The Florida Bar
www.floridabar.org
The Florida Bar Journal
May, 2014 Volume 88, No. 5
Appealing Administrative Action: The Threshold Considerations

by Keith W. Rizzardi

Page 39

Appeals of administrative agency actions differ from traditional appellate practice. For example, appellate cases involving agency decisions can raise nuanced differences in the law of standing, the degree of judicial deference, the relevance of stare decisis, and the mechanics of the appellate record. The initial concerns associated with appealing an administrative order can be considered in the context of three simple questions: 1) Can I appeal; 2) should I appeal; and 3) how do I start the appeal?

Can I Appeal?
In order to pursue an appeal of an administrative agency decision, a threshold determination should be made as to whether the lawyer has standing. In general, the Florida Administrative Procedures Act (APA), F.S. Ch. 120, grants broad rights to parties to seek review of administrative agency action. But to seek appellate judicial review of agency action pursuant to F.S. §120.68, the appellant must further establish that 1) the agency action is final; 2) the Florida APA applies; 3) the appellant was a party to the prior administrative hearing; and, finally, 4) they were adversely affected by the final agency action.1 Thus, the judicial review requirement for an appellant to experience an “adverse effect” differs from the administrative hearing requirement in F.S. §120.569(1) that a party must be “substantially affected.”2 Although the district courts of appeal have been divided on the nuances of the issue, a party can have standing for purposes of the original administrative hearing, but not for the appeal.3 Importantly, factual findings reached by the administrative law judge concluding that a party was not harmed might even foreclose the appeal. If the appeal is pursued anyway, without sufficient evidence of appellate standing, or without a direct (but difficult) challenge to those findings of fact, the appellant faces a risk of sanctions.4

Should I Appeal?
As noted above, one of the requirements for standing to appeal an agency action is for the appellant to have been party to the prior administrative hearings. In these disputes, the Florida APA generally requires its agencies to conduct evidentiary proceedings before an administrative law judge (ALJ). Those proceedings lead to findings of fact and conclusions of law, codified in a recommended order by the ALJ, which in turn is reviewed by the executive branch agency. The agency then issues a final order, subject to further scrutiny through judicial review by appeal of the agency action to a Florida district court of appeal, pursuant to F.S. §120.68. The decision as to whether an appeal is advisable, however, depends on careful consideration of the factual, legal, and precedential implications of each particular case.

Do I Want to Allow the Agency Another Chance? — Importantly, an agency generally cannot appeal its own final order.5 Also, an agency generally cannot amend its own order once the time for an appeal has lapsed.6 Many cases before an ALJ involve a mix of victories and defeats: winning on some issues, and losing on others. By not filing an appeal, a litigant keeps the victories, and accepts the defeats. However, once the appeal is filed, the agency can cross-appeal, and the issues can be reopened, with the consequences playing out in the appellate forum.

For some clients who repeatedly obtain orders or agency actions from the same agency, the better strategy might be to accept the final order in one matter, and then seek to change the minds of the administrative agency decisionmakers in the future. Once issued, administrative orders issued under appropriate statutory authority are deemed to be prima facie reasonable and just.7 However, agency final orders are NOT strictly precedential. Agencies have discretion to change their minds, and the Florida APA acknowledges that agencies can exercise discretion in a manner that is inconsistent with prior policy or agency practice if the deviation is explained by the agency.8

• Do I Have Issues Worthy of Appeal? Appealing the case, of course, differs from winning the case. After all, the appeal is only necessary because the client failed to get what they wanted from the agency and then lost the dispute before the ALJ. Nevertheless, to varying degrees, the findings of fact and conclusions of law reached by the ALJ and agency may be subject to appellate review and reversal.

The Florida APA limits the authority of the courts to reject an ALJ’s findings of fact, so lawyers considering an appeal should carefully weigh the applicable standards of whether the facts are supported by competent, substantial evidence in the record.9 Although the Florida APA has undergone various rewritings over the years, state law has long granted weight to the findings of fact made by ALJs and state administrative agencies because they are, in theory, supported by a preponderance of the evidence.10

When a recommended order is reviewed by an agency and a final order is issued, the agency must be sure that the findings of fact identify the underlying facts in the record that supported the decision.11 These procedures created by the Florida APA were not created to empower the appellate courts to engage in an intense review of particular facts; rather, they were designed as a mechanisms to facilitate judicial review and an assessment of whether the agency actions ensured due process of law.12 Importantly, however, “a court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact.”13

On questions of law, state agencies may not receive as much judicial deference as their federal counterparts, who benefit from well-established principles of judicial deference.14 Nevertheless, even on legal questions, the Florida APA again provides that a court should not substitute its judgment for the agency on a matter of discretion.15

Can I Accept the Consequences of an Appeal? — The filing of an appeal involving novel issues of first impression can be especially significant. In the absence of conflicting authority from multiple district courts or the Florida Supreme Court, a DCA opinion becomes controlling precedent statewide.16 But even if other cases have addressed the subjects, an appeal may have other benefits.

