[*] The author thanks Professor Jim Rossi, Florida State University College of Law, for his helpful comments and guidance throughout the development of this Comment. Return to text.

[1] See William Booth, Florida Seeks End to Rule By the Book; For Some Regulators, Guidelines May Suffice, WASH. POST, Mar. 14, 1995, at A1. The Governor was influenced by PHILLIP K. HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA (1994), which comments on contradictory decisions made by government bureaucrats. See Booth, supra, at A1. However, even reviewers who praise Howard's book do not necessarily advocate his solution of a massive repeal of agency rules. See, e.g., Stephen T. Maher, The Death of Rules: How Politics Is Suffocating Florida, 8 ST. THOMAS L. REV. 313, 319 n.25 (1996) (citing George Gendron, The Death of Common Sense, INC., May 1995, at 11 (book review)). Other reviewers are more critical of Howard's book, strongly disagreeing with his conclusion that government should rely upon general principles instead of legal rules. See id. at 319 n.27 (citing Robert F. Nagel, The Death of Common Sense, WASH. MONTHLY, Jan./Feb. 1995, at 45 (book review)). Critics assert that government cannot run on abstract principles with regulators relying only on their judgment. See id. Return to text.

[2] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147 (codified at FLA. STAT. ch. 120 (Supp. 1996)). Return to text.

[3] See Administrative Procedure Act, ch. 74-310, 1974 Fla. Laws 952. Return to text.

[4] See FLA. STAT. § 120.54 (Supp. 1996). Return to text.

[5] See ch. 96-159, § 25, 1996 Fla. Laws at 194-96 (codified at FLA. STAT § 120.595 (Supp. 1996)); see also discussion infra Part III.A. Return to text.

[6] See discussion infra Part V.A.4. Return to text.

[7] See Susan M. Olson, How Much Access to Justice from State "Equal Access to Justice Acts"?, 71 CHI.-KENT L. REV. 545, 577 (1996). Return to text.

[8] See discussion infra Part V.A. Return to text.

[9] See discussion infra Part V.B. Return to text.

[10] F. Scott Boyd, A Traveler's Guide for the Road to Reform, 22 FLA. ST. U. L. REV. 247, 248 (1994). Return to text.

[11] See id. at 270. Return to text.

[12] See Michael Peltier, Long Agenda Awaits Legislators, BUS. J.- JACKSONVILLE, Mar. 3, 1995, at 4-5. Return to text.

[13] See Fla. CS for HB 237 (1994); Fla. CS for SB 1440 (1994). Return to text.

[14] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1994 REGULAR SESSION, HISTORY OF HOUSE BILLS at 230, HB 237. Return to text.

[15] See Lawrence E. Sellers, Jr., 1994 Proposals for Rulemaking Reform, 22 FLA. ST. U. L. REV. 327, 344 (1994). Sellers notes that observers should "watch for similar [reform] measures to be considered again in 1995." Id. Return to text.

[16] See Booth, supra note 1, at A1. Return to text.

[17] Id. Return to text.

[18] Id. Smith used mangrove regulation to illustrate his point. See id. Mangroves are marine trees that serve as nurseries for wildlife. See id. Because of the disappearance of mangroves in Florida, DEP has provided regulations to prohibit trimming these trees. See id. In response to these regulations, no one trims mangroves, but they do not plant them either. Thus, Smith observes that this rule works against the ultimate goal of DEP: to have more mangroves to nurture Florida's fish and other wildlife. See id. In a world without rules, DEP would allow mangrove pruning while encouraging planting. See id. Return to text.

[19] See Peltier, supra note 12, at 1. Return to text.

[20] Lucy Morgan, Campaign to Rein in Rules Is on Its Way, ST. PETE. TIMES, Mar. 29, 1995, at 5B. Opponents of a total repeal claimed that government without an administrative procedure act would be chaos. See id. Tallahassee lawyer Tom Pelham, former Secretary of the Florida Department of Community Affairs, commented that such a repeal "would be the worst kind of phantom government." Id. Return to text.

