Discussion
of Issues
Issue 1:
Should OPC’s Request for Oral Argument on its Motion
for Reconsideration of Order No. PSC-2025-0102-PCO-GU be granted?
Recommendation:
No. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and rule on the Motion. However, if
the Commission chooses to exercise its discretion to hear oral argument, staff
recommends that 5 minutes per side is sufficient. (Sparks, Imig)
Staff Analysis:
Law
Rule
25-22.0022(1), Florida Administrative Code (F.A.C.), allows a party to request
oral argument before the Commission for any dispositive motion (such as motions
for reconsideration) by filing a separate written pleading filed concurrently
with the motion on which argument is requested, and stating with particularity
why oral argument would aid the Commission. Granting or denying oral argument
is within the sole discretion of the Commission under Rule 25-22.0022(3),
F.A.C.
OPC’s
Position
OPC
contends that the issues it raises “involve complex depreciation matters,” and
OPC states that oral argument “could benefit the Commission’s review and
deliberation of the issues” and serve to “answer any questions the
Commissioners may have.” OPC requests 10 minutes for each party should the
Commission grant its request.
FCG’s
Position
FCG states that OPC’s Motion for
Reconsideration does not involve “complex depreciation matters” that
necessitate oral argument. To the contrary, the question appropriately before
the Commission as a result of OPC’s Motion is whether the Prehearing Officer
made a mistake of fact or law in determining that the depreciation issues
pending before the Florida Supreme Court are sufficiently distinct from the
depreciation study and petition that are the subject of this proceeding such
that this docket should be allowed to proceed. Oral argument is unlikely to
provide additional insight in that regard.
Conclusion
Granting
or denying oral argument is within the sole discretion of the Commission. Staff
believes that the pleadings are sufficient on their face for the Commission to
evaluate and decide OPC’s Motion. However, if the Commission wants to exercise
its discretion to hear oral argument, staff recommends 5 minutes per side is
sufficient.
Issue 2:
Should OPC’s Motion for Reconsideration be Granted?
Recommendation:
No.
Staff recommends denying OPC’s Motion for Reconsideration under the
Commission’s traditional standard of review for such motions as: OPC has failed
to articulate a reason to depart from that standard; the Motion fails to raise
a point of fact or law that the Prehearing Officer overlooked or failed to
consider in rendering the Denial Order; and the Commission has jurisdiction to
continue with this docket.
Staff Analysis:
Law
The appropriate standard of review for reconsideration of
a Commission order is whether the motion identifies a point of fact or law that
the Commission overlooked or failed to consider in rendering the order under
review. See Stewart Bonded Warehouse, Inc. v. Bevis, 294 So. 2d 315
(Fla. 1974); Diamond Cab Co. v. King, 146 So. 2d 889 (Fla. 1962); and Pingree
v. Quaintance, 394 So. 2d 162 (Fla. 1st DCA 1981). It is not appropriate to
reargue matters that have already been considered. Sherwood v. State,
111 So. 2d 96 (Fla. 3d DCA 1959) (citing State ex. rel. Jaytex Realty Co. v.
Green, 105 So. 2d 817 (Fla. 1st DCA 1958)). Furthermore, a motion for reconsideration
should not be granted “based upon an arbitrary feeling that a mistake may have been
made, but should be based upon specific factual matters set forth in the record
and susceptible to review.” Stewart Bonded Warehouse, Inc., 294 So. 2d at 317.
OPC’s
Arguments
As an initial matter, OPC “asserts
that the Commission practice of applying the same review standard when the full
Commission reviews the decision of a single Commissioner is neither in the
public interest nor just.” OPC argues the ordinary standard for reconsideration
should not apply here because these matters have not been previously considered
by a majority of the Commission nor have they been the subject of any hearing
or public deliberation. OPC, therefore, asks that the Commission apply a de
novo standard of review to its motion.
In regard
to the merits of its Motion, OPC makes three arguments. First, OPC argues that,
in its original Motion for Abeyance, it stated “[i]t would be premature of the
Commission to initiate proceedings regarding amortization of the remaining
$27.3 million reserve surplus when the legality of the creation of the surplus
is pending before the Florida Supreme Court.” OPC asserts this is the same as
stating the Commission lacks jurisdiction to hear this case at this time. To
support this position, OPC argues that “the Commission cannot entertain the
transmutation or relabeling of the reserve surplus and associated parameters on
appeal without encroaching on the Florida Supreme Court’s jurisdiction” and
that “[p]roceeding with this docket directly affects the subject matter of the
appeal in violation of Florida Law.” OPC argues the Prehearing Officer
overlooked or failed to consider this point of law.
