03-000901 Mr. &Amp; Mrs. Willie Jenkins vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, June 30, 2003.

Summary: Refusal of applicant to take foster child to scheduled doctor`s appointments and pick up child at school when child was sick justified denial of application for relicensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. & MRS. WILLIE JENKINS, )

)

Petitioners, )

)

vs. ) Case No. 03 - 0901

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Section 120.569, Florida Statutes, and Section

120.57(1), Florida Statutes, on May 8, 2003, in Fo rt Lauderdale,

Florida, before Stuart M. Lerner, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners: James O. Walker, III, Esquire

1339 Northeast Fourth Avenue

Fort Lauderdal e, Florida 33304

For Respondent: Deborah Guller, Esquire

Department of Children and

Family Services

201 West Broward Boulevard, Suite 502

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Petitioners' application for family foster home

relicensure should be denied for the reasons set forth in the

February 6, 2003, letter that Petitioners received from the

Department of Children and Family Services (DCFS).

PRELIMINARY STATEMENT

By letter dated February 6, 2003, DCFS a dvised Petitioners

of its intention to deny their application for relicensure of

their family foster home. The letter read, in pertinent part,

as follows:

Please be advised that your application for

relicensure of you[r] family foster home has

been denie d. The Department's authority to

deny a family foster home application for

relicensure is pursuant to section

409.175(8), Florida Statutes, and Rule 65C -

13, Florida Administrative Code.

The Department based its decision, in part,

on intentional or neglig ent acts by you.

Your actions materially affected the health

and safety of children in your home and

constitute a violation of licensing rules.

A. F.A.C. 65C - 13.010(1)(b)6.b. : "The

substitute care parents are expected to

transport children for medica l, dental or

other appointments which may be needed.

They are to remain with the child if needed

for support and reassurance."

The foster care counselor reported that

Mrs. Jenkins has not made any efforts to

take T. G. to his scheduled doctor

appointment s. He has missed approximately

six appointments because she did not

transport him.

The Lauderdale Manors Elementary School

staff reported that on December 19, 2003

[sic], Ms. Jenkins was called at 12:30 p.m.

to pick up T. G. from school because he was

ver y sick. Given that Mrs. Jenkins had not

picked [up] the child at 3:30 p.m., the

school nurse called her again to ask her to

pick up T. G. Mrs. Jenkins reportedly

stated that the school should allow the

child to walk to the after school program,

notwithst anding his medical condition. The

school denied the request and ten minutes

later she picked him up.

B. F.A.C. 65C - 13.010(1)(b)9.b., c., d. :

"The substitute care parents are expected to

take part in the selection and arrangements

for educational progr ams which are

appropriate to the child's age and ability."

"The substitute care parents must

participate in the child's school

activities, including regular teacher

conferences."

"The substitute care parents are expected to

keep the counselor informed of the

educational plan, activities, school

problems and the educational progress of the

child, and to keep records of the same."

The Lauderdale Manors Elementary staff

reported the following: Mrs. Jenkins on

several occasions would not give money to

her f oster children to attend field trips.

One of the teachers purchased the school

uniforms for the foster children, as she was

not happy with the appearance of the

children when they attended school. Every

time the school has contacted Mrs. Jenkins

regardin g any of the foster children, she

never has time to talk to them or come to

school.

C. F.A.C. 65C - 13.010(1)(b)5.a. : " . . .

substitute parents must discipline children

with kindness, consistency and

understanding."

F.A.C. 65C - 13.010(1)(b)5.f. : "The

su bstitute parents must not use corporal

punishment of any kind."

T. G. reported to one of the licensing

counselors that Mrs. Jenkins pinches him and

makes him stand in the laundry room when he

is bad.

D. F.A.C. 65C - 13.010(2)(b) : "The

substitute care par ents must participate in

planning visits for the child with his

parents and family members."

The foster care counselor for W. B. reported

Mrs. Jenkins was uncooperative and non -

compliant with a court order to arrange for

W. B.'s sister to pick him up on

T hanksgiving Day.

