CARVEN v. STATE RETIREMENT

letter notifying Commissioner Carven that he was ineligible for JRS membership and (2) whether the Board properly determined that under SPP § 23-407(e) Commissioner Carven was ineligible for JRS membership based on his status as an EPS retiree.

Mrs. Carven presents the following question: "Did the trial court err in holding that the provisions of section 23-407 were applicable to [Commissioner] Carven's appointment to the Workers[] Compensation Commission and would bar his membership in the Judges' Retirement System?"
The SRPS presents the following questions:

1. Did the Board of Trustees correctly conclude that Carven was prohibited from participating in the Judges' Retirement System because of the reemployment restrictions that governed his retirement from the Employees' Pension System?

2. Did the Board of Trustees correctly determine that Claimant's petition for an administrative hearing was untimely where the petition was filed well beyond the 180 day time period provided in the applicable regulation?

We hold that the Board properly determined that Mrs. Carven's petition for a hearing was time barred under COMAR 22.0.04.06B. Consequently, we shall not reach the merits of the Board's decision denying Commissioner Carven's JRS membership eligibility based on his status as an EPS retiree.

II.

We have mentioned that COMAR 22.03.04.06B provides that "[a] petition for a hearing shall be filed within 180 days of the date that a claimant is given notice of an Agency action pursuant to State Government Article, § 10-207[.]" To determine whether Mrs. Carven's petition for a hearing was time barred under COMAR 22.03.04.06B we must consider under what circumstances an individual qualifies as a "claimant" who has received "notice of an Agency action" as contemplated by that regulation.

SG § 10-207, entitled "Notice of agency action," provides, in relevant part:

(a) In general. — An agency shall give reasonable notice of the agency's action.

(b) Contents of notice. — The notice shall:

(1) state concisely and simply:

(i) the facts that are asserted; or

(ii) if the facts cannot be stated in detail when the notice is given, the issues that are involved;

(2) state the pertinent statutory and regulatory sections under which the agency is taking its action;

* * *

(4) unless a hearing is automatically scheduled, state that the recipient of notice of an agency's action may have an opportunity to request a hearing, including:

(i) what, if anything, a person must do to receive a hearing; and

(ii) all relevant time requirements; and

(5) state the direct consequences, sanction, potential penalty, if any, or remedy of the recipient's failure to exercise in a timely manner the opportunity for a hearing or to appear for a scheduled hearing.

The SRPS argues that Mrs. Carven's petition for a hearing was untimely because the Agency's May 2004 letter constituted notice of its administrative action, which triggered the 180-day time limitation established by COMAR 22.03.04.06B. The SRPS asserts that the letter conformed to SG § 10-207(b), which prescribes the contents of a notice of agency action. Consequently, to request a hearing on that action, Commissioner Carven was obligated to conform to the time limitation indicated in the letter. The SRPS contests the Circuit Court's determination that Commissioner Carven was not a "claimant" when he received the May 2004 letter because he had not filed a formal membership application. The SRPS contends that Commissioner Carven was a "claimant" because JRS membership is mandatory. In support, the SRPS cites SPP § 27-201, which provides that WCC commissioners are members of the JRS, and construes that provision to mean that membership is not contingent on submission of a membership application. The SRPS submits, instead, that the membership application described in the JRS handbook is merely a tool that the SRPS uses "to obtain (1) basic personal information needed to establish a retirement account, (2) proof of birth, and (3) a beneficiary designation."

The SRPS further argues that the JRS benefits handbook merely "provides a summary of the features and benefits of [the] retirement plan" and, "[i]f there are any questions of interpretation, the provisions of the State Personnel and Pensions Article will control to resolve them." The SRPS asserts that, under the applicable statutory provisions, employee and employer contributions are not contingent on submission of a completed membership application and, instead, commence automatically upon an individual's employment in a JRS-eligible position. The SRPS further contends that its statutory mandate does not grant the SRPS the authority to condition membership upon completion of a membership application.

