characterizing matters of public rights as those that “arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments”
How later courts described this case
- characterizing matters of public rights as those that “arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments”
- “Conspicuous among such matters are claims against the” government, and they “may arise in many ways and may be for money, lands, or other things.”
- characterizing affirmative defense of NICA exclusivity as a jurisdictional bar to medical malpractice action and applicability of Mandico to analysis
- discussing the exclusive remedy under the Plan as a jurisdictional bar to medical malpractice actions comparable to the workers compensation act
Written by the judges who cited it.
The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2022-3433
_____________________________
ERICA MCDONALD, as parent
and natural guardian of J.M., a
minor,
Appellant,
v.
FLORIDA BIRTH-RELATED
NEUROLOGICAL INJURY
COMPENSATION ASSOCIATION,
and FLORIDA HEALTH SCIENCES
CENTER, INC. d/b/a TAMPA
GENERAL HOSPITAL; and
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
Appellees.
_____________________________
On appeal from the Division of Administrative Hearings.
J. Bruce Culpepper, Administrative Law Judge.
November 20, 2024
LEWIS, J.
Appellant, Erica McDonald, appeals a final order in which the
administrative law judge (“ALJ”) determined that her claim filed
under Florida’s Birth-Related Neurological Injury Compensation
Plan (“NICA Plan” or “Plan”) was compensable but time-barred
under section 766.313, Florida Statutes (2015), and that Appellees,
Florida Health Sciences Center, Inc. d/b/a Tampa General
Hospital (“Tampa General”) and the University of South Florida
Board of Trustees (“USF”), provided her with adequate notice of
their participation in the Plan. This court has jurisdiction. See §
766.311(1), Fla. Stat. For the following reasons, the final order is
affirmed.
Factual Background
In November 2020, Appellant filed a petition seeking NICA
benefits with the Division of Administrative Hearings. She
claimed that her child, who was born in September 2015 at Tampa
General, suffered brain damage as a result of a birth-related
neurological injury. After the hospital and USF intervened in the
proceeding, NICA requested that the ALJ enter a summary final
order finding that while Appellant’s claim was compensable, it was
time-barred and that, as a result, dismissal with prejudice was
appropriate. The ALJ agreed that Appellant’s claim was
compensable under the NICA Plan but time-barred pursuant to
section 766.313 and explained in part:
Before compensation may be awarded under the
NICA Plan, in addition to section 766.309(1), the ALJ
must determine in section 766.316 whether:
Each hospital with a participating physician on
its staff and each participating physician, other
than residents, assistant residents, and interns
deemed to be participating physicians under s.
766.314(4)(c), under the [NICA] Plan shall
provide notice to the obstetrical patients as to
the limited no-fault alternative for birth-related
neurological injuries.
At this time, the factual questions in section 766.316
remain to be determined, as well as their ramifications
on Petitioner’s rights and remedies with respect to [the
child’s] injury. See Univ. of Miami v. Exposito ex rel.
Gonzalez, 87 So. 3d 803, 811 (Fla. 3d DCA 2012). . . .
2
In their subsequent motion for partial summary final order,
Tampa General and USF argued that the notice they provided to
Appellant of their participation in the NICA Plan met the
statutory requirements of section 766.316. They relied upon a
Notice to Obstetric Patients that Appellant electronically signed in
May 2015 when she presented to the hospital for an ultrasound
and again signed in September 2015 prior to the induction of labor.
That notice provided:
I acknowledge that I have received a copy of the brochure
prepared by NICA entitled “Peace of Mind for an
Unexpected Problem”, which explains the limited no-
fault alternative for birth-related neurological injuries
provided by Florida Law. I have been advised that Tampa
General Hospital participates in this program. This
program (NICA) provides certain limited compensation
in the event that specific neurological injuries occur
during labor, delivery, or resuscitation. I understand that
it is my responsibility to read the brochure and contact
NICA if I have any questions.
Appellant also received a second notice on each of those visits,
which provided in part as follows:
I have been furnished information in the form of a
brochure prepared by the Florida Birth-Related
Neurological Injury Compensation Association (NICA),
pursuant to Section 766.316, Florida Statutes, by the
physicians[] of the University of South Florida
Department of Obstetrics and Gynecology (USF
OB/GYN). I have been informed and understand that
ALL physicians currently or later employed with the USF
OB/GYN Department, including but not limited to all of
the individual physicians and certified nurse midwives
named below, are participating physicians in the NICA
Plan. In addition, I have been informed and understand
that all of the USF OB/GYN resident physicians are
participants in the NICA.
3
It is undisputed that Dr. Brown, the physician who delivered
Appellant’s child, was employed by USF when Appellant’s child
was born, but she was not expressly listed on the USF notice.
During the evidentiary hearing on the “notice issue,” Tampa
General’s manager of patient access and patient financial services
testified that Appellant was provided with the “NICA Peace of
Mind” brochure in May and September 2015 and Appellant signed
the electronic form confirming receipt of the brochure. The
manager explained that although the signed notice form is
uploaded into a patient’s medical records, the brochure, which
Tampa General obtained through NICA, is not kept in a patient’s
medical records. Tampa General’s patient access specialist
testified that she personally provided the brochure and notice
forms to Appellant.
In the final order, the ALJ explained that the “sole
(remaining) issue to be determined in this matter is whether
Intervenors, Tampa General and USF/Dr. Brown, complied with
the NICA notice requirements set forth in section 766.316. . . .”
The ALJ found the testimony of Tampa General’s witnesses to be
credible and concluded that Appellant received adequate notice of
Appellees’ participation in NICA. As to the issue of whether
Dr. Brown had to be personally named in the notice forms, the ALJ
reasoned that the “ALL physicians” language contained in the
forms provided Appellant with sufficient information to discern
that Dr. Brown was a NICA participant. In support of this
determination, the ALJ relied in part upon the Fifth District’s
opinion in Jackson v. Florida Birth-Related Neurological, 932 So.
2d 1125 (Fla. 5th DCA 2006), where the Fifth District upheld the
ALJ’s conclusion that notice was sufficient because a nurse for the
medical group verbally advised the patient that “all of the
physicians in [the practice group] participate in the NICA plan.”
As to the issue of whether Dr. Brown had an obligation to
personally provide Appellant with notice of her NICA
participation, the ALJ concluded that the approach USF used to
inform Appellant of Dr. Brown’s participation in NICA met the
requirements of section 766.316. The ALJ further determined that
Appellees were entitled to the rebuttable presumption that their
notices were sufficient because of Appellant’s written
acknowledgement that she received the brochures. In finding that
4
Appellant did not overcome the presumption, the ALJ explained
that she did not submit any evidence or testimony showing that
the NICA brochures she received failed to include a clear and
concise explanation of her rights under NICA. The ALJ concluded
that both Tampa General and USF were entitled to invoke NICA
as Appellant’s exclusive remedy for her child’s injuries and
reiterated that the claim was compensable but time-barred. This
appeal followed.
