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What to Except When You’re Excepting: Practice Pointers for Filing Effective Exceptions to Recommended Orders

Administrative Law

Regardless of their chosen area of practice, most attorneys will be exposed to administrative law at some point during their legal career, either personally or professionally. The Florida Administrative Procedure Act1 (APA) contains a number of traps for practitioners who are unaccustomed to administrative law. Even for experienced administrative law practitioners, determining how to best challenge adverse decisions requires navigating numerous considerations. This is especially true when it comes to filing “exceptions” to recommended orders. Because the exceptions process is somewhat unique to administrative law, many inexperienced practitioners fail to understand its importance until it is too late. This article intends to provide both new and experienced attorneys with considerations that should be taken into account when filing exceptions.

The need to consider exceptions follows administrative proceedings involving agency decisions that determine the “substantial interests of a party.”2 These proceedings typically involve situations in which the parties dispute issues of material fact that are submitted to a presiding officer who will hold a hearing.3 Following such a hearing,4 the APA requires the presiding officer to “complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order.”5 Parties that disagree with the recommended order or a portion of it may file exceptions to the agency that will be issuing the final order. The purpose of filing exceptions is two-fold: 1) The practitioner has the opportunity to convince the agency that will be issuing the final order why the recommended order should not be accepted as a whole; and 2) it assists in a later appeal, should the agency disagree.

When, Where, and How to File Exceptions
As soon as a recommended order has been issued, a party should immediately determine the timeframe within which exceptions are due and where the exceptions are to be filed. Other than very limited situations, exceptions to a recommended order must be filed with the agency no later than 15 days after the recommended order issues.6 If a party has received notice informing him or her of the requirement of taking certain action within a specified period of time, and that party delays for a protracted length of time in taking the required action, “that party may be deemed to have waived his or her right to so act.”7 Thus, untimely exceptions can be struck. However, in narrow circumstances, the agency may have discretion to accept late-filed exceptions if there is an extraordinary equitable reason the deadline was missed.8 Because exceptions must contain “appropriate and specific citations to the record,”9 a practitioner should make arrangements early to obtain any necessary transcripts of the hearing.

In addition, practitioners should take care to file exceptions in the correct location. A common error is for a practitioner to file the exceptions with the Division of Administrative Hearings (DOAH) instead of with the agency.10 Similarly, umbrella agencies, such as the Department of Management Services or the Department of Financial Services, will sometimes receive exceptions that should be directed to the agencies they provide administrative support to, such as the Public Employees Relations Commission or the Office of Financial Regulation. Exceptions that are filed with DOAH or the incorrect agency may not docket as received until the date the correct agency receives them.11 Thus, if a practitioner files his or her exceptions in the incorrect location and the correct agency receives them after the 15-day time period, a practitioner would need to demonstrate that the late filing should be accepted for some extraordinary equitable reason that excuses the late filing.12 It is better to file in the correct location initially in the timeframe allowed than be in the difficult position of trying to get an agency to accept late-filed exceptions.

In some instances, particularly in involved cases with significant amounts of evidence and issues, it may not be possible to file the exceptions by the initial deadline. Practitioners who anticipate not being able to file exceptions by the deadline should file a motion for an extension of time well before the deadline and state good cause for the request.13 Moreover, as with most motions filed in administrative proceedings, practitioners must include a statement that the moving party conferred with all other parties of record and indicate whether the other parties object to the motion.14

A final procedural requirement under the uniform rules of administrative procedure requires that exceptions be provided to all parties by fax or electronic mail, if such have been provided, on the same day that the exceptions are filed with the agency.15 Other parties are then entitled to file responses to exceptions within 10 days from the date the exceptions are filed with the agency.

Exceptions to Findings of Fact Versus Exceptions to Conclusions of Law
The first item to which practitioners should be cognizant of in filing exceptions is the different types of review that agencies are required to undertake for findings of fact and conclusions of law. An agency’s authority to overturn or modify a presiding officer’s findings of fact is extremely limited.16 In particular, an “agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.”17 A presiding officer’s role is to consider all of the evidence presented, resolve conflicts, determine credibility, weigh evidence, and make ultimate findings of fact.18 If the evidence presented supports two inconsistent findings, it is the presiding officer’s role to decide the issue, and the agency can reject a presiding officer’s finding of fact only when there is no competent, substantial evidence from which the finding can reasonably be inferred.19 Moreover, an agency is not entitled to reweigh the evidence, judge the credibility of witnesses, or interpret evidence to fit the conclusion desired by the agency.20 The amount of evidence introduced does not correlate to what constitutes competent, substantial evidence. For example, a presiding officer can rely on the testimony of a single witness even if that testimony is contradicted by the testimony of numerous other witnesses.21