In response, Mrs. Carven argues that she timely petitioned for a hearing because her husband was not a "claimant" until he submitted a written application for JRS membership in 200(5 and she filed a petition for a hearing within 180 days of receiving the Agency's notice denying the written application. Mrs. Carven relies on COMAR 22.03.04.02B(2), which defines a "claimant" as "a participant or a participating employer that has filed a request for a hearing." Mrs. Carven asserts that Commissioner Carven's initial efforts to enroll in the JRS, consisting of an "informal discussion" with an SRPS employee and the May 6, 2004 letter to the Board chairman requesting "assistance" and an "opportunity to informally meet with the Department," did not satisfy the JRS formal membership application requirements and, thus, Commissioner Carven was not a "participant" as contemplated by COMAR when he received the May 2004 letter. Mrs. Carven further argues that, because Commissioner Carven was not a "participant," he was not a "claimant" as defined in COMAR 22.03.04.02B(2). In that regard, Mrs. Carven contends that, despite the letter's indication otherwise, Commissioner Carven had no right to request a hearing at the time because he had not yet "satisfied the procedural requirements necessary" for JRS membership.

Alternatively, Mrs. Carven argues that, because under COMAR 22.03.04.02B(2) a "claimant" must have filed a request for a hearing and COMAR 22.03.04.02B(5) defines a hearing as "a contested case hearing" as defined under SG § 10-202, Commissioner Carven was not subject to the time limitation unless he requested a hearing related to a "contested case" as defined by statute. SG § 10-202(d) defines a contested case as "a proceeding before an agency to determine: (i) a right, duty, statutory entitlement, or privilege of a person that is required . . . to be determined only after an opportunity for an agency hearing[.]" Because Commissioner Carven had not formally applied for JRS membership when he received the Agency's May 2004 letter, Mrs. Carven contends that Commissioner Carven had no "`right,' `statutory entitlement,' or `privilege'" that could be determined by an agency proceeding at that time and, thus, the 180-day time limitation was inapplicable.

III.

An agency decision based on regulatory and statutory interpretation is a conclusion of law. See Adventist Health Care, Inc. v. Md. Health Care Comm'n, 392 Md. 103, 121, 896 A.2d 320, 331 (2006). "[E]ven when reviewing an agency's legal conclusions, an appellate court must respect the agency's expertise in its field." Crofton Convalescent Ctr. v. Dep't of Health Mental Hygiene, 413 Md. 201, 215, 991 A.2d 1257, 1265 (2010). When an agency interprets its own regulations or the statute the agency was created to administer, we are especially mindful of that agency's expertise in its field. See Adventist Health Care, 392 Md. at 119, 896 A.2d at 330 ("Administrative agencies possess an `expertise' and, thus, have a greater ability to evaluate and determine the matters and issues that regularly arise, or can be expected to be presented, in the field in which they operate or in connection with the statute that they administer."); Md. Aviation Admin. v. Noland, 386 Md. 556, 573 n. 3, 873 A.2d 1145, 1155 n. 3 (2005) ("[An] agency's interpretations and applications of statutory or regulatory provisions which the agency administers should ordinarily be given considerable weight by reviewing courts." (internal quotation marks and citations omitted)). "Despite [this] deference, it is always within our prerogative to determine whether an agency's conclusions of law are correct." Crfton Convalescent, 413 Md. at 215, 991 A.2d at 1265 (internal quotation marks and citations omitted).

Keeping in mind the deference owed to administrative decisions, we shall conduct an independent review of the regulations and statutory provisions upon which the Board rests its decision to determine whether the Board's decision is "`plainly erroneous or inconsistent with the regulation.'" Id., 991 A.2d at 1265 (quoting Md. Transp. Auth, v. King, 369 Md. 274, 288-89, 799 A.2d 1246, 1254 (2002)); see also Noland, 386 Md. at 574 n. 3, 873 A.2d at 1156 n. 3 ("[A] reviewing court must determine if the administrative decision is premised upon an erroneous conclusion of law." (internal quotation marks and citations omitted)).

"[T]he interpretation of an agency rule is governed by the same principles that govern the interpretation of a Statute." Miller v. Comptroller of Md., 398 Md. 272, 282, 920 A.2d 467, 473 (2007) (internal quotation marks and citations omitted). The rules of statutory interpretation in Maryland are well-settled.

"The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature." Kushell [v. Dep't of Natural Resources, 385 Md. 563, 576, 870 A.2d 186, 193 [(2005)] (citing Collins v. State, 383 Md. 684, 688, 861 A.2d 727, 730 (2004)). "Statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology." Adventist Health Care, 392 Md. at 124 n. 13, 896 A.2d at 333 n. 13 (internal quotation marks and citations omitted). When a statute's plain language is unambiguous, we need only to apply the statute as written, and our efforts to ascertain the legislature's intent end there.

