Court for Baltimore City Case No. 24-C-16-000255
Deborah S. Leahy, Harrell, Glenn T., Jr. (Senior Judge,
Specially Assigned), JJ.
Michael Foy, complains here that the Circuit Court for
Baltimore City remanded erroneously his employment
disciplinary case to Baltimore City Division of Pretrial
Detention and Services (DPDS) Commissioner, John S. Wolfe, to
conduct a second penalty increase meeting. Foy contends that
remand to the Commissioner is inappropriate and that the
Commissioner's prior decision to terminate him as a
prison guard be reversed, without further administrative
proceedings. He asserts Commissioner Wolfe abridged his
rights under the Correctional Officers' Bill of
Rights (COBR) when the Commissioner increased to
termination the Baltimore City Department of Corrections'
Hearing Board's (Hearing Board) recommended lesser
punishment, without conducting a timely and proper
on-the-record penalty increase meeting, and thus violated Md.
Code (1999, 2017 Repl. Vol.), § 10-910(b)(6)(ii) of the
Correctional Services Article (Corr. Servs.).
The circuit court (in its remand order) found that:
[Commissioner] Wolfe failed to satisfy the final portion of
[Corr. Servs. § 10-910(b)(6)(ii)] when the audio
equipment failed to capture [Appellant's penalty increase
meeting] on the record[, ] . . . [and] a substantial right of
[Appellant's] has been prejudiced when the penalty
increase hearing, due to the failure of the audio recording
equipment, was not captured on the record . . . .
appeal, Appellant poses the following questions:
I. Did Appellee [Commissioner Wolfe] violate Appellant's
Rights under the COBR when he increased the recommended
penalty of the Hearing Board without recording the penalty
increase [meeting]; and
II. Did the circuit court err in remanding the case to
conduct another penalty increase [meeting]?
contends that Appellees violated the COBR when Commissioner
Wolfe failed to follow the mandatory requirements of Corr.
Servs. § 10-910(b)(6)(ii) in the course of increasing
Appellant's disciplinary punishment. Specifically,
Commissioner Wolfe failed to "allow [Appellant] to be
heard on the record" by neglecting to capture the
contents of the only penalty increase meeting convened and,
in place of such a record, tendering an uncompliant
alternative "record." The window of opportunity for
enhancing the Hearing Board's recommended sanction closed
once Commissioner Wolfe failed to comply with Corr. Servs.
§ 10-910(b)(6)(ii) within the time frame allowed by the
initial response to this judicial review action on appeal,
Appellees filed with this court a motion to dismiss asserting
that the circuit court's order of remand was not an
appealable final judgment because the remand contemplated
further administrative proceedings. On the merits, Appellees
argue that Commissioner Wolfe acted in good faith and
complied substantially with the requirements of Corr. Servs.
good faith efforts at substantial compliance are represented
by a memorandum memorializing what, according to his
recollection, was said at the uncaptured penalty increase
meeting and his attempts to reschedule the meeting within the
allowed timeframe, presumably to rectify the recording
equipment malfunction that occurred earlier. In addition,
Appellees point also to a lack of any prejudice suffered by
Appellant due to the absence of a formal recording.
Appellees' motion to dismiss. We hold that
Appellant's COBR rights were violated. Moreover, the
circuit court remanded erroneously Appellant's case to
Commissioner Wolfe to conduct a second, but untimely
on-the-record meeting. The proper remedy is to reinstate the
Hearing Board's penalty recommendation as the final
administrative action (the computation of back-pay aside)
under the circumstances of this case.
January 2014, Foy, a Lieutenant at the Baltimore City
Detention Center (BCDC), was accused of using excessive force
against a BCDC inmate. On 10 April 2014, the BCDC issued to Foy a
notice of disciplinary charges recommending his termination.
Foy appealed to the Hearing Board. The Hearing Board found
Foy guilty of ten of twelve disciplinary charges brought
against him. The Hearing Board recommended that his penalty
be reduced to a "Transfer to Baltimore City Booking and
Intake Center & Demotion to Sergeant."
Wolfe received a copy of the Hearing Board's
recommendation on 23 November 2015. He reviewed the
administrative record made to that date, found the Hearing
Board's penalty inadequate, and proposed to increase
Foy's punishment under Corr. Servs. § 10-910(b)(6).
On 9 December 2015, the Commissioner conducted a penalty
increase meeting with Foy and his counsel. Following the
meeting, Commissioner Wolfe discovered that the audio
recording equipment used to make a verbatim record of the
meeting malfunctioned, failed to capture what was said at the
meeting, as required by Corr. Servs. § 10-910(b)(6)(ii).
