Petitions for Review: Getting the Final Word on Nonfinal Agency Action
In Agency for Health Care Administration v. Murciano, 163 So. 3d 662 (Fla. 1st DCA 2015), the Agency for Health Care Administration (AHCA) and an administrative law judge (ALJ) disagreed over whether the ALJ had to make certain findings of fact given the circumstances of that particular case. After the ALJ declined a second order of remand from AHCA, the agency filed a petition for writ of mandamus with the First District Court of Appeal. Rather than entertaining AHCA’s mandamus petition and evaluating whether the ALJ had a ministerial duty to make the findings of fact at issue, the court initially determined that it would have been more appropriate for AHCA to have sought judicial review via a petition for review of nonfinal agency action.1 Ultimately, the court ruled that the ALJ “departed from the essential requirements of the law in declining AHCA’s second request to make” the factual findings at issue.2
Murciano is an example of how administrative law practitioners can use a petition for review to challenge nonfinal orders entered by agencies and ALJs. However, prospective petitioners and respondents must be aware of the substantial differences between seeking judicial review of a nonfinal order and the typical direct or plenary appeal. Those differences may significantly influence the decision to seek judicial review, and they will most certainly impact a petitioner’s likelihood of success.
Petition for Review of Nonfinal Agency Action Functions Like a Petition for Writ of Certiorari
When discussing petitions for review of nonfinal agency action with my colleagues, I often refer to them as administrative law’s version of a petition for writ of certiorari. That is because such petitions are the means by which a party can seek judicial review of nonfinal orders entered by agencies and ALJs from the Division of Administrative Hearings.3 My characterization is also appropriate because petitions for review are governed by the same procedural rules that apply to certiorari petitions.4 In fact, the committee notes to Fla. R. App. P. 9.100 indicate that the rule “provides the procedures necessary to implement” F.S. §120.68(1).
Accordingly, a proceeding to review nonfinal agency action is an original proceeding that is commenced by filing a petition (along with the applicable filing fee) with the district court of appeal having jurisdiction.5 As is the case with notices of appeal in direct or plenary appeals, a petition for review must be filed with the appellate court having jurisdiction over “the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.”6
Rule 9.100(b)(1) sets forth additional requirements that apply to petitions for review. For instance, “all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents.” Also, while the agency official or ALJ responsible for the nonfinal order at issue shall not be named as a respondent, Rule 9.100(b)(3) requires that he or she be served with a copy of the petition for review. Furthermore, and perhaps most importantly, a petition for review “shall be filed within 30 days of rendition of the order to be reviewed.”7
As for a petition for review’s format, Rule 9.100(g) mandates that the petition “shall not” exceed 50 pages in length and shall contain 1) the basis for invoking the appellate court’s original jurisdiction; 2) the facts on which the petitioner relies; 3) the nature of the relief sought; and 4) argument with appropriate citations to authority. In addition, the petition for review must be accompanied by an appendix conforming to Rule 9.220.8 That appendix serves as “the record” for the original proceeding and should contain everything necessary to describe the relevant aspects of what transpired below and to demonstrate that the petitioner is entitled to relief.9
If a petition for review appears to be facially meritorious, then a district court of appeal will issue an order requiring the respondent to explain why the petitioner is not entitled to relief.10 The district court of appeal’s order will establish a time by which the response must be filed, and the response is limited to 50 pages. If the petitioner’s appendix does not include documents that a respondent wants to cite in its response, then the respondent has the option of submitting its own appendix.11 Following the response, a petitioner has 20 days to serve a reply, limited to 15 pages, along with a supplemental appendix. However, submission of a reply is strictly optional.12
A District Court of Appeal Is Not Bound by How an Attorney Characterizes a Petition
Like AHCA in Murciano, a practitioner could encounter a situation in which it is unclear whether a petition for review or a petition for an extraordinary writ (such as mandamus or prohibition) is the appropriate means of seeking relief. Fortunately, a district court of appeal has the ability (but not the obligation) to treat a petition as if the correct remedy is being sought.13 Furthermore, a district court of appeal can even treat a notice of appeal as a petition for review if a party erroneously seeks a direct or plenary appeal of a nonfinal order.14
