Forum Selection in Administrative Appeals and the "Home Venue Privilege".

• Author: Bilenky, William S.

Occasionally, appellate lawyers are confronted with the question of in which district court of appeal (DCA) to initiate an appeal or they find themselves in a particular DCA defending an appeal that may not be their choice of forum. For example, the St. Johns River Water Management District maintains its headquarters in Putnam County within the Fifth District Court of Appeal, but its regulatory jurisdiction includes counties within the Fifth and the First district courts of appeal. (1) Similarly, the Southwest Florida Water Management District maintains its headquarters in Hernando County within the Fifth District, but its regulatory jurisdiction includes the Second District Court of Appeal, the Fifth District, and a tiny incursion into the First District Court of Appeal. (2) The question arises where may an appeal be taken from a final order of one of these administrative agencies. That same question arises in a more complex way when the agency has statewide jurisdiction but the decision deals with an action in which both the subject matter and the materially affected party's residence is in a county other than Leon County. The inclination may be to defer to the First District to resolve the controversy. In most cases, the choice of initiating appellate review in the First District or in the district where the agency maintains its headquarters may not be the only district available, and a more convenient forum may be available to an appellant.

The Fifth District Cases

In 2018, three appeals (3) were filed in the Fifth District in Daytona Beach against the Florida Housing Finance Corporation (FHFC) to review the agency's decision regarding the funding for three projects. The FHFC maintains its headquarters in Leon County, within the First District's jurisdiction. (4) The decisions being reviewed related to projects located within the Fifth District. (5) The appellants also had their principal place of business within the Fifth District.

The U.S. Treasury makes low-income (affordable) housing credits available to the states each year, which are administered by the FHFC (the program). (6) FHFC is a public corporation that was created by F.S. [section]420.504, and administers the housing credit program for the State of Florida within the meaning of I.R.C. [section]42(h)(7)(a), 26 U.S.C. [section]42(h) (7)(a). Participants in the program compete for funding by submitting applications in response to requests for application that are issued by FHFC for projects located within the various counties where funds are being made available. (7) Participants are usually commercial entities that have their principal places of businesses around the state in locations other than Leon County. When there are ties among several applicants having received the same competitive score, the competition is settled by the assignment of a random number to the applicants and the lowest lottery number prevails. Challenges are then often undertaken by unsuccessful candidates seeking to disqualify the candidates selected for funding. (8)

The three appeals to the Fifth District were from final orders entered by the FHFC from recommended orders issued by the Division of Administrative Hearings (DOAH) and each challenged the successful applicants receipt of funding by unsuccessful, but equally qualified, applicants. (9) Therefore, each is an administrative action appealed within purview of Fla. Const. art. 5, [section]4(b). Counsel for the unsuccessful applicants each elected to file its notice of appeal in the Fifth District because the projects and the unsuccessful developers were residents of counties within the Fifth District's jurisdiction. (10) Two of the cases were consolidated since they arose from the same request for applications. The third case had come before the Fifth District previously on a successful challenge to the sufficiency of the petition for administrative review. (11)

In each case, the FHFC filed a "motion to transfer venue and supporting memorandum" seeking to have the Fifth District relinquish jurisdiction and transfer the matters to the First District for consideration. (12) FHFC based its memorandum on the principle that:

'It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters. Smith v. Williams, 160 Fla. 580, 35 So. 2d 844 (Fla. 1948) and Ringling Bros Barnum and Bailey Combined Shows v. State, 295 So. 2d 314 (Fla. 1st DCA 1974). Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.' Carlile v. Game and Fresh Water Fish Comm'n, 354 So. 2d 362, 363-364 (Fla. 1977); see also Fish and Wildlife Conservation Comm'n v. Wilkinson, 799 So. 2d 258, 260 (Fla. 2d DCA 2001). (13) The FHFC likened the selection of venue in trial court proceedings to the selection of venue in appellate court proceedings. The appellants opposed the motions to transfer venue. (14) Appellants relied on provisions of the general law to determine the permissive and appropriate appellate forum authorized by statute. (15) The appellants argued that the FHFC has no statutory or legal right to a change of appellate forum, and the selection of the appropriate appellate forum is not a matter related to the circuit court procedural component of "venue," which is a trial...