The Commissioner notified promptly Foy's counsel of the
equipment failure. The Commissioner and Appellant's
counsel agreed to reconvene, with Foy, on 17 December 2015
for another attempt at holding a recorded
December 2015, Commissioner Wolfe memorialized his
recollection of what transpired at the unrecorded penalty
increase meeting in a written memorandum to Stephen T. Moyer,
Secretary of Public Safety and Correctional
Services. Foy's counsel confirmed with
Commissioner Wolfe's office to hold a remedial penalty
increase meeting on 16 December 2015. Later that day,
however, Commissioner Wolfe canceled, without explanation,
the meeting. Commissioner Wolfe made no further effort to
reschedule a meeting. Rather, on December 16, Commissioner
Wolfe, with the permission of Secretary Moyer, increased the
Hearing Board's recommended punishment of Foy from
"Transfer to Baltimore City Booking and Intake Center
& Demotion to Sergeant" to termination of his
employment. Foy filed an action for judicial review in the
Circuit Court for Baltimore City, arguing solely that the
Commissioner violated his rights under the COBR when he
increased the Hearing Board's recommended punishment
without recording the penalty increase meeting. Foy requested
the circuit court to rescind Commissioner Wolfe's
increased penalty, re-impose the Hearing Board's
recommended penalty, and reinstate him accordingly, with
commensurate back pay.
circuit court found, in relevant part:
That an error of law occurred at the penalty increase hearing
when the audio recording equipment failed and there was no
audio record of the meeting; and it is further found . . .
[that Commissioner] Wolfe failed to satisfy the final portion
of [Corr. Servs. § 10-910(b)(6)(ii)] when the audio
equipment failed to capture the hearing on the record . . .
and a substantial right of [Foy] has been prejudiced when the
penalty increase hearing . . . was not captured on the
result, the circuit court ordered that "this case be
remanded for the purpose of conducting another penalty
increase meeting so that a complete record of the
administrative proceeding is available for the [c]ourt on
Appellees' Motion to Dismiss.
move to dismiss this appeal on "the grounds that [we]
lack jurisdiction over this matter because the order
appealed from is not a final judgment." They aver that
Appellant has not been put out-of-court by the remand order
from which he sought judicial review. As such, Appellant
cannot satisfy the critical requirement for an appealable
final judgment. The circuit court ordered a remand for the
appointing authority to conduct another penalty increase
meeting so that a complete record might be available for any
further judicial review.
responds that the circuit court's remand order was
authorized by Md. Code (1984, 2014 Repl. Vol.) §
10-222(h)(1) of the State Government Article (State
Gov't), and is an appealable final judgment under
Metro Maint. Sys. S., Inc. v. Milburn, 442 Md. 289,
299-307, 112 A.3d 429, 435-40 (2015). Under Milburn,
remands ordered pursuant to State Gov't § 10-222(h)
are appealable immediately because the order terminates the
judicial proceeding, and denies the parties any means of
further prosecuting or defending the action.
The Circuit Court's Remand Order is an Appealable Final
resolution of a motion to dismiss raised on appeal is left to
the sound discretion of this Court. MD. RULE 8-602. In the
exercise of that discretion, we will dismiss an appeal if it
is not a final judgment entered in a civil or criminal case
by a circuit court, or if a non-final judgment does not fit
within the statutory exceptions or the collateral order
doctrine. A ruling must have the following
"three attributes to constitute a final judgment: 1) it
must be intended by the court as an unqualified, final
disposition of the matter in controversy; (2) unless the
court acts pursuant to Maryland Rule 2-602(b) to direct the
entry of a final judgment as to less than all of the claims
or all of the parties, it must adjudicate or complete the
adjudication of all claims against all parties; (3) it must
be set forth and recorded in accordance with Rule
2-601." Rohrbeck v. Rohrbeck, 318 Md.
28, 41, 566 A.2d 767, 773 (1989). The purpose of the final
judgment rule is "to promote judicial efficiency by
avoiding piecemeal appeals." Milburn, 442 Md.
at 298, 112 A.3d at 435 (citing Brewster v. Woodhaven
Bldg. & Dev., Inc., 360 Md. 602, 616, 759 A.2d 738
specifically whether a circuit court's remand order
entered in a judicial review action is an appealable final
judgment, Milburn noted:
if, applying the appropriate standard of review, the
[circuit] court finds that there was not substantial evidence
to support the agency decision or that the agency made an
error of law, it will likely remand the case to the agency,
which will ultimately determine the parties' rights by
applying the law as directed by the circuit court. Such a
remand may appear to be non-final in nature, but under the
principles of finality in Maryland . . . many such remands
are appealable final judgments.
