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Forum Selection in Administrative Appeals and the “Home Venue Privilege”

Appellate Practice

Occasionally, appellate lawyers are confronted with the question of in which district court of appeal (DCA) to initiate an appeal or they find themselves in a particular DCA defending an appeal that may not be their choice of forum. For example, the St. Johns River Water Management District maintains its headquarters in Putnam County within the Fifth District Court of Appeal, but its regulatory jurisdiction includes counties within the Fifth and the First district courts of appeal.[1] Similarly, the Southwest Florida Water Management District maintains its headquarters in Hernando County within the Fifth District, but its regulatory jurisdiction includes the Second District Court of Appeal, the Fifth District, and a tiny incursion into the First District Court of Appeal.[2] The question arises where may an appeal be taken from a final order of one of these administrative agencies. That same question arises in a more complex way when the agency has statewide jurisdiction but the decision deals with an action in which both the subject matter and the materially affected party’s residence is in a county other than Leon County. The inclination may be to defer to the First District to resolve the controversy. In most cases, the choice of initiating appellate review in the First District or in the district where the agency maintains its headquarters may not be the only district available, and a more convenient forum may be available to an appellant.

The Fifth District Cases

In 2018, three appeals[3] were filed in the Fifth District in Daytona Beach against the Florida Housing Finance Corporation (FHFC) to review the agency’s decision regarding the funding for three projects. The FHFC maintains its headquarters in Leon County, within the First District’s jurisdiction.[4] The decisions being reviewed related to projects located within the Fifth District.[5] The appellants also had their principal place of business within the Fifth District.

The U.S. Treasury makes low-income (affordable) housing credits available to the states each year, which are administered by the FHFC (the program).[6] FHFC is a public corporation that was created by F.S. §420.504, and administers the housing credit program for the State of Florida within the meaning of I.R.C. §42(h)(7)(a), 26 U.S.C. §42(h)(7)(a). Participants in the program compete for funding by submitting applications in response to requests for application that are issued by FHFC for projects located within the various counties where funds are being made available.[7] Participants are usually commercial entities that have their principal places of businesses around the state in locations other than Leon County. When there are ties among several applicants having received the same competitive score, the competition is settled by the assignment of a random number to the applicants and the lowest lottery number prevails. Challenges are then often undertaken by unsuccessful candidates seeking to disqualify the candidates selected for funding.[8]

The three appeals to the Fifth District were from final orders entered by the FHFC from recommended orders issued by the Division of Administrative Hearings (DOAH) and each challenged the successful applicants receipt of funding by unsuccessful, but equally qualified, applicants.[9] Therefore, each is an administrative action appealed within purview of Fla. Const. art. 5, §4(b). Counsel for the unsuccessful applicants each elected to file its notice of appeal in the Fifth District because the projects and the unsuccessful developers were residents of counties within the Fifth District’s jurisdiction.[10] Two of the cases were consolidated since they arose from the same request for applications. The third case had come before the Fifth District previously on a successful challenge to the sufficiency of the petition for administrative review.[11]

In each case, the FHFC filed a “motion to transfer venue and supporting memorandum” seeking to have the Fifth District relinquish jurisdiction and transfer the matters to the First District for consideration.[12] FHFC based its memorandum on the principle that:

‘It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters. Smith v. Williams, 160 Fla. 580, 35 So. 2d 844 (Fla. 1948) and Ringling Bros Barnum and Bailey Combined Shows v. State, 295 So. 2d 314 (Fla. 1st DCA 1974). Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.’ Carlile v. Game and Fresh Water Fish Comm’n, 354 So. 2d 362, 363-364 (Fla. 1977); see also Fish and Wildlife Conservation Comm’n v. Wilkinson, 799 So. 2d 258, 260 (Fla. 2d DCA 2001).[13]

The FHFC likened the selection of venue in trial court proceedings to the selection of venue in appellate court proceedings. The appellants opposed the motions to transfer venue.[14] Appellants relied on provisions of the general law to determine the permissive and appropriate appellate forum authorized by statute.[15] The appellants argued that the FHFC has no statutory or legal right to a change of appellate forum, and the selection of the appropriate appellate forum is not a matter related to the circuit court procedural component of “venue,” which is a trial court selection issue.[16] The appellants further argued that there is no “common law” privilege to select a particular forum at the appellate level.[17] The appellants requested that the Fifth District deny the motions and not create an exception to F.S. §120.68(2)(a), that an agency as appellee may control forum selection on appeal.

