Discovery in Administrative Proceedings: Whose Right and Who’s Right?
Judge Bram Canter, a former administrative law judge at the Florida Division of Administrative Hearings (DOAH), accurately captured the universe of discovery in administrative proceedings:
The proceedings at DOAH move more rapidly than civil cases in the circuit courts. Most hearings are scheduled 60 to 90 days after a petition for hearing is filed with an agency. Therefore, it is not just advantageous to a lawyer to begin discovery immediately, as it would be in a civil case; it is essential.[1]
While the Uniform Rules of Procedure[2] and current practice at DOAH allow prompt and full discovery consistent with this observation, the existing authority in F.S. Ch. 120 for this approach is not so clear.
The one, brief statutory provision in Ch. 120 that authorizes discovery in administrative proceedings vests the presiding officer with the power “to effect discovery.”[3] Unlike the corresponding Florida Rule of Civil Procedure 1.280, Ch. 120 does not directly authorize parties to “obtain discovery.” Florida Administrative Code Rule 28-106.206, which governs administrative proceedings involving disputed issues of fact, does not recognize this distinction and grants to parties the right to obtain discovery as allowed under the Florida Rules of Civil Procedure. In contrast, Fla. Admin. Code R. 28-106.305, which governs administrative proceedings not involving disputed issues of fact, more closely tracks the language of Ch. 120 and does not contain the same direct grant of authority to parties to obtain discovery. Nevertheless, agency practice often parallels discovery in disputed fact hearings.
As suggested below, minor legislative revisions could provide the authority for a uniform approach to discovery in administrative proceedings. Subsequent rulemaking by the Administration Commission could memorialize DOAH’s current practice pertaining to discovery in disputed fact proceedings and provide uniform guidance to agencies in how to handle discovery during proceedings not involving disputed facts.[4]
The Statutes
The provisions of F.S. §120.569(1) “apply in all proceedings in which the substantial interests of a party are determined by an agency.”[5] The additional provisions of F.S. §120.57(1) apply whenever the proceeding involves a disputed issue of material fact; those of F.S. §120.57(2) apply when there are no disputed material facts.[6] Proceedings that involve disputed issues of material fact were formerly referred to in statute as formal proceedings, with those that are not referred to as informal proceedings.[7]
The sole statutory authority for discovery in both types of administrative proceedings provides in full as follows:
The presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, including the imposition of sanctions, except contempt.[8]
The language shown in italics has been in the Administrative Procedure Act since the original enactment in 1974:
An agency, or its duly empowered presiding officer, or a hearing officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon its own motion, and to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida rules of civil procedure.[9]
While the provision has been moved to F.S. §120.569(2)(f) and some language pertaining to other duties has changed over time, the provision itself has remained essentially unchanged. Because this provision appears in F.S. §120.569(2)(f) and neither the original nor the current versions of F.S. §§120.57(1) and 120.57(2) contain any further reference to discovery, this language is the only authority for discovery in disputed fact and undisputed fact proceedings.
This statute differs significantly from Fla. R. Civ. P. 1.280, which sets forth the general provisions governing discovery as follows:
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as provided in rules 1.200, 1.340, and 1.370.
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter….
Whereas the plain language of Ch. 120 grants the power “to effect discovery” to presiding officers, thereby vesting in them all authority and making them the gatekeeper, the Rules of Civil Procedure give broad rights to the parties in civil litigation to “obtain discovery,” subject only to the potential for subsequent limitation by order of the court.[10]
Discovery in Disputed Fact Proceedings
F.A.C. Part II, Ch. 28-106, contains the Uniform Rules of Procedure that implement F.S. §§120.545(5) and 120.57(1) and govern proceedings involving disputed issues of material fact. F.A.C.R. 28-106.206, which resides in Part II, sets forth the authority for discovery in these proceedings:
After commencement of a proceeding, parties may obtain discovery through the means and in the manner provided in Rules 1.280 through 1.400, Florida Rules of Civil Procedure. The presiding officer may issue appropriate orders to effectuate the purposes of discovery and to prevent delay, including the imposition of sanctions in accordance with the Florida Rules of Civil Procedure, except contempt (emphasis added).
