IN THE COURT OF SPECIAL APPEALS
September Term, 2011
PHYLLIS K. BARSON
MARYLAND BOARD OF PHYSICIANS
Eyler, James R.
(Retired, Specially Assigned),
Opinion by Nazarian, J.
Filed: May 3, 2013
Watts, Shirley M., J., did not participate in
the Court’s decision to report this opinion
pursuant to Md. Rule 8-605.1.
A deal is always a deal, but this appeal brings to mind the long-standing playground
rule of “no backsies.” By calling “no backsies” before finalizing an agreement, the parties
reiterate and reinforce their intention to be bound and stay bound.1 In this case, the Maryland
Board of Physicians (the “Board”), the appellee, charged appellant Phyllis K. Barson, an
experienced physician, with improperly prescribing opiates and other controlled substances
for a dozen patients over more than eight years. Dr. Barson settled these charges by entering
into a Consent Order with the Board in which, among other things, she waived her rights to
contest or appeal the Consent Order and represented that she understood its meaning and
Later on, Dr. Barson claimed not to have foreseen all of the professional
consequences of the Consent Order, and, after experiencing those consequences, she asked
the Board to revise it. The Board declined, and the Circuit Court for Baltimore City
dismissed Dr. Barson’s petition for judicial review and a writ of mandamus.
We affirm. Under the circumstances, Dr. Barson had no right to compel the Board
to revise the Consent Order and the Board did not err in declining her request. Put another
way, Dr. Barson agreed to settle the Board’s charges on a “no backsies” basis, and the Board
was entitled to hold her to that agreement.
See, e.g., Russell Hoban, A Bargain for Frances (1970). The Consent Order in this
case is, as the discussion below reveals, distinguishable from the bargain in the story, which
Frances entered in reliance on her friend Thelma’s misrepresentations about the value and
virtues and availability of plastic versus china tea sets. Even still, and putting aside whether
Frances might have been able to seek rescission from a higher authority, the “no backsies”
rule held until Thelma’s seller’s remorse (fueled in part by a clever if borderline omission on
Frances’s part) led her to seek, and Frances to agree to, backsies after all. Another variant
applies in the game of tag: if a player who is “it” calls “no backsies” before tagging another,
the taggee cannot tag him/her back immediately.
Dr. Barson has been a practicing physician in Maryland since 1973. She has practiced
in two distinct areas: pain management and anesthesiology. At the time she entered into the
Consent Order, she was the Chair of the Department of Anesthesiology at Dimension
Hospital’s Surgicenter in Bowie, Maryland.
In 2009, the Board received a report that Dr. Barson had been sending prescriptions
for painkillers to patients through the mail and without conducting appropriate examinations.
After initiating an investigation and conducting a peer review of Dr. Barson’s records, the
Board determined that Dr. Barson had failed to meet the appropriate standard of care and to
keep adequate medical records for twelve individual patients. We will not recount the whole
story here—the details are set forth in full in the Consent Order’s Findings of Fact, which
adopted the allegations without revision—but it will suffice to say that the Board charged Dr.
Barson with prescribing potent painkillers (including Oxycontin, Percocet, and other opioid
medications) from her home, without justification, without monitoring the patients, and
without examining or seeing the patients either prior to or over the course of prescribing the
drugs. The allegations spanned a period of more than eight years and, if proven, would have
supported multiple statutory violations that exposed Dr. Barson to serious potential sanctions,
including revocation of her license and significant fines. See Md. Code (1981, 2009 Repl.
Vol., 2012 Cum. Supp.) §§ 14-404(a)(22), (a)(40), -405.1 of the Health Occupations Article
On January 13, 2011, the Board issued an Order summarily suspending Dr. Barson’s
license to practice medicine. The Board convened a show cause hearing on January 26,
2011, and declined to reinstate her. After a Case Resolution Conference on April 6, 2011,
and before the case proceeded to an evidentiary hearing, Dr. Barson and the Board agreed
to settle the charges by entering into the Consent Order. Among its terms, the Consent Order
set forth verbatim, as “General Investigative Findings,” the allegations contained in the
summary suspension order and stated, as “Conclusions of Law,” the finding that Dr. Barson
had violated the Maryland Medical Practice Act, Health Occ. § 14-404:
Based on the foregoing Findings of Fact, the Board concludes as a matter of
law that [Dr. Barson] violated the following provisions of the Act: Fails to
meet appropriate standards as determined by appropriate peer review for the
delivery of quality medical and surgical care performed in an outpatient
surgical facility, office, hospital, or any other location in this State, in violation
of . . . [Health Occ.] § 14-404(a)(22); and Fails to keep adequate medical
records as determined by appropriate peer review, in violation of [Health Occ.]
