NAZARIAN, J.
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.
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.
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 ("Health Occ.").
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:
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:
(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 unencumbered.
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 emphases added):
The Consent page is signed by Dr. Barson and her attorney, who "[r]ead and approved" it, and also notarized.
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
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 public":
(Emphasis added.) The Administrative Prosecutor sent a copy of the AG letter to Dr. Barson's counsel.
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:
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
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 vis-à-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 in refusing to compel the Board to revise 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.
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:
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.
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, 935 A.2d 731 (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, 377 A.2d 1164 (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, 659 A.2d 1278 (1995) (quoting Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531 (1966)); see also In re Nicole B., 410 Md. 33, 64, 976 A.2d 1039 (2009) (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 other applicable law changes the outcome. Dr. Barson devotes the bulk of her
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:
Md.Code Regs. 10.32.02.03(G)(1), (2) (2012). The section immediately preceding defines a "final order" to include a consent order:
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.
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, 554 A.2d 1221 (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:
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.
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.
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.