The latter provision of this rule tracks the statutory language with the exception of changing “effect” to “effectuate”[11] and adding of “the purposes of” immediately prior to “discovery” and “to prevent delay” immediately after. The italicized portion has no direct statutory counterpart.
F.A.C.R. 28-106.211, titled, “Conduct of Proceedings,” and also found in Part II, provides that “[t]he presiding officer before whom a case is pending may issue any orders necessary to effectuate discovery….” F.S. Chs. 28-106 provide no further guidance on discovery in proceedings involving disputed issues of fact.
If a request for a proceeding disputed fact proceeding is filed and found sufficient, the agency will likely[12] refer the petition to DOAH. The assigned administrative law judge will enter an initial order that contains the following:[13]
SUMMARY OF PROCEDURES
This case has been filed with the Division of Administrative Hearings to conduct an evidentiary hearing governed by chapter 120, Florida Statutes, and Florida Administrative Code Chapter 28-106, Parts I and II.
THE PARTIES SHALL TAKE NOTICE THAT:
* * *
2. Discovery may be undertaken in the manner provided in the Florida Rules of Civil Procedure and, if desired, should be initiated immediately. Subpoenas may be obtained from the Judge by contacting (850) 488-9675, extension 111. Registered e-filers shall obtain subpoenas electronically through the DOAH website under the eALJ link. Discovery must be completed five days before the date of the final hearing unless an extension of time for good cause is granted.
This uniform approach to discovery in administrative proceedings involving disputed facts is generally equivalent to the same in civil cases and appears to be operating without major hitch. As indicated by reported cases, parties to formal proceedings have long utilized the full menu of discovery allowed under the Florida Rules of Civil Procedure and have, when necessary, requested orders from administrative law judges to compel others to comply with discovery requests.[14]
Discovery in Undisputed Fact Proceedings
F.A.C. Part III, Ch. 28-106, contains the Uniform Rules of Procedure that implement F.S. §§120.545(5) and 120.57(2) and govern informal proceedings. There is no counterpart to F.A.C.R. 28-106.206, in Part III, and no other rule that sets forth direct authority for parties to obtain discovery in informal proceedings as the italicized language above does.
F.A.C.R. 28-106.305 titled, “Conduct of Proceedings,” and found in Part III, mirrors its counterpart in Part II.[15] This section provides that “[t]he presiding officer before whom a case is pending may issue any orders necessary to effectuate discovery….”
Because petitions instituting undisputed fact proceedings, with few exceptions,[16] are not referred to DOAH for the assignment of an administrative law judge, there are no initial orders with uniform discovery provisions as there are in disputed fact proceedings. The results are decidedly non-uniform.
In JPM Outlook One Limited Partnership v. Florida Housing Finance Corp., Case No. 17-2499BID (DOAH Apr. 25, 2017), the Florida Housing Finance Corporation referred a written bid protest to DOAH to conduct further proceedings upon concluding that “there are no issues of material fact in question and an informal [undisputed fact] hearing is appropriate.”[17] The assigned administrative law judge entered an order of pre-hearing instructions advising the parties as follows:
In the absence of agreement by all parties to waive the statutory time for conducting the hearing, discovery must be initiated immediately. All parties are charged with a special duty of prompt cooperation in the discovery process. In order to provide for accelerated discovery in this case, the discovery provisions of the Florida Rules of Civil Procedure are modified as follows….[18]
The provision shown in italics reflects implicit agreement by the administrative law judge and the parties that the Florida Rules of Civil Procedure apply to discovery in proceedings under F.S. §120.57(2), and that the parties were entitled to immediately engage in discovery subject only to limitation or modification by the tribunal.
