Md. Bd. of Physicians v. Geier

Panel: Arthur, Leahy, Reed, JJ. * Arthur, J. ⁴⁴⁷ TABLE OF CONTENTS Statutory and Regulatory Background...554 A. The Maryland State Board of Physicians and Board Personnel...554 B. General Procedures for the Board's Medical Disciplinary Proceedings...556 The Administrative Proceedings...557 A. The Initial Medical Disciplinary Proceedings Against the Geiers...557 B. The Cease-and-Desist Order Dated January 25, 2012...558 C. The Amended Cease-and-Desist Order Dated February 22, 2012...559 D. Outcome of the Medical Disciplinary Proceedings...560 The Proceedings in the Circuit Court...561 A. The Geiers' Action Against Board Personnel and the Board...561 B. Denial of Motion to Dismiss on the Ground of Absolute Immunity...562 ⁴⁴⁸ C. Grant of Motions to Compel Discovery and for Discovery Sanctions...562 D. The First Interlocutory Appellate Decision on Discovery Matters...564 E. Rejection of Absolute Immunity and Other Rulings on Remand...564 F. The Second Interlocutory Appellate Decision on Discovery Matters...-565 G. Remaining Pretrial Rulings...566 H. Bench Trial on Damages...567 I. Opinion Awarding Compensatory and Punitive Damages...568 J. Award of Attorneys' Fees and Entry of Final Judgment...570 Scope of Appellate Review...571 Questions Presented...573 Discussion...574 I. Liability of the State Board of Physicians Under 42 U.S.C. § 1983 ...574 II. Claim Against Board Personnel Under 42 U.S.C. § 1983 ...576 A. Absolute Judicial and Prosecutorial Immunity in § 1983 Actions...576 B. Absolute Immunity in the Context of Administrative Proceedings...578 ⁵⁵⁴ C. Absolute Immunity in Relation to Medical Disciplinary Proceedings...579 D. Absolute Immunity for Medical Disciplinary Proceedings in Maryland...581 E. Absolute Immunity for the Issuance of a Cease-and-Desist Order...582 F. Absolute Immunity of Others Participating in the Board's Decision...586 ⁴⁴⁹ III. Maryland Tort Claim Against Board Personnel and the Board...587 A. Absolute Judicial (and Quasi-Judicial) Privilege Under Maryland Law...587 B. Absolute Immunity for Government Officials Under Maryland Law...590 C. Qualified Immunity for Board Personnel Under Maryland Statutes...596 IV. Absolute Immunity in the Procedural Context of this Case...600 A. Denials of Motion to Dismiss and Motion for Summary Judgment...600 B. Refusal to Consider Absolute Immunity After Default as to Liability...603 Conclusion ...609 In 2012, the Maryland Board of Physicians issued a public cease-and-desist order against Mark Geier, M.D. The text of the order included information about medications prescribed to Dr. Geier, his wife, and his son.

The Geiers filed suit in the Circuit Court for Montgomery County, seeking to recover damages from 25 persons who were alleged to have participated in the drafting or approval of the order and from the Board itself. The court rejected the defendants' assertions that they were entitled to absolute immunity with respect to their functions in the administrative proceedings. The defendants managed to narrow the discovery of some matters by prevailing in two interlocutory appeals: Maryland Board of Physicians v. Geier (" Geier I "), 225 Md. App. 114 , 123 A.3d 601 (2015), and Maryland Board of Physicians v. Geier (" Geier II "), 451 Md. 526 , 154 A.3d 1211 (2017). Ultimately, as a sanction for the Board's discovery failures, the circuit court ordered a default as to the liability of all defendants.

After a bench trial on damages, the court awarded a total of $ 1.25 million in compensatory damages and a total of $ 1.25 million in punitive damages. The court further ordered ⁴⁵⁰ the defendants to pay nearly $ 2.4 million in attorneys' fees. All defendants appealed from the final judgment. Foremost in a litany of challenges, the defendants contend that they are entitled to absolute immunity as to all claims.

For the reasons discussed in this opinion, we conclude that their contention is correct. The judgment shall be reversed. STATUTORY AND REGULATORY BACKGROUND The defendants in this case are appealing from a civil judgment for damages based on actions that occurred in the context of medical disciplinary proceedings. To understand the issues presented, it is necessary to begin with some understanding of the statutes and regulations that governed those proceedings.

A. The Maryland State Board of Physicians and Board Personnel In Maryland, health occupations are "regulated and controlled" to "protect the health, safety, and welfare of the public." Md. Code (1981, 2014 Repl. Vol., 2018 Supp.), § 1-102(a) of the Health Occupations Article. The General Assembly has created independent health occupations boards, the majority of whose members are licensed to practice in the regulated ⁵⁵⁵ occupation, "with the intent that a peer group is best qualified to regulate, control, and otherwise discipline in a fair and unbiased manner the licensees ... who practice in the State." Id. § 1-102(b). The State Board of Physicians is one such board within the Department of Health ( id. § 14-201), one of the principal departments of the executive branch of the State government.

See Md. Code (1984, 2014 Repl. Vol., 2018 Supp.), § 8-201(b)(8) of the State Government Article. The Board is responsible for administering the Maryland Medical Practice Act, codified at Title 14 of the Health Occupations Article. Many of the Board's proceedings are governed by the Contested Cases subtitle of the Administrative Procedure Act: Subtitle 2 of Title 10 of the State Government Article.

Regulations for the Board's disciplinary and licensing ⁴⁵¹ matters are codified at Title 10, Subtitle 32, Chapter 2, of the Code of Maryland Regulations. Because the underlying events occurred in 2011 and 2012, our analysis concerns the provisions in effect at that time. Unless otherwise specified, subsequent citations to "HO" refer to the 2009 Replacement Volume and 2011 Supplement of the Health Occupations Article; citations to "SG" refer to the 2009 Replacement Volume and 2011 Supplement of the State Government Article; and citations to "COMAR" refer to the 2011 version of the Code of Maryland Regulations. 1 Under the Medical Practice Act, any person who practices medicine in Maryland must be licensed by the State Board of Physicians. See HO §§ 14-301, 14-601.

The Act expressly empowered the Board to adopt rules and regulations to carry out the provisions of the Act ( HO § 14-205(a)(1)(i)(1) ); to investigate alleged violations of the Act ( HO § 14-205(a)(2) ); to reprimand a licensee, place any licensee on probation, or suspend or revoke a license upon a determination that the licensee engaged in conduct prohibited by the Act ( HO § 14-404(a) ); to impose fines instead of or in addition to other sanctions ( HO § 14-405.1(a) ); to issue a cease-and-desist order or obtain injunctive relief for practicing medicine without a license ( HO § 14-206(e) ); and to levy fines for practicing medicine without a license ( HO § 14-606(a)(4)(ii) ). Before 2013, the Board consisted of 21 members appointed by the Governor with the advice of the Secretary of the Department 2 and with the advice and consent of the Senate. HO § 14-202(a)(1). Those members included: 13 practicing licensed physicians, including one doctor of osteopathy and one representative of an academic medical institution; one representative of the Department; one certified physician assistant; five "consumer members"; and one "public member ⁴⁵² knowledgeable in risk management or quality assurance matters[.]" HO § 14-202(a)(2)(i)-(vii).

The "consumer" and "public" members are persons who have never trained to become a physician and who maintain limited personal and financial ties to the field of medicine. See HO § 14-202(b). Members serve four-year terms ( HO § 14-202(i) ), during which they may be removed for cause ( see HO § 14-202(k) ). The Governor appoints one chair of the Board, who serves a two-year term.

HO § 14-203(a). Board members are entitled to compensation in accordance with the State budget. ⁵⁵⁶ HO § 14-204(c). In practice, however, because most members are practicing physicians, they make limited time commitments to the Board's activities, for which they receive modest compensation. According to a notice soliciting nominations to fill vacancies in 2012, Board members attend one full-day meeting each month (along with their service on one or more committees), and for their attendance they receive complimentary lunch, travel reimbursement, and a $ 250 per diem (or a $ 300 per diem for the chair). 3 To assist the Board with its many duties, the Secretary employs a full-time staff headed by an executive director.

See HO § 14-204(d). Assistant attorneys general, investigators, and hearing officers assist with "the investigation, development, and prosecution of cases referred to the Board[.]" HO § 14-204(e). Attorneys assigned to prosecute administrative charges are known as administrative prosecutors. COMAR 10.32.02.02(B)(3).

Attorneys assigned for the purpose of giving advice on legal matters before the Board are known as Board counsel. COMAR 10.32.02.02(B)(6). 4 ⁴⁵³ B. General Procedures for the Board's Medical Disciplinary Proceedings When the Board receives an allegation of grounds for disciplinary action, the Board's staff undertakes an investigation. HO § 14-401(a) ; COMAR 10.32.02.03(A). The Board investigates and adjudicates allegations of the unlicensed practice of medicine under the same process that it uses for disciplinary actions against licensed physicians.

See COMAR 10.32.02.06(B)(1). In connection with an investigation, the Board may issue subpoenas under the authorization of one of the Board's officers or directors. HO §§ 14-206(a), 14-401(i). If the allegations concern the failure to meet the appropriate standard of care, the Board must refer the matter to the Medical and Chirurgical Faculty of Maryland, a non-profit organization, for peer review by physicians in the relevant medical specialty.

HO § 14-401(c)(2) ; COMAR 10.32.02.03(B). Based on its review of investigation reports, the Board may "[t]ake any appropriate and immediate action" ( HO § 14-401(c)(1)(ii) ), such as issuing a cease-and-desist order or issuing formal charges for violation of the Medical Practice Act. See COMAR 10.32.02.03(C)(1). After service of charges ( COMAR 10.32.02.03(C)(5) ), the respondent may request an evidentiary hearing conducted by an administrative law judge from the Office of Administrative Hearings.

HO § 14-405(b)(1) ; COMAR 10.32.02.03(E)(1). The respondent has the ⁵⁵⁷ right to be represented by counsel at the hearing ( HO § 14-405(c) ) and at any other stage in the proceedings (COMAR 13.32.02.03(D)(1)). Each party is entitled to call witnesses, ⁴⁵⁴ offer evidence, cross-examine witnesses, and make arguments. SG § 10-213(f) ; COMAR 28.02.01.20(A)(1).

Following the hearing, the administrative law judge refers proposed findings of fact, proposed conclusions of law, and any proposed disposition to the Board. HO § 14-405(e) ; COMAR 10.32.02.03(E)(10). If either party files exceptions, the Board holds an exceptions hearing before it issues its own findings of fact, conclusions of law, and disposition. COMAR 10.32.02.03(F)(2).

The Board's final decision is subject to judicial review in the circuit court. See HO § 14-408(b) ; COMAR 10.32.02.03(H). The circuit court's judgment is subject to appellate review. See SG § 10-223(b).

Ordinarily, the Board must give notice and the opportunity for a hearing in accordance with the Administrative Procedure Act before it suspends or revokes a physician's license. HO § 14-405(a) ; see SG § 10-226(c)(1). The Board has limited authority to "order summarily the suspension of a license" as an "emergency action," and then it must provide notice and the opportunity for a hearing "promptly" thereafter. SG § 10-226(c)(2) ; see COMAR 10.32.02.05.

