Pollock v. Patuxent Institution Board of Review

⁴⁶⁶ CATHELL, Judge. Since 1991 there has been recurring litigation between Michael Pollock, petitioner/cross-respondent (hereafter “petitioner”) and the Patuxent Institution Board of Review, respondent/eross-petitioner (hereafter the “Board”). This is the second time a case between these parties has been before this Court. We granted certiorari in this appeal to decide whether positive urinalysis drug test results of a sample supplied by petitioner should have been excluded from evidence at petitioner’s parole revocation hearing due to the failure of the staff of the Patuxent Institution (hereafter “Patuxent”) to strictly comply with its own directive setting forth technical collection and documentation procedures for urinalysis samples.

In a previous appeal petitioner raised the issue that Patuxent’s procedures had not been complied with and further that the chain of custody as to his specimen was improperly preserved. Pollock v. Patuxent Institution Board of Review, 358 Md. 656 , 751 A.2d 496 (2000) (Pollock I). We remanded this case back to the Circuit Court for Howard County for it to decide whether the Board’s decision not to renew petitioner’s parole on the basis of the urinalysis results was arbitrary or capricious. On remand, the circuit court found that the urinalysis results were properly admitted and considered by the Board in revoking, and then not renewing, petitioner’s parole order and specifically found that the Board’s decision was not arbitrary or capricious.

On September 3, 2002, the Court of Special Appeals affirmed. Pollock v. Patuxent Institution Board of Review, 146 Md.App. 54 , 806 A.2d 388 (2002). On December 19, 2002, we granted both the writ of certiorari filed by petitioner and the conditional cross-petition filed by the Board. Pollock v. Patuxent, 372 Md. 429 , 813 A.2d 257 (2002) (Pollock II).

Petitioner presents two questions for our review: “1. Is the Accardi doctrine and its exceptions, as explicated by the Supreme Court in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 ⁴⁶⁷ (1954) and its progeny, applicable to administrative hearings in Maryland? 1 “2. If the answer to question number 1 is ‘yes,’ did the Court of Special Appeals erroneously apply the exception in this case?” The Board essentially asked this Court to consider the same question as petitioner’s question one, but phrased its question as follows: “Does the Board’s technical non-compliance with an internal Patuxent directive, which sets forth procedures governing the collection and handling of urine specimens from Patuxent inmates for the purpose of detecting illicit drug use, provide a basis for either invalidating the Board’s revocation and non-renewal of Pollock’s parole, or excluding the urinalysis drug test results upon which the Board based its decision?” We adopt the “Accardi doctrine” and hold that it is applicable to administrative hearings in Maryland.

We hold, however, that in the case sub judice, the Court of Special Appeals did not erroneously apply one of the exceptions under Accardi and its progeny. Patuxent’s failure to comply with a part of its directive 2 pertaining to the collection and handling of urine ⁴⁶⁸ specimens does not require the reversal of the Board’s action to revoke and not renew petitioner’s parole because the failure to comply technically with all of the PID 110-18 did not implicate fundamental constitutional rights of petitioner nor violate statutorily mandated procedure. What occurred constituted a technical mistake which did not substantially prejudice petitioner. 3 We hold that when the Accardi doctrine, ⁴⁶⁹ with its exceptions, is applicable, a complainant must also show prejudice to have the agency action invalidated. ⁴⁷⁰ Because this appeal involves a long-standing dispute and is the result of recurring litigation, the facts and legal proceedings to date need not be rewritten as the facts of this contested administrative case are settled. As such, we adopt the facts and legal proceedings which were recently and thoroughly summarized by Judge Adkins when this case was below.

She wrote: “FACTS AND LEGAL PROCEEDINGS The Test “Pollock, who killed a cab driver during an argument, was incarcerated in the Maryland Division of Correction as inmate number 4695 on November 23, 1971. He is serving a life sentence with the possibility of parole for first degree murder, plus two years consecutive for escape. “In April 1980, Pollock was committed to Patuxent as a person eligible for Patuxent programs. He became eligible for parole in December 1985, and was paroled in September 1988. Pollock’s most recent parole order was issued in June 1996, with an expiration date of May 1997. “One condition of Pollock’s parole was annual urinalysis testing to determine whether he was in compliance with the ‘no drugs’ and ‘obey all laws’ requirements of his parole order.

On May 15, 1997, Pollock arrived at Patuxent to submit a urine sample. The specimen associated with Pollock tested positive for marijuana. According to Pollock, what happened during the collection and testing of this specimen requires exclusion of those test results. “Sgt. A.P. Jones was on duty when Pollock arrived.

