This post discusses attorneys’ fees in administrative appeals. Fees in administrative appeals are governed under Florida Rule of Appellate Procedure 9.190(d). Under that rule, fees are requested by filing a motion with the appellate court. Fla. R. App. P. 9.190(d)(1). The motion must be served no later than the deadline for serving the reply brief and must state the statutory grounds for fees. Id. Even if fees are mandatory to the prevailing party, a motion must still be timely filed. Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So. 2d 1054 (Fla. 5th DCA 1998).
For administrative appeals, section 120.595, Florida Statutes, is the primary statutory basis for fees. That statute authorizes a party to move for fees in rule and unadopted rule challenges; when the appeal is frivolous; when the agency’s action prior to the appeal was a gross abuse of discretion; or when the agency improperly rejected findings of fact in a recommended order. Other statutes, including section 57.105, Florida Statutes, can also be relied on when moving for fees. § 120.595(1)(a), (6), Fla. Stat.
If the appellate court grants the motion, the court typically remands the matter to the lower tribunal to determine the fee amount. Fla. R. App. P. 9.190(d)(2). For example, in a recent case, the First DCA granted our firm’s motion for fees and remanded the matter to DOAH to determine the amount. Dep’t of Revenue v. 1701 Collins Miami Owner, LLC, 1D20-127, 2021 WL 1962962 (Fla. 1st DCA May 17, 2021).
The lower tribunal’s order on the fee amount can then be reviewed by filing a motion in the appellate court. Fla. R. App. P. 9.190(d)(3). The motion must be filed within 30 days of rendition of order. Id.
An important concept when moving for fees is that fee statutes are strictly construed, meaning fees can be awarded only when explicitly authorized by the statute. Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001).
For example, in a recent case from the Third DCA, a party challenged an agency’s emergency rule under section 120.68(9), Florida Statutes. The party then sought attorneys’ fees under section 120.595(3), Florida Statutes. Sch. Bd. of Miami-Dade Cnty. v. Dep’t of Health, No. 3D21-1748 (Fla. 3d DCA Oct. 6, 2021).
In denying the fee request, the Third DCA noted that fees under section 120.595(3) are limited to “challenges to existing agency rules pursuant to section 120.56(3) and (5).” Because section 120.595(3) does not authorize fees in rule challenges under section 120.68(9), the Third DCA held that the party was not entitled to fees.
When appealing agency action or defending an appeal, the right to fees should always be examined. If a basis exists, then it is imperative to follow the procedures under Florida Rule of Appellate Procedure 9.190(d).
Jonathan Taylor is an associate attorney with The Law Offices of Moffa, Sutton, & Donnini, P.A. Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals. Mr. Taylor also volunteers with Guardian ad Litem to handle appellate matters. Mr. Taylor can be reached at 954-234-2884 or firstname.lastname@example.org.