After being suspended summarily, the licensee may demand a full evidentiary hearing. COMAR 10.32.02.05(I). This regulatory scheme includes provisions to maintain confidentiality for the Board's proceedings, while also ensuring public access to information about the licensing and discipline of physicians. "Except as otherwise expressly provided" in the Act, "the Board or any of its investigatory bodies may not disclose any information contained in a record" of its proceedings.

HO § 14-411(b) ; see also COMAR 10.32.02.08(A) ("[e]xcept for formal charging documents, notices of intent to deny [licensure], or as otherwise provided by law, the proceedings of the Board are confidential"). Upon a request under the Public Information Act, a custodian of records must permit inspection of "any orders and findings that result from formal disciplinary actions" against a licensee. SG § 10-617(h)(2)(vi). Furthermore, the Board must "create and maintain a public individual profile on each licensee" that must include a "description ⁴⁵⁵ of any disciplinary action taken by the Board against the licensee within the most recent 10-year period that includes a copy of the public order[.]" HO § 14-411.1(b)(1).

The Board is required to "maintain a website that serves as a single point of entry where all physician profile information is available to the public on the Internet[.]" HO § 14-411.1(d)(2). THE ADMINISTRATIVE PROCEEDINGS A. The Initial Medical Disciplinary Proceedings Against the Geiers Dr. Mark Geier first obtained his license to practice medicine in Maryland in 1979. For many years, he operated a medical practice in Rockville known as Genetic Centers of America, which offered treatment to children with autism spectrum disorder. His son David Geier, who is not a physician, but who has a bachelor's degree in biology, worked in a subordinate role at the medical practice.

Dr. Geier's wife, Anne Geier, was generally not involved in the medical practice, except that she served on a review board established to oversee Dr. Geier's research. Together, Dr. Geier and David Geier promoted a theory that thimerosal, a mercury-based compound used as a preservative in some vaccines, can cause autism in genetically susceptible children. See generally Blackwell v. Wyeth , 408 Md. 575 , 609-10, 971 A.2d 235 (2009) (listing articles ⁵⁵⁸ written by Mark R. Geier & David A. Geier). 5 Based on that theory, Dr. Geier developed an experimental treatment protocol for autistic children, in which he administered the drug Lupron to suppress hormone production. For some patients, he used chelation therapy, a treatment that removes heavy metals from the body. ⁴⁵⁶ As early as 2006, the Board began investigating a series of complaints related to Dr. Geier's medical practice.

The Board eventually referred several patient records for physician peer review. On April 27, 2011, the Board summarily suspended Dr. Geier's medical license. The suspension order accused him of "endanger[ing] autistic children and exploit[ing] their parents by administering a treatment protocol that has a known substantial risk of serious harm and which is neither consistent with evidence-based medicine nor generally accepted in the relevant scientific community." Promptly thereafter, the Board issued formal charges under the Medical Practice Act, accusing Dr. Geier of violating various ethical and professional standards in the use of his treatment protocol. At the same time, the Board pursued separate charges against David Geier, alleging that he engaged in the unlicensed practice of medicine by diagnosing and treating a patient at Dr. Geier's medical practice.

B. The Cease-and-Desist Order Dated January 25, 2012 While these charges were pending, a representative from a pharmacy-benefits management company informed the Board that someone from Dr. Geier's medical practice had authorized prescription refills after the suspension of Dr. Geier's license. The Board notified Dr. Geier of the new complaint, and he denied writing any prescriptions in Maryland during his suspension. Based on pharmacy records, the Board's staff concluded that Dr. Geier had verbally authorized the prescription refills. Staff members prepared a report recommending that the Board issue a public cease-and-desist order against Dr. Geier.

The Board's staff submitted the proposal for the Board to consider at its monthly meeting in January 2012. The administrative prosecutor who was assigned to prosecute the disciplinary charges against the Geiers drafted the proposed order. The proposed order stated that the Board had "received information that [Dr. Geier] prescribed drugs to himself, his son and his wife after his license was suspended." One paragraph ⁴⁵⁷ went on to identify five specific drugs that he allegedly prescribed and the person to whom each drug was prescribed. It did not mention either David Geier or Anne Geier by name, but it instead referred to them as Dr. Geier's "son" and his "wife," respectively.

Four footnotes, inserted immediately after the names of four of the drugs, further described the medical conditions that each drug is commonly used to treat. The fifth drug was listed by a common name, and its intended use is known to the public. Based on the "investigative findings" that Dr. Geier practiced medicine while his license was suspended, the order required Dr. Geier to " CEASE AND DESIST from providing any and all services that constitute the practice of medicine[.]" It further ⁵⁵⁹ provided "that this is a PUBLIC DOCUMENT ." The order notified Dr. Geier that if he "challenge[d]" the order the matter would be "adjudicated according to the procedures in the Board's regulations at COMAR 10.32.02.03 [,]" i.e., under the same procedures used for formal disciplinary actions. See COMAR 10.32.02.09.

At a closed-session meeting on January 25, 2012, the 20 Board members in attendance voted unanimously to issue a public cease-and-desist order against Dr. Geier. The chair of the Board signed the document on behalf of the Board. Within the next few days, the Board's technical staff published a PDF document displaying the complete order on the Board's website. Links to that document were posted on the website's home page and on the practitioner profile page for Dr. Geier.

C. The Amended Cease-and-Desist Order Dated February 22, 2012 After service of the cease-and-desist order, an attorney for Dr. Geier sent a letter to the Board in protest of its decision to "specify the drugs in question including the conditions for which such drugs are used" in a public document. The attorney informed the Board that he had advised the Geier family to pursue civil claims against any personnel "responsible for generating and making public this Order[.]" Among other things, the letter accused the Board of violating a regulation in ⁴⁵⁸ effect at that time, which authorized the Board to "issue a nonpublic cease and desist order" during an investigation of the unlicensed practice of medicine. COMAR 10.32.02.06(B)(2). 6 After receiving the letter of protest, Board counsel sent an urgent email advising high-level Board personnel to "immediately redact" from the Board's website any information identifying a particular patient or a drug prescribed to a patient. In response, the chair of the Board wrote: "Are we really including 'patient identifiable/specific' information on the website/in public disclosure of charging/conviction documentation? ? ? ?

If we are....., I agree that we should cease this activity asap!!!" The Board's deputy director instructed the chief of information systems to "[r]emove the cease and desist order from the website and profile" until further discussion. The Board approved an amended cease-and-desist order at its next monthly meeting, on February 22, 2012. The amended order omitted mention of any particular patients, drugs, or medical conditions. It simply stated that the Board had reason to believe that Dr. Geier prescribed drugs "for at least three patients." A new footnote stated: "Dr. Geier is aware of the names of these three patients.

The names of the drugs and identifying prescription information is known to him and is also available to him upon request." The amended order was published on the Board's website, and a link to the new document was posted on the website's profile for Dr. Geier. Yet even though the website no longer included direct links to the original order, the website continued to host the page showing the PDF document for the original order. The original order continued to appear in internet search results involving Dr. Geier. Consequently, the original order remained accessible long after the Board issued the amended order. ⁴⁵⁹ Through his attorney, Dr. Geier requested a hearing on the amended cease-and-desist order.

Several months later, in June ⁵⁶⁰ 2012, the Board issued formal charges against him, using language substantially similar to the language of the amended cease-and-desist order. The charging document alleged that Dr. Geier had prescribed drugs to three unnamed patients, without identifying the drugs prescribed to those patients. Dr. Geier contested those charges. The administrative law judge was unconvinced by the evidence connecting Dr. Geier to the prescription refills and recommended that the charges not be upheld.

The administrative prosecutor filed exceptions, and after an exceptions hearing, the Board found that someone other than Dr. Geier had authorized the prescription refills in question. The Board dismissed the charges against Dr. Geier for violation of the summary suspension order and terminated the amended cease-and-desist order "as moot" on March 22, 2013. D. Outcome of the Medical Disciplinary Proceedings Meanwhile, in March 2012, administrative law judges issued the proposed decisions for the other disciplinary proceedings against Dr. Geier and David Geier. An administrative law judge recommended that the Board find that Dr. Geier committed multiple violations of the Medical Practice Act and revoke his license as a penalty.

Dr. Geier filed exceptions with the Board. Another administrative law judge recommended that the Board dismiss the charges against David Geier for practicing medicine without a license. The administrative prosecutor filed exceptions with the Board. Two days before the exceptions hearings in May 2012, Dr. Geier made a motion asking that all Board members recuse themselves from the proceedings.

Dr. Geier argued that the Board's handling of the proceedings revealed a "personal bias" against him. He informed the Board that an attorney for the Geier family had sent a notice-of-claim form to the State treasurer regarding their potential civil claims against Board personnel for the unauthorized disclosure of private medical information. His motion argued that the "prospect of litigation ⁴⁶⁰ that may affect the personal finances of certain members" would "undoubtedly affect the Board's ability to act toward Dr. Geier with impartiality." At a meeting on May 23, 2012, the Board denied the recusal motion and proceeded to hear the exceptions. The Board voted to adopt proposed findings that Dr. Geier committed multiple violations of the Medical Practice Act and to accept the recommendation to revoke his medical license. 7 The Board also voted to reject the proposed findings that David Geier did not engage in the unauthorized practice of medicine and to levy a $ 10,000 fine against him.

Both Dr. Geier and David Geier sought judicial review, and the Board's decisions were later upheld in the circuit court and in this Court. Mark R. Geier v. Maryland State Bd. of Physicians , 223 Md. App. 404 , 116 A.3d 1026 (2015) (upholding revocation of Dr. Geier's license); David A. Geier v. Maryland Bd. of Physicians , No. 709, Sept. Term 2014, 2015 WL 5921325 (filed July 31, 2015) (unreported) (upholding penalty against David Geier for the unlicensed practice of medicine). The Board's scrutiny of Dr. Geier's medical practice spawned an additional investigation ⁵⁶¹ of his medical partner, John L. Young, M.D., concerning the continuation of treatment after the suspension of Dr. Geier's license. The Board suspended Dr. Young's license, issued formal charges against him, and ultimately decided in 2014 to impose one year of probation upon the reinstatement of his license.

The circuit court upheld that decision, and Dr. Young did not appeal. THE PROCEEDINGS IN THE CIRCUIT COURT A. The Geiers' Action Against Board Personnel and the Board On December 21, 2012, during the litigation of the Geiers' petitions for judicial review, three members of the Geier ⁴⁶¹ family (Dr. Mark Geier; his wife, Anne Geier; and his son, David Geier) commenced the action at issue in the present appeal by filing a three-count complaint in the Circuit Court for Montgomery County. The complaint named 25 Board personnel as defendants: 20 Board members, the executive director, a deputy director, two staff members, and the administrative prosecutor. All claims centered on the disclosure of "private medical information" in the original cease-and-desist order, "including the names of the drugs prescribed to [the Geiers] and the specific conditions those prescriptions were intended to treat." The Geiers alleged that they suffered "severe humiliation and embarrassment" when members of the public viewed the order on the Board's website.