The “Order” section of the Consent Order suspended Dr. Barson’s license immediately for
ninety days and placed her on probation for at least two years, subject to specified conditions.
Two of these conditions lie at the heart of this case:
[Dr. Barson] shall not practice algology or pain management, and shall
not treat any patients for chronic pain management;
The Consent Order indicates that the Board dismissed charges under Health Occ. §
14-404(a)(27), which permits the Board to reprimand, place on probation, or suspend or
revoke the license of any licensee who “[s]ells, prescribes, gives away, or administers drugs
for illegal or illegitimate medical purposes.”
[Dr. Barson] shall forfeit her Federal DEA registration number and
Maryland CDS registration number, and shall not re-apply for the
same. However, nothing in this Consent Order shall be construed to
prevent [Dr. Barson] from prescribing non-controlled and/or nonscheduled prescription medications[.]
(Emphasis added.) But probation is not permanent. At the end of two years, the Consent
Order permitted Dr. Barson to petition the Board and contemplated that if she complied with
all conditions, the Board will terminate her probation and allow her to practice medicine
In the last section of the Consent Order, which bears the heading “CONSENT,” Dr.
Barson agreed to be bound by the terms of the Order, waived any right to contest them,
waived any right to appeal and, perhaps most importantly, acknowledged that she understood
the Consent Order’s meaning and effect (we have reproduced this section in its entirety, with
I, Phyllis Barson, M.D., acknowledge that I have had the opportunity
to consult with counsel before signing this document. By this Consent, and for
the sole purpose of resolving the issues raised by the Board, I accept to be
bound by this Consent Order and its conditions and restrictions. I waive any
rights I may have had to contest the Findings of Fact and Conclusions of Law.
I acknowledge the validity of this Consent Order, as if entered into after
the conclusion of a formal evidentiary hearing in which I would have had the
right to counsel, to confront witnesses, to give testimony, to call witnesses on
my own behalf, and to all other substantive and procedural protections as
provided by law. I acknowledge the legal authority and the jurisdiction of the
Board to initiate these proceedings and to issue and enforce this Consent
Order. I also affirm that I am waiving my right to appeal any adverse ruling
of the Board that might have followed any such hearing.
I sign this Consent Order after having had an opportunity to consult
with counsel, without reservation, and I fully understand and comprehend the
language, meaning and terms of this Consent Order. I voluntarily sign this
Order, and understand its meaning and effect.
The Consent page is signed by Dr. Barson and her attorney, who “[r]ead and approved” it,
and also notarized.3
On July 12, 2011, counsel for Dr. Barson sent a letter to the Executive Director of the
Board and asked “that her consent order be revised or interpreted to allow her the right to
have DEA or CDS registrations for the sole purpose of writing orders for anesthesia drugs
for Hospital patients.” According to the letter, Dr. Barson did not realize at the time she
entered into the Consent Order that forfeiting her federal DEA and Maryland CDS
registration numbers (“the registration numbers”) would preclude her from returning to her
anesthesiology practice at Dimension Hospital because “the Hospital could not fill her
‘orders’ for anesthesia drugs unless she had a DEA registration number” and because
“Hospital by-laws expressly require her to have a DEA registration number to maintain staff
privileges.” The letter contended that “[b]oth the Board and Dr. Barson expected she would,
upon returning to practice, resume her work as an anesthesiologist,” and that “[i]f there was
an intent that she not return to her practice, a request for revocation or surrender would have
Dr. Barson signed the “Consent” page on April 8, 2011. Her attorney signed on the
same page. It appears that they then returned it to the Board, and John Papavasiliou, Deputy
Director of the Board, signed on May 2, 2011.