Because of these limitations, exceptions directed at factual findings should be carefully considered. Both experienced and inexperienced practitioners will often attempt to argue in their exceptions that evidence presented at the hearing supports an alternative narrative for factual findings or that the weight of evidence backs different factual findings. Agencies are precluded from granting these exceptions, so practitioners should limit exceptions to situations in which there is not competent substantial evidence to support a factual finding or situations in which it can be shown that the proceeding that led to the factual finding did not comply with an essential requirement of the law.22

In challenging factual findings, practitioners should also be aware that requests for an agency to make additional findings of fact are disfavored. Exceptions should not attempt to introduce new evidence; it is reversible error for an agency to supplement the record through post-hearing testimony.23 Moreover, it is improper for an agency to make supplemental findings of fact on an issue when a presiding officer made no findings.24 In the rare cases in which additional findings of fact are necessary, parties should request for the matter to be remanded to the presiding officer for further proceedings.25 However, requests for remand will place the issue back in front of the presiding officer that issued the adverse recommended order. As such, most practitioners avoid requesting remands. The decision to remand lies within the discretion of the agency itself.26

While an agency is strictly limited in considering challenges to factual findings, it does have more discretion to overturn conclusions of law, so long as they are within the agency’s substantive jurisdiction.27 An agency is not required to defer to a presiding officer on issues of law particularly when the matter is infused with overriding policy considerations.28 To reject or modify a presiding officer’s conclusions of law, the agency is required to “state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.”29 Practitioners should formulate exceptions to conclusions of law with these criteria in mind; if the exception matches the requirements in the statute, an agency is more likely to adopt the party’s reasoning as its own. Practitioners should also be forthright in making sure that an exception to a conclusion of law is not in actuality an attempt to challenge underlying findings of fact. Courts have repeatedly cautioned agencies that they cannot circumvent the requirements in the APA by characterizing findings of fact as legal conclusions.30

The last consideration is whether the practitioner should challenge an unfavorable penalty. Unlike findings of fact, an agency has more discretion in determining the appropriate penalty. However, an agency cannot reduce or increase the recommended penalty without a review of the “complete record and [stating] with particularity its reasons therefore in the order, by citing to the record in justifying the action.”31 The purpose of this statute “is to provide some assurance that the agency has gone through a thoughtful process of review and consideration before making a determination to change the recommended penalty.”32 District courts can be meticulous as to this standard. For instance, an agency’s final decision was reversed when it modified a penalty based on the commissioners’ affirmation that they had read the case but did not expressly state that they reviewed the complete record.33 Accordingly, a party wishing to challenge a recommended penalty should ensure the agency has the full record, including a transcript of the hearing before the presiding officer.34

Preservation Requirements
Preservation of legal arguments is an important factor in administrative proceedings. A party “must alert the agency to any perceived defects in the hearing procedures or the presiding officer’s fact findings.”35 If a party is unwilling to challenge the facts at that stage, he or she cannot complain on appeal that the agency erred in accepting the presiding officer’s findings of fact or present a different version of the facts.36 Likewise, a party “cannot argue on appeal matters which were not properly excepted to or challenged before the [agency] and thus were not preserved for appellate review.”37 If a party does not inform an agency as to defects in a recommended order, those arguments are waived if the agency adopts that portion of the recommended order.

Each exception must clearly identify the disputed portion of the recommended order by page number or paragraph, identify the legal basis for the exception, and include appropriate and specific citations to the record.38 Once a party’s exceptions meet this threshold, that party is generally entitled to an explicit ruling on each exception.39 Thus, where an agency failed to rule on each exception individually, courts have remanded the case so that the agency could rectify this defect.40

Practical Tips in Structuring Stronger Exceptions
When faced with a contrary recommended order, determining the optimal number of exceptions to make is a delicate balance. While a practitioner may be denied the opportunity to challenge a finding on appeal if it is not first raised in an exception, raising an undue number of exceptions poses its own undesirable consequences. This can be considered a shotgun approach, where a practitioner is indiscriminate and haphazard in raising a disproportionate number of perceived errors at the expense of accuracy and a fully developed legal argument for each error. Moreover, attempting to latch onto a vast array of inadequately supported potential errors — in order to see if any will stick — simply pulls attention away from the strongest argument a practitioner could make. Stated otherwise, when everything matters, nothing is important.