Second,
OPC argues the Commission should reconsider its Order because the Prehearing Officer
overlooked or failed to consider that whether FCG conducted its in-house 2025
Depreciation Study “in accord with previous practices” is a legal issue to be
litigated in this docket and therefore must not be prejudged.
Third, OPC
argues that the Prehearing Officer failed to consider the fact that the
depreciation parameters on appeal and those from the 2025 Depreciation study
are from the same source, FCG. OPC states that, as FCG is the source of both
the 2022 and the 2025 Depreciation Study, “the Order’s conclusion that the
in-house 2025 Depreciation Study ‘is a new study conducted by a different
expert’ is not accurate.” OPC additionally argues that this fact further
demonstrates how the depreciation parameters on appeal and the proposed
depreciation parameters are inextricably intertwined. OPC argues that, as the Prehearing
Officer overlooked or failed to consider this point of fact, the Commission
should reconsider the Denial Order and hold these proceedings in abeyance.
FCG’s
Response
In regard to the standard of
review, FCG argues that, as the Commission has recognized time and again, the
appropriate standard of review in a motion for reconsideration is whether the
motion identifies a point of fact or law that was overlooked or that the
Prehearing Officer failed to consider in rendering his or her decision. FCG
argues that OPC fails to elaborate on why departing from the norm in this case
is necessary or why the application of the traditional standard is not in the
public interest, and that some rationale is required to make such a departure.
FCG states that the Commission has previously rejected OPC arguments and should
reject them again here. Applying the traditional standard, FCG argues that OPC’s
Motion must be denied because it fails to identify any mistake of fact or law
in the Prehearing Officer’s decision, or anything that was overlooked in
rendering that decision. Instead, OPC simply disagrees with the Prehearing
Officer’s conclusion, which is not sufficient to merit reconsideration.
FCG states
OPC’s first argument regarding jurisdiction is wrong for several reasons, but
mainly contends the matter pending
before the Commission is FCG’s 2025 Depreciation Study, while the subject
matter of the appeal pending before the Florida Supreme Court in Docket
SC2023-0988 is FCG’s 2022 Depreciation Study.
FCG argues
OPC’s second argument, which claims that the Prehearing Officer prejudged
whether FCG’s 2025 Study was conducted “in accord with previous practices” is demonstrably
incorrect by the language in the Denial Order itself. As stated in the Denial
Order, the Prehearing Officer simply determined that the subject of the appeal
and the 2025 Depreciation Study which is the subject of this docket were
distinct. In that context, the Prehearing Officer also recognized that the 2023
Final Order, as well as the 2023 Clarifying Order, regarding FCG’s 2022 rate
Request and 2022 Depreciation Study, have not been stayed. FCG argues OPC has
identified no mistake of fact or law in the Prehearing Officer’s Decision on
this point.
Finally, in regard to OPC’s final
argument, FCG states that it is a re-argument that should not serve as the
basis for reconsideration. The Prehearing Officer both understood and
acknowledged that the depreciation study that is the subject of the appeal
currently being considered in SC2023-0988 was submitted by the same Company
that has submitted the 2025 Depreciation Study in this proceeding. That both
were submitted by the same Company does not, however, demonstrate that the
parameters and rates are “inextricably intertwined” nor does it demonstrate
that the Prehearing Officer’s determination that to allow this case to proceed
was erroneous. As OPC has failed to identify a mistake of fact or law in the Denial
Order on this point and therefore, it must be denied.
Analysis
and Recommendation
In regard to the standard of review, staff agrees with FCG
that the Commission’s traditional standard regarding Motions for
Reconsideration should apply here, and OPC failed to provide sufficient
rationale to differ from long-standing Commission precedent for review of a Prehearing
Officer’s decision on a motion for abeyance. OPC contends a mistake of fact or law standard does not fit this
scenario because the matters for which OPC seeks review have either not been
previously considered by the majority of the Commission, or have not been the
subject of a hearing. The Commission has held that a mistake of fact or law
standard applies to reconsideration by the Commission of a Prehearing Officer’s
order.
Pursuant to Rule 28-106.211, F.A.C., the Prehearing Officer may issue
any orders necessary to effectuate discovery, to prevent delay, and to promote
the just, speedy, and inexpensive determination of all aspects of the case. The
Prehearing Officer has wide discretion in balancing the interests of parties in
the furtherance of the orderly administration of justice.
OPC has failed to provide a compelling reason to differ from prior practices,
and staff does not recommend doing so in this case.