Milburn, 442 Md. at 301, 112 A.3d at 436. When a
circuit court considers a judicial review action from a state
administrative agency decision, and remands the case because
the agency's decision is inconsistent with law, that
iteration of the case has reached its end. Id.
Therefore, a remand after a circuit court has conducted a
judicial review of the sole question raised in the
administrative action, precluding the parties from further
contesting or defending the validity of the agency's
decision on the merits in that case, is an appealable final
judgment. Milburn, 442 Md. at 305, 112 A.3d at 439.
See also Hickory Hills LimitedPartnership v. Secretary of
State, 84 Md.App. 677, 686, 581 A.2d 834 (1990)
(contrasting the type of remand occurring before judicial
review occurs with a "remand that a court might order
under the APA after the court has conducted judicial review
and made its assessment of the agency decision.").
[A] remand, governed by . . . [State Gov't] §
10-222(h), is a final order because, when the circuit court
orders a remand after judicial review, it does so because it
has found that the agency's decision is inconsistent with
law or unsupported by substantial evidence. The parties can
no longer defend or challenge that agency decision in the
circuit court and there is nothing further for that court or
the parties to do. Thus, that remand terminates the circuit
Milburn, 442 Md. at 307, 112 A.3d at 440.
circuit court's order here is a hybrid of
judicially-reviewed conclusions and a determination that the
"record is insufficient to allow for a fair
consideration of the issue."For this reason, we find
Milburn and Schultz v. Pritts, 291 Md. 1,
432 A.2d 1319 (1981) instructive.
noted, in the context of a challenge to the appealability of
a circuit court's remand order, that the work of the
circuit court was not done; the circuit court deferred
further consideration of Milburn's challenges to the
merits of the agency's decision pending remand and the
agency's subsequent remedial decision. Milburn,
442 Md. at 308, 112 A.3d at 441. ("There was no
discussion of the agency record or the merits of the case.
The circuit court characterized the [agency's
pre-emptive] motion as a request for a 'do over' that
would precede the court's consideration 'whether
there's substantial evidence and . . . whether or not to
affirm'"). The "remand order did not involve a
determination whether the agency decision is consistent with
law or supported by substantial evidence."
Milburn, 442 Md. at 310, 112 A.3d at 441. Thus,
Milburn held "that a remand that precedes any
judicial review is not a final judgment."
Milburn, 442 Md. at 310, 112 A.3d at 442.
Schultz, the context was of a local government board
of zoning appeals denying property owners a requested special
exception. Schultz, 291 Md. at 3-4, 432 A.2d at
1321.The property owners appealed to the circuit court, which
conducted a review of the administrative record and
proceedings. Id. It "determined that there had
been a denial of due process because the [b]oard had
considered evidence submitted after the close of the
hearing." Id. The circuit court "reversed
and remanded the matter to the [b]oard for a new
hearing." Schultz, 291 Md. at 4, 432 A.2d at
1321-22. On appeal, the Court of Appeals agreed that, under
those circumstances, a circuit court's order remanding a
proceeding to an administrative agency is an appealable final
order. Schultz, 291 Md. at 6, 432 A.2d at1322
(citing Department of Public Safety & Correctional
Services v. Le Van, 288 Md. 533, 542-43, 419 A.2d 1052,
1057 (1980)). The circuit court's finding in its remand
order that the agency's decision was inconsistent with
law was an appealable final judgment. Id.
the findings of the circuit court in its remand order are a
mix of the characteristics of the orders in Milburn
and Schultz, but, in our view, bear ultimately more
resemblance to Schultz. The circuit court in the
present case made findings of law based on the state of the
record presented to it (vis a vis the statutory requirement
for conducting an on-the-record penalty increase hearing
within the allowable time period), finding that:
[n]either [Commissioner] Wolfe's written memorandum of
[10 December 2015] to Secretary Stephen T. Moyer nor
[Commissioner] Wolfe's Affidavit of [5 May 2016],
meet the statutory requirements of a hearing on the
record nor do these writings cure the defect as it is neither
objective nor complete . . ., as [Appellant] asserts, as
required by [MD. RULE 7-113(d)(2)], that an error of law
occurred at the penalty increase hearing when the audio
recording equipment failed and there was no audio record of
the meeting . . ., [Commissioner] Wolfe satisfied the
statutory requirement of [Corr. Servs. §
10-910(b)(6)(ii)] by meeting with [Appellant] and his
counsel, allowing [Appellant] to be heard but
[Commissioner] Wolfe failed to satisfy the final portion
of this particular statutory requirement when the audio
equipment failed to capture the hearing on the record . . .,
[and] a substantial right of [Appellant's] had been
prejudiced when the penalty increase hearing . . . was not
captured on the record.