Jones completed the required ‘Request for Urinalysis Test’ form, certifying that ‘Micheál [sic] Pollock’ had verified his identity by T.D. card.’ Jones certified, by signing the form, that Pollock had ‘submitted a urine specimen in my presence in a specimen bottle labeled with the inmate’s name and number and today’s date, and thereafter the inmate handed me the ⁴⁷¹ bottle. I thereafter sealed the bottle with evidence tape, and maintained exclusive possession and control of the bottle until I transferred it from my possession and control as indicated below:.... ‘CHAIN-OF-CUSTODY OF SPECIMEN: From above-named inmate To APJones Date 5-15-97 Time 10:30 AM From APJones To Lock Refrigerator Date 5-15-97 Time 10:33 AM From Capt. L. Latham To P. Stuffey Date 5-15-97 Time 1:40 PM’ “Apparently in an attempt to use Pollock’s inmate number as the number identifying Pollock’s urine specimen, Jones filled in the blank for ‘number’ on that form with ’4697.’ (Emphasis added.) “At the same time he obtained Pollock’s sample, Jones also completed another required Patuxent form, entitled ‘Incident Report.’ Jones completed the ‘nature of incident’ blank with the following handwritten note: ‘On the above date and approx, time the above named inmate gave a urine sample for drug testing. The test was administered by this writer and observed by CO D[.] Taylor.

The sample was secured in the locked refrigerator in the infirmary.... ’ Jones also used number 4697 on that Incident Report. “A third form completed at the time Pollock submitted his urine sample, was entitled: ‘Friends Medical Laboratory Laboratory Testing Requisition Form’ “This form identified Patuxent as the ‘Collection Site’ for ‘7’ different specimens, one collected on May 8, another on May 10, and five on May 15, 1997. Listed under the ‘Specimen Identity’ column of this form were handwritten names of seven different inmates. Each name appeared in a separately numbered box. The first line in each box ⁴⁷² identified the inmate’s name in manuscript with a corresponding inmate number.

On the second line, appearing right below the manuscript name and inmate number, each inmate signed the form. “ ‘Michael Pollock #4669’ is identified as the fourth specimen, dated ‘5-15-97,’ and ‘collected by A.P. Jones & D. Taylor.’ (Emphasis added.) In cursive, under his manuscript name and number, Michael Pollock signed his name and correctly identified himself as ‘#4695.’ (Emphasis added.) The form indicates ‘Capt. L. Latham’ ‘released’ the specimens to a courier from Friends Medical Laboratory (‘Friends’) on ‘5/15/97’ at ‘1:35 pm.’ and authorized Friends to test the specimens. “The next day, on May 16, 1997, Friends tested a urine sample received on ’05/15/97’ that it identified as belonging to ‘Client: Pollock, Michael 4669.’ (Emphasis added.) The results of this test showed that the sample was positive for marijuana. Friends faxed a copy of the test results to Patuxent on May 19,1997. “A parole revocation warrant was issued immediately. On May 20, Pollock surrendered and was returned to Patuxent.

At a May 22 preliminary revocation hearing, Pollock denied using marijuana, but ‘admitted that he had been briefly in the presence of suspected marijuana smokers[.]’ The hearing officer found probable cause for charges that Pollock had violated the terms of his parole, and ordered a parole revocation hearing. “On May 23, at the request of Patuxent, Friends performed a ‘confirmation re-test,’ with the same results. The confirmation test report identified the ‘client’ from whom the sample was taken with the same typewritten ‘Pollock, Michael’ that appeared on the original test report, but without the incorrect typewritten inmate number ’4669.’ Instead, handwritten immediately beneath Pollock’s name is the following notation: ‘4695 Ref-P.’ (Emphasis added.) It is unclear whether the person who added the handwritten inmate number was someone at Friends or at Patuxent. ⁴⁷³ “Revocation And Non-Renewal” “Pollock’s parole revocation hearing began on June 19, 1997 and concluded on July 17, 1997. At the hearing, Pollock moved to dismiss the revocation proceedings because he had not received timely notice of the hearing pursuant to Patuxent Institution Regulation (‘PIR’) 240-19.Y.C. Additionally, Pollock moved to exclude the urinalysis reports on the ground that there were violations of the chain of custody procedures and documentation requirements established by Patuxent Institution Directive (‘PID’) 110-18. 4 “The Board denied both motions. Based on the test results from Friends, it concluded that Pollock had used marijuana in violation of the terms of his parole. ‘[D]ue to the seriousness of these violations,’ the Board ruled that Pollock was ‘no longer eligible for Patuxent programs.’ As a result, Pollock was transferred to another correctional facility within the DOC to serve the remainder of his sentence. “In August 1997, Pollock appealed the Board’s decision to the Circuit Court for Howard County.

