Opinion
No. BI-328.
August 18, 1986.
Appeal from the Board of Medical Examiners, and Department of Professional Regulation.
Julian Clarkson and Michael L. Rosen of Holland Knight, Tallahassee, for appellant.
William M. Furlow, Department of Professional Regulation, Tallahassee, for appellee.
The Department of Professional Regulation (DPR) has moved to dismiss this appeal, contending that appellant, William N. Taylor, failed to timely file his notice of appeal.
On June 26, 1985, after having held an evidentiary hearing, the Board of Medical Examiners filed its order which found Dr. Taylor guilty of professional misconduct, suspended his license to practice medicine, and stayed the suspension pending Dr. Taylor's satisfactorily serving five years' probation. The record reflects that at the conclusion of the hearing the Board of Medical Examiners stated that it agreed to impose only three years' probation. A certified copy of the June 26 written order, signed by the chairman of the Board, was sent to Dr. Taylor at a Sarasota address, but Dr. Taylor did not receive a copy until July 13, at a Palm Harbor address. The order advised Dr. Taylor of his right to appeal within thirty days. Dr. Taylor was not represented by counsel, and on July 15 he sent a letter to the Board by certified mail which stated that the final order contained "an important error . . . with regards to the length of probationary period." After referring to the discussion of the three-year probation that occurred at the end of the hearing, the letter requested that the Board respond "by correcting the Final Order and then filing the corrected FINAL ORDER. I hope to receive this corrected FINAL ORDER and I am requesting to reserve my period of appeal until I receive it."
Approximately three weeks later, on August 8, 1985, the Board filed an "Amended Final Order" correcting the length of the probationary period to three years and incorporating all other provisions of its original final order. It advised Dr. Taylor of his right to appeal "within thirty (30) days of the date this order is filed." A copy was furnished to Dr. Taylor, and thereafter, on September 6, 1985, he filed a notice of appeal from the "Amended Final Order of the Board of Medical Examiners rendered August 8, 1985."
After the appeal from the amended order was perfected and appellant's brief had been served and filed, DPR filed, with its answer brief, the instant motion to dismiss. There is no dispute that the notice of appeal was filed within thirty days of the August 8 amended final order, but it was not filed within thirty days of the original June 26 final order.
Appellate jurisdiction may be timely invoked by filing a notice of appeal "within 30 days of rendition of the order to be reviewed." Rule 9.110(b), Fla.R.App.P. "Rendition" is defined as "the filing of a signed, written order with the clerk of the lower tribunal." Rule 9.020(g), Fla.R. App.P. This latter rule also provides: "Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing . . . the order shall not be deemed rendered until disposition thereof."
No statute or rule authorizes the filing of a motion for rehearing which tolls the time for appealing the Board's final agency order, nor is there any express authority by statute or rule for the agency to retain jurisdiction over its final order, once filed, so as to permit the agency to withdraw the order and change or modify it. As urged by DPR, Dr. Taylor's appeal from final agency action was untimely because his letter of July 15, even if treated as a motion for rehearing, could not toll the time for filing a notice of appeal since it was not authorized by rule or statute and was not filed within thirty days of the June 26, 1985 order, the only final order authorized by statute to be entered by the Board of Medical Examiners.
We hold that the motion to dismiss must be granted on the authority of Systems Management Associates, Inc. v. Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981). We recognize that this result is unduly harsh, but conclude that this court is not empowered to write, by judicial fiat, a procedure for granting the right to rehearing which tolls the time for appeal pending decision on the motion.
For the reasons stated in the dissenting opinion, however, we certify the following as a question of great public importance:
DOES AN ADMINISTRATIVE AGENCY EXERCISING ITS QUASI-JUDICIAL POWER IN A LICENSE REVOCATION PROCEEDING HAVE THE INHERENT AUTHORITY TO CHANGE OR MODIFY ITS FINAL ORDER WITHIN A REASONABLE TIME AFTER FILING IT SO THAT THE TIME FOR TAKING AN APPEAL BEGINS TO RUN FROM THE DATE OF FILING THE AMENDED ORDER?
The appeal is DISMISSED.
BARFIELD, J., concurs specially.
ZEHMER, J., dissents with written opinion.