Crofton Convalescent, 413 Md. at 216, 991 A.2d at 1266.

Moreover, "[a] plain reading of the statute assumes none of its language is superfluous or nugatory." Newell v. Runnels, 407 Md. 578, 640, 967 A.2d 729, 766 (2009) (quoting Bost v. State, 406 Md. 341, 350, 958 A.2d 356, 361 (2008)). To interpret an unambiguous statute or regulation, we must read the words as they appear. "We neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute's meaning." Newell, 407 Md. at 640-41, 967 A.2d at 766 (quotation marks and citation omitted). "If the meaning of the plain language is ambiguous or unclear," however, "to discern legislative intent, we look to the legislative history, prior case law, the purposes upon which the statutory framework was based, and the statute as a whole." Id. at 641, 967 A.2d. at 766 (quotation marks and citation omitted).

As stated above, COMAR 22.03.04.06B provides that "[a] petition for hearing shall be filed within 180 days of the date that a claimant is given notice of an Agency action[.]" The regulation appears in COMAR Title 22 "State Retirement and Pension System," Subtitle 3 "Board of Trustees," Chapter 4 "Procedures for Hearings by or for the Board of Trustees." COMAR 22.03.04.02B(2) defines "claimant" as "a participant or a participating employer that has filed a request for a hearing." (Emphasis added).

The SRPS correctly points out, however, that within that same chapter, the regulations refer to a "claimant" as someone who may request a hearing but has not yet done so. For example, COMAR 22.03.04.06B provides that a "claimant" shall file a petition for a hearing within 180 days of receiving "notice of an Agency action." In that context, the "claimant" has yet to file for a hearing, but the regulation refers to the aggrieved party as a "claimant." Likewise, COMAR 22.03.04.07A provides that, "[i]n a contested case, a claimant may request a hearing by submitting a petition for a hearing . . within the time limitations specified in Regulation .06B of this chapter." Again, "claimant" refers to an aggrieved party who has yet to request a hearing.

To limit the definition of "claimant" as it appears in these regulations to a participant or participating employer who has filed a request for a hearing would yield a nonsensical result. COMAR 22.03.04.07A essentially would authorize a participant who already has filed a request for a hearing to "request a hearing by submitting a petition for a hearing[.]" This Court has often stated that, "[i]n construing a statute, we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense." Md.-Nat'l Capital Park Planning Cormn'n v. Anderson, 395 Md. 172, 182, 909 A.2d 694, 700 (2006) (internal quotation marks and citations omitted); see also Miller, 398 Md. at 283, 920 A.2d at 473 (explaining that courts must afford statutory language the "most reasonable interpretation, in accord with logic and common sense, and . . . avoid a construction not otherwise evident by the words actually used" (internal quotation marks and citation omitted)). Thus, we do not construe COMAR 22.03.04.06B to apply only to participants or participating employers who have filed a request for a hearing. We retain and apply to COMAR 22.03.04.06B, however, the portion of the COMAR definition of "claimant" establishing that the right to a Board hearing must be asserted by a "participant" or "participating employer." See COMAR 22.03.04.02B(2) (defining "claimant" as "a participant or a participating employer that has filed a request for a hearing"); State v. Ghajari, 346 Md. 101, 115, 695 A.2d 143, 149 (1997) ("[W]hen two statutes appear to apply to the same situation, this Court will attempt to give effect to both statutes to the extent that they are reconcilable.").

Because a term must be construed in light of the context in which it is used, our efforts to ascertain the plain meaning of "claimant" as used in COMAR 22.03.04.06B are not concluded by merely inserting "participant" or "participating employer" where COMAR 22.03.04.06B, the time limitation regulation, refers to a "claimant." When construing statutory language, we consider the relevant provisions "within the context of the statutory scheme as a whole." Crofton Convalescent, 413 Md. at 217, 991 A.2d at 1266; see also Anderson, 395 Md. at 183, 909 A.2d at 700 ("[B]ecause it is part of the context, related statutes or a statutory scheme that fairly bears on the fundamental issue of legislative purpose or goal must also be considered." (quotation marks and citation omitted)). Thus, to interpret "claimant" as it appears in COMAR 22.03.04.06B we refer to the other regulations within that chapter and related statutory provisions.

