Shands Jacksonville Medical Center, Inc., and University of Florida Board of Trustees

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2020-3605

_____________________________

SHANDS JACKSONVILLE MEDICAL

CENTER, INC., and UNIVERSITY

OF FLORIDA BOARD OF

TRUSTEES,

Appellants,

v.

JENNIFER CHAVEZ and MARLON

CHAVEZ as Parents and Natural

Guardians of G.C., a minor; and

FLORIDA BIRTH-RELATED

NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION,

Appellees.

_____________________________

On appeal from the Division of Administrative Hearings.

Todd P. Resavage, Administrative Law Judge.

December 11, 2024

TANENBAUM, J.

The Florida Constitution is clear in its mandate that Florida’s

sovereign powers be kept separate unless it states otherwise. See

Art. II, § 3, Fla. Const. (“The powers of the state government shall

be divided into legislative, executive and judicial branches. No

person belonging to one branch shall exercise any powers

appertaining to either of the other branches unless expressly

provided herein.”). Sometimes, though, the line of separation

between executive power and judicial power seemingly becomes

blurred when it comes to the adjudication of disputed facts that

relate to the administration of a government program. Failure to

faithfully observe this separation can implicate an appellate

court’s jurisdiction to engage in judicial review of administrative

action, as it does here. As we dismiss this appeal for want of

jurisdiction, we write to bring into finer focus the important

distinction between the scope and reach of judicial power (as

exercised by the courts) and that of quasi-judicial power (as

exercised from within the executive branch) regarding the

adjudication of factual disputes.

I

Preliminarily, we summarize the legal analysis that is to

follow, limning as we go the demarcation between the relevant

powers in play to help frame the analysis that follows. On one side

of the divide is the executive power, charged with administering

policies adopted by the Legislature—a responsibility that can

include management of government programs designed to provide

public benefits to citizens. Entitlement to one of those benefits

sometimes will turn on qualifying facts in dispute, which the

executive branch (if directed by the Legislature) can adjudicate

through a constitutional grant of quasi-judicial power, yet only to

the extent necessary to perform the function of administering the

government benefit. An executive-branch hearing officer

resembling a judge might take evidence and make that

adjudication as part of that government function, but make no

mistake, the officer remains a functionary of the executive branch

(read: one of the two political branches), and as such, can issue

orders that hold sway only within the branch, and only so far as

necessary to determine a claim to a public right. Simply put, the

executive branch—again, if directed by the Legislature—can

conclusively adjudicate, internally, facts in disputes between an

agency or officer of the State and its citizens over governmental

functions and the administering of public benefits that turn on

those facts.

On the other side of the divide is the judicial power, which is

the only sovereign power that can conclusively decide disputes over

personal rights between private parties. That power extends to

adjudicating facts necessary under the law to decide such disputes,

and then applying the law to those facts in order to render a

2

judgment that permanently alters the parties’ legal relationship or

defines the rights and obligations between them. The judgment

(subject to review by a superior court) is final and has the force of

law as to those parties, making it subject to execution without

further adjudication—its effects felt beyond the branch; indeed,

throughout the State. The judicial branch’s nature as non-political

allows it to serve a function vital to the preservation of liberty: the

neutral, dispassionate interpretation and application of law in the

conclusive determination of both private disputes between parties

and legal challenges by citizens to instances of unlawful

government overreach. This is the essence of judicial power, which

may be exercised only by the judicial branch and cannot be

delegated.

An appellate court must jealously guard against invitations to

exceed the limits of the judicial power with which it is vested by

the constitution. With the above-described separation in mind, we

raised a question with the litigants in this case regarding our

jurisdiction to review the administrative order on appeal, as we

had our doubts about whether the executive branch had

adjudicated a live dispute at all. Before us, ostensibly, is a final

order of an administrative law judge (“ALJ”) concluding that

parents Jennifer and Marlon Chavez are not entitled to

compensation out of the Florida Birth-Related Neurological Injury

Compensation Plan (the “Plan”) because their daughter did not

sustain a “birth-related neurological injury” (“BRNI”), as that type

of injury is defined by section 766.302(2), Florida Statutes (2017). 1

The Chavezes, though, are not the appellants here. In fact, the

Chavezes specifically disclaimed any such entitlement, and

NICA—the only other statutory party—agreed. The appellants in

this case instead were the intervenors before the ALJ; and even

though by law these intervenors themselves could not have

asserted a claim for compensation on behalf of the Chavezes or

their child; and even though there was no claim pending with

DOAH; they nevertheless took over and pushed forward with the

matter, asserting that the infant did suffer a BRNI, presented

evidence to that effect, asking the ALJ to determine that the

1 All statutory references are to Florida Statutes (2017) unless

otherwise noted.

