Opinion
No. 1D22-3793.
02-22-2023
FLORIDA DEPARTMENT OF REVENUE, Petitioner, v. INTERNATIONAL BONDED COURIERS, INC., Respondent.
Ashley Moody , Attorney General, Timothy E. Dennis , Chief Assistant Attorney General, and Jacek P. Stramski , Special Counsel, Florida Department of Revenue, Tallahassee, for Petitioner. Jeanette Moffa , Joseph C. Moffa , Gerald Donnini II , and James McAuley , Moffa, Sutton & Donnini, P.A., Fort Lauderdale, and Rex Ware , Moffa, Sutton & Donnini, P.A., Tallahassee, for Respondent.
Ashley Moody , Attorney General, Timothy E. Dennis , Chief Assistant Attorney General, and Jacek P. Stramski , Special Counsel, Florida Department of Revenue, Tallahassee, for Petitioner.
Jeanette Moffa , Joseph C. Moffa , Gerald Donnini II , and James McAuley , Moffa, Sutton & Donnini, P.A., Fort Lauderdale, and Rex Ware , Moffa, Sutton & Donnini, P.A., Tallahassee, for Respondent.
Tanenbaum, J.
In this original proceeding, the Florida Department of Revenue ("DOR") challenges the jurisdiction of the Division of Administrative Hearings ("DOAH") to hear an unadopted-rule proceeding initiated by International Bonded Couriers, Inc. ("IBC") under chapter 120, Florida Statutes—the Administrative Procedure Act ("APA"). DOR first asserted its jurisdictional challenge in a motion to dismiss before an administrative law judge ("ALJ"), who denied the motion. Curiously, DOR now asserts its challenge in this court via a petition for writ of prohibition rather than a petition to review non-final agency action, even though prohibition is not available as a mechanism for appellate review and the Legislature authorizes district courts of appeal to directly review non-final orders of ALJs in DOAH via the latter type of petition. See § 120.68(1)(b), Fla. Stat. Regardless of how we characterize DOR's attempt to stop DOAH's exercise of jurisdiction over IBC's rule challenge, though, DOR fails to state a facial basis for interlocutory relief. DOR's arguments in its petition go to the merits of IBC's challenge (i.e., whether the "thing" that IBC addresses can ever be a rule, let alone an unadopted rule), not to the authority of a DOAH-ALJ to hear the matter at all (i.e., whether there is a constitutional or statutory provision that expressly excepts the type of claim stated by IBC from the authority provided by section 120.56(4) to a DOAH-ALJ generally to hear an unadopted-rule challenge). Because, at all events, DOR's petition does not demonstrate a preliminary basis for relief, we have not required IBC to show cause or otherwise to respond. See Fla. R. App. P. 9.100(h). We simply dismiss.
I
The dispute stems from a rulemaking challenge filed by our respondent, IBC, pursuant to section 120.56(4), Florida Statutes. Subsection one of that statute generally allows a substantially affected party to "seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." § 120.56(1), Fla. Stat.; see § 120.52(8), Fla. Stat. (defining "invalid exercise of delegated legislative authority"). Subsection four specifically deals with "an agency statement that is an unadopted rule." § 120.56(4)(a), Fla. Stat. Under this latter subsection, an affected party may file a petition with DOAH seeking an "administrative determination that the statement violates s. 120.54(1)(a)," which sets out the rulemaking procedure that an agency must follow. Id. The statute gives an ALJ the authority to make this determination, which constitutes a "final order." Id. (4)(d).
To invoke a proceeding under section 120.56(4), a petition must "include the text of the statement or a description of the statement and shall state facts sufficient to show that the statement constitutes an unadopted rule." § 120.56(4)(a), Fla. Stat. IBC did just this. It stated that it was "challenging the Department's three policies regarding 0% sales tax rates for licensed Commercial Mail Receiving Agents ("CRMAs") and freight forwarders in Florida." The petition described each of the three policies, as follows:
• The first policy ("Policy One") was in effect prior to mid-2018, when the Florida Department of Revenue, by way of the Office of General Counsel, attached 0% sales and use tax rates to unique zip codes provided by United States Postal Service ("USPS") to licensed CRMAs and Freight Forwarders.
• The second policy ("Policy Two") was in effect between mid-2018 and December 2018, when the Florida Department of Revenue ceased to continue attaching 0% sales and use tax rates to unique zip codes and instead offered letters of exemption from the state that were valid for 6-months and renewable thereafter.
• The third policy ("Policy Three") came into effect sometime around mid-2019, when the Florida Department of Revenue ceased to offer any renewals of the letters of exemption and would provide no new 0% sales and use tax rates to qualifying freight forwarders.
According to IBC's petition, "those freight forwarders provided a 0% sales and use tax rate prior to mid-2018, when the first policy was in effect, were allowed to keep the rate." IBC contends that it was left out in the cold because of DOR's actions: "[T]he first policy created a 7% tax discrepancy in Florida's freight forwarding industry and the second and third policies prevented [IBC] from obtaining the same benefit."
