Brannock Berman & Seider Wins Administrative Appeal
In a dual win for its clients, Brannock Berman & Seider secured both a stay of ongoing administrative proceedings and a decisive merits ruling from the Florida First District Court of Appeal, which confirmed that an administrative law judge (ALJ) lacked authority to revive a claim for attorney’s fees after the case had effectively moved on.
The dispute arose from a challenge to a permit issued by the Florida Department of Environmental Protection (FDEP) to the City of Cape Coral. During that challenge, the City sought attorney’s fees as a sanction against Brannock Berman & Seider’s clients. The ALJ initially recognized she could not decide that request until FDEP determined who prevailed and said she would reserve jurisdiction to address fees later. But when she issued her recommended order, she included no such reservation.
After the omission came to light, the City attempted to fix the problem by asking FDEP to send the case back. But before FDEP acted, the ALJ issued a “corrected” recommended order adding a reservation of jurisdiction. FDEP never remanded the case and did not include any reservation in its final order—and the City did not appeal.
Despite that, the ALJ later set a hearing on the City’s fee request. Brannock Berman & Seider moved to halt those proceedings and sought appellate review. When the ALJ declined to pause the case, the First District stepped in and granted a stay.
On the merits, the First District then agreed across the board with Brannock Berman & Seider’s arguments. The appellate court held that once jurisdiction shifted to FDEP, the ALJ no longer had authority to make substantive changes to her recommended order. Adding a reservation of jurisdiction to pursue attorney’s fees was not a minor correction—it was a material change the ALJ could not make. The appellate court also made clear that the City could not get a second chance after failing to appeal FDEP’s final order.
The First District ultimately quashed the order setting the hearing, bringing the attempted fee claim to an end and reinforcing important limits on agency and ALJ authority in administrative proceedings.