Woodward, Hotten, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
In trying to identify 1) who is the appellant in this case, 2) who is the appellee, 3) what precise decision is being appealed, and 4) whether such decision is at this time appealable, the Court feels as if it were stranded in a hall of mirrors. The players, without any formal notification to the referees, seem to be switching teams in the middle of the game.
The appellee is formally listed as Mary E. Rode, but Mary Rode has not filed an appellate brief, did not participate in the oral argument before us, and has no obvious interest in the outcome of this appeal. Ms. Rode was a less than full-time employee, as a school crossing guard, of the ostensible appellant, Anne Arundel County. She sought, but was ultimately denied, unemployment insurance benefits from the Board of Appeals of the Maryland Department of Labor, Licensing and Regulation ("DLLR"), also a party, although in what capacity it is far from clear. Anne Arundel County at all times opposed the granting of unemployment benefits to Ms. Rode. Before the Board of Appeals, Anne Arundel County prevailed and it appeared that, going forward, the interests of the DLLR and the County were one and the same.
Ms. Rode appealed that adverse decision by the Board of Appeals to the Circuit Court for Anne Arundel County. In that litigation, she was unquestionably the appellant/plaintiff/claimant. Responding to that appeal and ultimately appearing as defendants in the circuit court litigation were the County and the DLLR, both of whom had precisely the same interest in affirming the decision of the Board of Appeals. At that point they were presumably amicable co-defendants. 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.
A Clash of Strategies
On May 3, 2012, the DLLR, without notice to the County, filed a Motion to Remand the case to the DLLR. The County ultimately opposed the remand. The DLLR wished to check over the opinion of the Board of Appeals more closely and, if necessary, to fine-tune it. The County felt that the Board's opinion could be affirmed just as it stood and was anxious to move ahead. After some now immaterial procedural maneuvering, a hearing on the remand issue was held in the circuit court on October 1, 2012, and the court ordered the remand. Ms. Rode remained at all times above the procedural fray.
The County, as the prevailing party in the action then pending in the circuit court, is now appealing from the circuit court's acquiescence in a procedural move made by the County's co-defendant. The County claims that it is defending its right to appeal, but it does not appear to us that that right is in jeopardy. Should the Board of Appeals, on remand, affirm its earlier decision, the County will be in the same position it is now in, defending against Ms. Rode's appeal. Should the Board of Appeals, on remand, reach the opposite conclusion, the County will be back before the circuit court as the appellant.
Neither the County nor the DLLR has 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. The County and the DLLR were both on the defending side of Ms. Rode's appeal to the circuit court. It is as if one co-counsel were requesting a continuance and the other were opposing it or as if one co-counsel wished to call a particular witness and the other did not. Conflicting trial strategies are, at the very least, questionable grist for the appellate mill. Out of quiet desperation, however, we will treat the County as an appropriate appellant and the DLLR as an appropriate de facto appellee.
Final Judgments and Appealability
In another sense, however, the propriety of this appeal remains very much in issue. There is a real question as to 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.
Let it be noted at the outset that the request for a remand in this case came from the administrative agency itself. Let it also be noted that the remand was both requested and ordered before there had been any remote glimmer of consideration of the merits of the contested unemployment benefits. The remand, moreover, was not for the purpose of taking additional evidence. All three are important criteria in distinguishing permissible remands from impermissible ones and in thereby distinguishing non-final orders from final ones.
