Citizens of State v. Fla. Pub. Serv. Comm'n & Utilities, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: BENTON, J.
• Citation: Citizens of State v. Fla. Pub. Serv. Comm'n & Utilities, Inc., 164 So.3d 58 (Fla. App. 2015)
• Decision Date: 04 May 2015
• Docket Number: No. 1D14–3868.,1D14–3868.
• Parties: CITIZENS OF the STATE of Florida, through the OFFICE OF PUBLIC COUNSEL, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION AND UTILITIES, INC., Appellees.

164 So.3d 58

CITIZENS OF the STATE of Florida, through the OFFICE OF PUBLIC COUNSEL, Appellant

v.FLORIDA PUBLIC SERVICE COMMISSION AND UTILITIES, INC., Appellees.

No. 1D14–3868.

District Court of Appeal of Florida, First District.

May 4, 2015.

J.R. Kelly, Public Counsel, and Erik L. Sayler, Associate Public Counsel, Tallahassee, for Appellant.

Samantha M. Cibula, Attorney Supervisor, and Kathryn G.W. Cowdery, Senior Attorney, Tallahassee, for Appellee Public Service Commission; Martin S. Friedman of Friedman, Friedman & Long, P.A., Lake Mary, for Appellee Utilities, Inc.

Opinion

BENTON, J.

The Office of Public Counsel (OPC) appeals the denial of its petition for declaratory statement by the Florida Public Service Commission (PSC). OPC sought a declaratory statement as to Public Counsel's right, if any, to conduct discovery in rate cases pending before the PSC under the proposed agency action (PAA) procedure, before proposed agency action is decided upon. But the PSC denied OPC's petition for declaratory statement on grounds that the petition failed to meet the requirements for obtaining a declaratory statement under section 120.565, Florida Statutes (2014). We reverse and remand with directions that the PSC consider the petition on the merits and issue a declaratory statement, without expressing any view on the merits ourselves.

The purpose of a declaratory statement is to resolve a controversy or answer questions concerning the applicability of statutes, rules, or orders which an administrative agency enforces, adopts or enters. Fla. Admin. Code R. 28–105.001. In the present case, OPC sought the following declaratory statement:

Upon intervention in any proceeding affecting rates or cost of service that the Commission processes under proposed agency action (PAA) procedures, Sections 350.0611(1), 366.093(2), 367.156(2), F.S., and Rule 28–106.206, F.A.C., authorize the Office of Public Counsel to conduct discovery prior to the issuance of the Commission's written Notice of Proposed Agency Action.

Citing section 120.565(1), Florida Statutes (2014),¹ OPC asserted that a declaratory statement was “necessitated by inconsistent and conflicting decisions which ha[d] created doubt for OPC regarding whether, going forward, the [PSC] will enforce OPC's statutory discovery rights in docketed PAA proceedings in which it intervenes....”

Specifically, OPC claimed that three PSC orders explicitly or implicitly recognized its right to obtain discovery in PAA rate cases prior to the issuance of a Notice of PAA,² but that one order, the WMSI order,³ purported to end its ability to conduct discovery before proposed agency action was announced. OPC maintained that the WMSI order departed from the PSC's past practice and “highlight[ed] the need for resolution and consistency going forward.”

Utilities, Inc. moved to intervene in the declaratory statement proceeding below, arguing that its interests would be substantially affected by the proceeding because its twelve regulated subsidiaries in Florida regularly sought rate relief (increases) through the PAA procedure. See Fla. Admin. Code R. 28–105.0027. Upon intervention, Utilities, Inc. asked the PSC to reach the merits of OPC's petition. But, on the merits, Utilities, Inc. argued that recognizing a right in OPC to conduct discovery in PAA rate cases before the PSC announced proposed agency action would increase rate case expense and exacerbate time pressures already attendant on compressed deadlines for PAA proceedings.

In the order on appeal, the PSC declined to reach the merits of OPC's petition for declaratory statement stating the petition failed to meet the requirements for declaratory statements for four reasons: because the petition for declaratory statement in effect challenged the validity or sought review of the WMSI discovery order; because the petition did not conform to the intent of section 120.565, Florida Statutes ; because the petition failed to allege a present, ascertainable set of facts; and because the petition requested a general advisory opinion.

In the WMSI case, Water Management Services, Inc. (WMSI), requested that its application for a rate increase be considered under the PAA procedure. See In re: Application for increase in water rates in Franklin Cnty. by Water Mgmt. Servs., Inc., Docket No. 110200–WU, Order No. PSC–12–0316–PCO–WU, 2012 WL 2366794, at *1 (F.P.S.C., June 19, 2012). The WMSI discovery order in question disallowed discovery OPC sought in that docket prior to proposed agency action, and was never appealed.

