral argument. The fight was solely between the two defendants, but the Court was not sure it should settle the score between the dueling defendants. Neither defendant “offered any legal authority, or even any helpful thought, as to the propriety of one co-defendant’s appealing from a tactical decision made by another co-defendant,” and the Court observed that “[c]onflicting trial strategies are, at the very least, questionable grist for the appellate mill.” Id. at 3. The Court, however, assumed arguendo that the County and the Department were appropriate adversaries, for there lurked another barrier that would block the Court’s review of the case.

That barrier was the final judgment rule. The Court acknowledged that the “real question” was “whether the remand in this case was an appealable final order. It is, to be sure, a tricky question, because some circuit court remands to administrative agencies are final orders and others are not. One size does not fit all.” Id. In Schultz v. Pritts, 291 Md. 1, 6, 432 A.2d 1319, 1323 (1981) (citation omitted), the Court of Appeals held that a circuit court’s order to remand a proceeding to an administrative agency “is an appealable final order because it terminates the judicial proceeding and denies the parties means of further prosecuting or defending their rights in the judicial proceeding.” Yet, despite what looks like a definitive “one size fits all” holding from the Court of Appeals, the Court of Special Appeals did not follow Schultz, but instead looked to its decision in Hickory Hills Ltd. P’ship v. Sec’y of State, 84 Md. App. 677, 581 A.2d 834 (1990) and “the incisive analysis of Judge Dale Cathell.” Anne Arundel Cnty. v. Rode, slip op. at 5.

As explained by the Court of Special Appeals in Hickory Hills and Rode, the Court of Appeals in Schultz was not asked to differentiate between two types of remand to an administrative agency. One type of remand occurs after the circuit court has heard the case on the merits and, as part of its decision, remands the case to the agency for further proceedings. The second type of remand occurs when a party asks for a remand before the circuit court considers the merits of the agency’s decision and is made so that the agency may either elicit additional evidence or modify its decision. In such an instance, the agency must file with the circuit court, as part of the record, any additional evidence taken by the agency as well as any modifications of the agency’s earlier findings or decision. The circuit court retains “continuing jurisdiction” over the case. The first species of remand was before the Court of Appeals in Schultz and presents a final appealable judgment. The second strand of remand, however, does not result in an appealable final judgment.

In Hickory Hills, the Hickory Hills Limited Partnership appealed to the Circuit Court for Anne Arundel County from a decision of the Secretary of State. Three days before the scheduled hearing on the merits, the Secretary moved to remand the case so that additional evidence could be taken. “At that hearing, the court heard only the motion and did not consider the substance of the appeal.” Hickory Hills Ltd. P’ship v. Sec’y of State, 84 Md. App. at 679, 581 A.2d at 835. The circuit court granted the motion and remanded the case to the Secretary of State. The limited partnership appealed to the Court of Special Appeals.

As Judge Moylan explained for the Rode Court, “Hickory Hills drew a critical distinction between an action by the reviewing court pursuant to Maryland Code, State Government Article § 10-215 (e) [now recodified as § 10-222(f)] and one pursuant to § 10-215(g) [now recodified as § 10-222(h)].” Anne Arundel Cnty. v. Rode, slip op. at 7. Judge Moylan further explained: “Section 10-215 (e)(3) [now § 10-222(f)(4)] made it clear that the desired product of the remand might well be either additional evidence, as in the Hickory Hills case, or ‘modifications of the findings or decision’ of the agency, as in the case now before us.” Id. at 8-9. On the other hand, a remand pursuant to former section 10-215 (g) – which is now section 10-222(h) – is made only after the circuit court hears the case on the merits and is part of the court’s decision. Id. at 9-10 (citing Hickory Hills, 84 Md. App. at 81).

Thus, while the remand in Schultz – which was made after the circuit court heard the merits of the case – left “nothing further for the court to do,” Schultz, 291 Md. at 6, 432 A.2d at 1323, the remands in Hickory Hills and Rode did not end the circuit courts’ involvement. “Under § 10–215(e), however, contrary to what the Court of Appeals said[in Schultz], there is something further the court must do, i.e., review the additional evidence taken by the administrative agency and complete its appellate hearing on the merits.Anne Arundel Cnty. v. Rode, slip op. at 10 (quoting Hickory Hills, 84 Md. App. at 682, 581 A.2d at 836) (emphasis supplied by Rode Court).

Finally, the Rode Court discussed its decision in Dep’t of Labor, Licensing & Regulation v. Woodie, 128 Md. App. 398, 738 A.2d 334 (1999). That case – like Rode – was an unemployment insurance case and therefore the Administrative Procedure Act (State Government Article, Title 10, Subtitle 2) did not apply. The Administrative Procedure Act did apply in Hickory Hills. Instead, the circuit court’s judicial review in an unemployment insurance case is governed by Md. Code Ann., Lab. & Empl. § 8-5A-12. As the Rode Court explained: “That section does not track what is now § 10-222 of the State Government Article, but neither does it contradict it.” Anne Arundel Cnty. v. Rode, slip op. at 12. In short, any distinctions between the two statutory schemes did not affect the Court’s analysis:

Any difference between the State Government Article and the Labor and Employment Article, moreover, does not in any way compromise our reliance on Judge Cathell’s analysis in Hickory Hills. Our concern is not with the existence or non-existence of the authority to remand nor is it with the validity or propriety of any particular remand. Our focus, rather, is exclusively on the limited issue of whether the remand in this case, valid or invalid on its merits, was an immediately appealable final judgment. We are looking only at the threshold issue of whether to address the merits at this time or to defer our consideration of those merits to some subsequent time. Until that threshold question is answered, the ultimate merits of the remand do not concern us. Our concern is not with “remand” law but with “final judgment” law. In that regard, Hickory Hills’s analysis of why certain remands, rightly or wrongly ordered, would be final judgments and other remands would not be final judgments is unquestionably pertinent to the limited threshold issue before us.

Id. at 12-13.

Consequently, the circuit court’s remand to the Department “represented nothing more than a brief delay in the ongoing review of Ms. Rode’s appeal to the circuit court. The case was not over. The circuit court was not divested of its continuing jurisdiction over the case. Under these circumstances, the remand was not a final judgment.” Id. at 14. The case was not yet ripe for appellate review and was dismissed. Or, as Abbott and Costello might have described the ruling, the umpire was not ready for Today so he tossed the ball to Tomorrow.

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