Analysis
NICA was established in 1988 by the Florida Legislature as a
way to alleviate the high costs of medical malpractice insurance
for obstetricians. Fla. Birth-Related Neurological Injury Comp.
Ass’n v. Dep’t of Admin. Hearings, 29 So. 3d 992, 994 (Fla. 2010).
The Legislature created the NICA fund to provide compensation
on a no-fault basis for birth-related neurological injuries. Id. If a
claim qualifies as a “birth-related neurological injury,” a
claimant’s exclusive remedy for compensation is through NICA.
Univ. of Miami v. Exposito ex rel. Gonzalez, 87 So. 3d 803, 806 (Fla.
3d DCA 2012). Specifically, section 766.303(2), Florida Statutes
(2015), provides in part:
The rights and remedies granted by this plan on
account of a birth-related neurological injury shall
exclude all other rights and remedies of such infant,
her or his personal representative, parents, . . . at
common law or otherwise, against any person or entity
directly involved with the labor, delivery, or immediate
postdelivery resuscitation during which such injury
occurs. . . . ”[ 1]
1 The statute provides an exception to the exclusivity
provision when it states that “a civil action shall not be foreclosed
where there is clear and convincing evidence of bad faith or
malicious purpose or willful and wanton disregard of human
rights, safety, or property, provided that such suit is filed prior to
and in lieu of payment of an award under ss. 766.301-766.316.”
5
(Emphasis added). The ALJ has “exclusive jurisdiction to
determine whether a claim filed under NICA is compensable.”
§§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat. (2015).
Because NICA remedies are limited, obstetric patients are
entitled to receive pre-delivery notice of their rights and
limitations under the Plan. Id. Section 766.316, Florida Statutes
(2015), which is entitled “Notice to obstetrical patients of
participation in the plan,” provides:
Each hospital with a participating physician on its
staff and each participating physician, other than
residents, assistant residents, and interns deemed to be
participating physicians under s. 766.314(4)(c), under the
Florida Birth-Related Neurological Injury Compensation
Plan shall provide notice to the obstetrical patients
as to the limited no-fault alternative for birth-
related neurological injuries. Such notice shall be
provided on forms furnished by the association
and shall include a clear and concise explanation
of a patient’s rights and limitations under the plan.
The hospital or the participating physician may
elect to have the patient sign a form
acknowledging receipt of the notice form.
Signature of the patient acknowledging receipt of
the notice form raises a rebuttable presumption
that the notice requirements of this section have
been met. Notice need not be given to a patient when the
patient has an emergency medical condition as defined in
s. 395.002(8)(b) or when notice is not practicable.
(Emphasis added). As the Florida Supreme Court has explained,
“[T]o claim immunity from civil suits under NICA, health care
providers must provide the required notice to patients.” Fla. Birth-
Related Neurological Injury Comp. Ass’n, 29 So. 3d at 995; see also
Jackson v. Florida Birth-Related Neurological, 932 So. 2d 1125,
1127 (Fla. 5th DCA 2006) (“The purpose of the pre-delivery notice
requirement is to enable the patient to make an informed choice
between hiring an obstetrician who participates in the NICA plan
and hiring one who does not. Importantly, the failure of a
physician to give the statutory pre-delivery notice to a
6
patient operates to preclude application of NICA’s
exclusive remedy provision, thereby entitling the patient
to proceed with a medical malpractice lawsuit against the
physician for damages arising out of the birth of a child
with birth-related neurological injuries.”) (Emphasis added).
Pursuant to section 766.309(1)(d), Florida Statutes (2015),
ALJs “ha[ve] the exclusive jurisdiction” to make “factual
determinations regarding the notice requirements in s. 766.316.”
The ALJ in this case appropriately ruled on the issue of notice after
determining that Appellant’s claim was compensable though time-
barred because if Appellees provided Appellant sufficient notice of
their participation in NICA, then Appellant’s exclusive remedy
was through NICA. Appellant’s failure to file a timely NICA claim
would not render her eligible for damages in a civil suit for her
child’s injuries. Instead, if Appellees provided sufficient notice,
they could claim NICA immunity in any civil suit Appellant may
file against them. In contrast, if Appellees failed to provide
sufficient notice to Appellant, then they would be unable to invoke
NICA as Appellant’s exclusive remedy for the child’s birth-related
neurological injuries in a subsequent civil suit. 2 See Fla. Birth-
Related Neurological Injury Comp. Ass’n, 29 So. 3d at 999
(explaining that only those entities who give proper and timely
notice of NICA participation are “shield[ed] from civil liability”);
see also Jackson, 932 So. 2d at 1127. This is precisely why the
notice issue is pivotal to the parties’ case.
The only issues Appellant raises on appeal are that the ALJ
erred in concluding that Dr. Brown complied with section 766.316’s
requirement that she notify Appellant of her participation in NICA
and in determining that Appellant did not overcome the rebuttable
presumption provided for in section 766.316 because she failed to
show that the notice she was given was insufficient. An ALJ’s
interpretation of the NICA Plan is reviewed de novo. Schur v. Fla.
Birth-Related Neurological, 832 So. 2d 188, 191 (Fla. 1st DCA
2002). An ALJ’s factual findings are reviewed on appeal to
2 Importantly, neither side disputes these points on appeal.
7
determine whether they are supported by competent, substantial
evidence. J.S. v. C.M., 135 So. 3d 312, 315 (Fla. 1st DCA 2012).
According to Appellant, USF’s “purported” notices were
insufficient because they did not list Dr. Brown as one of its NICA
participating physicians. In rejecting this argument, the ALJ
properly focused upon the language in the notice that read, “I have
been informed and understand that ALL physicians currently or
later employed with the USF OB/GYN Department, including but
not limited to all of the individual physicians and certified nurse
midwives named below, are participating physicians in the NICA
Plan.” By signing this notice, Appellant acknowledged that any
USF physician, Dr. Brown included, participated in NICA.