Appellate Venue in Administrative Appeals

Statutory Forum Selection — The appropriate choice of the forum for the taking of an appeal of an administrative action is governed by the Florida Constitution and by statute. Fla. Const. art. 5 §4(b) provides: “(2) District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law.” Governing authority for the selection of the appropriate appellate forum is found in F.S. §120.68(2)(a), which provides in pertinent part: “Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”

The selection of appellate forum is a statutory right and not some common law privilege relied upon by an agency seeking a change of venue pursuant to “the home venue privilege.” The constitutional and statutory enactments control the district in which an appeal may be taken and not the common law. F.S. §2.01 provides that:

The common and statute laws of England which are of a general and not a local nature, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

The common law, therefore, is not applicable to the selection of appellate forums since common law privilege had been excepted by statutory enactment. Section 120.68(2)(a) does not address or create any exception for challenges arising from cases like those that were pending before the Fifth District, FHFC bid protest administrative challenges. Instead, the statute permits concurrent jurisdiction to each district court to review all administrative decisions affecting parties residing within their districts unless another statute specifically provides otherwise.[18]

The Home Venue Privilege — FHFC sought to apply the home venue privilege to the subject appeals advocating for “orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.”[19] Historically, the “home venue privilege” was based upon judicial economy (avoiding multiple litigations of the same issues) and for limiting possibly conflicting litigation at the trial level. In State, Department of Insurance v. Accelerated Benefits Corp., 817 So. 2d 1086, 1087 (Fla. 4th DCA 2002), the Fourth District Court of Appeal, referencing Smith v. Williams, 160 Fla. 580, 35 So. 2d 844 (Fla. 1948), explained:

Among the initial policy considerations for the home venue privilege were the maintenance of uniformity in the interpretation of rules and regulations by responsible state agencies as well as the prevention of conflicting judicial rulings which might occur while litigating these issues in different jurisdictions.[20]

The composition of the Florida court system has changed substantially since Smith was decided. In 1948, there was no DOAH, so suits (and not appeals) against state agencies could be brought in any one of the 67 counties.[21] To further complicate matters, in 1948, there were no district courts of appeal, so all appeals could only be taken to the Florida Supreme Court.[22] To minimize the resulting conflicting decisions of the circuit courts, the Supreme Court directed that the “home venue privilege” be adopted thereby concentrating suits against state agencies into one venue where their headquarters were located, minimizing the opportunities for competing circuit court decisions.[23] Clearly, the Supreme Court was looking for uniformity at the trial level — “which might (not) occur while litigating these issues in different jurisdictions.”[24] The need for that privilege at the administrative hearing level is no longer as relevant, if at all, since most litigation against state agencies is first brought to DOAH and there are intermediate appellate courts to share in the workload of the review of the resulting DOAH decisions.[25] Finally, there is also a limiting process for resolving any resulting conflicting decisions should such conflicts arise between the various district courts.[26]

The legislature enacted §120.68(2)(a) to provide for discretion in the selection of an appellate forum while reserving to itself the ability to designate the First District to be the home appellate forum for review of some agencies’ decisions.[27] This selection alternative would certainly be consistent with the concern the Florida Supreme Court voiced when all appeals were only directed to the Supreme Court to resolve. The legislature has since carved out two agencies as exceptions to this option for having administrative review where the appellant resides.[28] Absent any such legislatively created exception, there is no justification for extending a common law-like “home venue privilege” to the appellate level beyond its historical circuit court applicability.

Parties routinely select a district court other than the First District to seek review of an FHFC decision or in which the FHFC is a party appellee.[29] In fact, in an earlier appeal of Madison Highlands, LLC v. Florida Housing Finance Corporation, 220 So. 3d 467 (Fla. 5th DCA 2017), cert. denied, Case No. SC17-812 (Oct. 20, 2017), FHFC did not challenge appellants’ selection of the Fifth District for appellate review.[30] Instead, FHFC challenged the forum selection in the second appeal of that case contending that the transfer to the First District was now necessary to promote “orderly and uniform handling of state litigation” and “minimize expenditure of public funds and manpower.”[31] Continuation of appellate review of this case in the Fifth District, after the matter has already been before the Fifth District, would certainly be consistent with the principal of “orderly and uniform handling of state litigation”[32] championed by the FHFC. On balance, the discretionary invocation of home venue privilege will do more harm than the consistent application of the appropriate statutory venue provisions in these cases.

