Mayor & City Cnc. of Balt. v. ProVen Mgmt. , 472 Md. 642 ( 2021 )

Mayor and City Council of Baltimore v. ProVen Management, Inc., No. 8, September
Term, 2020, Opinion by Booth, J.
ADMINISTRATIVE LAW & PROCEDURE — JUDICIAL REVIEW — COMMON
LAW MANDAMUS — RIGHT TO APPEAL — Where a petition for judicial review of
an agency decision is filed under a local charter or ordinance, for which there is no right of
appellate review beyond the circuit court, Courts and Judicial Proceedings Article (“CJ”)
§ 12-302(a) precludes appellate review in the Court of Special Appeals and the Court of
Appeals. In determining whether there is a right to appeal, we look at the nature and
substance of the circuit court action as a whole to determine whether it was, in fact, an
action seeking judicial review of an administrative agency decision (for which appellate
review is precluded under CJ § 12-302(a)), or whether it was a common law mandamus
action (for which appellate review would be available under the general appeals statute, CJ
§ 12-301). Applying these principles to the circuit court proceeding in this case, the Court
of Appeals held that action was, in both form and substance, an action seeking judicial
review of an administrative agency decision filed under the applicable provisions of the
Baltimore City Charter, and therefore, the Court of Special Appeals had no jurisdiction to
consider this appeal.
Circuit Court for Baltimore City
Case No.: 24-C-17-004805
Argued: October 30, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 8
September Term, 2020
MAYOR AND CITY COUNCIL
OF BALTIMORE
v.
PROVEN MANAGEMENT, INC.
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Battaglia, Lynne A.
(Senior Judge, Specially Assigned),
JJ.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
Opinion by Booth, J.
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-03-02 13:23-05:00
Filed: March 1, 2021
Suzanne C. Johnson, Clerk
“It is an often stated principle of Maryland law that appellate jurisdiction, except
as constitutionally authorized, is determined entirely by statute, and that, therefore, a right
of appeal must be legislatively granted.” 1 In this case, we must determine whether the
Court of Special Appeals had jurisdiction to consider an appeal filed by ProVen
Management, Inc. (“ProVen”) in connection with work that it performed under a contract
with the Baltimore City Department of Public Works (“Department”). The contract
required that ProVen clean certain sewer lines for a lump sum contract price of almost $4
million. When the work was completed, ProVen sought an additional $1.6 million in
compensation under the contract. After three levels of administrative review involving
written submissions, and a hearing before the Department’s Director, the Director issued
a final written decision in favor of the City.
ProVen filed a petition for judicial review in the Circuit Court for Baltimore City,
alleging procedural due process errors, as well as substantive errors. ProVen requested
that the circuit court enter judgment in its favor on its monetary claims and remand the
matter to the Director for a determination on damages. The circuit court affirmed the
Director’s decision.
ProVen filed an appeal to the Court of Special Appeals, once again alleging that
the Director made substantive and procedural errors. The City filed a motion to dismiss
in connection with its brief, alleging that the Court of Special Appeals lacked jurisdiction
under Courts and Judicial Proceedings Article (“CJ”) § 12-302(a). In an unreported
1
Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997),
cert. denied, 522 U.S. 1053 (1998).
opinion, the Court of Special Appeals denied the City’s motion to dismiss, concluding
that it had jurisdiction to consider the matter under Murrell v. Mayor and City Council of
Baltimore, 376 Md. 170 (2003). In re ProVen Mgmt., Inc., No. 610, 2020 WL 119651,
at *12 (Md. Ct. Spec. App. Jan. 10, 2020). After determining that it had jurisdiction to
consider the appeal, the intermediate appellate court “neither affirmed nor reversed” and
remanded the matter to the circuit court with “instructions to remand the case to the
Agency for further proceedings and the filing of a decision that complies with ministerial
requirements.”
As set forth more fully herein, whether the Court of Special Appeals had
jurisdiction to consider this matter depends upon whether ProVen’s “petition for
judicial review” was in fact a petition seeking judicial review of a decision of an
administrative agency arising under statute or local law (for which appellate review by
the Court of Special Appeals would be precluded by CJ § 12-302(a)) or whether it was
a common law mandamus action (for which appellate review would be available under
the general appeals statute, CJ § 12-301). For the reasons set forth herein, we hold that
ProVen’s petition for judicial review was, in both form and substance, a petition for
judicial review of an administrative agency decision arising under the applicable
provisions of the Baltimore City Charter, and not a common law action seeking a writ
of mandamus. Because the Charter did not provide a right of appeal to the Court of
Special Appeals, that court had no jurisdiction to consider the matter and dismissal was
required.
2
I.
Factual Background and Procedural History
Although the basic facts giving rise to this appeal are not in dispute, we shall discuss
them in order to provide some context for the proceeding that ultimately gives rise to the
jurisdictional issue presented.
A. The Contract
In July 2013, the Department solicited bids for a contractor to clean a large section
of the City of Baltimore’s (“City”) sewer system. The contract documents required the
removal of sediment and debris from 12,000 linear feet of underground sewer lines that
run from North Schroeder and West Lexington Streets to North Wolfe and East Chase
Streets. The work was to be performed according to the Department’s detailed design
specifications and drawings. Bidders were advised of conditions that they might encounter
in the sewer lines and were provided sonar sediment profiles showing the volume of debris
that could be expected. Bidders were also instructed that they could assume that the unit
weight of the extracted material would be 0.9 tons per cubic yard, based upon a similar
sewer clearing project that had been undertaken in the City.
The contract documents divided the sewer lines to be cleaned into 37 segments, 21
of which were located to the west of Greenmount Avenue (the “west side”) and 16 of which
were east of Greenmount Avenue (the “east side”). The contractor was to use special
equipment to push the debris down the sewer line to the end of each segment, where it
would be extracted through a manhole and transported to a waste management facility.
3
Sewage flowed in the sewer lines from west to east. Consequently, the contract
documents required the project to proceed sequentially from the west side to the east side
to avoid having subsequent work push debris into already cleaned segments. The contract
documents stated that the Department would consider permitting the contractor to work on
multiple segments at a time to comply with the established time limits, but, to avoid
contamination caused by non-sequential work, the Department would only approve
segments if all upstream segments had been completed and approved.
The contract restricted daytime roadway and lane closures, which meant that most
of the work would have to occur during nighttime hours, between 7:00 p.m. and 6:00 a.m.
The time for completion was 365 days, and the contract stated that time was of the essence.
In the event the project took more than 365 days, the City had the right to assess liquidated
damages in the amount of $500 per day. It also provided for compensable time extensions
for changes in the work requested by the Department.
ProVen submitted a fixed price bid and was awarded the contract in the original sum
of $3,894,473. ProVen and the City entered into the contract on April 23, 2014. The
Department issued a notice to proceed with the work on July 29, 2014 and July 30, 2015
was set as the completion date.
The parties agree that the project did not go as planned. The cleaning proved more
challenging than expected for various reasons. For example, in October 2014, ProVen
encountered hazardous waste material, which required the City to suspend work on the
project for about 38 days. After resolving the issue, in an effort to get the project back on
schedule, ProVen obtained the City’s approval to work on the west side of the project
4
during daytime hours. Less than a month after obtaining the City’s approval, the
Department ordered ProVen to cease working at night on the west side of the project
because a complaint had been made about the noise level. On the east side of the project,
ProVen encountered a large amount of rags in the extracted material, making extraction
more difficult than typical sediment. The Department did not issue conditional acceptance
of the work until December 12, 2016—roughly a year and a half behind schedule.
Throughout the project, the Department approved several adjustments in time and
compensation, but ProVen asserted that it was entitled to additional compensation and time
extensions. ProVen and the City disagreed about who caused many of the delays and the
problems, as well as which party bore the risk of such delays and problems.
Under the contract, disputes were to be resolved under the procedures set forth in
the disputes clause2 and the Baltimore City Charter Article II, § 4A(g).
2
The contract’s dispute clause incorporated by reference the City’s process for
handling contract disputes set forth in the City’s Standard Specifications, which generally
applies to construction contracts entered into by the Department, and which is commonly
referred to as the “Green Book.” Green Book Specification 00 73 84 provides a multi-
level administrative review process. Green Book, Specification 00 73 84, (A)(1)–(4). The
first step of the administrative process involves review of the claims by the project’s
inspector, engineer, and the Department’s division head of construction management. Id.
at (A)(2). As part of that administrative review process, the contractor is required to submit
a written itemized statement of the factual and contractual details and supporting
documents related to the claim. Id. at (A)(1). Any claims that are denied can be appealed
for review by the Head of the Bureau. Id. at (A)(2). If denied again, the claims can be
appealed for review by the Department’s Director. Id. at (A)(3).