The Geiers theorized that Board personnel "acted with ill will and with intent to injure" the Geiers, as "part of a systematic effort on the part of the [defendants] to discredit and punish [Dr. Geier and David Geier] for promoting views and treatment plans not endorsed" by the Board. In Count One, the Geiers raised a federal civil rights claim under 42 U.S.C. § 1983 . They claimed to have "a recognized right to privacy in their private medical information, established and protected by the federal Constitution." They alleged that, in "publishing the [o]rder on the internet with [the Geiers'] private medical information," Board personnel knowingly deprived them of "their [c]onstitutional right to privacy as guaranteed by the First, Third, Fourth, Ninth, Fifth, and Fourteenth Amendments[.]" In addition to damages, the Geiers sought attorneys' fees under 42 U.S.C. § 1988 . In Count Two, the Geiers claimed that Board personnel knowingly violated the Maryland Confidentiality of Medical Records Act (Md. Code (1982, 2009 Repl.

Vol.), §§ 4-301 through 4-309 of the Health-General Article ) by disclosing their prescription information without their consent. In Count Three, the Geiers claimed that Board personnel committed the tort of invasion of privacy by giving unreasonable publicity to private facts not of legitimate public concern. ⁴⁶² They asserted that the medical conditions described in the order were "of an extremely personal nature" and that the "disclosure of this type of information would undoubtedly be highly offensive to a reasonable person." Although the complaint included an allegation that the original cease-and-desist order was still available on the Board's website, the Geiers did not request an injunction. In all counts, the Geiers demanded judgment against the 25 defendants, jointly and severally, for $ 3 million of compensatory damages and $ 3 million of punitive damages. "Alternatively," in Count Three, the Geiers demanded judgment against the Board itself, "as an agency of the State of Maryland, in the amount of ... $ 200,000.00 per individual plaintiff[.]" This count appeared to invoke the limited waiver of sovereign immunity from the Maryland Tort Claims ⁵⁶² Act.

See SG § 12-104(a) (limiting the tort liability of the State and its units to "$ 200,000 to a single claimant for injuries arising from a single incident or occurrence"). The Geiers named the Board as a defendant only in Count Three. B. Denial of Motion to Dismiss on the Ground of Absolute Immunity Initially, counsel from the Attorney General's office jointly represented all defendants. Before answering the complaint, the defendants moved for dismissal of all claims.

In addition to challenges specific to each of the three counts, the defendants contended that they possessed "absolute quasi-judicial immunity" as to any claims for damages based on their acts in the medical disciplinary proceedings. Because Maryland's appellate courts have never decided whether quasi-judicial decision-makers have absolute immunity from suit, the defendants relied on Ostrzenski v. Seigel , 177 F.3d 245 (4th Cir. 1999). In that case, the Fourth Circuit held that a defendant had absolute immunity with respect to prosecutorial functions that he performed at the behest of the Maryland Board of Physician Quality Assurance, the predecessor of the Board of Physicians. On that ground, the Fourth Circuit ⁴⁶³ affirmed the dismissal of both a federal claim under 42 U.S.C. § 1983 and a claim for invasion of privacy under Maryland law.

The Geiers contended that their claims should proceed because their complaint included allegations of malice. Primarily, they relied on a Maryland statute that protects members and agents of the Board from civil liability for certain actions taken "without malice" in connection with the Board's proceedings. See Md. Code (1974, 2013 Repl. Vol.), § 5-715(b) of the Courts and Judicial Proceedings Article.

In the alternative, the Geiers argued that the doctrine of absolute quasi-judicial immunity should not apply to the decision to issue a cease-and-desist order. The court denied the motion to dismiss "to the extent that it relie[d] on the immunities, common law or otherwise[.]" The court believed that it did not "have an adequate record at the motion-to-dismiss stage to fairly, much less, correctly decide whether any of the various immunities" might apply. The court said that it might "revisit" the immunity issue on a motion for summary judgment. The court, however, went on to dismiss Count Two with prejudice on other grounds, concluding that the Confidentiality of Medical Records Act did not create a private cause of action.

In their answer, the defendants raised a host of different defenses, including "absolute quasi-judicial immunity" as to the two remaining counts. As to the count under 42 U.S.C. § 1983 , the individual defendants asserted that the alleged conduct did not violate any clearly established constitutional right, while the Board maintained that it could not be sued under that statute. Other defenses to the invasion-of-privacy count largely depended on whether Board personnel had acted with malice: the immunity under § 5-715(b) of the Courts and Judicial Proceedings Article, for members and agents of the Board acting without malice; and the immunity under § 5-522(b) of the State Government Article, for State personnel acting without malice or gross negligence. ⁴⁶⁴ C. Grant of Motions to Compel Discovery and for Discovery Sanctions In search of evidence of malice, the Geiers made expansive discovery requests. They sought to explore not only the process that produced the cease-and-desist order, but also the entire decision-making ⁵⁶³ process in the related medical disciplinary proceedings (which were still the subject of their petitions for judicial review at that time).

The defendants frequently withheld the requested information, invoking various common-law evidentiary privileges as well as a statute restricting discovery of the "proceedings, records, or files of the Board or any of its investigatory bodies[.]" HO § 14-410(a)(1). More often than not, the court ordered the defendants to make the requested disclosures, either because it concluded that their objections lacked merit or because it concluded that they failed to make timely objections. The most consequential of these discovery contests concerned the defendants' reliance on the "deliberative (executive) privilege" as a ground for refusing to produce documents from the medical disciplinary proceedings and refusing to answer questions about the Board's decisions. This evidentiary privilege may prevent the disclosure of certain "confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action." Hamilton v. Verdow , 287 Md. 544 , 558, 414 A.2d 914 (1980).

In cases where the government itself is a party or where a litigant alleges government misconduct, a litigant can overcome a formal claim of deliberative privilege by showing that the litigant's need for production of the information outweighs the government's need for confidentiality. See id. at 565-67 , 414 A.2d 914 . The Geiers moved for an order compelling the defendants to respond to the discovery requests and barring any future assertions of deliberative privilege. The court granted the motion, reasoning that "the privilege must yield" because the case involved "a charge of misconduct" by the agency asserting ⁴⁶⁵ the privilege.

The defendants did not pursue an appeal of that ruling. The Geiers moved for discovery sanctions a few months later, as the Board was still in the process of gradually disclosing thousands of pages of documents related to the disciplinary proceedings against the Geiers. The court granted the motion in part, but reserved its ruling on the specific sanction to impose. The Geiers also moved to compel the production of the Board's complete files from the disciplinary proceedings against Dr. Geier's medical partner, Dr. Young (while those proceedings were still being adjudicated).

The court granted the motion over the defendants' objections. The defendants noted an appeal from that order. The court then granted a motion for sanctions based on the Board's failure to obey the order compelling disclosure of its files on Dr. Young. During the pendency of the appeal, the Geiers requested the entry of a default judgment against the Board as a sanction for the Board's noncompliance with a notice of deposition under Md. Rule 2-412(d).

The Geiers had moved for sanctions when the witness designated to testify on the Board's behalf failed to appear on the date initially scheduled for the deposition, without obtaining a protective order. The Geiers again moved for sanctions when, at the rescheduled deposition, the Board's designee was inadequately prepared to answer questions about the majority of the 167 topics listed in the notice of deposition. The court granted both motions. On December 16, 2014, the court issued a written opinion announcing its decision to "enter a default against the defendants but on the issue of liability only" as a sanction for the Board's discovery failures.

The court announced that it would schedule a trial on damages after resolution of ⁵⁶⁴ the interlocutory appeal. The defendants filed a second notice of appeal as soon as the court entered the order imposing the sanction of default. ⁴⁶⁶ D. The First Interlocutory Appellate Decision on Discovery Matters The Geiers moved to dismiss both appeals as premature. In a consolidated opinion, this Court explained that the order deeming all defendants in default as to liability was not subject to review until the entry of a final judgment that included any damage award. Maryland Bd. of Physicians v. Geier (" Geier I "), 225 Md. App. 114 , 139-43, 123 A.3d 601 (2015).

This Court determined, however, that the order compelling the production of documents related to Dr. Young was appealable under the collateral order doctrine. Id. at 121 , 123 A.3d 601 . This Court explained that, although routine discovery orders are not immediately appealable, "the collateral order doctrine may permit an immediate appeal of a discovery order that permits a litigant to inquire into the decisional processes of high-level government officials[.]" Id. at 131 , 123 A.3d 601 . This holding ensures that those officials need not await the outcome of a trial before seeking to vindicate an objection to the pretrial probing of their decisional thought processes.

See id. at 131-32 , 123 A.3d 601 . Addressing the merits of the discovery order, this Court held that HO § 14-410 did not permit the Geiers to discover documents from Dr. Young's disciplinary proceedings in their action against the Board and its personnel. Geier I , 225 Md. App. at 144 -47 , 123 A.3d 601 . This Court also set aside the discovery order because the court "did not expressly balance the public interest in maintaining the confidentiality of the Board's deliberations concerning Dr. Young against the Geiers' need for disclosure of those documents and the impact of nondisclosure upon the fair administration of justice" when it rejected the assertion of deliberative privilege.

Id. at 151 , 123 A.3d 601 . Noting that the "decision concerning the discovery order may affect some of the premises of the order of default, such as the breadth and scope of the deposition of the Board's designee[,]" this Court said that "the circuit court, upon a proper motion, should reevaluate" that order on remand. Id. at 155 , 123 A.3d 601 . ⁴⁶⁷ As part of their interlocutory appeal, the defendants also asked this Court to address the issue of "absolute quasi-judicial immunity," which the circuit court had declined to evaluate when it denied the preliminary motion to dismiss. Geier I , 225 Md. App. at 120 & n.2, 123 A.3d 601 .

This Court "express[ed] no opinion on the applicability" of any immunity, explaining that those issues were not properly reviewable in the appeal from the discovery ruling. Id. at 152 n.22, 123 A.3d 601 . This Court nevertheless encouraged the circuit court "[a]s part of the balancing process on remand" to "assess the Board's immunity claims," because the Geiers would not be entitled to discovery "if an immunity insulates the defendants from liability or from suit." Id. E. Rejection of Absolute Immunity and Other Rulings on Remand When the case returned to the circuit court, all defendants moved for reconsideration of the order imposing the sanction of default and for summary judgment in their favor on the ground of absolute quasi-judicial immunity.

They also invoked absolute immunity as grounds for a protective order from further discovery requests. At a hearing on March 24, 2016, the court considered and rejected the defendants' contention that they were entitled to absolute immunity. The court was unmoved by the defendants' reliance on federal cases, which the court deemed not to ⁵⁶⁵ be controlling. The court also expressed concern that recognizing an absolute immunity would displace § 5-715(b) of the Courts and Judicial Proceedings Article, which grants the Board's members and agents an immunity from civil liability for actions taken without malice.