DOR filed a motion to dismiss and argued that DOAH lacked subject-matter jurisdiction. To support its position, DOR asserted that the "policies" challenged by IBC appeared in an electronic database called Pointmatch, which was established under section 202.22(2), Florida Statutes. DOR relied particularly on subparagraph (b)2. of that subsection, which provides that the database "is not an order, a rule, or a policy of general applicability." § 202.22(2)(b)2., Fla. Stat. As DOR saw it, because the database contained ostensible policies that IBC was challenging as unadopted rules, those policies, as a matter of law, could not meet the definition of "unadopted rule" in chapter 120. See § 120.52(20), Fla. Stat. (defining "unadopted rule" 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"); see also id. (16) (defining "rule" in terms of an agency statement "that implements, interprets, or prescribes law or policy" or sets out the agency's "procedure or practice requirements"). DOR then made a non-textual leap to the conclusion that subparagraph (2)(b)2. of section 202.22 "excludes the administration of the database from rulemaking requirements and bars" the proceeding on IBC's petition. In the alternative, DOR argued that the challenged policies no longer were in existence and other intervening events rendered the proceeding moot. The ALJ entered an order denying the motion. DOR then initiated this prohibition proceeding.
II
DOR's writ petition references the ALJ's order; the appendix includes that order; and DOR makes the same arguments as it did in its motion to dismiss as to why DOAH lacks jurisdiction over the proceeding initiated by IBC. Still, DOR chooses to pursue an extraordinary writ in this court rather than follow the path set out by the Legislature in section 120.68(1)(b) (and by the supreme court in Florida Rule of Appellate Procedure 9.100(c)(3)) for review of interlocutory administrative orders. DOR's petition fails to justify having this court take such an extraordinary step.
As our supreme court explained long ago, "the writ of prohibition will not be invoked for slight reasons, but only in emergency cases to forestall an impending, present injury." Joughin v. Parks, 107 Fla. 833, 147 So. 273, 274 (1933). As the supreme court later described the writ, it
is an extraordinary writ, a prerogative writ, extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.
English v. McCrary, 348 So.2d 293, 296 (Fla. 1977). Moreover, prohibition is available "only when there is no other adequate remedy." State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313, 314 (1940).
See also id. (explaining the ancient English origins of the writ as a means by which the Crown policed its various courts and kept one court from encroaching on the jurisdiction of another); see also Note, The Writ of Prohibition, 16 COLUM. L. REV. 338, 338-339 (Apr. 1916) (same); Note, Writs of Prohibition, 36 HARV. L. REV. 863, 863 (May 1923) (characterizing writ as "an ancient common law remedy originally used by the King to acquire jurisdiction for his courts ... when an inferior court was threatening to exceed its judicial powers"); id. at 864 (noting that in the United States, the writ functions to secure "prompt relief for the individual when the rigidity of the regular procedure is inadequate to protect him from the action of a court without jurisdiction").
See also State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 192 So. 175, 176 (1939) (describing prohibition as "an extraordinary writ" that issues "only when the party seeking it is without other and adequate means of redress for the wrong about to be perpetrated by such threatened non-jurisdictional action of the lower tribunal"); State v. Malone, 40 Fla. 129, 23 So. 575, 576 (1898) (describing writ as one "used with great caution, where the ordinary remedies provided by the law are not applicable or adequate" (quotation and citation omitted)).
In this respect, we have "the power of direct review of administrative action, as prescribed by general law," Art. V, § 4(b)(2), Fla. Const., and the Legislature gives us that power in, among other places, the APA, as follows:
(1)(a) A party who is adversely affected by final agency action is entitled to judicial review.
(b) A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division
of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
§ 120.68(1)(a)-(b), Fla. Stat. (emphasis supplied). The power of review that the Legislature gives us in paragraph (1)(b) is an adequate legal remedy that many times will obviate the need for an extraordinary prerogative writ like prohibition, as the provided authority does here. Cf. Agency for Health Care Admin. v. Mt. Sinai Med. Ctr. of Greater Miami, 690 So.2d 689, 692 (Fla. 1st DCA 1997) (explaining that section 120.68(1)'s provision for interlocutory review is an adequate legal remedy that obviates the need for an extraordinary writ like mandamus); § 120.68(6)(a), Fla. Stat. (authorizing district court to grant relief that is "mandatory, prohibitory, or declaratory in form ... irrespective of the original form of the petition"). DOR's petition, in turn, fails to show an urgency that could support our going outside the direct review process set out by the Legislature in statute and intervening instead by extraordinary means as a matter of prerogative in an ongoing administrative proceeding held in another branch of government.
Having stated this, we cannot dismiss the petition solely on the basis that DOR titled it incorrectly. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought...."); see also Art. V, § 2(a), Fla. Const. (requiring the supreme court to adopt by rule "a requirement that no cause shall be dismissed because an improper remedy has been sought"). At the same time, we are not required to re-work a petition so that it supports the proper remedy. See Fla. R. App. P. 9.040(c) (including the proviso that "it shall not be the responsibility of the court to seek the proper remedy"). We will review DOR's petition to determine whether it instead states a preliminary basis for review of the ALJ's non-final order denying its motion to dismiss under section 120.68(1)(b) and appellate rule 9.100(c)(3). Cf. Agency for Health Care Admin. v. Murciano, 163 So.3d 662, 664 (Fla. 1st DCA 2015) (agreeing that a petition for writ of mandamus brought by an agency "may have been more properly brought as a petition seeking review of non-final agency action" under section 120.68(1) and treating the petition as such). If it does not, then we are free to dismiss the petition in the form filed by DOR.