3

Chavezes were entitled to compensation, despite the Chavezes’

disclaimer to the contrary.

The intervenors (the appellants here) did not (and could not)

invoke the ALJ’s quasi-judicial authority because there was no

government function to be performed under the Plan—no “claim”

to be determined. They instead essentially asked that the ALJ

independently adjudicate their contention about the infant’s injury

being a BRNI—which they otherwise would assert as an exclusive-

remedy affirmative defense in a future medical malpractice suit

brought by the Chavezes—to foreclose that suit before it happens.

This is problematic. Whether the Chavezes would be entitled

under the Florida Constitution to sue for medical malpractice in

circuit court turns on the nature of the infant’s injury—if the

injury is a BRNI, thereby depriving the court of authority to

proceed on such a suit—so such a factual determination is a

jurisdictional one that only the court, through the exercise of its

judicial power, could determine conclusively for itself. Far from the

ALJ’s order not being the completed exercise of quasi-judicial

authority, it, at best, could be advisory, with no binding legal effect

beyond the boundaries of the executive branch. There could be no

adverse effect stemming from such an advisory order. Our

appellate judicial power does not extend that far, so dismissal is

required. Having now summarized the rationale behind our

disposition, we turn to the detailed legal analysis supporting it.

II

In recognition of the high costs associated with birth-related

neurological injury claims, the Legislature established “a limited

system of compensation irrespective of fault” by creating the

“Plan” to financially cover “a limited class of catastrophic injuries

that result in unusually high costs for custodial care and

rehabilitation.” §§ 766.301, 766.303(1), (2), Fla. Stat. (2019). A

board of directors, appointed by the State’s Chief Financial Officer

and operating as an association (loosely called “NICA”),

administers the Plan “in a manner that promotes and protects the

health and best interests of children with birth-related

neurological injuries [BRNI],” which the Legislature defines in

terms of a “brain or spinal cord” injury to a baby of a specified

minimum weight, “caused by oxygen deprivation or mechanical

4

injury” that occurs during “labor, delivery, or resuscitation,” that

leaves the baby “permanently and substantially mentally and

physically impaired.” §§ 766.302(2), 766.303(4), 766.315(1)(a), Fla.

Stat.

The Plan essentially is a risk-management or insurance trust

fund. The Legislature funds the Plan through budgetary

appropriations plus assessments (read: taxes) on licensed

hospitals and physicians. See § 766.314(1), (4), (5)(b), (c), (7), Fla.

Stat.; see also Coy v. Fla. Birth-Related Neurological Injury Comp.

Plan, 595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational

plan, subject to approval by the Department of Financial Services,

that provides for “assessments on an actuarially sound basis,”

subject to certain limitations. § 766.314(1), Fla. Stat. The funds are

to be used exclusively for the payment of “awards” made from the

Plan and for expenses incurred to administer it. § 766.314(2)(a),

(3), Fla. Stat.; see also § 766.303(1), Fla. Stat. (“There is

established the Florida Birth-Related Neurological Injury

Compensation Plan for the purpose of providing compensation,

irrespective of fault, for birth-related neurological injury claims.”).

Naturally, the funds under the Plan are state funds, and the

Legislature waives sovereign immunity “solely to the extent

necessary to assure payment of compensation” for BRNIs.

§§ 766.303(3), 766.315(5)(f), 766.31(1), Fla. Stat. NICA

administers “the payment of claims on behalf of the plan” and can

“[t]ake such legal action as may be necessary to avoid payment of

improper claims.” § 766.315(4)(b), (j), Fla. Stat.

The whole point of the Plan is to facilitate—in lieu of a judicial

proceeding—no-fault, yet exclusive, compensation from state

funds for the benefit of those children claimed by their legal

representatives to have suffered a BRNI. § 766.301(2), Fla. Stat.

(“It is the intent of the Legislature to provide compensation, on a

no-fault basis, for a limited class of catastrophic injuries that

result in unusually high costs for custodial care and rehabilitation.

This plan shall apply only to birth-related neurological injuries.”).

Indeed, “[t]he rights and remedies” under the Plan regarding a

BRNI are exclusive of “all other rights and remedies . . . against

any person or entity directly involved” that arise of or relate to

medical negligence, except in some limited circumstances.

5

§ 766.303(2), Fla. Stat.; see also § 766.304, Fla. Stat. (precluding a

recipient of compensation under the Plan from bringing civil suit).

The Legislature taps the Division of Administrative Hearing

(“DOAH”)—part of the Department of Management Services in the

executive branch—to administer these “claims” against the Plan’s

funds, which is done through its ALJs, appointed hearing officers.

§ 766.304, Fla. Stat.; see also § 766.302, Fla. Stat. (defining

“administrative law judge” and “division”); cf. § 766.312, Fla. Stat.