[21] See Chiles Seeks to Repeal Act in Effort to Slice Red Tape, ORLANDO SENT., Mar. 31, 1995, at C5. Return to text.

[22] See Fla. CS for CS for SB 536 (1995). Return to text.

[23] Veto of Fla. CS for CS for SB 536 (1995) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, July 12, 1995) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.); see also Chiles Vetoes Measure to Reduce Regulations, Citing Many Problems, FT. LAUD. SUN SENT., July 13, 1996, at 12A. The Governor claimed that "he liked some aspects of the package but they were outweighed by a list of problems he perceived." Id. The veto decision was not unexpected. In fact, Senate leaders delayed the bill's arrival on Chiles' desk, hoping that time might change the Governor's mind. See id. Environmentalists applauded Governor Chiles' veto. David Gluckman, an environmental lobbyist, commented that the 1995 measure was not a bill to "streamline administrative procedures, it was a bill to shut down government." Craig Quintana, Chiles Scuttles Regulatory-Reform Bill, ORLANDO SENT., July 13, 1995, at C1. Return to text.

[24] See Quintana, supra note 23, at C1. Return to text.

[25] See generally GOV.'S ADMIN. PROC. ACT REV. COMM'N, FINAL REPORT (1996) [hereinafter REVIEW COMMISSION REPORT]. The Review Commission met six times between October 1995 and February 1996 to review the current administrative regulations and make formal recommendations. See id. at v; see also Adam Yeomans, State Cutting Rules; Chiles Seeks Even Less Red Tape, FT. LAUD. SUN SENT., Jan. 29, 1996, at 5A. Return to text.

[26] See REVIEW COMMISSION REPORT, supra note 25, at 1. Return to text.

[27] See id. Return to text.

[28] See id. at 2. Return to text.

[29] See id. Return to text.

[30] See id. Although agencies have sometimes provided informal comments or suggestions regarding proposed legislation to committee staff members in the past, this proposal would give agencies formal input into bill analyses. Return to text.

[31] Id. Return to text.

[32] See id. Return to text.

[33] See id. at 2-3. Return to text.

[34] See id. at 3. Return to text.

[35] See id. Return to text.

[36] Id. The standard of "substantially justified" would be as defined in the Equal Access to Justice Act. See FLA. STAT. § 57.111 (1995). Return to text.

[37] See REVIEW COMMISSION REPORT, supra note 25, at 3. Return to text.

[38] Dem., Live Oak. Return to text.

[39] Dem., Winter Haven. Return to text.

[40] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION, HISTORY OF SENATE BILLS at 174, SB 2290. Return to text.

[41] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147. Return to text.

[42] See generally id. Return to text.

[43] See FLA. STAT. § 120.595(2)-(3) (Supp. 1996). Return to text.

[44] See id. § 120.595(1), (4), (5). Return to text.

[45] See id. § 57.111 (1995). Return to text.

[46] This Comment refers to these new attorney's fees provisions as the "rule challenge attorney's fees provisions." This should be distinguished from "1996 attorney's fees changes," which refer to all of the attorney's fees changes made in 1996. Return to text.

[47] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[48] See id. "Substantially justified" is defined as having a "reasonable basis in law and fact at the time the actions were taken by the agency." Id. Return to text.

[49] See id. Return to text.

[50] See id. § 120.595(1)(e)(1). This section defines "improper purpose" as initiating litigation to "harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." Id. Return to text.

[51] See id. § 120.595(1)(c). The administrative law judge is to consider whether the nonprevailing party has participated in two or more other such proceedings arising from the same transaction with the same adverse party. See id. The administrative law judge must further decide whether the nonprevailing party established either the factual or legal merits of its position earlier and whether the position taken at the present proceeding was cognizable in one of the previous proceedings. See id. Return to text.

