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Equitable Tolling in Florida Administrative Proceedings

Administrative Law

The role of equity in the administrative process is mysterious. While equitable principles have been relied upon to modify or reverse agency actions, the genesis and scope of these principles is less than clear. For example, application of the doctrine of laches has been considered in various disciplinary proceedings, but no clear rule has emerged. See Ong v. Department of Professional Regulation, 565 So. 2d 1385, 1386–1387 (Fla. 5th DCA 1990). Another equitable doctrine—equitable tolling—has been applied to excuse the otherwise untimely initiation of administrative proceedings. This article reviews the application of equitable tolling in appellate decisions, and discusses that application in light of recent revisions to administrative statutes and rules.

Doctrine of Equitable Tolling

One definition of “equitable tolling” is: “The doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until the limitations period had expired. Equitable tolling does not require misconduct by the defendant.” Black’s Law Dictionary, 7th Ed., p. 560.2

In Florida jurisprudence the doctrine “focuses on the plaintiff’s excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.” Machules v. Department of Administration, 523 So. 2d 1132, 1133–1134 (Fla. 1988) ( citing Cocke v. Merrill Lynch & Co., Inc., 817 F.2d 1559, 1561 (11th Cir. 1987)). In Machules, the court observed: “Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Id. at 1134.

Equitable Tolling in Florida Administrative Proceedings

The genesis of equitable tolling in Florida administrative law can be traced to Machules v. Department of Administration, 502 So. 2d 437 (Fla. 1st DCA 1986), quashed, 523 So. 2d 1132 (Fla. 1988).

In 1985, the Department of Insurance noticed employee Machules’ termination and provided him 21 days to file a petition for hearing with the Administration Commission under Fla. Admin. Code R. 22A-7.10(2). Instead of requesting a hearing, Machules initially sought relief through his union’s grievance procedure before the Department of Insurance.

After the Department of Insurance rejected the grievance as inappropriate, Machules’ union requested the Administration Commission to toll the time that had been expended on the grievance. The Administration Commission entered an order rejecting the union’s request and stating an intent to enter an order dismissing Machules’ petition as untimely. The Administration Commission denied reconsideration of this order and entered a final order dismissing the appeal.

With Judge Zehmer dissenting, the district court affirmed the final order and certified the following question to the Florida Supreme Court as one of great public importance:

May the tolling doctrine espoused in federal administrative law decisions be applied to toll the time for seeking review with the Department of Administration without being in conflict with the decision in Hadley v. Department of Administration, 411 So. 2d 184 (Fla. 1982), and other decisions upholding the validity of the presumption of abandonment and 20 day time requirement in rule 22A-7.10(2)?

Machules v. Department of Administration, 502 So. 2d 437, 440 (Fla. 1st DCA 1986).

The Florida Supreme Court answered the certified question in the affirmative, referring favorably to Judge Zehmer’s dissent, and quashed the decision of the district court. Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988) (hereinafter Machules).

The court crafted Florida’s doctrine of equitable tolling out of the whole cloth of federal jurisprudence. Id. at 1134. The court concluded that “equity requires relief from the twenty-one day appeal period in this case.. . . ” Id. at 1137.

Post-Machules Equitable Tolling Decisions

In Stewart v. Department of Corrections, 561 So. 2d 15 (Fla. 4th DCA 1990), the court reversed a Public Employees Relations Commission (PERC) order dismissing an employee’s appeal of his termination that was filed by his attorney one day late. The court, citing Machules, stated that neither party alleged that the late filing caused the agency prejudice and that “reasonably prudent regard for appellant’s rights dictates that the doctrine. . . be applied.” Id. at 16.

In Castillo v. Department of Admin., Div. of Retirement, 593 So. 2d 1116 (Fla. 2d DCA 1992), the court reversed an order that had dismissed as untimely a petition for hearing. The petitioner’s attorney provided an affidavit stating that an agency employee verbally informed him that the petition only needed to be mailed within 21 days, not filed. The court cited Machules and remanded the matter for equitable considerations related to the “not jurisdictional” 21-day period for challenging agency action. Id. at 1117.

In Environmental Resource Associates of Florida, Inc. v. State, Dept. of General Services, 624 So. 2d 330 (Fla. 1st DCA 1993), the court declined to reverse a final order denying a hearing. The court held that the circumstances did not meet the Machules criteria for equitable tolling of the late-filed petition challenging a contract termination. The petition was mailed on the 21st day, but not received by the agency until four days later.

Judge Ervin wrote an opinion concurring in result only favoring application of the “clear point of entry” jurisprudence first articulated in Capeletti Brothers v. Department of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1374 (Fla. 1979), and the plain meaning of the term “filed” as contrasted with “served.”