With respect to the administrative hearing before the Director, the Green Book states
that the Director “shall act as the Hearing Officer and shall hold one [] administrative
hearing on the record at the conclusion of the Work on the Contract to resolve any and all
claims and/or disputes, which have been timely, appealed to the Director, pursuant to these
procedures.” Id. at (A)(4)(a). “The decision of the Director is final and conclusive, but is
5
B. Initial Administrative Review
On January 5, 2017, pursuant to the contract’s disputes clause, ProVen submitted a
formal administrative request to the Office of Engineering and Construction (the “OEC”)
for more than $1.6 million in additional compensation for at least 11 different claims. In
an approximately 160-page letter addressed to the OEC’s construction project supervisor,
ProVen detailed claims for more than $1.6 million in additional compensation and a time
extension of 590 days. After reviewing ProVen’s claims, the OEC construction project
supervisor issued a four-page response denying ProVen’s claims for additional
compensation and instead recommended that “a total of 15 non-compensable calendar days
be added to the authorized completion date.”
Following the procedure outlined in the contract’s disputes clause, on March 21,
2017, ProVen filed a notice of appeal of the OEC’s denial of the claims. Under the second
level of review, the Acting Chief of the OEC “found no grounds” to change the OEC’s
initial determination, advising that it would accept the construction project supervisor’s
conclusion, and confirmed the OEC’s recommendation that 15 non-compensable days be
added to the authorized completion date.3 The Acting Chief noted that the City was
“considering and reserving the right to assess liquidated damages in the amount of $500.00
subject to review on the record by a court of competent jurisdiction pursuant to the
Baltimore City Charter.” Id. at (A)(4)(c).
3
At this second administrative level of review, in addition to considering ProVen’s
written claim and supporting documentation, the OEC met with representatives of ProVen
to discuss ProVen’s claims and the OEC’s initial response.
6
per day[.]” Dissatisfied with the decision, ProVen appealed to the Department’s Director,
Mr. Rudolph Chow, P.E., for additional administrative review.
C. The Administrative Proceeding Before Director Chow
An administrative hearing was held before Director Chow on June 29, 2017. The
hearing was recorded and generated a 57-page transcript. At the outset of the
administrative hearing, Director Chow laid out some “ground rules,” stating that the
hearing would proceed in “six steps[,]” which included opening statements by each party,
with an opportunity for each party to provide their contentions, an opportunity for each
party to rebut the contentions of the other, and closing arguments.4 Director Chow
explained that he did not want the hearing “to be a long drawn out argument going back
and forth” because he felt he had “all the information, the exchange, hearings or discussions
or email exchanges and all that[.]” Nevertheless, Director Chow acknowledged that “if
either side feels that additional information needs to be provided” to “please do so during
this hearing.” Director Chow informed the parties that he intended to issue a decision based
solely on information received prior to the hearing and any additional information provided
during the hearing.
4
As noted above, the Green Book states that the administrative hearing before the
Director shall be conducted “on the record” but it does not describe any hearing procedures
or requirements other than the preparation of a transcript, the cost of which is shared
equally by the parties. Green Book, Specification 00 73 84, (A)(4)(a), (b). As set forth
herein, although the witnesses were not sworn, three representatives from ProVen were in
attendance and provided statements in support of ProVen’s position. The Director also
received additional exhibits.
7
In his opening statement, counsel for ProVen explained that the central legal issue
was whether there was a “differing site condition” that had been discovered during the
work that was materially different from the specifications in the contract “that nobody
expected to find.” ProVen’s counsel explained that, as a result of the differing site
condition, they were requesting “an adjustment in the contract either in time or money[.]”
Although the witnesses were not sworn, three ProVen representatives gave
statements in support of ProVen’s claims. Ben Hermann, ProVen’s project manager,
described the “really challenging field conditions” that ProVen encountered throughout the
course of the project. Mr. Hermann explained that ProVen had relied upon the 0.9 tons per
yard calculation that was provided in the City’s bid documents. Mr. Hermann stated that,
once the work started, “23 out of the 35 segments” had a considerably lower volume of
material density, and that the disparity in density was due to an unusually high volume of
rag content. As a result, Mr. Hermann stated that it was necessary for ProVen to undertake
more “manual entry and basically rendering our normal cleaning equipment . . . ineffective
at times.” Mr. Hermann also described further delays arising from “severe pipe
deterioration” in a particular segment. Mr. Hermann outlined ProVen’s efforts to obtain
accurate site information to formulate its cleaning plan, including obtaining pre-cleaning
sonar reports to ascertain accurate volumes and weight of the material, and ProVen’s
efforts to work with the City to keep the project on schedule. In large part due to the
unexpected rag content, Mr. Hermann explained that the differing site conditions were “far
outside what we reasonably expected when we formulated our bid” based upon ProVen’s
review of the contract documents. Mr. Hermann also described ProVen’s efforts to keep
8
the City updated. At the conclusion of Mr. Hermann’s initial statements, counsel for
ProVen submitted five exhibits, which Director Chow admitted into the record.5
Director Chow then asked the City to present its opening statement. The City
presented its case through Mohamad Alkhatib, one of the City’s wastewater project
engineers. Mr. Alkhatib described the City’s bidding process, explaining that, when the
City puts out a bid, it gives the bidders several weeks to review the bidding documents and
ask questions. He noted that the bidders are expected to review the contract drawings and
specifications and are also encouraged to visit the site prior to submitting a bid. Mr.
Alkhatib stated that, in connection with the submission of the bid, one of the contract
stipulations requires that the contractor certify that he or she has reviewed the contract
drawings and specifications and can complete the work within the time period specified.
Mr. Alkhatib stated that in this instance, the contractor did not mobilize its crew or
equipment until September 2014, which Mr. Alkhatib characterized as being four months
after the issuance of the notice to proceed. Mr. Alkhatib stated that for the duration of the
contract, the contractor’s monthly schedule updates showed them “falling further behind”
schedule each month, and that the contractor did not deploy a second crew or equipment
to enable them to catch up despite “encouragement from the City[.]” Mr. Alkhatib pointed
5
The five exhibits submitted by ProVen that were marked and admitted into the
record consisted of: an email dated June 9, 2015, in which ProVen advised that, without
the City’s cooperation, ProVen would not be able to complete the project by December 31,
2015; a written copy of ProVen’s opening statement; a copy of a Code of Maryland
Regulations definition of “differing site conditions;” a “segment-by-segment breakdown”
setting forth the anticipated and actual weight of material removed from each segment; and
a multi-page “schedule update.”
9
out that ProVen did not seek the City’s approval to permit it to work concurrently in
multiple segments by utilizing an additional crew until many months into the project, which
was approved by the City in February 2015.
After Mr. Alkhatib’s opening statement, Director Chow gave ProVen an
opportunity to respond. In response to Mr. Alkhatib’s statements about ProVen’s delays,
Mr. Hermann countered that, at the beginning of the work, he requested that the City permit
ProVen to work 24 hours per day at one location. According to Mr. Hermann, although
the City initially approved the 24-hour work in one location, the approval was rescinded
after a few shifts. Mr. Hermann confirmed that ProVen sought permission from the City
to work in multiple locations with multiple crews, which was granted in February 2015.
Director Chow asked Mr. Hermann about the delay between the issuance of the
notice to proceed and the commencement of the work. Mr. Hermann explained that
ProVen was working on its plan submittals, which had to be approved by the City prior to
the commencement of work. Director Chow questioned the timing of the submittals,
commenting that they should have been submitted and approved prior to the issuance of
the notice to proceed. One of ProVen’s officers, Bill Gilmartin interjected that it was
ProVen’s “first project with the City of Baltimore[]” and that “[n]obody in this room can
deny that there’s an administrative phase before a project begins work in the field where
there are documents submitted to the owner for approval.”
Mr. Hermann outlined the timeline once the work commenced, describing the events
that created delay, including the discovery of hazardous waste materials, and ProVen’s
inability to obtain approval to work with multiple crews on both the east side and west side,
10
which was not approved by the Department of Transportation and the consulting engineer
until June 2015. Mr. Hermann noted that the concurrent work schedule—where a crew
was working in the evenings on the west side and in the daytime on the east side—worked
well until the end of August, when the City issued a stop work order on the west side in the
evenings as a result of noise complaints, which the City contended violated the noise
limitations in the Green Book.
After Mr. Hermann’s statements, Mr. Gilmartin refuted Mr. Alkhatib’s contention
that there had been a four-month delay at the outset of the project, pointing out that ProVen
“was issued notice to proceed on July 29[]” and began working in September, so the delay
was “one month, not four.”
Corbin Marr, who was identified as being in ProVen management, stated that at the
pre-construction meeting prior to the commencement of the work, ProVen representatives
told the City that ProVen’s equipment was “in use on another contract” and that they would
start work as soon as they possibly could. Director Chow followed up on Mr. Marr’s
statement, asking for confirmation that the delay in commencement of construction was
based, in part, on the unavailability of ProVen’s equipment resulting from its use on
another project. Mr. Marr confirmed that it was. Mr. Gilmartin added that ProVen started
the work less than 45 days after the issuance of the notice to proceed, which he viewed as
being reasonable.
