FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Administrative Appeal from the Department of Education,
Division of Vocational Rehabilitation.
P.F-G., Clermont, Pro se.
McNeal, Florida Department of Education, Tallahassee, for
appeals the dismissal, with prejudice, of her amended
petition challenging the use of an unadopted rule in
vocational rehabilitation proceedings, filed pursuant to
section 120.56(4), Florida Statutes (2017). Appellant raises
several issues on appeal, but we only address the arguments
that were preserved. First, Appellant asserts the State of
Florida Division of Administrative Hearings
("DOAH") erred by dismissing her initial petition
when she alleged sufficient facts to challenge the unadopted
rule. Second, Appellant argues that DOAH erred by dismissing
her amended petition with prejudice because section 120.569,
Florida Statutes (2017), does not expressly state that DOAH
may dismiss with prejudice in this situation. We disagree
and, therefore, affirm on both grounds.
receiving assistance for her undergraduate degree, Appellant
returned to the Florida Department of Education, Division of
Vocational Rehabilitation ("Division"),
seeking further assistance to attend law
school. The Division denied her request, and Appellant
brought this petition, challenging the Division's use of
the Counsel Policy Manual. Appellant argued that section
13.01 of the Policy Manual is an unadopted rule "because
it implements, interprets, or prescribes law or policy or
describes the procedure or practice requirements," of
September 22, after conducting a telephonic hearing, DOAH
dismissed the petition, with leave to amend within ten days.
Appellant untimely filed her amended petition on October 2 at
6:22 p.m. According to Florida Administrative Code 28-106.104
(3), "[a]ny document received by the office of the
agency clerk before 5:00 p.m. shall be filed as of that day
but any document received after 5:00 p.m. shall be filed as
of 8:00 a.m. on the next regular business day."
Therefore, the amended petition was treated as though it was
filed at 8:00 a.m. on October 3. The Division moved to
dismiss with prejudice the amended petition because it was
untimely. Appellant responded that the amended petition was
late due to excusable neglect. Ultimately, DOAH dismissed the
amended petition, stating that Appellant did not argue for
equitable tolling of the deadline, excusable neglect does not
apply in administrative proceedings, and Appellant had the
opportunity to file for an extension but chose not to do so.
Appellant appeals that decision.
to section 120.56, Florida Statutes (2017);
Any person substantially affected by an agency statement that
is an unadopted rule may seek an administrative determination
that the statement violates s. 120.54(1)(a). The petition
shall include the text of the statement or a description of
the statement and shall state facts sufficient to show that
the statement constitutes an unadopted rule.
Appellant's assertion that she alleged sufficient facts
to challenge the unadopted rule, the original petition was
riddled with conclusory statements, without any factual basis
to support her claims. Accordingly, DOAH properly dismissed
the petition because Appellant failed to allege facts to
establish that the challenged statements constitute unadopted
rules. See id.
addition, DOAH did not err in dismissing Appellant's
amended petition as untimely. Appellant was afforded one
opportunity to amend her petition pursuant to section
120.569(2)(c), but she filed her amended petition late. As
such, DOAH was required to dismiss her amended petition as
untimely and was free to dismiss the petition with prejudice
because it had already given Appellant the opportunity to
amend. See § 120.569(2)(c), Fla. Stat. (2017)
("A petition shall be dismissed if it is not in
substantial compliance with these requirements or it has been
untimely filed. Dismissal of a petition shall, at least once,
be without prejudice to petitioner's filing a timely
amended petition curing the defect, unless it conclusively
appears from the face of the petition that the defect cannot
be cured."). Accordingly, we affirm the dismissal with
prejudice of Appellant's untimely filed amended petition.
C.J., SAWAYA and ...