He argued that the Board violated its own rules by failing to provide timely notification of the revocation hearing and that the urinalysis test results were inadmissible because a chain of custody was never established. Patuxent responded that the issues raised by Pollock were moot because Pollock’s parole order had expired before the July 1997 parole revocation hearing, and, alternatively, that there was sufficient evidence to establish a chain of custody for Pollock’s specimen. “On April 15, 1998, the circuit court reversed the Board’s decision to revoke Pollock’s parole, ruling that the Board was late in notifying Pollock of the revocation hearing. The ⁴⁷⁴ circuit court, however, did not address whether the urinalysis results could be used against Pollock as grounds for revocation of his parole. “As a result of this order, the Attorney General advised Patuxent that Pollock ‘must be brought back to the Patuxent Institution and either (1) be declared a “non-eligible person” based on facts other than the parole revocation (although the Board may consider the positive urinalysis that [led] to the revocation); or (2) return the inmate to parole as an eligible person; (8) reinstate the eligible person status, but factually determine that parole is not appropriate through the “annual review” process (rather than in conjunction with a parole revocation).’ “Patuxent chose the third option. On May 8, 1998, it advised Pollock that, during his appeal of the Board’s revocation decision, ‘your annual review for parole status ... lapsed.’ Accordingly, an annual parole review hearing was scheduled for May 21,1998. “In response to this notice, on May 13, 1998, Pollock filed a habeas corpus petition in the Circuit Court for Howard County.

Shortly thereafter, at the May 21 annual review hearing, the Board relied on the positive urinalysis results in deciding not to renew Pollock’s parole. Noting ‘the legal implications of this case,’ the Board returned Pollock to Patuxent as ‘an Eligible Person,’ where he was ‘put on [the] drug tier.’ “On June 2, 1998, the circuit court held a hearing on Pollock’s habeas petition. A year later, on June 30, 1999, the circuit court denied habeas relief because Pollock’s parole had expired, so there was ‘no parole to which Pollock could be restored.’ “Pollock appealed that decision to th[e] Court [of Special Appeals], raising both constitutional and procedural arguments. [The Court of special Appeals] affirmed in an unreported decision that adopted the circuit court’s rationale. See Pollock v. Patuxent Inst.

Bd. of Review, No. 1657, ⁴⁷⁵ Sept. Term 1998, 127 Md.App. 790 (filed June 14, 1999). The Court of Appeals granted certiorari to consider whether a Patuxent parolee has a constitutional right to remain on parole until the parole is revoked in accordance with a revocation proceeding that meets ‘due process’ standards. See Pollock v. Patuxent Inst. Bd. of Review, 358 Md. 656, 666 , 751 A.2d 496 (2000).

The Court, however, ultimately declined to decide that question until all of the non-constitutional questions were resolved. See id. at 666-67 , 751 A.2d 496 . It vacated this Court’s decision and remanded the habeas petition because Pollock had ‘never obtained judicial review of the use of the May 1997 report of urinalysis either as the basis for the original revocation or as the basis for the May 21, 1998 non-renewal on annual review.’ Id. at 668 , 751 A.2d 496 . “On remand, by written order dated June 27, 2001, the circuit court found that the testimony and documents presented by the Board ‘constitute! ] “substantial evidence” in support of the conclusion that the sample submitted by Mr. Pollock contained marijuana in violation of his conditions of parole. The testimony and exhibits show directly, or support a reasonable inference, that all requirements of . ..

PID No. 110-18 concerning the taking, storage, transfer and testing of the sample were complied with, even if one page of the chain of custody [form] was not introduced as an exhibit. The content of that page and the compliance of that document with PID No. 110-18 was testified to by Sgt. A.P. Jones.’ 5 ⁴⁷⁶ The habeas court held that both the decision to revoke Pollock’s parole and the decision not to renew it were ‘fully justified’ by ‘the finding that Mr. Pollock’s urine sample from May 15, 1997, contained marijuana in violation of his conditions of parole.’ It is from this decision that Pollock now appeals.” I. Standard of Review In our recent case of Jordan Towing, Incorporated v. Hebbville Auto Repair, Incorporated, 369 Md. 439, 449-52 , 800 A.2d 768, 774-75 (2002) (quoting Gigeous v. ECI, 363 Md. 481, 495-97 , 769 A.2d 912, 921-22 (2001), we discussed the review of an administrative agency’s decision. We stated that: “ ‘We review an administrative agency’s decision under the same statutory standards as the Circuit Court.

