PUBLIC COUNSEL v. FLORIDA PUBLIC SERVICE COMMISSION LLC (2024)

The public counsel seeks judicial review of ratemaking action of the Florida Public Service Commission. See § 350.128(1), Fla. Stat. (“The District Court of Appeal, First District, shall, upon petition, review any other action of the commission.”); see also Art. V, § 4(b)(2), Fla. Const. (“District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law.”). It was filed as a petition for review of non-final agency action under section 120.68(1)(a), Florida Statutes, but the Administrative Procedure Act does not apply to quasi-legislative functions like the interim ratemaking being challenged here. Cf. § 350.001, Fla. Stat. (“The Florida Public Service Commission has been and shall continue to be an arm of the legislative branch of government.”); § 120.50(1), Fla. Stat. (excepting the Legislature and judiciary from application of chapter 120); § 120.52(1), Fla. Stat. (defining “agency” in terms that do not expressly include the Florida Public Service Commission); § 120.52(7), Fla. Stat. (defining “final order” as “a written final decision which results from a proceeding under s. 120.56, s. 120.565, s. 120.569, s. 120.57, s. 120.573, or s. 120.574,” including “final agency actions which are affirmative, negative, injunctive, or declaratory in form”—but not a decision on ratemaking resulting from a proceeding under chapters 350 through 368); § 120.68(1), Fla. Stat. (addressing “judicial review” in terms of “final agency action” and interim orders leading to final agency action); § 120.80(13), Fla. Stat. (specifying exceptions and exemptions for the Florida Public Service Commission).^* We in turn treat the petition as one seeking review of action of the Florida Public Service Commission under section 350.128, Florida Statutes.

That stated, the public counsel now has filed a notice of voluntary dismissal under Florida Rule of Appellate Procedure 9.350(b). The petition, in turn, is dismissed. The court denies as moot the motion to hold this case in abeyance.

Dismissed.

FOOTNOTES

FOOTNOTE.   We suggest that the Appellate Court Rules Committee consider revisions to Florida Rules of Appellate Procedure 9.020, 9.100, 9.110, and 9.190 to address the unique nature of judicial review of ratemaking action.

Tanenbaum, J.

Lewis and B.L. Thomas, JJ., concur.