(requiring aid of judicial branch for enforcement of ALJ orders). 2

As we just noted, this regime is in place for parents and others

acting on behalf of injured infants who have a good faith belief that

their children have suffered BRNIs at the hands of treating

physicians and hospital personnel immediately before, during, or

after childbirth. Parents who genuinely believe their child has

suffered a BRNI must seek compensation under the Plan, through

the executive branch. To be clear, it is they (or another legal

representative of the infant) as claimants who initiate this

executive-branch regime, “claimant” being defined as “any person

who files a claim pursuant to s. 766.305 for compensation.”

§ 766.302(3), Fla. Stat. (emphasis supplied).

The claimant files that claim “under the plan” by “filing with

[DOAH] a petition seeking compensation.” § 766.305(1), Fla. Stat.

(emphasis supplied); cf. id. (3)(c) (requiring claimant to submit

“documentation of expenses and services incurred to date which

identifies any payment made”). DOAH then provides the petition

to NICA, and NICA must respond to the claim. § 766.305(2), (4),

Fla. Stat. If NICA determines the claim to be compensable, it may

accept it for compensation, provided the ALJ assigned to the

petition approves that acceptance. § 766.305(7), Fla. Stat. If NICA

does not accept the claim, or the ALJ does not approve NICA’s

acceptance, the ALJ will “hear and determine” the claim, using

“the full power and authority granted to her or him in chapter 120.”

§ 766.304, Fla. Stat.

2 ALJs used to be called “administrative hearing officers” in

the Florida Statutes. The limited executive authority is the same

regardless, and we (and the decisions we will be discussing) use

these titles interchangeably.

6

The ALJ must make several “determinations based upon all

available evidence,” starting with whether “the injury claimed” in

fact meets the definition of a BRNI, but also whether “obstetrical

services” were provided by or under the supervision of a physician

who had paid an assessment into the Plan (or was exempted) for

the year in which the BRNI occurred. § 766.309(1), Fla. Stat.; see

also § 766.302(7), Fla. Stat. (defining “participating physician”). If

the ALJ determines that the claim is compensable—essentially,

that the evidence shows that the injury suffered meets the

definition of a BRNI—that is the end of it, and the ALJ “make[s]

an award providing compensation” for various specified past and

future expenses out of the Plan’s funds. § 766.31(1), Fla. Stat.; see

also id. (2) (“The award shall require the immediate payment of

expenses previously incurred and shall require that future

expenses be paid as incurred.”); § 766.309(1)(c), Fla. Stat.

(requiring ALJ to determine how much compensation is awardable

under section 766.31, Florida Statutes). 3 If, however, the ALJ

determines that the claim is not compensable, the determination

has no legal effect outside the executive branch. See § 766.304, Fla.

Stat. (“If it is determined that a claim filed under this act is not

compensable, neither the doctrine of collateral estoppel nor res

judicata shall prohibit the claimant from pursuing any and all civil

remedies available under common law and statutory law. The

findings of fact and conclusions of law of the administrative law

judge shall not be admissible in any subsequent proceeding. . . .”).

3 The ALJ may also have to adjudicate whether the providers

complied with the notice requirement set out in section 766.316,

Florida Statutes—if the claimant contests the exclusivity of the

award once the claim is determined to be compensable. See §

766.309(1)(d), Fla. Stat.; Fla. Birth-Related Neurological Injury

Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705, 711

(Fla. 2007) (“NICA v. DOAH”) (explaining that proper pre-delivery

notice “is a condition precedent to NICA’s exclusivity” (citing Galen

of Fla., Inc. v. Braniff, 696 So. 2d 308, 309–10 (Fla. 1997)); see also

McDonald v. Fla. Birth-Related Neurological Injury Comp. Ass’n,

No. 1D2022-3433, 2024 WL 4830508, at *10 (Fla. 1st DCA Nov. 20,

2024) (Tanenbaum, J., dissenting) (addressing how the ALJ’s

statutory authority to address the fact question of notice arises

only if the claim has been adjudicated compensable).

7

Judicial review of an order of the ALJ determining compensability

of the claim filed is to be by appeal to a district court of appeal. See

§ 766.311(1), Fla. Stat.; see also Art. V, § 4(b)(2), Fla. Const.

(“District courts of appeal shall have the power of direct review of

administrative action, as prescribed by general law.”).

III

A

In this case, G.C. was born at Shands Jacksonville Medical

Center, Inc. (“Shands”). G.C. suffered a brain injury due to oxygen

deprivation around the time of her birth, and she later was

diagnosed with severe cerebral palsy. The parents, on their own

and on behalf of G.C., originally petitioned for compensation under

the Plan. The petition prayed for the award of payment for medical

services and expenses for G.C. as provided by statute for a BRNI.