The court observed that the Maryland "legislature has staked out a very detailed, specific statutory scheme" of qualified immunity, and that the defendants had "not cited any a case from the Court of Appeals or the Supreme Court" extending absolute immunity to Board personnel. For identical reasons, the court denied the motion for a protective order based on absolute immunity. ⁴⁶⁸ During the same hearing, the court declined to vacate the order imposing the sanction of default as to the defendants' liability. Referring to the Board's delay in producing documents, the failure of the Board's representative to attend her duly-noted deposition, and the Board's subsequent failure to produce a representative who was prepared to testify about all 167 topics in the deposition notice, the court concluded that "the conduct ... of the defendants here was ... abysmal, abominable, [and] sanctionable[.]" At the same hearing, the Geiers pursued yet another motion for sanctions, arguing that the Board improperly withheld audio recordings of its deliberations in the medical disciplinary proceedings. The court granted the motion, reasoning that the defendants had previously "waived" their assertion of privilege over the deliberations.

The defendants immediately noted another appeal, seeking review of each of the rulings made on remand in favor of the Geiers. The Court of Appeals granted certiorari on its own initiative before any consideration by this Court. F. The Second Interlocutory Appellate Decision on Discovery Matters In the second round of appellate review, the defendants implored the Court "to consider their claims regarding the denial of their quasi-judicial immunity in the orders denying their motions for reconsideration and for a protective order." Maryland Board of Physicians v. Geier (" Geier II "), 451 Md. 526 , 553, 154 A.3d 1211 (2017). The Court, however, held that neither of those orders were immediately appealable under the collateral order doctrine.

Id. at 555-57 , 154 A.3d 1211 . The Court relied on its prior pronouncement that " '[i]nterlocutory trial orders overruling immunity claims by ... agencies ... are not appealable under this doctrine.' " Id. at 556 , 154 A.3d 1211 (quoting Dawkins v. Baltimore City Police Dep't , 376 Md. 53 , 65, 827 A.2d 115 (2003) ). The Court concluded that members of the Board of Physicians, "a quasi-judicial body within an administrative agency[,]" were not in the limited categories of officials that may be entitled to take an immediate ⁴⁶⁹ appeal from an order denying immunity. Geier II , 451 Md. at 557 , 154 A.3d 1211 . 8 The Court of Appeals held that only one order, the order granting sanctions based on the failure to produce the audio recordings, was "properly appealable" at that time under "the narrow exception allowing discovery orders denying 'high level decision makers' their executive privilege to be ⁵⁶⁶ immediately appealable under the collateral order doctrine." Geier II , 451 Md. at 547 , 154 A.3d 1211 .

The Court emphasized that "[r]egardless of the outcome of the trial," the harm done from "the disruption to the administrative process, caused by placing the officials under pretrial scrutiny" would be "impossible to cure" after the Board disclosed the audio recordings of its deliberations to the Geiers. Id. at 552 , 154 A.3d 1211 (citation and quotation marks omitted). On the merits, the Court determined that the defendants made a timely assertion of their deliberative privilege over the audio recordings. Geier II , 451 Md. at 567 , 154 A.3d 1211 .

The Court reasoned that "preventing the disclosure of [the Board's] pre-decisional deliberations greatly benefits the public by allowing [the Board] to undertake [its] core public protection function without the constant threat of harassment and intimidation by aggrieved parties." Id. at 569 , 154 A.3d 1211 . The Court concluded that the Geiers failed to overcome the presumption arising from the formal claim of privilege over the deliberations. Id. at 570 , 154 A.3d 1211 . Consequently, the recordings were "not discoverable" by the Geiers.

Id. G. Remaining Pretrial Rulings Despite the two appeals on discovery matters, the order imposing a default as to liability remained in place against all ⁴⁷⁰ defendants. Hence, when the case again returned to the circuit court, the court permitted the Geiers to withdraw their demand for a jury trial on the remaining issue of damages. See Md. Rule 2-325(f) ("[a]n election for trial by jury may be withdrawn only with the consent of all parties not in default").

The court rejected the defendants' argument that they still had the right to have a jury determine damages despite the default as to liability. In addition, the defendants collectively moved for a partial dismissal, or for partial summary judgment, as to the invasion-of-privacy claim originally raised by Anne Geier. Mrs. Geier had died in October 2014, and thereafter Dr. Geier, in his capacity as personal representative of his wife's estate, had substituted himself for his wife. The defendants contended that "an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded." Restatement (Second) of Torts § 625I (1977).

The circuit court disagreed, concluding that the invasion-of-privacy claim was not a "cause of action for slander[,]" which would abate upon a party's death. Six Board members, apparently dissatisfied with their representation through the Attorney General's office, retained private counsel as the trial date approached. Those Board members each filed motions asking the court again to reconsider the decision to sanction them for the Board's discovery failures. Those defendants also moved for summary judgment, arguing that the Geiers had no evidence of malice and that, therefore, they should be immune from liability under Maryland statutes.

Other defendants, still represented through the Attorney General's office, moved for partial summary judgment as to any claims for punitive damages, arguing that the Geiers had no evidence of actual malice. The court denied each of those motions and allowed all claims for damages to proceed against all defendants. At a hearing during the week before trial, the circuit court announced what it called the "analytical framework" for the bench trial on damages. The court ruled that the order ⁴⁷¹ imposing the sanction of default would satisfy the Geiers' burden of proof as to the liability of all defendants.

The court also ruled that, to show their entitlement to punitive damages from any ⁵⁶⁷ particular defendant, the Geiers still needed to prove by clear and convincing evidence that the defendant acted with actual malice. The court nevertheless imposed some restrictions on the manner in which the defendants might rebut the charge of malice. The court, on its own initiative, decided that it would "draw an adverse inference" against "any defendant who either invoked the [deliberative] privilege or who benefitted from the invocation of the privilege." The court further decided: "to the extent that a party has invoked a privilege or benefitted from it, and thus thwarted the discovery of relevant facts, he or she ... may not testify about any of the undisclosed facts, or facts flowing from those undisclosed facts, at trial." Finally, the court said that it would impose "consequences, evidentiary or otherwise[,]" if it found that the defendants failed to preserve relevant evidence after the Board first received warning of the Geiers' contemplated lawsuit. H. Bench Trial on Damages The trial on damages generated eight days of testimony in July and August of 2017.

The Geiers offered testimony from Dr. Geier and David Geier, transcribed testimony from the late Mrs. Geier, and documentary exhibits. At the end of the Geiers' case-in-chief, the individual defendants moved for judgment, arguing that the Geiers had produced insufficient evidence of malice. The court denied the motions, opining that "the record [was] replete ... with legally sufficient evidence, direct and circumstantial" upon which to "find actual malice ... by clear and convincing evidence." During the defense case, the Geiers objected to the introduction of evidence about the roles of individual defendants in the meeting on January 25, 2012, at which the Board voted to ⁴⁷² issue the public cease-and-desist order. The defendants who were represented by private counsel asked to waive the prior assertions of deliberative privilege.

An assistant attorney general representing other individuals (but not the Board) also asked to waive the privilege. A different attorney from the same office, representing the Board (but none of the individual defendants), declined to waive the privilege on behalf of the Board. The court refused to permit any defendant to waive the deliberative privilege. The court reasoned that the defendants could not waive the privilege after they had invoked it successfully in their appeal to the Court of Appeals to prevent pretrial discovery of the audio recordings.

The court interpreted the Court of Appeals' holding on deliberative privilege to require the exclusion of not only the recordings but also other evidence of the deliberations. Under that rationale, the court sustained objections to the testimony of individual defendants about their participation in the meeting of January 25, 2012. Various Board members proffered that, if they had been permitted to testify, they would have said that they did not review the text of the cease-and-desist order before or during that meeting. The court did admit testimony that, as a matter of custom, Board members would not read orders before voting on proposed actions, but would rely on the Board's attorneys and staff to determine the wording of orders.

At the close of all evidence, the defendants renewed their motions for judgment as to punitive damages, arguing that the trial record included insufficient evidence of malice. In addition, the defendants moved for judgment based on the absolute immunity arguments from their pretrial motions. The court denied the motions without comment. ⁵⁶⁸ I. Opinion Awarding Compensatory and Punitive Damages Four months after trial, the circuit court issued a 112-page memorandum opinion awarding damages to the Geiers based ⁴⁷³ on "the knowing and intentional publication of confidential medical information" by the defendants. Before discussing damages, the court first addressed the Geiers' allegations of spoliation from an unresolved motion for sanctions.

It was undisputed that, a few months after the Board first received notice of the Geiers' contemplated lawsuit, the technical staff deleted electronic data of many email communications when the Department of Health and Mental Hygiene transitioned from one email system to another. The court found that, although the Board's staff printed hard copies of a "handful" of relevant emails, the defendants "intentionally failed to preserve" the electronic copies. The court further found that Board members failed to make diligent searches of private email accounts through which they received some documents related to hearings. The court ruled that "the defendants' intentional spoliation of the Board's e-mail server and hard drives, along with the defendants' failure to preserve their own personal e-mail account information, provides an additional ground to enter a default against all of the defendants[.]" The court reasoned that its "two default orders ... satisf[ied] the plaintiffs' burden of proof as to the defendants' liability for the specific causes of action pled." The court ruled that, "[i]n light of the default orders," it would "not consider any of the defendants' negative or affirmative defenses, including the immunity defenses." The court considered the issue of malice, on a defendant-by-defendant basis, solely for the purpose of assessing punitive damages.

The court equated actual malice with a defendant's "actual knowledge of" or "willful refusal to know" of "the publication of the [Geiers'] private medical information[,]" along with a defendant's intent "to disclose this information to the public in violation of the law." The court found that defendant Victoria Pepper, the administrative prosecutor who drafted the cease-and-desist order, intentionally included prescription information in the order for the purpose of embarrassing the Geier family. The court found that defendant Joshua Schafer, the staff member who had ⁴⁷⁴ written the investigative report recommending the order, supported the publication of the order knowing that it included the Geiers' prescription information. The court concluded that both Ms. Pepper and Mr. Schafer acted with actual malice. Those findings rested, in part, on emails between Ms. Pepper and Mr. Schafer which, in the court's view, evinced an "unprofessional" tone and appeared to "celebrate[ ]" developments to the detriment of Dr. Geier and David Geier.

In its opinion, the court reiterated its pretrial decision to "draw an adverse inference from the invocation of the [deliberative] privilege, as to any defendant who invoked or benefitted from the invocation of the privilege and asked the privilege to be upheld by the Court of Appeals." 9 The ⁵⁶⁹ court found that all Board members who attended the meeting on January 25, 2012, knew that the cease-and-desist order contained the Geiers' private medical information before they voted to approve it. The court said that it "disbelieve[d]" testimony that the Board members customarily voted on disciplinary matters without reading the text of orders. To the extent that it considered their testimony, the court said that it "disbelieve[d] the testimony of the Board members that they did not see the Order at the meeting and did not read it before it was signed[.]" The court credited testimony from one Board member who recalled reading the order during the January 2012 meeting. Notwithstanding the other rulings on privilege, the court permitted the Board member to testify about the meetings ⁴⁷⁵ because she had done so without objection during a deposition.