Foster care counselor also reported

Mrs. Jenkins never returned her calls

concerning W. B.

By letter dated February 17, 2003, Petitioners requested an

administrative hearing on DCFS's proposed denial of their

application for relicensure. DCFS, on March 14, 2003, referred

the matter to DOAH for the assignment of a DOAH Administrative

Law Judge to conduct the hearing Petitioners had requested.

As noted above, the hearing was held on May 8, 2003.

Twelve witnesses testified at the hearing: Ann Livermore,

Monica Marshall, Doris Bennett, Khalilah Dawes, Jayme Dias,

Sonia Martinez, Myrielle Smith, Mrs. Willie Jenkins, Isioma

Anderson, Pastor James Ray, Heather La Suza, and Michael Watt.

In addition, a total of five exhibits (Petitioners' Exhi bits 1

through 3, and Respondent's Exhibit's 1 and 4), were received

into evidence. 1

At the close of the evidentiary portion of the hearing on

May 8, 2003, the undersigned, on the record, advised that

proposed recommended orders had to be filed with the D ivision

within 35 days.

DCFS and Petitioners filed their Proposed Recommended

Orders on June 12, 2003. These post - hearing submittals have

been carefully considered by the undersigned. 2

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the re cord as

a whole, the following findings of fact are made:

Background Information

1. Petitioners are husband and wife.

2. They operated a licensed family foster home at their

residence in Fort Lauderdale, Florida, for seven years until

their most recent license expired.

3. Among the foster children who were in Petitioners' home

during the last of these seven years were T. G. and W. B.

4. T. G. was placed in Petitioners' home on October 14,

2002, and was removed from the home on January 21, 2003.

5. W. B. was placed in Petitioners' home on October 21,

2002, and was removed from the home on December 18, 2002.

6. On November 24, 2002, Petitioners and DCFS executed a

Bilateral Service Agreement (Agreement) as part of the family

foster home licensing pro cess. By signing the Agreement, which

provided, in pertinent part, as follows, the Parents "agree[d]

to abide by [its] terms":

Purpose :

The purpose of this Agreement is to identify

the expectations for both foster parents and

the Department of Children a nd Families on

behalf of the children and families that are

served in the foster care program. Note:

for this agreement Department means Family

Safety staff, Lead Agency Staff, Contract

Case Management staff or Contract Licensing

staff. This agreement r eflects standards of

care that are current requirements in

Florida Administrative Code, which are based

on statutory authority found in section

409.175, Florida Statutes. The premise of

this agreement is that the department and

foster parents must work as partners to

assure safety, to provide for the physical

and mental well being and to obtain

permanency for each child.

* * *

Foster Parent Responsibilities to the child

include :

* * *

e. To assist in setting up visits with the

child's parent(s) or relatives.

* * *

h. To transport and accompany the child to

medical, dental, mental health appointments

and visits with parents and relatives.

i. To provide the child his/her monthly

spending allowance which is included in the

board payment.

j. To buy the child clothing . . . with the

monthly board rate and clothing

allowance . . . .

* * *

m. To adhere to the department's safety and

discipline po licies, see Attachment A.

Failure to comply with the department's

safety and discipline policies may result in

the removal of children from the home.

* * *

s. To promote the following conditions for

the child in the home:

1. Opportunities and encouragement to

communicate and have contact with family

members, friends and other people important

to the child. . . .

2. Respect for the child's body,

person, . . . .

* * *

7. Provide the child wi th suitable

clothing, [that] is appropriate for the

weather, and appropriate for the age of the

child. . . .

Foster Parent Responsibilities to the

department include :

* * *

j. To use the clothing allowance . . . to

buy the ch ild clothes and shoes.

* * *

n. To allow the child to be removed from

the foster home only by a department staff

member, Guardian ad Litem, or another party

granted permission by the department of the

court. To verify the iden ti[t]y and

authority of staff and other parties when

not known to the foster parent.