Other Arguments for Application of the Home Venue Privilege — FHFC argued that the Fifth District should apply the venue requirements for “supplementary proceedings” as supporting a home venue privilege at the appellate level.[33] FHFC contended that cases addressing “supplementary proceedings” are applicable to these appeals stating “venue in supplementary proceedings remains where venue began in the underlying action.”[34] However, FHFC failed to recognize that “supplementary proceedings” are defined by statute,[35] and are in fact further proceedings initiated in the same circuit court (and not appellate proceedings) to pursue the collection of judgments and do not relate to undertaking direct appeals of agency actions.[36] Therefore, reliance on rulings applicable to “supplementary proceedings” for purposes of venue is misplaced.

FHFC also cites on Pelican Bay Foundation, Inc. v. Florida Fish and Wildlife Conservation Commission, Case No. 2D18-0353, as authority for transferring the subject proceeding. The arguments raised by FHFC in the three proceedings before the Fifth District parallel and borrow extensively from the arguments raised by the Fish and Wildlife Commission (Fish and Wildlife) in Pelican Bay Foundation, Inc. v. Fla. Fish and Wildlife Conservation Comm’n, Case No. 2D18-0353. In that case, the appellant had challenged a rule of the DOAH in Leon County, and then subsequently filed an appeal with the Second District.[37] Fish and Wildlife requested a transfer of venue in its answer brief, based upon the home venue privilege.[38] The Second District denied the transfer because the request was included as part of the answer brief and invited Fish and Wildlife to file an appropriate motion. The court granted the motion after requesting and receiving a response from the appellant.[39]

We are left to speculate as to the basis in Pelican Bay for the transfer to the First District since the Second District’s order granting the transfer does not provide an opinion or the justification for the order;[40] however, every other case cited by FHFC, starting with Smith and up to but not including Pelican Bay, dealt with appellate review of changes in venue sought at the trial level.[41] Pelican Bay is at best anomalous. Additionally, the order in Pelican Bay was not precedent, which would control the Fifth District’s decisions, although it could apply in the Second District;[42] further, there is no opinion or written justification addressing why the Second District created an exception to the statute.[43]

FHFC nonetheless relied upon the judicially created exception for a “rule challenge” in Pelican Bay to urge the district court to create an exception for the “interpretation of a rule definition.”[44] FHFC argued that only the First District should have the authority to interpret rules since it might have statewide implications.[45] The same justification for the forum preference of the First District could be applied for any district court’s decision interpreting any administrative statute, rule, or providing a legal conclusion since most would have state-wide implications.

The Resolution

The Fifth District entered an order to show cause to the appellants.[46] On December 11, 2018, after appellants prepared ostensibly the same response in all three cases, the Fifth District denied the motions to transfer venue without opinion.[47] The take away from all of this points to the simple fact that the manifest weight of authority rests with the conclusion that the “home venue privilege” does not apply at the appellate level and Pelican Bay appears to be an aberration. One can only conclude that forum selection at the appellate level is the prerogative of the appellant, and that the appellant may choose to have its administrative order reviewed in the appellate forum where it resides or where the agency has its headquarters absent an express statutory pronouncement directing appellate review to the First District.

[1] See St. Johns River Water Management Dist., Statement of Agency Organization and Operation; see also Fla. Stat. §373.069(2)(c); Office of the State Courts Administrator, Florida Courts Jurisdiction Map, available at https://www.flcourts.org/content/download/216618/file/map_jud-circ.pdf.

[2] Florida Dep’t of Environ. Protection, Water Management Districts, https://floridadep.gov/water-policy/water-policy/content/water-management-districts; see also Fla. Stat. §373.069(2)(c), Office of the State Courts Administrator, Florida Courts Jurisdiction Map.

[3] Madison Highlands, LLC, et al. v. Fla. Housing Finance Corp, etc., Case No. 5D18-2420, FHFC Case No. 2016-006BP; Madison Oaks, LLC, et al. v. Fla. Housing Finance Corp. Case No. 5D18-3035, FHFC Case No. 2018-039BP; and, Sterling Terrace, Ltd. et al. v. Fla. Housing Finance Corp., Case No. 5D18-3061, FHFC Case No. 2018-040BP.