On rebuttal, Mr. Alkhatib pointed out that by February 2015, the City had approved
ProVen’s use of multiple crews to work on adjacent sections of the project and had
encouraged this practice, as the City believed that it would “have actually cut the [project]
11
time.” Instead, ProVen opted to seek City approval to undertake concurrent work with
multiple crews on non-adjacent sewer segments in other locations.
In closing, ProVen’s counsel argued that his client should receive additional
compensation based upon principles of fairness and equity, pointing out that ProVen was
seeking an “equitable adjustment” that was “not based upon fault or liability.” ProVen’s
counsel admitted that he was aware of “how the Green Book adjusts for risk” but that,
notwithstanding the contractual allocation of risk, the City should “be fair.” ProVen’s
counsel argued that “what ProVen is asking for [is] fair and reasonable[.]”
By contrast, Mr. Alkhatib summarized the Department’s position as being based
upon the contract provisions and the Green Book. Mr. Alkhatib argued that “the contract
specification[s]” explicitly stated what the contractor might encounter, that the City had
not caused the delays, and that the contract duration was for 365 days. He contended that
the OEC’s determination that the contractor was only entitled to 15 non-compensable days,
as opposed to the contractor’s claim for an additional 624 days in compensable time, was
correct under the contract documents, the Green Book, and the inspector’s daily reports.
Two months later, on August 29, 2017, Director Chow issued the Department’s final
written decision on ProVen’s claims. Because the sufficiency of Director Chow’s findings
of fact is at the center of this dispute, we set forth below his complete final decision:
FACTUAL BACKGROUND
As it did in the earlier claim resolution meetings, ProVen maintained before
me that it experienced delays on the project for which it should be
compensated. The original project duration was 365 calendar days, and the
revised project duration was 380 calendar days. ProVen required 813
calendar days, an increase of 433 days to complete its work. ProVen claims
12
that it is entitled to payment of $1,680,540.09. ProVen asserted that it
encountered a differing site condition which caused the delay. However, in
the appeal, ProVen acknowledged that the contract documents state that the
Contractor could expect any type of material to be found during the cleaning
operations. ProVen further states they were aware of the possibility of bulk
items, and explained the assumptions they made at bid time based on the
contract documents. ProVen acknowledged that the conditions it
encountered were outside of what it expected when ProVen formulated the
bid. It is clear to me that the contract specifications stated exactly what might
be encountered in the pipes and that ProVen was fully aware of these facts
prior to bidding.
In addition, at the Appeal Hearing, it was established that [the notice to
proceed] was issued on July 30, 2014. ProVen did not start work until
September 17, 2014. ProVen testified that equipment that was needed on
this project for the City was in use on another project being worked by
ProVen. This initial delay was caused by ProVen. ProVen continued to fall
behind, and its request to work in multiple areas at once did not occur until
December 2014. By this time, approximately half of the contract time had
been used and it was too late to recover the initial delay. The evidence
presented to me establishes that ProVen caused the initial delay and was not
stopped from working at any time by the City. Due to ProVen’s initial delay,
which increased over time, recovery was not possible.
FINDINGS
I heard and have considered all the argument and testimony presented on
behalf of ProVen and the City. I have also reviewed and considered all
documents presented to me by ProVen and OEC, including the documents
presented and discussed at the hearing by both OEC and ProVen. All
documents presented to me were admitted into the record and considered by
me. After review and consideration, I find no new factual information was
presented by either ProVen or OEC. Therefore, I can find no reason to
overturn OEC’s prior denial of the claim and hereby affirm the denial of
ProVen’s claim in its entirety. In addition, I am affirming OEC’s reservation
of the right to assess liquidated damages at the contractually agreed rate of
$500.00/day for 433 days or $215,500.00.
Based upon his review of the record and specifically noting that ProVen had not
submitted any new factual information or evidence, Director Chow found no reason to
13
reverse the prior decisions and affirmed the previous administrative denials of ProVen’s
claims.
D. Circuit Court Proceeding
In accordance with Article II, § 4A(g) of the Baltimore City Charter,6 ProVen filed
a petition for judicial review of the Director’s final decision in the Circuit Court for
Baltimore City. ProVen filed its memorandum in support of its petition, which was
submitted “pursuant to Maryland Rule 7-207[.]”
In its memorandum, ProVen presented four questions for review, together with
arguments to support each question, as to why the Department’s final decision was
erroneous. The first question was whether the Department’s final decision was “defective
due to a violation of due process under law.” In questions two, three, and four, ProVen
argued that the Department’s final decision denying three of its damages claims—its
hazardous materials claim, its claim relating to the City’s west side work stoppage and
change in work hours (“stopped work claim”), and its claim relating to unanticipated field
conditions relating to the rag content on the east side (“field conditions claim”)—should
6
Article II, § 4A(g) of the Baltimore City Charter governs administrative and
judicial review of contract disputes between Baltimore City and third parties. It provides:
[W]ith regard to a construction contract to which [the City] is a party,
Baltimore City may provide or require that if there is a dispute between the
parties involving $10,000 or more over the terms of the contract or
performance under the contract, the dispute is subject to a determination of
questions of fact by an officer or official body of Baltimore City, subject to
review on the record by a court of competent jurisdiction.
14
be reversed because the Director’s decision was “arbitrary and capricious, . . . unsupported
by substantial evidence on the record, and . . . based upon errors of law.”7
In its memorandum, ProVen cited to the standard of review applicable to the court’s
review of an administrative agency decision—whether there is substantial evidence in the
record to support the agency’s findings and conclusions, and whether the agency’s decision
is premised on an erroneous conclusion of law. ProVen also pointed out that, in order to
permit meaningful judicial review of an agency’s decision, the agency is required to
articulate the facts it relied upon to reach its decision and to state the grounds for its
conclusions.
On its due process contention, ProVen claimed that Director Chow violated
ProVen’s due process rights by not reviewing the entire record. ProVen asserted that it
was clear from the transcript and the written decision that Director Chow “did not review
a substantial portion of the complete record before [the c]ourt.” ProVen argued that the
complete record was over 3,000 pages, and that “the documents that were likely reviewed
by the Department in evaluation of ProVen’s claims were a few hundred.” (Emphasis
added). A review of the transcript, according to ProVen, established that Director Chow
stifled ProVen’s ability to present evidence related to its claims, by moving quickly through
the phases and ending the hearing abruptly without giving ProVen the opportunity to
adequately address each of its claims. ProVen argued that “[t]he parameters of the hearing
7
In its petition for judicial review, ProVen only sought review of three claims raised
before the Department, abandoning the eight additional claims that it had presented during
the administrative process.
15
and Director Chow’s oversight effectively denied ProVen the required hearing, and, thus,
adequate due process.” ProVen also asserted, as a procedural deficiency, that the
Department’s final decision did not address many of ProVen’s specific claims and provided
sparse factual findings. ProVen contended that the final decision “categorically affirms the
underlying decision without providing any evidentiary or legal basis for its conclusion.”
Concerning ProVen’s three substantive claims—the hazardous materials, stopped
work, and field conditions claims—ProVen set forth in detail its reasons for its contention
that the Director’s denial of those claims “was arbitrary and capricious” and was also
“unsupported by the competent, material, and substantial evidence in light of the entire
record.” For each specific claim, in its 33-page memorandum, ProVen expounded on the
facts and legal reasons why it was entitled to additional compensation under the contract.
Significantly, ProVen asked the circuit court to reverse the Department’s decision, enter
judgment in ProVen’s favor on its three claims, and remand the matter to the Department
for a determination on damages, including any accrued interest thereon and costs.
The City filed an opposition memorandum, addressing the merits of ProVen’s
damages claims, and arguing that the Director’s decision was supported by substantial
evidence and supported by the contract and the law. The City also asserted that several of
ProVen’s arguments were not preserved.
The circuit court held a hearing on ProVen’s petition for judicial review on May 2,
2018. At the hearing, ProVen’s counsel reiterated that it was seeking judicial review and
reversal of the Director’s decision. Counsel for ProVen stated that “as a remedy, we ask
that you reverse the decision of the director and remand the case to the director with
16
instructions for him to hold a hearing on damages, that liability has been established,
clearly, by law, based on undisputed facts, for the three claims.”
After reviewing the written memoranda of the parties, the record, and listening to
arguments of counsel, the court took a recess to consider the arguments. After the recess,
the judge ruled from the bench. Noting that the proceeding was an appeal from a decision
of an administrative agency, the court pointed out that under the applicable standard of
review, the court was to apply the substantial evidence test to the Director’s findings of
fact and consider legal conclusions without deference to the agency. The court summarized
the nature of the dispute, and the administrative hearing conducted by Director Chow.