The court found that, even though the Board's deputy director promptly instructed the technical staff to remove the original order from the website, the original order remained accessible for nearly 18 months, until July 2013. The court faulted all defendants for their collective inaction during that period of time - even the defendants who left their positions with the Board well before July 2013. The court reasoned that all defendants should have known that the original order remained on the website because the Geiers' lawyer said so in the statutory notice-of-claim form to the State treasurer in March 2012, attached a copy of the notice-of-claim form as an exhibit to the recusal motion in May 2012, and repeated the allegation in the civil complaint in December 2012. The court said that the Board members "knew ... that the problem had not been fixed," but that they "simply did not care." Overall, the court concluded: "What was done here ... was done intentionally to embarrass and humiliate the Geier family because [Ms. Pepper], [Mr. Schafer,] and each member of the Board did not like the way [Dr. Geier] practiced medicine and wanted to send a message and teach him (and David Geier, who worked hand and glove with his father) a lesson." The court concluded that the Geiers "had proven, by clear and convincing evidence" that 13 Board members (including one who did not attend the January 2012 meeting) "acted with actual malice." The court found that one Board member "did not act with actual malice[,]" largely because the court credited her testimony about the Board's meetings.

The court said it was "not persuaded" that four of the Board members acted with malice because, "[i]n their particular cases, the court believe[d] their lack of memory and assertions of good will." The court made no express finding as to whether two other Board members acted with malice. The court found that three defendants "acted negligently in this matter." Those defendants were: the chief of compliance ⁴⁷⁶ who supervised Mr. Schafer; the deputy director who ordered the removal of the original order from the website; and the executive director who took office one month after the Board issued the original order. The court ruled that the harm resulting from their "negligent conduct" was "attributable to the State of Maryland, and to the Board." The court said: "As a consequence, the State of Maryland is responsible ⁵⁷⁰ for payment of the compensatory award." The court found that all three Geier plaintiffs suffered injury, including "insult, embarrassment, humiliation, mental pain and suffering, nervousness, and indignity[,]" as the result of the "acts of each defendant." The court awarded compensatory damages of $ 500,000 to Dr. Geier; $ 500,000 to the estate of Anne Geier; and $ 250,000 to David Geier. The court further awarded punitive damages of $ 500,000 to Dr. Geier; $ 500,000 to Anne Geier; and $ 250,000 to David Geier.

Finally, the court allocated punitive damages in different amounts among Ms. Pepper, Mr. Schafer, and 15 Board members, based on factors including the financial ability and level of culpability of those defendants. J. Award of Attorneys' Fees and Entry of Final Judgment The court entered the memorandum opinion awarding damages on December 7, 2017. All defendants filed a notice of appeal on the same day that the opinion was entered. The Geiers promptly petitioned for an award of attorneys' fees under 42 U.S.C. § 1988 , based on the success of their claim under 42 U.S.C. § 1983 .

Six weeks after the court entered the opinion awarding damages, counsel for the Geiers sent an email directly to the trial judge's law clerk, without sending a copy of the email to any opposing counsel. The email "point[ed] out [an] inconsistency" in the opinion. Specifically, on the final page of the opinion, the court allocated $ 200,000 of punitive damages to one of the Board members, Dr. Nalla Ramakrishna, even though the factual findings stated that the court was not ⁴⁷⁷ persuaded that Dr. Ramakrishna acted with actual malice. Counsel for the Geiers suggested that he could "raise the issue in a motion to amend" or that the court might prefer to "address this issue sua sponte [.]" Two weeks after receiving the email, the court issued an order stating that it had "identified a clerical error" in the opinion and "correct[ing] that error" under Rule 2-535(d).

The order amended two sentences of its opinion, to remove Dr. Ramakrishna from the list of defendants who had not acted with actual malice and to include him in the list of defendants who did act with actual malice. The defendants later learned, from an exhibit to a supplemental petition for attorneys' fees, that counsel for the Geiers had made a billing record of the time spent writing the email. Upon the defendants' request, counsel for the Geiers forwarded the email. 10 After an evidentiary hearing on attorneys' fees, the court issued a memorandum opinion explaining the basis for its decision to award fees under 42 U.S.C. § 1988 . On April 25, 2018, the court entered an order awarding $ 2,393,931.30 in attorneys' fees and $ 85,616.21 in litigation costs.

On the same day, the court entered an order directing the clerk to enter final judgment. The order imposed joint and several liability against all defendants for the compensatory damages, attorneys' fees, and litigation costs. It obligated 17 of the individual defendants to pay punitive damages in specified amounts. 11 ⁵⁷¹ All defendants filed another notice of appeal upon the entry of final judgment. The Geiers noted a cross-appeal, which they later dismissed voluntarily.

This Court consolidated the defendants' appeal from the memorandum opinion entered on December ⁴⁷⁸ 7, 2017, with their appeal from the judgment entered on April 25, 2018. SCOPE OF APPELLATE REVIEW The sequence of post-trial events has generated some confusion about when exactly the circuit court entered its final judgment. Because that date is potentially significant to our scope of review, we will clarify that matter before addressing the substance of the appeal. Subject to a few narrow exceptions, "appellate jurisdiction in Maryland is ordinarily limited to review of final judgments." Hiob v. Progressive American Ins.

Co. , 440 Md. 466 , 475, 103 A.3d 596 (2014) (citing Md. Code, § 12-301 of the Courts and Judicial Proceedings Article ). " Maryland Rule 8-202(a) details the time limitation for a party to file an appeal from a final judgment in the circuit court." Rosales v. State , 463 Md. 552 , 563-64, 206 A.3d 916 (2019). The defendants here noted an appeal from the "Memorandum Opinion and Order" entered on December 7, 2017; they did not appeal from the order entered on January 29, 2018, which corrected the findings regarding one defendant, Dr. Ramakrishna; and they noted a second appeal from the "Order to Enter Judgment" entered on April 25, 2018. The defendants seek review of all awards of damages and fees, including the rulings that concern Dr. Ramakrishna.

In many respects, the memorandum opinion appeared to announce a final decision. The introduction stated: "This decision resolves all the outstanding discovery motions, as well as the plaintiffs' claims on the merits for compensatory and punitive damages." Unlike prior decisions deeming the defendants in default as to liability only, the opinion "awarded" damages in definite amounts. The final paragraph stated: "All other relief requested, and all other outstanding motions, are denied." In light of that language, it is more than understandable that the defendants decided to file a notice of appeal. When a court issues a ruling that appears to be conclusive, practitioners can and should secure their clients' interests by ⁴⁷⁹ filing a "timely protective notice of appeal." County Council of Prince George's County v. Dutcher , 365 Md. 399 , 411, 780 A.2d 1137 (2001).

On closer inspection, however, the 112-page opinion did not set forth a final judgment within the meaning of the Maryland Rules. A final judgment does not take effect unless and until "it is set forth on a 'separate document' consistent with Rule 2-601(a) and is entered on the docket consistent with Rule 2-601(b)." Hiob v. Progressive American Ins. Co. , 440 Md. at 471 -72 , 103 A.3d 596 . The separate-document requirement " 'must be mechanically applied in determining whether an appeal is timely.' " Id. at 480 , 103 A.3d 596 (quoting Byrum v. Horning , 360 Md. 23 , 32, 756 A.2d 560 (2000) ).

Full satisfaction of Rule 2-601(a) means something other than writing a few arguably conclusive sentences spread across the final pages of a lengthy opinion. The document embodying the judgment should "clearly indicate ... which party has prevailed on which issues and what type of relief, if any, has been granted by the court." Hiob v. Progressive American Ins. Co. , 440 Md. at 486 , 103 A.3d 596 . To ensure clarity, Rule 2-601(a) ordinarily requires that the separate document be "distinct from any opinion or ⁵⁷² memorandum" explaining the basis for the judgment.

Byrum v. Horning , 360 Md. at 26 -27 , 756 A.2d 560 (citation and internal quotation marks omitted). This requirement of separation is designed to relieve the uncertainties that may result if the court writes "an opinion or memorandum containing some apparently directive or dispositive words" ( id. at 26 , 756 A.2d 560 ), but otherwise leaves it "difficult for the clerk to determine the precise nature of the judgment and the wording that needed to be included in the docket entry reflecting the court's judgment." Wireless One, Inc. v. Mayor of Baltimore City , 239 Md. App. 687 , 695 n.3, 198 A.3d 892 (2018), cert. granted , 462 Md. 556 , 201 A.3d 1228 (2019). "Under a mechanical application of Rule 2-601" ( Hiob v. Progressive American Ins. Co. , 440 Md. at 497 , 103 A.3d 596 ), ⁴⁸⁰ the court's memorandum opinion was not effective as a final judgment.

The opinion purported to "award[ ]" specific amounts of compensatory damages to the plaintiffs, but it did not state which defendants were liable for the damages. The answer to that question was not obvious, in light of the court's findings that only certain defendants had acted maliciously (or even negligently) and the court's apparent reliance on the Maryland Tort Claims Act to impose liability against "the State" as well. Adding further ambiguity, the total amount of punitive damages "allocated" to the defendants exceeded the punitive damages "awarded" on behalf of the plaintiffs. In addition, the opinion allocated punitive damages to one defendant in two different amounts.

Overall, the opinion did not provide a reader with the information needed to discern the amount of each defendant's liability for damages. Not surprisingly, the clerk of the circuit court did not treat the memorandum opinion as a judgment in any particular amount against any defendant. The clerk did not record or index a judgment in the judgment records. The clerk docketed the opinion under its title with the following notation: "punitive damages are awarded in this case, for each plaintiff; all other relief requested, and all other outstanding motions, are denied[.]" The clerk mailed copies of the opinion to the parties, but did not send notice that a judgment had been entered.

At a hearing two weeks later, the Geiers opposed the defendants' motion to stay enforcement of the "judgment," on the ground that the opinion was not a final judgment. The court reviewed the docket entries and observed that "the clerk [had] docketed [the] opinion[,]" but the court did not "see the entry of judgment by the clerk." At a subsequent hearing, the court rejected the Geiers' request to order "judgment interest" to run from the date of the entry of the opinion, again observing that "no judgment ha[d] been entered in the case by the clerk." The court explained that it still intended to "direct the clerk in a written order to enter the damage award judgments." The court said that the subsequent order would specify the "amount to enter as to each defendant" so as to ⁴⁸¹ provide "the information [the clerk] needs to comply with the rule regarding entry of judgments." Afterwards, the court signed the "Order to Enter Judgment." That document included language imposing liability "against each of the Defendants, jointly and severally" for the compensatory damages, attorneys' fees, and litigation costs. It made 17 particular defendants "liable for punitive damages" in specific amounts. It directed the clerk to "enter a final judgment in accordance with Md. Rule 2-601." The clerk complied on April 25, 2018, by docketing the judgment, recording monetary judgments against each defendant in the ⁵⁷³ judgment index, and sending notice of the entry of judgment. 12 Unlike the earlier memorandum opinion, the order entered on April 25, 2018, satisfied the separate document requirement.

By filing a notice of appeal on that date, all defendants have taken a timely appeal from the final judgment under Md. Rule 8-202(a). Our review of that judgment encompasses all "interlocutory order[s] previously entered in the action[,]" except for the discovery orders from which appeals have "previously been taken" and "decided on the merits" by the appellate courts. See Md. Rule 8-131(d). QUESTIONS PRESENTED The defendants submitted one set of appellate briefs on behalf of the 25 Board personnel, as individuals, and one on behalf of the Board of Physicians, as a state agency.

