Baltimore County v. Baltimore County FOP Lodge 4: Applying the Law of “The Law of the Case”
“Law of the case” is a doctrine that tends to be loosely thrown around by attorneys who vaguely feel that some fact or principle should be treated as established for the remainder of their litigation, but don’t quite know why. For appellate practitioners — especially those who get involved in particularly contentious and protracted lawsuits — it’s good to get an occasional refresher on how the principle actually works. The Court of Special Appeals recently provided just such a primer in Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4, Sept. Term 2013, No. 1904/Sept. Term 2014, No. 99 (Dec. 17, 2014), a case that should cause all lawyers readying an appeal to think a little deeper about what issues they need to raise and what relief they want to seek.
The case has a tortuously convoluted background that’s too complex to fully explain here; the crux of it (which is still pretty extensive) should suffice. Pursuant to a 2007 memorandum of understanding — that’s an “MOU” in lawyer lingo — between Baltimore County and the Fraternal Order of Police (the officers’ bargaining unit), the parties went to arbitration to settle a dispute regarding the County’s obligation to pay a portion of the union’s retirees’ health-care premiums, as established in prior MOUs dating back to 1991. After the arbitrator came down on the side of the FOP, the County looked to the circuit court to vacate the award on numerous grounds, all of which the court rejected in also finding for the FOP.
At the Court of Special Appeals, the County challenged the validity of the award with a full nine questions presented, none of which the court answered in deciding the case; instead, the intermediate court ruled on grounds not argued before either it or the circuit court (specifically, that the award was invalid because the arbitrator had failed to consider whether the arbitration clause of the MOU had independently expired), and left open all of the County’s questions for future consideration on remand. Before that could happen, however, the FOP called in the Court of Appeals to sort everything out, and certiorari was granted — without any cross-petition by the County. The high court reversed the Court of Special Appeals’ decision, holding that the duty to arbitrate survived the expiration of the MOU and the circuit court was “legally correct” in granting summary judgment to the FOP.
The Court of Appeals’ mandate to the Court of Special Appeals therefore instructed it to affirm the circuit court’s decision. The County then moved for reconsideration, complaining that the decision failed to address various issues that had been raised (but not resolved) by the intermediate court and arguing that the award was unenforceable because funds weren’t appropriated to pay for it. That motion was denied.
After the County refused to comply with the judgment, the FOP moved the circuit court to enforce the appellate decision. In opposition, the County re-raised the legal questions it had initially asserted on appeal, which, it contended, had never been answered and therefore were still game for the trial court’s consideration. Applying the law-of-the-case doctrine, the circuit court elected not to touch the merits of the County’s arguments and ordered it to comply with the arbitration award.
Refusing to relent, the County then filed a motion to alter or amend the judgment, attempting again to get traction on the matters it had been pushing since the first appeal. When the circuit court again affirmed the County’s liability, the County appealed. (The case was later consolidated with a second appeal stemming from damages proceedings in the trial court.) Once again before the Court of Special Appeals, the County sought to distinguish the issues presently before it and those of the previous appeal, arguing that the current dispute was about whether the arbitration award was enforceable (as previously raised in the motion for reconsideration in the Court of Appeals), whereas the prior litigation was merely about its legal validity.
Even if this enforcement question was somewhat wrapped up in the questions posed on the previous appeal, the County contended, those questions weren’t ever actually considered or resolved by an appellate court. Given that Md. Code, Cts. & Jud. Proc. (“CJP”) Article § 12-301 grants litigants a right to appeal, the County asserted, it couldn’t be foreclosed from re-raising issues that weren’t even addressed in the original decision. The panel didn’t go for it, and agreed with the circuit court that the law-of the-case doctrine barred consideration of the restyled arguments.
Judge Meredith’s opinion began by laying out the basic definition of the doctrine: Questions of law resolved on appeal are settled for the remainder of the case. Slip Op. at 58-59. Easy (and obvious) enough, but the concept doesn’t stop there — it also prevents subsequent litigation of any issue that could, based on the record as it existed at the time, have been brought in the first appeal. Id. Quoting from Judge Prescott’s opinion in Fidelity-Baltimore National Bank & Trust Co. v. John Hancock Mutual Life Insurance Co., 217 Md. 367 (1958), the intermediate court noted that, if it were otherwise, “any party to a suit could institute as many successive appeals as the fiction of his imagination could produce new reasons to assign as to why his side of the case should prevail, and the litigation would never terminate.” Id.