The Board forwarded Dr. Barson’s letter to the Administrative Prosecutor, who
responded in a July 27, 2011 letter (the “AG letter”) that the Board should deny Dr. Barson’s
request. In the Administrative Prosecutor’s view, the condition Dr. Barson wanted to revise
“was an essential component in resolving concerns that she engaged in dangerous prescribing
practices, which the Board considered a threat to the health, safety and welfare of the
It is the State’s position that the Board should deny Dr. Barson’s request to
modify the Consent Order. The parties engaged in good faith negotiations
when discussing the terms of [the] Consent Order . . . , including the condition
that she forfeit her DEA or Maryland CDS registration numbers. Forfeiture
of Dr. Barson’s DEA registration number was an essential component in
resolving concerns that she engaged in dangerous prescribing practices,
which the Board considered a threat to the health, safety and welfare of the
public. To eliminate that condition and permit Dr. Barson to hold a valid DEA
registration number would diminish an important safeguard of the Consent
Order, which restricted her ability to prescribe controlled dangerous
substances. To permit [her] to obtain a DEA registration number, enabling her
to resume prescribing controlled dangerous substances would be contrary to
the best interests of the public.
(Emphasis added.) The Administrative Prosecutor sent a copy of the AG letter to Dr.
The Board denied Dr. Barson’s request by letter dated August 1, 2011 (the “Board
letter”). The Board disagreed that there had been any mistake, referred to the AG letter, and
then noted Dr. Barson’s representation that she had “fully comprehended the meaning and
terms of the Consent Order” when she signed it:
The Medical Practice Act, Md. Health Occ. Code Ann. and the Code of
Maryland Regulations 10.32.02 do not provide for revision of a consent order.
Further Dr. Barson knowingly and with advice of counsel entered into the May
2, 2011, Consent Order and acknowledged in her Consent of April 8, 2011,
that she signed the order voluntarily and without reservation and that she fully
comprehended the meaning and terms of the Consent Order.
Dr. Barson then sought relief in the circuit court by filing a Petition in the Circuit
Court for Baltimore City seeking “Judicial Review, Administrative Mandamus, and/or
Declaratory Relief.” She again took the position that the parties entered into the Consent
Order “on the understanding that Dr. Barson would be able to resume her work as an
anesthesiologist.” She claimed that the Board’s refusal to consider her request to revise the
Consent Order was arbitrary and capricious because she was unable to “return to the practice
of anesthesiology as contemplated by the parties and can not provide the Board with the
patient records that are a condition of [the C]onsent [O]rder.” And she argued alternatively
that the Consent Order was based upon a “fundamental mistake—that Dr. Barson and the
Board believed, that the [C]onsent [O]rder was structured in a manner that would permit her
to continue to practice anesthesiology. Accordingly the [C]onsent [O]rder is void or voidable
under theories of fraud, unilateral mistake, and/or mutual mistake.” 4
Although Dr. Barson occasionally mentions the term “mutual mistake” in her briefs,
she does not actually allege a mutual mistake. A footnote in her initial brief takes the
concept as far as she can go with it, but stops short: “In essence, this was a mutual mistake
of fact. The Board was agreeing that Dr. Barson would be getting her medical license
returned, and the Board knew that her sole practice area was anesthesiology.” (Emphasis
added.) She concedes elsewhere, however, that the mistake really at issue here—that she
could not maintain her anesthesiology credentials at Dimension Hospital after forfeiting her
registration numbers—was hers alone, and she did not discover that mistake until after she
executed the Consent Order. As such, Dr. Barson has not alleged that the relevant mistake
On October 7, 2011, the Board filed a Motion to Dismiss the Petition under Maryland
Rule 7-204(a). Following a hearing on November 11, 2011, the circuit court issued a written
Order granting the Motion to Dismiss on November 22, 2011. Dr. Barson filed a Motion to
Alter or Amend Judgment, which the circuit court denied on January 23, 2012, and this
timely appeal followed.