Schultz, the circuit court reviewed the agency
decision, made a determination as to its legality, and
remanded the case for additional proceedings.
Schultz, 291 Md. at 4, 432 A.2d at 1321-22. The
parties could take no further action in the circuit court at
that point, and the court chose to do nothing more.
Id. Analogously, the circuit court found here that
Commissioner Wolfe violated Appellant's Corr. Servs.
§ 10-910(b)(6) rights. Given Appellant's sole
argument in the judicial review action, there was nothing
more for the circuit court or either party to do regarding
did not contend (and has not contended) below or here that
the Hearing Board erred regarding its findings of fact,
conclusions of law, or its recommended
punishment. Rather, Appellant contends solely that
Commissioner Wolfe's failure to comply with the mandatory
requirements of Corr. Servs. § 10-910(b)(6), especially
when he still had time to do so after learning of the
equipment malfunction, warrants vacation of Appellant's
employment termination and reinstatement of the Hearing
Board's recommendation, with commensurate back-pay.
point to the circuit court's findings that sound more
like those in Milburn, however:
[Foy] demonstrated that the record is insufficient to allow
for a fair consideration of the issues and simply cannot be
reconstructed; and . . . it is hereby ordered, that this case
be remanded for the purpose of conducting another penalty
increase hearing so that a complete record of the
administrative proceeding is available for the [c]ourt on
noted that "there had been no judicial assessment of the
legality of the agency's decision; the remand order
merely acceded to the agency's request for a limited
opportunity to reconsider and possibly modify its findings or
decision [before] judicial review." Milburn,
442 Md. at 309-10, 112 A.3d at 441. The circuit court did not
discuss the agency record or the merits of the contentions
put on-the-table by Milburn in the case. Milburn,
442 Md. at 296, 112 A.3d at 433. As in Milburn, here
the circuit court's findings are premised on a similar
basis, in part. They lack any discernable conclusions of law
or findings of fact. Rather, the circuit court appeared to
profess an inability to assess the merits of Commissioner
Wolfe's conclusion to fire Foy, in light of the
unrecorded penalty increase meeting.
life raft leaks, however. The sole dispute before the circuit
court and here is not over whether the conclusion
Commissioner Wolfe reached was supported by substantial
evidence, but rather whether the process utilized to reach it
violated Foy's COBR rights. Unlike Milburn, the
circuit court here made clear findings on the merits of
Appellant's sole appellate claim. Most notably, the
circuit court found that "an error of
law occurred at the penalty increase hearing"
and "Commissioner Wolfe "failed to satisfy the
final portion of [Corr. Servs. § 10-910(b)(6)(ii)] when
[he] . . . failed to capture the hearing on the
record." (emphasis added). The circuit court's
findings that an error of law occurred and that Commissioner
Wolfe failed to satisfy a statutory requirement are more in
line with Schultz's holding that the zoning body
denied the property owners due process. Schultz, 291
Md. at 4, 432 A.2d at 1321-22.
is determined by what further proceedings, if any, will occur
in the circuit court. Milburn, 442 Md. at 310, 112
A.3d 442. No further proceedings will occur on the circuit
court's findings of law on the merits of Appellant's
sole legal challenge. The circuit court found "that in a
judicial review of an administrative hearing, the [c]ourt may
'remand the case for further proceedings.'"
(citing State Gov't § 10-222(h)). Milburn
held that a remand ordered under State Gov't §
10-222(h) is an appealable final judgment. Milburn,
442 Md. at 307, 112 A.3d at 440 (2015). We agree. Thus, we
deny Appellees' motion to dismiss.
The Commissioner Violated Appellant's COBR Rights When He
Failed to Record a Penalty Increase Meeting Within the Time
Allowed By Law.
avers that Corr. Servs. § 10-910(b)(6) requires, on the
part of Commissioner Wolfe, the satisfaction of four
requirements within 30 days after the Commissioner received
the Hearing Board's decision before he may increase
Appellant's penalty beyond that proposed by the Hearing
Board. Commissioner Wolfe's failure to capture the
penalty increase meeting on the audio record was in violation
of Corr. Servs. § 10-910(b)(6)(ii). His unexplained
failure to conduct and record a remedial meeting within the