The panel then reviewed the Court of Appeals’ decision to tease out its meaning. First, the Court of Appeals held that the grievance could be arbitrated and the FOP was entitled to summary judgment. Though the County contended both times around that the arbitration was precluded because the grievance was not timely filed and retirees weren’t allowed to bring a grievance under the MOU, Judge Meredith concluded that the Court of Appeals, in reaching the decision it did, must (whether it explicitly stated so or not) have rejected these arguments. Id. at 65.
If the Court of Appeals had found merit to the County’s arguments that the grievance could not be arbitrated, summary judgment in favor of the FOP would have been inappropriate. In this vein, the intermediate court also made note that the Court of Appeals didn’t answer some questions of law and remand the rest back for further consideration — an outcome that the County specifically requested in its motion for reconsideration. Id. Rather, the high court’s instructions to the lower courts to grant summary judgment to the FOP, the panel reasoned, was a final determination that the FOP was entitled to enforce the arbitration award.
That decision necessarily “embraced and resolved all of the issues that the County raised, as well as any other issues that were then available to raise, challenging the validity of the arbitration award.” Id. Even if there was some enforcement issue that was distinct from the award’s overall legal validity – and hadn’t already been sufficiently addressed by the circuit court in the first appeal – the County was obligated to clearly assert all such issues then. Id. at 69. As it was, the Court of Appeals’ decision in the case conclusively resolved those questions by affirming summary judgment for the FOP, end of story. Id. (The intermediate court also found reasons to shoot down the County’s other damages-related questions, which aren’t of import here.)
An observation is in order: It appears that, in applying the law-of-the-case doctrine, a lot more is assumed from an appellate holding than would otherwise be appropriate in litigation. Certainly, an attorney would not go far arguing that a decision — made without saying a word about numerous questions presented — created settled law on those unanswered questions. Yet the Court of Special Appeals had no problem assuming the Court of Appeals made unwritten, implicit findings of law about most of the County’s arguments. What is inferred from an appellate opinion in a law-of-the-case analysis appears to be quite different from any other litigation context.
There are a few other lessons here for appellate practitioners. For one, the panel makes conspicuous note of the fact that the County did not press the questions it posed to the Court of Special Appeals in a cross-petition for certiorari to the Court of Appeals. The County probably opted not to do so because it thought the only issue up for discussion was the Court of Special Appeals’ actual basis for its holding — that the arbitrator erroneously failed to consider whether the specific arbitration clause was expired. That now looks like a fatal assumption.
As the panel seems to imply in its decision, the question on appeal to the Court of Appeals was not just the specific reasoning of the Court of Special Appeals (or whatever else was technically accepted for certiorari) — it was the validity/enforcement of the award as a whole. Regardless of the Court of Special Appeals’ holding, if the County had arguments to challenge the award, it should have raised them in a cross-petition and given the Court of Appeals the opportunity to grant certiorari and weigh in on those matters as well. Trying belatedly to get those questions before the bench on a motion for reconsideration just didn’t cut it.
In other words, it’s a possibly treacherous limitation to tether your Court of Appeals strategy to whatever occurred at the intermediate court; rather, when deciding what issues to seek certiorari on, treat the appeal as a fresh start and get all of your arguments out there, using a cross-petition if necessary. If you’re asking for a remand (even if just to protect yourself from a potential negative ruling), make sure to include a request that it be sent back to the lower court for consideration of your open issues — tossing that into a motion for reconsideration (as the County did) may be too little, too late. In short, to avoid the law-of-the-case doctrine from slamming the door on good arguments, appellate practitioners must take every step they can to keep their questions presented alive. Leaving any to the wayside runs the risk of taking them off the appellate radar and therefore off the table for the remainder of the lawsuit.