They say that unwanted tasks roll downhill. Some in the military have even waxed poetic on the point. As Ella Fitzgerald sang, "Into each life some rain must fall," and that means we all get some tasks which we would perhaps enjoy less than others. But, I digress.
Does a Florida Judge of Compensation Claims have the authority to conduct proceedings, render findings, and determine the amount of attorney fees that are appropriate for a successful appeal of a workers' compensation matter? The quick answer is "certainly," and if you asked any grey-headed workers' compensation attorney that is the answer you would get. But if you asked "Where does that authority come from?" those attorneys might not respond so quickly.
After some thought, it is likely that their authority would be the Florida Rules of Appellate Procedure, Rule 9.180, specifically (i)(3), which states:
"If the court determines that an appellate fee is due, the lower tribunal shall have jurisdiction to conduct hearings and consider evidence regarding the amount of the attorney fee and costs due at any time after the mandate is issued"
This post is largely about our constitutional republic and some constitutional constructs that are worthy of understanding. The power of government here comes from the people. Those powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const., Amend. X. Many powers have been assumed by the federal government nonetheless, pursuant to broad grants of authority such as the Interstate Commerce Clause, and the Necessary and Proper Clause. Some argue that its assumption of power has been inappropriate. Further, the U.S. Supreme Court has concluded and explained that the powers granted to each branch are similarly constrained by the Constitution, that there is a "separation of powers" under which each branch must mind its business, and avoid interfering with the responsibilities of other branches.
Thus, some powers and authority are left delegated to the states (the separation between federal and state authority is referred to as "federalism," a horizontal demarcation similar to the vertical demarcation that is "separation of powers"). More specifically even, the Florida Constitution declares "All political power is inherent in the people." Fla. Const. art. I, Sec. 1. And, the power of government "shall be divided into legislative, executive, and judicial branches." Fla. Const. art. II, Sec. 3. That section continues "No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." Thus, "separation of powers" in the Florida Constitution is not an inference or interpretation, it is seemingly clear.
Separation of powers has been discussed in Florida workers' compensation. In 2004 that issue was critical when The Florida Bar Workers' Compensation Section asked the Florida Supreme Court to approve amendments to the Rules of Workers' Compensation Procedure. Those rules had been adopted by the Court in 1973, and for thirty years the process and procedure of workers' compensation litigation followed those rules. This is discussed further in Separation of Powers - An Interesting Analysis (February 2017).
Perhaps the most intriguing portion of the Court's 2004 decision is not the detailed explanation of how those Rules came to be, came to be endorsed by the legislature, and came to be accepted far and wide, though that is all interesting. Most intriguing, however, is the Court's conclusion regarding the separation of powers. Clearly, no judge of compensation claims is a "court," and as clearly only the courts are under the authority of the Florida Supreme Court. Noting that a Supreme Court that adopted and amended workers' compensation litigation rules for decades concluded:
Perhaps the most intriguing portion of the Court's 2004 decision is not the detailed explanation of how those Rules came to be, came to be endorsed by the legislature, and came to be accepted far and wide, though that is all interesting. Most intriguing, however, is the Court's conclusion regarding the separation of powers. Clearly, no judge of compensation claims is a "court," and as clearly only the courts are under the authority of the Florida Supreme Court. Noting that a Supreme Court that adopted and amended workers' compensation litigation rules for decades concluded:
"we find that this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for this executive entity. (Emphasis added)."
In Hans Christian Anderson's The Emperor's New Clothes, everyone went along when the emperor thought he had clothes. It took a fresh look, a fresh perspective, a child, to say "But he hasn't got anything on." And similarly, it took the Division of Administrative Hearings enacting workers' compensation procedural rules in 2003 for a fresh look at the Supreme Court rules, and a realization that a multitude had blindly assumed the efficacy of the rules for three decades.
Over those same decades, there have been various Florida appellate decisions that discuss the authority or jurisdiction of Judges of Compensation Claims (or "JCCs," formerly "Deputy Commissioners" and "Judges of Industrial Claims"). In 1983, the Florida Supreme Court concluded in Smith v. Piezo Technology, 427 So.2d 182 (Fla 1983):
"The deputy commissioner is vested only with certain limited quasi-judicial powers relating to the adjudication of claims for compensation and benefits."
