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Washington Suburban Sanitary Commission v. Lafarge North America, Inc.

Court of Appeals of Maryland

June 18, 2015

WASHINGTON SUBURBAN SANITARY COMMISSION
v.
LAFARGE NORTH AMERICA, INC.

Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.

Harrell, J.

Lafarge North America, Inc. ("Lafarge") operated a ready-mix concrete plant in Rockville, Maryland, during the time relevant to this case. It sought a refund from the Washington Suburban Sanitary Commission ("WSSC") for allegedly erroneously assessed and paid water and sewer service charges for the operation of the plant. Lafarge sought initially from the WSSC administrative review and action on its refund request from the WSSC. The WSSC did not hold a hearing or decide the refund request within 180 days of its filing, as it was obliged to do by Maryland Code (1998, 2010 Repl. Vol.), Public Utilities Article, § 25-106 ("PUA"). The same statutory scheme decreed that the refund request was deemed denied by operation of law because of the WSSC's failure to render a timely decision. PUA § 25-106(d)

Lafarge turned to the Circuit Court for Montgomery County for judicial review, noting that its claim was deemed denied by the WSSC's inaction. The Circuit Court concluded that the deemed denial was not supported by substantial evidence in the record and was arbitrary and capricious because the WSSC failed to act timely. As a result, that court remanded the matter to the WSSC with directions to determine and issue an appropriate refund. On direct appeal by the WSSC, a panel of the Court of Special Appeals affirmed unanimously the judgment of the Circuit Court. We granted the WSSC's petition for a writ of certiorari. For the reasons explained below, we affirm.

Factual and Procedural Background

The WSSC operates the public water supply, sewage collection and treatment, and storm water management systems in most of Prince George's and Montgomery counties. This bi-county, state agency levies separate charges for water consumption and sewer services, but its sewerage charges are determined by the water consumption of a user. PUA § 25-503(a). If some of the water consumed by a commercial, industrial, or multi-family residential use is "used exclusively for any purpose that results in the [consumed] water not entering the [WSSC's] sewer system[, ]" however, the WSSC may not impose sewer charges for that portion of the water consumption. PUA § 25-503(d) and (e). To avoid being billed for water consumption not entering into the sewer system, a property or business owner must have a submeter installed to measure the water not discharged into the sewer. Id. After installation of a submeter, the WSSC calculates the sewerage bill by subtracting the water passing through the submeter from the amount of water passing through a primary meter at the site. Id.

The WSSC delivered large quantities of water to Lafarge's ready-mix concrete plant in Rockville. According to Lafarge's refund request, the production of concrete consumes the vast majority of the water delivered to the plant. This water is not discharged into the WSSC's sewer system. The only incoming water discharged into the public sewer system as "sewage" came from an employee bathroom on the premises. Lafarge asserted further in its refund request that the number of employees and activity levels at the plant remained the same over the past decade.

In 2000, at Lafarge's request and expense, the WSSC installed on the property a submeter to measure the water used to make concrete.[1] In August 2005, the submeter was moved elsewhere on-site after the structure housing the submeter (described by Lafarge as a "shed") was destroyed by fire. Lafarge maintained, in its refund request, that the submeter ceased working properly after the fire and relocation, resulting in sewer charges for substantial amounts of water that Lafarge's operations did not discharge into the sewer system.

An internal investigation into sewerage charges following a submeter malfunction in February of 2012 alerted Lafarge for the first time to the charges it came to believe were in error. Before the 2005 fire, the Rockville plant was billed consistently for discharging into the sewer system approximately one-tenth of the plant's total water consumption. After the fire, Lafarge was billed for a water-to-sewage ratio of between 2-to-1 and 1-to-1. Lafarge claims that such indicated sewage discharges were erroneously high. On 16 February 2012, Lafarge contacted initially the WSSC about the erroneous sewerage charges.

On 6 March 2012, Lafarge, pursuant to PUA § 25-106, submitted a letter (with attachments) to the WSSC requesting a refund for the allegedly erroneous charges.[2] On 9 April 2012, Lafarge completed and submitted a refund hearing request form, as directed by the WSSC. The WSSC did not hold a hearing or issue a decision on Lafarge's claim within 180 days, as required by PUA § 25-106(d).[3]

Pursuant to PUA § 25-106(d) and (e), Lafarge petitioned the Circuit Court for Montgomery County for judicial review of the "deemed final rejection" of its claim.[4] The WSSC filed a motion for a stay of the proceedings until it could hold a hearing so that a fuller evidentiary record could be developed and actual final action made. The Circuit Court denied the WSSC's motion.