On the other end of the spectrum, the Office of Insurance Regulation entered a notice of assignment and order in In re: Security First Ins. Co. v. Office of Ins. Reg., 232 So. 3d 1157 (Fla. 5th DCA 2017), and therein made no mention of the right to obtain or even request leave of the presiding officer to propound discovery.[19] Similarly, the Office of Financial Regulation’s website contains explicit directions regarding informal proceedings and makes no mention of discovery.[20]
Discovery and the Nature of Undisputed Fact Proceedings
The difference between a proceeding under F.S. §120.57(1) and one under F.S. §120.57(2) is not simply the presence of a disputed issue of material fact.[21] If a proceeding is conducted to the letter of the simple and expedited process set forth in F.S. §120.57(2), “the informal hearing is in essence a meeting, not an adjudicatory hearing to decide disputed issues of material fact.”[22]
When the Administrative Procedure Act was adopted, the hearings conducted under F.S. §120.57(1) and F.S. §120.57(2) — the hearings themselves — were described as “formal” and “informal.” The presence of a disputed issue of fact mandated that the proceeding and final hearing being conducted in a particular manner; formal. Where no material facts were in dispute, the proceeding and final hearing were to be informal.
The process as set forth in the statute reflects more of an informal meeting than a hearing and involves only three steps: “notice to affected persons of the action of the agency,” an opportunity to submit “written or oral evidence in opposition to the action of the agency” or “a written statement challenging the ground upon which the agency has chosen to justify its action or inaction,” and then a “written explanation with [seven] days” if the objections to the agency action are overruled.[23] The statute does not contemplate motion practice or “intermediate rulings.”[24] Nor does the statute allow for post-hearing submissions.[25]
The rules adopted by the Administration Commission to implement this statute provide for motion practice and allow post-hearing submissions.[26]
An Observation and Suggestion for Legislative Consideration
Discovery in disputed fact hearings is currently as broad and robust as its counterpart in civil litigation due to the adopted Uniform Rules of Procedure and Initial Order practice at DOAH mirroring the Florida Rules of Civil Procedure. As an article published over 33 years ago noted, such an approach was not necessarily the manner in which the Administrative Procedure Act was intended to be implemented: “Although the [120.57(1)] process resembles a judicial proceeding, it is not one; it is an adjudicatory proceeding conducted according to legislative directive by the executive branch DOAH.”[27]
As suggested in this article, existing legislative directive may not provide full support for existing rule and practice. Because the current process seems to be working efficiently in practice, the following revision to F.S. §120.57(1)(b) could ratify that current rule and practice:
All parties shall have an opportunity to obtain discovery through the means and in the manner provided in Rules 1.280 through 1.400, Florida Rules of Civil Procedure, to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to the presiding officer’s recommended order, and to be represented by counsel or other qualified representative. When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut the material.
Discovery in proceedings not involving disputed issues of fact is a different story. Unless the statutory framework governing such proceedings is significantly altered, full discovery in such proceedings would not appear to be warranted. Limited discovery recognizing the expedited nature and narrow scope of such proceedings would seem more appropriate. F.S. §51.011(2) sets forth a procedure for expedited civil cases and accompanying discovery. Using that section as a template, the following is suggested as a new[28] F.S. §120.57(2)(a)3:
Give the parties, their counsel, or representative reasonable opportunity to take depositions on oral examination. Other discovery and admissions may be had only on order of the presiding officer setting the time for compliance.
Consistent with the mandate of F.S. §120.54(5), this statutory provision could provide the basis for a uniform approach to the non-uniform world of informal hearings.
[1] Bram D. E. Canter, Practice Pointers for Administrative Hearings, 84 Fla. B. J. 36, 39 (Feb. 2008).
[2] The Administration Commission adopted the original Uniform Rules of Procedure on April 1, 1997. The current uniform rules, as amended by the commission, are codified in F.A.C. Chs. 28-101 through 28-112. All agencies subject to Ch. 120 must comply with these rules unless granted an exception by the Administration Commission. See Fla. Stat. §120.54(5)(a) (2019); Gaston v. Dep’t of Revenue, 742 So. 2d 517, 521 (Fla. 1st DCA 1999).
[3] See, e.g., Fla. Stat. §120.569(2)(f) (2019).