NICA investigated the claim and obtained medical reviews by two

physicians, one whom opined that that G.C. did “not fulfill criteria

of a substantial mental impairment.” Based on the reviews, NICA

denied that the Chavezes’ claim was compensable because G.C.’s

injury did meet the definition of a BRNI. See §766.305(4), Fla. Stat.

(giving NICA forty-five days to respond to a petition for

compensation). Shands, which also employed the nursing and

support staff involved in G.C.’s delivery, sought to intervene. The

University of Florida Board of Trustees (“UF”), which employed

the physician involved, sought to intervene as well. The Chavezes

did not object, and the ALJ allowed both interventions. These two

provider-intervenors jointly asserted, based on their review of the

medical records, that the Chavezes’ claim was compensable.

Thereafter, the Chavezes filed an amended petition in

diametric opposition to—in fact, disclaiming—the original one.

They indicated that their new petition was being filed “under

protest” because they felt they could not constitutionally be

compelled to file such a petition as a prerequisite to bringing a civil

suit. The Chavezes asserted that they “are not ‘claimants,’” and in

reliance on the medical reviews obtained by NICA, the Chavezes

took a new position: that G.C.’s “case . . . does not meet the

definition of a NICA compensable claim for reasons outlined by the

NICA experts in their reports.” Their amended petition’s prayer

asked for the opposite of the original relief they sought, asking for

8

the ALJ to determine G.C.’s injuries to be “non-compensable”

under the Plan.

The case proceeded to a final hearing on certain stipulated

facts, a stipulated record full of exhibits and deposition testimony,

and closing arguments. There was no live testimony presented.

Each of the parties then submitted a proposed final order. The ALJ

entered his final order, effectively confirming the Chavezes’

modified position and determining G.C. had not suffered a BRNI

that was compensable under the Plan. The Chavezes do not

challenge that determination; the intervenors Shands and UF do.

B

After briefing closed, we questioned our jurisdiction to

consider this appeal, on our own motion. See 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.”); see also Polk County v. Sofka, 702 So. 2d 1243,

1245 (Fla. 1997) (noting that “the limits of a court’s jurisdiction are

of primary concern, requiring the court to address the issue sua

sponte when any doubt exists” (internal quotations and citation

omitted)). Our concern stemmed from the Chavezes’ about-face

reflected in their amended petition. Whatever the reason, the

Chavezes, in their amended petition, expressly disavowed any

status as “claimant” and any entitlement to benefits from the Plan.

That is, they declared in their DOAH case that they no longer were

pursuing a claim for compensation against the Plan, effectively

taking a voluntary dismissal of their “claim.” Absent a claim, there

was no authority for the ALJ to issue an order on compensability.

See § 766.304, Fla. Stat. (“The administrative law judge shall hear

and determine all claims filed pursuant to ss. 766.301-766.316 . . .

.”); Fla. Birth-Related Neurological Injury Comp. Ass’n v.

McKaughan, 668 So. 2d 974, 978 (Fla. 1996) (observing that this

specific “statutory language [in section 766.304] clearly limits the

jurisdiction of the hearing officer to determining the nature of an

infant’s injury only when a claim for benefits under section

766.305(1) is filed alleging that the infant has suffered a NICA

injury” (first emphasis supplied)).

9

The parties to this appeal responded to our invitation to

submit supplemental briefing on the jurisdictional question, and

we took oral argument as well. 4 Shands and UF acknowledge that

the Chavezes are not “claimants” against the Plan, and that

neither NICA nor a healthcare provider may initiate a proceeding

regarding compensation under NICA. Cf. § 766.302(3), Fla. Stat.

(defining “claimant” in terms of filing “a claim pursuant to s.

766.305 for compensation for a [BRNI]” and allowing such a claim

to be filed on behalf of the infant “by any legal representative”);

§ 766.305(1), Fla. Stat. (requiring commencement of a claim for

compensation under the Plan by the claimant’s filing of a “petition

seeking compensation”); see also McKaughan, 668 So. 2d at 977–

78 (noting that “[c]ommon sense dictates that claims for NICA

benefits would be filed only by a legal representative of the injured

infant who is affirmatively seeking such benefits” (emphasis

supplied)); Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828,

844 (Fla. 2011) (holding that whether an individual is a “claimant”

turns on “whether the person is seeking compensation under the

NICA Plan”). Both appellants, though, rely on what they admit is

“an odd interpretation” of the statute, to argue that a parent, even

if not a claimant, must seek “an ALJ determination on

compensability before pursuing or continuing” a civil suit.

