Florida Administrative Appeal Rules

Question 1

Which Florida Rule of Appellate Procedure governs administrative action?

Answer 1

Rule 9.190.

Question 2

How is administrative action defined?

Answer 2

1. Final agency action as defined in the Administrative
   Procedure Act, ch. 120 (“APA”), e.g., state agencies;
2. Nonfinal action by an agency or Administrative Law Judge (“ALJ”) reviewable under the APA;
3. Quasi-judicial decisions by administrative bodies not subject to the APA, e.g., local bodies, cities, zoning boards; and
4. Administrative action where general law authorizes review.

Question 3

Two critical inquiries to make when seeking review for every administrative action?

Answer 3

(1) is the agency subject to the APA?

(2) is the order final?

Question 4

You must timely file exceptions to what to preserve your issues on appeal?

Answer 4

The recommended order by an ALJ prior to entry of final order by agency.

Question 5

Appellate standing is wider or narrower than standing to appear in a normal appeal?

Answer 5

Narrower. Substantial interests must have been determined by agency action.

Question 6

When was the APA significantly amended and what did the amendment do to review of nonfinal orders?

Answer 6

1996. Prior to the amendment, nonfinal orders were not reviewable. But now, section 120.68 permits review of nonfinal orders if there is no adequate remedy on plenary review.

Question 7

Are motions for rehearing authorized?

Answer 7

Generally, no. They do not toll the time for seeking review.

Question 8

Where do you file your notice of appeal and who do you pay your filing fees to?

Answer 8

In agency AND DCA.

Filing fees only to DCA.

Question 9

Where do you file your appeal?

Answer 9

Either in the DCA where the agency has its HQ or where the party resides.

Unless provided by law otherwise.

Question 10

What do you call an appeal from a nonfinal agency action?

Answer 10

Petition for review of nonfinal agency action.

Question 11

Standard of review of nonfinal agency action?

Answer 11

Similar to certiorari petition in civil cases, including irreparable harm (no remedy during final review).

Question 12

What is an immediate final order in an agency action?

Answer 12

An immediate danger to the public health, safety, or welfare that requires an immediate final order.

Agency is required to recite with particularity the facts underlying such finding in the final order:

(i) the immediate danger as described above;
(ii) only action necessary to protect against the danger;
(iii) procedural fairness.

Question 13

How is the record prepared in immediate final orders?

Answer 13

No record; prepare appendix with briefs.

Question 14

Where Public Service Commission orders that affect electric, gas or telephones appealed to?

Answer 14

Fla. SC. Ct.

Any other action goes to 1st DCA.

Question 15

For non-APA administrative action, where do you seek review?

Answer 15

Check law to determine where venue is proper; typically, if no specific law, it will be the circuit court through certiorari as a matter of right.

Question 16

What is the standard of review for a petition for writ of certiorari as a matter of right?

Answer 16

Three prongs:

(i) procedural due process;
(ii) essential requirements of law observed; and
(iii) findings supported by competent substantial evidence.

Question 17

Standard of review for second tier certiorari review?

Answer 17

(i) procedural due process accorded by circuit court;

(ii) correct law was applied.

Question 18

Who has the duty to preserve the testimony during agency action in APA cases? But how do you ensure it will be included in Record on Appeal?

Answer 18

The agency.

But you must file the transcript with the agency after the ALJ hearing.

Question 19

Where do you file your stay pending review?

Answer 19

Typically, should file it in agency but you can file it directly with reviewing court with “good cause” or if it’s a license suspension case.

Must be separate document (Rule 9.310(f)).

Question 20

When are automatic stays provided in agency cases in both APA and non-APA cases?

Answer 20

In APA cases, when the government seeks review and the APA provides for an automatic stay (or birth-related neurological injuries).

In non-APA cases, automatic stay when government seeks review.

Question 21

What is the legal authority that now provides that agency deference is a thing of the past?

Answer 21

Fla. Const. Article V section 21.

Question 22

What are the outstanding issues with respect to agency deference?

Answer 22

Is the change retroactive and are cases relying on agency deference still good law?

Question 23

Can challenges to the constitutionality of statutes be raised for the first time on appeal?

