Md. Comm'n on Human Rel. v. BG & E. CO.

296 Md. 46 (1983) 459 A.2d 205 MARYLAND COMMISSION ON HUMAN RELATIONS v. BALTIMORE GAS AND ELECTRIC COMPANY [No. 66, September Term, 1982.] Court of Appeals of Maryland. Decided April 26, 1983. ⁴⁷ The cause was argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ. Risselle Rosenthal Fleisher, General Counsel, for appellant. Stanley Mazaroff, with whom were Venable, Baetjer & Howard, Michael D. Rind and James A. Biddison, Jr., on the brief, for appellee.

DAVIDSON, J., delivered the opinion of the Court. The primary question this case presents concerns the doctrine of exhaustion of statutorily prescribed administrative and judicial remedies. More particularly, the question is whether an administrative agency appeal board's order remanding a case to a hearing examiner for further proceedings constitutes a final decision that entitles a party to immediate judicial review. On 22 November 1978, the petitioner, Maryland Commission on Human Relations (Commission), filed a complaint, see Md. Code (1957, 1979 Repl.Vol.), Art. 49B, § 9 (b), against the respondent, Baltimore Gas and Electric Company (B G & E), alleging that B G & E's policy of refusing to hire the spouse of an employee constituted discrimination based upon marital status. [1] B G & E denied ⁴⁸ that its policy was discriminatory, asserting that it was merely a component of a general "anti-nepotism policy" that precluded the hiring of all close relatives of employees, [2] and was based upon relational status, not marital status.

In addition, B G & E asserted as a defense that even if its policy were discriminatory, business necessity would justify its existence. [3] The Commission issued a "Written Finding," see Md. Code (1957, 1979 Repl.Vol., 1982 Cum.Supp.), Art. 49B, § 10 (a), (b), & (c), that there was "probable cause" to believe that B G & E "discriminates against potential employees in the area of hiring, on the basis of marital status, in violation of Article 49B of the Annotated Code of Maryland." An agreement for the elimination of the alleged discriminatory acts was not reached, and the case was transferred to a Hearing Examiner, see Md. Code (1957, 1979 Repl.Vol.), Art. 49B, § 11 (a). After oral argument, the Hearing Examiner, in a written opinion, found that B G & E's policy of refusing to hire the spouse of an employee did not constitute a discriminatory act because "the anti-nepotism policy considered herein is not one concerning itself with marital status, but is based directly and solely on a relational status to a present ⁴⁹ employee...." Having found no discriminatory act, the Hearing Examiner indicated that the question whether "business necessity" constituted a defense did not need to be determined. The Hearing Examiner entered an order dismissing the complaint, see Md. Code (1957, 1979 Repl. Vol.), Art. 49B, § 11 (g).

The Commission appealed to an Appeal Board of Commissioners (Appeal Board), see Md. Code (1957, 1979 Repl.Vol., 1982 Cum.Supp.), Art. 49B, § 3 (d). In a written opinion, the Appeal Board indicated that the only issue before it was whether B G & E's policy of refusing to hire the spouse of an employee was "violative of Article 49B of the Maryland Code Annotated, in that it is a discriminatory act on the basis of marital status." The Appeal Board found that that policy was "a violation of Article 49B of the Annotated Code of Maryland in that it discriminates against potential employees in the area of hiring on the basis of marital status." On 18 November 1980, the Appeal Board issued a written order remanding the case to the Hearing Examiner "to determine whether the respondent's `close relative policy' is justified as a matter of business necessity within the intendment of Article 49B, Section 16 (g)." Before a further hearing had been held by a Hearing Examiner, B G & E filed an appeal to the Baltimore City Court (now the Circuit Court for Baltimore City), see Md. Code (1957, 1982 Repl. Vol.), Art. 41, §§ 244 (a) & 255 (a) of the Administrative Procedure Act; Md. Rules B1 & B2. There, it raised for the first time, among other things, the contention that the Commission had violated the Code of Maryland Regulations (COMAR) 14.03.01.09A (2) (d) requiring that a complaint be authorized by four commissioners. [4] The Commission moved to dismiss the appeal on the ground that the Appeal Board's 18 November 1980 order remanding the case to the Hearing Examiner ⁵⁰ was not final and, therefore, that B G & E had not exhausted its administrative remedies.