Judge Zehmer dissented, stating that the 21-day period was not jurisdictional and that only a rebuttable presumption of waiver was created by the failure to timely file a petition. He stated that the doctrine of equitable tolling was clearly applicable and did not find any basis to distinguish Stewart v. Department of Corrections, 561 So. 2d 15 (Fla. 4th DCA 1990), from the case. He disputed whether the majority’s “rigid adherence to procedure accomplishes justice in this case. . . . ” Environmental Resource Associates of Florida, Inc., 624 So. 2d at 332–333.

In Abusalameh v. Department of Business Regulation, 627 So. 2d 560 (Fla. 4th DCA 1993), the court reversed and remanded a final order revoking an alcoholic beverage license. The court applied equitable tolling citing confusion regarding scheduling of a hearing. The licensee’s counsel received an order to show cause and invitation to an informal conference. He responded with a letter requesting a continuance, followed by telephonic confirmation that the conference had been canceled. Three months later and without further proceedings, the final order was entered.

In Phillip v. University of Florida, 680 So. 2d 508 (Fla. 1st DCA 1996), the court set aside and remanded a final order that denied a petition for hearing on Phillip’s employment termination. The former employee submitted an affidavit that alleged facts to excuse the untimely petition. The court cited Machules as a basis to remand the matter for an evidentiary hearing to determine whether the petitioner’s untimely filing should be excused.

In Vantage Healthcare Corp. v. Agency for Health Care Admin., 687 So. 2d 306 (Fla. 1st DCA 1997), the court rejected an expansion of the equitable tolling doctrine to the certificate of need application process. The agency had considered notices of intent received one-day late, but which had been timely furnished to Airborne Express for overnight delivery. The court distinguished the application process from quasi-judicial proceedings in which equitable tolling had been applied and further noted that the agency’s rules precluded an exercise of equitable discretion to allow late-filed letters of intent. Id. at 308.

In Haynes v. Public Employees Relations Com’n, 694 So. 2d 821 (Fla. 4th DCA 1997), the court determined that PERC should conduct a hearing to determine if facts existed to warrant application of equitable tolling. A state employee appealed his termination to PERC, but withdrew his appeal to pursue a union grievance instead. PERC entered a final order dismissing the appeal that provided a notice of rights to reconsideration or appeal. Well after the reconsideration deadline, Haynes asked PERC to reopen the matter, stating that he had been misled by a union representative into dropping his appeal.

1996 Administrative Procedure Act

On October 1, 1996, substantial revisions to the Administrative Procedure Act (APA) became effective. 1996 Fla. Laws ch. 159 (1996). The APA is the foundation for formal citizen participation in agency decisionmaking that affects specific persons (e.g., decisions which affect substantial interests, declaratory statements, waivers, variances, agency investigations), as well as agency action that affects the public generally (e.g., rulemaking). The APA also provides the foundation for judicial review of agency action (or inaction). F.S. §120.68 (1999).

In Life Care Centers v. Sawgrass Care Center, 683 So. 2d 609 (Fla. 1st DCA 1996), the court addressed whether the APA amendments applied to pending administrative proceedings. Specifically at issue was the requirement of the Division of Administrative Hearings to issue a recommended order that ruled individually on each proposed finding of fact. F.S. §120.59(2) (1995). The repeal of F.S. §120.59(2) eliminated that requirement, and the court applied the revised statute to the pending proceeding. Id. at 612–614.

The court stated that it would have preferred for the legislature to have retained §120.59(2) in order to facilitate judicial review, but recognized the legislature’s power to regulate administrative procedure. Id. at 614. “Procedure within administrative agencies is subject to statutory regulation.” Id. at 612 (citing Gator Freightways, Inc. v. Mayo, 328 So. 2d 444, 446 (Fla. 1976)).

Two aspects of the revised APA merit special consideration with respect to the doctrine of equitable tolling. Most notably, F.S. §120.569(2)(c) (1999) provides in relevant part: “A petition shall be dismissed if it is not in substantial compliance with these requirements [items required by the uniform rules adopted pursuant to Section 120.54(5)(b)4] or it has been untimely filed.” (emphasis supplied)

This requirement is in contrast with the former F.S. §120.57 (1995), which contained no provision mandating that an untimely petition result in dismissal of the proceeding. No other provision in the former act mandated dismissal of untimely petitions, either.

