Appealing administrative action: the threshold considerations.

• Author: Rizzardi, Keith W.
• Position: Government Lawyer

Appeals of administrative agency actions differ from traditional appellate practice. For example, appellate cases involving agency decisions can raise nuanced differences in the law of standing, the degree of judicial deference, the relevance of stare decisis, and the mechanics of the appellate record. The initial concerns associated with appealing an administrative order can be considered in the context of three simple questions: 1) Can I appeal; 2) should I appeal; and 3) how do I start the appeal?

Can I Appeal?

In order to pursue an appeal of an administrative agency decision, a threshold determination should be made as to whether the lawyer has standing. In general, the Florida Administrative Procedures Act (APA), F.S. Ch. 120, grants broad rights to parties to seek review of administrative agency action. But to seek appellate judicial review of agency action pursuant to F.S. [section]120.68, the appellant must further establish that 1) the agency action is final; 2) the Florida APA applies; 3) the appellant was a party to the prior administrative hearing; and, finally, 4) they were adversely affected by the final agency action. (1) Thus, the judicial review requirement for an appellant to experience an "adverse effect" differs from the administrative hearing requirement in F.S. [section]120.569(1) that a party must be "substantially affected." (2) Although the district courts of appeal have been divided on the nuances of the issue, a party can have standing for purposes of the original administrative hearing, but not for the appeal. (3) Importantly, factual findings reached by the administrative law judge concluding that a party was not harmed might even foreclose the appeal. If the appeal is pursued anyway, without sufficient evidence of appellate standing, or without a direct (but difficult) challenge to those findings of fact, the appellant faces a risk of sanctions. (4)

Should I Appeal?

As noted above, one of the requirements for standing to appeal an agency action is for the appellant to have been party to the prior administrative hearings. In these disputes, the Florida APA generally requires its agencies to conduct evidentiary proceedings before an administrative law judge (ALJ). Those proceedings lead to findings of fact and conclusions of law, codified in a recommended order by the ALJ, which in turn is reviewed by the executive branch agency. The agency then issues a final order, subject to further scrutiny through judicial review by appeal of the agency action to a Florida district court of appeal, pursuant to F.S. [section]120.68. The decision as to whether an appeal is advisable, however, depends on careful consideration of the factual, legal, and precedential implications of each particular case.

* Do I Want to Allow the Agency Another Chance?--Importantly, an agency generally cannot appeal its own final order. (5) Also, an agency generally cannot amend its own order once the time for an appeal has lapsed. (6) Many cases before an ALJ involve a mix of victories and defeats: winning on some issues, and losing on others. By not filing an appeal, a litigant keeps the victories, and accepts the defeats. However, once the appeal is filed, the agency can cross-appeal, and the issues can be reopened, with the consequences playing out in the appellate forum.

For some clients who repeatedly obtain orders or agency actions from the same agency, the better strategy might be to accept the final order in one matter, and then seek to change the minds of the administrative agency decision...