As noted earlier, an administrative agency does not have to be entirely consistent as it moves from one decision to the next. Rather, the burden on the agency is to explain any deviation from prior decisions.17 For parties needing regulatory certainty, an appeal might have the benefit of “locking in” an agency decision because, in general, appellate courts have a duty to ensure that the law is applied uniformly in decisions based on similar facts, and to adhere to the principle of stare decisis.18

The importance of establishing a judicial precedent through appeal becomes especially significant in cases involving property because the doctrine of stare decisis applies with peculiar force and strictness to those judicial decisions.19 Even if different parties are involved, the facts that gave rise to a precedent case can become the factual foundation for a subsequent case.20 Thus, the appeal of an administrative order offers an opportunity for a Florida litigant to create lasting factual precedents that can make it more difficult for an agency to reverse itself.21

How Do I Appeal?
Once the decision is made that a client can and should pursue an appeal, the lawyer needs to invoke the necessary process. In general, Fla. R. App. P. 9.190 governs judicial review of final administrative agency actions. Separate rules apply for judicial review of nonfinal agency action.22 To initiate the appellate process, pursuant to Fla. R. App. P. 9.110(c), the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed, and also file a copy of the notice, accompanied by any filing fees, with the clerk of the court.

Who Creates and Files the Appellate Record? If the appeal follows a hearing or similar procedure based on F.S. Ch. 120, then the specific documents in the administrative record from that proceeding, including the evidence and the legal filings with the administrative law judge will serve as the appellate record, and the clerk of the agency will transmit the record.23 For appeals of administrative action not based on the Florida APA, the filing of the appellate record is the responsibility of the appellant, who must file an index of the record.24 In some circumstances, the record may be supplemented or otherwise amended.25

Can I Stay the Final Agency Action Pending Appeal? — Except when otherwise provided by law, the filing of a notice of administrative appeal or a petition seeking review of administrative action does not operate as an automatic stay of the final administrative agency action.26 Instead, an appellant may file a motion either with the lower tribunal or, for good cause shown, with the appellate court, and again, the filing of the motion shall not operate as a stay.27

Conclusion
Before the process of arguing an appeal can begin, experienced administrative lawyers should give careful thought to numerous questions. Was the client’s standing adequately addressed in the administrative hearings? Is a judicial appeal truly in the client’s best interest, or should the client try to get the agency to reverse itself? If the client does appeal, are the issues truly winnable, and is the client willing to live with the precedential consequences, for better and for worse? And finally, has the whole record been provided, or does it need to be supplemented? Only after those threshold matters are all carefully considered can and should the briefing and argument begin.


1 Legal Envtl. Assistance Found. Inc. v. Clark, 668 So. 2d 982, 986 (Fla. 1996).

2 See, e.g., Fla. Stat. §120.569(1) (providing administrative review of final agency action to be sought by any substantially affected person).

3 Compare Martin County Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), with Peace River/Manasota Regional Water Supply Auth. v. IMC Phosphates Co., 18 So. 3d 1079 (Fla. 2d DCA 2009).

4 See Martin County, 73 So. 3d 856. For a thorough discussion of Martin County, Peace River, standing, and fees exposure, see Gary K. Hunter, Jr. & Julie M. Murphy, Standing to Appeal an Administrative Order: Cautions from Martin County Conservation Alliance v. Martin County, 88 Fla. B. J. 20 (Mar. 2014).

5 Fla. Dept. of Law Enforcement v. Dukes, 484 So. 2d 645, 647 (Fla. 4th DCA 1986).

6 AGO 88-40 (Real Estate Commission).

7 McConville v. Fort Pierce Bank & Trust Co., 135 So. 392, 395 (Fla. 1931).

8 Fla. Stat. §120.68(7)(e)3.

9 Fla. Stat. §120.68(7)(b) (2012) (“The agency’s action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to §§120.569 and 120.57.”).