I concur in the dismissal of the appeal because this court established the determinative criteria for a timely appeal five years ago in Systems Management Associates, Inc. v. State Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981), in which it recognized the right of an aggrieved party to appeal agency action and implicitly held that due process was thereby afforded. This is, at best, a skeletal form of due process.
It would be inappropriate for this court to destabilize the law by receding from the rule enunciated in Systems Management. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). However, the foundation of the decision in Systems Management appears to have suffered erosion, in that most administrative agencies have not adopted rules to permit them to correct errors in final agency orders. In view of the fact that Systems Management was issued more than five years ago, it is difficult to believe that the agencies are not callously indifferent to, but merely unaware of, the problems caused by the absence of such procedural rules.
No problem persists indefinitely without a solution. It is apparent that this skeletal form of due process provided to litigants in the administrative process is crumbling into a pile of meaningless bones. Were this the Supreme Court of Florida, and not the progenitors of Systems Management, I would be inclined to hold that appellant has been denied due process of law.
My sympathies obviously lie with Judge Zehmer's dissent, a position with which I was not unfamiliar in its articulation. Accordingly, the certified question is one of immediate and expansive gravamen.
I respectfully dissent. The Department of Professional Regulation's position is necessarily predicated on the premise that the June 26 order became irrevocably final when filed and that as a consequence the Board of Medical Examiners thereupon lost all power to modify or amend any substantive provisions of the order so as to make it conform to the Board's true intention and decision. The only right of appeal, DPR necessarily contends, is from the original erroneous order. As a result, Dr. Taylor has lost his right of appellate review of the substantive findings by the Board solely because he did what any reasonable person in such circumstances would have done — he asked the Board to correct its apparent error by entering a correct order before he filed the notice of appeal.
Under DPR's reasoning, the August 8 amended order has no validity whatsoever. So, with the dismissal of this appeal, Dr. Taylor will stand convicted and disciplined under a final order that imposes a penalty for five years, two years more than the Board intended, without any opportunity for correction of the admitted error by the Board, and without an opportunity for appellate review on the merits of the correct order. This result is undesirable, unnecessary, and, in my view, offensive to the purpose of the quasi-judicial power conferred on this administrative agency under the constitution and applicable statutes. DPR's position in this case, approved in the majority opinion in reliance on the decision in Systems Management Ass'n, Inc. v. Department of Health and Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1981), will serve only to compel parties in administrative proceedings to immediately appeal an obviously incorrect order without first giving the agency an opportunity to correct its error, and thereby needlessly add additional issues for review by already-overburdened appellate courts.
The needlessly harsh result in this case cannot be reconciled with the notions of due process and fundamental fairness underlying the statutes and rules governing administrative proceedings in this state. This is not the first time concerns for due process have caused the courts of this state to comment on the failure to adopt rules authorizing an agency to reconsider and set aside a final order. In Tall Trees Condominium Ass'n, Inc. v. Division of Florida Land Sales and Condominiums, 455 So.2d 1101, 1103 (Fla. 3d DCA 1984), the appellate court aptly observed:
As a parenthetical, we note that the Division has no procedural rule or provision for setting aside a final order; no counterpart to Rule 1.540, Florida Rules of Civil Procedure. Chapter 28-3, Florida Administrative Code and Section 120.53, Florida Statutes (1983), give agencies the authority to enact rules of procedure and practice. While we cannot require that the Division adopt such a rule, Citizens of Florida v. Mayo, 357 So.2d 731 (Fla. 1978), we suggest that notions of due process and fundamental fairness require that a procedure for setting aside a final order be available for use in appropriate situations.
It is well-established that a court has the inherent power to rehear and set aside or modify its own final orders, whether or not such power is expressly conferred by statute or rule, based upon the principle that "a trial court has inherent power to control its own judgments." American Savings Loan Ass'n of Florida v. Saga Development Corp., 362 So.2d 54 (Fla. 3d DCA 1978); 13 Fla.Jur.2d, Courts and Judges, § 15. The constitutional grant of authority to a court includes a broad grant of plenary power to adjudicate any matter within its general jurisdiction, and such jurisdiction "cannot properly be restricted by legislative enactment." State ex rel. Booth v. Byington, 168 So.2d 164, 171 (Fla. 1st DCA 1964), aff'd, 178 So.2d 1 (Fla. 1965).
