Tamara A. v. Montgomery County Dept. of Health & Human Services

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 *196extremely limited situation where judicial review of a non-final administrative decision is permitted under Maryland administrative law generally, as well as under the Administrative Procedure Act, Maryland Code (1984, 2004 Replacement Volume, 2008 Supp.), § 10-222(b) of the State Government Article.

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.”
❖ * *
*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, 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 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.”

*198I have no disagreement with the Court’s view that the collateral order doctrine in Maryland is “construed very narrowly” (majority opinion at 189, 963 A.2d at 778), and that a trial court’s denial of a motion to dismiss, based on collateral estoppel or res judicata grounds, is not appealable under the collateral order doctrine. Nevertheless, I do not believe that the criteria for allowing appeals under the collateral order doctrine are particularly relevant in determining whether a non-final administrative decision is subject to judicial review.1 Some interlocutory trial court orders may be immediately appealable under the collateral order doctrine, whereas similar non-final orders by an administrative agency would not be immediately subject to judicial review. See, e.g., the order in Clark v. Elza, 286 Md. 208, 406 A.2d 922 (1979).

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, 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.

Section 10-222(b) of the Administrative Procedure Act was “intended to codify the ... decision in Holiday Spas” (1993 *200Laws of Maryland at 1037), and the statutory provision should not be extended beyond the type of situation involved in Holiday Spas. The statute is limited to circumstances where the interlocutory administrative order is like an injunction or a cease and desist order, having “immediate legal consequences,” and where postponement of judicial review “would result in irreparable harm.” As the Court’s opinion correctly holds, the order in the present case does not meet that standard.

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, 376 Md. 53, 58-59, 827 A.2d 115, 118 (2003); In re Foley, 373 Md. 627, 633-634, 820 A.2d 587, 591, cert. denied sub nom. Foley v. Berg, 540 U.S. 948, 124 S.Ct. 398, 157 L.Ed.2d 279 (2003); Pittsburgh Coming v. James, 353 Md. 657, 661, 728 A.2d 210, 211-212 (1999), and cases there cited.