Therefore, we reevaluate the decision of the agency, not the decision of the lower court. Moreover ... we stated that “[jjudicial review of administrative agency action is narrow. The court’s task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.”.... ‘We, however, “may always determine whether the administrative agency made an error of law. Therefore, ordinarily the court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.”...

Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” ... we further explained: “The scope of review is limited to whether a reasoning mind could have reached the factual conclusion the agency ⁴⁷⁷ reached. In applying the substantial evidence test, the reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken. The reviewing court also must review the agency’s decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity. 6 Furthermore, not only is the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.” ‘ “ Id. (citations omitted) (footnote added).

II

Discussion “[Petitioner] asserts that the Board’s finding that the positive urine specimen was the same urine specimen collected from [him] on May 15, 1997 was clearly erroneous because that fact ‘was never established with any reasonable degree of certainty.’ “ Pollock, 146 Md.App. at 65 , 806 A.2d at 394 . Additionally, petitioner asserts that the Board “ ‘was incorrect as a matter of law’ in admitting the test results at the parole revocation hearing and later, when not renewing his parole, because PID 110-18, entitled “ ‘Urinalysis Testing,’ “ “ ‘sets forth a mandatory procedural framework that must be followed when obtaining and testing a Patuxent inmate’s urine for illicit drugs.’ “ Id. Petitioner has argued that there were four violations that rendered the Board’s decision to admit the urinalysis results “arbitrary and capricious,” i.e., the use of the wrong inmate number, improper securing of the required evidence tape, lack of documentation regarding a second offi ⁴⁷⁸ cer who handled the sample and lack of a signed copy of the Medical Laboratory Chain of Custody Form. Moreover, although petitioner admits that the intermediate appellate court properly acknowledged its prior cases in which it held that an agency must scrupulously follow its rules and regulations under the “Accardi doctrine” (which adherence petitioner alleges is lacking in this case), he asserts that the intermediate appellate court improperly went further when it held that PID 110-018 at issue met the Accardi exception which provides that the Accardi doctrine does not apply to an agency’s departure from procedural rules adopted for the orderly transaction of agency business. 7 The intermediate appellate court relies on this exception, which indicates that not every internal procedural policy, rule or regulation adopted by an agency invokes the Accardi doctrine.

The intermediate appellate court so held after a detailed discussion and conclusion that the title, stated purpose, language and history of the directive “collectively indicate that it was not primarily designed to guarantee parolees that their urine specimens will be collected and documented in precisely the manner described in the directive” and that the “provisions indicate that Patuxent’s primary purpose for this directive is to promote the use of urinalysis testing as a means of controlling drug use by inmates, not to establish a precise rubric for conducting such drug testing.” Pollock, 146 Md.App. at 74-75 , 806 A.2d at 400 . In other words the drug screening procedure was adopted in order Patuxent to be better able to control drug use among its population. It was not a special procedure only used for purposes of parole revocation or renewal hearings. After holding that the Accardi exception was applicable, the Court of Special Appeals further opined that: “That conclusion does not end our inquiry.

An agency does not have carte blanche to violate its. own procedural policy merely because it is not subject to the Accardi ⁴⁷⁹ doctrine. An agency’s failure to follow its ‘internal administrative procedures’ may require reversal of the agency’s action if ‘the complaining party can show substantial prejudice. ’ Thus, ‘even if an agency rule does not have the force and effect of law (that is, even if it is simply interpretive, a statement of policy, or any other, lesser, rule of agency organization, procedure, or practice), a violation of that rule will still invalidate an agency’s action if the complainant can show that he was substantially prejudiced by the violation.’ “The question of whether [petitioner] was substantially prejudiced by any violation of PID 110-18 dovetails with the remaining question raised by [petitioner’s] appeal: whether the Board and the circuit court erred in concluding that the test results provided valid and sufficient grounds for revoking and then not renewing [petitioner’s] parole.... “There is enough evidence in this administrative record to support the Board’s finding that the positive urine specimen belonged to [petitioner]. Because the Board’s decision was supported by substantial evidence that [petitioner] violated his parole by using marijuana, including the positive urinalysis test results, and it committed no error of law, we must affirm its decision.” Id. at 76-77, 82 , 806 A.2d at 401, 405 (citations omitted) (emphasis added) (alterations added). In the case now before us, the Board argues that: “Pollock has neither argued nor shown that he has suffered any prejudice that results from the actions he alleges Patuxent committed.

