On April 8, 2022, the MSBA presented a Judicial Review of Administrative Agency Decisions. John Grimm, Vice-Chair of the section council of the Administrative Law Section moderated the program. Judge Andrea Leahy of the Maryland Court of Special Appeals; Judge Kathleen Cox, who recently retired from the Baltimore County Circuit Court; Meghan K. Casey, a partner at Gallagher Evelius & Jones; and V. Shiva Goel, a partner at Harris, Wiltshire & Grannis LLP joined Grimm.
The program kicked off with a discussion of initiating judicial review in Maryland and federal courts. The major takeaway was that there is not a singular path to follow to obtain review of agency decisions by the courts. In administrative law, all actions fall into two categories: rulemaking and adjudication. Federal courts do not have inherent authority to review agency decisions, but certain statutes permit review. Maryland courts have both statutory and inherent authority to review agency decisions. Maryland and federal courts apply similar standards of review and concepts of deference to agency interpretations of statutes and regulations.
Key questions to consider when beginning an appeal of an agency action are: whether you are dealing with a state or federal agency, what statutes or rules govern your case, what court has the authority to hear your case, how is the agency action characterized, and what is the standard of review. Grimm and Casey also explained how to initiate a review of an administrative agency decision in the federal and Maryland courts.
Judge Leahy then discussed administrative exhaustion requirements. The first step is to determine if federal or state law applies. In Maryland, the Court of Appeals has instructed that exhaustion of administrative remedies is a threshold issue that the courts treat as jurisdictional in nature. Consequently, the courts will address whether administrative remedies were properly exhausted even if a party does not raise the issue. In the federal courts, conversely, it is presumed that exhaustion is non-jurisdictional unless Congress has stated in clear, unequivocal terms that the courts cannot hear an action until the administrative agency has come to a decision.
The exhaustion requirement stems from three sources: statutory, agency rules, and case law. Judge Leahy noted that the General Assembly often imposes exhaustion requirements within the statutory scheme it creates. If the General Assembly has created an exclusive or primary administrative remedy and a judicial review remedy, a declaratory action brought outside that remedial scheme is prohibited by the Declaratory Judgments Act. Generally, where a Maryland statute creates a special form of remedy, the plaintiff must use that form, and if their efforts are unsuccessful, they have to seek the judicial review provided by the Legislature instead of invoking the ordinary jurisdiction of the courts. There are numerous exceptions to the exhaustion rule, though, that generally fall within four distinct categories: constitutional challenge, inadequate or unauthorized procedure, inadequate remedy, and lack of agency jurisdiction.
Goel then provided insight on how to prepare the record for appeal. He explained that preparing the record for appeal and convincing the agency to rule in your favor are two distinct goals. Parties filing an appeal should “audit” the record with an eye toward the appeal and supplement it as needed before the court renders a decision. The objective is to preserve arguments through issue exhaustion. Parties should also strategically supplement the records to set up a reasoned decision-making challenge.
Goel noted that parties who prevail at the agency level also regularly participate in judicial review as well, and they can also benefit from audits and supplementing the record to increase the odds of success on appeal. The Chenery Doctrine reflects issue-exhaustion-like requirements back onto the agency. Agencies often rely on supporting parties to help them meet their substantial evidence standard, explain the basis of their statutory authority, identify all opposing arguments meriting a response, and develop reasoned explanations for the final course chosen.
Judge Cox wrapped up the program with suggestions for parties seeking review in trial and appellate courts. She cautioned people not to assume their audience is well versed in the area discussed on review, and advised them to know their case assignment system and whether a judge will be assigned, which could impact their familiarity with the record. She called attention to the rules regarding memoranda at the trial court level and recommended that parties drafting memoranda structure them like appellate briefs and include a prominent, concise statement of the standard review. In cases involving complex records, parties should seek permission to submit the equivalent of a record extract.
The program will be available on the Administrative Law Section’s page shortly.