In Byington, it was noted that a court, in the exercise of its general probate jurisdiction, may enter orders that modify or vacate prior final orders of probate, and "the absence of direct statutory authority upon the subject does not render the act extra-judicial." Ibid. The court further held:
The probate court has inherent power and jurisdiction to revoke probate decrees, notwithstanding that such decrees are considered to be in the nature of judgments in rem. That power may be exercised where justice clearly requires it. . . . In such instances courts have inherent power over their own process to prevent abuse, oppression and injustice and to protect their own jurisdiction.
168 So.2d at 171. The court also stated that the exercise of this inherent power in appropriate cases is one of the duties usually pertaining to courts of probate within the meaning of section 7(3), article V, Florida Constitution (1885). Regarding the effect of its holding on finality, the court observed, "Admittedly the order binds and concludes the whole world — but only until it is revoked or otherwise overturned" by the court. Id. at 173.
By analogy to the inherent powers of courts, it seems to me that an administrative tribunal clothed with quasi-judicial power likewise possesses authority to rehear and correct or modify its final orders before its jurisdiction of the order is lost, despite the absence of an express rule to that effect. Although inherent judicial powers attach to the office rather than a particular function, when the constitution and the legislature grant to an agency specific powers to act as would the judiciary, it is inherent in that grant of power that the agency perform correctly, including the correction of its erroneous or mistaken orders in a reasonable time if not otherwise set by statute or rule. The right to correct final orders is so fundamental to the effective and proper exercise of the conferred quasi-judicial power that an administrative agency must be deemed to have such inherent power incident to its exercise of the legislatively conferred judicial power.
The Florida Constitution of 1885 vested all judicial power in the courts of the state described in section 1, article V; it included no provision for conferring quasi-judicial power on administrative agencies. Our present constitution provides in section 1, article V, that judicial power is vested only in certain courts and no other, but also states, "Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices." It is apparent, therefore, that the quasi-judicial power of administrative agencies such as DPR derives from constitutional as well as statutory foundations; so it would seem that the inherent power to rehear and correct quasi-judicial orders, when necessary to ensure that orders correctly speak the true intention of the agency, need not necessarily be predicated upon express language in the organic statute or rule. This result follows from the recognition that the constitutional grant of limited judicial powers to administrative tribunals carries with it the authority to decide questions that traditionally were decided by constitutional courts. See Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).
Case decisions reveal a rather broad split of authority on whether administrative agencies should be held to have inherent power to rehear and vacate or modify final orders irrespective of the absence of statutes or rules so authorizing. See 2 Am.Jur.2d, Administrative Law, §§ 520, et seq. Recognizing a distinction between the power to correct clerical errors and the power to make substantive modification to an order, that treatise describes the various concerns as follows:
While there is no one general rule which, as a ring fence, will encompass all administrative tribunals in all situations in regard to their power to reconsider or modify their own decisions, determination as to the existence of the power is largely affected by the provisions of the governing statute, the nature of the agency's determination, and the reason for the change in decision. Whenever a question concerning administrative or judicial reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other hand. Each case requires a compromise.
* * * * * *
Even apart from any statutory provision expressly authorizing modification, administrative determinations are subject to reconsideration and change where they have not passed beyond the control of the administrative agency, as where . . . the powers and jurisdiction of the administrative agency are continuing in nature. While a proceeding is pending before a tribunal, there is no limit to the power of such tribunal to review any rulings it may have made, or to permit a reargument upon any proposition involved. When the jurisdiction of the administrative agency has terminated, there is no longer any power to reconsider or change the determination, and even a statutory provision for continuing jurisdiction may be held to end when the matter is no longer pending before the agency.
2 Am.Jur.2d, Administrative Law § 522.
The question boils down to comparing and weighing the competing interests in achieving a just and fair disposition of the issues against the ever-present concern for reaching finality in litigation. The proper balance between these competing interests may generally be achieved by recognizing the agency's inherent power to correct and vacate its erroneous order and permit a timely appeal from the new final order as amended if such agency action is taken before the agency loses jurisdiction of the original order by reason of the filing of a notice of appeal or the expiration of some reasonable time limit. Allowing the amended final order to commence the time for appeal in such instances should not preclude the attachment of finality to the agency's order with reasonable certainty.