Those actions consist solely of a technical non-compliance with Patuxent’s urinalysis testing directive, and did not compromise the integrity of the laboratory test results establishing that [petitioner] used illicit drugs in violation of the conditions of his parole. This is not enough to warrant either reversing the Board’s decision to revoke [petitioner]’s parole or excluding the urinalysis test results from his parole hearing.” [Alterations added.] ⁴⁸⁰ The Board also contends, moreover, that the Court of Special Appeals was incorrect to hold that “the Accardi doctrine would require the per se exclusion of the Friends lab report if Patuxent staff members did not strictly comply with PID 110-18.” Pollock, 146 Md.App. at 69 , 806 A.2d at 897 . The Board argues that the intermediate appellate court’s view of a per se exclusion upon a finding of an agency violation is incorrect, that is, that the Court of Special Appeals was incorrect to state that “If, as [petitioner] contends, Patuxent staff violated PID 110-18, and if the Accardi doctrine applies to those violations ..., then the positive test results should have been excluded, without specifically inquiring whether the violations prejudiced [petitioner.]” Id. (alterations added) (emphasis added).

The Board proffers that this position of the Court of Special Appeals’ is incorrect and that “Regardless of whether the ‘primary’ purpose of the urinalysis testing directive is to confer important procedural benefits or to assist the agency in conducting its operations” the complainant must show prejudice and that the Court of Specials Appeals’ stance on prejudice is not in line with Supreme Court cases, the doctrine of Maryland administrative law embodied in the APA 8 and cases from this Court that have mentioned the Accardi doctrine. If that were the accurate statement of the Court of Special Appeals’ position we would agree with the Board that it was incorrect. The Board also proffers that the intermediate appellate court’s position, that when the Accardi doctrine is applicable no specific inquiry need be made regarding whether the administrative agency’s violations prejudiced the complainant, is a view that, while consistent with prior case law from that court and consistent with the way the intermediate appellate court has interpreted the Accardi doctrine in a number of cases, is wrong. We believe that, to some extent, the Board misconstrues the Court of Special Appeals’ position in this case regarding the showing of prejudice in regards to the Accardi doctrine. ⁴⁸¹ Clearly, the portion of the intermediate appellate court’s opinion in the case at bar that we just cited shows that the Court of Special Appeals has opined that an agency does not have “caite blanche ” to violate a rule exempt from the Accardi doctrine merely because it was adopted for the orderly transaction of business.

Thus, we understand the Court of Special Appeals’ stance, as stated in this case, to be that even if the exception to Accardi is applicable, a complainant that can still show prejudice by the agency violation might be able to have that agency action invalidated. We agree with this position, and only reverse the Court of Special Appeals’ position that, where Accardi is applicable and the primary Accardi exception is not, any agency violation of a rule or regulation is a violation per se and the agency action must be invalidated. In such a factual scenario, we hold that a complainant must still show prejudice to potentially have the agency action invalidated. To the extent that the Board’s belief that the Court of Special Appeals’ past cases are inconsistent with the position we now take might be accurate, that court’s prior positions are now modified by our express holding in this case. a.

The Accardi Doctrine The “Accardi doctrine,” which traces its roots to the Supreme Court decision of United States ex rel. Accardi v. Shaughnessy, 847 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954), has been recognized in federal and some state jurisdictions. Accardi, however, involved much more than mere technical violations of an internal agency regulation pertaining to the orderly transaction of agency business. It involved an attempt to bypass three levels of review required by the agency’s regulations.

It was not mere technical inaccuracies written on a form. In Accardi, the Supreme Court reversed the denial of a request for a writ of habeas corpus where the Attorney General disregarded applicable procedures of the Board of Immigration Appeals. There, a deportable alien appealed from an order of the Board of Immigration Appeals denying his application for suspension of deportation. The procedure to be followed in processing such an application was pre ⁴⁸² scribed by regulations of the Attorney General acting pursuant to the Immigration Act, which called for decisions at three separate administrative levels below the Attorney General, i.e., by a hearing officer, by the Commissioner and by the Board of Immigration Appeals.

