Wednesday, July 11, 2007

Ok, An APA Geek Case to Be Sure, But Important for Appeals

In Cocktails Plus v. Dep't of Prof & Bus. Svc, the 1st DCA held that it had jurisdiction over an appeal of a Final Order. The agency issued a "Final Order" on February 19, 2007. That "order" did not include rulings on the exceptions to the DOAH judge's Recommended Order. The agency then issued an Amended Final Order on March 9, 2007.

The Court issued an order to show cause why the appeal should not be dismissed:
Upon the Court's own motion, the appellant is hereby directed to show cause,
within ten days from the date of this order, why this appeal should not be
dismissed as untimely. Specifically, it appears to the Court that an earlier
final order was entered by the Division on February 19, 2007. Because it is
unclear to the Court whether the changes made by the Division in its "Amended
Final Order" were material, it is not apparent whether the instant order
restarted the time to file an appeal. See St. Moritz Hotel v. Daughtry, 249 So.
2d 27 (Fla. 1971); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973
(Fla. 4th DCA 2003). The appellant shall attach to the response copies of the
February 19, 2007, original final order, as well as any motion that may have
delayed rendition of this order. If any additional pleading or order is
referenced in the response, a copy of the document shall be attached to the
response. Failure to timely comply with this order may result in the imposition
of sanctions, which may include dismissal of the appeal, without further
opportunity to be heard. See Fla. R. App. P. 9.410
When it looked at the orders, it decided that the agency's failure to address exceptions in the first order rendered it "non final" (despite its title) and that the Court therefore had jurisdiction. Here's the language, for future use:

The Final Order, which had been filed with the agency clerk on February 19,
2007, was not final and therefore did not start the time to file a notice of
appeal. Cf. St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla. 1971); Maxfly
Aviation Inc. v. Capital Airlines Ltd., 843 So. 2d 973 (Fla. 4th DCA 2003).
Specifically, the Final Order did not consider, or make explicit rulings on,
the exceptions to the recommended order that were filed by the appellant. See
§ 120.57(1)(k), Fla. Stat. (2006). An administrative order that does not
bring the administrative adjudicative process to a close does not dispose of
the case and is not final. See Hill v. Division of Retirement, 687 So. 2d
1376, 1377 (Fla. 1st DCA 1997).

SO, all you folks out there, we now know that an Amendment in a Final Order to address exceptions is a material change that resets the appeal date.

Moreover, based on this opinion, if a Final Order does NOT address exceptions the order is not actually final. Therefore, the proper course of action would be to file for rehearing/reconsideration, rather than a notice of appeal to get the exceptions considered. But what happens if you file the motion for rehearing/reconsideration and the agency does nothing before your time to appeal runs? Do you have to file your appeal (to what is now, legally, a non-final order) by the 30th day? I would. What happens if the more narrow window for filing a motion for rehearing closes? Have you waived your right to complain?

Any comments from APA gurus?

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