Similarly, NICA asserts that our jurisdictional question “was

conclusively addressed and resolved by the Legislature in 1998”

with the enactment of chapter 98-113, Laws of Florida, which

NICA claims amended the Plan’s statutory provisions in response

to Florida Birth-Related Neurological Injury Compensation

Association v. McKaughan. The law added a sentence to section

766.301(1)(d), Florida Statutes, that provided: “The issue of

whether [BRNI] claims are covered by this act must be determined

exclusively in an administrative proceeding.” Ch. 98-113, § 1, Laws

of Fla. It added similar text to section 766.304, Florida Statutes:

“The administrative law judge has exclusive jurisdiction to

4 Just a few days following oral argument, Shands and UF—

perhaps sensing from the questioning that an unfavorable opinion

would be forthcoming—attempted to take a voluntary dismissal of

their appeal. Having already devoted significant judicial labor to

the matter, we denied the request.

10

determine whether a claim filed under this act is compensable.” Id.

§ 2. New text also precluded any civil action from being filed until

the ALJ made that determination and precluded a civil action from

ever being filed if the ALJ determines “the claimant is entitled to

compensation.” Id. Shands, UF, and NICA also point to the

supreme court’s treatment of the statute in Bennett v. Saint

Vincent’s Medical Center, Inc., as some sort of validation of the

view that McKaughan has been abrogated by the amendments.

The continued viability of McKaughan is central to our disposition,

so we take a moment to address the effect of the 1998 amendments

and the supreme court’s decision in Bennett.

IV

A

In McKaughan, the parents had filed a medical malpractice

suit against providers for injuries their child suffered during

childbirth, allegedly because of the providers’ negligence. The

providers asserted as an affirmative defense that the suit was

barred by statutory provisions making the Plan the exclusive

administrative remedy for infants who suffer BRNIs. The circuit

court referred the affirmative defense to DOAH and stayed the suit

until DOAH determined whether the infant suffered a BRNI

compensable under the Plan. As ordered, the parents filed a

petition for benefits under the Plan, but later they filed a

supplemental petition asserting that their infant had not suffered

a compensable BRNI. They asked, in the supplement, that the case

be returned to the circuit court.

The ALJ dismissed the petition because the parents

affirmatively averred no entitlement to compensation. There was

no “claim for compensation” submitted for administrative

resolution, so no authority for the ALJ to act. On review, the

supreme court approved the dismissal and held, in response to a

certified question, that the Plan statutes do “not vest exclusive

jurisdiction in an administrative hearing officer to determine if an

injury suffered by a newborn infant is covered by the plan when the

plan’s provisions are raised as an affirmative defense to a medical

malpractice action in circuit court.” 668 So. 2d at 975 (emphasis

supplied).

11

In answering the question, the supreme court rejected several

arguments. First, it rejected the providers’ assertion that the use

of the word “may” in section 766.302(3), Florida Statutes, (viz.:

stating that “a claim may be filed by [the injured infant’s] legal

representative”) is permissive and does not exclude a provider

from seeking benefits for the infant. Id. at 977. The court observed

that this subsection three “defines the class of claimants who can

seek NICA benefits.” Id. It also looked at a second statutory

provision, section 766.305(1), Florida Statutes, which requires that

“[a]ll claims . . . commence” with the filing by the “claimant” of a

“petition seeking compensation.” See id. Taking the sum of this

text from the two provisions, the court concluded it was only

“[c]ommon sense” that only “a legal representative of the injured

infant who is affirmatively seeking such benefits” had the right to

file a claim for “NICA benefits” in DOAH. Id. at 977–78. The

healthcare providers had no such right to make a “claim” as a

“claimant”; to allow otherwise, the providers in the case could

“assert the McKaughans’ rights in a manner wholly contrary to

their wishes.” Id. at 978. It went further, noting there is “nothing

in the legislative scheme that indicates the legislature did not

intend to create a straightforward administrative system to handle

claims for compensation filed by persons who assert they are

entitled to NICA benefits.” Id.

Next, the court rejected an argument that the text in a third

statutory provision, section 766.304—mandating the hearing

officer “hear and determine all claims”—meant that the officer had

“exclusive jurisdiction to determine the nature of an infant’s

injury.” Id. (emphasis supplied). In rejecting the argument, the

court initially looked to a fourth provision, section 766.301(2),

which expressly makes the Plan applicable “only to birth-related

neurological injuries” (that is, BRNIs); and noted that the parents

had already asserted their child did not suffer a BRNI and was not

entitled to benefits under the Plan. The court also considered the

portion of section 766.304 providing that the hearing officer/ALJ

may “exercise the full power and authority granted to [her or] him

in chapter 120 [the Administrative Procedure Act], as necessary,

to carry out the purposes of [sections 766.301 through 766.316]”—

that is, of the Plan. Id. This statutory text, too, “clearly limits the

jurisdiction of the hearing officer to determining the nature of an

infant’s injury only when a claim for benefits under section

12

766.305(1) is filed alleging that the infant has suffered a NICA

injury.” Id. (first emphasis supplied).