With respect to ProVen’s due process and procedural contentions, the court
commented that Director Chow noted in his written decision that he had reviewed all of
the documents present at the hearing, “along with all documents presented at the prior
meetings and hearings.” The court pointed out that the Director made findings of fact in
his decision. The court explained that the Director’s findings of fact in the “background”
section of his decision had “to be read in conjunction with his findings.” The court
determined that there were sufficient facts to form the basis of Director Chow’s decision,
and it was “satisfied that all sides were given sufficient opportunity to present evidence
and there was no denial of due process.” The court stated that, although the Director’s
decision “could have been more specific[,]” it nonetheless concluded that the lack of
specificity “does not rise to the error of law, nor has [ProVen] presented sufficient evidence
to prove the entire record was not reviewed by the director.”
17
Turning to the factual allegations associated with ProVen’s three damages claims,
the court noted that the contract “stated when and how work would be completed” and
referenced how disputes would be resolved. The court concluded that the Director’s
decision was based upon “competent, substantial, and sufficient facts, and was not arbitrary
and capricious nor was there an error of law.” The circuit court entered an order dated May
2, 2018 affirming the decision of the Department, stating that the court “is satisfied that the
decision of the Department was neither arbitrary nor capricious and was supported by
substantial evidence,” and there was no error of law.
E. Court of Special Appeals Proceeding
ProVen appealed the circuit court’s order to the Court of Special Appeals. In its
brief, ProVen made the same arguments that it had made in the circuit court. ProVen once
again argued that the Department’s final decision was too conclusory to provide
meaningful judicial review. ProVen also contended that the Department violated its right
to due process by “conducting an inadequate hearing” and “not reviewing the full record”
prior to issuing a final decision. On its three monetary claims, ProVen argued that the
Department’s final decision on each should be reversed because the decision on each such
claim was “arbitrary and capricious, . . . unsupported by substantial evidence on the record,
and . . . based on errors of law.” In addition to the identical legal arguments presented to
and decided by the circuit court, ProVen requested the same relief—that the Department’s
final decision be reversed, and that the matter be remanded to the Department for
“determination of the compensable time extensions due ProVen for each claim,” together
with accrued interest and costs.
18
The City filed a motion to dismiss as part of its brief. The City noted that under
CJ § 12-302(a), there was no statutory right of appeal under the circumstances.
Specifically, the City asserted ProVen’s circuit court proceeding was an action for
judicial review of an agency decision arising under the Baltimore City Charter, Article
II, § 4A(g), and that there is no right of appeal to the Court of Special Appeals under the
Charter. Given the lack of a statutory right to appeal, the City argued that the court was
required to dismiss it. On the merits, the City made the same legal arguments that it
previously made in the circuit court.
In its reply brief, for the first time, ProVen asserted that the circuit court proceeding
was in the nature of a common law mandamus action, and accordingly, the general appeals
statute, CJ § 12-301, authorized appellate review.
In an unreported opinion, the Court of Special Appeals agreed with ProVen’s
characterization of the matter as a common law mandamus action. In re ProVen Mgmt.,
Inc., 2020 WL 119651, at *12. The court reasoned that under Murrell, 376 Md. 170, “an
assertion of a failure to abide by procedural requirements or procedural errors by a local
government is in the nature of mandamus[.]” Id. As a result, the Court of Special Appeals
concluded ProVen’s claims that “the Department failed to abide by procedural
requirements and made procedural errors[]” were in the nature of a mandamus action and
“not subject to the exception from appellate review” set forth in CJ § 12-302(a). Id.
Turning to the merits of ProVen’s argument, the intermediate appellate court concluded
that the Director “failed to address adequately ProVen’s claims” and issue a final decision
upon which there could be meaningful judicial review. Id. The court remanded the case
19
to the circuit court with instructions to remand the matter to the Department for further
proceedings. Id.
The City petitioned for a writ of certiorari, which we granted to consider whether
the Court of Special Appeals erred in concluding that it had jurisdiction to consider
ProVen’s appeal.8
For the reasons set forth below, we hold that ProVen’s circuit court action was, in
both form and substance, an action for judicial review of an agency decision arising under
the Baltimore City Charter, not a common law mandamus action and, accordingly, did not
fall within the general appeals statute, CJ § 12-301. Given that there was no local law or
statute that provided a further right of appeal, pursuant to CJ § 12-302(a), the Court of
Special Appeals lacked jurisdiction to consider this matter.
8
The questions presented in the petition for writ of certiorari were:
1. Did the Court of Special Appeals err when it held that including an
assertion of procedural error in a petition for judicial review of an
administrative decision turns such a petition, in substance, into a
request for a writ of common law mandamus under Murrell v. Mayor
& City Council of Baltimore, 376 Md. 170 (2003)?
2. Did the Court of Special Appeals err when it held that a petition for
judicial review that sought reversal of an administrative decision was,
in substance, in the nature of a mandamus action merely because the
administrative hearing and administrative decision were alleged to
have been performed in a procedurally inadequate manner?
(Emphasis in original).
20
II.
Standard of Review
The present appeal is a jurisdictional dispute, “pertain[ing] solely to conclusions of
law respecting jurisdiction.” Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 384
(2010). Accordingly, we review de novo the Court of Special Appeals’ conclusion that it
had jurisdiction to hear ProVen’s appeal.
III.
Discussion
Before we address the parties’ specific contentions in this case, it is instructive to
review the governing principles and statutes addressing appellate jurisdiction generally.
“The right to an appeal is not a right required by due process of law, nor is it an inherent
or inalienable right.” Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 500 (1975)
(citing Lindsey v. Normet, 405 U.S. 56 (1972)) (additional citations omitted). Accordingly,
unless constitutionally authorized, appellate jurisdiction “is determined entirely by
statute,” and therefore, a right of appeal only exists to the extent it has been “legislatively
granted.” Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997)
(citing Maryland-Nat’l Capital Park & Planning Comm’n v. Smith, 333 Md. 3, 7 (1993)).
For this reason, the starting point for our jurisdictional inquiry begins with an examination
of the relevant provisions of the Maryland Code and the Baltimore City Charter.
Section 12-301 of the Courts and Judicial Proceedings Article, which is the general
statute authorizing appeals from the circuit courts, provides that “a party may appeal from
a final judgment entered in a civil or criminal case by a circuit court.” The section goes on
21
to specifically grant a right of appeal “from a final judgment entered by a court in the
exercise of original, special, limited, statutory jurisdiction, unless in a particular case the
right of appeal is expressly denied by law.” CJ § 12-301. Section 12-302(a) of the Courts
and Judicial Proceedings Article provides such a limitation on the broad right to appellate
review set forth in CJ § 12-301. That section denies a right of appeal “from a final
judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing
the decision of the District Court, an administrative agency, or a local legislative body[,]”
unless “a right to appeal is expressly granted by law.” CJ § 12-302(a).
In this instance, ProVen’s right to appeal arises from the applicable provisions of
the Baltimore City Charter, Article II, § 4A(g), which provides for judicial review “on the
record by a court of competent jurisdiction.” In other words, the Baltimore City Charter
provides a right to judicial review by the circuit court. No provision of the Baltimore City
Charter authorizes an appeal to the Court of Special Appeals. If the substance of the circuit
court proceeding was an administrative appeal of Director Chow’s decision, the Court of
Special Appeals had no jurisdiction to consider the matter under CJ § 12-302(a), and the
appeal should have been dismissed. Under our case law, however, if we examine the nature
of the proceeding as a whole and determine that, regardless of the caption or label, the
substance of the case is in the nature of an original action seeking a writ of common law
mandamus, we have held that the action falls within the general appeals statute, CJ § 12-
301.
We have discussed and applied these principles in three cases. See Murrell, 376
Md. 170; Prince George’s County v. Beretta U.S.A., Corp., 358 Md. 166 (2000); Gisriel,
22
345 Md. 477. In this case, both parties rely upon these cases to support their respective
positions. Specifically, the City relies upon Beretta to support its position that the nature
of ProVen’s circuit court action was for judicial review of an agency decision, which is
precluded from appellate review under CJ § 12-302(a). By contrast, ProVen argues that
the Court of Special Appeals correctly applied our holding in Murrell and determined that
the nature of its case was, in substance, a common law mandamus action, and therefore
appealable under CJ § 12-301. Because these cases are central to our analysis and holding
here, we discuss them in detail below. But first, we describe the general nature of an
administrative appeal to the circuit court, as well as a common law mandamus action
arising under the original jurisdiction of the circuit court, including the similarities as well
as the differences between the two.
A. Judicial Review of Administrative Agency Decisions
Judicial review of an agency decision arises pursuant to a statute or local law or
ordinance. The Maryland Rules governing judicial review of administrative agency
decisions are set forth in Chapter 2 of Title 7. The matter is generally heard on the record,
with the parties to the proceeding submitting written memoranda. Md. Rules 7-206, 7-207.