The opening brief from the "Individual Appellants" presents 11 questions. The Board has adopted their arguments regarding six of those questions and has raised one additional question. ⁴⁸² The appendix to this opinion reproduces the lists of questions presented, in full. Our discussion will begin with the following question posed by the Board alone: "Did the court err in entering judgment against the State for damages, attorneys' fees, and costs for claims under 42 U.S.C. § 1983 , where the State is not a 'person' under § 1983, and the State has Eleventh Amendment immunity?" We conclude that the Geiers were not entitled to a judgment against the Board as to the count under 42 U.S.C. § 1983 because the Geiers did not and could not name the Board as a defendant to that count. As the first question presented in their brief, the individual defendants ask: "Are defendants entitled to absolute quasi-judicial immunity because the Geiers' claims are based entirely on actions taken in ongoing physician-disciplinary proceedings in which the Board of Physicians was performing a discretionary quasi-judicial function?" We conclude that the Board personnel have absolute immunity from both the federal claim and the Maryland tort claim.

By extension, there is no basis to make the Board liable, either. In their second question presented, the individual defendants ask: "Were defendants denied due process of law, and did the court abuse its discretion in entering a default judgment based on non-prejudicial failures of discovery by the Board?" We conclude that the court abused its discretion when it sanctioned the individual defendants for discovery failures attributed to the Board. Because the individual defendants never should have been sanctioned with a default, they were fully entitled to rely on their absolute immunity as a ground for summary judgment. The judgment in favor of those defendants inures to the benefit of the Board regardless of whether the Board was in default.

In light of those determinations, we need not decide any other issue. Nothing in this opinion should be construed as a decision on the other challenges to the judgment. 13 ^{483 574} DISCUSSION I. Liability of the State Board of Physicians Under 42 U.S.C. § 1983 The two surviving counts were: a federal civil rights claim, under 42 U.S.C § 1983, against individual Board personnel; and an invasion-of-privacy claim, under Maryland tort law, against Board personnel and the Board itself. Proper analysis requires this Court to apply two different bodies of law to these separate counts. See DiPino v. Davis , 354 Md. 18 , 45, 729 A.2d 354 (1999).

A state court must apply federal law when it exercises jurisdiction over a § 1983 claim. See County Exec. of Prince George's County v. Doe , 300 Md. 445 , 454, 479 A.2d 352 (1984). 42 U.S.C. § 1983 provides, in pertinent part: "Every person who, under color of any statute, ... [or] regulation[ ] ... of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law[.]" This statute "permits a plaintiff to recover damages when an individual, acting under the color of state law, transgresses a federally created right of the plaintiff." Okwa v. Harper , 360 Md. 161 , 192, 757 A.2d 118 (2000) (citing Howlett v. Rose , 496 U.S. 356 , 358, 110 S.Ct. 2430 , 110 L.Ed.2d 332 (1990) ). As the statutory language suggests, the defendant in a § 1983 action must be a "person." Okwa v. Harper , 360 Md. at 192, 757 A.2d 118 . The statute does not authorize an action for damages against a state or a state agency, neither of which are "person[s]" within the meaning of the statute.

See ⁴⁸⁴ Manikhi v. Mass Transit Admin. , 360 Md. 333 , 360, 758 A.2d 95 (2000). The Geiers' complaint correctly described the Board of Physicians as an agency of the State of Maryland. Therefore, the Board "can have no § 1983 liability." Id. Perhaps recognizing that the Board could not be sued for damages under § 1983, the Geiers did not name the Board as a defendant in Count One.

Rather, they sued Board personnel based on their alleged actions "as individuals and under color of state law." Federal law recognizes a dichotomy between § 1983 claims against state officials in their "official" capacities as opposed to their "individual" capacities. See Ritchie v. Donnelly , 324 Md. 344 , 354-55, 597 A.2d 432 (1991). An official-capacity suit is, in substance, " 'a suit against the official's office[,]' " which makes it " 'no different from a suit against the state itself.' " Id. at 355 , 597 A.2d 432 (quoting Will v. Michigan Dep't of State Police , 491 U.S. 58 , 71, 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989) ). A state official "sued in his or her official capacity, is not considered a 'person' when a plaintiff brings a § 1983 action for monetary damages." Okwa v. Harper , 360 Md. at 193, 757 A.2d 118 .

"On the other hand, a state officer or employee, sued in his [or her] individual capacity, is a 'person' subject to a suit for money damages under § 1983." Ritchie v. Donnelly , 324 Md. at 355 , 597 A.2d 432 (emphasis removed). In their preliminary motion to dismiss, the defendants argued that the Geiers ⁵⁷⁵ could not maintain any claim for damages under § 1983 against the Board, as a state agency. At the ensuing hearing, counsel for the Geiers explained that the Board was "not a defendant" in Count One, and that they were suing the named defendants "in their personal capacit[ies]." For further clarification, counsel stated on the record that the Board was a defendant only as to Count Three, the Maryland tort claim. The Geiers eventually prevailed on Counts One and Three when the court imposed a default as to liability and assessed damages after the bench trial.

The Geiers then requested an award of attorneys' fees under 42 U.S.C. § 1988 (b), which authorizes a court to award reasonable attorneys' fees to "the ⁴⁸⁵ prevailing party" in an action to enforce 42 U.S.C. § 1983 and certain other statutes. In response, the defendants asserted that, because the Board was never a defendant to Count One, the Board had no liability under § 1983 and could not be liable for attorneys' fees under § 1988. In the opinion explaining the award of attorneys' fees, the court did not articulate any basis for requiring the Board to pay those fees. The court nevertheless ordered all "defendants, jointly and severally," to pay $ 2,392,931.30 of attorneys' fees.

On appeal, the Board asks this Court to reverse the "judgment" against it on the § 1983 claim and the order requiring the Board to pay attorneys' fees. The record fails to show that the judgment even included any determination of the Board's liability on Count One. As the Geiers have noted: "A judgment by default constitutes an admission by the defaulting party of its liability for the causes of action set out in the complaint ." Pacific Mortg. & Inv. Grp., Ltd. v. Horn , 100 Md. App. 311 , 332, 641 A.2d 913 (1994) (emphasis added).

Yet the complaint did not set out any § 1983 claim against the Board, the State, or anyone in an official capacity. Any such claim would have been subject to dismissal. See Manikhi v. Mass Transit Admin. , 360 Md. at 361, 758 A.2d 95 ; Ritchie v. Donnelly , 324 Md. at 358 -59 , 597 A.2d 432 . The Geiers argue that the Board "can be held liable under § 1983" because the State has "consented" to certain suits through the Maryland Tort Claims Act.

See SG § 12-104(a)(1) (subject to certain exclusions and limitations, waiving "the immunity of the State and its units ... as to a tort action, in a court of the State"). Even if this waiver of immunity could be construed to include a § 1983 action, no enactment of the General Assembly can "create a cause of action under § 1983 against an entity whom Congress has not subjected to liability." Howlett v. Rose , 496 U.S. at 376 , 110 S.Ct. 2430 . The State of Maryland and its agencies are not "person[s]" subject to suit for damages under § 1983, regardless ⁴⁸⁶ of whether a plaintiff brings suit in federal court or in state court. See id. at 365, 376 , 110 S.Ct. 2430 .

In any event, we must "decide the case not on the basis of what the plaintiffs might have done, but on the basis of what they actually did." State v. Braverman , 228 Md. App. 239 , 254, 137 A.3d 377 (2016). Because the Geiers did not sue the Board under Count One, the order imposing the default did not make the Board liable under Count One. The Geiers did not (and could not) prevail on a nonexistent (and invalid) § 1983 claim against the Board. It follows that the court had no basis to order the Board to pay attorneys' fees.

A defendant's "liability on the merits" under § 1983 and "responsibility for fees" under § 1988 "go hand in hand[.]" ⁵⁷⁶ Kentucky v. Graham , 473 U.S. 159 , 165, 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985). Accordingly, "a suit against a government official in his or her personal capacity cannot lead to imposition of fee liability upon the government entity." Id. at 167 , 105 S.Ct. 3099 . Because the Geiers asserted "no claim for merits relief" against the Board under § 1983, "the fee award against [the Board] must be reversed." Id. at 170 , 105 S.Ct. 3099 .

II

Claim Against Board Personnel Under 42 U.S.C. § 1983 Unlike the Board, the 25 natural persons named in Count One were "person[s]" capable of being sued for damages under 42 U.S.C. § 1983 , at least in their personal capacities. From the beginning of this case, those defendants have maintained that they are entitled to absolute immunity. Their contention is correct. A. Absolute Judicial and Prosecutorial Immunity in § 1983 Actions Federal law governs a person's immunity from a § 1983 claim.

See, e.g. , Okwa v. Harper , 360 Md. 161 , 197, 757 A.2d 118 (2000). Most of the Geiers' arguments about immunity concern Maryland law. Of course, Maryland law "does not ⁴⁸⁷ control this [ § 1983 ] claim even though the federal cause of action is being asserted in the [Maryland] courts." Martinez v. California , 444 U.S. 277 , 284, 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980). Federal law grants most officials no more than a "qualified" immunity in defense of a § 1983 claim.

See, e.g. , Dehn Motor Sales, LLC v. Schultz , 439 Md. 460 , 489, 96 A.3d 221 (2014). Under that form of qualified immunity, " 'government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Id. at 474 n.18, 96 A.3d 221 (quoting Harlow v. Fitzgerald , 457 U.S. 800 , 818, 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) ). 14 The Supreme Court has recognized, however, "that some officials perform 'special functions' which, because of their similarity to functions [for which an official] would have been immune when Congress enacted § 1983, deserve absolute protection from damages liability." Buckley v. Fitzsimmons , 509 U.S. 259 , 268-69, 113 S.Ct. 2606 , 125 L.Ed.2d 209 (1993). To determine whether an official has absolute immunity, the Supreme Court uses "a 'functional approach,' which looks to 'the nature of function performed, not the identity of the actor who performed it.' " Id. at 269 , 113 S.Ct. 2606 (citations omitted). The Supreme Court has consistently recognized the principle of absolute judicial immunity in § 1983 cases.

See Mireles v. Waco , 502 U.S. 9 , 9, 112 S.Ct. 286 , 116 L.Ed.2d 9 (1991) (per curiam). At common law, " 'judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.' " Stump v. Sparkman , 435 U.S. 349 , 355-56, 98 S.Ct. 1099 , 55 L.Ed.2d 331 (1978) (quoting ⁴⁸⁸ Bradley v. Fisher , 80 U.S. (13 Wall.) 335, 351 , 20 L.Ed. 646 (1871) ). The Supreme Court has concluded that the enactment of § 1983 did not alter this "well established" doctrine. Pierson v. Ray , 386 U.S. 547 , 554-55, 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967).

State judges, therefore, are absolutely immune from being sued for damages under § 1983 based on judicial acts ⁵⁷⁷ within the general scope of their jurisdiction. See Stump v. Sparkman , 435 U.S. at 356 , 98 S.Ct. 1099 . Because judicial immunity is "an immunity from suit, not just from ultimate assessment of damages[,]" it cannot be "overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." Mireles v. Waco , 502 U.S. at 11 , 112 S.Ct. 286 (citations omitted). This immunity is unaffected "by any consideration of the motives" for the judicial act.