[52] See id. § 120.595(5). Return to text.

[53] Id. Return to text.

[54] Other attorney's fees provisions potentially applicable to agencies are codified in places other than section 120.595. However, these provisions are tailored to specific situations, limiting their availability to the average litigant. See, e.g., FLA. STAT. § 448.08 (1995) (awarding attorney's fees and costs to prevailing party in a suit for unpaid wages). Return to text.

[55] The consolidation of attorney's fees provisions exemplifies fulfillment of the Review Commission's goal to create a more readable APA without making substantive changes. See REVIEW COMMISSION REPORT, supra note 25, at 6. Return to text.

[56] See Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, §§ 201-208, 94 Stat. 2321, 2325-30 (1980) (codified as amended at 28 U.S.C. § 2412 (1994)). Return to text.

[57] See Olson, supra note 7, at 552. Return to text.

[58] See Florida Equal Access to Justice Act, ch. 84-78, 1984 Fla. Laws 200 (codified as amended at FLA. STAT. § 57.111 (1995)). The Florida Legislature modeled the FEAJA after the EAJA. See Department of Prof'l Reg. v. Toledo Realty, Inc., 549 So. 2d 715, 717 (Fla. 1st DCA 1989). Return to text.

[59] FLA. STAT. § 57.111(2) (1995). Return to text.

[60] Id. § 57.111(4) (1995). For an additional discussion of the FEAJA, see Steven Wisotsky, Practice and Procedure Under the FEAJA, FLA. B.J., Apr. 1996, at 24. Return to text.

[61] See FLA. STAT. § 57.111(3)(d) (1995). The statute defines a "small business party" as a sole proprietor of an unincorporated business, including a professional practice, whose principle place of business is in Florida. See id. § 57.111(3)(d)(1)(a). The definition also includes a partnership or corporation whose principle place of business is in Florida. See id. § 57.111(3)(d)(1)(b). In both cases, the entity must not have had more than 25 full-time employees or a net worth exceeding $2 million. See id. § 57.111(3)(d)(1)(a)-(b). Return to text.

[62] See id. § 57.111(3)(c). A party is the "prevailing small business party" when (1) a final judgment has been entered in favor of the party; (2) a settlement has been obtained by the party on the majority of the suit's issues; or (3) the state agency has sought voluntary dismissal of its complaint. See id. Return to text.

[63] See id. § 57.111(4)(a). Return to text.

[64] See id. § 57.111(4)(b)(2). The application must assert that the party met the requisite burdens of being a small business party and prevailed in the proceeding. See FLA. ADMIN. CODE R. 60Q-2.035(3)(1995). The application also must include "the nature [and] extent" of the attorney's legal services and include other litigation costs involved in the action. Id. Return to text.

[65] See FLA. ADMIN. CODE R. 60Q-2.035(5)(a)(1), (3) (1995). Return to text.

[66] See FLA. STAT. § 57.111 (4)(d)(2) (1995). Return to text.

[67] See Act effective Oct. 1, 1996, ch. 96-410, § 6, 1996 Fla. Laws 2941, 2943-44 (codified at FLA. STAT. § 57.111(4)(b)(d)). The Legislature made only superficial changes to the FEAJA, changing the term "hearing officer" to the term "administrative law judge." See id. Return to text.

[68] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[69] See id. § 57.111(4)(d)(2) (1995). Return to text.

[70] See Wisotsky, supra note 60, at 32. Return to text.

[71] See Agency for Health Care Admin. v. Redi-Care Home Serv., Inc., 650 So. 2d 222, 222 (Fla. 1st DCA 1995) (denying fees on appeal because agency had previously paid out the maximum amount under the $15,000 cap). Return to text.

[72] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[73] See Jane P. Mallor, Punitive Attorneys' Fees for Abuses of the Judicial System, 61 N.C. L. REV. 613, 613 (1983). Courts have followed the American Rule since the U.S. Supreme Court held in Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796), that attorney's fees are not recoverable by a prevailing party as damages and that each party must bear the burden of its own attorney's fees. See id. at 306; see also Mallor, supra, at 653 n.1. Return to text.