Accordingly, there are no adverse consequences if a party files a petition for review when a petition for mandamus or prohibition would have been the appropriate remedy. Likewise and as was the case for AHCA in Murciano, there are no adverse consequences if a party files a petition for an extraordinary writ when a petition for review would have been more appropriate. However, a party could lose any ability to seek judicial review by waiting more than 30 days after rendition of a nonfinal order to seek a writ of mandamus or prohibition when a petition for review was the appropriate remedy. While there are no strict deadlines for seeking relief via an extraordinary writ, a petition for review must be filed within 30 days following the nonfinal order’s rendition.15
Appellate Courts Evaluate Petitions for Review Under the Same Standard Applied to Certiorari Petitions
In addition to the procedural similarities discussed above, it is well-established that a petition for review (just like a certiorari petition) must demonstrate that the petitioner will suffer harm that cannot be remedied via a plenary appeal. As stated by the First District Court of Appeal in Holmes Regional Medical Center, Inc. v. AHCA, 731 So. 2d 51, 53 (Fla. 1st DCA 1999), “[s]ection 120.68(1) creates a narrow exception to the general rule that appellate review must await rendition of the final order. Interlocutory review is not available as a matter of course in an administrative proceeding merely because the parties wish to resolve an important issue before the final hearing. Rather, the opportunity to review a nonfinal order exists only in those cases in which the court must address an issue immediately to protect a substantial right that would be lost in the interim.”16
Petitions for review are often used to challenge nonfinal orders compelling discovery of privileged or confidential information, and district courts of appeal will grant the petitions if the petitioners will suffer harm that cannot be remedied through an appeal of a final agency order.17 Nevertheless, a party can use a petition for review to challenge nonfinal orders that do not pertain to discovery.18 In fact, a party seeking judicial review of an emergency suspension order must utilize a petition for review.19
Petition for Review Must Show the Nonfinal Order Departed from the Essential Requirements of the Law
As the First District Court of Appeal noted in Murciano, a party seeking relief via a petition for review (just like a petitioner seeking relief via certiorari) must also demonstrate that the nonfinal order at issue departed from the essential requirements of the law.20 This point is very significant because even many experienced practitioners fail to appreciate that a departure from the essential requirements of the law is much more than a simple legal error that an appellant must establish in order to prevail in a direct or plenary appeal.21 In other words, a district court of appeal will not grant relief simply because a lower tribunal erred. Instead, the appellate court will only grant a petition for review if the error is sufficiently egregious to constitute a departure from the essential requirements of the law.22
Therefore, a party aggrieved by an agency’s or administrative law judge’s nonfinal order should realize that an error that would result in a reversal via a direct or plenary appeal may not result in reversal if review is sought via a petition for review.23 Unfortunately, there are no hard and fast rules about what amounts to a departure from the essential requirements of the law.24
In my opinion, any violation of a “clearly established” or “black letter” principle of law amounts to a departure from the essential requirements of the law and is potentially subject to judicial review via a petition for review. For example, the issue in Murciano concerned whether the ALJ had to make findings of fact given the circumstances of that particular case. The First District Court of Appeal ultimately held that the ALJ’s refusal to make factual findings was contrary to F.S. §120.57(1)(k) and a long line of cases holding that due process requires that every final order entered by an agency acting in its quasi-judicial capacity must contain specific findings of fact.25 Therefore, if reasonable people could disagree over whether a lower tribunal erred, then there probably was no departure from the essential requirements of the law.26 Also, a lower tribunal’s consideration of a question of first impression is unlikely to be considered a departure from the essential requirements of the law.27
In evaluating whether a nonfinal order by an agency or an ALJ departed from the essential requirements of the law, cases involving petitions for certiorari are instructive because they are also judged by that standard.28
Agencies Face Uncertainty Regarding the Means of Challenging Recommended Orders.