The ALJ was also correct in finding that the Fifth District’s
decision in Jackson supported his conclusion. There, the
appellants argued that the attending physicians and the medical
group that employed them were not entitled to NICA immunity
because they failed to give Mrs. Jackson proper pre-delivery notice
of their participation in the NICA Plan. 932 So. 2d at 1128. The
parties stipulated that the appellants’ claim was compensable
under NICA and that the only issue to be resolved was whether
adequate notice had been given. Id. At the hearing, a nurse with
the medical group testified that she informs prenatal patients
about the NICA Plan by giving them a packet that includes a peace
of mind pamphlet and that she verbally advises all prenatal
patients that all of the physicians in the medical group participate
in NICA. Id. at 1128. Mrs. Jackson was also given a Notice to
Obstetric Patient form, which she signed. Id. The form had a
blank space “where the individual names of [the medical group’s]
OB-GYN physicians were supposed to have been filled in.” Id. The
ALJ determined that because of the blank space, “the notice form
was inadequate to give rise to the statutory rebuttable
presumption that [the medical group] provided proper notice.” Id.
at 1128–29. He concluded, however, that Mrs. Jackson was
informed during her visit that “the physicians associated with [the
medical group’s] obstetrical program were participating physicians
in the [NICA] Plan.” Id. at 1129. In affirming, the Fifth District
reasoned that “[c]ontrary to the Jacksons’ claim of error, there is
no requirement that the names of the participating physicians be
set forth in a written notice.” Id.
8
Appellant argues that this court should decline to follow
Jackson for two reasons, one of them being that it conflicts with
the plain language of section 766.316 that “each participating
physician” provide notice to patients. Yet, a patient would have
the same opportunity to choose a non-NICA participating
physician after being told that all of a medical group’s physicians
are NICA participants as she would if she were separately
informed by each of the group’s physicians that he or she
participated in the Plan.
Appellant also argues that Jackson conflicts with the Florida
Supreme Court’s subsequent decision in Florida Birth-Related
Neurological Injury Compensation Association, in which the court
answered in the negative the certified question of whether “a
physician’s predelivery notice to his or her patient of the [NICA]
plan and his or her participation in the plan satisfy the notice
requirements of section 766.316 . . . if the hospital where the
delivery takes place fails to provide notice of any kind.” 29 So. 3d
at 994. The court held that “in order to satisfy the notice
requirements of section 766.316, Florida Statutes (1997), both
participating physicians and hospitals with participating
physicians on staff must provide obstetrical patients with notice of
their participation in the plan.” Id. at 994–95.
As Appellees contend, Appellant’s reliance upon Florida
Birth-Related Neurological Injury Compensation Association is
misplaced. The supreme court in that case did not address the
issue of whether a catch-all phrase is sufficient under section
766.316 to notify patients of all of a medical group’s physicians’
participation in the Plan. Nor did it address Appellant’s other
argument that one institution may not give a NICA notice on
behalf of another institution’s physicians. The only issue
addressed in that case was whether a physician’s notification
excuses a hospital from providing its own notice of NICA
participation. As the supreme court determined, that is clearly not
permitted under section 766.316. In this case, USF provided
Appellant with notice that all of its physicians were NICA
participants. By virtue of Dr. Brown’s employment with USF in
September 2015, that notice met the statutory requirements of
section 766.316. Cf. Schur, 832 So. 2d at 192 (“Dr. Boyd was
required to provide notice of her participation [in NICA] . . . .
9
Although Dr. Boyd later became an employee of North Florida
OB/GYN, at the time of [the child’s] birth, she was employed by
Beaches OB/GYN and did not fall under the North Florida
OB/GYN umbrella.”).
Appellant’s arguments that USF’s notice was insufficient
because Tampa General’s employees provided it to her or that Dr.
Brown should have personally provided notice to her are meritless.
There is no language in section 766.316 requiring a physician to
personally notify a patient of his or her NICA participation. As
previously noted, a nurse’s notification of a medical group’s
physicians’ NICA participation to the patient was deemed
sufficient in Jackson. See 932 So. 2d at 1129. Nor is there any
language prohibiting notice from being provided to a patient by the
employees of one entity on behalf of another entity. Cf. Univ. of
Miami v. Ruiz, 916 So. 2d 865, 867 (Fla. 3d DCA 2005) (“However,
the hospital’s NICA Plan notice did not indicate that it was also
given on behalf of any physician associated with the hospital or
that any physician in the hospital was a NICA Plan participant.
Therefore, the ALJ correctly found that the hospital’s notice was
inadequate to satisfy the University physicians’ independent
obligation to provide notice.”). Here, Tampa General’s witnesses
testified that Appellant was twice provided with a NICA notice on
behalf of USF. This constituted sufficient notice under section
766.316.
Lastly, appellant argues that she overcame the rebuttable
presumption provided for in section 766.316 by showing that the
notice she was given was insufficient. Although, as the ALJ
observed, the NICA brochure Appellant received was not a part of
Appellant’s medical records or admitted into evidence by
Appellees, Tampa General’s employees testified that they provided
Appellant with the brochure, a fact which Appellant
acknowledged. They also testified that the brochure Tampa
General gives to patients comes from NICA itself. The NICA
brochure has been deemed to satisfy the legislative mandate of
providing a “clear and concise explanation of a patient’s rights . . .
and limitations . . . under the plan.” See Dianderas v. Fla. Birth
Related Neurological, 973 So. 2d 523, 527 (Fla. 5th DCA 2007).
10
Accordingly, the ALJ’s final order is affirmed. 3
AFFIRMED.
OSTERHAUS, C.J., concurs in result with opinion; TANENBAUM, J.,
dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
OSTERHAUS, C.J., concurring in result.
I concur with Judge Lewis’s decision to affirm here. The
administrative law judge rejected Appellant’s claim under the
Birth-Related Neurological Injury Compensation Plan, § 766.301,
Fla. Stat. et seq., because it was filed too late and was time-barred.
But Appellant also raised the notice issue, which the statute
allowed her to do. § 766.309(1), Fla. Stat. (requiring that the “[ALJ]
shall make the following determinations based upon all available
evidence: . . . (d) Whether, if raised by the claimant or other party,
the factual determinations regarding the notice requirements in s.
766.316 are satisfied.”). In turn, the ALJ issued a straightforward
order concluding that “Petitioner’s Petition is time-barred
pursuant to section 766.313 but is otherwise compensable under
the NICA Plan.” This is an appealable “final order on
compensability and notice” that Appellant had an explicit
statutory right to appeal. § 766.309(4), Fla. Stat.; see also
3 Had this court found that Appellees’ notice was insufficient
and reversed on that basis, Appellant would have been entitled to
proceed with a medical malpractice action against them for
damages resulting from her child’s birth-related neurological
injuries, and Appellees would have been unable to invoke NICA as
Appellant’s exclusive remedy. See Fla. Birth-Related Neurological
Injury Comp. Ass’n, 29 So. 3d at 994; Jackson, 932 So. 2d at 1127.
