When seeking review of nonfinal administrative orders, Florida practitioners may instinctively default to common-law certiorari standards. That instinct is understandable: in civil cases, many nonfinal orders are reviewable only by certiorari. But in administrative appeals before the First District, that instinct is now incorrect.
In an en banc decision, the First District held that nonfinal review under section 120.68(1)(b), Florida Statutes, is governed by the Administrative Procedure Act—not by common-law certiorari. BAM Trading Servs., Inc. v. Office of Fin. Regul., 395 So. 3d 687 (Fla. 1st DCA 2024). Treating these proceedings as certiorari is thus no longer harmless shorthand; it is a substantive error.
The Statute, Not Certiorari, Controls
Section 120.68(1)(b) authorizes immediate review of a “preliminary, procedural, or intermediate” agency action when waiting for final agency action would not provide an adequate remedy. When that threshold is satisfied, the court’s scope and standard of review are supplied by statute, not by the common law of certiorari. BAM, 395 So. 3d at 689-691.
Specifically, section 120.68(7) governs the merits of the appeal. Under that provision, a court may set aside agency action when it determines, among other grounds, that the action:
- Exceeds statutory authority;
- Violates constitutional or statutory provisions;
- Is arbitrary or capricious;
- Is not supported by competent, substantial evidence; or
- Is impaired by a material procedural error or an erroneous interpretation of law.
Notably absent from this list is any requirement that the petitioner show a “departure from the essential requirements of law.” That phrase belongs to certiorari review. It does not define the scope of review under Chapter 120.
“No Adequate Remedy” Is Jurisdictional—Not the Merits Test
Much of the confusion in this area stems from the “no adequate remedy” language in section 120.68(1)(b). That language serves a gatekeeping function only. It answers a single question: whether nonfinal review is available now.BAM, 395 So. 3d at 689.
Once the court determines that review of final agency action would not provide an adequate remedy, interlocutory review is available under section 120.68(1)(b). BAM, 395 So. 3d at 689. At that point, the court does not revert to certiorari’s narrow merits review. The analysis proceeds under the statutory standards set forth in section 120.68(7). BAM, 395 So. 3d at 689-691.
Why This Matters
Mislabeling nonfinal administrative appeals as certiorari has real consequences.
First, it applies the wrong standard of review. Certiorari’s “departure from the essential requirements of law” standard is significantly narrower than the grounds for relief authorized by section 120.68(7). Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1110 (Fla. 1st DCA 2019) (explaining that the writ of certiorari issues to correct inherent illegality, not legal error).
Second, it understates the court’s authority under the APA. Chapter 120 expressly empowers courts to correct statutory violations, procedural errors, and unlawful exercises of agency authority in nonfinal appeals.
Third, it weakens otherwise viable arguments. Briefing a statutory appeal as if it were certiorari invites the court to apply constraints that the Legislature did not impose.
Common Mistakes to Avoid Going Forward
If you are filing or opposing a nonfinal administrative appeal, watch for these recurring errors:
- Calling the proceeding “certiorari”;
- Arguing “departure from the essential requirements of law”;
- Treating section 120.68(7) as secondary or optional;
- Ignoring statutory limits on agency authority.
Instead, anchor your argument in the text of section 120.68(7) and explain why the statute authorizes relief now and on these grounds.
Bottom Line
Nonfinal administrative review under section 120.68(1)(b) is statutory appellate review, not certiorari in disguise. Practitioners should brief these cases accordingly, grounded in the text of Chapter 120 and the standards in section 120.68(7). Continuing to rely on certiorari language is no longer harmless shorthand. It is a substantive mistake.
Jonathan Taylor is the Director of Appeals with The Law Offices of Moffa, Sutton, & Donnini, P.A. Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals. Mr. Taylor can be reached at 954-234-2884 or jonathantaylor@floridasalestax.com.
Read the full BAM Trading case here.
This article is provided for general informational purposes only and does not constitute legal advice or create an attorney–client relationship. Readers should consult qualified counsel regarding the specific facts of their cases.