J.S. v. C.M., Advocacy Ctr. for Persons With Disabilities, Inc.

• Decision Date: 15 November 2012
• Docket Number: No. 1D12–261.,1D12–261.
• Citation: 135 So.3d 312
• Parties: J.S., Appellant, v. C.M., Advocacy Center for Persons with Disabilities, Inc., L.C., J.S., L.L., J.F., C.A, Florida's Children First, Inc., and Agency for Persons with Disabilities, Appellees.
• Court: Florida District Court of Appeals

135 So.3d 312

J.S., Appellant,
v.
C.M., Advocacy Center for Persons with Disabilities, Inc., L.C., J.S., L.L., J.F., C.A, Florida's Children First, Inc., and Agency for Persons with Disabilities, Appellees.

No. 1D12–261.

District Court of Appeal of Florida,
First District.

Oct. 10, 2012.
Rehearing Denied Nov. 15, 2012.

[135 So.3d 313]

Jamie Ito, Edward J. Grunewald, and Jill B. Zaborske of The North Florida Center for Equal Justice, Inc., Tallahassee, for Appellant.

Jonathan Grabb, Senior Attorney, for Agency for Persons with Disabilities, Tallahassee.

LEWIS, J.

J.S., Appellant, challenges a final order of the Administrative Law Judge (“ALJ”) that denied his motion for attorney's fees, based on the ALJ's interpretation of section 120.595(4), Florida Statutes (2009). Because the ALJ erred in interpreting section 120.595(4), we reverse and remand for further proceedings.

FACTS

On October 23, 2009, C.M. filed a Petition for Administrative Determination of Invalidity of Agency Statements with the Division of Administrative Hearings as authorized by section 120.56(4), Florida Statutes (2009). In the petition, the petitioner alleged that “APD 04–007,” an agency statement of the Agency for Persons with Disabilities (“APD”), Appellee, constituted an unadopted rule, and that APD improperly used the agency statement to assess the eligibility of individuals for APD services because it was not adopted as a rule through the rulemaking procedures required by section 120.54(1)(a), Florida Statutes (2009). Between the date of filing the petition and February 10, 2010, various individuals and entities that are not parties to this appeal filed petitions to intervene. J.S. also filed a Petition for Leave to Intervene and Petition for Administrative Determination of Invalidity of Agency Rule with the Division of Administrative Hearings.¹ In his petition, J.S. sought a determination that APD's agency statement was an unadopted rule in violation of section 120.54(1)(a). The ALJ granted all of the petitions to intervene.

[135 So.3d 314]

On February 19, 2010, APD filed a notice of publication of a proposed rule. In its notice, APD stated that it published a notice of proposed rule in the February 19, 2010, edition of the Florida Administrative Weekly addressing the challenged statements, and that this notice of publication triggered an automatic stay in the proceeding pursuant to section 120.56(4). The ALJ granted the stay and canceled the final hearing. During the stay, on March 18, 2011, APD filed a notice of changing the proposed rule; APD withdrew the proposed rule and substituted it with a different proposed rule. Eventually, APD did not proceed with adopting this proposed rule.

Upon request of the parties, the ALJ lifted the stay and re-scheduled the final hearing. However, the parties filed a joint stipulation agreeing that APD's agency statement had been in effect since December 29, 2006, and that APD relied upon this agency statement until April 20, 2010. Also, the parties agreed that the agency statement constituted an unadopted rule in violation of section 120.54. As a result of the joint stipulation, C.M. and the intervenors filed a joint motion for summary final order. The parties requested a summary final order (1) finding that the agency statement was an unadopted rule, (2) directing APD to immediately cease relying on the agency statement as a basis for its actions, and (3) awarding reasonable attorneys' fees and costs. C.M. and the intervenors noted that APD conceded that the agency statement was an unadopted rule, but that APD did not agree to their entitlement to attorneys' fees and costs.

The ALJ canceled the final hearing, and ordered C.M. and the intervenors to file responses regarding their entitlement to attorneys' fees and costs. The ALJ gave APD twenty days from the date of the responses to file a response identifying any material facts in dispute, any argument regarding the entitlement to fees and costs, and APD's position regarding the reasonableness of the fees. All of the parties, except J.S., waived their right to attorneys' fees. J.S. filed a memorandum in support of his entitlement to attorney's fees and stated that sections 120.595(4)(a) and 120.595(4)(b), Florida Statutes (2009), provided that he was entitled to attorney's fees. J.S. also filed an affidavit of attorney's fees, and sought an award of $9,000 in attorney's fees for thirty-six hours of work on the instant case. J.S. claimed that his attorney worked 15.2 hours before the ALJ granted the automatic stay, 3.3 hours while the automatic stay remained in place, 10.5 hours after the case was re-scheduled for hearing, and 7 hours in preparing the memorandum in support of an award of attorney's fees. APD filed a response to J.S.'s memorandum and argued that many of the hours claimed by J.S. were unreasonable or legally uncompensable; however, it did not question J.S.'s entitlement to attorney's fees.

In the Summary Final Order, the ALJ determined that a reasonable award of attorney's fees would be 13.2 hours for work performed by J.S.'s attorney prior to APD's notice of publication of proposed rulemaking, at a rate of $175.00 per hour, for a total of $2,310.00. However, despite this finding, the ALJ concluded, in pertinent part, as follows:

[What is] fatal to [J.S.'s] counsel's claim for fees is the fact that the statute only allows reasonable fees and costs to the petitioner. It does not authorize fees or costs for intervenors, and...