11
§ 766.311, Fla. Stat. (“Review of an order of the [ALJ] shall be by
appeal to the District Court of Appeal”). For this reason, I see no
jurisdiction-related problem with our decision to affirm here
versus dismissing. Indeed, article V, § 4(b), of the Florida
Constitution provides explicitly that “[d]istrict courts of appeal
shall have jurisdiction to hear appeals, that may be taken as a
matter of right from . . . orders . . ., including those entered on
review of administrative action. See also Art. V, § (4)(c) (“District
courts of appeal shall have the power of direct review of
administrative action, as prescribed by general law.”).
On the merits, Appellant asked us to reverse based upon a
substantively peripheral notice-requirement issue. See § 766.316,
Fla. Stat. (requiring notice to patients of participation in the Plan).
But the notice issue provides no basis for reversing the ALJ’s
disposition because Appellant’s claim is time-barred. See
§ 766.313, Fla. Stat. (establishing a five-year limitation on claim).
Otherwise, I concur with Judge Lewis’s conclusion on the notice
issue.
Finally, I agree with Judge Tanenbaum’s observation at this
juncture that nothing stops Appellant from filing an action in
circuit court. See § 766.304, Fla. Stat. (“No civil action may be
brought until the [compensability] determinations under s.
766.309 have been made by the administrative law judge.”). But
there, the circuit court is also free to reject such a civil case in view
of the Plan’s exclusivity of remedy scheme. See § 766.303, Fla. Stat.
(establishing the Plan); Fla. Birth-Related Neurological Injury
Comp. Ass’n v. McKaughan, 668 So. 2d 974, 976–79 (Fla. 1996)
(discussing the exclusive remedy under the Plan as a jurisdictional
bar to medical malpractice actions comparable to the workers
compensation act); cf., Mandico v. Taos Constr., Inc., 605 So. 2d
850, 853–54 (Fla. 1992) (recognizing the exclusive administrative
process and remedy available under the workers’ compensation
law).
TANENBAUM, J., dissenting.
The “final agency action” we are asked to review is a “final
order” of an administrative hearing officer within the executive
branch, an order determining facts unrelated to the
12
compensability of Erica McDonald’s claim for public funds on
behalf of her daughter, who suffered severe injury during
childbirth; facts instead related only to whether a circuit court
would have jurisdiction to consider a future medical negligence
suit likely to be brought by McDonald against healthcare providers
involved with the daughter’s delivery. The only function of the
hearing officer in this context was to adjudicate McDonald’s claim
to a public right to compensation under a statutory plan
established for injuries like that suffered by her child. Because the
hearing officer previously had concluded (before this final order)
that McDonald had no viable claim against the state treasury—
the claim being time-barred—those determinations in the final
order before us carry zero preclusive effect beyond the borders of
the executive branch—by operation of both the Florida
Constitution’s express separation-of-powers requirement and the
statutory scheme in play in this case. 1
The final order having no legal consequence on McDonald’s
private rights (which can be adjudicated only by the exercise of
judicial power vested in an actual court under Article V of the
Florida Constitution), and McDonald not contesting the
determination that her public right expired, the order on review
has no adverse effect on McDonald that we would have authority
1 On this point regarding lack of preclusive effect, Chief Judge
Osterhaus appears to agree. In turn, Judge Lewis’s statement that
McDonald’s “failure to file a timely NICA claim would not render
her eligible for damages in a civil suit for her child’s injuries” is not
a binding part of the decision of this court. McDonald may bring
her suit in circuit court; the providers may raise exclusivity as a
defense; and McDonald may raise the notice question as an
avoidance. The court at that point would have to resolve the
defense and avoidance on the evidence presented—on its own if
there is no dispute; through a jury if there is—unimpeded by the
ALJ’s determination as to notice, which could have no preclusive
effect on the circuit court’s exercise of independent judgment. It is
this lack of preclusive effect—by operation of both our constitution
and applicable statutes—that obviates our authority to act on the
administrative order being appealed (either by affirming or setting
aside) and provides the primary basis for my dissent.
13
to correct, even if we wanted to. In other words, McDonald’s
private rights will be just as intact regardless of whether we set it
aside or modify it, making any opinion regarding notice advisory
at best. Because there is no meaningful relief we could provide her
on appeal—indeed, none is needed—giving any judicial
imprimatur to the executive action before us would be merely an
academic exercise, and we have no jurisdiction to engage in such a
meaningless endeavor. 2 We should dismiss.
I
According to McDonald, her daughter suffered a “birth-related
neurological injury” (“BRNI”), as defined in section 766.302(2),
Florida Statutes. She sought reimbursement of medical expenses
and payment of benefits out of a public fund the Legislature
established for such injuries under the Florida Birth-Related
Neurological Injury Compensation Plan (the “Plan”). See
§§ 766.303, 766.31, 766.314, Fla. Stat. The fund being public, the
Legislature waived sovereign immunity with respect to claims
against it; but in doing so, the Legislature subjected this public
right to certain conditions. § 766.303(3), Fla. Stat. (waiving
immunity “solely to the extent necessary to assure payment of
compensation”); see generally Granfinanciera, S.A. v. Nordberg,
2 My objection here goes to our jurisdiction—our authority to
exercise judicial power at all in this appeal—so the parties’ failure
to put the matter in dispute is of no moment. See Lovett v. Lovett,
112 So. 768, 775 (Fla. 1927) (noting that subject matter jurisdiction
“is the power conferred on the court by the sovereign—which
means with us the Constitution or statute, or both—to take
cognizance of the subject-matter of a litigation and the parties
brought before it, and to hear and determine the issues and render
judgment upon the issues joined” and that it is “universally
recognized” that subject-matter jurisdiction “cannot be conferred
by the acquiescence or consent of the parties”); see also W. 132 Feet,
etc., v. City of Orlando, 86 So. 197, 198–99 (Fla. 1920) (“Courts are
bound to take notice of the limits of their authority, and if want of
jurisdiction appears at any stage of the proceeding, original or
appellate, the court should notice the defect and enter an
appropriate order.”).
14
492 U.S. 33, 68 (1989) (Scalia, J., concurring) (defining public
rights as “rights of the public—that is, rights pertaining to claims
brought by or against” the government”); cf. Ex parte Bakelite
Corp., 279 U.S. 438, 452 (1929) (“Conspicuous among such matters
are claims against the” government, and they “may arise in many
ways and may be for money, lands, or other things.”); Stern v.
Marshall, 564 U.S. 462, 490–91 (2011) (“[W]hat makes a right
‘public’ rather than private is that the right is integrally related to
particular [government] action.”); Oil States Energy Servs., LLC v.
Greene’s Energy Grp., LLC, 584 U.S. 325, 334 (2018)
(characterizing matters of public rights as those that “arise
between the Government and persons subject to its authority in
connection with the performance of the constitutional functions of
the executive or legislative departments”).