[74] See Mallor, supra note 73, at 613-614. Return to text.

[75] See discussion supra Part II.B. Return to text.

[76] See Olson, supra note 7, at 548. Return to text.

[77] See id. Return to text.

[78] See id. Return to text.

[79] See id. Return to text.

[80] See id. Return to text.

[81] See id. Return to text.

[82] See Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 DUKE L.J. 651, 653. Return to text.

[83] See id. at 655. Return to text.

[84] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[85] See id. § 57.111 (1995). Return to text.

[86] The FEAJA was enacted because "certain persons may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense of civil actions and administrative proceedings." Id. § 57.111(2). Similarly, the rule challenge attorney's fees provisions were enacted, in part, to create a "more level playing field" for persons who challenge agency rules. See REVIEW COMMISSION REPORT, supra note 25, at 2. Return to text.

[87] See discussion supra Part II.B. Return to text.

[88] See Harold J. Krent, Explaining One-Way Fee Shifting, 79 VA. L. REV. 2039, 2048 (1993). Return to text.

[89] See id. Return to text.

[90] See id. Return to text.

[91] Previously, parties would not have had enough incentive to litigate when the recovery award would not even cover their attorney's fees. Now, parties with few resources will be much more likely to sue when they foresee a good opportunity to litigate successfully, especially where a contingency fee arrangement had not previously been an option. Therefore, more lawyers will be willing to accept cases challenging agency rules and more litigants will be seeking counsel. See id. Return to text.

[92] See discussion infra Part V.B.4. Return to text.

[93] See FLA. STAT. § 120.595 (Supp. 1996); see also discussion supra Part III.A. Return to text.

[94] But see Maher, supra note 1, at 342 (contending that the new version of the APA will create confusion and unnecessary costs because people will not be able to find the "familiar things"). Return to text.

[95] See FLA. STAT. § 57.111 (1995). Return to text.

[96] See Krent, supra note 88, at 2046. Congress has relied upon judges and affected parties to aid in federal agency monitoring. For example, Congress created private rights of action under the Federal Labor Relations Authority, see 5 U.S.C. §§ 7101-7135 (1994), and the Merit Systems Protection Board, see 5 U.S.C. §§ 7701-7703 (1994). Similarly, one-way fee shifting mechanisms employ the help of judges and private parties to police agency actions. See Krent, supra note 88, at 2047-48. Return to text.

[97] See Krent, supra note 88, at 2047. Return to text.

[98] The 1996 attorney's fees changes encourage more litigation in rule challenge proceedings by providing a higher fee award. For a more complete discussion of the litigation incentive of attorney's fees, see infra Part V.B.2. Return to text.

[99] See Krent, supra note 88, at 2047. Return to text.

[100] See id. Return to text.

[101] See REVIEW COMMISSION REPORT, supra note 25, app. O, at 1 (stating that increased monitoring will occur if attorney's fees and costs are levied against state agencies); see also Krent, supra note 88, at 2047. Return to text.

[102] See Krent, supra note 88, at 2048. Return to text.

[103] See discussion supra Part III.B; see also Olson, supra note 7, at 548; Rowe, supra note 82, at 664. For example, Congress created a one-way fee shifting mechanism for damages under wage statutes that involve employees suing their financially advantaged employers. See, e.g., 29 U.S.C. § 216 (1994). Return to text.

[104] See Olson, supra note 7, at 577. Return to text.

[105] See id. Return to text.

[106] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[107] Under the rule challenge attorney's fees provisions, a judgment for costs and attorney's fees is rendered against the nonprevailing party after a rule or proposed rule is declared invalid. See id. Under the FEAJA, a prevailing small business party must file an application within 60 days of the final judgment to receive an award of attorney's fees. See id. § 57.111(4)(b)(2) (1995). Return to text.