After a hearing, the court has broad discretion to “dismiss the action for judicial review or
. . . affirm, reverse, or modify the agency’s order or action, remand the action to the agency
for further proceedings,” or order relief that is “an appropriate combination of the above.”
Md. Rule 7-209.
The scope of judicial review of administrative agency decisions is limited. For
factual findings, judicial review is limited to the application of the “substantial evidence
23
test,” which has been defined as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Bullock v. Pelham Wood Apartments, 283 Md. 505,
512 (1978) (citing Snowden v. Mayor and City Council of Baltimore, 224 Md. 443, 448
(1961)). As we have routinely emphasized, in applying the substantial evidence test, a
“court should not substitute its judgment for the [e]xpertise of those persons who constitute
the administrative agency from which the appeal is taken.” Id. at 513 (citation omitted).
Additionally, we review the agency’s decision in the light most favorable to the agency,
since “decisions of the agency are prima facie correct.” Id. (citation omitted). On the other
hand, “a reviewing court is under no constraints in reversing an administrative decision
which is premised solely upon an erroneous conclusion of law.” People’s Counsel v.
Maryland Marine Mfg. Co., 316 Md. 491, 497 (1989).
In United Steelworkers v. Bethlehem Steel Corp., 298 Md. 665, 679 (1984), we
explained a key distinction between judicial review of an administrative decision as
opposed to appellate review of a trial court judgment. In the latter context, “the appellate
court will search the record for evidence to support the judgment and will sustain the
judgment for a reason plainly appearing on the record whether or not the reason was
expressly relied upon by the trial court.” United Steelworkers, 298 Md. at 679. By contrast,
in undertaking judicial review of an agency action, “the court may not uphold the agency
order unless it is sustainable on the agency’s findings and for the reasons stated by the
agency.” Id.The requirement that an administrative agency set forth its findings of fact and
conclusions of law is two-fold. First, it “apprise[s] the parties of the basis for the agency’s
24
decision[.]” Mehrling v. Nationwide Ins. Co., 371 Md. 40, 63 (2002); see also Blue Bird
Cab Co. v. Md. Dep’t of Employment Sec., 251 Md. 458, 466 (1968) (observing that “a
fundamental requirement of due process of law in a quasi-judicial proceeding is the right
of the parties to be apprised of the facts relied upon by the tribunal in its decision”).
Second, it “facilitate[s] judicial review.” Mehrling, 371 Md. at 63. A reviewing court’s
limited review of the agency’s decision highlights not only the importance, but the
necessity that the administrative agency render meaningful findings of fact and conclusions
of law to support its decision. Indeed, judicial review cannot occur in the absence of an
administrative agency’s stated findings of fact and conclusions of law to support its
decision. See Forman v. Motor Vehicle Admin., 332 Md. 201, 220–21 (1993) (“Without
findings of fact on all material issues, and without a clear statement of the rationale behind
the [final decision maker’s action], a reviewing court cannot properly perform its
function.”); United Steelworkers, 298 Md. at 679 (“We must know what a decision means
before the duty becomes ours to say whether it is right or wrong.”) (citation and internal
quotations omitted).
In cases where the administrative agency has not rendered sufficient or meaningful
factual findings upon which a reviewing court can undertake judicial review, we have
remanded the case to the administrative agency for the purpose of having the deficiency
remedied. See, e.g., Mehrling, 371 Md. at 67 (in order to permit meaningful judicial
review, the Court remanded the case to the administrative law judge “to prepare legally
adequate findings of fact and conclusions of law based on the administrative record as a
whole”); Forman, 332 Md. at 222 (explaining that because the administrative law judge
25
“failed to resolve important factual issues and . . . make clear what his decision means,”
the case was remanded to the administrative agency for further proceedings) (internal
quotations omitted); Bucktail, LLC v. County Council of Talbot County, 352 Md. 530,
558–59 (1999) (remanding a matter to the county council to make meaningful findings of
fact where county body, acting in an adjudicative role, recited statutory criteria and made
boilerplate resolutions that precluded judicial review); Harford County v. Earl E. Preston,
Jr., Inc., 322 Md. 493, 504–05 (1991) (remanding a denial of a special exception
application to the county board of appeals where the board failed to make findings of fact
to support its final decision). Given the necessity that an agency make meaningful findings
of fact and conclusions of law to support its decision, and a reviewing court’s inability to
exercise judicial review without it, where the administrative decision or order fails to
supply detailed findings of fact or conclusions of law, the appropriate disposition is for the
reviewing court to remand the matter to the administrative agency for further proceedings.
B. Common Law Mandamus9
“It is well established that common law mandamus is an extraordinary remedy that
is generally used to compel inferior tribunals, public officials or administrative agencies to
9
Our discussion in this case is limited to common law mandamus actions. Given
ProVen’s reliance on cases involving administrative mandamus, which have no application
here, we briefly mention the distinction. As we explained in Wilson v. Simms, 380 Md.
206, 228 (2004), there are two different types of mandamus actions. Common law
mandamus seeks the judicial enforcement of ministerial non-discretionary acts.
Administrative mandamus is a remedy that authorizes judicial review of administrative
decisions “where there is both a lack of an available procedure for obtaining review and an
allegation that the action complained of is illegal, arbitrary, capricious or unreasonable.”
Id. (emphasis in original) (quotations and citation omitted); see also Maryland Rule 7-
401(a) (explaining that the rules applicable to administrative mandamus “govern actions
26
perform their function, or perform some particular duty imposed upon them which in its
nature is imperative and to the performance of which duty the party applying for the writ
has a clear legal right.” Falls Road Community Ass’n v. Baltimore County, 437 Md. 115,
139 (2014) (citations and internal quotations omitted). Or stated another way, “[a] common
law writ of mandamus is one where the relief sought involves the traditional enforcement
of a ministerial act (a legal duty) by recalcitrant public officials.” South Easton
Neighborhood Ass’n, Inc. v. Town of Easton, 387 Md. 468, 477 n.3 (2005). “Ministerial
acts are duties in respect to which nothing is left to discretion and are distinguished from
those allowing freedom and authority to make decisions and choices.” Miles Point Prop.,
LLC, 415 Md. at 397 (cleaned up).
C. Distinctions Between Relief
It can be difficult to differentiate between an appeal of an administrative agency
decision arising under a statute or local law (where the petitioner asserts that the decision
is unsupported by substantial evidence and is arbitrary and capricious), and a common law
mandamus action involving an exercise of a court’s original jurisdiction (where the
for judicial review of a quasi-judicial order or action of an administrative agency where
review is not expressly authorized by law).” (Emphasis added). ProVen argues that
Criminal Injuries Compensation Board v. Gould, 273 Md. 486 (1975) supports its position
that there is a “common law right of review” arising from an arbitrary, illegal, capricious,
and unreasonable action by an administrative agency. ProVen’s reliance on Gould is
misplaced. Gould involved the remedy of administrative mandamus arising from the fact
that there was no statutory right of judicial review. Our case law is clear that the “inherent
power of a court to review an administrative agency’s determination,” i.e., administrative
mandamus, “may not be utilized when the statutory right of judicial review is available.”
See, e.g., State Dep’t of Assessments and Taxation v. Clark, 281 Md. 385, 402 (1977). In
this case, because the Baltimore City Charter provided a specific right of judicial review to
the circuit court, cases involving administrative mandamus are not applicable here.
27
petitioner asserts that the decision-maker failed to perform a ministerial duty). In many
cases, the distinction between the two types of actions may be evident from the nature of
the relief sought. In a common law mandamus action, the petitioner is seeking narrow
relief—a writ to compel an official to perform a ministerial duty that the official failed to
perform. By contrast, in an action for judicial review of an administrative agency decision,
a petitioner may obtain a variety of relief, including, where appropriate, a remand for the
purpose of the administrative decision-maker providing a sufficient explanation of the facts
to support his or her decision in order to enable appropriate judicial review on the record.
In other words, common law mandamus relief arises from an official’s failure to perform
the duty at all, whereas in a statutory judicial review action, relief may include a remand
for further proceedings before the administrative agency arising from the agency’s failure
to perform the duty well.
D. Our Jurisprudence Examining the Distinction Between Cases Sounding in
Common Law Mandamus and Statutory Review of Administrative Agency
Decisions
In Gisriel, Beretta, and Murrell, Judge John C. Eldridge, writing for this Court,
applied these principles to determine, in each instance, whether the nature and substance
of the particular action was one for judicial review of an agency decision for which there
was no statutory right to appellate review under the particular local law in question,10 or
10
It is worth repeating that the jurisdictional limitation set forth in CJ §12-302(a)
only applies where the statute or local law providing for judicial review by a circuit court
is without an additional right to appeal to the Court of Special Appeals. Given that most
administrative agency proceedings are subject to the Administrative Procedures Act, Title
10 of the State Government Article (“SG”), which provides a statutory right to appeal to
the Court of Special Appeals, see SG § 10-223(b), the jurisdictional limitation contained
28
whether it was a common law mandamus action that was capable of appellate review under
the general appeals statute. Given the parties’ and the Court of Special Appeals’ reliance
on these cases, we discuss them here.