If an ALJ issues a nonfinal order requiring an agency to disclose privileged information, then the agency can certainly seek judicial review via a petition for review. As illustrated by Murciano, that principle also applies to any other nonfinal order issued by an ALJ when the ruling departs from the essential requirements of the law and the alleged harm is irreparable and cannot be remedied via a direct appeal. However, what is an agency’s method of relief if it is aggrieved by a conclusion of law within an ALJ’s recommended order that is outside the agency’s substantive jurisdiction? The Administrative Procedure Act prohibits agencies from rejecting such conclusions of law.29
That was the situation facing the Board of Dentistry in Barfield v. Dep’t of Health, 805 So. 2d 1008 (Fla. 1st DCA 2002). The appellant was a licensed dentist in California and Georgia who applied to the Board of Dentistry for a Florida license.30 However, the board denied the application after the appellant failed the clinical portion of the Florida dental license examination.31 The appellant challenged the denial, and the board referred the case to DOAH for a formal administrative hearing.32 The ALJ ultimately issued a recommended order containing a conclusion of law that the grading sheets from the appellant’s failed examination were hearsay that would not support a finding of fact as to what happened during the examination.33 The Department of Health filed exceptions and argued that the grading sheets were admissible under the public records exception to the hearsay rule.34 The board then issued a final order deeming the grading sheets to be admissible under the business or public records exceptions to the hearsay rule and concluding that the ALJ erred by excluding them from evidence.35 The appellant appealed to the First District Court of Appeal and argued that the board had no substantive jurisdiction over evidentiary matters.36 The appellate court agreed with the appellant but ultimately held that the grading sheets were admissible under the business records exception and that the appellant’s application should be denied.37
In dicta, the majority opinion in Barfield acknowledged that the decision leaves agencies with uncertainty over how to seek judicial review of ALJ’s conclusions of law that are outside an agency’s substantive jurisdiction. The court proposed that an agency could enter a “final order under protest” and then appeal “from its own order as a party adversely affected….”38 The court also proposed that an agency could utilize a petition for review.39 Implicit in that proposal is the proposition that the agency faces irreparable harm because it cannot use its final order to reject a conclusion of law outside its substantive jurisdiction. Even though the Barfield majority opinion asked the Florida Legislature to adopt a specific appellate remedy for an agency that considers itself aggrieved by an ALJ’s conclusion of law over which the agency lacks substantive jurisdiction, the legislature has yet to act on that request.40
Just as AHCA did in Murciano, an administrative law practitioner can use a petition for review to challenge a nonfinal order issued by an agency or an administrative law judge. However, in deciding whether to use this tool, practitioners must take into account the very high standard applied to such petitions by district courts of appeal. As for a party having to respond to a petition for review, it is absolutely critical to utilize that standard by emphasizing the petition must demonstrate not only that the lower tribunal erred, but that its ruling departed from the essential requirements of the law in a way that is irremediable on appeal from the subsequent final order.
1 Murciano, 163 So. 3d at 664.
2 Id. at 665.
3 See Fla. Stat. §120.68(1) (2015) (“A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”).
4 Fla. R. App. P. 9.190(b)(2) (“Review of non-final agency action under the Administrative Procedure Act, including non-final action by an administrative law judge, and agency orders entered pursuant to [§]120.60(6), Florida Statutes, shall be commenced by filing a petition for review in accordance with rules 9.100(b) and (c).”).
5 Fla. R. App. P. 9.100(b) (“The original jurisdiction of the court shall be invoked by filing a petition, accompanied by any filing fees prescribed by law, with the clerk of the court having jurisdiction.”).
6 Fla. Stat. §120.68(2)(a) (2015). Unlike a direct or plenary appeal, which seeks judicial review of a final order and is commenced by filing a notice of appeal invoking a court’s appellate jurisdiction, the filing of a petition for review of nonfinal agency action initiates an original proceeding in an appellate court in the same manner as a petition for a writ of mandamus, prohibition, quo warranto, certiorari, or habeas corpus. Many practitioners incorrectly refer to original proceedings as “appeals.” But, original proceedings and plenary appeals invoke different aspects of an appellate court’s jurisdiction and are governed by different procedural rules.
