15-002019RU Phillip Carter vs. Florida International University Status: Closed DOAH Final Order on Monday, June 29, 2015.

Summary: Respondent's statement, which informed Petitioner of his right to seek judicial review of an administrative decision, is not an unadopted rule, for one, because Respondent is not an agency when exercising authority derived from the constitution.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP CARTER ,

Petitioner,

vs. Case No. 1 5 - 20 1 9 R U

FLORIDA INTERNATIONAL

UNIVERSITY ,

Respondent.

/

FINAL ORDER

Administrative Law Judge John G. Van Laningham conducted

the final hearing in this rule challenge, which was brought

pursuant to section 120.56( 4 ), Florida Statutes , by video

teleconference on June 12, 2015, at sites in Tallahassee and

Miami, Florida .

APPEARANCES

For Petitioner: Robert L. Moore, Esquire

Law Offices of Robert L. Moore

6860 Howard Drive

Miami, Florida 33156 - 6969

Robert M. Sherin

15805 Southwest 101st Avenue

Miami, Florida 33157 - 1630

For Respondent : Michael Mattimore , Esquire

Allen, Norton and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

T he issue in this case is whether a statement of

Respondent ' s , which informed Petitioner of his right to seek

judicial review of an administrative decision Respondent deemed

outside the purview of the Administrative Procedure Act ,

constitutes an agency statement of gen eral applicability that

implements, interprets, or prescribes law or policy in violation

of section 120.54(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

On April 13 , 201 5 , Petitioner filed with the Division of

Administrative Hearings a p etition seeking an administrative

d etermination , pursuant to section 120.56( 4 ) , Florida Statutes,

that Respondent's statement regarding Petitioner's right to

judicial review of an administrative decision affecting his

substantial interests constitutes an unlawful unadopted rule.

The final hearing was held on June 12 , 201 5 , with both

parties present. At the outset of the hearing, the undersigned

entertained argument on the question of whether Respondent is an

" agency " for purposes of sections 120.54 and 120.56 , which had

been raised previously in a motion to dismiss but not deci ded.

During the argument, the undersigned took official recognition

of all Florida Board of Governors Regulations, including its

Regulation Development Procedure, as well as the regulations of

Respondent's Board of Trustees, including FIU - 102.

After h earing from the parties, the undersigned announced

his decision that, with regard to the statement at issue,

Respondent is not an "agency" for purposes of sections 120.54

and 120.56 . As explained at hearing, this legal conclusion

compels a decision in Res pondent's favor. The undersigned's

complete ruling is set forth below.

T he final hearing was recorded but not transcribed.

Florida International University filed a P roposed F inal O rder on

June 26, 2015 .

Unless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

2014 .

FINDINGS OF FACT

1. Petitioner Philip Carter was, at all relevant times, a

student at Florida International University ("FIU").

2. Located in Miami, Respondent FIU is a public university

within the state university system of Florida. The Florida

Board of Governors oversees the state university system, and

each public university, including FIU, is administered by a

board of truste es whose powers and duties the Board of Governors

establishes.

3. Carter claims that FIU has caused him injury by, among

other things, improperly using or disclosing personal or

confidential information gleaned from his educational records .

He believe s , as well, that certain documents in his student file

should be amended to correct alleged inaccuracies . FIU denies

Carter's allegations, and, each time Carter has pursued an

administrative remedy, FIU has declined to grant him relief.

4. On one such occasion, by letter dated March 23, 2015,

FIU denied Carter's request for a hearing concerning various

matters relating to his student records. This letter concluded

with the following notice of right to judicial review:

Please be advised that this decisi on

constitutes final agency action of the

University, and that no further action will

be taken by the U niversity on these matters.

You may seek judicial review of this final

University decision pursuant to Florida Rule

of Appellate Procedure 9.190(b)(3),

applicable to review of quasi - judicial

decisions of an administrative body not

subject to the Administrative Procedure Act,

by filing a petition for certiorari review

with the appropriate circuit court within

thirty (30) days of this final University

decis ion. If you seek review with the

court, you must also provide a copy of

the petition to [the] Clerk of the

University . . . .

(Emphasis added.) Carter alleges that the underlined sentence

above is an unadopted rule. 1 /

CONCLUSIONS OF LAW

5 . Section 120.56(4)(a), Florida Statutes, authorizes any

person who is substantially affected by an agency statement to

seek an administrative determination that the statement is

actually a rule whose existence violates section 120.54(1)(a)

because the agenc y has not formally adopted the statement.

Section 120.54(1)(a) declares that "[r]ulemaking is not a matter

of agency discretion" and directs that "[e]ach agency statement

defined as a rule by s. 120.52 shall be adopted by the

rulemaking procedure provided by this section as soon as

feasible and practicable ."