The WSSC filed thereafter with the court the "agency record." The "record" consisted of, in its entirety, Lafarge's 6 March 2012 letter requesting a refund and the 9 April 2012 hearing request (both of which had supporting documents attached by Lafarge). Lafarge responded with a motion requesting that the court require the WSSC to supplement the "record" with any documents created during the agency's investigation of the claim, if any. The WSSC opposed the motion. On 8 January 2013, the Circuit Court granted Lafarge's motion. Thereafter, the WSSC provided to the Circuit Court additional documents.[5]

On 17 June 2013, the Circuit Court determined that: (1) the WSSC's deemed denial of Lafarge's claim was not supported by substantial evidence; (2) the WSSC's failure to decide the claim within the 180-day window required by PUA § 25-106(d) was arbitrary and capricious; (3) it would be inappropriate to give the WSSC a second opportunity to consider whether to deny the refund request after the agency failed to make a determination within the time-period required by the statute; and, (4) therefore, Lafarge was entitled to a refund in some appropriate amount. The court remanded the matter to the WSSC with directions to issue a refund according to the agency's standard operating procedures.[6] On 20 September 2013, the Circuit Court granted Lafarge's motion to alter or amend the judgment and required additionally that the WSSC issue the refund within 30 days.[7]

On 3 July 2013, the WSSC appealed timely to the Court of Special Appeals. The WSSC did not argue to the intermediate appellate court that Lafarge was not due a refund, but rather attempted to persuade the court that the Circuit Court exceeded its powers in requiring the WSSC to supplement the "record, " as submitted originally, with the agency's investigative file and by making factual determinations absent a proper agency record, agency findings, or agency conclusions. Lafarge retorted that the appellate court was not authorized expressly to consider appeals from the Circuit Court under PUA § 25-106(e).[8]

A panel of the Court of Special Appeals, in an unreported opinion, examined the legislative history of PUA §25-106(e) and held that the Legislature intended to allow further appeals to the Court of Special Appeals from judgments by a circuit court, after judicial review of PUA § 25-106 refund claims. On the merits of the case, however, the intermediate appellate court affirmed.

The WSSC petitioned us to issue a writ of certiorari. The WSSC requested further that we stay enforcement of the mandate of the Court of Special Appeals pending our consideration of the petition. On 19 September 2014, we granted the WSSC's petition and motion to stay the enforcement of the intermediate appellate court's judgment, pending our consideration and disposition of the following questions:

1) Did the Court of Special Appeals err in holding that a [circuit court] may exceed the permissible scope of judicial review when considering a "deemed" rejection of a refund claim under PUA § 25-106?
2) Did the Court of Special Appeals err in upholding the [Circuit Court's] order mandating that WSSC's investigative files be produced as part of the agency record pursuant to Md. Rule 7-206?

Washington Suburban Sanitary Commission v. Lafarge N. Am., Inc., 440 Md. 115, 99 A.3d 778 (2014).

Analysis

I. Appellate Jurisdiction

Before the Court of Special Appeals, Lafarge sought a dismissal of the WSSC's appeal because: (1) PUA § 25-106(e) does not authorize expressly appellate review by the Court of Special Appeals of the judgment of the Circuit Court; (2) a refund request before the WSSC is not a "contested case" for purposes of Maryland's Administrative Procedures Act; and, (3) the review requested by Lafarge before the Circuit Court cannot be considered alternately as a common law action for mandamus. As the argument goes, if the WSSC's appeal to the Court of Special Appeals was improper, its petition to us for a writ of certiorari is untimely. Although neither party argues before us that we or the intermediate appellate court lack fundamental jurisdiction over the subject matter of this case, an appellate court may consider, on its initiative, jurisdictional questions that it notices. Waterkeeper Alliance, Inc. v. Maryland Dep't of Agric., 439 Md. 262, 275, 96 A.3d 105, 113 (2014); Johnson v. Johnson, 423 Md. 602, 606, 32 A.3d 1072, 1074 (2011); Stachowski v. State, 416 Md. 276, 285, 6 A.3d 907, 912 (2010); Miller & Smith at Quercus, LLC v. Casey PMN, LLC, 412 Md. 230, 240, 987 A.2d 1, 6-7 (2010); Biro v. Schombert, 285 Md. 290, 293, 402 A.2d 71, 73 (1979).