Bradley v. Fisher , 80 U.S. (13 Wall.) at 354 . Moreover, a judicial officer who performs a judicial act "cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Id. at 347 . A judge is not subject to liability even if he or she committed "grave procedural errors" ( Stump v. Sparkman , 435 U.S. at 359 , 98 S.Ct. 1099 ) or acted "in excess of his [or her] authority[.]" Id. at 356 , 98 S.Ct. 1099 . A judge may be sued only for "actions not taken in the judge's judicial capacity" or for "actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles v. Waco , 502 U.S. at 11 , 112 S.Ct. 286 (citations omitted).

The doctrine of judicial immunity is rooted in "a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability." Antoine v. Byers & Anderson, Inc. , 508 U.S. 429 , 435, 113 S.Ct. 2167 , 124 L.Ed.2d 391 (1993). Judges must decide "[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, ... in which there is great conflict in the evidence and great doubt as to the law which should govern their decision." ⁴⁸⁹ Bradley v. Fisher , 80 U.S. (13 Wall.) at 348 . Dissatisfied litigants frequently will accuse judges of improper motives. Id.

"If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in [a] complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away." Id. The same policy considerations that support this immunity for judges led to the recognition of a common-law absolute immunity for prosecutors. Imbler v. Pachtman , 424 U.S. 409 , 422-23, 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976). In short, the "public trust of the prosecutor's office would suffer if he [or she] were constrained in making every decision by the consequences in terms of his [or her] own potential liability for a suit in damages." Id. at 424-25 , 96 S.Ct. 984 .

Courts have "described the prosecutor's immunity as a form of 'quasi-judicial' immunity and referred to it as derivative of the immunity of judges[.]" Id. at 420 , 96 S.Ct. 984 . A state prosecutor is immune from being sued for damages under § 1983 based on acts that are closely connected to the judicial process or that implicate the prosecutor's role as the advocate for the State. See id. at 430-31 , 96 S.Ct. 984 & n.33. This absolute immunity attaches to acts such as: initiating a prosecution and presenting the State's case at a criminal trial ( id. at 431 , 96 S.Ct. 984 ); presenting evidence in support of an application for a search warrant ( Burns v. Reed , 500 U.S. 478 , 492, 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991) ); and preparing and filing charging documents ( Kalina v. Fletcher , 522 U.S. 118 , 129, 118 S.Ct. 502 , 139 L.Ed.2d 471 (1997) ).

These functions are comparable to those of judges, insofar as prosecutors "exercise a discretionary judgment on the basis of evidence" ⁵⁷⁸ available to them. Imbler v. Pachtman , 424 U.S. at 423 n.20, 96 S.Ct. 984 . B. Absolute Immunity in the Context of Administrative Proceedings In Butz v. Economou , 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), the Supreme Court extended absolute ⁴⁹⁰ immunity to agency officials who perform adjudicative or prosecutorial functions in certain administrative proceedings. In that case, the owner of a regulated business sued federal officials for damages, alleging that the officials instituted a proceeding to revoke or suspend the business's registration in retaliation for the business owner's criticisms of the agency.

Id. at 480-81 , 98 S.Ct. 2894 . The Court granted certiorari amid conflicting decisions about whether executive officials might claim absolute immunity. See id. at 483-85 , 98 S.Ct. 2894 . The Court explained that, although most officials are entitled to only a qualified immunity when sued for constitutional violations, some officials perform "special functions" that justify "a full exemption from liability." Butz v. Economou , 438 U.S. at 508 , 98 S.Ct. 2894 .

The Court observed that judges have absolute immunity because of the "special nature of their responsibilities" ( id. at 511 , 98 S.Ct. 2894 ), while prosecutors have absolute immunity because they make decisions with "functional comparability" to the decisions of judges. Id. at 512 , 98 S.Ct. 2894 . The Court explained that the "characteristics of the judicial process" make its participants the frequent targets of retaliatory litigation, creating a strong need "to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation." Id. "At the same time," the Court observed that "safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct." Butz v. Economou , 438 U.S. at 512 , 98 S.Ct. 2894 .

The Court mentioned that judges are restrained by "insulation ... from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal[.]" Id. Prosecutors, in their roles as "[a]dvocates[,]" are restrained by their "professional obligations" and by the "knowledge that their assertions will be contested by their adversaries in open court." Id. The Court concluded that "adjudication within a federal administrative agency shares enough of the characteristics of ⁴⁹¹ the judicial process that those who participate in such adjudication should also be immune from suits for damages." Butz v. Economou , 438 U.S. at 512 -13 , 98 S.Ct. 2894 . The Court noted that agencies resolve conflicts "every bit as fractious as those which come to court" and are subject to "many of the same safeguards [that] are available in the judicial process." Id. at 513 , 98 S.Ct. 2894 .

"In light of these safeguards," the Court decided that "the risk of an unconstitutional act by one presiding at an agency hearing is clearly outweighed by the importance of preserving the independent judgment of these men and women." Id. at 514 , 98 S.Ct. 2894 . Accordingly, the Court held that "persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts." Id. The Court further concluded that "agency officials performing certain functions analogous to those of a prosecutor" should have absolute immunity from suits for damages. Butz v. Economou , 438 U.S. at 515 , 98 S.Ct. 2894 .

The Court likened the "decision to initiate administrative proceedings" to a prosecutor's "decision to ⁵⁷⁹ initiate or move forward with a criminal prosecution." Id. Similarly, the Court saw "no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of a prosecutor who brings evidence before a court." Id. at 516 , 98 S.Ct. 2894 . Thus, "officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication" ( id. ) and "agency attorney[s] who arrange[ ] for the presentation of evidence on the record in the course of an adjudication" are absolutely immune from suits based on the performance of those duties. Id. at 517 , 98 S.Ct. 2894 .

Although Butz v. Economou arose from a so-called Bivens action 15 alleging unconstitutional conduct of federal officials, ⁴⁹² the Court opined that it is "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou , 438 U.S. at 504 , 98 S.Ct. 2894 . Thus, Butz v. Economou governs the analysis of whether a state official has absolute immunity from a § 1983 claim based on a function in a state administrative proceeding. C. Absolute Immunity in Relation to Medical Disciplinary Proceedings Absolute immunity for agency officials has become known as a form of "quasi-judicial" immunity. Over the past few decades, the federal circuit courts of appeal have comprehensively analyzed the absolute immunity of state officials in 42 U.S.C. § 1983 actions arising out of conduct in the proceedings of medical licensing and disciplinary boards.

In this context, courts hold that an official has absolute immunity based on the performance of a discretionary function if: (1) the function is analogous to a function in a judicial proceeding for which a judge or prosecutor enjoys absolute immunity; (2) the official's actions could potentially expose the official to frequent damages lawsuits unless the official had absolute immunity; and (3) the function occurs within a regulatory framework with safeguards sufficient to minimize the risk of unconstitutional acts. E.g. Guttman v. Khalsa , 446 F.3d 1027 , 1033-34 (10th Cir. 2006) (citing Horwitz v. State Bd. of Med. Examiners of State of Colorado , 822 F.2d 1508 , 1513 (10th Cir. 1987) ).

Other courts have approached the issue by examining a list of non-exclusive "factors," none of which is necessarily controlling. E.g. Olsen v. Idaho State Bd. of Medicine , 363 F.3d 916 , 923-24 (9th Cir. 2004) (citing Mishler v. Clift , 191 F.3d 998 , 1009 (9th Cir. 1999) ). Those factors are: "(a) the need to assure ⁴⁹³ that the individual can perform his [or her] functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal." Cleavinger v. Saxner , 474 U.S. 193 , 202, 106 S.Ct. 496 , 88 L.Ed.2d 507 (1985) (citing Butz v. Economou , 438 U.S. 478 , 512, 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978) ).

Under either rubric, courts have consistently concluded that members of a state medical board who adjudicate disciplinary ⁵⁸⁰ charges are functionally comparable to judges. Board members typically do not have the degree of insulation from outside influence that characterizes a judge or professional hearing examiner, but they have independence to the extent that they serve fixed terms during which they may not be removed at will. See, e.g. , Watts v. Burkhart , 978 F.2d 269 , 275-76 (6th Cir. 1992). In disciplinary hearings, medical boards exercise the powers of trial judges, including the powers to compel the attendance of witnesses, to administer oaths, and to make evidentiary rulings.

See, e.g. , O'Neal v. Mississippi Bd. of Nursing , 113 F.3d 62 , 66 (5th Cir. 1997). Most importantly, boards perform the core adjudicative tasks of making factual findings, reaching legal conclusions, determining sanctions, and issuing orders and decisions. See, e.g. , Coggeshall v. Massachusetts Bd. of Registration of Psychologists , 604 F.3d 658 , 663 (1st Cir. 2010) (citing Bettencourt v. Bd. of Registration in Medicine of Commonwealth of Massachusetts , 904 F.2d 772 , 783 (1st Cir. 1990) ). Courts uniformly agree that controversies over the licensing and discipline of medical professionals are weighty enough to inspire retaliatory lawsuits.

State medical boards "make difficult and controversial decisions" affecting a person's career and livelihood. O'Neal v. Mississippi Bd. of Nursing , 113 F.3d at 66 . It is "only natural" for the person affected by the decision to "want some kind of redress." Id. "In view of the public interest of assuring quality health care" ( ⁴⁹⁴ Mishler v. Clift , 191 F.3d at 1005 ), there is a corresponding interest in ensuring that board members can decide these matters "free from the threat of incurring personal liability for every decision they hand down." O'Neal v. Mississippi Bd. of Nursing , 113 F.3d at 66 .

State medical practice acts usually afford procedural rights (such as notice of charges, representation through counsel, and the opportunity to present evidence and cross-examine witnesses) equivalent to those available under federal administrative law. See, e.g. , Watts v. Burkhart , 978 F.2d at 275 . Consequently, medical disciplinary proceedings tend to be "inherently adversarial." O'Neal v. Mississippi Bd. of Nursing , 113 F.3d at 66 . The board compiles a record and issues its decision in writing, so that a court may review the decision and correct any errors.

See, e.g. , Mishler v. Clift , 191 F.3d at 1007 . "These and other safeguards indicate that enough checks on malicious action by Board members exist to warrant a grant of absolute immunity for the Board members' actions in their adjudicatory capacities." Bettencourt v. Bd. of Registration in Medicine of Commonwealth of Massachusetts , 904 F.2d at 783 . In connection with these quasi-judicial proceedings, officials who perform prosecutorial functions are "equally entitled to absolute immunity." Guttman v. Khalsa , 446 F.3d at 1034 . Consequently, an administrative prosecutor in a medical disciplinary proceeding is absolutely immune from a § 1983 suit for damages based on functions such as the initiation of charges and the presentation of evidence.

See id. To decide whether a function is prosecutorial, "the determinative factor is 'advocacy' because that is the prosecutor's main function and the one most akin to his [or her] quasi-judicial role." Pfeiffer v. Hartford Fire Ins. Co. , 929 F.2d 1484 , 1490 (10th Cir. 1991) (citation and quotation marks omitted). Overwhelmingly, these federal cases demonstrate that officials who perform adjudicative or prosecutorial functions in state medical disciplinary proceedings have absolute immunity from being sued ⁵⁸¹ for damages under § 1983, as long as those ⁴⁹⁵ proceedings are akin to adjudications under the federal Administrative Procedure Act.