In regard
to the merits of the Motion for Reconsideration, OPC has not clearly identified
any specific mistakes of fact or law the Prehearing Officer made or overlooked in
issuing the Denial Order. Without a specific mistake of fact or law, a motion
for reconsideration must be denied, even if the reviewing body would have
reached a different decision.
As to OPC’s first argument, OPC
essentially acknowledges it is simply restating an argument that was considered
and rejected by the Prehearing Officer and therefore should be rejected here.
Nonetheless, as OPC claims the Commission lacks jurisdiction, staff addresses
the merits of this claim.
In support of its claim, OPC
argues that taking up FCG’s petition in this docket would violate the Florida
Supreme Court’s exclusive jurisdiction over the matters on appeal from FCG’s
2023 rate case. Florida law recognizes that during the pendency of an appeal,
the appellate court has exclusive jurisdiction over the subject matter covered
by the appeal. See Willey v. W.J. Hoggson
Corp., 105 So. 126, 128 (Fla. 1925) (“When the jurisdiction of the
appellate court attaches, it is exclusive as
to the subject covered by the appeal.”)
(emphasis added); Thursby v. Stewart,
138 So. 742, 751 (Fla. 1931) (stating that “when an appeal is perfected . . .
[t]he authority of the lower court is terminated . . . at least as to the subject-matter of the appeal, until the appeal
is heard and determined”) (emphasis added). However, “the test to determine
loss of jurisdiction is not whether the trial court is proceeding in matters related to the final judgment, but
rather the proper test is whether the trial court is proceeding in a matter
which affects the subject matter on
appeal.’” Dep’t of Revenue ex rel.
Simmons v. Wardlaw, 25 So. 3d 80, 82 (Fla. 4th DCA 2009) (quoting Casavan v. Land O'Lakes Realty, Inc. of
Leesburg, 526 So.2d 215, 21516 (Fla. 5th DCA 1988) (emphasis in original)).
Staff recommends that the
Commission has jurisdiction to consider the petition. Although FCG’s petition
for approval of the 2025 Depreciation Study is related to the Commission’s final order that is currently on
appeal, it cannot be said that a decision in the present docket would affect the subject matter on appeal. In
other words the Commission’s decision in this case would not alter any part of
its prior orders. Assuming arguendo the Commission agrees with OPC that it
loses jurisdiction over all matters related to a case on appeal, such a
limitation would impact any docket in which a previous docket was still under
appeal, including entire base rate proceedings.
As to
OPC’s second argument, staff submits that a plain reading of the Order does not
reflect any prejudgment in regard to the study or the veracity of any of the
claims made by FCG, nor of any of the claims made by OPC. Instead, the Denial Order
merely concludes that the two matters are sufficiently distinct to proceed
“[b]ased on the representations of FCG,” and that moving forward “pragmatically
balances regulatory efficiency, fairness to all the concerned parties, and the
public interest in general.” Accordingly, OPC has identified no mistake of fact
or overlooked point of law in the decision on this point, and therefore, no
relief should be granted on these grounds.
As to OPC’s third argument, staff
submits that the Prehearing Officer correctly denied the abeyance motion
because there has been no demonstration that the cases are “inextricably
intertwined” so much so that it would affect the matter on appeal. The Denial
Order acknowledges that FCG filed both the depreciation study that is the
subject in this docket and the depreciation study that is the subject of the
appeal currently being considered in SC2023-0988. That alone sufficiently
demonstrates that the Prehearing Officer did not overlook or fail to consider
this fact. Furthermore, the fact that both were submitted by the same Company
does not demonstrate that the parameters and rates are “inextricably
intertwined.” Nor does it render “the Order’s conclusion that the in-house 2025
Depreciation Study ‘is a new study conducted by a different expert’”
inaccurate, as the Denial Order explicitly states this conclusion is based on
FCG’s representations. OPC has failed to identify a mistake of fact or law in
the Prehearing Officer’s Denial Order and therefore, the Motion for Reconsideration
should not be granted on these grounds.
Conclusion
Staff
recommends denying OPC’s Motion for Reconsideration under the Commission’s
traditional standard of review for such motions as: OPC has failed to
articulate a reason to depart from that standard; the Motion fails to raise a
point of fact or law that the Prehearing Officer overlooked or failed to
consider in rendering the Denial Order; and the Commission has jurisdiction to
continue with this docket.
Issue 3:
Should this docket be closed?
Recommendation:
This docket should remain open pending the
Commission’s final resolution of FCG’s proposed depreciation study.
Staff Analysis:
This docket should remain open pending the
Commission’s final resolution of FCG’s proposed depreciation study.
