Rule-challenge standing after NAACP, Inc. v. Florida Board of Regents.

• Author: Ellis, Richard M.

There are more general0 guidelines than bright lines in the case law on standing to challenge the validity of proposed or existing administrative rules under F.S. [section] 120.56. With the Florida Supreme Court's recent decision in NAACP, Inc. v. Florida Board of Regents, 28 Fla. L. Weekly $815 (November 13, 2003), it is worthwhile to reconsider this subject, and the extent to which NAACP makes matters more or less clear, or maintains the status quo.

Test for Rule-challenge Standing in General

F.S. [section] 120.56(1)(a) provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." To demonstrate that one is or will be "substantially affected" by a rule or proposed rule, an individual challenger must establish that application of the rule will result in "a real and sufficiently immediate injury in fact" and that "the alleged interest is arguably within the zone of interest to be protected or regulated." (1) In cases where an association challenges a rule or proposed rule, the association must demonstrate that 1) a substantial number of its members, though not necessarily a majority, will be "substantially affected" by the challenged rule; 2) the subject matter of the rule is within the association's general scope of interest and activity; and 3) the relief requested is of the type appropriate for a trade association to receive on behalf of its members. (2)

The original formulation of the test for rule challenge standing was simpler, though not necessarily clearer. In Florida Department of Offender Rehabilitation v. Jerry, 353 So. 2d 1230 (Fla. 1st DCA 1978), the First DCA held that an inmate in the state correctional institution had no standing to challenge a disciplinary confinement rule when, at the time of filing his petition, he had already served his penalty. In so holding, the First DCA set out the requirement of showing an injury of "sufficient immediacy and reality" as the test for rule-challenge standing. The test was failed in Jerry since it was unknown whether and when the petitioner would again be subject to disciplinary confinement, and application of the rule.

"Zone of interest" analysis first made its appearance in the case law on rule-challenge standing in Florida Medical Association v. Department of Professional Regulation, 426 So. 2d 1112, 1114 (Fla. 1st DCA 1983). It is derived from Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). Agrico was not itself a rule-challenge case, but instead involved the Department of Environmental Regulation's denial of a construction permit for solid sulphur-handling facilities. The Second District Court of Appeal found that two sulphur suppliers had no standing to intervene in the administrative proceeding brought by the chemical company under [section] 120.57(1), on the basis that the suppliers' competitive economic interest was not protected or regulated under F.S. Ch. 403. (3)

From the beginning of its use in rule-challenge cases, "zone of interest" has been considered more broadly than it has been in challenges to agency determinations under F.S. [section] 120.57(1). (4) The rule-challenge petitioner is not limited to the statutes being implemented by the agency action, in showing the interest to be protected or regulated. Instead, the "zone of interest" in a rule-challenge case may be based upon an interest created by another statute, or by the constitution. (5)

Background of NAACP

In November 1999, Governor Bush signed Executive Order 99-281. Section 3 of the order, entitled "Non-Discrimination in Higher Education," requested in pertinent part that the Florida Board of Regents "implement a policy prohibiting the use of racial or gender set-asides, preferences, or quotas in admissions to all Florida institutions of Higher Education, effective immediately." In February 2000, pursuant to the governor's request, the board of regents adopted amendments to its rules setting general requirements for student admissions, admission requirements for entering freshmen, and admission requirements for entering or transferring graduate and professional students. The amendments were approved by the Florida Board of Education. (6)

Seven of the amendments were challenged by NAACP, Inc., Mattie Garvin, individually and as mother of Keith Garvin, and Keith Garvin individually, under F.S. [section] 120.56. The challenged amendments modified the board of regents' existing rules by: 1) repealing language stating that universities may use alternative admission methods to increase enrollment of a diverse student body; 2) establishing the "Talented 20 Program" which guaranteed university admission to students in the top 20 percent of their high school graduating class; 3) prohibiting the use of racial and gender preferences in the admissions process, but allowing for the consideration of various race and gender-neutral factors as part of an applicant's "profile assessment"; and 4) repealing the rule providing for alternate admissions to limited access programs, i.e., upper level programs with competitive admissions due to limited space or resources. (7)

The Petition to Determine Invalidity of a Proposed Rule, filed with DOAH to initiate the rule challenge, treated associational standing for NAACP, Inc., as given, citing Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. 1st DCA 1992), and Florida Home Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982). (8) However, rather than to concede the petitioners' standing, the board of regents contested it, and succeeded in part. The administrative law judge dismissed the challenge to the rule amendments for admission to upper level programs, finding in pertinent part that Keith Garvin was only in 10th grade, and that petitioners' interest in graduate level education was too remote for them to be "substantially affected." (9) The ALJ otherwise found the petitioners to have standing to challenge the rule amendments, relying heavily on Coalition of Mental Health Professionals v. Florida Department of Professional Regulation, 546 So. 2d 27 (Fla. 1st DCA 1989). On the merits, the final order found that all but one of the challenged amendments was a valid exercise of delegated legislative authority. (10) The rule challengers appealed the final order to the First District Court of Appeal, and the board of regents...