Fee awards in administrative proceedings.

• Author: Perera, Diane S.
• Position: Part 1 - Florida

This is the first article in a two-part series on the recovery of attorneys' fees in administrative proceedings. This article will discuss the recovery of attorneys' fees pursuant to F.S. [section][section]57.105 and 468.619. The second part of the series, which will address the recovery of attorneys' fees pursuant to F.S. [section][section]57.111 and 120.595, will appear in the next issue of the Journal.

Recovery of Fees Pursuant to F.S. [section]57.105

In 2003, the Florida Legislature amended F.S. [section]57.105, to allow parties in F.S. Ch. 120 (1) (APA) administrative proceedings to seek attorneys' fees when the administrative law judge (ALJ) concludes that a party or a party's attorney "knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) [w]as not supported by the material facts necessary to establish the claim or defense; or (b) [w]ould not be supported by the application of then-existing law to those material facts." (2) Sanctions are also authorized by F.S. [section]57.105 for filing pleadings, discovery, demands, claims or defenses, which are done mainly to cause delay. (3) Since the 2003 amendment, the Division of Administrative Hearings (DOAH) and Florida appellate courts have interpreted and applied F.S. [section]57.105 in a variety of administrative cases. These cases provide guidance to practitioners seeking to recover attorneys' fees in administrative hearings.

F.S. [section]57.105(5) provides:

In administrative proceedings under [Ch.] 120, an administrative law judge shall award a reasonable attorneys' fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to [[section]]120.68. If the losing party is an agency as defined in [[section]]120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.

Although the 2003 amendment (4) to F.S. [section]57.105 extended sanctions to proceedings conducted under the APA, F.S. [section]57.105 does not apply to all proceedings conducted by a DOAH ALJ. For example, due process proceedings under F.S. [section]1003.57, which governs specialized instruction for exceptional students' public education, is specifically exempt from F.S. [section][section]120.569 and 120.57. (5) Although F.S. [section]1003.57(1)(c) provides that the due process hearing "must be conducted by an administrative law judge from the Division of Administrative Hearings ... and the decision of the administrative law judge is final," (6) the proceeding is not conducted under F.S. Ch. 120. (7)

F.S. [section]57.105 contains a safe harbor provision that requires the moving party to serve its F.S. [section]57.105 motion 21 days prior to filing, which gives the targeted party time to withdraw its meritless pleading or abandon its meritless position. F.S. [section]57.105(4) provides: "A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, al legation, or denial is not withdrawn or appropriately corrected."

The F.S. [section]57.105 motion must be served in administrative proceedings by the agency or the responding party while the underlying DOAH hearing is ongoing and prior to DOAH's entry of the recommended order. If the targeted pleading is not withdrawn within 21 days after service of the F.S. [section]57.105 motion, the motion must then be filed with DOAH, prior to the ALJ's issuance of the recommended order. Failure to timely serve or file the...