Pulling this all together, we see the supreme court relied on a

close textual treatment of the four statutory provisions just

mentioned, sections 766.301(2), 766.302(3), 766.304, and

766.305(1); and its conclusion that these provisions limit the Plan

and the ALJ’s authority thereunder to “claims” by parents

affirmatively seeking compensation; to hold that an

administrative hearing officer/ALJ does not have “exclusive

jurisdiction . . . to determine the nature of an injury suffered by a

new-born infant when a medical malpractice action is filed and a

defendant health care provider raised the exclusive remedy of the

NICA plan as an affirmative defense.” McKaughan, 668 So. 2d at

980.

There is more to this conclusion, though. We cannot look past

the court’s acknowledgement of the applicability of its decision in

Mandico v. Taos Construction, Inc., 605 So. 2d 850 (Fla. 1992) to

the analysis. See id. at 976–77. Mandico, as it turns out, revisited

the question of whether a circuit court could be prevented by writ

of prohibition from proceeding on a negligence suit against the

plaintiff’s employer, despite the plaintiff having already received

worker’s compensation benefits under an insurance policy secured

by that employer, after the circuit court has denied a summary

judgment motion asserting immunity under section 440.11,

Florida Statutes. The supreme court responded in the negative,

relying on a prior observation it had made that, in Florida, “circuit

courts are superior courts of general jurisdiction, and nothing is

intended to be outside their jurisdiction except that which clearly

and specially appears so to be.” Mandico v. Taos Constr., Inc., 605

So. 2d 850, 854 (Fla. 1992) (quoting English v. McCrary, 348 So.

2d 293, 298 (Fla. 1977)). The court held that

prohibition may not be used to divest a lower tribunal of

jurisdiction to hear and determine the question of its own

jurisdiction; nor may it be used to test the correctness of

a lower tribunal’s ruling on jurisdiction where the

existence of jurisdiction depends on controverted facts

that the inferior tribunal has jurisdiction to determine.

13

Id. Because there is “a right to file a personal injury action in

circuit court, and the court has jurisdiction to entertain the suit,”

it “is an affirmative defense” to that suit to assert that the

“workers’ compensation law” provides the plaintiff an “exclusive

remedy.” Id. Moreover, the “validity” of that affirmative defense

“can only be determined in the course of litigation,” a

determination that oftentimes will “turn upon the facts,” such that

the circuit court “has jurisdiction to decide the question even if it

is wrong.” Id.

Notably, Mandico’s holding about the circuit court’s

jurisdiction was not based on the statutory text but on the reach of

the court’s judicial power. Indeed, the court quoted its earlier

decision in English v. McCrary, in which it had looked to the broad

jurisdiction granted to the circuit court by the Florida Constitution

in distinguishing between a court’s exceeding its vested authority

and its erroneous exercise of jurisdiction. 348 So. 2d at 298. 5 This

5 Cf. Art. V, § 5(b), Fla. Const. (“The circuit courts shall have

original jurisdiction not vested in the county courts, and

jurisdiction of appeals when provided by general law.” (emphasis

supplied)); Ex parte Henderson, 6 Fla. 279, 291–92 (1855)

(remarking that “the Circuit Courts of the State perform the office

and discharge the functions of the Court of King’s Bench of

England,” and its “[i]ts jurisdiction is very bright and

transcendent” (quoting 3 BLACKSTONE’S COMMENTARIES 42));

Chapman v. Reddick, 25 So. 673, 676–77 (Fla. 1899) (“The circuit

courts of this state are superior courts of general jurisdiction, and

it requires no citation of authority to show that nothing is intended

to be out of the jurisdiction of a superior court, except that which

specially appears so to be.”); State ex rel. B. F. Goodrich Co. v.

Trammell, 192 So. 175, 177 (Fla. 1939) (“The circuit courts of the

State of Florida are courts of general jurisdiction—similar to the

Court of King’s Bench in England—clothed with most generous

powers under the Constitution, which are beyond the competency

of the legislature to curtail. They are superior courts of general

jurisdiction [such] that nothing is outside [their jurisdiction]

except that which is clearly vested in other courts or tribunals . . .

by the Constitution and the statutes enacted pursuant thereto.”

(emphasis supplied) (internal citation omitted))..

14

recognition of the breadth of a circuit court’s jurisdiction led the

court to the conclusion that

[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 necessarily does so by proceeding

in the cause. . . . The [circuit court] may receive testimony

on a preliminary question to determine its jurisdiction,

and is not bound to dismiss the suit on a mere allegation

of lack of jurisdiction, but may inquire into the

correctness of the averment. . . . A Court having

jurisdiction to decide as to its own jurisdiction in any

particular case, it follows that its decision will have the

same effect and conclusiveness as would its decision on

any other matter within its jurisdiction; and where the

jurisdiction of a court depends on a fact which it is

required to ascertain, its judgment determining that such

fact does or does not exist is conclusive on the question of

jurisdiction, until set aside or reversed by direct

proceedings.

