APA: attorneys' fees and costs.

• Author: Edenfield, Martha J.
• Position: Florida

During the 1996 session, the legislature enacted a law which, for the first time since the enactment of the Florida Administrative Procedure Act in 1974, dramatically altered the ability of private litigants to recover attorneys' fees and costs from government agencies that have overreached their legislatively delegated authority.(1) Prior to the enactment of the new APA amendments in 1996, recovery of attorneys' fees and costs was available under limited circumstances, depending on the nature of the prevailing party and the type of proceeding. Recovery of attorneys' fees and costs was available to a prevailing small business in actions initiated by an agency,(2) to a prevailing party against any nonagency party which participated in a [sections] 120.57(1) proceeding for an improper purpose,(3) and against any party that filed a pleading, motion, or other paper for an improper purpose.(4) The old APA also included a weak attorneys' fees and cost remedy against agency use of an unadopted statement as a rule.(5) The new APA retained these attorneys' fees and costs remedies, but added new provisions relating to the recovery of costs and attorneys' fees, for rule challenges and strengthened provisions for the recovery of costs and fees for challenges to the agency application of unadopted rules.

Most provisions relating to the award of attorneys' fees and costs have been consolidated in [sections] 120.595 of the new APA, including the new provisions relating to challenges to existing rules, proposed rules, and unadopted agency statements. The provision authorizing an award of fees for participating in a [sections] 120.57(1) proceeding for an improper purpose has been amended to apply to agencies as well as nonagencies, and is now in [sections] 120.595(1)(c). Section 120.595 amended provisions relating to recovery of attorneys' fees and costs in appellate proceedings to include a mandatory award of fees and costs for the action below and the appeal, should the court find that an agency improperly rejected or modified findings of fact in a recommended order. The provision authorizing an award of costs and attorneys' fees for filing a pleading for an improper or frivolous purpose is now in [sections] 120.569(2)(c). Another exception to the consolidation of attorneys' fees provisions in [sections] 120.595 is contained in the new [sections] 120.57(1)(e)3 which applies to agency action based on unadopted rules which affects a party's substantial interests.

The attorneys' fees and costs provisions included in the new APA were not added hastily or without thought, but were the result of years of deliberation, debate, argument, and compromise before the legislature, executive branch agencies, and two committees appointed to study the APA. The changes recommended were an attempt to level the playing field between agencies and the public in APA proceedings.

The purpose of this article is to provide a brief history and overview of the new and improved attorneys' fees and costs provisions in the new Administrative Procedure Act.

History

In recent years, the legislature has grappled with issues related to abuse by administrative agencies in the promulgation of administrative rules and in agency regulation pursuant to the APA. Legislators have received complaints from citizens and business groups that claim "agencies are out of control" in the promulgation of rules. Testimony and anecdotal evidence led legislators to conclude that agencies drafting proposed rules were intentionally "pushing the envelope," drafting regulations which went beyond a reasonable interpretation of the authorizing statute. Because of the presumption of validity and the deference accorded by the courts to agency rulemaking, rules not authorized by the underlying statute often survived judicial review.

The legislature was also frustrated by agencies' reliance on unadopted policies and statements not adopted by rule. This practice was deemed to be particularly abusive since the public had no notice of these policies and no opportunity to debate them. The remedies accorded pursuant to [sections] 120.535 were perceived as inadequate to rectify these abuses.

The legislature's continuing frustration with the lack of agency accountability in rulemaking reached the boiling point in 1994 and 1995 when bills were filed which would have...