As a point of reference, it bears repeating the relevant regulation: "A petition for hearing shall be filed within 180 days of the date that a claimant is given notice of an Agency actionf.]" COMAR 22.03.04.06B. As stated above, the Board has defined the term "hearing" as "a contested case hearing as defined by the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland [("APA")]." COMAR 22.03.04.02B(5). Under the APA, a contested case "means a proceeding before an agency to determine . . . a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing[.]" SG § 10-202(d). Accordingly, we construe "claimant" as it appears in COMAR 22.03.04.06B to apply to a "participant" or "participating employer," who, upon receiving notice of an Agency action, has a statutory, regulatory, or constitutional right to "a proceeding before an agency to determine . . . a right, duty, statutory entitlement, or privilege." SG § 10-202(d); see also Sugarloaf Citizens Ass'n v. N.E. Md. Waste Disposal Auth., 323 Md. 641, 652, 594 A.2d 1115, 1120 (1991) ("It is well established . . . that the APA itself does not grant a right to a hearing. That right must come from another source such as a statute, a regulation, or due process principles.").

We now must decide whether Mrs. Carven's petition for a hearing was time barred under COMAR 22.03.04.06B as we have just construed it. For the purposes of COMAR 22 03.04.06B, Commissioner Carven was a "participant" when he received the Agency's May 2004 letter informing him that he was ineligible for JRS enrollment. SPP § 20-101(cc) defines "participant" as "a beneficiary, designated beneficiary, former member, member, or retiree who is or may become eligible to receive a benefit of any type from the several systems." Even assuming arguendo that Commissioner Carver was not a "member" when, he received the letter, he was a retiree who "may [have] become eligible to receive a benefit of any type from the several systems." Id. (emphasis added).

Although we have determined that Commissioner Carven was a "participant" when he received the letter, we still must address whether at that time he had a right to "a proceeding before an agency to determine . . . a right, duty, statutory entitlement, or privilege. . . ." See SG § 10-202(d). The Circuit Court found, and Mrs. Carven agrees, that Commissioner Carven could not have petitioned for a "contested case" hearing at that time because he was not a member and therefore had no "right, duty, statutory entitlement, or privilege" to be determined in a hearing before the Board. We disagree.

In the case sub judice, Commissioner Carven's membership in the JRS was a mandatory condition of employment that commenced when he began his post as a commissioner. See SPP § 27-201 (providing that "a member of the [WCC]" is a member of the JRS); see also JRS Benefits Handbook ("Your membership in the Judges' Retirement System is mandatory."). COMAR enrollment regulations distinguish enrollment, which is contingent on the submission of an application, from membership. See COMAR 22.01.12.01, 22.01.12.02 (requiring participating employers to enroll employees who are members "of the State System as a condition of employment within 30 days from the first day of employment" and establishing that enrollment consists of submitting, in part, an application for membership); see also COMAR 22.01.12.03 (imposing penalties on participating employers who do not timely enroll members of the "State system as a condition of employment"). As such, Commissioner Carven had a statutory entitlement to JRS membership as soon as he began serving as a commissioner.

Given that Commissioner Carven had such an entitlement at the time he received the Agency's May 2004 letter, we now consider whether the dispute related to that entitlement rose to the level of a "contested case." "[I]t is the nature of the dispute, rather than the stage of the proceedings, that determines whether or not a matter is a contested case." Modular Closet Sys., Inc. v. Comptroller of the Treasury, 315 Md. 438, 444, 554 A.2d 1221, 1223 (1989). Specifically, a contested case exists when "the nature of the dispute entitles the parties to a hearing to determine their rights and duties." Id. at 445, 554 A.2d at 1224. A party's entitlement to a hearing depends on whether the acting agency's decision was sufficiently final and immediately affected the party's rights or property. See id. at 442-44, 447-48, 554 A.2d at 1223-24, 1225 (noting that after an agency completes its informal inquiry, if any, and issues a decision that entitles the affected individual to an eventual hearing, the dispute may become a "contested case"); Albert v. Public Service Comm'n, 209 Md. 27, 37-38, 120 A.2d 346, 350-51 (1956) (explaining that when an agency directly applies policy or discretion to a specific individual, and "its acts are particular and immediate . . ., the person whose rights or property may be affected by the action is entitled to notice and [a] hearing" (internal quotation marks and citations omitted)). Again, whether Commissioner Carven submitted a membership application is not determinative of whether he had a right to a hearing. Instead, we consider whether the Agency's letter communicated a final decision of the matter and whether that decision immediately affected Commissioner Carven's entitlement. Even though he had not filed an application, the Agency nevertheless decided the matter conclusively. The SRPS informed Commissioner Carven twice — once orally and once in writing — that he was ineligible for membership and based its decision on grounds unrelated to Commissioner Carven's failure to file a membership application or any information that would be contained therein.

