Center for a Sustainable Coast v. Coastal Marshlands Protection Committee

SEARS, Chief Justice,

dissenting.

I respectfully dissent. The superior court prematurely intervened in an ongoing administrative process when it entertained a challenge to an interlocutory remand order issued by an administrative law judge (ALJ) acting on behalf of the Department of Natural Resources (Department). Under the Georgia Administrative Procedure Act (Georgia APA),5 6 the superior court’s subject matter jurisdiction to conduct appellate review of agency action in a contested case is strictly confined to the agency’s “final decision” in the matter. The ALJ’s February 21, 2006 remand order to the Coastal Marshlands Protection Committee (Committee) for further factual findings and expert agency analysis on two issues, though issued under the heading “Final Decision,” was not, in substance, the Department’s last word on whether it would grant or deny Point Peter, LLLP a marshlands permit,6 and the sole narrow exception to OCGA § 50-13-19 (a)’s “final decision” rule is not applicable here. Thus, the superior court lacked subject matter jurisdiction to review the ALJ’s order, and subject matter jurisdiction cannot be conferred by con*744sent, agreement, waiver, or acquiescence.7 The Court of Appeals therefore erred in granting the discretionary application and addressing the parties’ claims on the merits, and this Court should vacate the Court of Appeals’ judgment with direction to remand to the Committee to conduct the additional information gathering and analytical tasks ordered by the ALJ.

Judicial review of agency action in a contested case is governed primarily by three provisions of the Georgia APA.8 OCGA § 50-13-19 (a) authorizes superior court review of an agency’s “final decision” in a contested case, and the review contemplated is “appellate in nature.”9 “A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable” in superior court only “if review of the final agency decision would not provide an adequate remedy.”10

Under the Coastal Marshlands Protection Act of 1970, 11 the Committee is subordinate to the Department in the permitting process,12 and the Department acts only through the decisions of the ALJ.13 By law, the Committee, as well as the ALJ, was required to determine, among other things, whether granting the permit requested by Point Peter would result in: (1) unreasonably harmful obstruction or alteration of the natural flow of navigational waters in the area; (2) unreasonably harmful or increased erosion, shoaling, or stagnation; or (3) unreasonable interference with the conservation of marine life, wildlife, or other resources.14 The ALJ, acting for the Department, found that the Committee had failed to gather and analyze sufficient factual information to enable it to determine whether granting a marshlands permit to Point Peter would result in *745unreasonable interference with conservation of marine life, wildlife, and other resources for two reasons.

First, the research submitted to the Committee on the impacts to marine life, wildlife, and other resources, as well as the measures necessary to mitigate those impacts to the point that granting the permit would not result in unreasonable interference with their conservation, was not yet final. Second, the Committee did not consider or analyze the impact on the marshlands’ delicate ecosystem of funneling an additional 17-23 million gallons of polluted stormwater runoff directly into the marshlands from Point Peter’s associated residential and commercial development every time there was a heavy rain. Accordingly, the ALJ remanded the matter back to the Committee to compile this information, decide what mitigation measures would be necessary to prevent unreasonable interference with conservation, and either deny the marshlands permit or grant it again, but this time with appropriate conditions.

Point Peter and the Committee have argued in the superior court, the Court of Appeals, and now this Court that the Department, acting through the ALJ, erred as a matter of law in directing the Committee to gather and analyze information on the effects of routinely channeling tens of millions of gallons of polluted runoff directly into the marshlands from the high land portions of the development. That may or may not be a correct view of the applicable law. Regardless, it does not transform the ALJ’s intermediate decision that it needed more data to conduct the statutorily required public interest analysis into a “final decision” by the Department on whether, in the end, Point Peter’s application for a marshlands permit would be granted or denied. In any event, as the Court of Appeals noted, none of the parties appealed the portion of the ALJ’s order remanding to the Committee for further consideration of whether granting the permit would result in unreasonable interference with the conservation of right whales, manatees, and sea turtles.15 Thus, no matter what this Court decides today, further proceedings before the Committee at the administrative level are inevitable.

Where an agency’s final decision-maker (here, the ALJ) remands to an intermediate or initial agency decision-maker (here, the Committee) for further factual findings and analysis, review at the agency level is obviously not yet complete. The ALJ’s February 21, 2006 order remanding to the Committee for further investigation and analysis was, by definition, an “intermediate agency action or *746ruling.”16 Accordingly, under the Georgia APA, the superior court had subject matter jurisdiction to review the order only if review of the eventual final decision by the agency “would not provide an adequate remedy.”

