Who goes first and what is "competent, substantial evidence" in a proposed rule challenge?

• Author: Bayo, Edwin A.
• Position: Florida administrative law

A Commentary on the Order and Burden of Proof in Challenges to Proposed Rules

Several significant changes made to the Administrative Procedures Act during the 1996 revision (the "New APA") involved the burden of proof in challenges to an agency's proposed rulemaking.[1] Prior to the enactment of these changes, case law established that the party challenging a proposed rule had the burden of proof as to all issues.[2] This burden was substantial because courts and administrative law judges had previously deferred to an agency's policy choice and consistently upheld rules if they were "reasonably related" to their enabling statutes, were not arbitrary or capricious, and did not contradict or conflict with other statutory or constitutional provisions.[3]

The New APA substantially reshapes the playing field. First (and most importantly for this article), when any substantially affected person challenges a proposed rule, the proposed rule is not presumed to be valid or invalid.[4] The agency, not the challenger, has "the burden to prove that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised" in the challenging petition.[5] In addition, the statutory definition of what is an "invalid exercise of delegated legislative authority" was amended to include two new grounds for invalidity, including that "the rule is not supported by competent substantial evidence."[6]

Practitioners challenging (and defending) proposed rules are thus faced with significant issues raised by the amendments--three of which are addressed here: 1) Does the "burden to prove" imposed upon the agency include the burden of going forward as well as the ultimate burden of persuasion? 2) Do a challenger's well pleaded factual allegations standing alone raise a prima facie case, requiring the agency to put on its case first? 3) How onerous is the agency's burden of proof?.

Three recent decisions from the First DCA, St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998)[7]; Board of Clinical Laboratory Personnel v. Florida Ass'n of Blood Banks, -- So. 2d --, 1998WL 432490 (Fla. 1st DCA 1998); and Agency for Health Care Admin. v. Florida Coalition of Professional Laboratory Organizations, Inc., 718 So. 2d 869 (Fla. 1st DCA 1998), have provided some clarification regarding these issues. This article discusses these cases and attempts to elaborate on the significant issues that remain unresolved and offers practitioners cautious advice for rule challenge success.

The Consolidated-Tomoka case involved a challenge to a series of proposed rules of the St. Johns River Water Management District defining areas within the district as hydrologic basins and establishing more stringent permitting and development requirements within the basins. Although the administrative law judge determined that the proposed rules were supported by competent substantial evidence and that they were not arbitrary or capricious, he nevertheless invalidated the rules because they were not within the "particular powers and duties" granted by the enabling statute. In addition to this ultimate finding the administrative law judge also made an important preliminary ruling setting forth a procedure and a rationale for the order of proof in proposed rule challenges.[8]

The Blood Banks and Coalition cases involved numerous proposed rules regarding the education, training, qualifications, and scope of practice of clinical laboratory personnel. In both cases the administrative law judge invalidated all the rules on various grounds, including finding that the agency failed to prove the validity of the proposed rules by a "preponderance of the evidence."[9]

All three...