[4] Florida Housing Finance Corp., About Florida Housing, https://www.floridahousing.org/about-florida-housing/; Office of the State Courts Administrator, Florida Courts Jurisdiction Map.

[5] Madison Highlands, LLC, Case No. 5D18-2420, FHFC Case No. 2016-006BP; Madison Oaks, LLC, et al. v. Fla. Housing Finance Corp. Case No. 5D18-3035, FHFC Case No. 2018-039BP; and Sterling Terrace, Ltd. et al. v. Fla. Housing Finance Corp., Case No. 5D18-3061, FHFC Case No. 2018-040BP; Office of the State Courts Administrator, Florida Courts Jurisdiction Map.

[6] See Fla. Stat. §§420.507(48) and 420.5099; F.A.C. Chs. 67-48 and 67-60; see also 26 U.S.C. §42.

[7] See Fla. Stat. §420.507(48); F.A.C. Chs. 67-48 and 67-60.

[8] Florida Housing Finance Corporation, Bid Protests, https://www.floridahousing.org/legal/legal-proceedings/bid-protests; see also Fla. Stat. §120.57(3).

[9] See notes 1 and 3.

[10] Id.

[11] Madison Highlands, LLC v. Fla. Housing Finance Corp. 220 So. 3d 467 (Fla. 5th DCA 2017), cert. denied, Case No. SC17-812 (Oct. 20, 2017).

[12] FHFC’s motion to transfer; see note 3.

[13] Id.

[14] See note 3.

[15] Id.

[16] Fla. State Lottery v. Woodfin, 871 So. 2d 931, 932-33 (Fla. 5th DCA 2004) (venue is a trial court selection issue determined by the facts at the time the complaint is filed). “Venue” is defined as a forum selection clause to choose the geographic location where the trial will occur. Black’s Law Dictionary. Issues at the appellate level directed toward “venue” are reviews of forum determinations undertaken at the trial level and not appellate forum selection. See generally Fla. R. App. P. 9.040, 9.130, & 9.180.

[17] See note 3.

[18] Fla. Stat. §120.68(2)(b) recognizes the availability of all district courts for appellate review and provides for transfers when the jurisdiction is exercised in different courts by multiple parties to the same litigation. “When proceedings under this chapter are consolidated for final hearing and the parties to the consolidated proceeding seek review of final or interlocutory orders in more than one district court of appeal, the courts of appeal are authorized to transfer and consolidate the review proceedings.” Id.

[19] Smith v. Williams, 160 Fla. 580, 35 So. 2d 844 (Fla. 1948).

[20] State, Dep’t of Ins. v. Accelerated Benefits Corp., 817 So. 2d at 1087.

[21] The Department of Administrative Hearings was created in 1975.

[22] Three district courts of appeal were first established by Fla. Const. art. V in 1956: the First District in Tallahassee, the Second District in Lakeland; and the Third District with jurisdiction over Dade County and Miami.

[23] Carlile v. Game & Freshwater Fish Comm’n, 354 So. 2d 362 (Fla. 1977); Fla. Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So. 2d 1278 (Fla. 2004).

[24] State, Dep’t of Ins. v. Accelerated Benefits Corp., 817 So. 2d at 1087.

[25] For those cases not originating with DOAH that are initiated against state agencies in a circuit court, some with express venue statutes have also been found to be permissive in jurisdictions other than Leon County. Fla. State Lottery, 871 So. 2d at 931.

[26] See Fla. Rul. App. P. 9.120.

[27] Fla. Stat. §120.68 was first enacted in 1974.

[28] See, e.g., Fla. Stat. §440.271 (“Review of any order of a judge of compensation claims entered pursuant to this chapter shall be by appeal to the District Court of Appeal, First District.”); Fla. Stat. §350.128(1) (“As authorized by s. 3(b)(2), Art. V of the State Constitution, the Supreme Court shall, upon petition, review any action of the commission relating to rates or service of utilities providing electric, gas, or telephone service. The District Court of Appeal, First District, shall, upon petition, review any other action of the commission.”).