7 Fla. R. App. P. 9.100(c)(3). See also Blu-Med Response Sys. v. Dep’t of Health, 993 So. 2d 150 (Fla. 1st DCA 2008) (“To the extent Blu-Med petitions for review of nonfinal agency action, its petition was not filed within 30 days of rendition of the orders of September 5 and 6, 2008, and therefore this court’s jurisdiction was not timely invoked.”); Krumm v. Dep’t of Health, 764 So. 2d 929 (Fla. 1st DCA 2000) (dismissing due to a lack of jurisdiction because the petition seeking judicial review of an emergency suspension order was filed 33 days after the emergency order’s rendition).
8 Fla. R. App. P. 9.100(g).
9 Id. (“If the petition seeks an order directed to a lower tribunal, the petition shall be accompanied by an appendix as prescribed by Rule 9.220, and the petition shall contain references to the appropriate pages of the supporting appendix.”); Fla. R. App. P. 9.100(i) (provides that the lower tribunal shall not transmit a record unless ordered to by the district court of appeal).
10 Fla. R. App. P. 9.100(h) (“If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, or that review of final administrative action would not provide an adequate remedy, the court may issue an order” requiring the respondent to explain why relief should not be granted.).
11 Fla. R. App. P. 9.100(j) (“Within the time set by the court, the respondent may serve a response, which shall not exceed 50 pages in length and which shall include argument in support of the response, appropriate citations of authority, and references to the appropriate pages of the supporting appendices.”).
12 Fla. R. App. P. 9.100(k) (“Within 20 days [following a response] or such other time set by the court, the petitioner may serve a reply, which shall not exceed 15 pages in length, and supplemental appendix.”).
13 Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”).
14 See Wade v. Dep’t of Children & Families, 57 So. 3d 869, n.2 (Fla. 1st DCA 2011) (“In accordance with Florida Rule of Appellate Procedure 9.040(c), we have considered treating the notice of appeal as a petition for review of non-final agency action under [§]120.68(1).”).
15 Fla. R. App. P. 9.100(c).
16 Internal citations omitted.
17 See Verizon Bus. Network Serv., Inc. v. Dep’t of Corr., 960 So. 2d 916, 917 (Fla. 1st DCA 2007) (holds there was no showing of irreparable harm because “the disputed documents are identified in a privilege log and were reviewed in-camera by the ALJ. Thus, the issue can be meaningfully addressed on appeal and an appropriate remedy fashioned if it is concluded that the ALJ’s ruling was in error.”).
18 See Dep’t of Health & Rehab. Servs. v. Barr, 359 So. 2d 503 (Fla. 1st DCA 1978) (grants a petition seeking review of a hearing officer’s order denying the department’s motion to dismiss a rule challenge petition); Fiat Motors of No. Amer., Inc. v Calvin, 356 So. 2d 908 (Fla. 1st DCA 1978) (grants a petition to review an order by the Division of Motor Vehicles in which the division assumed jurisdiction to determine if the petitioner unfairly canceled a dealership franchise); Fortune Life Ins. Co. v. Dep’t of Ins., 569 So. 2d 1325 (Fla. 1st DCA 1990) (grants a petition for review because the department did not follow the procedures set forth in the Administrative Procedure Act when it prohibited the petitioner from utilizing a certain type of life insurance policy); Boca Raton Artificial Kidney Center, Inc. v. Dep’t of Health & Rehab. Serv., 475 So. 2d 260 (Fla. 1st DCA 1985) (grants a petition challenging the opening of a health care facility prior to the resolution of a requested certificate of need hearing); Cleveland Clinic Fla. Hosp. v. AHCA, 679 So. 2d 1237 (Fla. 1st DCA 1996) (grants a petition for review and quashing a hearing officer’s order granting intervention and remanding the case to AHCA for comparative review).
