Filed April 10, 2007 -- Opinion by Judge Dale Cathell
This case involed the issues of how a State employee is to be compensated for time spent commuting to and from an out-of-regular work site and whether a State employee is entitled to an award of compensation for acts occurring outside a 20 day period prior to the filing of a grievance. The Court held that COMAR17.04.11.02B (1)(j) does not entitle employees to compensation for all time spent traveling between home and a work site other than their assigned office and that Maryland Code (1993, 2004 Repl. Vol.), § 12-203(b) of the State Personnel and Pensions Article requires a remedy to be limited to compensation for claims existing within 20 days prior to the initiation of a grievance.
The opinion is available in PDF.
Showing posts with label administrative procedure. Show all posts
Showing posts with label administrative procedure. Show all posts
Wednesday, April 11, 2007
Thursday, March 15, 2007
Cinque v. Montgomery County Planning Board (Ct. of Special Appeals)
Filed March 15, 2007. Opinion by Judge James Kenney.
This case concerns the ability of an administrative agency to reconsider a quasi-judicial decision.
The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the "MCPB"), first approved a preliminary plan for a subdivision in Montgomery County's Agricultural Reserve, then reconsidered its decision and denied the proposed plan, and then reconsidered its denial and ultimately approved the application. Appellants, individual property owners and various organizations, argued that the MCPB violated its own Rules of Procedure and the McKinney test in granting the second reconsideration and approving the proposed subdivision.
An administrative agency may grant reconsideration pursuant to a statute or regulation. In the absence of such express authority, an agency has the inherent power to reconsider its decision in the event of fraud, surprise, mistake or inadvertence. Miles v. McKinney, 174 Md. 551, 199 A.2d 502 (1938). In this case, MCPB regulations provided that the agency may reconsider upon "a clear showing that the [agency] did not conform to relevant law or its rules of procedure." Accordingly, when the MCPB accepted the argument of the property owner that the denial of the application was not in accordance with the development standards of the applicable zone, it had a valid ground to grant reconsideration. Neither the fact that the membership of the MCPB had changed nor the fact that one member had reversed his own views made the reconsideration decision an impermissible change of mind.
The opinion is available in PDF.
This case concerns the ability of an administrative agency to reconsider a quasi-judicial decision.
The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (the "MCPB"), first approved a preliminary plan for a subdivision in Montgomery County's Agricultural Reserve, then reconsidered its decision and denied the proposed plan, and then reconsidered its denial and ultimately approved the application. Appellants, individual property owners and various organizations, argued that the MCPB violated its own Rules of Procedure and the McKinney test in granting the second reconsideration and approving the proposed subdivision.
An administrative agency may grant reconsideration pursuant to a statute or regulation. In the absence of such express authority, an agency has the inherent power to reconsider its decision in the event of fraud, surprise, mistake or inadvertence. Miles v. McKinney, 174 Md. 551, 199 A.2d 502 (1938). In this case, MCPB regulations provided that the agency may reconsider upon "a clear showing that the [agency] did not conform to relevant law or its rules of procedure." Accordingly, when the MCPB accepted the argument of the property owner that the denial of the application was not in accordance with the development standards of the applicable zone, it had a valid ground to grant reconsideration. Neither the fact that the membership of the MCPB had changed nor the fact that one member had reversed his own views made the reconsideration decision an impermissible change of mind.
The opinion is available in PDF.
Saturday, February 10, 2007
Burman v. U.S. (Maryland U.S.D.C.)(Approved for Publication)
Issued February 7, 2007—Memorandum and Order by Chief Judge Benson Everett Legg. Approved for publication.
Burman was convicted in a jury trial of conspiring to distribute cocaine and possession with intent to distribute cocaine. Burman then filed a motion seeking the return of property the government seized pursuant to a search warrant leading to his indictment and subsequent conviction.
Property purchased with the proceeds of drug trafficking is subject to forfeiture pursuant to 21 U.S.C. §881 and, by statute, the government must initiate a forfeiture case by giving notice to any interested party in addition to publishing notice in a publication of general circulation. The interested party has a specified time in which to file a claim and may either file a request for judicial forfeiture proceedings with the seizing agency or elect to remain in the administrative forum by filing a petition for remission or mitigation. If the interested person seeks the prior option, the agency must refer the request to the applicable United States Attorney, who then files a complaint for forfeiture in federal district court, per 18 U.S.C. §983(a)(3). If a person to whom notice was sent does nothing and the administrative tribunal declares the property forfeited, the district court, by statute, lacks subsequent jurisdiction over the property with one exception: if the claimant alleges the government failed to provide him with adequate notice and that he did not otherwise know of the forfeiture proceedings. If the court concludes that the claimant was adequately advised of the forfeiture proceedings, the court must dismiss the claim. However, if the court concludes that notice was lacking, the government must return the property and/or file a new forfeiture action.