OPC had intervened in the WMSI case, and served formal discovery on WMSI. Id. After WMSI objected to the discovery, OPC filed a motion to establish discovery procedures and to compel WMSI's response to outstanding discovery. Id. at *1–2. The WMSI prehearing officer denied both discovery motions, id. at *2, stating, inter alia:

There is no “agency action” until the Commission enters its PAA order. Until the time the PAA order is issued, the Commission's staff is engaged in a free-form proceeding outside the scope of the Florida Administrative Procedures Act. As the Commission stated when it denied OPC's request to set WMSI's rate application for a hearing, “we agree with the Utility that Rule 25–22.029, F.A.C., contemplates that it is after the Agenda Conference and issuance of the PAA action that the provisions of Section 120.569 and 120.57, F.S., become applicable.”

As is the case for all proposed agency action proceedings, OPC will have the opportunity to address the Commission at the ... Commission Agenda Conference when the Commission will vote on WMSI's application. If OPC takes issue with the PAA order, OPC will have an opportunity to request a hearing pursuant to Rule 25–22.029, F.A.C. Others whose substantial interests are affected by the proposed agency action may also request a hearing. If a hearing is requested, an order establishing procedure will be entered and discovery parameters will be set, as is the case for all Commission proceedings set for hearing.

Id. (footnotes omitted). OPC's petition for declaratory statement alleges the WMSI order conflicts with statutes, rules, and other PSC orders⁴ that recognized OPC's right to conduct discovery before the issuance of the Notice of PAA, but does not seek to set the WMSI order aside in the WMSI case itself.

The PSC complains that OPC is belatedly challenging the validity of the WMSI discovery order even though OPC failed to appeal the WMSI discovery order. We find this claim to be without merit, although we accept the PSC's major premise: The PSC cites the case of Retail Grocers Association of Florida Self Insurers Fund v. Department of Labor & Employment Security, Division of Workers' Compensation, for the proposition that, in a declaratory statement proceeding seeking a declaration regarding a statute, agency rule, or agency order, “ ‘the validity of the statute, rule or order is assumed.’ ” 474 So.2d 379, 382 (Fla. 1st DCA 1985) (citation omitted) (emphasis omitted).

We agree that “ ‘the declaratory statement petition is not a vehicle for testing the validity of the [statute or agency actions about] which the declaration is sought.’ ” Id. (citation omitted) (noting the petitioner argued for the first time on appeal that rules under which the agency purported to act represented “an invalid exercise of delegated legislative authority”). But we do not agree that OPC's petition for declaratory statement in the present case is improperly attempting to secure a belated appeal of the WMSI order in question, as opposed to seeking the PSC's opinion as to whether and when the prohibition against discovery enunciated in the WMSI order applies in future cases.

In short, OPC's petition for declaratory statement is not a collateral attack on the WMSI order: The PSC could take no action on OPC's petition for declaratory statement that would overturn any order entered in the WMSI docket. OPC concedes that the time for appealing the WMSI discovery order has passed, and OPC makes clear that it is seeking the PSC's opinion on the applicability of language in the WMSI order on a “going forward” basis. OPC's petition for declaratory statement does not challenge the validity of the WMSI discovery order as applied to the facts of the WMSI case, a case in which the final order was handed down in May of 2013.⁵

We agree that the PSC is under no obligation to make declaratory statements as to rights being actively litigated either before it in another docket or elsewhere. See ExxonMobil Oil Corp. v. State, Dep't. of Agric. & Consumer Servs., 50 So.3d 755, 758 (Fla. 1st DCA 2010) (“Florida courts, including this one, have generally held that an administrative agency must decline to provide a declaratory statement when the statement would address issues currently pending in a judicial proceeding.”); Gopman v. Dep't. of Educ., State of Fla., 908 So.2d 1118, 1123 (Fla. 1st DCA 2005) (“[T]he rule is that ‘[d]eclaratory statement proceedings are not properly filed on issues simultaneously litigated in judicial or other administrative proceedings.’ ” (citation omitted)). There is no indication here, however, that OPC is abusing the declaratory statement process to intrude upon or make an end run around ongoing judicial or administrative proceedings. Indeed, OPC now accepts the order entered in the WMSI proceeding, even while it challenges future application of one rationale for the order as policy incompatible with governing rules and statutes.

Where contradictory orders make applicability of statutes or rules an administrative agency enforces uncertain as to particular circumstances, a declaratory statement may well be appropriate. We reject any contention that a party cannot avail itself of the declaratory statement provision of the Administrative Procedure Act to seek clarification of its rights, duties, and privileges if thrown into doubt by seemingly contradictory orders handed down by an administrative agency.

The...