MARY J. HILL, APPELLANT,
v.
DIVISION OF RETIREMENT, APPELLEE
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The court held that an order dismissing a petition on res judicata grounds, which affects substantial interests and disposes of the case, is a final agency action reviewable by appeal.
[1] An order is final if it disposes of the case before the administrative tribunal.
[2] Judicial review of final agency action is a matter of right for adversely affected parties.
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Join FLexlaw to unlock all legal intelligenceAppellant appealed an order from the State Retirement Commission dismissing her petition on res judicata grounds. The court issued an order to show ca…
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BENTON, Judge.
On November 1, 1996, we issued an order to show cause directing appellant to show why her appeal from an order entered by the State Retirement Commission in the Division of Retirement, Department of Management Services, should not be dismissed. Upon consideration of her response to the order to show cause, we are persuaded that the order to show cause should be discharged.
The order to show cause expressed a concern which, upon reflection, we find misplaced in the context of review of agency action authorized by Florida Rule of Appellate Procedure 9.190 and section 120.68, Florida Statutes (Supp.1996). The body of our order to show cause recited:
This case involves an appeal from a non-final order styled an “Order of Dismissal” in which the State Retirement Commission merely grants the Division of Retirement’s motion to dismiss. Upon the court’s own motion, the appellant is ordered to show cause no later than November 18, 1996, why this appeal should not be dismissed as an appeal from a nonfinal, nonappealable order. See Board of County Comm’rs of Madison County v. Grice, 438 So. 2d 392, 394 (Fla.1982)(“An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is”), citing Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980).
See also Fla. R.App. P. 9.110(m).
The failure of the appellant to comply timely with this order may result in the imposition of sanctions, including dismissal of the appeal.
Rule 9.410, Florida Rules of Appellate Procedure.
Perceiving no need to reiterate here the intricacies of what does and does not constitute a final order in a civil proceeding in circuit court, we write briefly to describe the essential attributes of reviewable final orders entered under the Administrative Procedure Act.
Although the State Retirement Commission’s order was entered before revisions to the Administrative Procedure Act took effect on October 1, 1996, the revised Act applies to the extent it changes only “the ‘means and methods’ by which an administrative determination is rendered.” Life Care Ctrs. of Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So. 2d 609, 614 (Fla. 1st DCA 1996). Two principal consequences flow from the finality of agency action.
Under Florida Rule of Appellate Procedure 9.190(b), review of final agency action begins with the filing of a notice of appeal, in accordance with Florida Rule of Appellate Procedure 9.110(c), instead of with the fifing of a petition for review of a preliminary, procedural, or intermediate order, in accordance with Florida Rule of Appellate Procedure 9.100(b) and (c). See generally Baillie v. Department of Natural Resources, 632 So. 2d 1114, 1116 n. 3 (Fla. 1st DCA)(describing same practice under prior rules), review denied, 642 So. 2d 1362 (Fla.1994).
Review of final agency action taken under the Administrative Procedure Act is, moreover, a matter of right. “A party who is adversely affected by final agency action is entitled to judicial review.” § 120.68(1), Fla. Stat. (Supp.1996). On the other hand, immediate review of a preliminary, procedural, or intermediate agency action or ruling is available only “if review of the final agency decision would not provide an adequate remedy.” § 120.68(1). Fla. Stat. (Supp.1996).
Under Florida’s constitution, “[district courts of appeal shall have the power of direct review of administrative action, as prescribed by general law.” Art. V, § 4(b)(2), Fla. Const. “[T]he final order in a proceeding which affects substantial interests must be in writing and include findings of fact, if any, and conclusions of law separately stated.” § 120.569(2)(j), Fla. Stat. (Supp.1996).
An agency has not rendered a final order until it is “filed with the agency clerk.” § 120.52(7), Fla. Stat. (Supp.1996); Charter Medical-Southeast, Inc. v. State, Dep’t of Health and Rehabilitative Servs., 495 So. 2d 759 (Fla. 1st DCA 1986).
Rendition is similarly defined by Florida Rule of Appellate Procedure 9.020(h).
See Franchi v. Florida Dep’t of Commerce, Div. of Employment Sec., Bd. of Review, 375 So. 2d 1154 (Fla. 4th DCA 1979). “The clerk shall indicate the date of filing on the order.” § 120.52(7), Fla. Stat. (Supp.1996).
Final agency action may take the form of an order whether “affirmative, negative, injunctive, or declaratory” in tenor. § 120.52(7), Fla. Stat. (Supp.1996).