One of those legislative conditions for payment out of the fund
is that an administrative law judge (“ALJ”) assigned by the
Division of Administrative Hearings (“DOAH”)—an agency
performing exclusively quasi-judicial functions within the
executive branch 3—must first determine that a claim under the
Plan is compensable. See § 766.305(1), Fla. Stat. (requiring that
claim for compensation under the Plan be filed with DOAH);
§ 766.304, Fla. Stat. (providing that the ALJ “has exclusive
jurisdiction to determine whether a claim filed under this act is
compensable”). In other words, McDonald would have no right to
an award out of the Plan’s fund unless an ALJ—rather than a
court vested with judicial power under Article V—makes the
determination regarding entitlement. See § 766.31(1), Fla. Stat.
(“Upon determining that an infant has sustained a birth-related
neurological injury and that obstetrical services were delivered by
a participating physician at the birth, the administrative law judge
shall make an award providing compensation. . . .”); see also
§ 766.309(4), Fla. Stat. (allowing ALJ to address compensability in
one final order, subject to appeal, and to issue later an award
under section 766.31, Florida Statutes).
3 See Art. V, § 1, Fla. Const. (“Commissions established by law,
or administrative officers or bodies may be granted quasi-judicial
power in matters connected with the functions of their offices.”).
15
There is nothing constitutionally infirm about this legislative
choice on how a public right is to be administered. Cf. McElrath v.
United States, 102 U.S. 426, 440 (1880) (noting that because the
government is immune to suit, it “cannot be sued, except with its
own consent,” and in consenting, “[i]t can declare in what court it
may be sued” and “restrict the jurisdiction of the court to a
consideration of only certain classes of claims against” it); Bakelite
Corp., 279 U.S. at 451 (explaining how, when the legislative power
waives sovereign immunity to allow for the determination of
claims against the government, “[t]he mode of determining
matters of this class is completely within [legislative] control,”
meaning the legislative power can “reserve to itself the power to
decide, may delegate that power to executive officers, or may
commit it to judicial tribunals”); Oil States Energy Servs., LLC, 584
U.S. at 334 (noting the “significant latitude” given by precedent to
the legislative power “to assign adjudication of public rights to
entities other than Article III courts”).
Another condition the Legislature set on the public right to
compensation from the Plan’s fund is a requirement that a claim
to that compensation be filed within five years of the injured child’s
birth. See § 766.313, Fla. Stat. (“Any claim for compensation under
[the Plan] that is filed more than 5 years after the birth of an infant
alleged to have a birth-related neurological injury shall be
barred.”). The association that administers the Plan—NICA 4—
responded that the claimed injury met the definition of BRNI but
that the claim was not being accepted because it was time-barred.
§ 766.305(4), (7), Fla. Stat. (requiring NICA to respond to a claim
and allowing NICA to accept “[a]ny claim which [it] determines to
be compensable,” subject to approval “by the administrative law
judge to whom the claim for compensation is assigned”). On the
question of the time-bar, NICA requested and received a summary
final order (“SFO”) from the ALJ assigned to McDonald’s claim.
See § 120.57(1)(h), Fla. Stat. (allowing a party to seek a “summary
final order” in “a proceeding in which an administrative law judge
has final order authority” if “there is no genuine issue as to any
material fact” and allowing an ALJ to render such an order if “the
4 Formally named the “Florida Birth-Related Neurological
Injury Compensation Association.” § 766.315, Fla. Stat.
16
moving party is entitled as a matter of law to the entry of a final
order”). The order determined that “the undisputed evidence
indicates that [McDonald’s] claim for NICA benefits was not timely
filed,” so her daughter “is barred from participation in the NICA
Plan by the statute of limitations under section 716.313.”
McDonald does not challenge this final determination on appeal.
II
Instead, McDonald appeals what came next from the ALJ,
who did not stop with this dispositive determination as to
compensability (i.e., McDonald was not entitled to compensation
for her daughter under the Plan). Even though the ALJ
determined in a summary final order that compensation may not
be awarded under the Plan (because it was time-barred), he
explained that “[b]efore compensation may be awarded under the
NICA Plan . . . the ALJ must determine” whether the notice
required by section 766.316, Florida Statutes, was provided. 5 The
ALJ suggested the “case posture” was such that “factual questions
. . . remain to be determined” as to that notice, “as well as their
ramifications on Petitioner’s rights and remedies with respect to
[the child’s] injury.” An evidentiary hearing ensued, followed by
another final order from the ALJ, this one determining that both
participating healthcare providers gave McDonald “adequate
notice” in compliance with the “requirements of section 766.316.”
The disposition was (once again) that McDonald’s claim “is time-
barred,” but that it was “otherwise compensable under the NICA
Plan.” (emphasis supplied).
Both the SFO and the later final order cite to University of
Miami v. Exposito ex rel. Gonzalez, 87 So. 3d 803 (Fla. 3d DCA
5 The notice healthcare providers are required to give patients
under the Plan is to inform those patients “as to the limited no-
fault alternative for birth-related neurological injuries.” § 766.316,
Fla. Stat.; see also Galen of Fla., Inc. v. Braniff, 696 So. 2d 308,
309–10 (Fla. 1997) (“[T]he purpose of the notice is to give an
obstetrical patient an opportunity to make an informed choice
between using a health care provider participating in the NICA
plan or using a provider who is not a participant and thereby
preserving her civil remedies.”).
17
2012), ostensibly for the proposition that the ALJ’s determination
on the notice question—even though the claim was time-barred—
nevertheless could prohibit McDonald from pursuing a civil
negligence claim in Florida’s circuit courts. That decision, as it
turns out, does say the following:
A claimant who files an untimely NICA claim does so at
her own risk. Once the ALJ determines the claim is filed
beyond five-year limitations period, the claimant is
barred from pursuing a remedy under the NICA Plan.
However, the ALJ must nonetheless reach and determine
the second issue of compensability in order for the
claimant to know whether she may still pursue a civil
cause of action.
If the ALJ determines that the claim, though untimely, is
otherwise compensable, the claimant is not only
prohibited from pursuing the NICA claim (time bar) but
would also be prohibited from pursuing a civil action
(because a finding of compensability renders a NICA
claim the exclusive remedy for the claimant).
Univ. of Miami v. Exposito ex rel. Gonzalez, 87 So. 3d 803, 811 (Fla.
3d DCA 2012). The Third District gets it eminently wrong in these
two paragraphs from Exposito; both misreading the relevant Plan
statutory provisions and misunderstanding the limited reach of
quasi-judicial power vis-à-vis that of the courts’ judicial power.