It is important, at the outset, to frame what is and is not at issue. Dr. Barson does not
dispute the validity of the Consent Order or its terms. She does not contend that the Consent
Order is the product of fraud, duress, misrepresentation, mutual mistake, or anything else that
could cast doubt on its formation. She does not argue that the Board exceeded its authority
in negotiating or entering into the Consent Order, or that any provision of the Consent Order
violates the law or her constitutional rights. Nor does she express any disagreement about
the Consent Order’s application or meaning in its as-executed form. Were she alleging these
or other legal defects, Dr. Barson may well have had rights to challenge the Consent Order
itself, whether under principles of contract or under another independent source of authority.
This is a narrower case. This appeal turns on Dr. Barson’s post-agreement rights visà-vis the Board, and specifically whether, as Dr. Barson argues, the Board erred in declining
her request to revise the Consent Order after the fact, and then whether the circuit court erred
was mutual, and we need not analyze whether a mutual mistake might have justified a
revision that her unilateral mistake does not.
in refusing to compel the Board to revise it.5 Dr. Barson characterizes these decisions as
errors of law, either because she believes she was entitled to relief as a matter of law in the
circuit court or because she claims that the Board acted arbitrarily and capriciously by
declining to revise the Consent Order. As such, we review the decisions below de novo.
Talbot Cnty. v. Miles Point, 415 Md. 372, 384 (2010) (citing Belvoir Farms Homeowners
Ass’n. v. North, 355 Md. 259, 267 (1999) (decisions of an administrative agency are owed
no deference when the conclusions are based upon an error of law)). And although on this
posture we “review the agency’s decision, and not that of the circuit court,” P Overlook,
LLLP v. Board of County Comm’rs, 183 Md. App. 233, 247 (2008); Tabassi v. Carroll
County Dep’t of Soc. Servs., 182 Md. App. 80, 85-86 (2008); see also People’s Counsel for
Baltimore County v. Surina, 400 Md. 662, 681 (2007) (the appellate court “looks through the
circuit court’s . . . decision, although applying the same standards of review, and evaluates
Dr. Barson lists three “questions presented” in her brief:
Did the Circuit Court err in dismissing the Petition when it held that Dr.
Barson was not entitled to either judicial review or administrative
mandamus with regard to the Board’s denial of her request for
reconsideration of the Consent Order?
Did the Circuit Court err in dismissing Dr. Barson’s request for
declaratory relief in the Petition without issuing a declaratory
Did the Board err in denying Dr. Barson’s request for reconsideration
of the Consent Order when it held that it did not have the authority to
revise the Consent Order?
the decision of the agency”), there is no meaningful difference here—if we were to find that
Dr. Barson was entitled to revision by the Board as a matter of law, the circuit court would
have erred in failing to order it.
We find no error at either level. Dr. Barson knowingly and voluntarily, with full
disclosure and advice of counsel, waived her rights to challenge the terms of the Consent
Order. Even still, the Board considered and denied her request for a revision. As a
substantive matter, we do not read the Board letter to state that the Board lacked authority
to revise, and the Board’s actions—its request for the Administrative Prosecutor’s views and
response, albeit brief, to Dr. Barson—undercut such a theory. And under the circumstances,
that ends the story: the Board had no obligation to allow Dr. Barson backsies, and Dr.
Barson no right to compel them.
Dr. Barson Waived Any Right To Appeal Or Challenge The Terms Of
The Consent Order Directly.
We start with the language of the Consent Order itself, in which Dr. Barson not only
consented to its terms, but also waived the right to contest its terms or to appeal:
Dr. Barson agreed “to be bound by this Consent Order and its
conditions and restrictions.”
She gave up “any rights [she] may have had to contest the Findings of
Fact and Conclusions of Law.”
She acknowledged “the validity of this Consent Order.”
She acknowledged “the legal authority and the jurisdiction of the Board
to . . . enforce this Consent Order.”
She affirmed that she was “waiving [her] right to appeal any adverse
ruling of the Board that might have followed any . . . hearing.”