[4] The due process implications of prohibiting or limiting discovery in adjudicatory proceedings is an important issue purposefully not addressed in this article. The limited scope of this article is existing statutory authority for discovery and the promulgation of implementing rules.
[5] Fla. Stat. §120.569(1) (2019).
[6] Fla. Stat. §120.57(1), (2) (2019).
[7] The change in reference from “formal proceedings” to material fact hearings was accomplished in Ch. 96-159, §19, Laws of Fla. Fla. Stat. §120.569(2)(a) still used the term “formal hearing” to refer to proceedings under Fla. Stat. §120.57(1) but this reference was deleted the following year. See Ch. 97-176, §7, Laws of Fla. Yet, strong overtones of formality linger. The Fourth District recently referred to a proceeding under Fla. Stat. §120.57(1) as “formal.” See Jeancharles v. Dep’t of Revenue, 273 So. 3d 1006, 1008, 1012 (Fla. 4th DCA 2019). As recently as two years ago, the Florida Supreme Court used the original, 1974 nomenclature “informal proceedings” to reference disputes under F.S. §120.57(2). See Citizens of State v. Graham, 213 So. 3d 703, 712 (Fla. 2017). Numerous recommended orders entered by DOAH begin “[p]ursuant to notice, a formal administrative hearing was conducted….” See, e.g., Dep’t of Health, Bd. of Med. v. Davis, Case No. 19-4144PL (DOAH Apr. 14, 2020); Masters v. Bd. of Nursing, Case No. 19-3203 (DOAH Oct. 16, 2019); Emerald Coast Utilities Auth. v. Packer, Case No. 19-1625 (DOAH July 19, 2019).
[8] Fla. Stat. §120.569(2)(f) (2019) (emphasis added).
[9] Ch. 74-310, §1, 1974 Laws of Fla. 952, 964 (codified at Fla. Stat. §120.58(1)(b)) (emphasis added).
[10] For comparison, the statutes that govern workers’ compensation adjudications by judges of compensation claims, which are exempt from Ch. 120, contain express grants of authority for discovery that are further implemented by administrative rules. See Fla. Stat. §440.021 (2019) (providing an exemption from Ch. 120); Fla. Stat. §440.25(4)(b) (2019) (hearing must be scheduled “allowing the parties sufficient time to complete discovery”); Fla. Stat. §440.25(4)(h) (2019) (In an expedited hearing, the “Deputy Chief Judge shall make provision by rule or order for expedited and limited discovery and expedited docketing.”); Fla. Stat. §440.30 (2019) (providing that “[d]epositions of witnesses or parties …may be taken…either upon order of the judge of compensation claims or at the instance of any party or prospective party to such proceeding….”); F.A.C.R. 60Q-6.114(1) (“Any party may commence with discovery methods specifically authorized by statute, including depositions, issuance of subpoenas and requests for production, prior to or after invoking the jurisdiction of the judge.”).
[11] The difference between “effect” as used in the statute and “effectuate” as used in the rule, if any, is not readily apparent.
[12] Agencies may elect to conduct disputed fact hearings before the agency head without referring the matter to DOAH. The Public Service Commission, for example, rarely refers proceedings to DOAH.
[13] This language appears in initial orders in disputed fact cases across judges and agencies. See, e.g., Agency for Health Care Administration v. Ft. Myers ALF BSLC, LLC, Case No. 19-1919 (DOAH Apr. 15, 2019) (initial order issued by Judge Alexander); Department of Financial Services v. Maxima Intermodel Corp., Case No.18-5682 (DOAH Oct. 26, 2018) (initial order issued by Judge Bogan); Macken v. Department of Law Enforcement, Case No.17-6449 (DOAH Nov. 28, 2017) (initial order issued by Judge Schwartz); Robert’s Auto Air Muffler and Brake City, LLC v. Department of Revenue, Case No.16-1601 (DOAH Mar. 21, 2016) (initial order issued by Judge Johnston); Department of Business and Professional Regulation v. El Mezcal, LLC, Case No. 15-1061 (initial order issued by Judge Van Wyk). Using online dockets as the measure, the transition to the present language started in 2005 when administrative law judges, instead of the clerk of DOAH, began to issue initial orders. See, e.g., South Florida Water Management District v. Sanctuary Bay Trust Company, Case No. 04-4610 (DOAH Dec. 28, 2004) (initial order); Next Outdoor, LLC v. Department of Transportation, Case No. 05-4649 (DOAH Dec. 22, 2005) (initial order). The former language in the initial orders read as follows: “Discovery may be undertaken in the manner provided in the Florida Rules of Civil Procedure and should be initiated immediately if desired. Necessary subpoenas and [o]rders may be obtained through the assigned [j]udge. Discovery must be completed 5 days before the date of the final hearing unless an extension of time for good cause is granted.”