English, 348 So. 2d at 298 (emphasis supplied) (internal citations

and quotations omitted).

B

Following this well-established principle, we note that the

Legislature, at all events, could not have divested the circuit courts

of jurisdiction to determine their own jurisdiction over medical

malpractice suits, even where the NICA exclusive remedy is

asserted as an affirmative defense, and we do not read the 1998

amendments as attempting to do so. 6 Indeed, the 1998

amendments, remarkably, left untouched the exact text on which

the McKaughan Court relied for its holding: all four provisions

(sections 766.301(2), 766.302(3), 766.304, and 766.305(1)) limiting

the Plan’s application to claims for compensation based on a BRNI.

6 To be sure, we are not passing on the constitutionality of any

of these 1998 amendments. We merely are conducting a close

textual treatment of those amendments within the context of what

otherwise would be constitutionally permissible.

15

For instance, the addition to section 766.301(1)(d) refers to a birth-

related neurological injury claim and the issue whether it is

covered under the Plan, which “must be determined exclusively in

an administrative proceeding.” The addition to section 766.304

also speaks in terms of “a claim filed under this act” and a

determination of whether “the claimant is entitled to

compensation” under the Plan.

These modifications speak to the ALJ’s jurisdiction, to be sure,

but none of them alter the Plan’s limitation to BRNIs and petitions

by claimants asserting claims for compensation under the Plan.

Notably, McKaughan answered the question of whether an ALJ

had exclusive jurisdiction “to determine the nature of an infant’s

injury,” not whether the ALJ had exclusive jurisdiction to consider

a claim under the Plan. The 1998 amendments do not speak to this

broader, extra-Plan determination either. Or, if that were the

intent, the plain meaning of the text that was added—consistently

speaking in terms of “claims,” which the supreme court already

had defined—does not reflect it. In our view, then, McKaughan’s

core holding—that an ALJ’s administrative authority is limited to

determining such claims, filed by such claimants affirmatively

seeking compensation for a BRNI, as defined by the Plan’s

provisions—remains unaffected by the 1998 amendments. 7

7 Impelling us to engage in this extended analysis is the

daunting “red flag” treatment given in Westlaw to McKaughan,

followed with the statement 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. 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

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,

16

C

As we just said in the margin, we do not read NICA v. DOAH

as recognizing an abrogation of McKaughan by the 1998

amendments. We also do not read Bennett as overruling

McKaughan. First of all, Bennett mentioned McKaughan but once,

and not in the context of the issue being discussed here. Second,

even though the parents in Bennett—like the McKaughan

parents—saw their medical malpractice suit abated so DOAH

could determine whether their child’s injuries qualified as a BRNI,

and they were not making a claim in DOAH for compensation

under the Plan, the question in Bennett did not involve the ALJ’s

authority, which does not appear to have been raised as an issue.

Instead, before the court in Bennett were two other legal

questions involving the Plan’s text: whether the district court

correctly construed the term “immediate postdelivery period in a

hospital” as used in the Plan’s definition of a BRNI (section

766.302(2)); and whether the district court correctly applied the

“rebuttable presumption” provided for in section 766.309(1)(a),

Florida Statutes, even though the parents were not making a claim

for compensation. Bennett, 71 So. 3d at 833–34. Bennett nowhere

mentions a challenge to the ALJ’s authority to consider a “claim”

that does not affirmatively seek compensation under the Plan, as

that challenge previously had been squarely framed in

McKaughan. In fact, Bennett doubles down on the definition of

“claimant” that the McKaughan Court utilized: parents not

seeking compensation under the Plan, but instead “seeking a

determination that they [are] not covered by the” Plan, are not

claimants. Id. at 844. That is, a “claimant” under the Plan, even

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 v. Fla. Birth-Related Neurological Injury

Comp. Ass’n, 757 So. 2d 624, 627 (Fla. 5th DCA 2000) (“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.”).

17

after the 1998 amendments, is still limited to someone

affirmatively seeking compensation. And, of course, McKaughan

holds that the ALJ does not have authority to act officially under

the Plan in the absence of a “claim.”