The Attorney General did not follow this procedure in Accardi because while the deportation proceeding was pending, the Attorney General sent the Board of Immigration Appeals, an administrative agency within the Department of Justice whose members serve for'the Attorney General, a confidential list of “unsavory characters” who the Attorney General felt should be deported, one of whom was Accardi. The Supreme Court concluded that this communication constituted a violation of the regulations which conferred initial decision making authority upon a hearing officer, the Commissioner and the Board of Immigration Appeals, subject to review by the Attorney General. Thus, even though the Attorney General had the final power to ultimately deport Accardi and the Attorney General had no statutory or constitutional obligation to provide for intermediate action by the Board of Immigration Appeals, the Court held that, “In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board [of Immigration Appeals] or dictate its decision in any manner.” Accardi, 347 U.S. at 267 , 74 S.Ct. at 503 , 98 L.Ed. at 686 (alteration added). 9 However, as we indicated supra, there is a principal exception to the doctrine, which provides that the doctrine is not applicable to “an agency’s departure from procedural rules adopted for the orderly transaction of agency business.” Hopkins v. Maryland Inmate Grievance Commission, 40 Md.App. 329, 336 , 391 A.2d 1213, 1217 (1978). 10 In the post Accardi ⁴⁸³ case of American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-39, 90 S.Ct. 1288, 1292-93 , 25 L.Ed.2d 547, 553 (1970), the Supreme Court declined to set aside an order of the Interstate Commerce Commission when the Interstate Commerce Commission failed to comply with its own regulations for processing applications for temporary operating authority, and stated: “The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion ... nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. Thus there is no reason to exempt this case from the general principle that ‘it is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it.

The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.’ "... Unlike some rules, the present ones are mere aids to the exercise of the agency’s independent discretion.” [Citations omitted.] [Emphasis added.] Thus, with American Farm Lines , the Supreme Court limited the Accardi doctrine by exempting agency housekeeping regulations unless the violation causes substantial prejudice. This is what is commonly known as the Accardi exception. In Board of School Commissioners of Baltimore City v. James, 96 Md.App. 401, 421-22 , 625 A.2d 361, 372 , cert. denied, 332 Md. 382 , 631 A.2d 452 (1993), the Court of Special Appeals, after discussing the Accardi exception, stated: “Similarly, a failure to comply with a published statement of ‘policy,’or ‘internal documents’ to guide employees, or agency ‘guidelines,’ has been held not to invalidate agency action, absent a showing of prejudice.” [Citations omitted.] [Emphasis added.] ⁴⁸⁴ Then, in Anastasi v. Montgomery County, 123 Md.App. 472 , 491 n. 8, 719 A.2d 980 , 990 n. 8 (1998), the Court of Special Appeals, when discussing the Accardi doctrine and the James case, emphasized: “As the James Court made clear, even if an agency rule does not have the force and effect of law (that is, even if it is simply interpretive, a statement of policy, or any other, lesser, rule of agency organization, procedure, or practice), a violation of that rule will still invalidate an agency’s action if the complainant can show that he was substantially prejudiced by the violation.

However, given that Administrative Procedure 4-8 does not have the force and effect of law ..., Anastasi does not have to make such a showing.” [Emphasis added.] It is clear that the Court of Special Appeals has applied the Accardi exception and that if there is a showing of prejudice in such circumstances, a violation by the agency will still invalidate the agency’s action. Nonetheless, to determine whether in the first instance an agency rule triggers the application of the Accardi doctrine, the Court of Special Appeals has further explained that “Maryland courts generally look to see whether it ‘affects individual rights and obligations,’ or whether it confers ‘important procedural benefits upon individuals.’ “ Anastasi, 123 Md.App. at 491 , 719 A.2d at 990 (citation omitted). If so, under the Court of Special Appeals’ cases the doctrine might apply. In the alternative, if the agency rule or regulation is determined to be one adopted for the “orderly transaction of agency business,” then the exception to the Accardi doctrine is applicable. b.

This Court and the Accardi doctrine In Hebbville, we stated that “We have previously indicated that, generally, an administrative agency should follow its own established rules, regulations and procedures.” Hebbville, 369 ⁴⁸⁵ Md. at 455, 800 A.2d at 777 . 11 In our recent case of Maryland Transportation Authority v. King, 369 Md. 274 , 799 A.2d 1246 (2002), Judge Eldrige discussed the Accardi doctrine and general principles of Maryland administrative law, and stated: 12 “ ‘It is well established that rules and regulations promulgated by an administrative agency cannot be waived, sus ⁴⁸⁶ pended or disregarded in a particular case as long as such rules and regulations remain in force.... This rule has been recognized in federal and state jurisdictions and has become known as the ‘Accardi doctrine’ since it was announced in U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954). There the Supreme Court vacated a deportation order of the Board of Immigration of Appeals because the Board and the Attorney [G]eneral failed to follow their own regulations.’ “ King, 369 Md. at 282 , 799 A.2d at 1250 (quoting Hopkins v. Md. Inmate Griev.