* * *

p. To know where and with whom the child is

staying and the type of supervision the

child is receiving when foster parents

approve an ou ting or overnight activity.

Children may not remain in an unlicensed

setting for any time other than a planned,

supervised outing or overnight activity

without the explicit approval of the

department.

* * *

Non - compliance with any of the above

provisions may result in administrative

action by the Department, which could

include corrective action, suspension,

revocation or denial of further licensure

pursuant to Chapter 120, Florida Statutes.

7. Attachment A to the Agreement se t forth the following

"Discipline Policies," among others:

The foster parents must discipline children

with kindness, consistency, and

understanding, and with the purpose of

helping the child develop responsibility

with self - control.

* * *

3. Foster parents must use positive methods

of discipline, including the following:

* * *

(IV) Grounding, restricting the child to

the house or yard, or sending the child out

of the room and away from the family

ac tivity;

* * *

5. The foster parents must not subject

children to cruel, severe, humiliating or

unusual punishment . . . .

6. The foster parents must not use corporal

punishment of any kind.

* * *

11. The foster parents must not deny a

child contact or visits with his family as

punishment.

* * *

Alleged Violation of Rule 65C - 13.010(1)(b)6.b., Florida

Administrative Code

8. There were occasions when Petitioners refused, without

adequate justification, to take T. G. to scheduled doctor's

appointments. On these occasions, T. G.'s DCFS case worker,

Khalilah Dawes, had to take T. G. to the doctor so he would not

miss his appointments.

9. The morning of December 19, 2002, T. G. became ill at

school (Lauderdale Manors Elementary School, where he was a

kindergarten student). At around 10:00 a.m., he went to the

school office, where he spoke to Monica Marshall, the school

secretary. There was no school nurse at the school th at day to

care for T. G. Ms. Marshall, therefore, telephoned

Mrs. Jenkins, told Mrs. Jenkins that T. G. was ill, and

requested that Mrs. Jenkins come by school to pick T. G. up,

which Mrs. Jenkins agreed to do. By 12:30 p.m., however,

Mrs. Jenkins had no t yet arrived at school. Ms. Marshall,

therefore, telephoned Mrs. Jenkins again. During this second

telephone conversation, Mrs. Jenkins told Ms. Marshall that, if

she (Mrs. Jenkins) was not at school by the end of the school

day, Ms. Marshall should jus t let T. G. walk across the street

to the after - school program in which he was enrolled.

Mrs. Jenkins did not pick T. G. up at any time during the

regular school day. 3

Alleged Violation of Rule 65C - 13.010(1)(b)9.b., c., and d.,

Florida Administrative Code

10. There were occasions when foster children in

Petitioners' care, including T. G., did not go on school field

trips because the children did not have money to pay for these

trips. It is unclear from the evidentiary record, however, why,

on these occa sions, the children did not have the money they

needed to go on the trips. 4

11. Petitioners purchased school uniforms for the foster

children in their care. The record evidence is insufficient to

support a finding that "[o]ne of the teachers purchased t he

school uniforms for the foster children."

12. Mrs. Jenkins, on occasion, did come to Lauderdale

Manors Elementary School to talk with school personnel about her

foster children attending the school (although, in her dealings

with the school's principal , Doris Bennett, Mrs. Jenkins was, at

times, "loud and boisterous," displaying a "negative and nasty

attitude"). Neither Mrs. Jenkins nor her husband, however,

attended "report card night" at the school last year. This was

a "well - attended" event, held a fter school (between 6:00 p.m.

and 8:00 p.m.), where parents had an opportunity to receive

their children's report cards from their children's teachers.

It is unclear from the evidentiary record why Petitioners were

not in attendance.