A final agency order may articulate jurisdictional boundaries; require a party to cease or desist; grant, suspend, or revoke a license; impose an administrative penalty; deny an evidentiary hearing; or deny substantive relief of various kinds. A final order may or may not dismiss a petition for hearing or some other pleading. Its finality depends on whether it has brought the administrative adjudicative process to a close. “The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order_” Prime Orlando Properties, Inc. v. Department of Bus. Regulation, Div. of Land Sales, Condominiums, and Mobile Homes, 502 So. 2d 456, 459 (Fla. 1st DCA 1986).
Accord Middlebrooks v. St. Johns River Water Management Dist., 529 So. 2d 1167 (Fla. 5th DCA 1988); Peterson v. State Dep’t of Envtl. Regulation, 350 So. 2d 544 (Fla. 1st DCA 1977).
In its order in the present case, the State Retirement Commission dismissed a petition on res judicata grounds without a hearing, citing Thomson v. Department of Environmental Regulation, 511 So. 2d 989 (Fla.1987).
As recently revised, the Administrative Procedure Act defines a final order as “a written final decision which results from a proceeding under s. 120.56, s. 120.565, s. 120.569, s. 120.57, s. 120.573, or s. 120.574 which is not a rule, and which is not excepted from the definition of a rule.” § 120.52(7), Fla. Stat. (Supp.1996).
Effecting a denial of retirement benefits, the dismissal affected the petitioner’s substantial interests within the meaning of section 120.69, Florida Statutes (Supp.1996) and disposed of the ease before the State Retirement Commission. That the Commission itself viewed its order of dismissal as final may be inferred from the notice of appellate rights included in the order, in accordance with the requirement now codified in section 120.569(1), Florida Statutes (Supp.1996).
The order to show cause is discharged.
ERVIN and KAHN, JJ., concur.
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Earnest Mathis, Jr. v. Fla. Dep't OF Corr., 726 So. 2d 389 (Fla. 1st DCA 1999)…issuance of a Computation of Back Pay.”). . Because the order of February 6, 1996, decided entitlement to back pay while leaving open the amount, the order was interlocutory in nature, its title notwithstanding. See Hill v. Division of Retirement, 687 So. 2d 1376, 1377 (Fla. 1st DCA 1997) (“[An administrative order’s] finality depends on whether it has brought the administrative adjudicative process to a close.”); Braddon v. Doran Jason Co., 453 So. 2d 66, 66 (Fla. 3d DCA 1983). PERC simply bifurcated the pr…
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Earnest Stanberry, Jr. v. Escambia Cnty., 813 So. 2d 278 (Fla. 1st DCA 2002)…rder is final only if it brings all judicial labor in the lower tribunal to a close. See GEICO Fin. Servs. v. Kramer, 575 So. 2d 1345, 1346 (Fla. 4th DCA 1991); Pruitt v. Brock, 437 So. 2d 768, 772 (Fla. 1st DCA 1983). See also Hill v. Div. of Ret., 687 So. 2d 1376, 1377 (Fla. 1st DCA 1997) (“The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order ....”) (quoting Prime Orlando Props, v. Dep’t of Bus. Regulation, 502 So. 2d 456, 459 (Fla. 1st DC…
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Van Morfit v. Univ. OF S. Fla., 794 So. 2d 655 (Fla. 2d DCA 2001)…000), provides that a party who is adversely affected by final agency action is entitled to judicial review. The finality of an agency action depends on whether it has brought the administrative adjudicative process to a close. Hill v. Div. of Ret., 687 So. 2d 1376 (Fla. 1st DCA 1997). There is no question here that the letter from Dean Henry was final agency action under that standard. Pursuant to section 120.81(l)(g), Florida Statutes (2000), educational units follow a different procedure than other agencie…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gries Inv. Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980)
- Bd. of Cnty. Comm'rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983)
- Thomson v. Dep't OF Env't Reg., 511 So. 2d 989 (Fla. 1987)
- Franchi v. Fla. Dep't of Commerce, 375 So. 2d 1154 (Fla. 4th DCA 1979)
- Faust v. City OF N. Port, 529 So. 2d 1167 (Fla. 2d DCA 1988)
- Prime Orlando Props., Inc. v. Dep't of Bus. Reg., 502 So. 2d 456 (Fla. 1st DCA 1986)
- Life Care Ctrs. OF Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So. 2d 609 (Fla. 1st DCA 1996)
- Peterson v. The State of Fla. Dep't OF Env't Reg., 350 So. 2d 544 (Fla. 1st DCA 1977)
- Carson Merry Baillie v. Dep't OF Natural Res., 632 So. 2d 1114 (Fla. 1st DCA 1994)
- Charter Medical-Southeast, Inc. v. State, 495 So. 2d 759 (Fla. 1st DCA 1986)