Adeline Sturdivant, et al. v. Department of Health and Mental Hygiene
No. 96, September Term 2012

Public Employment - State Personnel Management System - Methods for Filling
Vacancies. Under the State Personnel Management System, an agency may fill vacant
positions through recruitment, as opposed to reinstatement of former employees who had
been laid off. In doing so, however, the agency must follow statutory procedures governing
recruitment and may not conduct what is in effect a reinstatement process that does not
comply with the statutory provisions on reinstatement.
ADELINE STURDIVANT, et al.                     *     In the

                                               *     Court of Appeals
   v.
                                               *     of Maryland

                                               *     No. 96

MARYLAND DEPARTMENT OF                         *     September Term, 2012
HEALTH AND MENTAL HYGIENE


                                       ORDER


        The Court having considered the Motion for Partial Reconsideration filed by the

Respondent in the above captioned case, it is this 27th day of January, 2014,

        ORDERED, by the Court of Appeals of Maryland, that the motion for partial

reconsideration be, and it is hereby, granted in part and denied in part, as more particularly shown

on the attached Exhibit A; and it is further

        ORDERED, the opinion of this Court originally filed on November 25, 2013 be, and it is

hereby, recalled and the opinion is reissued this date with modifications.




                                                                /s/ Mary Ellen Barbera
                                                                     Chief Judge
       EXHIBIT A TO ORDER ON MOTION FOR PARTIAL RECONSIDERATION


       Footnote 2 of the opinion shall be modified to read as follows:

               The court also rejected the agency’s contention that the administrative law judge
erred in allowing certain laid-off employees to participate in the grievance because the agency
had not preserved the issue below. Before us, the agency renews that argument. Arguably, the
agency did raise the issue unsuccessfully before the administrative law judge. However, the
issue was not included in the questions presented by the grievants’ petition for certiorari and the
agency did not file a cross-petition for certiorari. We decline to address it in this case. See
Maryland Rule 8-131(b).
        IN THE COURT OF APPEALS


                OF MARYLAND

                       No. 96

              September Term 2012

  ON MOTION FOR RECONSIDERATION


         A DELINE S TURDIVANT, ET AL.,

                         v.

D EPARTMENT OF H EALTH & M ENTAL H YGIENE


                       Barbera, C.J.
                       Harrell
                       Battaglia
                       Greene
                       Adkins
                       McDonald
                      *Bell

                                JJ.


            Opinion by McDonald, J.


             Filed: January 27, 2014

*Bell, C.J., now retired, participated in the hearing
and conference of this case while an active member
of this Court; after being recalled pursuant to the
Constitution, Article IV, Section 3A, he also
participated in the decision and adoption of this
opinion.
       We granted a writ of certiorari in this case to consider the important question of

whether, under the State Personnel Management System,1 a State agency must fill vacancies

by reinstating former employees who were laid off from similar positions or may elect to fill

the vacancies by a recruitment process that casts a wider net.

       That question arose as a result of a grievance filed by certain employees who had been

laid off from jobs at Spring Grove Hospital, a State psychiatric hospital, and who were not

rehired in order of seniority when the hospital later filled vacancies for positions comparable

to those previously occupied by the laid-off employees. An administrative law judge

concluded that the laid-off employees did not have a right to be rehired under a reinstatement

process and denied the grievance. That decision was affirmed by the Circuit Court for

Baltimore City in an oral opinion and written order, following a hearing.

       The matter was appealed to Court of Special Appeals. The Court of Special Appeals

concluded that there is no statutory preference for reinstatement, as opposed to recruitment,

in the State Personnel Management System. 207 Md. App. 33, 51 A.3d 692 (2012). That

court cautioned, however, that if an agency elects to fill vacancies through recruitment, it

must follow statutory procedures that include public notice and transparency as to the

selection criteria. The court noted that it is not clear from the record of this case whether the




       1
           See Maryland Code, State Personnel & Pensions Article, §7-101 et seq.; §11-101 et
seq.
agency complied with those criteria and remanded the case for further factfinding by the

administrative law judge.2

       In reviewing a decision of a State administrative agency, our task is to “look through”

the decisions of the Circuit Court and the Court of Special Appeals and review directly the

decision of the agency. People’s Counsel for Baltimore County v. Loyola College of

Maryland, 406 Md. 54, 66-67, 956 A.2d 166 (2008). That does not necessarily mean that we

need cast aside the work of our colleagues on the intermediate appellate court. We can

sometimes fulfill our role of providing a definitive answer as to State law without indulging

the conceit that we could somehow say it better. As Justice Jackson once observed of the

role of a high court: “We are not final because we are infallible, but we are infallible only

because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953).

       We have examined the record in this case and considered carefully the arguments

made by the parties, both of whom disagree with the intermediate appellate court’s decision

in different respects. We find the well-researched and well-reasoned opinion of the Court




       2
         The court also rejected the agency’s contention that the administrative law judge
erred in allowing certain laid-off employees to participate in the grievance because the
agency had not preserved the issue below. Before us, the agency renews that argument.
Arguably, the agency did raise the issue unsuccessfully before the administrative law judge.
However, the issue was not included in the questions presented by the grievants’ petition for
certiorari and the agency did not file a cross-petition for certiorari. We decline to address it
in this case. See Maryland Rule 8-131(b).

