Practice tips for private attorneys new to administrative law.

• Author: Chisenhall, Garnett
• Position: Administrative Law

In the course of representing state agencies over the last 10 years, I have worked with many outstanding private attorneys who know the Administrative Procedure Act (i.e., F.S. Ch. 120) backward and forward. I have also worked with private attorneys who had little or no previous experience with administrative law. Sometimes, these attorneys became involved in an administrative law case because a client had an issue with an agency and did not want to retain an attorney with whom they had no previous dealings. Those attorneys were very knowledgeable in their customary practice areas, but often failed to appreciate the unique aspects of administrative law. While an attorney new to administrative practice will probably discover that hearsay is admissible in an administrative proceeding upon making the first hearsay objection during an administrative hearing, other unique aspects of administrative law are not so easily discoverable. (1) As a result, attorneys unfamiliar with this field run the risk of committing significant errors that will undermine their cases and their clients' best interests. For private attorneys new to administrative law, this article explains some basic (but extremely important) steps that can be taken to avoid those errors.

Getting Started

The first task in administrative litigation is to ascertain what portion of the Administrative Procedure Act governs your case. For instance, if you are challenging an existing or unadopted agency rule, then your case will be governed by the procedures set forth in F.S. [section] 120.56. On the other hand, if you are challenging proposed agency action, such as an application denial or licensure discipline, then your case will be governed by the procedures set forth in F.S. [section][section] 120.569 and 120.57.

In any cases under [section] 120.57, you will file a petition or a request for hearing with the agency in question, and the agency will refer the matter to the Division of Administrative Hearings (DOAH) if there are any disputed issues of material fact that must be resolved by an impartial fact-finder. (2) If the case proceeds to a formal hearing before an administrative law judge, then DOAH will issue a recommended order that the agency may adopt as its final order. (3)

In contrast to cases under [section] 120.57(1), in which DOAH issues a recommended order, DOAH has final order authority in rule challenges conducted pursuant to [section] 120.56. The agency in question acts merely as a party litigant and will not be issuing the final order. Also, petitions under [section] 120.56 are filed directly with DOAH rather than with the agency. (4)

Administrative proceedings are also governed by the rules set forth in Ch. 28-106 of the Florida Administrative Code. Counsel should read the rules and be aware that the agency and the administrative law judges follow them and expect them to be followed. For example, before filing a petition or request for hearing, be sure that your pleading satisfies the requirements set forth in Rules 28-106.201, 28-106.2015, and 28-106.301. If one of the elements required by the rules is not alleged, there is a risk that your petition will be dismissed.

There is a significant difference in motion practice between DOAH and circuit court. Rule 28-106.204(1) provides for the filing of responses to motions within seven days of service. The ALJ will schedule a hearing if needed; otherwise, the ALJ will decide the motion without argument based on the motion, any supporting memoranda, and the response. Filing a timely response to a motion is advisable in almost every instance.

Rule 28-106.204(2) requires that any motion, other than a motion to dismiss, contain a statement that the movant has conferred with other parties of record and state whether the parties object to the motion. Counsel should be aware that administrative law judges have summarily denied motions that fail to contain this required statement.

Practitioners new to DOAH will be comforted by the fact that other provisions in Ch. 28-106 cause DOAH proceedings to be very much like civil litigation. (5)

Regardless of whether you are at DOAH under [section] 120.56 or [section] 120.57, all pleadings must be filed by electronic means through DOAH's e-filing system. (6)

Always File Exceptions to an Unfavorable Recommended Order

As discussed above, DOAH has final order authority in some cases, and those final orders can be appealed directly to a district court of appeal. (7) However, in the majority of cases, DOAH acts as a finder-of-fact and issues a recommended order that an agency may adopt as its final order. In those cases, "exceptions" are the means through which a party presents argument to the agency identifying asserted errors committed by an administrative law judge. If the agency considers an exception to be well taken, then it will not adopt the portion of the recommended order to which the exception was directed. However, and as discussed in more detail in the next section, an agency's ability to reject any portion of a recommended order is very limited. (8)

The very end of every recommended order from DOAH has a paragraph entitled, "Notice of Right to Submit Exceptions." The paragraph states that "[a]ll parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case." (9) Over the course of my career defending appeals for state agencies, I have won many cases simply because attorneys new to administrative practice often failed to appreciate the significance of this paragraph. As explained below, it is vitally important that an attorney not overlook this unique aspect of administrative litigation.

While the paragraph at the end of every recommended order states that "[a]ll parties have the right to submit written exceptions," exceptions are absolutely essential if one has any intention of appealing a final order adopting an unfavorable recommended order. (10) In the administrative arena, as in criminal litigation and other types of civil litigation, issues must be preserved for appeal. It is well established that exceptions are the means by which a party preserves arguments for appellate review and the failure to do so can waive the issue on appeal. (11)

Even though it is not expressly required by any statute or rule, an attorney filing an exception to an administrative law judge's findings of fact must have a transcript. An agency can only reject an administrative law judge's finding of fact if a review of the entire record demonstrates the finding in question was unsupported by competent, substantial evidence. (12) As a result, it is impossible for the proponent of an exception to carry that burden without furnishing the agency with a transcript of the evidentiary hearing conducted by the administrative law judge.

An attorney who is faced with the task of preparing exceptions should make sure to devote sufficient effort to developing the arguments set forth in them because "[o]rdinarily, an issue will not be considered on appeal unless the precise legal argument forwarded in the appellate court was presented to the lower tribunal." (13)

While any significant discussion is beyond the scope of this article, it should be noted that a small handful of issues can be raised on appeal even if they were not set forth in exceptions to a recommended order. For example, one does not have to argue in exceptions that a statute is facially unconstitutional because an agency is prohibited from declaring a statute unconstitutional. (14)

However, the vast majority of arguments not set forth in exceptions can only be raised on appeal if the alleged error was fundamental in nature. (15) As anyone familiar with appellate practice can attest, one should take all measures necessary to avoid being in the unenviable position of arguing that a lower tribunal committed fundamental error, or worse, arguing that one's neglect was excusable.

In addition to filing exceptions setting forth the precise legal argument one intends to raise in a potential appeal, one must file timely exceptions. Unless the agency that will rule on the exceptions grants a motion for extension of time, exceptions must be filed within 15 days following entry of the recommended order. (16) If this deadline is missed, then a party runs the risk of having its exceptions stricken and the arguments raised therein deemed unpreserved for appellate review. (17)

Not only must exceptions be precise and timely filed, they must also be filed in the right place. Even though the paragraph at the very end of every recommended order states "[a]ny exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case," I have occasionally seen attorneys file their exceptions with DOAH rather than with the agency responsible for issuing the final order. While misfiled exceptions may ultimately find their way to the agency responsible for rendering the final order, a party runs the risk of having its exceptions stricken as untimely if they are filed with the wrong government office. (18) Therefore, before one's exceptions are due to be filed, contact the clerk of the agency in question and ascertain the precise mailing address of the clerk's office (not just the general mailing address for the agency) and inquire as to whether the exceptions can be filed electronically or by facsimile.

It is also important that exceptions satisfy the requirements of Rule 28-106.217(1) of the Florida Administrative Code. For instance, the rule mandates that "[e]xceptions shall identify the disputed portion of the recommended order by page number and paragraph, shall identify the legal basis for the exception, and shall include any appropriate and specific citations to the record." (19) I have often seen agencies deny exceptions simply...