Gisriel v. Ocean City Board of Supervisors of Elections
In Gisriel, Mr. Gisriel challenged the refusal of the City Council of Ocean City to
hold a referendum election on a newly enacted comprehensive zoning ordinance. 345 Md.
at 480. After the City Council enacted the zoning ordinance, Mr. Gisriel circulated and
obtained signatures on a referendum petition. Id. at 480–81. Under the applicable
provisions of the Ocean City charter, the referendum petition was required to contain the
signatures of at least “20% of the qualified voters of Ocean City.” Id. at 481 (internal
quotations omitted). The Ocean City Supervisor of the Board of Elections (“Board”)
compared the names on the petition with the city’s list of registered voters on the date the
petition was filed, and determined that the petition contained the signatures of only 19.31%
of the registered voters—a figure less than the 20% threshold requirement. Id. at 482. Mr.
Gisriel requested an opportunity to be heard before the City Council under the applicable
provisions of the charter, in order to present contradictory evidence to the Board’s findings.
Id. Mr. Gisriel argued that, under the applicable provisions of the charter, the Board was
required to purge certain unqualified voters from the voter registration list, the effect of
which would have made the referendum petition comply with the 20% qualified voter
in CJ § 12-302(a) has no application to administrative appeals that are governed by that
statute.
29
requirement. Id. at 483. The City Council rejected Mr. Gisriel’s submission and upheld
the recommendation of the Board. Id. at 484.
Mr. Gisriel sought judicial review in the Circuit Court for Worcester County,
pursuant to the provisions of the Ocean City charter, which gave a person aggrieved by a
decision of the Board an initial right to appeal to the City Council, with a right to appeal
the City Council’s decision to the circuit court. Id. at 484 n.8. The charter did not provide
for additional review by the Court of Special Appeals. Id.
The circuit court agreed with Mr. Gisriel and ordered the Board “to delete from the
Ocean City registered voter list the names of unqualified voters before determining the
percentage of voters who had signed the petition.” Id. at 484. The Board appealed the
circuit court’s decision to the Court of Special Appeals, notwithstanding the Ocean City
charter’s limitation on appellate review. Id. at 497. The Court of Special Appeals
concluded it had jurisdiction to hear the appeal and reversed the circuit court. Id. at 484–
85. We granted certiorari and affirmed the Court of Special Appeals’ conclusion that it
had jurisdiction to hear the Board’s appeal but analyzed the jurisdictional issue differently
from the intermediate appellate court. Id. at 485, 496.
We began our analysis by noting the basic premise that, “appellate jurisdiction,
except as constitutionally authorized, is determined entirely by statute, and that, therefore,
a right of appeal must be legislatively granted.” Id. at 485 (citations omitted). Accordingly,
we explained that “resolution of the jurisdictional issue depends upon an examination of
the relevant provisions of the Maryland Code and of Ocean City’s legislative enactments.”
Id. We first noted that neither the Ocean City charter nor any city ordinance “authorize[d]
30
an appeal to the Court of Special Appeals under the circumstances here.” Id. at 486. With
no right to appeal granted by local law or ordinance, we turned to the general appeals statute
to determine whether such a right existed.
In analyzing whether a statutory right of appeal existed under the facts of this case,
we examined the history of the general appeals statute, CJ § 12-301, as well as the
limitations on the right to appeal set forth in CJ § 12-302(a). Id. at 487–90. We noted that
the history of CJ § 12-302(a) “discloses that the statute represents a partial codification of
the principle that the general appeals statute does not authorize an appeal from a circuit
court’s judgment when that court is exercising a special limited statutory jurisdiction as
opposed to a more traditional common law-type of jurisdiction.” Id. at 493. We pointed
out that, although “[i]n a technical, but to some extent jurisprudential, sense, a court does
not exercise ‘appellate jurisdiction’ when reviewing the decision of an administrative
agency or legislative body[,]” courts have commonly treated such “kinds of actions as
being in the nature of appeals and to refer to them as ‘administrative appeals.’” Id. at 496
(quoting Department of Gen. Servs. v. Harmans Assocs., 98 Md. App. 535, 542 n.2 (1993)).
Accordingly, we determined that the Legislature intended to encompass circuit court
review of the decisions of administrative and local legislative bodies within the
jurisdictional limitation established by CJ § 12-302(a). Id. As such, we held that “when a
circuit court proceeding in substance constitutes ordinary judicial review of an adjudicatory
decision by an administrative agency or local legislative body, pursuant to a statute,
ordinance, or charter provision, and the circuit court renders a final judgment within its
31
jurisdiction, § 12-302(a) is applicable,” and therefore, “an appeal to the Court of Special
Appeals is not authorized by § 12-301.” Id. (citation omitted).
By contrast to appeals of administrative agency decisions, we explained that a
common law writ of mandamus action is an original action. Id. at 497. We observed that,
“[b]oth before and after the enactment of § 12-302(a), this Court has regularly exercised
appellate jurisdiction in mandamus actions against administrative agencies and officials.”
Id. at 499 (citations omitted). As part of our consideration of whether a pleading seeks
judicial review of administrative agency decisions (and is therefore subject to jurisdictional
limitations) or a common law mandamus action (for which appellate jurisdiction may be
exercised), we explained that our analysis does not end by examining the form of the
proceeding. Id. at 500. We stated that “even where a particular action against an
administrative agency was allegedly brought under a statutory judicial review provision,
and did not purport to be a mandamus action, this Court has looked to the substance of the
action, has held that it could be treated as a common law mandamus or certiorari action,
and has exercised appellate jurisdiction.” Id. at 500 (citing Criminal Injuries Comp. Bd.,
273 Md. at 500–06).
We applied these principles to the pleading that had been filed by Mr. Gisriel.
Looking at the substance of his petition for judicial review, we focused on the relief sought
by Mr. Gisriel—an order directing the Board to perform the non-discretionary duty of
deleting, from the Ocean City registered voting list, the names of unqualified voters before
determining the percentage of voters who had signed the petition. Id. We explained that
any judicial review action would not arise until a court determined in the first instance
32
whether the Board must perform the duty. Id. at 498. Accordingly, we concluded that
Gisriel’s action was in substance a common law mandamus action, and therefore, the Court
of Special Appeals and this Court had jurisdiction to entertain the appeal under CJ § 12-
301. Id. at 500.
Prince George’s County v. Beretta U.S.A. Corp.
We revisited the differences between a statutory judicial review action and a
common law mandamus action in Beretta, 358 Md. 166. In that case, an employee filed
an employment discrimination claim against his employer, Beretta, with the Prince
George’s County Human Relations Commission (“Commission”). Id. at 170. The
employee’s claim was considered by the Commission over the course of a seven-day
hearing. Id. After the first five days of hearings, two of the three panel members were no
longer available and two new panel members were substituted for them. Id. at 170. The
Commission rendered a final decision rejecting Beretta’s defenses and arguments, upheld
the employee’s retaliation claims, and awarded him lost wages, as well as damages for
humiliation and embarrassment. Id.Pursuant to the applicable provisions of the Prince George’s County Code, Beretta
filed a petition for judicial review of the Commission’s decision in the circuit court. Id. at
170–71. In its petition, Beretta challenged the Commission’s decision on several grounds.
Id. at 171. Beretta asserted that the Commission’s finding of retaliation discrimination was
not supported by substantial evidence, the employee had failed to introduce sufficient
evidence to support an award of lost wages, the Commission did not adequately explain its
damages calculation, and the damages for humiliation and embarrassment were not
33
supported by substantial evidence. Id. Beretta also contended that the substitution of two
panel members, who had not heard the evidence presented over the first five days of
hearings, violated the Commission’s rules. Id. Finally, Beretta argued that the provision
of the Prince George’s County Code authorizing “humiliation and embarrassment”
damages was invalid on several grounds. Id. After considering memoranda from the
parties, the circuit court affirmed the decision of the Commission. Id.Beretta appealed the matter to the Court of Special Appeals, raising essentially the
same issues that it raised in the circuit court. Id. During oral argument, the court sua
sponte raised the issue of whether the circuit court’s judgment was appealable in light of
the jurisdictional limitations set forth in CJ § 12-302(a). Id. The Court of Special Appeals
held that under our reasoning in Gisriel, Beretta was entitled to appeal certain issues—
namely the validity of the provision of the Prince George’s County Code authorizing
“humiliation and embarrassment” damages and whether the Commission violated its rules
by substituting two panel members for two former members—reasoning that those claims
“could have [been] brought” as a declaratory judgment action. Id. at 170, 176. However,
the intermediate appellate court concluded that Beretta was barred under CJ § 12-302(a)
from appealing certain claims related to the sufficiency of the evidence before the
Commission, reasoning that those claims were the type traditionally brought within a
petition for judicial review. Id. at 171–72, 177.
