This post discusses judicial review of non-final agency action. When dealing with a state agency, the agency may enter a preliminary or, non-final, order before ultimately entering a final order. What steps should you take if you disagree with the non-final order?
Under section 120.68(1)(b), Florida Statutes, you can seek review of the order in the appropriate district court of appeal—the district where the agency is headquartered or where you reside. Rather than filing a notice of appeal, you must file a petition to review non-final agency action. Fla. R. App. P. 9.190(b)(2).
The petition must be filed with the district court within 30 days after the order is entered. Fla. R. App. P. 9.100(c). The petition is limited to 13,000 words if computer generated and must include the basis for invoking jurisdiction, the relevant facts, the nature of the relief sought, and argument and citations. Fla. R. App. P. 9.100(g). You must also file an appendix when filing the petition as no record on appeal will be generated. Id.
To prevail on your petition, you must establish that the agency departed from the essential requirements of the law, and that the departure caused irreparable harm which cannot be remedied on appeal from a final order. Agency for Health Care Admin. v. South Broward Hosp. Dist., 206 So. 3d 826 (Fla. 1st DCA 2016). The standard is analogous to the standard for common law certiorari. Id.
Prevailing on a petition to review non-final action is rare. Probably the most common non-final orders that get quashed are orders compelling discovery of privileged or confidential information. See Florida Power & Light Co. v. Florida Public Serv. Comm’n, 31 So. 3d 860 (Fla. 1st DCA 2010). Despite the rarity, if you feel strongly that a non-final is wrong and that the harm cannot be remedied on appeal from a final order, then you can seek review of the order.
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 email@example.com.