6 . The statutory term for an informal rule - by - definition

is "unadopted rule," which is defined in section 120.52(20) to

mean "an agency statement that meets the definition of the term

'rule,' but that has not been adopted pursuant to the

requirements of s. 120.54."

7 . Section 120.52(16) defines the term "rule" to mean

each agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes the

procedure o r practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by

an existing rule. The term also includes

the amendment or repeal of a rule.

The statutory def inition excludes several types of agency

statement from its operation, but none of these exclusions is

applicable here.

8 . To be a rule, the statement at issue must be that of an

agency . Further, only an agency may adopt a rule pursuant to

the rulemaking procedure set forth in section 120.54. It

necessarily follows, then, tha t only an agency can violate

section 120.54(1)(a) by failing timely to adopt an agency

statement defined as a rule ; and that, therefore, only an agency

can be prohibited from relying on a statement defined as a rule

through a proceeding brought under section 120.56(4) .

9 . The term agency , as used in the Administrative

Procedure Act ("APA") , refers to specifically identified

"officers or governmental en tities" ÏÏ including "educational

units" ÏÏ but only when and if they are " acting pursuant to powers

other than those derived from the constitution ."

§ 120.52(1)(a), Fla. Stat. (emphasis added).

1 0 . The term "educational unit" means " a local school

distr ict, a community college district, the Florida School for

the Deaf and the Blind, or a state university when the

university is acting pursuant to statutory authority derived

from the Legislature . " § 120.52(6), Fla. Stat. (emphasis

added).

1 1 . Thus, FIU is an agency for purposes of the APA when it

acts pursuant to authority delegated by the Florida Legislature,

but it is not an agency when it acts pursuant to authority

derived from the Florida Constitution.

1 2 . Administrative rulemaking, whic h is a quasi -

legislative function, 2 / ordinarily takes place pursuan t to a

statutory delegation of L egislative authority. Under article

IX, section 7(c), of the Florida Constitution, however, it is

t he Board of Governors ÏÏ not the L egislature ÏÏ that "shall

e stablish the powers and duties of the boards of trustees" which

administer the several public universities.

1 3 . Pursuant to article IX, section 7(d), moreover, the

Board of Governors is invested with broad constitutional

authority to " operate, regulate, control, and be fully

responsible for the management of the whole university system. "

This constitutional grant of authority ÏÏ and not a statutory

delegation ÏÏ empowers the Board of Governors to adopt rules which

cannot be challenged under the APA. See NA ACP, Inc. v. Fla. Bd.

of Regents , 876 So. 2d 636, 640 (Fla. 1st DCA 2004).

1 4 . Exercising its constitutional rulemaking authority,

the Board of Governors promulgates the rules, denominate d

"regulations," which govern the state university system. The

Boar d of Governors adopts regulations pursuant to its Regulation

Development Procedure, which is available online at

http://www.flbog.edu/about/regulations/docs/

RegulationDevelopmentProcedure.pdf (last visited June 23, 2015).

Board of Governors regulations a re published online at

http://www.flbog.edu/about/regulations/regulations.php (last

visited June 23, 2015).

1 5 . Board of Governors Regulation 1.1001 "delegate[s]

powers and duties to the university boards of trustees so that

the university boards have all of the powers and duties

necessary and appropriate for the direction, operation,

management, and accountability of each state university." BOG

1.001(1). Among other things, this regulation authorizes each

board of trustees "to promulgate university regulations in

accordance with the Regulation Development Procedure adopted by

the Board of Governors." BOG 1.001(3) (j). By regulation,

therefore, the Board of Governors has delegated to each of the

boards of trustees its constitutional authority to make rules.

1 6 . The FIU Board of Trustees, exercising this delegated

constitutional authority, has promulgated many regulations, 3 /

including FIU - 102, which provides as follows:

The Florida International University

regulations replace any and all Florida

International University rules previously

promulgated by Florida International

University which were indexed under Ch apter

6C8 of the Florida Administrative Code, and

the previously promulgated rules have no

force and effect. FIU regulations have

been, and will continue to be, adopted

pursuant to the Florida Board of Governors '

Regulation Development Procedure.

1 7 . Th e undersigned concludes that when FIU promulgates a

rule, or implements an unadopted rule, it acts pursuant to

delegated constitutional authority, not in the exercise of

delegated legislative authority ÏÏ at least where, as here, there

is no statutory grant of rulemaking authority for the rule under

review . Accordingly, for purposes of sections 120.54 and 120.56

vis Î à Î vis the statement at issue in this case , FIU is not an

"educational unit" as defined in section 120.52(6), and thus it

is not an "agency" as defined in section 120.52(1)(a). 4 /

1 8 . Because FIU is not an agency when it exercises

rulemaking authority derived from the constitution , the

statement which Carter has alleged violates section 120.54(1)(a)

is not a "rule" as that term is defined in sec tion 120.52(16) ;

it cannot be adopted pursuant to section 120.54; and

consequently it is not an "unadopted rule" as defined in

section 120.52(20) .