D. Absolute Immunity for Medical Disciplinary Proceedings in Maryland Proceedings of the State Board of Physicians are governed by the Medical Practice Act, HO §§ 14-101 through 14-702 ; and the Maryland Administrative Procedure Act, SG §§ 10-201 through 10-226. This regulatory framework is largely indistinguishable from the many out-of-state counterparts for which officials have absolute immunity from being sued for damages under § 1983. Both the Board and the Office of Administrative Hearings, to which the Board delegates some of its authority, have structural independence. See HO § 14-202(i), (k) ; SG § 9-1605(a), (b).

Board members and administrative law judges exercise judge-like powers during disciplinary hearings. See HO §§ 14-206(a), (b), 14-401(i) ; SG § 9-1605(c), (d). Together, they make findings of fact, reach conclusions of law, and decide the ultimate disposition. See HO § 14-405(e) ; SG §§ 10-220, 10-221.

The contested-case provisions of the Maryland Administrative Procedure Act afford an adversarial setting in which the respondent, through counsel, may dispute the charges. See HO § 14-405 ; SG § 10-213. Errors, including constitutional errors, may be corrected through judicial review and through further appellate review. See HO § 14-408 ; SG § 10-222. 16 The defendants rely on Ostrzenski v. Seigel , 177 F.3d 245 (4th Cir. 1999), which determined that a defendant had absolute immunity from a § 1983 claim based on conduct in a ⁴⁹⁶ proceeding under the Maryland Medical Practice Act.

There, the Board (under its former name, the Board of Physician Quality Assurance) had commissioned peer review reports to determine whether to issue charges against a surgeon. Id. at 248 . The surgeon sued one of the peer reviewers under § 1983, alleging the deprivation of constitutional rights through irregularities in the peer review process. Id. at 247-48 .

The trial court dismissed that claim on the ground of absolute immunity ( id. at 248 ), and the Fourth Circuit upheld that conclusion. Id. at 253 . The Fourth Circuit observed: "Every court of appeals that has addressed the issue has concluded that members of a state medical disciplinary board are entitled to absolute quasi-judicial immunity for performing judicial or prosecutorial functions." Ostrzenski v. Seigel , 177 F.3d at 249 (collecting cases). The Court reasoned that, even though the peer reviewer was "not a Board member, and thus he [was] one step removed from the 'judicial' functions of the Board, he nevertheless [would] be entitled to absolute quasi-judicial immunity if he [was] engaged in a protected prosecutorial function." Id.

The Fourth Circuit compared the role of the peer reviewer deciding whether to recommend disciplinary charges to the role of "a prosecutor reviewing the evidence to determine whether to recommend prosecution." Ostrzenski v. Seigel , 177 F.3d at 250 . Given the "real risk" of retaliatory lawsuits ⁵⁸² by physicians ( id. at 250-51 ), the Court recognized a "strong need to ensure that peer reviewers perform their functions for the public good without harassment and intimidation." Id. at 250 . Finally, the Court identified "adequate procedural safeguards" under Maryland administrative law "to protect against unconstitutional conduct by peer reviewers without reliance on private damages lawsuits." Id. at 251 . Thus, the peer reviewer was absolutely immune from the § 1983 claim based on his prosecutorial role in the disciplinary proceedings.

Id. In view of Ostrzenski v. Seigel and other federal authorities, there is no reason to doubt that Board members would have absolute immunity if the Geiers had sued them under § 1983 ⁴⁹⁷ to recover damages resulting from the decisions to issue charges against the Geiers, to revoke Dr. Geier's medical license, and to impose a penalty against David Geier. Those discretionary decisions were "directly related to th[e] adjudicatory function and the ultimate resolution of the disciplinary dispute[.]" Olsen v. Idaho State Bd. of Medicine , 363 F.3d 916 , 928 (9th Cir. 2004). The remedy for any unconstitutionality in those decisions was to seek judicial review, as Dr. Geier and his son did.

Their remedy was not to sue the decision makers for damages. This absolute immunity would reach even the Board's decision to summarily suspend Dr. Geier's license, which occurred on an ex parte basis, before he received notice and the opportunity to challenge the suspension. In Maryland, as in other states, summary suspensions entail substantially fewer protections than those available in ordinary disciplinary hearings. Courts have concluded, however, that "the exercise of summary suspension authority ... is 'directly comparable to the function performed by a judge in deciding whether to issue a temporary restraining order or preliminary injunction.' " Buckwalter v. Nevada Bd. of Med.

Examiners , 678 F.3d 737 , 745-46 (9th Cir. 2012) (quoting Watts v. Burkhart , 978 F.2d 269 , 277 (6th Cir. 1992) ). 17 The summary suspension of a medical license "is nothing more than a temporary expedient" ( Watts v. Burkhart , 978 F.2d at 276 ), followed promptly by an adversarial hearing "with a full complement of procedural safeguards." Buckwalter v. Nevada Bd. of Med. Examiners , 678 F.3d at 743 . 18 ⁴⁹⁸ The defendants appear to argue that, because the underlying proceedings against Dr. Geier were "quasi-judicial" in nature, then absolute immunity should cover all actions of Board personnel in relation to those proceedings. That suggestion is too broad. Courts applying Butz v. Economou in similar contexts have analyzed the precise functions at issue in the plaintiff's claim.

The § 1983 claim here concerns the drafting and issuing of the cease-and-desist order dated January 25, 2012. We must examine whether those specific functions give rise to absolute immunity. E. Absolute Immunity for the Issuance of a Cease-and-Desist Order The Geiers' main allegations are that the Board members intentionally included ⁵⁸³ private information in the cease-and-desist order and improperly designated the order as a public document, resulting in its online publication. The Geiers make two arguments pertinent to whether, under federal law, the Board members have absolute immunity from the § 1983 claim based on their involvement with the order.

The Geiers dispute whether issuing a cease-and-desist order is sufficiently analogous to a judicial function for absolute immunity to attach. They also dispute whether adequate safeguards exist to protect against unlawful conduct by the Board personnel. The Geiers have not denied that a strong need exists for Board personnel to "undertake their core public protection function without the constant threat of harassment and intimidation by aggrieved parties." Maryland Bd. of Physicians v. Geier (" Geier II "), 451 Md. 526 , 569, 154 A.3d 1211 (2017) (discussing deliberative privilege). In the circuit court, the Geiers questioned whether the Board's decision to issue a cease-and-desist order requires the "exercise of judgment vital to the judiciary[.]" Antoine v. Byers & Anderson, Inc. , 508 U.S. 429 , 435, 113 S.Ct. 2167 , 124 L.Ed.2d 391 (1993).

To the contrary, when the Board issues a cease-and-desist order, it performs the task of " 'authoritatively adjudicating private rights.' " Id. at 436 , 113 S.Ct. 2167 (quoting ⁴⁹⁹ Burns v. Reed , 500 U.S. 478 , 500, 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991) (Scalia, J., concurring)). The order has injunctive qualities insofar as it prohibits specific conduct. Md. Rule 15-501(a) (defining an injunction as "an order mandating or prohibiting a specified act"). Perhaps even more so than a summary suspension, the decision to issue a cease-and-desist order "is 'directly comparable to the function performed by a judge in deciding whether to issue a temporary restraining order or preliminary injunction.' " Buckwalter v. Nevada Bd. of Med.

Examiners , 678 F.3d 737 , 745-46 (9th Cir. 2012) (quoting Watts v. Burkhart , 978 F.2d 269 , 277 (6th Cir. 1992) ). The only federal circuit court called upon to decide the issue held that members of a state medical board were absolutely immune from a § 1983 claim based on the decision to order a person to cease and desist from the unauthorized practice of medicine. Dunham v. Wadley , 195 F.3d 1007 (8th Cir. 1999). In that case, a state veterinary board determined, after deliberating on investigation reports, that a doctor was practicing veterinary medicine in the state without a license.

Id. at 1008-10 . The board "issued orders in the form of letters sent to [the doctor] and two of her employers informing them of the board's conclusion that [the doctor] was engaging in the practice of veterinary medicine without a proper license, and warning that the employers themselves would be subject to criminal punishment if they did not 'cease and desist' from their employment of her." Id. at 1010-11 . The Eighth Circuit reasoned that, "[t]o the extent that the board weighed evidence, made factual determinations, determined sanctions, and issued written decisions," the duties performed by the board were "functionally comparable to the duties performed by courts." Id. at 1011 . At a minimum, the decision to order a person to cease and desist from the unlicensed practice of medicine requires: some factual determination that the person is engaging in a particular activity, a legal conclusion that the activity constitutes the unlicensed practice of medicine, and a choice that ordering the person to cease and desist is an appropriate course of action.

The Medical Practice Act entrusted these matters to the Board's discretion. Among its other express grants of power, ⁵⁰⁰ it stated: "The Board may issue a cease and desist order or obtain injunctive relief ⁵⁸⁴ for practicing medicine without a license." HO § 14-206(e) (emphasis added). More generally, the Act authorized the Board to "[t]ake any appropriate and immediate action as necessary" after a preliminary investigation. HO § 14-401(c)(1)(ii).

As the Court of Appeals observed: "The General Assembly clearly intended to afford [Board members] considerable discretion in carrying out their duties under the Health Occupations Article, including the express authority to issue cease and desist orders." Geier II , 451 Md. at 569 -70 , 154 A.3d 1211 . The governing regulations further demonstrate that the Board's decision to issue a cease-and-desist order occurs alongside decisions to issue formal charges or sanctions. COMAR 10.32.02.03(C)(1) listed the "determination to ... [i]ssue a cease and desist order" as one of several options for the Board to take "[a]fter reviewing the completed investigatory information and reports[.]" Other options included charging the respondent with a violation of the Act or dismissing the matter altogether. Id.

Another regulation stated that, "[d]uring the course of the investigation of [a] complaint" of the unauthorized practice of medicine, "the Board may issue a nonpublic cease and desist order." COMAR 10.32.02.06(B)(2) (emphasis added). It specified: "At the conclusion of an evidentiary hearing, the administrative law judge may recommend a public cease and desist order in addition to a penalty." Id. The Geiers have consistently argued that the Board violated these regulations by issuing the cease-and-desist order as a public document during an ongoing investigation. They also assert that the inclusion of patient prescription information in the order violated Maryland law protecting the confidentiality of medical records.

On those bases, they contend that "the publication of the document was illegal" and, in their view, the type of "ministerial act" that is undeserving of absolute immunity. Their argument misconceives the concept of a ministerial act. ⁵⁰¹ Examples of ministerial acts include: a medical board's response to an out-of-state inquiry regarding a physician's standing to practice medicine ( Mishler v. Clift , 191 F.3d 998 , 1001, 1008 (9th Cir. 1999) ); and a medical board's issuance of a billing statement for a public records request ( Olsen v. Idaho State Bd. of Medicine , 363 F.3d 916 , 928 (9th Cir. 2004) ). A discretionary