The right to appeal, except as authorized by constitution, is regulated entirely by statutes. E.g., Dvorak v. Anne Arundel Cnty. Ethics Comm'n, 400 Md. 446, 450, 929 A.2d 185, 187 (2007); Pack Shack, Inc. v. Howard Cnty., 371 Md. 243, 247, 808 A.2d 795, 797 (2002); Subsequent Injury Fund v. Pack, 250 Md. 306, 309, 242 A.2d 506, 509 (1968); Switkes v. John McShain, Inc., 202 Md. 340, 343, 96 A.2d 617, 618 (1953). Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings Article, § 12-301 ("CJP") provides a general right to appeal from a final judgment of a circuit court, subject to certain exceptions. One such exception is relevant to the present case: "[u]nless a right to appeal is expressly granted by law, [CJP] § 12-301 . . . does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of . . . an administrative agency . . . ." CJP § 12-302.[9]

PUA § 25-106(e) provides expressly for judicial review by a circuit court of final action on a refund claim by the WSSC, but is silent regarding appellate review of that circuit court's judgment by the Court of Special Appeals. The panel of the Court of Special Appeals in the present case, looking to the legislative history of PUA § 25-106(e), concluded that the General Assembly intended to maintain allowance for such appellate review. According to the intermediate appellate court panel, the provision for this was left out mistakenly from the prior code provision during the relevant re-codification.

The apparent purpose of PUA § 25-106, its legislative history, and the canons of construction regarding re-codification initiatives of the Maryland Code indicate that the Legislature intended to allow appeals to the intermediate appellate court in the circumstances of the present case.[10] CJP § 12-302 does not authorize by implication, however, appeals from circuit court judgments in water/sewer charge refund matters. The right to appeal must be "expressly granted by law." CJP § 12-302. Rather than inquire into the meaning of "expressly" in CJP § 12-302, we find an appropriate jurisdictional basis in Maryland's Administrative Procedure Act ("APA").[11]

Maryland's APA was enacted initially in 1957 to increase the perceived legitimacy of administrative agencies by imposing transparency, procedural regularity, and judicial review of agency actions. Edward A. Tomlinson, The Maryland Administrative Procedure Act: Forty Years Old in 1997, 56 Md. L. Rev. 196, 197-98 (1997). The current iteration of the APA regarding "contested cases" is codified in Title 10, Subtitle 2 of the State Government Article of the Maryland Code. Judicial review was (and remains) more robust regarding trial-like, quasi-adjudicatory proceedings of "contested cases" than agency rulemaking. Id. at 199.

Maryland Code (1984, 2014 Repl. Vol.), State Government Article, § 10-202(d) ("SG") defines "contested case":

(1) "Contested case" means a proceeding before an agency to determine:
(i) a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing; or
(ii) the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by statute or constitution to be determined only after an opportunity for an agency hearing.
(2) "Contested case" does not include a proceeding before an agency involving an agency hearing required only by regulation unless the regulation expressly, or by clear implication, requires the hearing to be held in accordance with this subtitle.

Refund claims pursuant to PUA § 25-106, for which the claimant requests a hearing, are "contested cases." PUA § 25-106(a) grants a right to submit a claim for any fee or charge levied by the WSSC, except assessment or benefit charges authorized by Subtitle 2 of Title 25 of the Public Utilities Article.[12] Pursuant to PUA § 25-106(c)(2), upon the request of a claimant, the WSSC is required to hold a hearing. The object of a hearing generally is to determine whether the claimant is entitled to a refund under PUA § 25-106 and, if so, in what amount. Further, the WSSC is an "agency" for the purposes of the definition of a "contested case" as it (1) derives its existence from Division II of the Public Utilities Article of the Maryland Code, PUA § 17-101; (2) operates in portions of two counties, PUA § 17-501; and, (3) is authorized to hear contested cases pursuant to PUA § 25-106. See SG § 10-202(b).[13]

We held in Donocam Associates v. Washington Suburban Sanitary Commission, 302 Md. 501, 503, 489 A.2d 26, 27 (1985), that the WSSC is a state agency subject to the requirements of the APA and that a hearing regarding an assessment to fund the construction of additional sewer and water lines was a "contested case." 302 Md. at 503, 489 A.2d at 27, cited with approval in Washington Suburban Sanitary Comm'n v. Phillips, 413 Md. 606, 631, 994 A.2d 411, 426 (2010). Although the procedures of the hearing required in Donocam were not elaborated in the statute, we concluded that the hearing would fall necessarily under the ambit of the requirements of the APA. Donocam, 302 Md. at 513, 489 A.2d at 32 (1985).