Comm’n, 40 Md.App. 329, 335 , 391 A.2d 1213, 1216-17 (1978). The Court then stated: “In Accardi v. Shaughnessy, supra, 347 U.S. at 268 , 74 S.Ct. at 504 , 98 L.Ed. at 687 , the Supreme Court of the United States held that an administrative decision is subject to invalidation because of the agency’s ‘failure to exercise its own discretion^] contrary to existing valid regulations.’ (Emphasis in original). Subsequently in a series of cases, the Supreme Court, relying on the Accardi case, has recognized a rule of federal administrative law that, with some exceptions, an administrative agency is required to follow its own procedures or regulations. See, e.g., United States v. Caceres, 440 U.S. 741 , 751 n. 14, 99 S.Ct. 1465 , 1471 n. 14, 59 L.Ed.2d 733 , 743 n. 4 (1979) (while a violation of agency regulations did not raise constitutional questions under the circumstances, ‘[i]t does not necessarily follow, however, as a matter of either logic or law, that the agency had no duty to obey them’); Morton v. Ruiz, 415 U.S. 199, 235 , 94 S.Ct. 1055, 1074 , 39 L.Ed.2d 270, 294 (1974) (‘Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.

This is so even where the internal procedures are possibly more rigorous than otherwise would be required’); Service v. Dulles, 354 U.S. 363, 372 , 77 S.Ct. 1152, 1157 , 1 L.Ed.2d 1403, 1410 (1957) (‘[R]egulations validly prescribed by a government administrator are binding upon him as well. as the citizen, and ... this principle holds even when the administrative action under review is discretionary in nature’). But, cf. American ⁴⁸⁷ Farm Lines v. Blade Ball Freight Service, 397 U.S. 532, 538-539 , 90 S.Ct. 1288, 1292-1293 , 25 L.Ed.2d 547, 552-553 (1970). 13 “The Court of Special Appeals has recognized or applied the Accardi doctrine in numerous opinions. See, e.g., Anastasi v. Montgomery County, 123 Md.App. 472, 491 , 719 A.2d 980, 990 (1998); G & M Ross v. Bd. of License Commissioners, 111 Md.App. 540, 543 , 682 A.2d 1190, 1192 (1996); Board of School Commissioners v. James, 96 Md.App. 401, 421-422 , 625 A.2d 361 , 366-367 cert. denied, 332 Md. 382 , 631 A.2d 452 (1993); Board of Education of Baltimore Co. v. Ballard, 67 Md.App. 235, 239-243 , 507 A.2d 192, 194-196 (1986); Board of Education v. Barbano, 45 Md.App. 27, 41-42 , 411 A.2d 124, 131-132 (1980); Hopkins v. Maryland Inmate Grievance Commission, 40 Md.App. 329, 335-338 , 391 A.2d 1213, 1216-1217 (1978). The Court of Special Appeals has taken the position, that, in situations where the Accardi doctrine is applicable, it does not matter whether one was prejudiced by the failure of the agency to follow its procedures or regulations.

See, e.g., Board of Education of Baltimore Co. v. Ballard, supra, 67 Md.App. at 239 n. 2, 507 A.2d at 194 n. 2. “Although this Court has not previously discussed the Accardi doctrine as such, or even cited Accardi v. Shaughnessy, supra, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 , it is clear that, at least to some extent, a similar doctrine is ⁴⁸⁸ reflected in Maryland administrative law. Thus, the judicial review section of the Maryland Administrative Procedure Act provides that a reviewing court may ‘reverse or modify the [administrative] decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision ... (iii) results from an unlawful procedure [or] (iv) is affected by any other error of law.... ’ Code (1984, 1999 Repl.Vol.), § 10-222(h)(iii) and (iv) of the State Government Article. 14 “Moreover, numerous opinions of this Court have involved the review of agency action to determine if the agency complied with its regulations and required procedures. See, e.g., Board of Physician v. Levitsky, 353 Md. 188, 206-207 , 725 A.2d 1027, 1036-1037 (1999) (An agency’s violations of procedures which do not ‘compromise the accused’s opportunity for a full and fair hearing on the charges,’ or which were not raised during the administrative proceedings, furnish no basis to invalidate the agency’s decision); Dept. of Public Safety and Correctional Services v. Howard, 339 Md. 357, 369-370 , 663 A.2d 74, 80 (1995) (The failure of an agency to complete an investigation within the time set forth in a regulation did ‘not reflect any prejudice ... that was caused by the delay,’ and therefore the administrative decision was affirmed); Ward v. Dept. of Public Safety, 339 Md. 343, 353 , 663 A.2d 66, 71 (1995) (Where the suspension of an employee was not authorized by the agency’s regulation, the suspension was vacated); Heft v. Md. Racing Commission, 323 Md. 257, 265 , 592 A.2d 1110, 1114 (1991); Resetar v. State Board of Education, 284 Md. 537, 550 , 399 A.2d 225, 232 , cert. denied, 444 U.S. 838 , 100 S.Ct. 74 , 62 L.Ed.2d 49 (1979).