Alleged Violation of Rules 65C - 13.010(1)(b)5.a. and 65C -

13.010(1)(b)5.f., Florida Administrative Code

13. The record evidence is insufficient to support a

finding that "Mrs. Jenkins pinche[d] T. G." or "ma[d]e[] him

stand in the laundry room when he [was] bad." 5

Alleged Vio lation of Rule 65C - 13.010(2)(b), Florida

Administrative Code

14. Ann Livermore is employed as a case worker by Kids in

Distress, Inc., a private entity that has contracted with DCFS

to provide care case worker services to foster children

supervised by DC FS.

15. Ms. Livermore was W. B.'s case worker during the 2002

Thanksgiving holiday period.

16. W. B.'s sister had obtained a court order allowing

W. B. to go on an unsupervised visit to W. B.'s sister's home on

Thanksgiving Day 2002.

17. W. B. had not had any previous unsupervised visits

with his sister during his time with Petitioners.

18. At no time prior to Thanksgiving Day 2002 had

Mrs. Jenkins had any contact with either Ms. Livermore or

W. B.'s sister.

19. At 9:00 a.m. on Thanksgiving Day 2002, Ms. Livermore

received a telephone call from W. B.'s sister, who complained to

Ms. Livermore that Mrs. Jenkins would not let her take W. B.

from Petitioners' home.

20. Ms. Livermore responded by telephoning Mrs. Jenkins

and explaining to her that W. B. w as "allowed to go with" his

sister pursuant to a court order that had been obtained by the

sister. Mrs. Jenkins responded that she was not aware of any

court order and that, if Ms. Livermore intended to come to

Petitioners' home to pick up W. B., she shou ld bring with her

appropriate identification, as well as be accompanied by the

police. As Mrs. Jenkins credibly explained at the final

hearing, she did not know what Ms. Livermore "looked like" and,

with all the "phony stuff going on," wanted to make sure that

W. B. would not fall into the wrong hands.

21. Later that same day, Ms. Livermore, accompanied by the

police, went to Petitioners' home. She took with her, to show

Mrs. Jenkins, a copy of the court order W. B.'s sister had

obtained.

22. Mrs. Jen kins gave Ms. Livermore a difficult time,

questioning the adequacy of Ms. Livermore's proof of

identification and the authenticity of the copy of the court

order that Ms. Livermore showed her. While Mrs. Jenkins may

have been overly cautious in her dealin gs with Ms. Livermore, it

does not appear that she was acting in bad faith.

23. Ultimately, W. B. was released to the custody of

Ms. Livermore, who turned W. B. over to his sister. 6

CONCLUSIONS OF LAW

24. With certain exceptions not applicable to the instant

case, "[a] person, family foster home, or residential child -

caring agency shall not receive a child for continuing full - time

care or custody unless such person, home, or agency has first

procured a license from the [DCFS] to provide such care."

S ection 409.175(4)(a), Florida Statutes.

25. The nature of such license is described in Section

409.175(2)(f), Florida Statutes, as follows:

"License" means "license" as defined in s.

120.52(9). A license under this section is

issued to a family foster ho me or other

facility and is not a professional license

of any individual. Receipt of a license

under this section shall not create a

property right in the recipient. A license

under this act is a public trust and a

privilege, and is not an entitlement. This

privilege must guide the finder of fact or

trier of law at any administrative

proceeding or court action initiated by the

department.

26. With certain exceptions not applicable to the instant

case, a license to operate a family foster home, "unless sooner

suspended, revoked, or voluntarily returned, will expire

automatically 1 year from the date of issuance. . . ." Section

409.175(6)(i), Florida Statutes.

27. "Ninety days prior to the expiration date, an

application for renewal shall be submitted to [DCFS] by a

licensee who wishes to have the license renewed. A license

shall be renewed upon the filing of an application on forms

furnished by the department if the applicant has first met the

requirements established under this section and the rules

promulgated hereunder." Section 409.175(6)(i), Florida

Statutes.

28. Pursuant to Section 409.175(9), Florida Statutes, DCFS

may deny an application for family foster home relicensure based

on "[a]n intentional or negligent act materially affecting the

he alth or safety of children in the [family foster] home" or

"[a] violation of the provisions of this section or of licensing

rules promulgated pursuant to this section."