Because refund claims pursuant to PUA § 25-106 in which a hearing is requested are "contested cases" pursuant to Maryland's APA, an appeal to the Court of Special Appeals was authorized here. The State Government Article, § 10-223 authorizes appeals to the intermediate appellate court "in the manner that law provides for appeal of civil cases."

Lafarge's petition for judicial review, the WSSC's appeal to the intermediate appellate court, and its petition to us for a writ of certiorari were timely. The WSSC appealed the decision of the Circuit Court within 30 days of the judgment of the Circuit Court, as required by Maryland Rule 8-202, and petitioned us for a writ of certiorari within 15 days after Court of Special Appeals issued its mandate, as required by Maryland Rule 8-302. The present case is properly before us.

II. Reversal of the Deemed Denial

The WSSC argues that the Circuit Court's scope of review of the "deemed denial" of Lafarge's refund claim was limited to determining whether there was substantial evidence in the record to support the denial. According to the WSSC, upon finding a lack of substantial evidence, the Circuit Court did not have then the authority to engage in its own factual inquiry whether Lafarge was entitled to a refund. The agency argues that the Circuit Court was authorized only to remand the case to the WSSC to engage in a fact-finding hearing and issue an appropriate decision based on the evidence, i.e., the court should order a "do-over, " with the potential that the WSSC could deny the claim altogether. Although the WSSC states correctly the general standard of judicial review of agency decisions, it misunderstands (conveniently) the intent of the Legislature's codification of PUA § 25-106 and how the courts may carry-out best that intent.

The WSSC's refund process, and the Circuit Court's authority to review refund actions (or failures to act resulting in a final denial decision by operation of law) of the WSSC, derives from PUA § 25-106. Our primary goal when interpreting statutes is to ascertain and effectuate the intent of the Legislature. Williams v. Peninsula Reg'l Med. Ctr., 440 Md. 573, 580, 103 A.3d 658, 663 (2014); Johnson v. Mayor & City Council of Baltimore City, 387 Md. 1, 11, 874 A.2d 439, 445 (2005); Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002). We look first to the text of the statute, and "[i]f the language of the statute is unambiguous and clearly consistent with the statute's apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction." Lockshin v. Semsker, 412 Md. 257, 275, 987 A.2d 18, 28-29 (2010); accord Bost v. State, 406 Md. 341, 350, 958 A.2d 356, 361 (2008) (citing Ishola v. State, 404 Md. 155, 160, 945 A.2d 1273, 1276 (2008)); Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1114 (2005).

PUA § 25-106 makes clear that the Legislature intended for refund claims to be investigated and decided within 180 days from the filing of the claim. If the WSSC falls short of this benchmark, the resultant deemed denial of the claim by operation of law is subject to judicial review. The relevant portions of PUA § 25-106 provide:

(b)Claims. - (1) A person may file a written claim with the Commission, in a form and containing the information and supporting documents required by the Commission, for a refund of the amount of a fee or charge the person paid to the Commission that exceeds the amount that is properly and legally payable.
(c)Investigation. - (1) On the receipt of a claim for a refund under subsection (b) of this section, the Commission shall investigate the merits of the claim.
(2) On the request of the claimant, the Commission, or the Commission's designee, shall hold a hearing on the claim.
(4) The Commission shall pay interest on any amount refunded under this section, calculated at the rate of 6% per year, starting 180 days from the date the claim was made. (d) Failure to reach a final decision. - If the Commission fails to reach a final decision on a claim within 180 days after the date the claim is filed, the failure shall be deemed a final rejection of the claim.
(e) Judicial Review. - Within 30 days after the date of final action by the Commission on a claim for a refund filed under subsection (b) of this section, a petition for judicial review may be filed with the circuit court as provided in Title 7, Chapter 200 of the Maryland Rules.

