Robinson v. Montgomery County

• Decision Date: 01 September 1985
• Docket Number: No. 627,627
• Citation: 66 Md.App. 234,503 A.2d 275
• Parties: Booker T. ROBINSON, Jr. v. MONTGOMERY COUNTY, Maryland, et al. ,
• Court: Court of Special Appeals of Maryland

Page 234

66 Md.App. 234

503 A.2d 275

Booker T. ROBINSON, Jr. v. MONTGOMERY COUNTY, Maryland, et al.

No. 627, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Jan. 20, 1986.

Alan Banov, Washington, D.C., for appellant.

Bruce P. Sherman, Sr. Asst. Co. Atty. (Paul A. McGuckian, Co. Atty. for Montgomery County, on the brief), Rockville, for appellees.

Argued before GARRITY, ADKINS and ROBERT M. BELL, JJ.

ADKINS, Judge.

In 1982 the then-director of appellee and cross-appellant Montgomery County's Department of Transportation charged appellant and cross-appellee, Booker T. Robinson, Jr. with several violations of county personnel regulations. Robinson was discharged. He appealed to the County's Merit Systems Protection Board. After various delays, the nature and causes of which are not pertinent to our decision, the board held a hearing in March, 1984. It rendered a decision on April 25, 1984. It found that the County had failed to sustain all the charges against Robinson and that the charges sustained were not "serious enough to justify dismissal...." For that and other reasons, the board substituted for dismissal a 30-day suspension without pay (from December 5, 1982 to January 4, 1983) and it directed the County to offer Robinson "a County position of comparable status, with no loss in salary or benefits...." It declined, however, to grant Robinson retroactive reinstatement and attorney's fees.

On May 7, 1984, Robinson filed a motion for reconsideration with the board. On May 25, the board issued a decision denying it. The County appealed to the Circuit Court for Montgomery County on June 15; Robinson did likewise on June 19. ¹ The circuit court affirmed the board on March 8, 1985. Once again, both parties appealed.

Robinson's Appeal

The issues Robinson presents to us are

1. Whether the board erred in denying him retroactive reinstatement (backpay);

2. Whether the board erred in denying him attorney's fees; and

3. Whether the circuit court and the board erred by declining to award him attorney's fees under § 33-15(c) of the County Code.

These issues have been ably briefed and argued, but because the circuit court did not have jurisdiction to decide Robinson's appeal to it, we do not reach them. We explain.

The jurisdictional snarl in which Robinson finds himself results from the entanglement of his motion to reconsider the board's decision with the provisions of § 2A-10(f) of the Montgomery County Code (part of the County's Administrative Procedure Act). In pertinent part, subsection (f) reads:

Any decision on a request for rehearing or reconsideration not granted within ten ... days following a receipt of the request therefor ... shall be deemed denied. Any request for rehearing or reconsideration shall stay the time for any administrative appeal pursuant to judicial review until such time as the request is denied or in the event such request is granted such further time or a subsequent decision is rendered [sic ].

As we have seen, Robinson filed a timely motion to reconsider on May 7, 1984. The County claims that by operation of § 2A-10(f), that motion, not having been granted within 10 days of its filing, was "deemed denied" at the expiration of the 10 days, or on May 17. At that point, runs the County's argument, the statutory stay of time for taking an appeal ended and the 30-day period prescribed by Md. Rule B4 began to run. As a consequence, Robinson's appeal, filed on June 19, was too late.

Robinson, for his part, points to the fact that the board filed a decision denying his motion, and that this occurred on May 25. He reads § 2A-10(f) as staying the time for appeal until that date, in which event his appeal would have been timely (at least with respect to review of the denial of the motion to reconsider). He observes that the board's Rule XI (as it read in 1984) says that "[a] request for reconsideration shall stay the time for any further appeal until the Board makes a decision on the request" but is silent as to any presumed denial at the expiration of 10 days. To like effect is § 29.19 of the County Code (part of the County Personnel Regulations). He also cites Samuel B. Franklin & Co. v. Securities and Exchange Commission, 290 F.2d 719, 725,cert. denied, 368 U.S. 889, 82 S.Ct. 142, 7 L.Ed.2d 88 (9th Cir.1961) ("timely filing of a petition for agency reconsideration [tolls] the sixty-day period for appeal [to U.S. circuit courts under Federal APA;] appeal taken within sixty days from the termination of the petition for reconsideration by the agency is timely"). See also Outland v. Civil Aeronautics Board, 284 F.2d 224, 227 (D.C.Cir.1969) (same holding), and Poyner v. Police and Firemen's Retirement and Relief Board, 456 A.2d 1249 (D.C.App.1983) (reaching similar conclusion under stay provision of D.C.App. Rule 15(c) ).