Answer 23

Yes, because agencies can’t rule on their constitutionality.

Record must contain sufficient findings of fact to review the challenge as applied to the facts of the case.

Question 24

Raising a challenge to the constitutionality of statutes or laws on appeal triggers what requirement in what rule?

Answer 24

Rule 9.425 which requires:

(1) filing a notice of constitutional question stating the question and identifying the document that raises it; and
(2) serving the notice and a copy of the document on the attorney general.

Question 25

How does an appellate court resolve attorney’s fees on appeal?

Answer 25

If assessed, court can remand to lower tribunal, ALJ, or refer to special magistrate.

Question 26

What are the grounds for moving for appellate attorney fees in APA cases?

Answer 26

Three grounds:

(i) appeal is frivolous, meritless, or abuse of appellate process.
(ii) agency grossly abused discretion in underlying action.
(iii) agency wrongly rejected ALJ’s findings of fact (that gets you entitlement to fees below and on appeal).

Question 27

What are the grounds for moving for appellate attorney fees in non-APA cases?

Answer 27

Must have a statutory, ordinance, or contractual basis.

Question 28

“Judges of Compensation Claims” adjudicate what type of administrative appeals?

Answer 28

Worker’s compensation.

Question 29

What are the available nonfinal appeals in worker’s comp appeals?

Answer 29

(1) jurisdiction;
(2) venue;
(3) compensability (if order expressly finds injury occurred in scope/course of employment and claimant is entitled to causally related benefits)

Question 30

Notices of appeal in worker’s comp cases must contain what?

Answer 30

Brief summary of benefits affected and detail time period involved.

Question 31

Does the JCC have jurisdiction over an order that is up on appeal?

Answer 31

A little. JCC can approve settlements and correct clerical errors in order appealed until record is transmitted.

Question 32

Division of Workers’ Compensation may intervene in an appeal within how many days of the filing of the notice of appeal?

Answer 32

30 days.

Question 33

Can you move to strike a brief in worker’s comp appeals?

Answer 33

No. Must raise issues in responsive issues or file suggestion of noncompliance.

Question 34

What occurs after an order determining entitlement to appellate fees in worker’s comp cases?

Answer 34

JCC has jurisdiction to conduct hearings and consider evidence as to the amount.

Question 35

What are the four requirements of standing to seek judicial review under the APA?

Answer 35

(1) the action is final;
(2) agency is subject to provisions of the act;
(3) the person seeking review is a party to the action;
(4) party was adversely affected by the action.

Question 36

What’s the harmless error test in administrative appeals?

Answer 36

Section 120.68(8) requires the appellate court affirm the agency’s action “unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief under a specified provision of section 120.68.”

Question 37

When are orders under the APA final and subject to review (what must they contain)?

Answer 37

When they contain a notice of the right to review.

Question 38

When can an agency reject a finding of fact made by the ALJ?

Answer 38

When the fact is “infused with policy considerations” within the special expertise of the agency.

In that case, the agency must demonstrate support for its own fact-finding by competent, substantial evidence and it must full explain its policies and address the countervailing arguments in the record as well as those urged by the ALJ’s recommended order.

Question 39

If the JCC issues an “abbreviated final order,” what must the party do in order to appeal?

Answer 39

Must move to vacate the order within 10 days and request entry of an order with separate findings of fact and conclusions of law.

Question 40

In order for an order on compensability to be appealable as a nonfinal order in worker’s comp cases, what must it contain?

Answer 40

A certification by the judge of compensation claims that the determination of the exact nature and mount of benefits due to claimant will require substantial expense and time.

Question 41

When and where do you file your notice of appeal in worker’s comp cases?

Answer 41

You file it in the agency only and you have 30 days after the order is sent to the parties (as opposed to when it is signed and filed).

Question 42

When can the Division of Workers’ Compensation intervene in an appeal?

Answer 42

Within 30 days of the date of filing the notice or petition.

Question 43

When is an IB due in a workers’ comp case?

Answer 43

30 days after the lower tribunal certifies the record to the appellate court.

(Nonfinal IB is still due 15 days after notice).