In addition, we have recognized that, under some circumstances, mandamus or other traditional actions may lie to enforce administrative compliance with procedural requirements or duties. Gisriel v. Ocean City Bd. of Sup’rs Elections, 345 Md. 477, 496-500 , 693 A.2d 757, 767-769 (1997), cert. denied, 522 U.S. 1053 , 118 S.Ct. 702 , ⁴⁸⁹ 139 L.Ed.2d 645 (1998), and cases there cited; Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1, 17 , 511 A.2d 1079 (1986).” Id. at 284-87, 799 A.2d at 1252-53 (one alteration added) (emphasis added). c. The Various Applications of the Accardi doctrine.

As was noted in King and as we indicated supra, the Accardi doctrine has been applied in many different situations. The actual holding in Accardi was somewhat limited and our research reflects that there are two basic interpretations of the Accardi doctrine. On the one hand, there is a body of case law subsequent to Accardi which has held that an agency’s failure to comply with its own rules always automatically nullifies its action where the regulation is promulgated to affect fundamental rights derived from the Constitution or a federal statute. On the other hand, there is a body of case law which has held the Accardi doctrine applicable to a wider variety of administrative regulations, i.e., regulations including and regulations beyond those promulgated to protect fundamental lights derived from the Constitution or a federal statute.

This line of cases proposes a more general, more encompassing rule implicating the doctrine, thereby extending the scope of Accardi . In such cases some courts have held that violations of agency regulations generally are still per se violations of Accardi . However, most importantly, in this body of case law a large number of cases have held that when Accardi is implicated, and the Accardi exception does not apply, the agency decision may, even then, be overturned upon a showing of substantial prejudice on the part of the complainant as a result of the agency’s violation of its procedure. As we have indicated, there are also cases subsequent to Accardi that involved “less fundamental” agency created rights and out of these cases, beginning with American Farm Lines , the general exception to Accardi has been formed.

This exception, as we indicated supra, proposes that when ⁴⁹⁰ purely internal agency procedures are departed from, there is no per se requirement that the agency action subsequently be set aside. Generally, the whole of the body of case law discussing Accardi supports that even when a “lesser” agency regulation is violated, the agency action can nonetheless be subject to invalidation if the complainant can show substantial prejudice as a result of the agency action. Subsequent to Accardi , in Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957), the Supreme Court applied the Accardi doctrine to vacate the discharge of a Foreign Service Officer because the Secretary of State had not followed the Department of State regulations gratuitously limiting the Secretary’s review of State Department employment termination decisions to those that were adverse to an employee. The Secretary had reversed a decision favorable to John Service, whereupon Service challenged the Secretary’s action on the grounds that it violated the Secretary’s regulation.

The Supreme Court stated that “[Regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and ... this principle holds even when the administrative action under review is discretionary in nature.” Service, 354 U.S. at 372 , 77 S.Ct. at 1157 , 1 L.Ed.2d at 1410 . The Supreme Court acknowledged that the Secretary of State was not obligated to adopt “rigorous substantive and procedural standards ... [but] having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.” Id. at 388 , 77 S.Ct. at 1165 , 1 L.Ed.2d at 1418 (alteration added). It appears that in Service , the Supreme Court held that an agency’s failure to afford an individual safeguard required under its own gratuitous procedural regulations governing employee dismissals may result in the invalidation of the administrative determination, even if the regulation is not constitutionally mandated or when regulations are more generous than a statute requires. But, it should be noted, that the prejudice in Service was clear.

In Vitarelli v. Seaton, 359 U.S. 535 , 79 S.Ct. 968 , 3 L.Ed.2d 1012 (1959), the Supreme Court reinstated an employee of the Department of Interior, who had been discharged without ⁴⁹¹ receiving prescribed procedural safeguards, even though the agency could have dismissed him summarily had it not labeled the dismissal a security discharge. Vitarelli was an employee of the Department of the Interior and held a position not designated as “sensitive.” He had no protected Civil Service status, and therefore could have been discharged summarily without cause. Purporting to proceed under the Act of August 26, 1950, Executive Order No. 10450 and departmental regulations prescribing the