Moreover, nothing in the record indicates that the decision was preliminary or establishes a basis upon which Commissioner Carven could have reasonably believed the decision was preliminary or pending the submission of his membership application. The letter expressly stated that, "as a retiree of the EPS, you are prohibited from earning any service credit in the JRS for your current service as a Commissioner" and referred to the Agency's decision as "the result" of the dispute. The letter also clearly stated that the director trusted that he had "fully explained why [Commissioner Carven] [was] not eligible to accrue any service credit in the Judges' Retirement System" and immediately thereafter informed Commissioner Carven of his right to appeal "this action." Additionally, and most importantly, the letter conformed to the APA's notice requirements by stating the issues involved, listing the statutory sections upon which the decision was based, and, as mentioned, advising Commissioner Carven of his opportunity to request an administrative appeal. See SG § 10-207(b).

These same facts undermine Mrs. Carven's contention that the "informal" nature of Commissioner Carven's efforts prior to receiving the May 2004 letter rendered the Agency's decision preliminary or something less than an "Agency action." The Agency's letter, in no uncertain terms, informed Commissioner Carven of the decision and just as clearly apprized him of his right to appeal "the action." Hence, regardless of Commissioner Carven's intent or belief about the informal nature of his inquiry prior to receiving that letter, he could not reasonably have believed after receiving the letter that the Agency's decision was merely advisory or preliminary, pending additional action on his part.

As to the immediacy of the impact of the Agency's decision, we agree with the Board's determination that the impact was sufficient to entitle Commissioner Carven to a hearing. The decision precluded him from earning service credit while serving on the WCC and prevented the WCC from collecting member contributions for his future benefit. Given that Commissioner Carven was serving on the commission when he received the letter, and that his JRS membership had been denied orally even before receiving the letter, the effect could not have been more immediate.

For these reasons, we agree with the Board that, when Commissioner Carven received the Agency's May 2004 letter informing him that he was ineligible for JRS membership, the "nature of the dispute" was such that Commissioner Carven's entitlement had been denied finally, effective immediately, thereby granting Commissioner Carven a right to appeal that decision by petitioning for a "contested case" hearing. See SG § 10-207(a), (b)(4) (requiring an agency to "give reasonable notice" of an agency action and to inform the recipient that he or she "may have an opportunity to request a hearing"); COMAR 22.03.04.07 (establishing procedures through which a "claimant" in a contested case may request a hearing); State Retirement Pension Sys. v. Thompson, 368 Md. 53, 63-64, 792 A.2d 277, 283-84 (2002) (noting that the SRPS is required to give notice of its actions and afford an opportunity for a hearing).

In turn, we hold that, because Commissioner Carven was a "participant" who possessed a statutory entitlement when he received the Agency's May 2004 letter and the nature of the dispute at that time was such that he was entitled to a hearing, Commissioner Carven was a "claimant" for the purposes of the time limitation set forth in COMAR 22.03.04.06B. We further hold that, because, as stated above, the Agency's letter conformed to the APA notice requirements, that letter constituted notice of an Agency action as contemplated by COMAR 22.03.04.06B, and the 180-day time limitation ran as of the date of that letter. Accordingly, we shall affirm the Board's denial of Mrs. Carven's petition for an administrative hearing on the ground that her petition was time barred under COMAR 22.03.04.06B.

IV.

For the foregoing reasons, we reverse the judgment of the Circuit Court on the ground that the Board properly determined that Mrs. Carven's petition for a hearing was time barred under COMAR 22.03.04.06B. We therefore remand the case to that court with directions to dismiss the action.

JUDGMENT OF THE CIRCUIT COURT REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE ACTION; COSTS TO BE PAID BY APPELLANT/CROSS-APPELLEE.

BELL, C.J., HARRELL and MURPHY, JJ., Dissent.