29. Rule 65C - 13.010, Florida Administrative Code, is among

the rules promulgated by DC FS pursuant to the rulemaking

authority granted it in Section 409.175, Florida Statutes. It

provides, in pertinent part, as follows:

65C - 13.010 Substitute Care Parents' Role as

a Team Member.

(1) Responsibilities of the Substitute

Parent to the Child.

* * *

(b) Family Care Activities.

* * *

5. Discipline.

a. The substitute care parents must

discipline children with kindness,

consistency, and understanding, and with the

purpose of helping the c hild develop

responsibility with self - control.

* * *

f. The substitute care parents must not use

corporal punishment of any kind.

* * *

6. Health Care.

* * *

b. The sub stitute care parents are expected

to transport children for medical, dental or

other appointments which may be needed.

They are to remain with the child if needed

for support and reassurance. Shelter

parents will not be expected to transport

for this car e.

* * *

9. Education.

* * *

b. The substitute care parents are expected

to take part in the selection and

arrangements for educational programs which

are appropriate to the child's age and

abilitie s.

c. The substitute care parents must

participate in the child's school

activities, including regular teacher

conferences.

d. The substitute care parents are expected

to keep the counselor informed of

educational plans, activities, school

problems and the educational progress of the

child, and to keep records of the same.

* * *

(2) Responsibilities of the Substitute Care

Parents to the Child's Family.

* * *

(b) The substitute care parents must

p articipate in planning visits for the child

with his parents and family members.

* * *

30. In acting on an application to renew a license to

operate a family foster home, DCFS must follow the requirements

of Section 120.60, Flo rida Statutes, Subsection (3) of which

provides as follows:

Each applicant shall be given written notice

either personally or by mail that the agency

intends to grant or deny, or has granted or

denied, the application for license. The

notice must state wi th particularity the

grounds or basis for the issuance or denial

of the license, except when issuance is a

ministerial act. Unless waived, a copy of

the notice shall be delivered or mailed to

each party's attorney of record and to each

person who has requ ested notice of agency

action. Each notice shall inform the

recipient of the basis for the agency

decision, shall inform the recipient of any

administrative hearing pursuant to ss.

120.569 and 120.57 or judicial review

pursuant to s. 120.68 which may be

a vailable, shall indicate the procedure

which must be followed, and shall state the

applicable time limits. The issuing agency

shall certify the date the notice was mailed

or delivered, and the notice and the

certification shall be filed with the agency

cl erk.

31. In the instant case, in accordance with the

requirements of Section 120.60, Florida Statutes, DCFS provided

Petitioners with "written notice" of its intention to deny

Petitioners' application for family foster home relicensure on

the grounds tha t Petitioners, while licensed, had engaged in

misconduct that "materially affected the health and safety of

children in [their] home and [that] constitute[d] a violation of

licensing rules." The alleged misconduct and the "licensing

rules" allegedly viola ted were detailed in the notice (in

sections A. through D. thereof).

32. Petitioners requested an administrative hearing and

DCFS referred the matter to DOAH for the assignment of an

Administrative Law Judge to conduct the requested hearing.

33. Where, a s in the instant case, an applicant for the

renewal of family foster home licensure disputes DCFS's

announced intention to deny relicensure on the ground that the

applicant engaged in wrongdoing, at the administrative hearing

requested by the applicant, DC FS (as the party asserting the

affirmative on the issue) has the burden of presenting proof of

the alleged wrongdoing. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932, 934 (Fla . 1996); Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla.