Under 18 U.S.C. §983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim. The Court places the burden on the government to show that it took "reasonable steps" to provide notice to the claimant. "Reasonable notice" requires that the government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence that mail delivery procedures existed at that facility that were reasonably calculated to ensure that the notice, once addressed to the inmate, would still reach him upon arrival at the prison (and, indeed, would only be accepted were the inmate actually present). Notice sent to the inmate's relatives, lawyer or former residence is insufficient.
The DEA sent multiple Notices of Forfeiture to Burman addressed to several jails, to his mother, and to attorneys who had represented him, but there is no evidence that these notices ever reached Burman. The government presented no evidence that Burman was at the particular jails when the notices were delivered, that the persons who signed for the notices were prison officials, or that mail delivery procedures at the jails were reasonably calculated to ensure that the notices reached Burman. Burman, however, evidently knew the government was seeking forfeiture of some of his property because he mailed the DEA letters asking what was happening with certain items. The DEA treated these letters as requests for judicial forfeiture proceedings, but denied the requests either because they were untimely or because Burman failed to submit his claims under oath as required by the statute. The DEA mailed Burman a number of corrective notices advising that his claim must be sworn under oath and giving him 20 days to cure the defect. Except with respect to one item of property, Burman never filed a claim that met the formal requirements. There is, further, no direct evidence that any of the corrective notices ever reached Burman. Consequently, the Court granted, in part, Burman's request for return of some of the property seized and reserved judgment on the remaining property ordering the government provide further evidence and briefing.
The full opinion is available in PDF.
Burman was convicted in a jury trial of conspiring to distribute cocaine and possession with intent to distribute cocaine. Burman then filed a motion seeking the return of property the government seized pursuant to a search warrant leading to his indictment and subsequent conviction.
Property purchased with the proceeds of drug trafficking is subject to forfeiture pursuant to 21 U.S.C. §881 and, by statute, the government must initiate a forfeiture case by giving notice to any interested party in addition to publishing notice in a publication of general circulation. The interested party has a specified time in which to file a claim and may either file a request for judicial forfeiture proceedings with the seizing agency or elect to remain in the administrative forum by filing a petition for remission or mitigation. If the interested person seeks the prior option, the agency must refer the request to the applicable United States Attorney, who then files a complaint for forfeiture in federal district court, per 18 U.S.C. §983(a)(3). If a person to whom notice was sent does nothing and the administrative tribunal declares the property forfeited, the district court, by statute, lacks subsequent jurisdiction over the property with one exception: if the claimant alleges the government failed to provide him with adequate notice and that he did not otherwise know of the forfeiture proceedings. If the court concludes that the claimant was adequately advised of the forfeiture proceedings, the court must dismiss the claim. However, if the court concludes that notice was lacking, the government must return the property and/or file a new forfeiture action.
Under 18 U.S.C. §983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim. The Court places the burden on the government to show that it took "reasonable steps" to provide notice to the claimant. "Reasonable notice" requires that the government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence that mail delivery procedures existed at that facility that were reasonably calculated to ensure that the notice, once addressed to the inmate, would still reach him upon arrival at the prison (and, indeed, would only be accepted were the inmate actually present). Notice sent to the inmate's relatives, lawyer or former residence is insufficient.
The DEA sent multiple Notices of Forfeiture to Burman addressed to several jails, to his mother, and to attorneys who had represented him, but there is no evidence that these notices ever reached Burman. The government presented no evidence that Burman was at the particular jails when the notices were delivered, that the persons who signed for the notices were prison officials, or that mail delivery procedures at the jails were reasonably calculated to ensure that the notices reached Burman. Burman, however, evidently knew the government was seeking forfeiture of some of his property because he mailed the DEA letters asking what was happening with certain items. The DEA treated these letters as requests for judicial forfeiture proceedings, but denied the requests either because they were untimely or because Burman failed to submit his claims under oath as required by the statute. The DEA mailed Burman a number of corrective notices advising that his claim must be sworn under oath and giving him 20 days to cure the defect. Except with respect to one item of property, Burman never filed a claim that met the formal requirements. There is, further, no direct evidence that any of the corrective notices ever reached Burman. Consequently, the Court granted, in part, Burman's request for return of some of the property seized and reserved judgment on the remaining property ordering the government provide further evidence and briefing.