We think the County has the better of this argument. It is clear that the board's rule is superseded by § 2A-20(f), if the two are in conflict. Section 2A-3(c) of the County APA mandates that "[t]he provisions set forth herein shall prevail over any agency rule of procedure...." The same is true with respect to § 2A-10(f) and § 29.19, if they are regarded as conflicting. Section 2A-3(a) tells us that "[w]here any provision of this article [the County APA] conflicts with a substantive provision of an act pertaining to a particular agency, the latter shall prevail." By implication, if the "act pertaining to a particular agency" conflicts with the APA as to a procedural provision, the APA prevails. That is the purpose of the County APA: to provide uniform procedures for administrative matters within Montgomery County. The 10-day presumption of adverse decision is a procedural provision.

And even if the 10-day provision be regarded as arguably substantive, it is in conflict with neither board Rule XI nor § 29.19. Both of these permit motions to reconsider and both call for an appeal-time stay until a decision on the motion. Neither, however, says when a motion to reconsider is deemed to be decided. That blank is filled in by § 2A-10(f), but the fact that this section fills in a blank does not render it in conflict with the other measures.

Thus, we hold that § 2A-10(f) is controlling here. The next question is how to apply it. In this connection, the cases cited by Robinson are not helpful. The statutes involved in Samuel B. Franklin and Outland (15 U.S.C. § 78y(a) and 49 U.S.C. § 1486(a) ) both provided for appeal from an administrative agency to a court within a specified period of time from the agency decision. Neither contained any "stay" provision in the event of the filing of a motion to reconsider. The courts read into each statute such a "stay" provision, and held that the "stay" extended until the actual denial of the motion to reconsider. What is significant, however, is that neither of the federal statutes contained anything as to when a motion was deemed to be denied. This is also true of the rule involved in Poyner. Thus, there was no basis for the courts to hold, in those cases, that the stay ended at any time prior to the actual filing of the denial.

Section 2A-10(f) contains its own stay provision; there is no need for judicial insertion of one. The problem, for Robinson, is the 10-day presumption as to denial. If the motion for reconsideration is not granted within 10 days following its receipt, it "shall be deemed denied." The question is the effect of that phrase.

The answer is found in Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1956). That case involved an appeal from a liquor board to a circuit court. The statute in question was then-section 166 (d)(3) of Code, Art. 2B (1951) (now § 175(e)(3) ) which provided:

The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board ... shall constitute an automatic affirmance of the local board's decision, unless that time has been extended for good cause shown.

Id. at 557, 128 A.2d 388. Over 30 days after the liquor board record had been filed, the circuit court purported to pass an order extending the time for decision. Still later, it purported to pass an order reversing the board. The Court of Appeals reversed the latter order, holding that "the decision of the appeal was beyond the power of the Baltimore City court...." 211 Md. at 566, 128 A.2d 388.

Writing for the Court of Appeals, Judge (later Chief Judge) Hammond explained Where the directions of a statute look to the orderly and prompt conduct of business, including the business of a court, it is generally regarded as directory unless the consequences for failure to act in accordance with the statute are set out [emphasis supplied].

211 Md. at 561, 128 A.2d 388. Pointing out that "[i]n the statute now under consideration there are specific consequences of a failure to act, and an implication in the literal language that is a negation of the right to act after the time specified," 211 Md. at 562, 128 A.2d 388, Judge Hammond concluded that "the decision must be made within thirty days or by virtue of the statute there is an automatic affirmance of the board's action." Id. at 563, 128 A.2d 388. The Court of Appeals followed Scherr in Pearce v. Board of Liquor Commissioners, 228 Md. 515, 180 A.2d 651 (1962), there holding that "the statute deprived the [circuit court] of all power to act after thirty days." 228 Md. at 521, 180 A.2d 651.

Section 2A-10(f) is concerned with "the orderly and prompt conduct of [the board's] business." It is intended to protect the interests of the parties before the agency by preventing delay in deciding a motion for reconsideration. It is designed to require agency action within a specific time limit. If that action does not so occur, it provides for automatic denial of the motion, thereby permitting the parties to proceed to judicial review unhampered by agency procrastination of unknown dimensions that might place their rights...