What to Except When You're Excepting: Practice Pointers for Filing Effective Exceptions to Recommended Orders.

• Author: Van Whittle, Lyyli
• Position: Florida

Regardless of their chosen area of practice, most attorneys will be exposed to administrative law at some point during their legal career, either personally or professionally. The Florida Administrative Procedure Act (1) (APA) contains a number of traps for practitioners who are unaccustomed to administrative law. Even for experienced administrative law practitioners, determining how to best challenge adverse decisions requires navigating numerous considerations. This is especially true when it comes to filing "exceptions" to recommended orders. Because the exceptions process is somewhat unique to administrative law, many inexperienced practitioners fail to understand its importance until it is too late. This article intends to provide both new and experienced attorneys with considerations that should be taken into account when filing exceptions.

The need to consider exceptions follows administrative proceedings involving agency decisions that determine the "substantial interests of a party." (2) These proceedings typically involve situations in which the parties dispute issues of material fact that are submitted to a presiding officer who will hold a hearing. (3) Following such a hearing, (4) the APA requires the presiding officer to "complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order." (5) Parties that disagree with the recommended order or a portion of it may file exceptions to the agency that will be issuing the final order. The purpose of filing exceptions is two-fold: 1) The practitioner has the opportunity to convince the agency that will be issuing the final order why the recommended order should not be accepted as a whole; and 2) it assists in a later appeal, should the agency disagree.

When, Where, and How to File Exceptions

As soon as a recommended order has been issued, a party should immediately determine the timeframe within which exceptions are due and where the exceptions are to be filed. Other than very limited situations, exceptions to a recommended order must be filed with the agency no later than 15 days after the recommended order issues. (6) If a party has received notice informing him or her of the requirement of taking certain action within a specified period of time, and that party delays for a protracted length of time in taking the required action, "that party may be deemed to have waived his or her right to so act." (7) Thus, untimely exceptions can be struck. However, in narrow circumstances, the agency may have discretion to accept late-filed exceptions if there is an extraordinary equitable reason the deadline was missed. (8) Because exceptions must contain "appropriate and specific citations to the record," (9) a practitioner should make arrangements early to obtain any necessary transcripts of the hearing.

In addition, practitioners should take care to file exceptions in the correct location. A common error is for a practitioner to file the exceptions with the Division of Administrative Hearings (DOAH) instead of with the agency. (10) Similarly, umbrella agencies, such as the Department of Management Services or the Department of Financial Services, will sometimes receive exceptions that should be directed to the agencies they provide administrative support to, such as the Public Employees Relations Commission or the Office of Financial Regulation. Exceptions that are filed with DOAH or the incorrect agency may not docket as received until the date the correct agency receives them. (11) Thus, if a practitioner files his or her exceptions in the incorrect location and the correct agency receives them after the 15-day time period, a practitioner would need to demonstrate that the late filing should be accepted for some extraordinary equitable reason that excuses the late filing. (12) It is better to file in the correct location initially in the timeframe allowed than be in the difficult position of trying to get an agency to accept late-filed exceptions.

In some instances, particularly in involved cases with significant amounts of evidence and issues, it may not be possible to file the exceptions by the initial deadline. Practitioners who anticipate not being able to file exceptions by the deadline should file a motion for an extension of time well before the deadline and state good cause for the request. (13) Moreover, as with most motions filed in administrative proceedings, practitioners must include a statement that the moving party conferred with all other parties of record and indicate whether the other parties object to the motion. (14)

A final procedural requirement under the uniform rules of administrative procedure requires that exceptions be provided to all parties by fax or electronic mail, if such have been provided, on the same day that the exceptions are filed with the agency. (15) Other parties are then entitled to file responses to exceptions within 10 days from the date the exceptions are filed with the agency.

Exceptions to Findings of Fact Versus Exceptions to Conclusions of Law

The first item to which practitioners should be cognizant of in filing exceptions is the different types of review that agencies are required to undertake for findings of fact and conclusions of law. An agency's authority to overturn or modify a presiding officer's findings of fact is extremely limited. (16) In particular, an "agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." (17) A presiding officer's role is to consider all of the evidence presented, resolve conflicts, determine credibility, weigh evidence, and make ultimate findings of fact. (18) If the evidence presented supports two inconsistent findings, it is the presiding officer's role to decide the issue, and the agency can reject a presiding officer's finding of fact only when there is no...