The full opinion is available in PDF.
Tuesday, January 9, 2007
Centre Insurance Co. v. J.T.W. (Ct. of Appeals)
Filed January 9, 2007--Opinion by Judge Dale R. Cathell.
Issue: When, under Title 2 of Maryland's Insurance Article does the 30-day filing period for a petition for judicial review of an administrative decision begin?
Held: The plain language of the pertinent statutes provides that, in the context of the relevant sections of the Insurance Article, the 30-day filing period for a petition for judicial review of an administrative decision under §§2-204(c) and 2-215(d)(1) begins when the order resulting from a relevant administrative hearing is mailed.
Not considered in opinion: The effect of Maryland Rule 1-203(c)
Full opinion available in PDF.
Issue: When, under Title 2 of Maryland's Insurance Article does the 30-day filing period for a petition for judicial review of an administrative decision begin?
Held: The plain language of the pertinent statutes provides that, in the context of the relevant sections of the Insurance Article, the 30-day filing period for a petition for judicial review of an administrative decision under §§2-204(c) and 2-215(d)(1) begins when the order resulting from a relevant administrative hearing is mailed.
Not considered in opinion: The effect of Maryland Rule 1-203(c)
Full opinion available in PDF.
Tuesday, December 26, 2006
Hart v. Winter (Maryland U.S.D.C.)(not approved for publication)
Decided December 21, 2006--Opinion by Judge Deborah K. Chasanow (not approved for publication)
Plaintiff filed a formal administrative complaint of discrimination with the EEOC alleging he was denied the position of Executive Housekeeping Officer due to racial discrimination and reprisal for having previously filed an equal employment opportunity complaint. Plaintiff received his EEOC decision on October 20, 2004 finding no discrimination and advising him that he had 90 days after receipt of the decision to file a civil action. Plaintiff affirmed receipt of the EEOC letter by October 24, 2004.
On February 17, 2005, the EEOC issued an errata letter to the plaintiff stating in its entirety:
On January 27, 2005, 94 days after the initial limitations period began, the plaintiff filed his appeal. The civil action was filed in the U.S. District Court for the District of Columbia.
Defendant filed an a motion to dismiss for untimeliness, a motion to dismiss or transfer for improper venue or, in the alternative, for summary judgment pursuant to Rule 56. The U.S. District Court for the District of Columbia transferred the case on May 8, 2006 to the U.S. District Court for Maryland, stating that it was for the Maryland Court to decide whether plaintiff's case was timely filed.
Plaintiff argued that his complaint was timely filed because the EEOC reissued its final decision via the February 17, 2005, errata letter. However, the language the plaintiff relied on specified "the applicable filing period for complainant to request reconsideration begins to run five days after February 17[,2005]." However, the 90 day limitation period to file suit in federal court beings to run after receipt of a final EEOC decision.
The Court found that, had the plaintiff requested reconsideration, his limitations period to file an appeal in the district court would have restarted once the EEOC issued its decision on his request for reconsideration. Because the plaintiff did not exercise his right to request a reconsideration, the errata notice had no impact on the limitations period to file a judicial appeal. The appeal was thus filed untimely.
Equitable tolling is not appropriate here because the EEOC decision on October 20 adequately advised plaintiff of his right to bring suit in federal court. The reissued decision could not have misled plaintiff during the initial 90 day period because it was not issued until long after the period elapsed and, in fact, after plaintiff filed suit.
Plaintiff filed a formal administrative complaint of discrimination with the EEOC alleging he was denied the position of Executive Housekeeping Officer due to racial discrimination and reprisal for having previously filed an equal employment opportunity complaint. Plaintiff received his EEOC decision on October 20, 2004 finding no discrimination and advising him that he had 90 days after receipt of the decision to file a civil action. Plaintiff affirmed receipt of the EEOC letter by October 24, 2004.
On February 17, 2005, the EEOC issued an errata letter to the plaintiff stating in its entirety:
The above captioned decision did not correctly list all of complainant's rights on appeal. A new decision with the corrected language, including complainant's right to request reconsideration, is attached. Please note that the applicable filing period for complainant to request reconsideration begins to run five days after receipt of this revision.The decision attached to the errata notice was dated October 20, 2004, the same date as the original decision.