[14] See, e.g., Wall v. Gordon Food Servs., Case No. 18-4091 (DOAH Dec. 11, 2018) (order on respondent’s motion to compel).
[15] F.A.C.R. 28-106.211.
[16] Certain bid protests from the Florida Housing Finance Corporation are transmitted to DOAH where “a duly-designated administrative law judge, sitting as an informal hearing officer pursuant to sections 120.57(2) & (3), Florida Statutes,” will conduct an informal hearing and enter a recommended order. JPM Outlook One Ltd. Partnership v. Fla. Housing Finance Corp., DOAH Case No. 17-2499BID at 1-2 (Rec. Order June 29, 2017). Other matters where the administrative law judge has found no disputed issue of material fact may properly remain with DOAH for final disposition. See Williams v. Dept. of Hwy. Safety and Motor Vehicles, Case No. 17-2090F (DOAH Aug. 11, 2017) (amended final order entered on fees following successful rule challenge where no facts in dispute).
[17] JPM Outlook One Limited Partnership v. Florida Housing Finance Corporation, Case No. 17-2499BID (DOAH Apr. 25, 2017) (agency referral letter at 1).
[18] JPM Outlook One Limited Partnership v. Florida Housing Finance Corporation, Case No. 17-2499BID (DOAH May 1, 2017) (order of prehearing instructions at 2) (emphasis added).
[19] Office Ins. Reg. Case No. 182865-15, affirmed Security First Ins. Co. v. Office of Ins. Reg., 232 So. 3d 1157 (Fla. 5th DCA 2017).
[20] Florida Office of Financial Regulation, Representing Yourself at an Informal Hearing.
[21] For instance, the constitutional right to counsel is not applicable in informal administrative proceedings involving license revocation. See Santacroce v. State, Dep’t of Banking & Fin., Div. of Sec. & Inv’r Prot., 608 So. 2d 134, 136 (Fla. 4th DCA 1992).
[22] Autoworld of Am. Corp. v. Dep’t of Highway Safety, 754 So. 2d 76, 77 (Fla. 3d DCA 2000).
[23] Fla. Stat. §120.57(2)(a).
[24] The record on appeal for a disputed fact hearing includes “notices, pleadings, motions, and intermediate rulings.” Fla. Stat. §120.57(1)(f)1 (2019). The statutory list of items to be included in the record for an undisputed fact hearing does not include these matters. See Fla. Stat. §120.57(2)(c) (2019).
[25] The authority for a party “to submit proposed findings of facts and orders, [and] to file exceptions to the presiding officer’s recommended order” appears in Fla. Stat. §120.57(1)(b) and has no counterpart in Fla. Stat. §120.57(2).
[26] F.A.C.R. 28-106.303 and. 307.
[27] Patricia A. Dore, Access to Florida Administrative Proceedings, 12 Fla. State Univ. L. Rev. at 1079 (Winter 1986) (emphasis added).
[28] Existing Fla. Stat. §120.57(2)(a)3 could be moved and become the new Fla. Stat. §120.57(2)(a)4.
Shaw Stiller is a senior attorney at the Public Service Commission. He has over two decades of experience in administrative law, including four years as general counsel of the Department of Community Affairs and four years as chief legal counsel of the litigation section at the Office of Insurance Regulation.
This column is submitted on behalf of the Administrative Law Section, Bruce D. Lamb, chair, and Lyyli Van Whittle, editor.