The legislative choice to use the mandatory word "shall" indicates that the General Assembly intended for the 180 day limitation not to be discretionary or without consequences.[14] See, e.g., Perez v. State, 420 Md. 57, 63, 21 A.3d 1048, 1052 (2011) ("As this Court and the intermediate appellate court have reiterated on numerous occasions, the word "shall" indicates the intent that a provision is mandatory.") (citing State v. Green, 367 Md. 61, 82, 785 A.2d 1275, 1287 (2001)); 1A Norman J. Singer & J. D. Shambie Singer, Sutherland Statutory Construction § 25:4 (7th ed.). PUA § 25-106(d) supplies a result if the WSSC fails to meet the statutory deadline: "the failure shall be deemed a final rejection of the claim." The claimant may move-on then and seek judicial review of the deemed denial. See PUA § 25-106(e).[15] [16]

The WSSC's interpretation would render nugatory portions of PUA § 25-106. If the Circuit Court was obliged merely to remand the case to the WSSC for a complete "do-over, " without consequences, after the agency failed to develop a more complete agency record and decide the case within 180 days, the purposes underlying PUA § 25-106(d) would be meaningless indeed. Even without the deemed-denial provisions of PUA § 25-106(d), after the passage of 180 days, a common law mandamus action might lie.[17] We will not interpret statutes in such a way as to render them meaningless or nugatory, if reasonable alternatives are available. E.g., Whiting–Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302–303, 783 A.2d 667, 672 (2001), quoted with approval in Miller v. Mathias, 428 Md. 419, 451, 52 A.3d 53, 72 (2012).

PUA § 25-106 is a remedial statute.[18] As such, the statute must be construed liberally to effectuate the remedial purpose of the legislation. Employees' Ret. Sys. of City of Baltimore v. Dorsey, 430 Md. 100, 113, 59 A.3d 990, 997 (2013) (citing Marsheck v. Bd. of Trustees of Fire & Police Employees' Ret. Sys. of City of Baltimore, 358 Md. 393, 403, 749 A.2d 774, 779 (2000)); Washington Suburban Sanitary Comm'n v. Phillips, 413 Md. 606, 620, 994 A.2d 411, 420 (2010); Elste v. ISG Sparrows Point, LLC, 188 Md.App. 634, 653, 982 A.2d 938, 949 (2009). Three goals are evinced by the plain language of PUA § 25-106: (1) to refund charges assessed improperly by the WSSC[19]; (2) for the WSSC to determine timely refund claims (i.e., within 180 days); and, (3) for judicial review of denied claims.

Adopting the WSSC's interpretation would frustrate the remedial aims of PUA § 25-106. Providing the WSSC with a second opportunity to consider outright denial of a refund would mock the requirement of timely determination of refund claims and render judicial review a waste of scarce judicial resources.

Courts are inhibited, however, in their exercise of judgment as to how to effectuate the will of the Legislature. As the WSSC points out, Article 8 of the Declaration of Rights in the Maryland Constitution (requiring separation of legislative, executive, and judicial powers) prevents the courts from making de novo administrative decisions in cases in which some exercise of agency expertise or discretion may yet remain to be applied. See Dep't of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 228, 334 A.2d 514, 525 (1975). Because agency expertise may be exercised by the WSSC in determining the appropriate amount of the charges collected in error, it would be unconstitutional for a court to consider de novo the amount of a refund claim where that issue has not been adjudicated administratively as yet.

The Circuit Court, while sailing its course to a proper resolution of the present case, avoided both the Scylla of running afoul of the Declaration of Rights and the Charybdis of interpreting PUA § 25-106 contrary to the intent of the Legislature. The intent of the Legislature codified in PUA § 25-106 demands that the case not be remanded to the WSSC back to "Square One." The Declaration of Rights bars the courts from considering evidence de novo and judicial review prevents it as well. The Circuit Court violated neither principle by reversing the deemed rejection by the WSSC and ordering remand for the agency to calculate and issue an appropriate refund according to its standard procedures.

The Circuit Court's decision in the present case was not outside the normal scope of judicial review in the main. A court reviewing an agency decision must decide, based on whatever the record reveals, whether the agency's decision is supported by "substantial evidence" and whether the discretionary determinations of the agency may be maintained in the face of the "arbitrary and capricious" standard. See Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 530 n.4, 846 A.2d 341, 349 n.4 (2004). Indeed, in most "denied by operation of law" cases (at least where the agency record contains absolutely no basis for denial or an explanation for why an actual timely hearing and decision was not made), a reviewing court would be hard-pressed, on judicial review, not to reverse the deemed denial. In the present case, the record consisted only of Lafarge's 6 March 2012 refund request and its 9 April 2012 hearing request (with supporting attachments), as the WSSC maintained.[20] Based on the agency "record, " the deemed denial of Lafarge's claim was not supported by substantial evidence.[21] The trial court also found that the WSSC's failure to decide affirmatively Lafarge's claim was arbitrary and capricious.