This correction in no way alters the substantive findings of the decision.
On January 27, 2005, 94 days after the initial limitations period began, the plaintiff filed his appeal. The civil action was filed in the U.S. District Court for the District of Columbia.
Defendant filed an a motion to dismiss for untimeliness, a motion to dismiss or transfer for improper venue or, in the alternative, for summary judgment pursuant to Rule 56. The U.S. District Court for the District of Columbia transferred the case on May 8, 2006 to the U.S. District Court for Maryland, stating that it was for the Maryland Court to decide whether plaintiff's case was timely filed.
Plaintiff argued that his complaint was timely filed because the EEOC reissued its final decision via the February 17, 2005, errata letter. However, the language the plaintiff relied on specified "the applicable filing period for complainant to request reconsideration begins to run five days after February 17[,2005]." However, the 90 day limitation period to file suit in federal court beings to run after receipt of a final EEOC decision.
The Court found that, had the plaintiff requested reconsideration, his limitations period to file an appeal in the district court would have restarted once the EEOC issued its decision on his request for reconsideration. Because the plaintiff did not exercise his right to request a reconsideration, the errata notice had no impact on the limitations period to file a judicial appeal. The appeal was thus filed untimely.
Equitable tolling is not appropriate here because the EEOC decision on October 20 adequately advised plaintiff of his right to bring suit in federal court. The reissued decision could not have misled plaintiff during the initial 90 day period because it was not issued until long after the period elapsed and, in fact, after plaintiff filed suit.
The full opinion is available in PDF.
Tuesday, December 19, 2006
Evans v. State (Ct. of Appeals)
Filed December 19, 2006—Opinion by Judge Alan Wilner, joined as to Nos. 107 and 124 by Judge Clayton Greene, dissent by Chief Judge Robert Bell, in which Judge Greene joined as to Parts C and D only.
The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.
The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."
Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.
The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.
Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.
In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.
The full opinion is available in WordPerfect and PDF.
Web Commentary: Crablaw, Sentencing Law & Policy, Ohio Death Penalty Information, Underdog Blog, Capital Defense Weekly, Lethal Injection, Maryland Moment, Baltimore Crime, Crime and Consequences, Andrew Cohen in the Washington Post.
The Court considered four appeals – Nos. 107, 122, 123, and 124 – which it consolidated. In Nos. 107 and 124, two substantive issues were raised: (1) Whether Evans was entitled to a new sentencing hearing because his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith and Rompilla v. Beard, constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, he was entitled to a new trial as to guilt or innocence because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.
The issue in No. 123 was whether the Circuit Court for Baltimore County abused its discretion in denying, without affording discovery, Evans's third motion to reopen the 1995 post conviction proceeding in order to present the complaint that "selective prosecution by the Baltimore County State's Attorney's Office and systemic statewide racial and geographic discrimination rendered his sentence unconstitutional."
Appeal No. 122 arose from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, §3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. The Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the NAACP, the ACLU, and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedure Act. The appeal was from the Circuit Court's denial of a temporary injunction that would have restrained DOC from using its protocol.
The majority affirmed the Circuit Court on Appeal Nos. 107, 123, and 124, but found merit in the second aspect of Evans's complaint in No. 122, holding that Evans was not entitled to a new sentencing proceeding or to a new trial, but that the part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure Act, or (2) the Legislature exempts it from the requirements of that Act.
Thus the majority held that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG §10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. The majority reversed the ruling of the Circuit Court for Baltimore City, remanding so that a final injunction could issue.
In dissent, Chief Judge Robert Bell did not disagree with the majority’s resolution of the "regulation" issue, but took strong exception to the majority's other holdings. In Part C, Judge Bell wrote that the merits of the selective prosecution claim were not yet on the table; but that Evans had satisfied the threshold inquiry into whether discovery on that issue was warranted. In Part D, Judge Bell agreed with the majority’s disposition of the "regulation" issue, but further concluded that the DOC procedure does not comport with, and is in fact violative of the statute. Judge Greene joined in Parts C and D only of the dissent.
The full opinion is available in WordPerfect and PDF.
Web Commentary: Crablaw, Sentencing Law & Policy, Ohio Death Penalty Information, Underdog Blog, Capital Defense Weekly, Lethal Injection, Maryland Moment, Baltimore Crime, Crime and Consequences, Andrew Cohen in the Washington Post.
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