This leads us first to a proposition that seems obvious but that we have not previously
stated expressly: we analyze Dr. Barson’s right to challenge the terms of her valid Consent
Order, a product of an administrative agency proceeding, according to the same principles
of law that govern consent orders issued by courts. This is not because differently sourced
consent orders share a common title, but because they serve a common function in resolving
disputes or charges in the tribunal of first instance. It is unusual, and should be unusual, for
us to review any consent order on a direct appeal posture, since the purpose of a consent
order is to end litigation and avoid appeals from the dispute the order resolves.6 But it is
second nature for us to recognize administrative agencies’ authority to settle disciplinary
matters within their regulatory spheres through consent orders, and to enforce alleged
violations in the same manner and according to the same principles as court-approved
consent orders. See, e.g., Cohen v. Maryland State Bd. of Physician Quality Assurance, 160
Md. App. 277, 283 (2004) (entry into a Consent Order with the Board of Physicians
constituted agreement to the terms “including the provision that if [appellant] failed to meet
the terms of the Consent Order, the Board would be able to impose any appropriate
disciplinary sanction” (footnote omitted)). And this makes perfect sense in contexts, such
It is less unusual for appeals to grow out of litigation prompted by one party’s failure
to fulfill its obligations under a consent order. See, e.g., Bayly Crossing, LLC v. Consumer
Protection Division, 188 Md. App. 299, 326 (2009), rev’d in part on other grounds, 417 Md.
128 (2010). In addition, a party who challenged the validity of a consent order on contract
or other substantive principles would normally have the right to seek review if the agency
denied such a challenge. See Chernick v. Chernick, 327 Md. 470 (1992). This case raises
neither category of challenges.
as professional discipline of physicians, in which the General Assembly has committed the
regulation and enforcement of the governing law to the expertise of an administrative agency
such as the Board and in which, as here, parties are required to exhaust administrative
remedies before seeking judicial relief. See, e.g., Comm’n on Med. Discipline v. Bendler,
280 Md. 326, 329-30 (1977) (requiring physician, whose license had been suspended, to
exhaust administrative remedies by going first to the Board of Review, before appealing to
the circuit court); County Council v. Billings, 420 Md. 84, 99 (2011) (the “‘agencies first’
rule promotes judicial efficiency and protects the exercise of agency discretion”).
As a matter both of law and common sense, someone who has agreed to a consent
order or consent judgment can’t be aggrieved by it. Suter v. Stuckey, 402 Md. 211, 222-24
(2007). As a matter of fairness, a litigant “cannot, knowing the facts, both voluntarily accept
the benefits of a judgment or decree and then later be heard to question its validity on
appeal.” Suburban Dev. Corp. v. Perryman, 281 Md. 168, 171 (1977). And even beyond
those general principles, a party to a consent order can surrender the right to appeal, which
“‘may be lost by acquiescence in, or recognition of, the validity of the decision below from
which the appeal is taken or by otherwise taking a position which is inconsistent with the
right of appeal.’” Osztreicher v. Juanteguy, 338 Md. 528, 534 (1995) (quoting Rocks v.
Brosius, 241 Md. 612, 630 (1966)); see also In re Nicole B., 410 Md. 33, 64 (2007) (a party
“is not entitled to appeal from a judgment or order if that party consented to or acquiesced
in that judgment or order”).
By entering into this indisputably valid Consent Order, Dr. Barson spared herself the
cost, stress, uncertainty, and potentially-even-more-serious consequences of proceeding to
an administrative hearing. She knew and acknowledged, after consulting with counsel who
read and approved its terms, that the deal included agreements to forfeit her registration
numbers during the period of her probation and to waive her rights to challenge the terms of
the Consent Order or to appeal them. She does not argue that the Consent Order is void or
voidable, procured by fraud or misrepresentation, nor was the mistake on which she relies
mutual. On this posture, then, Dr. Barson had no right to challenge or appeal directly the
terms of the valid and enforceable Consent Order, and the Board, having agreed to a “no
backsies” resolution of these serious charges, did not commit an error of law by holding her
to her waiver and declining her request for a revision.