A practitioner will find it far more successful to focus on his or her strongest points and fully articulate the legal and factual basis behind each exception. Because practitioners face short timeframes in which to file their exceptions, focusing on fewer but stronger arguments permits a practitioner to fully flesh out his or her exceptions with adequate legal analysis and record support. Along a similar vein, practitioners should keep in mind that because the agency’s final order must include an explicit ruling on each exception, the more support behind each exception only increases the likelihood that the agency will grant the exception. Alternatively, a party faces a lower chance of success when an agency is addressing exceptions that have not been well presented or have diluted arguments that require the agency to perform the legal legwork.

When filing multiple exceptions, it is very helpful for a practitioner to number each exception. This ensures each exception will be read independently and will result in the agency considering and ruling upon each on an individual basis. Unnumbered exceptions are more difficult to follow and can be misread as relating to each other, resulting in the agency missing one of the arguments a practitioner was attempting to make.

Likewise, practitioners should avoid making compound exceptions that merge different legal points into one exception. Compound exceptions run the danger of failing to clearly express the point that the practitioner is attempting to convey and to bury one argument into another. Moreover, because agencies must rule individually on each exception, merging multiple legal arguments into one exception could permit the agency to address only one of the legal points made in a compound exception. A practitioner would be better served breaking such an exception into the two, thus, ensuring that the agency will better understand the arguments being raised and address both legal points.

Cross-Appeals and Oral Argument
Some of the calculations and tips for filing effective exceptions should also be taken into account in responding to exceptions. The review of a recommended order is similar to an appellate proceeding. As such, even when the recommended order favors a party, there may be reasons to file exceptions or “cross appeal” certain portions of the order. Parties should always avail themselves of the statutory right to file a response to exceptions; failing to do so creates a one-sided argument at the agency level and increases the likelihood that an agency will not adopt the recommended order. Parties that have a favorable recommended order should also carefully consider whether to file a transcript of the hearing with the agency. An agency cannot reject or modify a presiding officer’s findings of fact, credibility determinations, or recommended penalty without first reviewing a transcript of the evidentiary record.41 There are advantages to providing a copy of the transcript in advance of the recommended order to aid the presiding officer in writing the recommended order. However, in cases in which the transcript has not been provided in advance or in cases with expedited time frames, it may be better practice to wait for the recommended order to be issued and then decide whether to file a transcript of the hearing. If the party is satisfied with the results reached in the recommended order, filing the transcript with the agency is unnecessary.

In addition to supporting exceptions with detailed written memoranda and legal arguments, parties may also want to request oral argument in front of the agency to offer further support for exceptions, particularly for novel issues or issues involving policy questions within the agency’s expertise. Requests for oral argument should be made in a written request to the agency head as soon as is practical and, if possible, with the filing of the exceptions or responses. Many agencies, including those headed by the governor, cabinet, and commissions, such as the Public Employees Relations Commission, allow oral arguments in support of or in opposition to exceptions to recommended orders.42 Although these oral proceedings are not necessarily the equivalent of oral argument in appellate courts and granting such presentations are a discretionary act, no agencies appear to prohibit such presentations by rule.43

As discussed above, there are a myriad of considerations that should be taken in deciding whether to file exceptions to portions of a recommended order that are adverse to a party’s interests. Moreover, once the decision has been made to file exceptions, parties should be cognizant of what exceptions should include in challenging findings of fact, conclusions of law, and proposed penalties. Having said that, the authors of this article have seen a variety of exceptions in different cases. When they are done properly and precisely, they can be effective in challenging adverse orders.

1 Fla. Stat. §120.51 (2017) (providing short title for Fla. Stat. Ch. 120).

2 Fla. Stat. §§120.569(1), 120.57 (2017). What constitutes a party’s “substantial interest” is beyond the scope of this article. For additional information, see The Florida Bar, Florida Administrative Practice §5.3 (11th ed. 2017).

3 Presiding officers under the APA can include an agency head or member of an agency that conducts a hearing or proceeding on the agency’s behalf, an administrative law judge (ALJ) assigned by the Division of Administrative Hearings (DOAH), or any other person authorized by law to conduct administrative hearings. F.A.C.R. 27-106.102. For cases involving disputed issues of material fact, the presiding officer will frequently be an ALJ or hearing officer that is statutorily permitted to hear certain types of cases. Fla. Stat. §120.57(1) (requiring generally that disputed issues of material fact be heard by an ALJ); Fla. Stat. §120.80 (providing certain agencies the authority to conduct hearings without using an ALJ).