[108] See id. § 120.595(2), (3) (Supp. 1996)). Return to text.

[109] See Olson, supra note 7, at 578. The substantial justification standard represents a compromise between the anti-government and anti-litigation movements. See id. at 578-79. For further discussion of these competing ideologies, see discussion infra Part V.B.2. Return to text.

[110] See Olson, supra note 7, at 563 ("[T]he difficulty of meeting this standard is reduced somewhat by putting the burden of proof on the government to show that its conduct was substantially justified . . . ."). Return to text.

[111] See id. at 575. Floridians litigating under the FEAJA are successfully awarded attorney's fees and costs more than 50% of the time. See id. This percentage implies that Florida courts have chosen to make it fairly difficult for agencies to prove that their acts were substantially justified. See id. Return to text.

[112] See FLA. STAT. § 57.111(4)(a) (1995). Return to text.

[113] See Olson, supra note 7, at 562. The $15,000 cap only limits the redistributive effects of litigation that rule challengers perceive to cost considerably more than $15,000. In those situations, plaintiffs may choose not to challenge the rule when they risk a large sum of their own money in attorney's fees and costs. See id. Return to text.

[114] See Mallor, supra note 73, at 613. Return to text.

[115] See Johnny C. Burris, The Failure of the Florida Judicial Review Process to Provide Effective Incentives for Agency Rulemaking, 18 FLA. ST. U. L. REV. 661, 690 (1990) ("One of the purposes of the APA was to open up the relatively hidden and inaccessible decision processes of administrative agencies to more public participation."). Return to text.

[116] See CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 162 (1994). Agencies depend upon the public to supply a constant flow of information about potential rules. See id. Such information allows the agency to consider the acceptance of and resistance to specific rule development efforts. See id. The members of the public will be more accepting of a rule that they had a role in creating. See id. Return to text.

[117] See id. Return to text.

[118] See Fla. S. Comm. on Gov't Reform & Oversight, CS for SBs 2290 & 2288 (1996) Staff Analysis 29 (final Mar. 21, 1996) (on file with comm.). Return to text.

[119] See id. Return to text.

[120] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[121] See REVIEW COMMISSION REPORT, supra note 25, app. D, at 3 (minutes of Jan. 11, 1996 meeting). Return to text.

[122] See Olson, supra note 7, at 562. Return to text.

[123] See id. at 562 n.85. Most other states using a total cap amount have limits of $7,500 (10 states) or $10,000 (six states). Only Florida and Minnesota have higher total fee caps. See id. Return to text.

[124] See Maher, supra note 1, at 342. Return to text.

[125] See id. at 343. Return to text.

[126] See id. at 342. Return to text.

[127] See id. at 344-45. Return to text.

[128] See Olson, supra note 7, at 545-46, 549. Return to text.

[129] See Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1093 (1987). Return to text.

[130] Cf. Maher, supra note 1, at 346 (predicting that simplification of the APA will reduce the number of lawyers willing to sift through the reorganized and unfamiliar APA). Return to text.

[131] See Krent, supra note 88, at 2082-83; see generally, e.g., Hensley v. Eckerhart, 461 U.S. 424 (1983) (devoting the majority of the opinion to discussing attorney's fees issues). Return to text.

[132] See Krent, supra note 88, at 2083; Risa L. Lieberwitz, Attorney's Fees, The NLRB, and the Equal Access to Justice Act: From Bad to Worse, 2 HOFSTRA LAB. L.J. 1, 40 (1984). Professor Krent emphasizes that complex attorney's fees litigation is largely due to the substantial justification standard. See Harold J. Krent, Fee Shifting Under the Equal Access to Justice Act—A Qualified Success, 11 YALE L. & POL'Y REV. 458, 479 (1993). Return to text.