That motion was denied. In a written opinion, the trial court found, among other things, that the Commission had violated COMAR 14.03.01.09A (2) (d) because only three commissioners had authorized the complaint. On 22 January 1982, the trial court entered an order remanding the case to the Commission. The Commission filed an appeal to the Court of Special Appeals.

While that appeal was pending, the Commission filed a petition for a writ of certiorari that we granted before consideration by the Court of Special Appeals. We shall vacate the judgment of the trial court. I This Court has firmly adhered to the principle that statutorily prescribed administrative and judicial remedies must ordinarily be pursued and exhausted. This principle is not only a requirement of our case law, it is a policy embodied in various enactments of the General Assembly.

See, e.g., Maryland Comm'n on Human Relations v. Bethlehem Steel Corp., 295 Md. 586, 592 , 457 A.2d 1146, 1149 (1983); Maryland Comm'n on Human Relations v. Mass Transit Admin., 294 Md. 225, 230-31 , 449 A.2d 385, 387-88 (1982). The rationale underlying this principle was stated in Soley v. State of Maryland Commission on Human Relations, 277 Md. 521, 526 , 356 A.2d 254, 257 (1976). There, this Court said: ⁵¹ "The decisions of an administrative agency are often of a discretionary nature, and frequently require an expertise which the agency can bring to bear in sifting the information presented to it. The agency should be afforded the initial opportunity to exercise that discretion and to apply that expertise.

Furthermore, to permit interruption for purposes of judicial intervention at various stages of the administrative process might well undermine the very efficiency which the Legislature intended to achieve in the first instance. Lastly, the courts might be called upon to decide issues which perhaps would never arise if the prescribed administrative remedies were followed." To exhaust administrative remedies, ordinarily a party must pursue the prescribed administrative procedure to its conclusion and await its final outcome. E.g., Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 767 , 67 S.Ct. 1493, 1500 (1947); Steuart Inv.

Co. v. Board of Comm'rs, St. Mary's County, 38 Md. App. 381, 390 , 381 A.2d 1174, 1180 (1978); see 73 C.J.S. Public Administrative Bodies and Procedure § 41b (1951). Generally, a party can resort to a court only when there is a final order in the administrative proceeding. See, e.g., Kay Constr. Co. v. County Council for Montgomery County, 227 Md. 479, 489-90 , 177 A.2d 694, 700 (1962); Celanese Corp. v. Bartlett, 200 Md. 397, 409 , 90 A.2d 208, 214 (1952); Big Vein Coal Co. v. Leasure, 192 Md. 435, 437 , 64 A.2d 563, 564 (1949).

This principle too is not only a requirement of our case law, it is a policy embodied in various enactments of the General Assembly. [5] Maryland ⁵² Code (1957, 1982 Repl.Vol.), Art. 41, § 255(a), of the Administrative Procedure Act, applicable here [6] is such an enactment. That section provides: "Right to review. — Any party aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof under this subtitle." (Emphasis added.) Thus, the basic question here is whether, under the Administrative Procedure Act, an administrative agency appeal board's order remanding a case to a hearing examiner constitutes a "final decision" entitling the parties to judicial review. This Court has frequently characterized a final order of a court as a judicial determination that concludes the rights of parties or denies them means of further prosecuting or defending their rights and interests in the subject matter of the proceedings. E.g., Highfield Water Co. v. Washington County Sanitary Dist., 295 Md. 410, 415 , 456 A.2d 371, 373 (1983); Schultz v. Pritts, 291 Md. 1, 5-6 , 432 A.2d 1319, 1322 (1981).

Thus, this Court has established the general principle that an order of a court is final and appealable when it determines or concludes the rights of the parties and leaves nothing further for the court to do. Applying this general principle, this Court has repeatedly held that a trial court's order remanding a case to an administrative agency constitutes a final order for the purpose of further judicial review. E.g., Brown v. Baer, 291 Md. 377, 386 , 435 A.2d 96, 100 (1981); Schultz, 291 Md. at 6 , 432 A.2d at 1322 ; ⁵³ Department of Pub. Safety & Correctional Servs. v. LeVan, 288 Md. 533, 544 , 419 A.2d 1052, 1057 (1980).