In other instances where a motion for rehearing does not toll the time for taking appeal due to the absence of a specific provision therefor by rule, we have applied the foregoing approach without difficulty. Thus, we have held in workers' compensation cases that where the deputy commissioner's original order was deemed withdrawn and vacated before an appeal had been taken, which would divest the deputy commissioner of jurisdiction to act, an amended final order entered pursuant to a request for rehearing that incorporated all portions of the original order not thereby changed would be treated as the final order from which an appeal on the merits could be taken, even though the notice of appeal was filed more than thirty days after the filing of the original final order. Zahorian v. Department of Transportation, 436 So.2d 355 (Fla. 1st DCA 1983). I see no substantial reason why the same result should not obtain in the instant case based on the principle that when legislative authority to render a judgment is clearly present, there is inherent authority to correct an error in that judgment.
Here, appellant's request by letter for a corrected order was sent to the Board well before the time for appeal expired, and the Board decided to correct the erroneous order previously entered by issuing a completely new amended final order. Since the amended order contained all provisions of the original order that were not changed, and again notified Dr. Taylor of his right to appeal that order within thirty days, it is not only reasonable, but incumbent on the court, to treat the original order as having been implicitly withdrawn and vacated by the Board. I recognize that in this case, unlike in Zahorian, the Board's amended final order was not filed within thirty days of entry of the original final order, but I do not consider the presence of that fact in Zahorian to be a fatal or material distinction. The controlling consideration is whether the Board determined to vacate its earlier order before it lost jurisdiction to do so, not whether the agency filed the new final order as amended before expiration of the thirty-day period for appealing the original order. For instance, had the Board taken no action to correct its original order and filed no amended final order, Dr. Taylor would have been bound by his failure to notice an appeal within thirty days of the original June 26 order which remained outstanding. While we do not know from the record whether the board actually determined to withdraw its original order before the thirty days for taking an appeal expired on July 26, we do know that the Board did issue a new, correct order which was intended to supersede the original, and that its jurisdiction and power to correct its erroneous original order had not been lost by the filing of a notice of appeal. Therefore, I see no substantial reason for not permitting Dr. Taylor to appeal from the new final order, as corrected, in the absence of a showing on the record by DPR that the Board had lost jurisdiction to enter the new order by failing to decide to vacate and withdraw the original order before the passage of the original thirty-day appeal period. An agency is presumed to have acted in accordance with the law until it is shown otherwise, and its orders on appeal are presumed to be correct. See generally 1 Fla.Jur.2d, Administrative Law, §§ 192, 193.
While I prefer to rely on the cited presumptions and allow the case to proceed on appeal, an alternative approach would be to remand for a factual determination of when the Board determined to supercede its original order.
In view of the timely request by Dr. Taylor, and the not unreasonable delay of two weeks beyond the original thirty-day appeal period in filing the amended order, the expressed concerns for reaching finality underlying the decision in Systems Management Associates should be held satisfied notwithstanding the lack of an express administrative rule authorizing motions for rehearing. Moreover, in that case the motion for rehearing was denied and no new or amended final order was ever issued; hence, the only appealable order was the original one, as to which the thirty-day period for appeal had long expired when the notice of appeal was filed. I do not suggest this fact is necessarily an appropriate basis for distinguishing the two cases, since a similar result would unfortunately, but necessarily, have followed in this case had the Board not determined conscientiously and fairly to correct its erroneous penalty by implicitly vacating its original order and issuing a new final order. But the Board's course of action in this case, for which the Board members should be commended, gives testament to their sound sense of fair play, respect for principles of due process, and concern that justice be done.
Having been unable to persuade my colleagues not to apply the strict rule in Systems Management, but to apply the principles discussed herein, I urge certification of this issue to the Supreme Court as one of great public importance. This case is yet another instance among many showing the patent injustice that inevitably flows from an overly and unnecessarily strict construction of the administrative agency's power to modify or amend its final orders so as to correct errors that, in turn, would not have to be raised on appeal. An adjudicatory system that compels a litigant to protect his appellate rights by immediately appealing a final order even though it does not conform with the agency's announced intended decision, despite the agency's willingness to correct some or all of its errors, not only adds unnecessarily to the appellate case load, but also deprives the administrative law system of essential concepts of fairness and due process so necessary to the public perception and acceptance of it.
For the reasons expressed, I would deny the motion to dismiss this appeal.