We granted certiorari, and concluded that, although the case presented “important
questions” concerning a charter county’s authority to enact a statute enabling a county
34
administrative agency to award money damages for “humiliation and embarrassment[,]” we
could not reach the issue because the circuit court judgment was not appealable. Id. at 167.
We started our analysis by summarizing the principles we articulated in Gisriel,
explaining that the “resolution of the appellate jurisdictional issue depends upon an
examination of the relevant provisions of the Maryland Code and of the pertinent local
legislative enactments.” Id. at 174 (citing Gisriel, 345 Md. at 485) (cleaned up).
After determining that there was no statutory right to appeal under the Prince
George’s County local laws, we examined Beretta’s action to determine whether it was a
petition for judicial review of an administrative agency decision. Id. at 174–75.
Concluding that it was, we observed that the circuit court “was engaged in ordinary judicial
review of a final adjudicatory decision by an administrative agency[]” pursuant to a
“locally enacted statute,” and had “applied the normal criteria applicable under Maryland
law for judicial review of adjudicatory administrative decisions and affirmed the agency’s
decision.” Id. at 175–76 (footnote omitted). Accordingly, we concluded that the action
fell within CJ § 12-302(a) and was therefore not appealable. Id. at 176.
We rejected the Court of Special Appeals’ attempt to parse out claims that could
have been litigated in other types of proceedings (such as a declaratory judgment action or
common law mandamus action) from a petitioner’s traditional judicial review of
“substantial evidence claims” as being unsupported “by the Gisriel opinion and . . .
inconsistent with numerous decisions by this Court.” Id. at 177. We observed that CJ §
12-302(a) “does not relate to what issues may be considered on appeal and what issues may
not be considered. Rather, the language of the statute, and the case law on which the statute
35
was based, preclude any appeal to the Court of Special Appeals in a particular type of
case.” Id. (emphasis added). We explained that “[t]he cases involving the non-
appealability doctrine discussed in Gisriel disclose that, as long as a circuit court is acting
within its special statutory jurisdiction, the limitation upon the right to appeal is applicable
regardless of the issues being raised.” Id. at 180 (emphasis added). We pointed out that
“[a]ppeals have been precluded in cases involving legal issues, constitutional issues, issues
concerning procedural irregularity, and issues about the lawful composition of an
administrative agency.” Id. Comparing the substance of the claims and relief sought by
Beretta as a whole, we concluded that the matter “was a typical statutory judicial review
action,” and accordingly, CJ § 12-302(a) precluded an appeal. Id. at 183.
Murrell v. Mayor & City Council of Baltimore
Three years after we decided Beretta, we once again revisited the distinction
between judicial review of agency decisions subject to the limitation in CJ § 12-302(a) and
common law actions that fall within the general appeals statute, CJ § 12-301, in Murrell,
376 Md. 170. In that case, we considered whether a circuit court’s judgment upholding an
administrative decision by the Baltimore City Department of Housing and Community
Development (“Housing Department”) to raze certain buildings was appealable to the
Court of Special Appeals. Id. at 172. The Housing Department had issued two notices of
housing code violations to Mr. Murrell, for two separate properties that he owned, and
required that the violations be corrected by a certain date. Id. at 175. After a condemnation
notice was posted on one of the properties, Mr. Murrell met with a Housing Department
inspector and advised the inspector of his plans to renovate the properties. Id. at 176–78.
36
Mr. Murrell then filed an appeal of the condemnation notice, obtained permits for the
renovation work, and hired an architect, who issued a report stating that the buildings were
structurally sound. Id. at 178–79.
The Housing Department held a hearing on Mr. Murrell’s request for a hearing on
the condemnation notices. Id. at 179. Under the Baltimore City Code, the hearing was
required to be undertaken by the designated “Building Code Official.” Id. at 174. Mr.
Murrell was represented by counsel and presented evidence, including testimony from his
architect. Id. at 179–80. The only “record” of the hearing was a single piece of paper
containing some handwritten notes. Id. at 180.
On the same day of the hearing, Mr. Murrell was notified by a letter from the
Commissioner of the Housing Department of the “results of the hearing” and the
Commissioner’s “concurrence with the decision by the Hearing Officer.” Id. The record
revealed that the letter was returned “unclaimed” and was not received by Mr. Murrell. Id.
at 181. Additionally, there was no record that the Hearing Officer actually rendered a
decision. Id.Mr. Murrell filed an action to review the Housing Department’s “decision” in the
circuit court, arguing that the Housing Department failed to comply with the mandated
procedures set forth in the Building Code, and that its actions violated Article 24 of the
Maryland Declaration of Rights and Article III, § 40 of the Maryland Constitution. Id.
Following a hearing, the circuit court issued an order affirming the Housing Department’s
decision. Id.
37
Mr. Murrell filed a notice of appeal to the Court of Special Appeals. Id. at 182. The
Court of Special Appeals granted the City’s motion to dismiss, after determining that the
circuit court action was, in all respects, “an ordinary statutory judicial review action.” Id.
at 183. Mr. Murrell filed a petition for certiorari, arguing that the circuit court action was
“in substance a common law mandamus action and was appealable under the principles set
forth in Gisriel.” Id. (cleaned up). We agreed with Mr. Murrell.
We noted that the critical question in the case was whether the suit was “a statutory
judicial review action encompassed by § 12-302(a) or whether the suit [could] legitimately
be treated as a common law mandamus action.” Id. at 185. We explained that, under our
holding in Gisriel, CJ § 12-302(a) “is applicable when a circuit court proceeding in substance
constitutes ordinary judicial review of an adjudicatory decision by an administrative agency
or legal legislative body, pursuant to a statute, ordinance, or charter provision,” and that the
“manner in which a plaintiff styled the action, and the plaintiff’s reliance upon a statutory
review provision, did not determine the nature of his action[.]” Id. at 193 (emphasis in
original) (internal quotations omitted). We pointed out that in Gisriel, the nature of the
petitioner’s action was to seek the enforcement of the Board’s “non-discretionary duty to
delete from the Ocean City registered voter list the names of unqualified voters.” Id. (internal
quotations omitted). Because the substance of the relief sought in Gisriel involved a
determination of whether the Board violated a non-discretionary duty, we explained that we
determined that the substance of the action was a common law mandamus action for which
appellate jurisdiction would arise under CJ § 12-301. Id. at 193–94.
38
In juxtaposition with our holding in Gisriel, we noted that “Beretta was clearly a
statutory judicial review action, involving an employee’s claim of discrimination in
violation of local law, an administrative hearing at which evidence was introduced and
transcribed, administrative findings of fact and conclusions of law, and judicial review
pursuant to a local ordinance.” Id. at 194. We explained that our conclusion concerning
the “non-appealability rule of § 12-302(a) depended upon the overall ‘substance’ of the
circuit court action. The issue is whether the action, as a whole, ‘should in substance be
viewed as a mandamus action’ or whether it more resembles ‘a typical statutory judicial
review action.’” Id. at 195 (cleaned up).
Applying these principles to the issues presented by Mr. Murrell in the circuit court,
we determined that the case “in substance” was like Gisriel and not Beretta. Id. at 196.
We explained that “[t]he gist of petitioner’s complaints, at this stage, is a failure of the
[Housing] Department . . . to perform several non-discretionary mandatory duties under
the Baltimore City Code and principles of Maryland administrative law.” Id. We
concluded that there could be no judicial review of the hearing officer’s decision because
there was no transcript, no record (other than one page of handwritten notes), and no written
decision. Id. Under the facts of the case, we determined that the wholesale failure to
comply with hearing procedures and requirements under the Baltimore City Code and
traditional requirements necessary for undertaking judicial review, rendered the substance
of the petitioner’s action a common law mandamus action as opposed to a petition for
judicial review. Id. at 196–98.
39
E. Application of These Principles Here
Turning to the instant case, we must determine whether ProVen’s case, “as a whole,
‘should in substance be viewed as a mandamus action’ or whether it more resembles ‘a
typical statutory judicial review action.’” Murrell, 376 Md. at 195 (cleaned up). The City
argues that the Court of Special Appeals erred in concluding that ProVen’s petition for
judicial review was, in substance, a petition for a writ of common law mandamus, and
therefore, capable of appellate review under the general appeals statute, CJ § 12-301. The
City contends that the Court of Special Appeals misinterpreted our holding in Murrell, by
suggesting that any statutory judicial review petition is transformed into a common law
mandamus action simply because the petitioner asserts a procedural error or due process
violation as part of its petition. According to the City, the Court of Special Appeals ignored
our holding in Beretta, when it “pulled apart” ProVen’s appeal to examine its components,
instead of considering the nature of the action as a whole.