                                               2
of Special Appeals to be unassailable in its analysis and conclusions and we adopt it as our

own.3

        It is perhaps useful to note that our action in this case is quite distinct from other

situations in which we summarily dispose of a case for which we have granted certiorari. On

occasion, this Court dismisses a case after briefing and argument on the ground that the

petition for writ of certiorari was improvidently granted. In such cases the grant of the

petition was a mistake, either because it becomes apparent later that there is truly no issue

of public importance in the case or because there is such an issue, but it was not preserved




        3
        It is only necessary to provide additional comment as to two matters. Before us, the
agency contested the standing of the grievants based on two arguments not made to the Court
of Special Appeals. First, it argued that some of the grievants had insufficient seniority
points to be reinstated under a properly-run reinstatement process and therefore were not
aggrieved by the agency action. Second, it also argued that the grievants would not benefit
from the correction of possible defects in the recruitment process identified by the Court of
Special Appeals. Neither argument requires reversal of that court’s decision. The first
argument may be pertinent to the remedy provided for particular petitioners, should those
grievants prevail on remand. The second argument misconceives the significance of the
inquiry into the alleged defects – i.e., it is not to determine whether the grievants would have
been selected under a perfectly-run recruitment process, but whether the process that was
conducted was in fact a reinstatement process in the guise of a recruitment. See 207 Md.
App. at 58 & n. 15.

        We also note that, while the Court of Special Appeals listed five ways in which the
process followed by the agency may not have comported with the statutory recruitment
process, the grievants apparently concede that the agency carried out one of those provisions
– in particular, certification to the Secretary of Budget and Management that the hiring
process complied with the position selection plan and the State Personnel & Pensions, §7-201
et seq. As the court’s opinion indicated, a violation of this technical provision concerning
after-the-fact documentation of the process would be less significant than a failure to provide
advance notice of the recruitment process to potential applicants.

                                               3
below or the record in the case provides an inadequate basis for rendering useful guidance

on that issue. In such a case, this Court’s disposition leaves the lower court decision intact,

but without our imprimatur of that decision as a controlling statement of Maryland law.4

       By contrast, this case raises a legal question of public importance, on which certiorari

was appropriately granted. See Maryland Code, Courts & Judicial Proceedings Article, §12-

203 (Court of Appeals to review decision of Court of Special Appeals when “desirable and




       4
           As one commentator has noted:

                ... Even if it is likely, for example, that the Court of Special
                Appeals has badly misinterpreted an important statute, the Court
                [of Appeals] may still wish to deny a petition seeking review of
                that construction. Perhaps the case did not present the issue
                properly because its factual setting was unclear; instead of
                settling the waters, a decision predicated on an insecure factual
                base may well muddy them further. The Court may also feel
                that the briefs and argument that can be expected from the
                litigants in the case at bar will not provide the “adversarial” help
                that a court needs in order to clarify its own thinking in the area.
                Or the Court may feel that the time has not come for deciding a
                particular issue, that the issue has not sufficiently “ripened” in
                the decisions of the lower courts, in the courts of other
                jurisdictions, or in the critical commentary so that the Court of
                Appeals will feel confident of the correctness of the decision it
                reaches. ... Such considerations, together with the underlying
                need of the Court to ensure that it has sufficient time for proper
                preparation and consideration of each case, suggest that the
                Court may properly feel no obligation to take every case that
                comes its way, even if those cases present serious questions of
                unsettled law....

W.L. Reynolds II, The Court of Appeals of Maryland: Roles, Work and Performance – Part
I, 37 Md. L. Rev. 1, 11-12 (1977).

                                                 4
in the public interest”). The record provides an adequate basis for addressing that question,

although not for resolving the outcome of this particular case. The intermediate appellate

court has thoroughly and, in our view, correctly analyzed the legal issue concerning the

interpretation of the State personnel law. We also agree that the record raises, but does not

definitively answer, the question whether the agency was in fact filling the vacancies by a

reinstatement process, rather than recruitment, in this particular instance; it is therefore

appropriate to remand for further factfinding. There is little gained in our restating at length

what has already been well said by the intermediate appellate court. What we add is an

endorsement that removes any doubt as to the standing of that decision as the law of

Maryland.5




                                                   J UDGMENT OF THE C OURT OF S PECIAL
                                                   A PPEALS A FFIRMED. C OSTS TO B E SPLIT
                                                   E QUALLY BY THE P ARTIES.




       5
        In that sense, our decision carries greater weight than an “unexplicated summary
affirmance” of a lower court decision. See Mandel v. Bradley, 432 U.S. 173, 176 (1977)
(because a summary affirmance by the Supreme Court without an opinion “is an affirmance
of the judgment only, the rationale of the affirmance may not be gleaned solely from the
opinion below”); Fusari v. Steinberg, 419 U.S. 379, 391-92 (1975) (such a decision settles
the issues for the parties, but is not “a renunciation ... of doctrines previously announced in
[Supreme Court] opinions”).

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