[29] Shelton v. SunTrust Bank and Fla. Housing Finance Corp., 238 So. 3d 772 (Fla. 2d DCA 2017); Pinnacle Housing Group, LLC v. Fla. Housing Finance Corp., 239 So. 3d 722 (Fla. 3d DCA 2017); Green v. CitiMortgage, Inc. and Fla. Housing Finance Corporation, 225 So. 3d 825 (Fla. 4th DCA 2017); Browder v. Green Tree Servicing, LLC, 216 So. 3d 638 (Fla. 5th DCA 2016).

[30] The author’s firm represented Madison Highlands.

[31] FHFC’s Motion to Transfer in Madison Highlands, LLC, et al., Case No. 5D18-2420, FHFC Case No. 2016-006BP.

[32] FHFC’s Motion to Transfer at 2; Madison Highlands, LLC, et al., Case No. 5D18-2420, FHFC Case No. 2016-006BP.

[33] FHFC’s Motion to Transfer in Madison Highlands, LLC, et al., Case No. 5D18-2420, FHFC Case No. 2016-006BP.

[34] FHFC’s Motion to Transfer; see State, Dep’t of Ins. v. Accelerated Benefits Corp., 817 So. 2d at 1088.

[35] Fla. Stat. §56.29.

[36] Rosenfeld v. TPI Intern. Airways, 630 So. 2d 1167 (Fla. 4th DCA 1993) (“Supplementary proceedings under the statute are proceedings subsequent to judgment to aid a judgment creditor in collecting his judgment against the judgment debtor.”).

[37] Pelican Bay Foundation, Inc. v. Fla. Fish and Wildlife Conservation Comm’n, DOAH Case No. 17-002570RP; Pelican Bay Foundation, Inc. v. Fla. Fish and Wildlife Conservation Comm’n, Case No. 2D18-0353.

[38] Fish and Wildlife’s answer brief in Pelican Bay Foundation, Case No. 2D18-0353.

[39] Pelican Bay Foundation, Inc., 2D18-00353, order dated Nov. 9, 2018.

[40] Id. “Appellee Fish and Wildlife Conservation Commission’s motion to transfer venue and memorandum of law is granted. This case is transferred to the First District Court of Appeal. The oral argument currently scheduled for Nov. 13, 2018, is canceled.”

[41] Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314, 322-23 (Fla. 1st DCA 1974) (waiver of the privilege upon filing a motion to change the venue from Leon County to Sarasota County); Carlile v. Game and Fresh Water Fish Comm’n, 354 So. 2d 362 (Fla. 1977) (whether the sword-wielder exception to the choice of venue applied at trial level); Fish and Wildlife Conservation Comm’n v. Wilkinson, 799 So. 2d 258 (Fla. 2d DCA 2001) (whether facts are sufficient to satisfy the “official action” element of the sword-wielder exception at trial).

[42] Miller v. State, 980 So. 2d 1092, 1094 (Fla. 2d DCA 2008) (the district courts of appeal in Florida are intended to be courts of final appellate jurisdiction, the opinion of a district court is binding on all trial courts in the state) (citing Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992)).

[43] Friends of Everglades, Inc. v. Bd. of Cnty. Comm’rs of Monroe Cnty., 456 So. 2d 904, 908 (Fla. 1st DCA 1984) (where there is an express statutory grant of authority, the district court refuses to create any judicial exception where none was intended).

[44] FHFC’s motion to transfer at 6, Madison Highlands, LLC, Case No. 5D18-2420, FHFC Case No. 2016-006BP.

[45] Id.

[46] “Ordered that Appellants shall, within ten (10) days of the date hereof, file a Response to Appellee’s ‘Amended Motion to Transfer Venue…,’ filed November 20, 2018.”

[47] “December 11, 2018 by order of the court: ordered that Appellee’s Amended Motion to Transfer Venue, filed November 20, 2018, is denied.”

William BilenkyWilliam S. Bilenky earned a B.S. in engineering from Cornell University, an M.B.A. from Florida State University, and a J.D. from the University of Florida College of Law. He has served as general counsel for the Florida Public Service Commission; consumer counsel for the Commonwealth of Virginia; and general counsel for the Southwest Florida Water Management District. He has been associated with the law firm of Manson, Bolves, Donaldson and Varn since 2012.

This column is submitted on behalf of the Appellate Practice Section, Christopher Dale Donovan, chair, and Heather Kolinsky, editor.


Appellate Practice