[133] See Krent, supra note 132, at 479-82. The litigation costs to agencies of proving substantial justification issues probably exceeds the amount saved in attorney's fees in minor litigation because the standard requires parties to relitigate their underlying dispute. See id. Large amounts of agency resources are required for attorney's fees litigation. See id. Nevertheless, the gate-keeping function served by the substantial justification standard saves valuable agency resources by deterring attorney's fees claims. See id. Return to text.

[134] See Krent, supra note 88, at 2082-83. Return to text.

[135] See id. at 2079-80. Return to text.

[136] See id. Return to text.

[137] See id. at 2083. Return to text.

[138] See discussion supra Part II.B. Return to text.

[139] See Krent, supra note 88, at 2075. Return to text.

[140] See FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[141] See id. § 120.54(2)(a). When an agency proposes a rule, it must publish a notice of rule development in the Florida Administrative Weekly. See id. Return to text.

[142] See id. § 120.54(2)(c). The agency must hold a public workshop if requested in writing by any affected person, unless the agency head explains in writing why a workshop is unnecessary. See id. Before adopting the rule, the agency must publish its intent. See id. § 120.54(3)(a)(1). After deciding to adopt the rule, an agency must provide even more opportunities for challenging the rule, such as scheduling a public hearing upon the request of any affected person. See id. § 120.54(3)(c)(1). An agency can also voluntarily hold a public hearing. See id. Return to text.

[143] The rulemaking process can be lengthy because of the potential for numerous public hearings. In addition, an agency cannot modify anything other than technical defects in the proposed rule unless the modifications are supported by the public hearing record or are in response to either a written comment received before the public hearing or a proposed objection by the Legislature's Joint Administrative Procedures Committee. See id. § 120.54(3)(d)(1). Return to text.

[144] Cf. Krent, supra note 88, at 2078. Professor Krent finds a small risk in overdeterring agency action where a substantial justification standard exists. Although the rule challenge attorney's fees provisions contain a substantial justification standard, the underlying conduct of agencies will be affected because the revised APA assesses litigation costs at the proposal level. See id. Return to text.

[145] See id. Agencies will be careful to stay within a safe zone. In the initial stages of rulemaking, this cautiousness may dangerously minimize an agency's willingness to introduce proposals. See id. Return to text.

[146] By allowing affected parties a voice in the rule development process, the APA invites the most critical parties' opinions. Such a thorough examination exposes a proposal's most prominent flaws. Return to text.

[147] See Maher, supra note 1, at 345-46. The affected public is strongly represented in the rule development process and has a voice in new agency policies. See id. at 345. Return to text.

[148] See id. at 328. Return to text.

[149] See id. at 322. Written rules add certainty to any society. See id. at 335. With the onset of the computer age, public access to rules will increase, augmenting the benefits of written rules. See id. at 323. Additionally, rules protect the public from government by communicating agency policy and allowing opponents to challenge those policies. See id. at 331. For a further discussion of the benefits of rulemaking as opposed to policy by adjudication, see Jim Rossi, Redeeming Judicial Review: The Hard Look Doctrine and Federal Regulatory Efforts to Restructure the Electric Utility Industry, 1994 WIS. L. REV. 763, 769-73. Return to text.

[150] Rulemaking ossification, a byproduct of judicial review, can substantively "affect the pace and quantity of agency regulation." See Harold J. Krent, Turning Congress Into An Agency: The Propriety of Requiring Legislative Findings, 46 CASE W. RES. L. REV. 731, 741 (1996). Return to text.

[151] Dem., Panama City, 1957-1988. Return to text.

[152] See Maher, supra note 1, at 329. Return to text.