19 . This does not leave Carter bereft of an administrative

remedy if he believes that he is substantially a ffected by a

university statement that has not been adopted pursuant to the

Regulation Development Procedure . As stated at the website of

the FIU Board of Trustees, " [i] n order to challenge an FIU

Regulation or unpromulgated regulation, a petition must be filed

with the FIU Board of Trustees. The process is provided in the

Florida Board of Governors Regulations Development Procedure. "

See Regulations Procedure, availabl e online at

https://regulations.fiu.edu/ (last visited June 24, 2015).

Section H, paragraph 2, of the Regulation Development Procedure

sets forth the process for challenging an unpromulgated

regulation.

20. FIU seeks an award of reasonable costs and at torney's

fees pursuant to s ection 120.595(4)(d) , which provides as

follows:

If the agency prevails in the proceedings,

the appellate court or administrative law

judge shall award reasonable costs and

attorney ' s fees against a party if the

appellate court o r administrative law judge

determines that the party participated in

the proceedings for an improper purpose

. . . or that the party or the party ' s

attorney knew or should have known that a

claim was not supported by the material

facts necessary to estab lish the claim or

would not be supported by the application of

then - existing law to those material facts.

(Emphasis added.) FIU is not a prevailing "agency" for purposes

of section 120.595(4)(d), however, because, for reasons

explained above, FIU is not an "agency" in this proceeding .

Therefore, section 120.595(4)(d) does not authorize an award

against Carter.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the notice of right to judicial review

provided to Philip Carter in correspondence dated

March 23, 2015, is not an unlawful unadopted rule.

D ONE AND ORDERED this 29th day of June , 201 5 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of June , 201 5 .

ENDNOTES

1 / The not ice appears to be a correct statement of the law. As

a state university, FIU is not subject to the requirements of

sections 120.569 and 120.57 when determining the substantial

interests of a student. See § 120.81(1)(g), Fla. Stat. In such

instances, the refore, FIU's decisions are not final agency

actions reviewable under section 120.68. See § 120.68(1), Fla.

Stat. (establishing right to judicial review of "final agency

action"); § 120.52(2)(defining "agency action" ) ;

§ 120.52(7)(defining "final order") . A party seeking to

challenge such a decision is entitled to certiorari review in

the circuit court. See Couchman v. Univ. of Cent. Fla. , 84 So.

3d 445, 446 - 47 (Fla. 5th DCA 2012).

2 / See Adam Smith Enters. v. Dep't of Envtl. Reg. , 553 So. 2d

1260, 1269 - 70 (Fla. 1st DCA 1989).

3 / FIU regulations are published online at

https://regulations.fiu.edu/regulation (last visited June 24,

2015).

4 / The conclusion that, under the facts of this case, FIU is not

an agency for purposes of sections 120.54 and 120.56 might mean

that DOAH is without jurisdiction to consider Carter's claim on

the merits. See Dep't of Ins. v. Fla. Ass'n of Ins. Agents , 813

S o. 2d 981, 984 (Fla. 1st DCA 2002)(DOAH did not have

jurisdiction over action brought under section 120.56(4) to

challenge policies of an association held not to be an agency).

Unlike the association whose policies were at issue in Fl orid a

Association of Insurance Agents , however, which the court

determined was never an agency for purposes of the APA, FIU is

an agency for purposes of the APA sometimes , i.e., when it acts

pursuant to legislative authority. It is unnecessary for the

undersigned to conclude that FIU could never be an agency for

purposes of sections 120.54 and 120.56, which logic ally would be

true only if the L egislature were powerless to grant rulemaking

authority to the boards of trustees, an issue the undersigned

need not decide. At any rate, having decided that FIU is not an

agency in this instance, it matters not whether the disposition

is based on lack of jurisdiction or the merits, for as explained

in the main text, the conclusion that FIU is not an agency in

connection with the state ment at issue necessarily determines

the merits.

COPIES FURNISHED:

Robert L. Moore, Esquire

Law Offices of Robert L. Moore

6860 Howard Drive

Miami, Florida 33156 - 6969

(eServed)

Robert M. Sherin

15805 Southwest 101st Avenue

Miami, Florida 33157 - 1630

(eServed)

Michael Mattimore, Esquire

Allen, Norton and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Kristina Raattama, General Counsel

Florida International University

11200 Southwest 8th Street, PC 511

Miami, Florida 33199

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Alexandra Nam

Department of State

R.A. Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Rev iew proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.