Petitions for review: getting the final word on nonfinal agency action.

• Author: Chisenhall, Garnett
• Position: Administrative Law

In Agency for Health Care Administration v. Murciano, 163 So. 3d 662 (Fla. 1st DCA 2015), the Agency for Health Care Administration (AHCA) and an administrative law judge (ALJ) disagreed over whether the ALJ had to make certain findings of fact given the circumstances of that particular case. After the ALJ declined a second order of remand from AHCA, the agency filed a petition for writ of mandamus with the First District Court of Appeal. Rather than entertaining AHCA's mandamus petition and evaluating whether the ALJ had a ministerial duty to make the findings of fact at issue, the court initially determined that it would have been more appropriate for AHCA to have sought judicial review via a petition for review of nonfinal agency action. (1) Ultimately, the court ruled that the ALJ "departed from the essential requirements of the law in declining AHCA's second request to make" the factual findings at issue. (2)

Murciano is an example of how administrative law practitioners can use a petition for review to challenge nonfinal orders entered by agencies and ALJs. However, prospective petitioners and respondents must be aware of the substantial differences between seeking judicial review of a nonfinal order and the typical direct or plenary appeal. Those differences may significantly influence the decision to seek judicial review, and they will most certainly impact a petitioner's likelihood of success.

Petition for Review of Nonfinal Agency Action Functions Like a Petition for Writ of Certiorari

When discussing petitions for review of nonfinal agency action with my colleagues, I often refer to them as administrative law's version of a petition for writ of certiorari. That is because such petitions are the means by which a party can seek judicial review of nonfinal orders entered by agencies and ALJs from the Division of Administrative Hearings. (3) My characterization is also appropriate because petitions for review are governed by the same procedural rules that apply to certiorari petitions. (4) In fact, the committee notes to Fla. R. App. P. 9.100 indicate that the rule "provides the procedures necessary to implement" F.S. [section]120.68(1).

Accordingly, a proceeding to review nonfinal agency action is an original proceeding that is commenced by filing a petition (along with the applicable filing fee) with the district court of appeal having jurisdiction. (5) As is the case with notices of appeal in direct or plenary appeals, a petition for review must be filed with the appellate court having jurisdiction over "the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law." (6)

Rule 9.100(b)(1) sets forth additional requirements that apply to petitions for review. For instance, "all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents." Also, while the agency official or ALJ responsible for the nonfinal order at issue shall not be named as a respondent, Rule 9.100(b)(3) requires that he or she be served with a copy of the petition for review. Furthermore, and perhaps most importantly, a petition for review "shall be filed within 30 days of rendition of the order to be reviewed." (7)

As for a petition for review's format, Rule 9.100(g) mandates that the petition "shall not" exceed 50 pages in length and shall contain 1) the basis for invoking the appellate court's original jurisdiction; 2) the facts on which the petitioner relies; 3) the nature of the relief sought; and 4) argument with appropriate citations to authority. In addition, the petition for review must be accompanied by an appendix conforming to Rule 9.220. (8) That appendix serves as "the record" for the original proceeding and should contain everything necessary to describe the relevant aspects of what transpired below and to demonstrate that the petitioner is entitled to relief. (9)

If a petition for review appears to be facially meritorious, then a district court of appeal will issue an order requiring the respondent to explain why the petitioner is not entitled to relief. (10) The district court of appeal's order will establish a time by which the response must be filed, and the response is limited to 50 pages. If the petitioner's appendix does not include documents that a respondent wants to cite in its response, then the respondent has the option of submitting its own appendix. (11) Following the response, a petitioner has 20 days to serve a reply, limited to 15 pages, along with a supplemental appendix. However, submission of a reply is strictly optional. (12)

A District Court of Appeal Is Not Bound by How an Attorney Characterizes a Petition

Like AHCA in Murciano, a practitioner could encounter a situation in which it is unclear whether a petition for review or a petition for an extraordinary writ (such as mandamus or prohibition) is the appropriate means of seeking relief. Fortunately, a district court of appeal has the ability (but not the obligation) to treat a petition as if the correct remedy is being sought. (13) Furthermore, a district court of appeal can even treat a notice of appeal as a petition for review if a party erroneously seeks a direct or plenary appeal of a nonfinal order. (14)

Accordingly, there are no adverse consequences if a party files a petition for review when a petition for mandamus or prohibition would have been the appropriate remedy. Likewise and as was the case for AHCA in Murciano, there are no adverse consequences if a party files a petition for an extraordinary writ when a petition for review would have been more appropriate. However, a party could lose any ability to seek judicial review...