Thus in Schultz v. Pritts, 291 Md. 1, 6 , 432 A.2d 1319, 1322-23 (1981), this Court said: "When a court remands a proceeding to an administrative agency, the matter reverts to the processes of the agency, and there is nothing further for the court to do. Such an order is an appealable final order because it terminates the judicial proceeding and denies the parties means of further prosecuting or defending their rights in the judicial proceeding." We are persuaded that the same general principle should apply in determining whether the order of an administrative agency constitutes a "final decision" entitling a party to immediate judicial review. Although Maryland courts have considered whether certain particular administrative determinations are final actions entitling parties to judicial review, the characteristics of a "final" administrative action have seldom been described. E.g., Kay Constr.

Co., 227 Md. at 490 , 177 A.2d at 700 (resolution of County Council granting reconsideration of a zoning classification is not a final order); Celanese Corp., 200 Md. at 409 , 90 A.2d at 214 (decision of the Employment Security Board that "if otherwise eligible, she is entitled to benefits" is not a final decision); Big Vein Coal Co., 192 Md. at 437 , 64 A.2d at 564 (order of the State Industrial Accident Commission allowing claimant to amend claim is not a final order). On some few occasions, this Court has indicated that a party is entitled to judicial review of an administrative action if that action disposes of the matter. E.g., Furley v. Warren-Ehret Co., 195 Md. 339, 345 , 73 A.2d 497, 499 (1949); Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. 74, 78 , 160 A. 804, 806 (1932); see, e.g., Williams v. McHugh, 51 Md. App. 570, 573 , 444 A.2d 475, 477 (1982). Thus, in Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. 74, 78 , 160 A. 804, 806 (1932), this Court, construing a statute providing for judicial review of an administrative agency decision, said: ⁵⁴ "But the appeal allowed by the statute, Code, art. 101, sec. 56, as amended by Acts 1927, ch. 587, is not from the findings or opinion of the commission but from its `decision.' And by `decision' is obviously meant the order by which it disposes of the case." (Emphasis added.) In addition, on some few occasions, the Court of Special Appeals has recognized that a party is entitled to judicial review of an administrative action if that action determines the party's rights under the agency's governing statute.

E.g., Williams, 51 Md. App. at 573 , 444 A.2d at 477 ; Great American Ins. Co. v. Havenner, 33 Md. App. 326, 332 , 364 A.2d 95, 99 (1976); Flying "A" Service Station v. Jordan, 17 Md. App. 477, 480-81 , 302 A.2d 650, 653 (1973). Thus, in Flying "A" Service Station v. Jordan, 17 Md. App. 477, 480-81 , 302 A.2d 650, 653 (1973), the Court of Special Appeals in construing a statute providing for judicial review of an administrative agency decision said: "A decision of the Commission which an aggrieved party is entitled to have reviewed by a court must be an operative order which has the effect of granting or denying some benefit under the Workmen's Compensation law. Most often, such a decision is reached by giving effect to multiple findings, but it is the ultimate decision or order, not each individual finding, which is the basis for judicial review.

Obviously, in a review of the correctness of a decision or order, each finding that contributed to the final result is examined, and one incorrect finding may make the result incorrect. But the appeal is from the result, rather than from each of its separate elements." (Emphasis added.) While Maryland courts have seldom described the attributes of a final administrative action, the United States Supreme Court has frequently articulated the primary characteristics to be considered in determining whether an agency's action is final for purposes of judicial review. As ⁵⁵ long ago as 1927, in United States v. Los Angeles & Salt Lake Railroad Co., 273 U.S. 299, 309-10 , 47 S.Ct. 413, 414 (1927), Justice Brandeis, writing for the majority, said: "The so-called order here complained of is one which does not command the carrier to do, or to refrain from doing anything; which does not grant or withhold any authority, privilege, or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier's existing or future status or condition; which does not determine any right or obligation." Subsequently, in Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 112-13 , 68 S.Ct. 431, 437 (1948), that Court said: "[A]dministrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process." More recently, in Port of Boston Marine Terminal