11-5021 DANIEL DECKER, v. UNIVERSITY OF WEST FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 11-5021

Case Date: 04/24/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA DANIEL DECKER, Appellant, v. UNIVERSITY OF WEST FLORIDA, Appellee. _______________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-5021

Opinion filed April 24, 2012. An appeal from an administrative disciplinary action of the University of West Florida. Ryan M. Barnett of Whibbs & Stone, P.A., Pensacola, for Appellant. Anita Schonberger, Deputy General Counsel, University of West Florida, Office of the General Counsel, Pensacola, for Appellee.

PADOVANO, J. Daniel Decker, a student at the University of West Florida, seeks judicial review of an administrative order imposing disciplinary sanctions against him for a violation of the university's Academic Misconduct Code. We conclude that the order is not appealable to this court, because the university was not acting as an

agency as defined in the Florida Administrative Procedure Act when it rendered the decision. The proper remedy is to seek review by certiorari to the circuit court. Because the notice of appeal was timely and otherwise sufficient to invoke appellate jurisdiction, we transfer the case to the Circuit Court for Escambia County. A hearing panel assigned by the university found Mr. Decker guilty of cheating and suspended him as a student for two semesters. He appealed the decision to the provost, but the appeal was unsuccessful. On August 2, 2011, the provost wrote to Mr. Decker, explaining the reasons for upholding the decision by the hearing panel. Subsequently, on August 19, 2011, counsel for the university wrote to Mr. Decker, informing him that the provost's decision was final and advising him that he had a right to seek judicial review by filing a petition for writ of certiorari in the circuit court. Mr. Decker appealed to this court in the apparent belief that the decision by the university amounted to final agency action under the Administrative Procedure Act. The notice of appeal was filed on September 19, 2011. The university moved to dismiss the appeal on the ground that the notice of appeal was untimely. This argument would be well taken if we were to measure the time from the date of the first letter on August 2, 2011, but we are of the view 2

that the second letter dated August 19, 2011, is the one that qualifies as a final administrative order. We base this conclusion on the language of the two letters. When measured from the date of the second letter, the notice of appeal filed on September 19, 2011, a Monday, was timely and therefore effective to invoke appellate jurisdiction. The university also argued in the motion to dismiss that this court is not the appropriate forum for judicial review. This argument can be summarized in the form of a syllogism. The jurisdiction of the district courts of appeal to hear appeals from administrative orders is limited to decisions by administrative bodies that qualify as "agencies" under the Florida Administrative Procedure Act. The

university was not acting as an "agency" with respect to the decision at issue because it was acting under a power created by the Florida Constitution and not by general law. Therefore, the order is not reviewable by appeal to a district court of appeal. A decision is reviewable by appeal to a district court of appeal under the general provisions of the Administrative Procedure Act only if the person or entity rendering the decision falls within the statutory definition of an agency. See

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