1st DCA 1981); Florida Department of Health and Rehabilitative

Services, Division of Health v. Career Service Commission , 289

So. 2d 412, 415 (Fla. 4th DCA 1974); Marlowe v. Department of

Children and Family Services , Case No. 01 - 3093, 2002 WL 569449

(Fla. DOAH 2002)(Recommended Order); Hankerson v. Department of

Children and Family Services , Case No. 01 - 1761, 2001 WL 1147181

( Fla. DOAH 2001)(Recommended Order); and Hyers v. Department of

Children and Family Services , Case No. 97 - 2162, 1998 WL 929904

( Fla. DOAH 1998)(Recommended Order). DCFS, however, "is not

required to prove the charges of wrongdoing by clear and

convincing evidence; instead, the factual predicate need only be

established by the greater weight of the evidence." See Rolle

v. Crist , Case No. 01 - 2644, 2001 WL 1638505 *10 n.8 (Fla. DOAH

2001)(Recommended Order), citing, Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d at 934 - 35.

34. While DCFS's proof at the administrative hearing held

in the instant case was insufficient to establish that

Petitioners committed the rule violations alleged in sections B.

through D. of the notice of intent to deny, DCFS did establish,

by a preponde rance of the evidence, that Petitioners committed

the violation of Rule 65C - 13.010(1)(b)6.b., Florida

Administrative Code, alleged in section A. of the notice. This

proven rule violation is a serious one that raises concerns

about Petitioners commitment t o "protect the health, safety, and

well - being" of foster children, which is the stated purpose of

Section 409.175, Florida Statutes. See Section 409.175(1)(a),

Florida Statutes ("The purpose of this section is to protect the

health, safety, and well - being of all children in the state who

are cared for by family foster homes . . . ."). Under such

circumstances, DCFS should exercise its discretion, pursuant to

Section 409.175(9), Florida Statutes, to deny Petitioners the

privilege of being able to operate a family foster home in this

state.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that, pursuant Section 409.175(9), Florida

Statutes, DCFS enter a final order denying Petitioners'

application for family f oster home relicensure, based on the

rule violation alleged in section A. of the notice of intent to

deny.

DONE AND ENTERED this 30th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

STU ART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Di vision of Administrative Hearings

this 30th day of June, 2003.

ENDNOTES

1/ Respondent's Exhibit 2 was offered into evidence, but was

rejected.

2/ No transcript of the final hearing in this case has been

filed with the Division.

3/ At no time did Mrs. Jenkins tell Ms. Marshall that she

(Mrs. Jenkins) would be unable to pick T. G. up because she had

a doctor's appointment (the reason Mrs. Jenkins gave at the

final hearing for not picking up T. G. during the regular school

day).

4/ Petitioners gave each of the foster children in their care a

weekly allowance.

5/ The only record evidence supporting such a finding is

hearsay evidence that would be inadmissible, over objection, in

a civil proceeding in Florida. As such, it cannot, standing

alone, support a finding of fact. See Scott v. Department of

Professional Regulation , 603 So. 2d 519, 520 (Fla. 1st DCA

1992)("The only evidence which the appellee presented at the

hearing was a hearsay report which would not have been

admissibl e over objection in a civil action. . . . [T]his

evidence was not sufficient in itself to support the Board's

findings."); Doran v. Department of Health and Rehabilitative

Services , 558 So. 2d 87, 88 (Fla. 1st DCA 1990)("The documents

presented before the hearing officer were hearsay and did not

come within any recognized exception which would have made them

admissible in a civil action. . . . Because the only evidence

presented by the department to show that Doran held assets in

excess of the eligibility requirements for receiving ICP

benefits consisted of uncorroborated hearsay evidence, we must

reverse the hearing officer's final order."); and Section

120.57(1)(c), Florida Statutes ("Hearsay evidence may be used

for the purpose of supplementing or expla ining other evidence,

but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil

actions.").

6/ The sister was waiting for Ms. Livermore and W. B. in a

predetermined location near Petitioners' ho me.

COPIES FURNISHED:

James O. Walker, III, Esquire

1339 Northeast Fourth Avenue

Fort Lauderdale, Florida 33304

Deborah Guller, Esquire

Department of Children and

Family Services

201 West Broward Boulevard, Suite 502

Fort Lauderdale, Florida 3330 1

Paul Flounlacker, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order shoul d be filed with the agency that

will issue the final order in this case.