4 Historically, hearings involving disputed issues of fact were statutorily designated as “formal hearings.” Hearings not involving disputed issues of fact were “informal hearings.” Although these terms are no longer a part of the statute, practitioners still continue to use these terms to note the difference.

5 Fla. Stat. §120.57(1)(k).

6 See, e.g., Fla. Stat. §120.57(1)(k) (“The agency shall allow each party 15 days in which to submit written exceptions to the recommended order.”); F.A.C.R. 28-106.217(1).

7 State Dep’t of Envtl. Regulation v. Puckett Oil Co., 577 So. 2d 988, 993 (Fla. 1st DCA 1991).

8 Generally with missed deadlines in the administrative arena, the doctrine of equitable tolling applies. To show equitable tolling, a practitioner would need to demonstrate that the missed deadline was a result of being “misled or lulled into inaction” or that he or she “has in some extraordinary way been prevented” from asserting his or her rights, or has timely asserted his or her rights mistakenly in the wrong forum. Machules v. Dept. of Administration, 523 So. 2d 1132, 1134 (Fla. 1988); see also Prof’l Firefighters of Naples, I.A.F.F., Local 2174 v. City of Naples, 39 FPER ¶329 (Fla. PERC 2013) (recognizing its longstanding policy of not accepting untimely exceptions unless the litigant files a concomitant motion and presents an extraordinary equitable reason establishing that the movant was precluded from timely filing exceptions).

9 See, e.g., Fla. Stat. §120.57(1)(k) (“The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.”).

10 See, e.g., Hamilton Cty. Bd. of Cty. Comm’rs v. State Dep’t of Envtl. Regulation, 587 So. 2d 1389-90 (Fla. 1st DCA 1991).

11 See id. at 1382-83.

12 See note 8.

13 F.A.C.R. 28-106.204(4).

14 F.A.C.R. 28-106.204(3). If the moving party is unsuccessful in its efforts to confer with the other parties before filing the motion, the moving party must specify in the motion the date(s) and method(s) by which contact was attempted. Id.

15 F.A.C.R. 28-106.217(2).

16 Fla. Stat. §120.57(l).

17 Id.

18 Heifetz v. Dep’t of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

19 Boyd v. Dep’t of Revenue, 682 So. 2d 1117 (Fla. 4th DCA 1996); Holmes v. Turlington, 480 So. 2d 150 (Fla. 1st DCA 1985).

20 Heifetz, 475 So. 2d at 1281.

21 Stinson v. Winn, 938 So. 2d 554, 555 (Fla. 1st DCA 2006) (“Credibility of the witnesses is a matter that is within the province of the [presiding officer], as is the weight to be given the evidence.”).

22 Where an agency rejects any findings of fact, it must review the complete record and state “with particularity” that the findings of fact set out in the recommended order are not supported by competent substantial evidence or that the proceedings did not comply with the requirements of law. Fla. Stat. §120.57(1)(l).

23 Nest v. Dep’t of Prof’l Regulation, Bd. of Med. Examiners, 490 So. 2d 987, 989 (Fla. 1st DCA 1986).

24 Florida Power & Light Co. v. State, 693 So. 2d 1025, 1026 (Fla. 1st DCA 1997).

25 Inverness Convalescent Center v. Dep’t of Health & Rehab. Servs., 512 So. 2d 1011, 1015 (Fla. 1st DCA 1987); Friends of Children v. Dep’t of Health & Rehab. Servs., 504 So. 2d 1345, 1346 (Fla. 1st DCA 1987).

26 Henderson Signs v. Florida Dep’t of Transp., 397 So. 2d 769, 772 (Fla. 1st DCA 1981); Florida Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778, 786 (Fla. 1st DCA 1981).

27 Fla. Stat. §120.57(1)(l).

28 Winters v. Fla. Bd. of Regents, 834 So. 2d 243, 250 (Fla. 2d DCA 2002). However, practitioners should also note that if the conclusions of law relate to evidentiary considerations or other matters not within the agency’s jurisdiction, they are not subject to rejection or modification. G.E.L. Corp. v. Dep’t of Envtl. Prot., 875 So. 2d 1257, 1263-64 (Fla. 5th DCA 2004); Barfield v. Dep’t of Health, 805 So. 2d 1008, 1010 (Fla. 1st DCA 2002).