We have consistently construed the “no[ ] ... adequate remedy” language of OCGA § 50-13-19 (a) as creating an extremely narrow exception to the final decision rule for superior court review of contested cases. This position accords well with administrative law’s strong preference for holding judicial review in abeyance until an administrative agency has spoken its last word in a case.17 Thus, we have found that further proceedings at the agency level “would not provide an adequate remedy” only where the agency’s rules affirmatively prohibited further proceedings following a remand order,18 or where a remand order in essence dictated the agency’s final decision on whether a permit would be granted or denied.19 Otherwise, we have emphasized that “if [a party to a contested case] is dissatisfied after exhausting his administrative remedies, then (and only then) may he seek judicial review of the administrative determination.”20 As the United States Supreme Court has warned, “frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.”21

In this case, there is no reason to think that superior court review after the further fact-finding and analysis by the Committee ordered by the ALJ “would not provide an adequate remedy” as that phrase is used in OCGA § 50-13-19 (a). If, after further proceedings by the Committee and a final decision by the ALJ, the superior court *747found that the ALJ erred as a matter of law in ordering the Committee to consider the impact of polluted stormwater runoff from the associated high land development, the superior court could simply strike from the permit any conditions imposed as a result of that analysis. This is not a case where agency rules prohibited further proceedings following the entry of the ALJ’s order or the remand order was, in effect, tantamount to a final decision that the permit should be denied. Accordingly, this case does not fall within the one narrow exception to the Georgia APA’s “final decision” rule, and the trial court lacked subject matter jurisdiction over the petitions for review.

Decided November 17, 2008 Reconsideration denied December 16, 2008. Smith, Gambrell & Russell, Stephen E. O’Day, Michael J Grode, Christopher K. DeScherer, for appellants. King & Spalding, Patricia T. Barmeyer, John Fortuna, James A. Chamberlin, Jr., Thurbert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, Senior Assistant Attorney General, James D. Coots, Assistant Attorney General, for appel-lees.

To summarize, the ALJ’s February 21, 2006 remand order was not a “final decision” by the Department on Point Peter’s permit application, and there is no indication that withholding judicial review until the agency had reached its final decision would have left Point Peter without an adequate legal remedy. Consequently, the trial court lacked subject matter jurisdiction to review the ALJ’s order, there was no “final judgment” by the superior court for the Court of Appeals to review,22 and the Court of Appeals erred in granting the discretionary application and issuing an opinion addressing the parties’ claims on the merits. For the same reason, this Court should not rule on the merits of the case, but should vacate the Court of Appeals’ judgment and remand for further proceedings before the Committee. Accordingly, I respectfully dissent.

I am authorized to state that Presiding Justice Hunstein joins in this dissent.

*748Butler, Wooten & Fryhofer, Joel O. Wooten, Jr, Julie V. Mayfield, amici curiae.

OCGA §§ 50-13-1 to 50-13-44.

In deciding whether an agency action is a “final decision” subject to immediate judicial review, we look not to the title assigned to it by the agency, but instead to its substance and function. See Hughey v. Gwinnett County, 278 Ga. 740, 741 (609 SE2d 324) (2004) (“Whether an order is final and appealable is judged by its function and substance, rather than any ‘magic language.’ ”).

See, e.g., Gray v. Gray, 229 Ga. 460 (192 SE2d 334) (1972) (“Waiver or consent of the parties cannot confer on a court jurisdiction of a subject matter wherein it has none at law. When a court has before it a matter where it has no jurisdiction of the subject matter, no legal judgment can be rendered except one of dismissal; and when this court discovers from the record on appeal that a judgment has been rendered by a court having no jurisdiction of the subject matter, it will of its own motion reverse the judgment.”).

See OCGA §§ 50-13-19 (judicial review of contested cases), 50-13-20 (appeals to Court of Appeals or Supreme Court), 50-13-20.1 (judicial review of decisions in contested cases issued pursuant to Code Section 50-13-41).

Howell v. Harden, 231 Ga. 594, 594 (203 SE2d 206) (1974). Accord Ga. Pub. Svc. Comm, v. Southern Bell, 254 Ga. 244, 246 (327 SE2d 726) (1985).

OCGA § 50-13-19 (a).

OCGA §§ 12-5-280 to 12-5-297.

OCGA § 12-5-283 (a).

OCGA§ 12-5-283 (b) (providing that “[t]he decision of the administrative law judge shall constitute the final decision of the board” of the Department). See also OCGA § 12-1-2 (a) (stating that “[t]he decision of an administrative law judge shall constitute the final administrative decision in any matter” by the Department), (b) (“Any reference in this title to a final decision of the Board of [the Department of] Natural Resources shall mean a final administrative decision by an administrative law judge.”).

OCGA § 12-5-286 (g) (l)-(3).

Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 530 (649 SE2d 619) (2007).

See Black’s Law Dictionary (4th ed. 2008) (defining remand as “[t]he act or an instance of sending something (such as a case, claim, or person) back for further action”).

See, e.g., McKart v. United States, 395 U. S. 185, 193-194 (89 SC 1657, 23 LE2d 194) (1969) (“A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.”).

Wilson v. Ledbetter, 260 Ga. 180, 182 (390 SE2d 846) (1990) (agency rules prohibited further hearings).

Hughey, supra, 278 Ga. at 740-741 (order calling for “remand” was, in reality, final determination that permit must be denied).

Dept. of Transp. v. Gibson, 251 Ga. 66, 69 (303 SE2d 19) (1983). See OCGA § 50-13-19 (a) (requiring exhaustion of “all administrative remedies available within the agency” as prerequisite to judicial review in superior court).

McKart, 395 U. S. at 195.

OCGA § 50-13-20.