No Law Or Regulation Entitled Dr. Barson To Revision Or Judicial
No other applicable law changes the outcome. Dr. Barson devotes the bulk of her
briefs to arguing that various provisions of the Health Occupations Article and its regulations
and of the Administrative Procedures Act entitled her to a revision and compelled the circuit
court to grant her relief when the Board declined to do so. These arguments proceed in part
from the mistaken premise that the Board based its refusal of her request to revise the
Consent Order on a belief that it lacked statutory authority to do so in the first place. Rather
than expressing a lack of authority, we read the Board letter’s statement that “[t]he Medical
Practice Act . . . and the Code of Maryland Regulations . . . do not provide for revision of
a consent order” to say that nothing in those authorities entitled Dr. Barson to a revision or
required the Board to grant one, a proposition with which we agree (as we explain below).
From there, the Board relied on Dr. Barson’s knowing and voluntary execution of the
Consent Order and the Board’s decision to ratify it in declining to reconsider the request
Nevertheless, we have reviewed the potentially relevant statutes and regulations and
find none that compelled the Board to consider revising the Consent Order. First, Dr. Barson
cites the Medical Practice Act, which authorizes the Board to “[a]dopt rules and regulations,”
Health Occ. § 14-205(a), that are found in the Code of Maryland Regulations (“COMAR”).
The section of COMAR in effect at the time of Dr. Barson’s letter that, she claims, required
the Board to revisit the Consent Order in fact describes the Board’s obligation to issue orders
in enforcement proceedings:
The Board shall issue, ordinarily within a maximum of 90 days, a final
order of either dismissal, revocation, suspension, denial of licensure,
reprimand, probation, fine, or other disposition as appropriate.
After the Board issues its order, either party may file a motion for
reconsideration with the Board which is granted at the Board’s
discretion. There is no automatic right to a hearing before the Board,
and the Board may or may not ask for a response from the opposing
Md. Code Regs. 10.32.02.03(G)(1), (2) (2012). The section immediately preceding defines
a “final order” to include a consent order:
the final decision of the Board which contains findings of fact, conclusions of
law, and a disposition which:
(a) Denies a license;
(b) Sanctions by reprimand, probation, fine, consent order, suspension, or revocation;
(c) Dismisses charges; or
(d) Surrenders a license.
Id. 10.32.02.02(B)(13) (2012). But at most, these regulations stand for the unremarkable
proposition that a party may file a motion for reconsideration from a final order that resolves
an enforcement proceeding. Putting aside the fact that Dr. Barson never cited these
provisions to the Board in the first place, and treating her letter of July 12, 2011 as a motion
(which is a stretch), the regulations state only that a motion for reconsideration “is granted
at the Board’s discretion,” with “no automatic right to a hearing,” and that the Board “may
or may not” ask for a response. To the extent these regulations applied, and we do not find
that they did, the Board complied: it asked the Administrative Prosecutor to respond, then
denied the request for reasons it stated, if briefly.
Second, once the Board declined to consider Dr. Barson’s request, she was entitled
to further review of the Board’s decision only to the extent authorized by statute. See Md.
R. 7-201(a); Oltman v. Maryland State Bd. of Physicians, 182 Md. App. 65, 73 (2008). The
operative law here is Health Occ. § 14-408, which authorizes administrative and judicial
review for parties aggrieved by final orders in contested cases:
(a) In general. — Except as provided in this section for an action under § 14404 of this subtitle or § 14-5A-17 of this title, any person aggrieved by a final
decision of the Board in a contested case, as defined in the Administrative
Procedure Act, may:
(1) Appeal that decision to the Board of Review; and
(2) Then take any further appeal allowed by the Administrative Procedure Act.
Again, we assume for present purposes (without deciding) that the Consent Order was
a final order and that, although now resolved, the Board’s enforcement proceeding began as
a “contested case.” See Modular Closet Systems, Inc. v. Comptroller, 315 Md. 438, 445
(1989) (“In none of these opinions has the Court’s contested case analysis focused on the
timing of the proceedings or the stage at which the dispute terminates. Rather, the Court has
focused on whether the nature of the dispute entitles the parties to a hearing to determine
their rights and duties.”). Once she settled the charges through the Consent Order, Dr.