29 Fla. Stat. §120.57(1)(l).

30 His Kids Daycare v. Florida Unemployment Appeals Comm’n, 904 So. 2d 477, 480 (Fla. 1st DCA 2005); Gross v. Dep’t of Health, 819 So. 2d 997, 1001 (Fla. 5th DCA 2002); Pillsbury v. State, Dep’t of Health & Rehab. Servs., 744 So. 2d 1040, 1041-42 (Fla. 2d DCA 1999).

31 Withers v. Blomberg, 41 So. 3d 398, 400 (Fla. 2d 2010).

32 Id. (quoting Hutson v. Casey, 484 So. 2d 1284, 1285-86 (Fla. 1st DCA 1986)).

33 Id.

34 Edwards v. Dep’t of Health & Rehab. Servs., 592 So. 2d 1249 (Fla. 4th DCA 1992) (holding that the commission “was without authority to reduce or increase the penalty recommended by the hearing officer, because [the appellant] failed to produce a transcript of the proceedings conducted before the hearing officer when he filed his exceptions with the commission”).

35 Couch v. Comm’n on Ethics, 617 So. 2d 1119, 1124 (Fla. 5th DCA 1993) (quoting Florida Dep’t of Corr. v. Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987)).

36 Id.

37 Comm’n on Ethics v. Barker, 677 So. 2d 254, 256 (Fla. 1996) (quoting Couch v. Commission on Ethics, 617 So. 2d 1119, 1124 (Fla. 5th DCA 1993). See also Envtl. Coal. of Fla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991) (“Having filed no exceptions to the findings of fact contained in the recommended order, [the appellant] has thereby expressed its agreement with, or at least waived any objection to, those findings of fact.”); Withers, 41 So. 3d at 401 (holding that generally in the review of administrative proceedings, the court would not consider an issue unless that precise legal argument was presented below, but recognizing that a fundamental error may be challenged for the first time on appeal).

38 See, e.g., Fla. Stat. §120.57(1)(k) (“The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.”); F.A.C.R. 28-106.217(1).

39 Boundy v. Sch. Bd. of Miami-Dade Cty., 994 So. 2d 433 (Fla. 3d DCA 2008) (remanding for ruling with particularity on each of the appellant’s exceptions to a recommended order because the appellant’s exceptions properly cited and identified with sufficient clarity the disputed portions of the recommended order).

40 See, e.g., id.; Mas v. Miami-Dade Cty. Sch. Bd., 26 So. 3d 73, 74 (Fla. 3d DCA 2010) (remanding the case for additional rulings because “[t]he School Board is required to rule explicitly on each exception which identifies the disputed portion of the Recommended Order by page number or paragraph”). But see Miami-Dade Cty. v. Dep’t of Cmty. Affairs, 29 So. 3d 1210 (Fla. 1st DCA 2010) (recognizing that a complete failure to consider or make explicit rulings on each exception to recommended order renders an order nonfinal, but declining to extend such holding to a situation in which they agency clearly considered exceptions, but failed to rule on each exception individually); Health Care Mgmt., Inc. v. Dep’t of Health & Rehab. Servs., 479 So. 2d 193, 195 (Fla. 1st DCA 1985) (holding that the failure to explicitly address a proposed finding “would require reversal of the agency action only when such failure has the effect of impairing the fairness of the proceeding or the correctness of the action”).

41 Fla. Stat. §120.57(1)(l); Roberts v. Dep’t of Corr., 690 So. 2d 1383, 1384 (Fla. 1st DCA 1997); Financial Marketing Group, Inc. v. Sate Dep’t of Banking & Finance, Div. of Securities, 352 So. 2d 524, 525 (Fla. 3d DCA 1977).

42 Florida Administrative Practice §4.2 (11th ed. 2017).

43 Id.

Gregg R. Morton is a hearing officer and deputy general counsel with the Public Employees Relations Commission in Tallahassee. He received his J.D. from the University of Florida Levin College of Law in 2000. Morton is a long-time member of the Administrative Law Section and also serves on the Labor & Employment Law Section’s Executive Council. Additionally, he is the 2017-2018 chair of the new Animal Law Section of The Florida Bar.

Lyyli Van Whittle is a hearing officer with the Public Employees Relations Commission in Tallahassee. She previously served as the career staff attorney for Florida Supreme Court Justice Barbara J. Pariente. She received her J.D. from the Florida State University College of Law in 1998. Van Whittle is an active member of the Administrative Law Section, the Labor and Employment Law Section, and the William H. Stafford American Inn of Court.

This column is submitted on behalf of the Administrative Law Section, Robert H. Hosay, chair, and Stephen Emmanuel, editor.

Administrative Law