APA: adjudicatory proceedings and pending proceedings.

• Author: Stengle, Dan R.
• Position: Florida

The legislative interest in revising the Administrative Procedure Act (APA) in the past several legislative sessions has focused primarily on the rulemaking processes, including rule challenge provisions. The 1996 APA revisions are no exception. In some significant respects, however, the new revisions also make changes to the processes that involve agency actions which determine the substantial interests of an individual. This article highlights those changes and the impact of the newly enacted revisions on pending rulemaking and adjudicatory proceedings.

Changes to Orders and Limitations on Authority

The prior law required orders to include rulings on each proposed finding of fact, or written application or other request, submitted in accordance with agency rules.(1) In Division of Administrative Hearings (DOAH) practice, proposed findings of fact submitted by parties were ruled upon individually by the hearing officer in an appendix to the recommended order or final order. The hearing officers generally found the rulings unnecessary at best, as the proposed findings of fact were considered by the hearing officer in preparing the recommended or final order, and time-consuming and burdensome at worst. Parties often filed exceptions with the agency to these rulings when they were contained in DOAH recommended orders. These exceptions, for the most part, added little to the disposition of the case, since parties frequently filed exceptions that focused not upon the finding of fact, but asserted as a basis for the exception that the hearing officer should have accepted the proposed finding, rather than rejecting it. This requirement was deleted by the legislature in the APA revisions, likely to the relief of the corps of DOAH hearing officers, now newly designated as "administrative law judges"(2) by the 1996 revisions.

As to exceptions, the time that an agency must allow for the filing of exceptions has been changed from the previous minimum of 10 days(3) to a uniform 15 days.(4) The time for filing exceptions in bid protest cases, however, is set at 10 days.(5)

Some of the changes to the authority of agencies in entering final orders under the APA are quite significant in that they further restrict the authority of agencies and increase the authority of DOAH administrative law judges. On some issues, administrative law judges are granted final order authority.

Under the prior law, agencies in their final orders were authorized to reject or modify the conclusions of law and interpretations of administrative rules in the recommended order,(6) essentially "without limitation."(7) The 1996 revisions, however, restrict the authority of agencies to modify or reject only those conclusions of law and interpretations of administrative rules "over which [the agency] has substantive jurisdiction."(8) Thus, it would appear, for example, that the Department of Community Affairs, as the state land planning agency, may be free to reject conclusions of law contained in a recommended order regarding developments of regional impact under Part I of F.S. Ch. 380. However, the same department likely would not have authority to reject conclusions of law regarding a veterans' employment preference that arises under F.S. Ch. 295, while the Department of Veterans' Affairs would. Less clear examples should prove challenging both to agencies and to reviewing courts. Since the 1996 revisions speak only to the authority of an agency to reject conclusions of law over which the agency has substantive jurisdiction, other conclusions of law contained in a recommended order may not be rejected by the agency and are, for all intents and purposes, final. The revisions also specify that all DOAH proceedings leading to a recommended or a final order are de novo.(9)

Additionally, agencies are precluded from rejecting or modifying findings of fact based upon the rejection or modification of conclusions of law.(10) Simply, because an agency has the authority to reject or modify a conclusion of law in a recommended order does not empower it to reject or modify a finding of fact related to that conclusion of law, unless the agency adheres to the explicit standard for rejecting or modifying findings of fact. This standard authorizes an agency to reject or modify the findings of fact only if they are not based upon competent substantial evidence or if the proceedings upon which the findings are based did not comply with essential requirements of law.(11) An agency's failure to adhere to this standard has significant ramifications under the 1996 revisions. If a reviewing court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court is directed to award reasonable attorneys' fees and costs to the prevailing party both for the administrative and review proceedings.(12)

Mediation

A number of agencies have used settlement processes informally(13) to mediate disputes. Other agencies were given explicit authority or directives in substantive statutes to mediate disputes.(14) Under the 1996...