[153] See Burris, supra note 115, at 668. If the Legislature builds barriers that inhibit agency rulemaking, then agencies will seek other alternatives for developing public policies. See id. But see FLA. STAT. § 120.535 (1995) (repealed and recodified 1996). This statute required agencies to adopt necessary rules through the rulemaking process and provided citizens with a cause of action against an agency for failing to do so. See id. The statute also awarded attorney's fees to persons who successfully demonstrated that an agency is not permitted to rely on the statement for agency action. See id. Although the Legislature repealed this statute, its provisions were divided among sections 120.54(1)(a), 120.56(4), 120.595(4), 120.80(13)(a), and 120.81(3)(a) in the simplification process. See Act effective Oct. 1, 1996, ch. 96-159, § 10, 1996 Fla. Laws 147, 160-61; id. § 16, 1996 Fla. Laws at 182-83; id. § 25, 1996 Fla. Laws at 196; id. § 41, 1996 Fla. Laws at 208-09; id. § 42, 1996 Fla. Laws at 211.

In addition, section 120.57(1)(e), Florida Statutes, prevents agencies from relying upon unadopted rules by imposing attorney's fees when an agency "determines the substantial interest of a party" based upon an unadopted rule that is set aside. FLA. STAT. § 120.57(1)(e) (Supp. 1996). Thus, given this section, which deters policy-oriented adjudicatory decisions, and the ossifying effects of the rule challenge attorney's fees provisions, overall agency inaction will be the likely result.

These provisions help prevent unwritten rulemaking efforts by requiring agencies to promulgate rules through the rulemaking process. However, these provisions alone cannot prevent all phantom government. Agencies can still find ways to avoid putting rules through the rule development process. Thus, the rule challenge attorney's fees provisions will still encourage phantom government rulemaking. Return to text.

[154] See Maher, supra note 1, at 331 (claiming that written rules have become the "fall guy" for people's unhappiness with government policies). Return to text.

[155] By abolishing just one of the new ways to obtain attorney's fees under the APA, financial costs would be reduced to a more manageable level. Parties would still be able to obtain attorney's fees for successful challenges to existing rules and for frivolous appeals. See FLA. STAT. § 120.595(3), (5) (Supp. 1996). Return to text.

[156] See id. § 120.595(2), (3). Return to text.

[157] See Olson, supra note 7, at 562. Return to text.

[158] Before deciding to challenge a rule, parties evaluate their chances of winning and their potential monetary awards. Parties also determine their potential risks, namely how much they might lose. A bright-line hourly attorney's fees cap would help rule challengers weigh their risk potential. Parties can more easily estimate the attorney's fees that an agency would be required to pay if a rule were overturned. See generally JOHN E. SHAPARD, FED. JUD. CTR., THE INFLUENCE OF RULES RESPECTING RECOVERY OF ATTORNEY'S FEES ON SETTLEMENT OF CIVIL CASES (1984), available in 1984 WL 62567 (describing an empirical study exploring the probability of settlement conducted at the Federal Judicial Center). Return to text.

[159] See Olson, supra note 7, at 562. Return to text.

[160] FLA. STAT. § 120.595(2), (3) (Supp. 1996). Return to text.

[161] See 28 U.S.C. § 2412(d)(1)(a) (1994). Return to text.

[162] See Krent, supra note 132, at 459, 479. Return to text.

[163] See Olson, supra note 7, at 563. Return to text.

[164] Cf. id. at 575. Arizona courts interpret their state's EAJA provision strictly and deny awards of attorney's fees to more than half the claimants. See id. However, the Arizona statute does not contain a substantial justification standard for courts to use to safeguard agencies and the public treasury. See id. The narrow interpretation of state EAJA language by Arizona courts illustrates the leeway that courts have when construing ambiguous statutory language. Return to text.

[165] See generally Seann M. Frazier, Award of Attorneys' Fees in Administrative Litigation, FLA. B.J., July/Aug. 1995, at 74 (reviewing the three general ways to seek attorney's fees under the APA). Return to text.

[166] See discussion supra Part V.B.4.a. (describing the rulemaking process). Return to text.

[167] See FLA. STAT. § 120.595(1), (4), (5) (Supp. 1996). Return to text.

[168] See Rowe, supra note 82, at 660 (describing the rationale for punitive fee shifting). Return to text.