A
Take the statutory provisions first. Section 766.309(1), Florida
Statutes, indeed directs the ALJ to make “the following
determinations based upon all available evidence:” a) whether the
claimed injury meets the definition of BRNI; b) whether the
delivering provider was a “participating physician” under the Plan;
c) how much compensation is awardable, if any; and d) whether
“the notice requirements in s. 766.316 are satisfied.” At first
glance, one might assume (as the Third District apparently did),
that the statute tasks the ALJ with adjudicating certain facts in
the place of a circuit court, regardless of whether there is a viable
claim. But the first three determinations directly relate to whether
the claimant is entitled to compensation from the Plan’s fund in
18
the first place, and if so, how much; so they naturally mesh with
the ALJ’s core “function[] of [] office” within the executive branch,
as assigned by the Legislature—gatekeeper of the Plan’s fund—so
the exercise of quasi-judicial power expected under this statutory
provision is fine under the constitution. See Art. V, § 1, Fla. Const.;
cf. § 766.31(1), Fla. Stat. (“Upon determining that an infant has
sustained a birth-related neurological injury and that obstetrical
services were delivered by a participating physician at the birth,
the administrative law judge shall make an award providing
compensation. . . .” (emphasis supplied)).
Now, if there is in fact an award from the Plan’s fund based
on an ALJ-determined entitlement to compensation—that is, if
there is fulfillment of the claimant’s public right—the fulfillment
becomes the exclusive remedy, barring the claimant from
subsequently filing a civil suit. See § 766.303(2), Fla. Stat. (“The
rights and remedies granted by this plan on account of a birth-
related neurological injury shall exclude all other rights and
remedies . . . .”); § 766.304, Fla. Stat. (“If the administrative law
judge determines that the claimant is entitled to compensation
from the association, or if the claimant accepts an award issued
under s. 766.31, no civil action may be brought or continued in
violation of the exclusiveness of remedy provisions of s. 766.303.”);
NICA v. DOAH, 948 So. 2d 705, 711 (Fla. 2007) (“If the ALJ
determines that a claim is compensable, compensation under the
NICA Plan becomes the claimant’s exclusive remedy.”); cf.
Samples v. NICA, 114 So. 3d 912, 921 (Fla. 2013) (holding that the
“Plan as a whole . . . provides an alternative remedy to the
uncertain and speculative compensation parents might receive
through traditional tort remedies[,]” so it is a reasonable
substitute for “a parent’s right to access the courts for redress of
their child’s neurological birth-related injury”). This exclusivity is
permissible as a trade-off condition for the public right established
for the claimant by the Legislature: the statute then “shield[ing
providers] from a civil tort action based upon the same claim.”
NICA v. DOAH, 948 So. 2d at 711.
For a provider to receive the benefit of this exclusivity,
however, the notice requirements of section 766.316 must have
been satisfied. See id. (explaining that compliance with the notice
requirement of section 766.316 “is a condition precedent to NICA’s
19
exclusivity”); see also Galen of Fla., Inc. v. Braniff, 696 So. 2d 308,
309 (Fla. 1997) (holding “that as a condition precedent to invoking
the Florida Birth-Related Neurological Injury Compensation Plan
as a patient’s exclusive remedy, health care providers must, when
practicable, give their obstetrical patients notice of their
participation in the plan a reasonable time prior to delivery”).
Enter the fourth determination the ALJ may make under section
766.309(1): whether “the notice requirements in s. 766.316 are
satisfied.” The ALJ—having determined the claimant does have a
public right to compensation under the Plan—may, at the direction
of the Legislature, adjudicate the factual question of notice—if
raised—because the adjudication will affect the exclusivity of any
award the ALJ then makes. Cf. NICA v. DOAH, 948 So. 2d at 716.
Again, the ALJ’s conclusion that a claimant has a public right
to compensation is a permissible exercise of quasi-judicial
authority within the executive branch, and a determination of the
extent of that right’s effect and any conditions the Legislature has
set for it—e.g., whether it is an exclusive remedy—is folded into
that same authority. Cf. McElrath, 102 U.S. at 440 (“If the
claimant avails himself of the privilege thus granted, he must do
so subject to the conditions annexed by the government to the
exercise of the privilege.”). If the ALJ determines the claimant is
not entitled to compensation under the Plan, by contrast, the ALJ
at that point has reached the limit of his authority to make fact
determinations of any significance. Any additional factual
determinations—including whether the proper notice was
provided, like the ALJ tried to do here—constitutionally could
have no effect outside the executive branch. The constitutional
defect in the analysis set out by the Third District in Exposito is
where I turn next.
B
As already explained, when the Legislature creates a public
right or claim against the state treasury, it exercises its
constitutional authority to waive sovereign immunity (under
Article X, section 13 of the Florida Constitution), and in doing so,
it has total control of “[t]he mode of determining matters of this
class”; it can “reserve to itself the power to decide, may delegate
that power to executive officers, or may commit it to judicial
20
tribunals.” Bakelite Corp., 279 U.S. at 451; see also Oil States
Energy Servs., LLC, 584 U.S. at 334 (noting the “significant
latitude” given by precedent to the legislative power “to assign
adjudication of public rights to entities other than Article III
courts”); Caleb Nelson, Adjudication in the Political Branches, 107
COLUM. L. REV. 559, 582 (2007). The same is not true with respect
to a private right, like the right to sue in common-law tort for
recovery of personal damages, which calls for the exercise of
judicial power. Cf. Wellness Intern. Network, Ltd. v. Sharif, 575
U.S. 665, 711 (2015) (Thomas, J., dissenting) (describing the
exercise of judicial power as the conclusive “[d]isposition of private
rights to life, liberty, and property”); Nelson, Adjudication in the
Political Branches, 107 COLUM. L. REV. at 567 (2007) (enumerating
“three major groupings of core private rights,” as “elaborated by
William Blackstone” in his Commentaries on the Laws of England
as “absolute” because men held them “merely as individuals” and
not incidental to membership in society: “personal security,”
“personal liberty,” and “private property”).
Article V, section 1 of the Florida Constitution vests judicial
power exclusively in the State’s four types of courts—the supreme
court, the district court of appeal, the circuit court, and the county
court—and it allows only quasi-judicial power to be exercised from
within the executive branch, but only with respect to an
administrative entity’s own internal functions. Only when a public
right is being determined can an ALJ’s fact-finding have any
preclusive effect as to the parties. Cf. Atlas Roofing Co., Inc. v.
Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 458
(1977) (explaining how administrative fact-finding can be binding
on the parties “in only those situations involving ‘public rights,’
e.g., where the Government is involved in its sovereign capacity
under an otherwise valid statute creating enforceable public
rights”). Contrariwise, an ALJ’s fact-finding cannot operate
conclusively on a private right. Cf. Stern, 564 U.S. at 494
(describing the “prototypical exercise of judicial power” as “the
entry of a final, binding judgment by a court with broad
substantive jurisdiction, on a common law cause of action, when
the action neither derives from nor depends upon any agency
regulatory regime”); cf. id. at 484 (explaining that the U.S.
Constitution’s vesting of judicial power means that “Article III
judges in Article III courts” (i.e., “the Judiciary”) have sole
21
responsibility and power to decide suits “made of the stuff of the
traditional actions at common law tried by the courts at
Westminster in 1789” (internal quotations and citations omitted));
see Nelson, Adjudication in the Political Branches, 107 COLUM. L.
REV. at 577 (describing how, historically, when “only public rights
were at stake and no private individual had yet acquired any
vested right,” there was no constitutional need for judicial power,
and “Congress could authorize nonjudicial officers in the executive
branch to make final and conclusive determinations”).
The Legislature’s provision for the ALJ’s exercise of “exclusive
jurisdiction to determine” both compensability of a claim and
compliance with the Plan’s notice requirements (see §§ 766.304,
766.309, Fla. Stat.) is its designation of an executive-branch
tribunal and its exercise of quasi-judicial power (rather than a
court and its exercise of judicial power) to adjudicate the existence
of the Plan’s public right. The Legislature cannot designate that
same tribunal to conclusively adjudicate a private right, which
would be the transfer of judicial power to an executive branch
officer, something expressly foreclosed by the constitution. See Art.
II, § 3, Fla. Const. (mandating a separation of powers); see also Art.
I, § 22, Fla. Const. (preserving as “inviolate” the right to a jury
trial); cf. Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S.
272, 284 (1855) (explaining that the federal legislative power
cannot “withdraw from judicial cognizance any matter which, from
its nature, is the subject of a suit at the common law, or in equity,
or admiralty”); Crowell v. Benson, 285 U.S. 22, 51 (1932)
(describing a case “of private right” as one “of the liability of one
individual to another under the law as defined”); Granfinanciera,
S.A., 492 U.S. at 51–52 (explaining that Congress “lacks the power
to strip parties contesting matters of private right of their
constitutional right to a trial by jury”). This understanding of the
constitutional limit of an ALJ’s authority explains the
Legislature’s provision for when “it is determined that a claim filed
under this act is not compensable”: the ALJ’s determinations are
not “admissible in any civil suit” and can have no preclusive effect
(through either “collateral estoppel” or “res judicata”) in the
claimant’s subsequent pursuit of “any and all civil remedies
available under common law and statutory law.” § 766.304, Fla.
Stat. (emphasis supplied).
22
The ALJ in this case, relying on the legally unsustainable
analysis in Exposito, incorrectly treated the time-bar on
McDonald’s claim as separate from the question of
compensability—as if timeliness of a claim to a public right is not
as integral to the viability of that claim as any other condition the
Legislature imposes on that right. The plain meaning of
“compensable,” as used in the Plan’s statutory provisions, refers to
whether a claimant is entitled to payment on her claim: If one is
not entitled to payment, the claim is not compensable. It so
happens, as noted earlier, the Legislature conditioned the public
right to compensation under the Plan, in part, on the filing of a
claim within five years of birth. The determination in the SFO that
McDonald failed to meet this condition also, in essence, was a
determination that she no longer had a public right to
compensation. In other words, her claim was “not compensable”
because her public right expired.
It was unnecessary to then go forward with an evidentiary
hearing to determine whether—holding aside the fact the claim
already is time-barred—McDonald’s claim was “otherwise
compensable.” At that point, there was no determination the ALJ
could make of any legal consequence outside the executive branch.
Putting the adverb “otherwise” before “compensable”—as the
Third District did in Exposito to suggest there still was more for
an ALJ to do—could not alter the conclusiveness of the ALJ’s SFO,
which already had determined the claim was time-barred. That
literally is what “otherwise” means when used as a modifier in the
manner used here—basically, to refer to a different set of
circumstances than the one present before the ALJ, on which he
determined that McDonald’s claim was, in fact, not compensable.
Once the ALJ made that final determination that McDonald
was not entitled to compensation, his statutory duty was at an end;
the ALJ fully performed his function of office in administering
claims against the fund under the Plan. The ALJ’s fact-finding,
across pages and pages, about how she would have had a viable
claim had she filed earlier, and about how that claim would have
been her exclusive remedy because the notice requirements were
met is advisory (at best)—there no longer being a public right to
determine. At all events, the ALJ’s final order making this
23
hypothetical determination could have no legal effect on her
private right to sue for damages. 6
III
We finally come to the question of this court’s jurisdiction to
review the ALJ’s final order.
McDonald is left, potentially, with only a private right to relief
at common law, and she is free to go to circuit court and invoke the
State’s judicial power to adjudicate that right. See Mandico v. Taos
Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992) (“A person has a right
to file a personal injury action in circuit court, and the court has
jurisdiction to entertain the suit.”); id. (explaining, in the context
of the workers’ compensation law, how the assertion that a
plaintiff’s exclusive remedy is through an administrative regime
“is an affirmative defense, and its validity can only be determined
in the course of litigation”); Fla. Birth-Related Neurological Injury
Comp. Ass’n v. McKaughan, 668 So. 2d 974, 976, 979 (Fla. 1996)
(characterizing affirmative defense of NICA exclusivity as a
jurisdictional bar to medical malpractice action and applicability
of Mandico to analysis). 7 Absent a public right on McDonald’s part
6 In a criminal case, we would not ask a jury to determine
whether the defendant was “otherwise” guilty after it concluded
the prosecution failed to prove an element of the charged offense.
There likewise is no reason we would need to hear from an ALJ
further regarding the Plan after he determines a claimant does not
have a right to compensation under it.
7 Pay no mind to the red flag added by the editors of Thomson
Reuters to McKaughan as it appears in Westlaw. The editors
explanation is that the decision has been “Superseded by Statute
as Stated in Florida Birth-Related Neurological Injury
Compensation Ass’n v. Florida Div. of Administrative Hearings,
[948 So. 2d 705 (Fla. 2007).]” But the supreme court did not say
this as part of any holding. The court instead simply quoted the
Fifth District Court of Appeal’s observation in O’Leary v. Florida
Birth-Related Neurological Injury Compensation Ass’n, 757 So. 2d
624 (Fla. 5th DCA 2000) that the “amendments were made in
response to this Court’s decisions in Florida Birth–Related
Neurological Injury Compensation Ass’n v. McKaughan, 668 So.2d
24
to be further adjudicated, nothing that the ALJ sets out in the final
order can operate, as a legal matter, as an impediment on the
circuit court’s exercise of judicial power.