The petition purports to attack the ALJ's jurisdiction, and DOR certainly frames its challenge in categorical terms. It states in the petition that "DOAH lacks jurisdiction over the proceeding below because no challenge to information in, or the administration of, the database can be considered in the form of an unadopted rule challenge." It also asserts that "DOAH has no jurisdiction to consider challenges to past alleged agency statements." DOR's legal argument goes on for pages about the Pointmatch database and how section 202.22(2)(b)2. excludes the database itself from rulemaking requirements. According to DOR, because IBC's claim is premised on alleged policies reflected in the database, section 202.22(2)(b)2. forecloses DOAH from exercising jurisdiction and determining the claim.
The problem for DOR, though, is that when we compare the statutory provision relied on by DOR—section 202.22(2)(b)2.— to the relevant jurisdictional provision in the APA—section 120.56(4)—we see that DOR's attack on DOAH's jurisdiction really is one going to the merits of IBC's claim. As we noted up front, section 120.54(4)(a) gives an ALJ at DOAH the authority (read: jurisdiction) to adjudicate a claim by an affected individual that some "statement" by the agency is the equivalent of a rule not adopted in accordance with section 120.54(1)(a). Section 202.22 does not expressly limit or cabin this jurisdiction. In fact, it does not appear in the APA and does not purport to modify the authority of an ALJ specifically, or of DOAH in general.
The provision instead addresses a definitional matter—the fact that the database is not a rule. Carrying this principle forward to application of section 120.54(4), the definitions of "rule" and "unadopted rule" found in subsections (16) and (20) of section 120.52 bear not on the scope of the ALJ's authority to hear an unadopted-rule challenge, but on what IBC has to demonstrate to establish its claim before DOR has to prove that adoption was "not feasible or not practicable under s. 120.54(1)(a)." See § 120.56(4)(a), (c), Fla. Stat. In this context, DOR's asserted basis for relief really can be summed up as follows: The database supposedly containing the policy in question is not a rule, or alternatively, the policy has been withdrawn —so IBC's claim should fail because any such statement could not be characterized as an "unadopted rule" as a matter of law.
Perhaps DOR is correct (no need to reach that here), but section 202.22(2)(b)2.—the core of its jurisdictional argument—does not expressly preclude a DOAH-ALJ from determining whether that, in fact, is the case. We see, then, that the extended argument for relief in DOR's petition does not relate to jurisdiction at all; it goes to why IBC's claim ultimately should fail on the merits. And that is the salient point here: Subject-matter jurisdiction just means that the law gives a tribunal authority to consider and rule on a claim, including any defense to that claim. The legal correctness of the defense does not equate to an absence of jurisdiction to say so.
As to this point, DOR's petition fails to appreciate the difference between a tribunal's authority to determine a controversy and the correctness of its exercise of that authority. See Quigley v. Cremin, 94 Fla. 104, 113 So. 892, 894 (1927) ("Want of jurisdiction of the subject-matter is to be distinguished from an erroneous exercise of jurisdiction."). "Jurisdiction of the subject-matter does not mean jurisdiction of the particular case but of the class of cases to which the particular case belongs, and does not depend upon the sufficiency of the pleadings nor the rightfulness of the decision." Malone v. Meres, 91 Fla. 709, 109 So. 677, 685 (1926) (emphasis supplied). The supreme court explained this in more detail as follows:
"Jurisdiction," in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action. It does not depend upon the ultimate existence of a good cause of action in the plaintiff, in the particular case before the court. It is the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case. Jurisdiction does not relate to the right of the parties, as between each other, but to the power of the court.
Id. at 683 (emphasis supplied) (internal quotations and citations omitted); see also Crill v. State Rd. Dep't, 96 Fla. 110, 117 So. 795, 798 (1928) (explaining that subject-matter jurisdiction concerns whether the tribunal "has jurisdiction of the general class of cases to which the particular case belongs"); Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 775 (1927) (explaining that subject-matter jurisdiction "is the power to deal with the general abstract question" being put, regardless of the facts relating to that question in a particular case).
Because the arguments in the petition go to the merits of IBC's claim, rather than to the DOAH-ALJ's authority under section 120.56(4), the rejection of those arguments by the ALJ is something that can be addressed adequately on appeal following the ALJ's final determination. This means the petition's averments cannot clear the threshold requirement for even the alternate, statutory basis for review by this court. See § 120.68(1)(b), Fla. Stat. (authorizing immediate review of an ALJ's interlocutory order only if "review of the final agency decision would not provide an adequate remedy"). No matter how we construe DOR's petition, there is no preliminary demonstration of a need for us to intervene now, on an extraordinary or interlocutory basis, in an ongoing, executive-branch proceeding.
DISMISSED.
Osterhaus and Long, JJ., concur.