19 Fla. R. App. P. 9.190(b)(2) (mandates that judicial review of an emergency suspension order entered, pursuant to Fla. Stat. §120.60(6), must be sought via a petition for review); Nath v. Dep’t of Health, 100 So. 3d 1273 (Fla. 1st DCA 2012) (grants a petition for review in part, quashing the emergency suspension order to the extent it suspended the petitioner’s license to practice acupuncture, and remanding for further proceedings).
20 See Fla. Power & Light Co. v. Fla. Public Serv. Comm’n, 31 So. 3d 860, 863 (Fla. 1st DCA 2010) (notes that “our scope of review on appeal over a non-final order is analogous to and no broader than review by common law certiorari. Thus, petitioners must demonstrate that the orders on review depart from the essential requirements of the law and cause material injury that cannot be remedied on appeal”) (internal citations omitted); Dep’t of Fin. Serv. v. Fugett, 946 So. 2d 80, 81 (Fla. 1st DCA 2006) (holding that an ALJ departed from the essential requirements of the law by sua spontedecidingthe issue of default after the final hearing and without giving the parties an opportunity to present evidence and/or argument).
21 See Allstate Ins., Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003) (“The departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.”).
22 See generally Haines City Cmty. Dev. v Heggs, 658 So. 2d 523, 525 (Fla. 1995) (“A decision made according to the form of law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to facts, is not [a departure from the essential requirements of the law].”); Williams v. Oken, 62 So. 3d 1129, 1133 (Fla. 2011) (“The district courts of appeal should not be concerned with the mere existence of legal error as much as with the seriousness of the error.”).
23 See United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So. 3d 506, 509 (Fla. 4th DCA 2010) (denying a certiorari petition because “the ‘mere legal error’ in this case is not a departure from the essential requirements of the law remediable in a second tier certiorari”); Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (“The district court’s exercise of its discretionary certiorari jurisdiction should depend on the court’s assessment of the gravity of the error and the adequacy of other relief. A judicious assessment by the appellate court will not usurp the authority of the trial judge or the role of any other appellate remedy, but will preserve the function of this great writ of review as a ‘backstop’ to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.”).
24 See Heggs, 658 So. 2d at 528 (“Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of the law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice.”).
25 Murciano, 163 So. 3d at 665.
26 See Kaklamanos, 843 So. 2d at 890 (states that “clearly established law” can “derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law”).
27 See Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012) (“Certiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not previously applied. In such a situation, the law at issue is not a clearly established principle of law.”).
28 See generally Charlotte Cnty. v. General Dev. Utils., Inc., 653 So. 2d 1081, 1084 (Fla. 1st DCA 1995) (considers a nonfinal order issued by the Public Service Commission and states that “the statutory authority to review non-final administrative action is analogous to and no broader than the right of review by common law writ of certiorari”).
29 See Fla. Stat. §120.57(1)(l) (2015) (“The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction.”).
30 Barfield, 803 So. 2d at 1009.
34 Id. at 1010.
37 Id. at 1012.
38 Id. at 1013.
40 See also G.E.L. Corp. v. Dep’t of Envtl. Prot., 875 So. 2d 1257, 1264 (Fla. 5th DCA 2004) (“We acknowledge, as did the court in Barfield, that uncertainty exists regarding the avenues of review available to parties and agencies aggrieved by an ALJ’s erroneous legal ruling that is not within the agency’s substantive jurisdiction to correct. However, it is not for us to say whether we agree with the wisdom of the limited scope of review prescribed by [§]120.57(1)(l) or whether we wish that it were more expansive.”).
Garnett (“Gar”) Chisenhall is an administrative law judge with the Division of Administrative Hearings. Prior to becoming an ALJ, he was the chief appellate counsel for the Department of Business and Professional Regulation and the Agency for Health Care Administration. He also worked in the administrative law section of the attorney general’s office. He thanks Judge Elizabeth McArthur and Stephen Emmanuel for their assistance on this article.
This article was originally published in The Florida Bar Administrative Law Section’s newsletter and is reprinted with permission.
This column is submitted on behalf of the Administrative Law Section, Richard J. Shoop, chair, and Stephen Emmanuel, editor.