The ALJ had the authority to determine the extent of
exclusivity behind the public right he already determined
existed—because that determination would be tied to his executive
function in administering awards of funds under the Plan—but he
did not have the authority to adjudicate boundary-line facts—facts
determinative of a private party’s constitutional right or an Article
V court’s jurisdiction—regarding the ability of the circuit court to
hear McDonald’s suit in the absence of that public right, something
exclusively within the province of the court itself. See Mandico, 605
So. 2d at 854 (noting, in the context of workers’ compensation
immunity (but, according to the supreme court, applicable in the
NICA context as well) that “[t]he court has jurisdiction to decide
the question [of exclusivity] even if it is wrong,” and that “the
decision will often turn upon the facts”); see also English v.
McCrary, 348 So. 2d 293, 298 (Fla. 1977) (explaining how “[e]very
court has judicial power to hear and determine the question of its
own jurisdiction, both as to parties and as to subject matter” and
its judgment on that fact will be conclusive unless set aside on
direct appeal); cf. Crowell v. Benson, 285 U.S. 22, 64 (1932)
(holding that “the essential independence of the exercise of the
judicial power of the United States, in the enforcement of
constitutional rights requires that the federal court should
determine such an issue upon its own record and the facts elicited
before it”); id. (noting that on a question of “constitutional
974 (Fla.1996), and Galen of Florida, Inc. v. Braniff, 696 So.2d 308
(Fla.1997).” NICA v. DOAH, 948 So. 2d at 712–13. Even so, both
the Fifth District and the supreme court spoke of the amendments
as applying to claims under the Plan. See id. at 713 (“Specifically,
the Fifth District viewed the 1998 amendments as indicating the
Legislature’s intent to authorize the ALJ to make all
determinations regarding a claim under NICA.” (emphasis
supplied)); O’Leary, 757 So. 2d at 627 (“The language used by the
legislature in its amendment to the Act indicates that the
administrative judge is to determine all matters relative to a
claim.”); id. at 628 (“We also note that a section 766.316 notice
issue is peculiar to a NICA claim.”).
25
authority of the deputy commissioner as an administrative agency,
the court is under no obligation to give weight to his proceedings
pending the determination of that question” and may instead
make its own determination of the facts bearing thereon); id. at
61–62 (construing a statute authorizing the exercise of quasi-
judicial power to allow for non-final determinations of
“jurisdictional fact” to render it constitutional); id. at 60 (holding
that there is an entitlement “to a judicial determination” by a trial
court “of an essential jurisdictional fact both in the statutory and
the constitutional sense” (internal quotations and citation
omitted)). 8 There is no outsourcing by a trial court to an ALJ the
jurisdictional question whether a private right has been
extinguished.
Our authority as a district court of appeal to engage in judicial
review of administrative action is limited to what general law
provides. See Art. V, § 4(b)(2), Fla. Const. Even though, as the chief
notes, section 766.311 authorizes direct review of an ALJ’s order
by appeal to a district court of appeal, for us to bring our appellate
judicial power to bear on such an order, there nevertheless must
be a “party who is adversely affected by” it. § 120.68(1)(a), Fla.
Stat.; see First Nat’l Bank v. Bebinger, 128 So. 862, 863 (Fla. 1930)
(describing that a “claim” necessitates “the existence of present or
8 The only way the fact determinations made in the final order
could hold any sway in circuit court at this point is if they were
made by the ALJ operating as an adjunct of the trial court, akin to
a special master. See Stern, 564 U.S. at 490 n.6 (observing that an
administrative tribunal may make “narrowly confined factual
determinations” on which private rights might turn as long as the
determinations are subject to judicial review and enforceable “only
by action of” a court exercising judicial power, such that the
tribunal “functioned as a true ‘adjunct’ of the” trial court); Atlas
Roofing Co., Inc., 430 U.S. at 450 n.7 (observing that “[i]n cases
which do involve only ‘private rights,’ this Court has accepted
factfinding by an administrative agency, without intervention by
a jury, only as an adjunct to an Art. III court, analogizing the
agency to a jury or a special master”). There is no statutory or rule-
based mechanism allowing for the ALJ to act in that capacity in
this context.
26
possible adverse parties, whose contentions are submitted to the
court” and that a court’s judicial power is exercised over a claim in
which it “is capable of acting upon” by determining “a controversy
between parties wherein rights are enforced or protected or wrongs
prevented or redressed”); Sarasota-Fruitville Drainage Dist. v.
Certain Lands Within Said Dist. Upon Which Drainage Taxes for
the Year 1952 Have Not Been Paid, 80 So. 2d 335, 336 (Fla. 1955)
(noting that direct appellate review is available only for “actual
controversies”); cf. State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla.
2004) (noting that standing, at a “constitutional minimum,”
requires a concrete, actual or imminent “injury in fact” that can be
remedied by the judicial relief sought). McDonald does not
challenge the ALJ’s determination that her claim was time-barred.
And as has been explained in detail above, by operation of both the
constitution and statute, the ALJ’s determination about there
being proper notice can have no effect—factually or legally—on her
right to bring a suit in circuit court. There being no legally
cognizable harm to McDonald’s private rights stemming from the
ALJ’s final order—her cause of action unimpeded by the ALJ’s
order as a matter of law—there is no warrant for our exercise of
judicial power to review that agency action, no remedy we could
give to improve McDonald’s position in circuit court.
* * *
We lack jurisdiction and should dismiss. Even though there is
a majority to affirm instead, McDonald should rest assured that
the court’s disposition still lends no legal force to the ALJ’s
otherwise advisory determination regarding notice, based on what
Chief Judge Osterhaus and I separately have written in this case.
_____________________________
Kara Rockenbach Link and Daniel M. Schwarz of Link &
Rockenbach, PA, West Palm Beach; Carlos R. Diaz-Arguelles and
Maria D. Tejedor of Diaz-Arguelles & Tejedor, P.A., Orlando, for
Appellant.
Stephen A. Ecenia, J. Stephen Menton, and Tana D. Storey of
Rutledge Ecenia, P.A, Tallahassee, for Appellee Florida Birth-
Related Neurological Injury Compensation Association; Dinah S.
27
Stein and Aneta K. McCleary of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami; Mindy McLaughlin and Carissa Wheeler Brumby of
Beytin, McLaughlin, McLaughlin, O’Hara & Bocchino, P.A.,
Tampa, for Appellee Tampa General Hospital; Jason M. Azzarone,
Andrew Hudson, and Louis J. La Cava of La Cava, Jacobson &
Goodis, P.A., Tampa, for Appellee/Intervenor University of South
Florida Board of Trustees.
28