Barson no longer qualified as “aggrieved,” particularly given that she specifically waived the
right to contest the Board’s findings, and her case transformed from a contested case into a
resolved case. Had she fought the charges and lost, Dr. Barson would have been entitled to
review of the ensuing final order, even if the sanctions were exactly the same as those to
which she agreed. But by resolving the charges in a Consent Order, Dr. Barson changed her
relationship vis-à-vis the Board and the outcome of the previously contested case—in
essence, she agreed that she was no longer aggrieved, and waived that status in exchange for
the certainty of the otherwise-contested outcome.
Finally, Dr. Barson argues that the circuit court should have granted her request for
administrative mandamus. Here, Dr. Barson seeks to invoke the authority of Chapter 7-401
of the Maryland Rules, which allows for “judicial review of a quasi-judicial order or action
of an administrative agency where review is not expressly authorized by law.” Md. R. 7-
401(a). Maryland Rule 7-403 provides for administrative mandamus in an agency action
under limited circumstances:
The court may issue an order denying the writ of mandamus, or may issue the
writ (1) remanding the case for further proceedings, or (2) reversing or
modifying the decision if any substantial right of the plaintiff may have been
prejudiced because a finding, conclusion, or decision of the agency:
(A) is unconstitutional,
(B) exceeds the statutory authority or jurisdiction of the agency,
(C) results from an unlawful procedure,
(D) is affected by any error of law,
(E) is unsupported by competent, material, and substantial evidence in light of
the entire record as submitted,
(F) is arbitrary or capricious, or
(G) is an abuse of discretion.
Id. We disagree with Dr. Barson’s claim that a plaintiff is “entitled” to administrative
mandamus simply because “an agency action prejudices a substantial right of the plaintiff.”
Rather, the agency action must take the form of a “finding, conclusion, or decision of the
agency” that errs in one of the listed manners, and the Court “may” reverse or modify that
decision if jurisdiction, as a preliminary matter, is proper.
In this case, the circuit court correctly relied on Perry v. Department of Health &
Mental Hygiene, 201 Md. App. 633 (2011), in concluding that it lacked jurisdiction to grant
mandamus based on Dr. Barson’s failure to show a “clear legal right or protected interest”
in having her registration numbers reinstated. See id. at 637. In Perry, the circuit court
dismissed a petition for administrative mandamus, because the petitioner did not have a
“substantial right” to the promotion that she was denied—the petitioner could not have a
“substantial right” in a position that she had never held. Id. at 640; see also Oltman, 182 Md.
App. at 77-78 (physician assistant had no protected property interest in a certificate that had
been revoked properly). Here, the formerly aggrieved party, Dr. Barson, specifically
forfeited the right to the registration numbers at issue when she freely entered into the
Consent Order, and that forfeiture created a jurisdictional void that the circuit court correctly
declined to fill.
Whatever rights Dr. Barson may once have had to those registration numbers, she
waived them. And after acknowledging the validity of the Consent Order and representing
to the Board, as a condition of achieving an agreed resolution of the Board’s charges, that
she “voluntarily sign[ed] this Order, and underst[ood] its meaning and effect,” Dr. Barson
cannot now invoke extraordinary relief in equity on the grounds that her own representations
were not quite true after all.7 She was welcome to ask the Board to consider revising the
Consent Order, and she did. But her acceptance of the terms of the Consent Order and the
impact of its meaning and effect left any decisions about future revisions to the
The same is true for her claim that the circuit court should have granted a declaratory
judgment. Although Dr. Barson is correct that dismissal of a declaratory judgment action is
not appropriate when there are factual controversies that must be decided on the merits, the
disagreement here relates entirely to her rights vel non to relief as a matter of law. See
Polakoff v. Hampton, 148 Md. App. 13, 26 (2002); see also Md. Code (2013), § 3-409(a) of
the Courts & Judicial Proceedings Article (providing that “a court may grant a declaratory
judgment . . . in a civil case” (emphasis added)). As such, a declaratory judgment action
would be no more appropriate here than administrative mandamus.
administrative discretion (or grace) of the Board, which in turn was free to hold Dr. Barson
to her agreement.
We find no error, either in the Board’s decision not to revise the Consent Order or
the circuit court’s decision to dismiss Dr. Barson’s petitions for judicial review,
administrative mandamus, and declaratory judgment. No backsies.
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY
AFFIRMED. COSTS TO BE PAID BY