In 1999, the District Court reiterated that JCCs operate "under a grant of quasi-judicial power from the Legislature, supplemented only by rules of procedure applicable to it adopted by the Supreme Court." Alachua County Adult Detention Center v. Alford, 727 So.2d 388 (Fla. 1st DCA 1999). Supplemented by the rules that the Court later concluded it never had authority to promulgate. Deciding Alford, and other cases, even the First DCA never took issue with the separation of powers issue.
In 2004, the District Court returned to the subject of JCC authority in Pace v. Miami Dade County School Board, 868 So.2d 1286 (Fla. 1st DCA 2004). The Court was direct, specific, and succinct:
"A JCC has no authority or jurisdiction beyond what is specifically conferred by statute.” Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999). “Unlike a court of general jurisdiction, a judge of compensation claims does not have inherent judicial power but only the power expressly conferred by chapter 440.” McFadden v. Hardrives Constr., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA 1991)."
So, we return now to Rule 9.180(i)(3), which says that "the lower tribunal" (in this context the JCC) "shall have jurisdiction," with "jurisdiction" meaning "authority." However, the District Court has been quite clear that the only authority of a JCC is "what is specifically conferred by statute.” So, accepting that this rule says there is jurisdiction and that this rule is not a statute, I reiterate the original question "Does a Florida Judge of Compensation Claims have the authority to conduct proceedings, render findings, and determine the amount of attorneys fees that are appropriate for a successful appeal of a workers' compensation matter?"
It would seem that if the answer to that question is "yes," then there must needs be a statute that says so. Smith, Alford, Pace, Farhangi, McFadden. Section 440.271 addresses the "appeal of order of" the JCC. There is nothing in that statutory section regarding the jurisdiction discussed in Rule 9.180(i)(3). Section 440.34 addresses "attorney's fees; costs." That section, 440.34(2), discusses consideration of the "benefits secured by the attorney," which might infer authority if it is the claimant who has prevailed upon appeal and thus, through appeal, "secured benefits." However, the section includes other language that seems far more related to the award of trial fees.
Section 440.34(5) is specific to appellate process. It provides that in the event of "proceedings" for "review of any claim, award or compensation order," then "the court may award the injured employee or dependent an attorney’s fee to be paid by the employer or carrier, in its discretion, which shall be paid as the court may direct." (Emphasis added). There is no language in this section that appears to afford a JCC any jurisdiction as seemingly described in Rule 9.180(i)(3). And, in light of the Supreme Court's clear enunciations in 2004, there remains no doubt that neither Judges of Compensation Claims nor the OJCC is a "court," and thus are not the subject of this subsection.
And so, the question persists, "does a Florida Judge of Compensation Claims have the authority" to determine the fee amount on behalf of the appellate court, pursuant to its instruction and order?
There are those who would perhaps refer to Section 440.33(1), which says the JCC may:
"do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office"
The authority conveyed by this section has been the subject of various appellate decisions. See Horizon Healthcare v. Murphy, 660 So.2d 1065 (Fla 1st DCA 1995)(440.33(1)(supported the authority to impose sanctions); Delgado v. J.C. Concrete, 721 So.2d 353 (Fla. 1st DCA 1998)("grant protective orders and, conversely, motions to compel independent medical examinations"); but see Karell v. Miami Airport Hilton, 668 So.2d 227 (Fla. 1st DCA 1996)("the E/C can point to no specific statutory provision conferring this authority upon the JCC, they nevertheless argue that the requisite jurisdictional authority can be implied from several statutory provisions" including 440.33(1)).
Most would agree, that the Court has the authority to award a fee. Section 440.34(5) is seemingly clear and specific in that regard. But, the authority of a JCC to award an appellate attorney fee appears more elusive. Can an Article V. Florida Court delegate its authority to an executive branch official? The answer to that seems perhaps as clear as the Supreme Court's conclusion that the legislature may not delegate rule-making authority to the Court. Is the JCCs' jurisdiction actually "only the power expressly conferred by chapter 440" as the Court has repeatedly concluded, or is that jurisdiction subject to augmentation at the behest, the delegation, of the Court? In that regard, if the JCC acts beyond actual authority ("ultra vires"), then is the Court that directs that action an accessory?