Although a case should be remanded ordinarily to an agency when the reviewing court determines that the agency decision was not supported by substantial evidence or was arbitrary and capricious, see, e.g., Maryland Bd. of Pub. Works v. K. Hovnanian's Four Seasons at Kent Island, LLC, 425 Md. 482, 522, 42 A.3d 40, 63 (2012); Bereano v. State Ethics Comm'n, 403 Md. 716, 756, 944 A.2d 538, 561 (2008), doing so for deemed denials pursuant to PUA § 25-106, without limitation, would be contrary to the purposes underlying the statute, as we have noted above.[22] The only path forward is to reverse a deemed denial by the WSSC that is unsupported by substantial evidence or arbitrary and capricious.

Anne Arundel County v. Halle Development, Inc., 408 Md. 539, 971 A.2d 214 (2009) is instructive.[23] In Halle Development, a class of property owners sought to recover development impact fees that they argued were assessed improperly by Anne Arundel County. 408 Md. at 543, 971 A.2d at 216. The Circuit Court for Anne Arundel County held that the property owners were entitled to refunds. Id. The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the Circuit Court. Halle Dev., 408 Md. at 551, 971 A.2d at 221. We issued a writ of certiorari to consider, among other questions, whether the Circuit Court erred by declining to remand fully the case after reversing decisions of the County administrative officials. Halle Dev., 408 Md. at 551-52, 971 A.2d at 221. The County contended that the Circuit Court was obligated to remand the case. We affirmed.

We concluded in Halle Development that no administrative function remained to be performed after the County agency failed to perform administrative functions within the required time period. Halle Dev., 408 Md. at 558-59, 971 A.2d at 225. We refused to allow the county "to go back and make administrative decisions that it failed to effectively execute when permitted." Halle Dev., 408 Md. at 559, 971 A.2d at 226.

In Halle Development, the Circuit Court remanded for the precise determination of which property owners were eligible for refunds.[24] 408 Md. at 550, 971 A.2d at 220. The trial court did not attempt to determine exactly which charges were assessed properly against which property owners. Instead, the Circuit Court remanded for additional determination by the County agencies, which decision would be subject to subsequent judicial scrutiny.

The present case shares the key considerations reflected in Halle Development. As in Halle Development, the administrative agency is obliged to act within a limited time period, but failed to fulfil its obligation. In both cases, a circuit court ordered the agency to issue a refund, without giving the agency a second chance to determine whether to deny outright a refund. Finally, in both cases, additional agency consideration was ordered regarding the proper amount of the refund owed.[25]

Given the legislative intent to provide for refunds when charges are assessed improperly, it is appropriate to remand the case to the WSSC for calculation of the amount of the refund due. The legislative intent evident from the plain language of PUA § 25-106 is that refunds should be issued for improperly assessed charges.[26] [27]

III. Production of the Investigative File

Our holding regarding the Circuit Court's reversal of the WSSC's deemed denial of Lafarge's claim and limited remand renders moot the WSSC's question regarding the authority of the Circuit Court to order production of the agency's investigative file, whether for consideration as part of the agency "record" or otherwise. We note, however, an observation or two as to this contretemps because instances of judicial review of deemed denials by operation of law are "an exotic bird in these woods." [28]

The WSSC does not claim any prejudice resulting from the production of the investigative file. Indeed, production of additional documents could help furnish the sparse administrative record with evidence sufficient to justify the deemed denial. By the same token, this sort of "evidence" had not been tested by the crucibles of examination/cross-examination (if a witness or witnesses were called to authenticate or identify the documents) or rebuttal evidence. Nonetheless, "[i]t is the policy of this Court not to reverse for harmless error and the burden is on the appellant in all cases to show prejudice as well as error." Crane v. Dunn, 382 Md. 83, 91, 854 A.2d 1180, 1185 (2004) (citing Rippon v. Mercantile Safe Deposit Co., 213 Md. 215, 222, 131 A.2d 695, 698 (1957)). As such, we decline to determine whether the Circuit Court erred by ordering the WSSC to produce, in this judicial review proceeding, additional documents from the agency's preliminary investigation of the claim. Generally, supplementation of an agency record while on judicial review is not permitted, except where agency bias or improper ex parte communications are asserted. See Montgomery Cnty. v. Stevens, 337 Md. 471, 484-85, 654 A.2d 877, 883-84 (1995); c.f. SG § 10-222(f) (indicating that additional evidence should generally be collected by the agency).

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.


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