On the other hand, ProVen argues that the Court of Special Appeals correctly
determined that it had jurisdiction to consider this matter under CJ § 12-301 because its
pleading was, in substance, a petition for common law mandamus. To support its
characterization of the action as one seeking common law mandamus as opposed to a
petition for judicial review, ProVen focuses on its procedural claims—specifically, that the
Director failed to: review the entire record; provide ProVen with an adequate opportunity
to address its claims; and provide a sufficient factual basis for his final decision. ProVen
contends that each of these allegations turn on the Director’s failure to perform non-
discretionary, ministerial duties. As a result, ProVen posits, the circuit court proceeding
40
was in the nature of a common law mandamus action. ProVen asserts that the Court of
Special Appeals correctly relied upon Murrell for its conclusion that its petition was one
seeking a writ of common law mandamus.
Applying the principles articulated in Gisriel, Beretta, and Murrell, we agree with
the City. We conclude that ProVen’s petition was, in both form and substance, a petition
for judicial review of a decision of an administrative agency arising under the Baltimore
City Charter. As set forth more fully in Part I.D., supra, ProVen’s memorandum in support
of its petition presented four questions and supporting arguments as to why the
Department’s final decision was erroneous. The first contention was that the Department’s
final decision was “defective due to a violation of due process under law.” Three of
ProVen’s four contentions related to its substantive compensable claims—its hazardous
materials, stopped work, and field conditions claims—in which ProVen asserted traditional
administrative agency-type errors based upon the substantial evidence test. Reviewing the
circuit court proceeding in its entirety, it is clear that the allegations raised by ProVen are
the quintessential types of errors asserted in a traditional statutory petition for judicial
review of an administrative agency decision. The relief sought by ProVen also reinforces
the nature of this case as one seeking traditional judicial review. ProVen did not seek a
writ or order requiring the Director to perform a ministerial duty.11 Instead, ProVen sought
a judicial determination overturning the Director’s decision on its substantive monetary
11
As noted earlier, for the first time in its reply brief filed in the Court of Special
Appeals, ProVen attempted to recast its relief as requesting a remand to correct procedural
errors and deficiencies. Of course, this is not the relief that ProVen sought in the circuit
court or in its initial appellate brief that was filed prior to the City’s motion to dismiss.
41
claims with a limited remand for a determination of damages—relief that is consistent with
judicial review of an agency decision.
In concluding that appellate jurisdiction existed in this case, relying on our analysis
in Murrell, the Court of Special Appeals determined that, because ProVen’s claims included
“an assertion of a failure to abide by procedural requirements or procedural errors by a local
government[,]” they were “in the nature of mandamus and . . . not subject to the exception
from appellate review provided for circuit court orders reviewing administrative decisions.”
In re ProVen Mgmt., Inc., 2020 WL 119651 at *12. To support its conclusion that ProVen’s
contentions were consistent with mandamus relief, as opposed to claims traditionally arising
within the context of a petition for judicial review, the intermediate appellate court reasoned
that its “review of the record convinces us that the Director failed to conduct a procedurally
adequate hearing and failed to provide adequate reasons for his decision.” Id. The court
further determined that “[t]he hearing transcript and the record before us convince us that the
Director failed to address adequately ProVen’s claims” and that “[t]he Director’s final
decision consisted of mere conclusions, lacked specific findings of fact, and failed to address
each of ProVen’s claims.” Id. The Court of Special Appeals stated that, “[i]mportantly, we
note our inability to identify the specific records considered by Director Chow. It is
impossible to discern the factual basis for the Department’s ruling on ProVen’s claims. As
a result, the Director’s decision was arbitrary, capricious, and unlawful.” Id.We disagree with the Court of Special Appeals’ reliance on Murrell to support a
conclusion that ProVen’s petition was a common law mandamus action. The facts of
Murrell are very different from the facts of this case. In Murrell, there was no transcript,
42
no record of the administrative proceeding, and no final decision by the hearing officer
upon which judicial review could be undertaken.12
By contrast, here, the proceeding was recorded, a transcript was prepared, exhibits
were entered into the record, ProVen’s witnesses provided statements to support its claims,
and Director Chow’s record included the 3,000 pages of documents that were part of the
OEC record. At the outset of the hearing, Director Chow stated that he had the record of the
exchanges, discussions, and emails and noted that he intended to issue a decision based upon
the information that he had received prior to the hearing, and any additional information that
he received during the hearing. Director Chow prepared a written decision with findings of
fact and conclusions of law. In his written decision, he commented that he “considered all
the argument and testimony presented on behalf of ProVen and the City” at the hearing, and
that he had “also reviewed and considered all of the documents presented to me by ProVen
and OEC, including the documents presented and discussed at the hearing by both OEC and
ProVen.” Director Chow stated that “[a]ll documents presented to me were admitted into
the record and considered by me.” Based upon his “on the record” proceeding, Director
Chow found “no reason to overturn OEC’s prior denial of the claim[.]” Clearly, there was a
record in this case upon which the circuit court could, and did, conduct a judicial review.
12
Even with the extreme procedural deficiencies presented in Murrell, this Court
was not unanimous in its conclusion that the proceeding was one seeking mandamus relief.
See Murrell v. Mayor and City Council of Baltimore, 376 Md. 170, 199 (2003) (Wilner, J.,
dissenting, joined by Harrell, J.) (analyzing the proceeding as a petition for judicial review,
and asserting that the Majority’s holding was inconsistent with Prince George’s County v.
Beretta, 358 Md. 166 (2000)). In this case, we decline to extend our analysis and holding
in Murrell beyond the unique procedural deficiencies presented in that case.
43
The Court of Special Appeals appeared to find fault with Director Chow’s sparse
factual findings and conclusory statements contained within his written decision. That is
a fair criticism. Indeed, in undertaking judicial review, the circuit court might have
concluded that there were insufficient findings of fact to support Director Chow’s decision
and determined that a remand was appropriate under Maryland Rule 7-209 for the Director
to more fully explain his decision. However, such relief is commonly requested and
granted within the context of traditional judicial review of an administrative agency
decision. See, e.g., Mehrling, 371 Md. at 67; Forman, 332 Md. at 222; Harford County,
322 Md. at 505. If the circuit court had determined (which it did not here) that there were
inadequate facts or legal conclusions upon which to review the agency’s decision, such a
determination would not have transformed the petition for judicial review into a common
law mandamus proceeding. It would have simply meant that a remand was appropriate
under Maryland Rule 7-209 for further proceedings.
Nor is a statutory petition for judicial review action converted into a common law
mandamus action simply because the petitioner has included due process assertions or
allegations of procedural deficiencies. In determining whether a petition for a judicial
review should instead be treated as a common law mandamus action, we look at the entire
action. As Beretta instructs, we do not isolate each assertion made by petitioner to
determine whether the particular claim could have been brought in another form, such as a
common law mandamus action, or a declaratory judgment action. As we noted in Beretta,
judicial review of administrative agency decisions often includes assertions of due process
violations, procedural errors, lack of substantial evidence to support the agency’s decision,
44
or other shortcomings in the process. Including procedural arguments in a petition for
judicial review does not transform the case into a common law mandamus action. See,
e.g., Rogers v. Eastport Yachting Ctr., LLC, 408 Md. 722, 730–31, 734 (2009) (holding
that the inclusion of a lack of notice argument did not create appellate jurisdiction); Dvorak
v. Anne Arundel Cty. Ethics Comm’n, 400 Md. 446, 456–59 (2007) (holding that the
inclusion of an administrative jurisdiction argument did not create appellate jurisdiction).
Unless a review of the entire action leads to the conclusion that the substance of the
action, including the relief sought, is in the nature of a common law mandamus action, our
case law does not permit us to recharacterize the case as such—thereby creating appellate
jurisdiction—simply because we would not reach the same result as the result reached by
the circuit court after conducting its judicial review.
IV.
Conclusion
The Court of Special Appeals erred in concluding that it had jurisdiction to consider
this appeal. ProVen’s petition was, in form and substance, a petition for judicial review of
an administrative agency decision arising under the applicable provisions of the Baltimore
City Charter. There was no right to appeal arising under statute or local law. Accordingly,
CJ § 12-302(a) barred appellate review of the circuit court’s decision.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED, AND
CASE REMANDED TO THAT COURT
WITH DIRECTIONS TO DISMISS THE
APPEAL. COSTS IN THIS COURT AND
45
THE COURT OF SPECIAL APPEALS TO
BE PAID BY PROVEN MANAGEMENT,
INC.
46
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/8a20cn.pdf