And, with that, we end where we started. The question, it seems, remains "Does a Florida Judge of Compensation Claims have the authority to conduct proceedings, render findings, and determine the amount of attorney fees that are appropriate for a successful appeal of a workers' compensation matter?" The answer is not "yes" merely because "they always have." That answer is akin to your mom's "because I said so," it didn't work when you were a kid and it won't work now.
"Because they always have" was not a sufficient answer to the Court's rules of procedure or the emperor's new clothes, and it is not the answer here. The answer is seemingly not "yes" the Court can delegate its authority, as delegation perhaps violates the separation of powers. And so, the ultimate answer is "I don't know."
Of course, the practice may proceed for a variety of reasons. First, the Court has been ordering the process and following its appellate rule for years. The Court believes it may delegate, and that the Court has virtual exclusive appellate jurisdiction over workers' compensation cases. Recently, in Abuse of Discretion (June 2018), I noted how even intermediate appellate courts could be the final word, infallible because they are last. Second, the current practice is expedient, and the Florida Supreme Court has exalted expediency over construction at least once, see Castellanos v. Next Door Company. 192 So.3d 431 (Fla. 2016). Finally, of course, the question would never be reviewed unless some party or some First District Judge raised it. In light of the years of habit, and the expediency, each of these is doubtful.
If the question were ever raised, and the Court concluded it has enforced an inappropriate paradigm for years, the effect would have to be addressed. In 2004, the Florida Supreme Court was aware of that and included in its Rules abrogation a limitation that the decision would only apply prospectively, to the future and not the past. The Court explained that this would prevent "an upheaval of decades of workers' compensation law." The Court, in correcting its misstep, prevented upheaval and consequence of its perception and rule imposition.
It is an intriguing question, "can a JCC award an appellate attorney fee." It is the sort of thing a law professor might enjoy tormenting a class with. It is a curiosity, a conflict, and a puzzle. And, in the end, the answer remains "I don't know," which did not satisfy Mr. Hand (oblique reference Fast Times at Ridgemont High) and it may not satisfy you. But, as they say, it is what it is until some higher court says it isn't.
"Because they always have" was not a sufficient answer to the Court's rules of procedure or the emperor's new clothes, and it is not the answer here. The answer is seemingly not "yes" the Court can delegate its authority, as delegation perhaps violates the separation of powers. And so, the ultimate answer is "I don't know."
Of course, the practice may proceed for a variety of reasons. First, the Court has been ordering the process and following its appellate rule for years. The Court believes it may delegate, and that the Court has virtual exclusive appellate jurisdiction over workers' compensation cases. Recently, in Abuse of Discretion (June 2018), I noted how even intermediate appellate courts could be the final word, infallible because they are last. Second, the current practice is expedient, and the Florida Supreme Court has exalted expediency over construction at least once, see Castellanos v. Next Door Company. 192 So.3d 431 (Fla. 2016). Finally, of course, the question would never be reviewed unless some party or some First District Judge raised it. In light of the years of habit, and the expediency, each of these is doubtful.
If the question were ever raised, and the Court concluded it has enforced an inappropriate paradigm for years, the effect would have to be addressed. In 2004, the Florida Supreme Court was aware of that and included in its Rules abrogation a limitation that the decision would only apply prospectively, to the future and not the past. The Court explained that this would prevent "an upheaval of decades of workers' compensation law." The Court, in correcting its misstep, prevented upheaval and consequence of its perception and rule imposition.
It is an intriguing question, "can a JCC award an appellate attorney fee." It is the sort of thing a law professor might enjoy tormenting a class with. It is a curiosity, a conflict, and a puzzle. And, in the end, the answer remains "I don't know," which did not satisfy Mr. Hand (oblique reference Fast Times at Ridgemont High) and it may not satisfy you. But, as they say, it is what it is until some higher court says it isn't.