The revised APA also mandates uniformity in agency procedures. The Administration Commission was directed to adopt uniform rules of procedure. F.S. §120.54(5) (1999). “On filing with the department [of State], the uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception. . . . ” Among the uniform rule requirements were “uniform rules for the filing of petitions for administrative hearings pursuant to s.120.569 or 120.57.” F.S. §120.54(5)(b)4 (1999).

Uniform Rules of Procedure

The Administration Commission adopted Fla. Admin. Code ch. 28-106 as the uniform rules governing “Decisions Determining Substantial Interests.” Fla. Admin. Code R. 28-106.111, “Point of Entry into Proceedings and Mediation” provides in part:

(2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.

* * *

(4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters

Notwithstanding the plain language of F.S. §120.569(1)(c) and Fla. Admin. Code R. 28-106.111 (4), the doctrine of equitable tolling has been applied to excuse untimely petitions for hearing.

In Avante, Inc. v. Agency for Health Care Admin., 722 So. 2d 965 (Fla. 1st DCA 1998), the court reversed a final order that dismissed an untimely petition. The court remanded the matter for an evidentiary hearing “on whether equitable tolling operates to excuse the late filing of the petition,” citing Machules v. Dep’t of Admin., 523 So. 2d 1132 (Fla. 1988), and Unimed Laboratory, Inc. v. Agency for Health Care Admin., 715 So. 2d 1036 (Fla. 3d DCA 1998).3 Moreover, the court stated that a hearing must be provided if the facts demonstrated equitable tolling, citing F.S. §120.68(7)(a) (1997) and the two cases noted above.

Mathis v. Florida Department of Corrections, 726 So. 2d 389 (Fla. 1st DCA 1999), presents an interesting juxtaposition of statutory constraints on agency discretion and equitable tolling. An employee petitioned PERC to issue a computation of back pay. PERC denied the petition solely because it was filed after the deadline established in an earlier order. The court reversed and remanded the matter to PERC, citing the lack of statutory or rule authority for PERC’s action.

The court noted that Mathis did not fail to respond to an order to show cause or fail to act within a time prescribed by statute or rule. Id. at 391. The court contrasted equitable tolling cases with “clear point of entry” cases, placing particular emphasis on the fact that “Mr. Mathis sought closure, not a point of entry.” Id. at 392. In a footnote to that quote, the court observed:

Time limits for initiating administrative adjudicatory proceedings are strictly observed in order to give what would otherwise be tentative or “free form” administrative decisions finality. [citations omitted]. These considerations do not come into play here, however, where an administrative adjudicatory proceeding had already begun.

Id. at footnote 7.
In Perdue v. TJ Palm Associates, Ltd., 24 Fla. L. Weekly D1399 (Fla. 4th DCA June 16, 1999), the court refused to overturn a final order that was issued based upon an administrative law judge’s recommended order of dismissal. The order contained findings of fact and conclusions of law that rejected a claim of equitable tolling. The court found that competent, substantial evidence supported the pertinent findings and affirmed the final order.


Despite the legislature’s exercise of its sole power to establish agency procedures and clear expressions from both the legislature and the Administration Commission that untimely petitions for hearing should not be considered, judicial application of equitable principles may result in opportunities to challenge agency action. Equitable tolling may excuse an untimely petition. Undoubtedly, equity has other administrative law manifestations that deserve consideration under the revised Administrative Procedure Act. q

1 Equitable tolling is considered in recommended orders and final orders also. E.g., Worldwide Investment Group, Inc. v. State, Department of Environmental Protection, 20 F.A.L.R. 3965-A (Fla. Dept. of Envir. Protection 1998); Hall v. Boeing Aerospace Operation, 20 F.A.L.R. 2594-A (Fla. Comm. on Human Relations 1997); C.P.M. v. Department of Children & Families, 19 F.A.L.R. 3304-A (Fla. Dept. Children & Families 1997).
2 This definition differs substantially from the usage in Armbrister v. Roland Inter. Corp., 667 F. Supp. 802, 810 (M.D. Fla. 1987).
3 Actually, Uimed Laboratory, Inc. v. Agency for Health Care Admin., 715 So. 2d 1036 (Fla. 3d D.C.A. 1998), involved a remand of a final order dismissing a petition for an evidentiary hearing to consider whether a factual basis for “excusable neglect” existed to excuse the late filing.

Ross Stafford Burnamanis an attorney with the Florida Department of Community Affairs. He received a B.A. in political science/environmental studies from New College, and a J.D. from Florida State University. He has represented a variety of state agencies and other clients in administrative proceedings. Shaw Stiller’s editorial assistance is gratefully acknowledged.
This column is submitted on behalf of the Administrative Law Section, Dan R. Stengle, chair, and Robert C. Downie II, editor.

Administrative Law