The remand order of October 1, 2012 came well before a hearing on Ms. Rode's appeal was convened and, therefore, before any consideration of the merits of her appeal was even contemplated. At the hearing on the request for a remand, Gina Serra, Esq., counsel for the DLLR, explained the DLLR's reason for requesting a remand:
And here what we have is the agency specifically asking we would like to review this case again. It is not to allow anybody, either party, an opportunity to introduce new evidence, which was the crux of the issue in [Department of Labor, Licensing & Regulation v. Woodie, 128 Md.App. 398, 738 A.2d 334 (1999)] where he appeared for that hearing and then he did not like the outcome and then he saw an opportunity for a second bite of the apple. Nobody is asking for that in this case. It is simply that when I reviewed the decision and the record, I had some concerns and I asked the Board to take it back. And, obviously, I can't go into any details because that is attorney-client privilege communication. But that is what happened in the case. So, we are asking for the Board to have an opportunity to look at all of the evidence again and read the transcript instead of listening to the tapes, which is different. It is very different to listen than actually being able to sit and take your time and read the words. That is why we have transcripts in most proceedings. And then let the agency issue another decision and all of the appeal rights can follow from that. Whether it will be the County or Ms. Rode, anybody could appeal, any aggrieved party can appeal. And the [Woodie] case does not prevent that from happening. And there is no authority that says the circuit court cannot grant a motion for remand when the agency requests that remand. And it is to secure any kind of defect in the record and the Board wants to make sure that there is no defect in their decision. And so for those reasons, we ask that you deny the motion to vacate the order for remand and let this case go back to the Board of Appeals to re-review the decision that they rendered in this case.
In our opinion, the circuit court's granting of the DLLR's motion for a remand to the Board of Appeals was not a final judgment within the contemplation of Maryland Code, Courts and Judicial Proceedings Article, § 12-301, and this appeal is, therefore, premature.
In Peat, Marwick, Mitchell & Co. v. Los Angeles Rams, 284 Md. 86, 91, 394 A.2d 801 (1978), the Court of Appeals defined a "final judgment":
[W]e have stated as a general rule that in order to be appealable a "judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding."
The Hidden Danger In Overly General Language
Whether a remand to an administrative agency is or is not an appealable final judgment is by no means free of confusion. Some cases have held that such remands are appealable final judgments; other cases have held that they are not. The cases are not necessarily in conflict, although at first glance they certainly seem to be. The problem is that individual opinions, looking myopically only at the particular remand under scrutiny, have treated the entire procedural phenomenon of remanding as an undifferentiated monolith. A more subtle perception of the phenomenon is called for. The phenomenon is not monolithic but is variegated, and a discriminating eye would be helpful. The caselaw, however, speaks stolidly of remands in absolute and binary terms – "final or non-final." It has failed to appreciate that some remands may, indeed, be appealable final judgments whereas others may not. A more nuanced analysis and phraseology is badly needed.
Non-Final Remands and Final Remands
A shining exception to our editorial criticism of this general heavy-handedness in the caselaw is the incisive analysis of Judge Dale Cathell in Hickory Hills Limited Partnership v. Secretary of State of Maryland, 84 Md.App. 677, 581 A.2d 834 (1990). Recognizing at the outset the pluralistic nature of the remand, Judge Cathell surgically differentiated between those remands that are, indeed, final judgments and those others that are not. Uniquely, Hickory Hills was painstakingly careful to speak of the non-final remand before it in meticulously specific terms and did not speak slackly as if it were dealing with all remands generally. Unfortunately, most of the caselaw has not been so meticulous, making reliance on it treacherous. Hickory Hills, as essentially the only opinion not to look simplistically upon the remand as an indivisible monolith, is the star we choose to follow.
In Hickory Hills, the pertinent administrative agency was the Secretary of State of Maryland. The Hickory Hills Limited Partnership had appealed a decision of the Secretary to the Circuit Court for Anne Arundel County. The opinion of this Court, 84 Md.App. at 679, pinpointed the procedural step in issue.
Hickory Hills filed an appeal to the Circuit Court for Anne Arundel County, and an oral argument on the appeal was scheduled for December 11, 1989. Three days prior to that oral argument, the Secretary filed a Motion to Remand for Additional Evidence to be taken by the Secretary. ... At that hearing, the court heard only the motion and did not consider the substance of the appeal. On that same day, the court granted the Secretary's Motion to Remand. It is from that order that this appeal and the Motion to Dismiss arise.
In major measure, the question then before this Court is the question now before us. Judge Cathell, 84 Md.App. at 679-80, posed the single issue before the Court:
The issue, as we phrase it, is: Whether an order of the circuit court, remanding to the administrative agency for taking of additional evidence when the circuit court has not yet heard or decided the appeal from the ...