10 Fla. Stat. §120.57(j) (2012) (findings of fact “shall be based on a preponderance of the evidence…and shall be based exclusively on the evidence of the record and on matters officially recognized”).

11 Fla. Stat. §120.569(2)(m) (2012) (findings of fact “must be accompanied by a concise and explicit statement of the underlying facts of the record which support the findings.”).

12 See generally Katz v. Florida State Board of Medical Examiners, 405 So. 2d 465 (Fla. 1st DCA 1981)(discussing due process); see also City of Winter Park v. Metropolitan Planning Organization, 765 So. 2d 797 (Fla. 1st DCA 2000); and Leis v. Florida Dept. of Prof. Reg., 410 So. 2d 593, 594 (Fla. 2d DCA 1982) (discussing the facilitation of judicial review).

13 Id.

14 See, e.g., Chevron v. NRDC, 467 U.S. 837 (1984),

15 See generally. Fla. Stat. §120.68(c) (2012) (governing appeals of procedural errors); Fla. Stat. §120.68(d) (appeals asserting that an agency “erroneously interpreted a provision of law”); and Fla. Stat. §120.68(e) (2012) (appeals involving an improper or inconsistent exercise of discretion, but noting that “the court shall not substitute its judgment for that of the agency on an issue of discretion.”).

16 See Brannon v. State, 850 So. 2d 452, 458 n.4 (Fla. 2003) (“If there is no controlling decision by this [c]ourt or the district court having jurisdiction over the trial court on a point of law, a decision by another district court is binding.”) (citing Pardo v. State, 596 So. 2d 665, 667 (Fla. 1992)) (stating that when the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court is required to follow that decision).

17 Fla. Stat. §120.68(e)3 (2012) (providing for judicial review of an agency’s exercise of discretion that was “[i]nconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency”).

18 See Highsmith v. State, 843 So. 2d 369 (Fla. 2d DCA 2003).

19 See, e.g., Askew v. Sonson, 409 So. 2d 7 (Fla. 1981) (substantive rules governing real property are peculiarly subject to stare decisis) (citing U.S. v. Title Insurance and Trust Company, 265 U.S. 472 (1924)).

20 See, e.g., Della-Donna v. Nova University, 512 So. 2d 1051 (Fla. 4th DCA 1987) (“Since the same facts that gave rise to the Della Donna v. Gore dispute are the factual foundation of this lawsuit, stare decisis, in the form of Della-Donna v. Gore, compels our decision….”); see also McGregor v. Provident Trust, 162 So. 323, 328 (Fla. 1935) (discussing the distinctions between law of the case, res judicata, and stare decisis).

21 While an appeal can clarify and establish precedents on factual matters and the application of facts to a statutory scheme, in federal administrative law, an agency still retains discretion to reverse its policies, even after a federal court has ruled. A court’s prior interpretation may be reversed by a subsequent administrative agency decision if it represents a well-explained and reasonable construction of a statute. See Nat’l Cable v. Brand X, 545 U.S. 967 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”). See also Ronald M. Levin, Hard Look Review, Policy Change, and Fox Television, 65 U. Miami L. Rev. 555 (2011). No published Florida case has addressed this precise issue, but the Florida APA’s instruction that a court “shall not substitute its judgment for that of the agency on an issue of discretion,” in Fla. Stat. §120.68(e) (2012) suggests that the analysis in Brand X would also apply when a Florida judicial opinion encroaches on a policy judgment involving agency discretion.

22 Fla. R. App. P. 9.100(b) and (c) (governing original proceedings).

23 See generally Fla. R. App. P. 9.190(c)(2).

24 Fla. R. App. P. 9.190(c)(4).

25 See, e.g., Fla. R. App. P. 9.190(c)(6), 9.200, and 9.220.

26 Fla. R. App. P. 9.190(e)(1).

27 Fla. R. App. P. 9.190(e)(2).


Keith W. Rizzardi is a law professor at St. Thomas University in Miami Gardens where he teaches administrative law. He also practices law as special counsel to Jones Foster Johnston & Stubbs, P.A., in West Palm Beach, and previously served as chair of The Florida Bar Government Lawyer Section.

This article is submitted on behalf of the Government Lawyer Section, Barbara C. Wingo, chair.

[Revised: 05-27-2014]