It is true that the supreme court seems to assume that the

ALJ may still consider questions of compensability in the absence

of a claim, but the procedural posture of this case is sufficiently

different—and the jurisdictional question left entirely

untouched—that we do not see Bennett as controlling the

jurisdictional issue we examine here. Puryear v. State, 810 So. 2d

901, 905 (Fla. 2002) (stating expressly that the court “does not

intentionally overrule itself sub silentio” and instructing a lower

court that “encounters an express holding from this Court on a

specific issue and a subsequent contrary dicta statement on the

same specific issue . . . to apply our express holding in the former

decision until such time as this Court recedes from the express

holding”). Following McKaughan’s interpretation of the Plan

provisions to delimit the boundaries of an ALJ’s authority, we

conclude that the ALJ did not have the statutory authority to act

on the Chavezes’ petition disclaiming any entitlement to

compensation under the Plan. The ALJ did nevertheless, and we

now are asked to review that action. Can we?

To answer this question—essentially, whether we have

jurisdiction to review the ALJ’s order confirming the Chavezes’

and NICA’s assertion that the injury does not qualify for

compensation under the Plan—we must look at the nature of the

authority of an ALJ as an officer of the executive branch vis-à-vis

the sovereign authority vested in officers of the judicial branch.

The premise behind Shands and UF’s appeal is that had the ALJ’s

order gone the other way—determining that G.C.’s injury did

qualify as a BRNI—the determination would have preclusive effect

in favor of an administrative-exclusivity affirmative defense they

might raise in a civil suit for medical malpractice. That is, as

Shands and UF seem to see it, if they have in hand an ALJ’s order

finding a BRNI, they could block any malpractice suit the

Chavezes might bring in circuit court as a matter of law, without

18

the need for any further adjudication by the court. 8 Why else would

they be appealing? But this means they in essence are treating the

Plan as requiring—or at least authorizing—the outsourcing by the

judicial branch to the executive branch of the jurisdictional

question behind the exclusivity defense. We noted earlier how

Shands and UF characterized the interpretation on which they

were relying as “odd.” Odd, indeed. We do not read the Plan that

way. Nor could it be and comport with the Florida Constitution’s

express separation-of-powers mandate. See Art. II, § 3, Fla. Const.

We turn then to the limit of the ALJ’s authority to determine

the nature of the birth-related injury as a conclusive fact

controlling a trial court’s jurisdiction over a medical malpractice

suit. If the order cannot have preclusive effect either way, there is

no justiciable controversy on appeal for us to resolve, and no

jurisdiction.

V

Executive-branch hearing officers and judicial officers

exercise distinct forms of authority. At bottom, a hearing officer

can exercise quasi-judicial power, but not judicial power. Only a

judicial officer can exercise the State’s judicial power (read:

sovereign power), and that power cannot be delegated outside the

judicial branch.

A

On the one hand, administrative hearing officers—like ALJs

and judges of compensation claims 9—are members of the executive

branch, not the judicial branch, as the supreme court has

“repeatedly acknowledged.” Cf. Jones v. Chiles, 638 So. 2d 48, 51

(Fla. 1994); see also Canney v. Bd. of Pub. Instruction of Alachua

Cnty., 278 So. 2d 260, 262 (Fla. 1973) (noting that an

8 An ALJ’s order determining that a claim affirmatively

seeking compensation under the Plan is not compensable cannot

have preclusive effect, by operation of statute (if nothing else). See

§ 766.304, Fla. Stat.

9 See §§ 440.33, 440.45, Fla. Stat.

19

administrative officer or body “is not part of the judiciary”). They

“are executive branch officials,” exercising executive authority.

Jones, 638 So. 2d at 51–52 (discussing “compensation claims

judges” specifically). Moreover, while administrative tribunals

perform judicial-like functions, they are not “literally” courts. Id.

On the other hand, the Florida Constitution vests the State’s

sovereign judicial power in four courts, and only four courts: “in a

supreme court, district courts of appeal, circuit courts and county

courts.” Art. V, § 1, Fla. Const. To be sure, that same constitutional

provision allows “commissions established by law” and

“administrative officers or bodies” to receive “quasi-judicial

power,” but only “in matters connected with the functions of their

offices.” Art. V, § 1, Fla. Const. (emphasis supplied).

Still, the Legislature cannot delegate or vest judicial power in

non-courts, like administrative tribunals or officers. See McRae v.

Robbins, 9 So. 2d 284, 290–91 (Fla. 1942) (noting that an

administrative agency may not receive any substantive “judicial

powers”); Canney, 278 So. 2d at 262 (“As a general rule

administrative agencies have no general judicial powers,

notwithstanding they may perform some quasi-judicial duties, and

the Legislature may not authorize officers or bodies to exercise

powers which are essentially judicial in their nature.”); Broward

Cnty. v. La Rosa, 505 So. 2d 422, 423 (Fla. 1987) (noting that the

Legislature cannot authorize administrative agencies “to exercise

powers that are fundamentally judicial in nature”); Biltmore

Const. Co. v. Fla. Dep’t of Gen. Servs., 363 So. 2d 851, 854 (Fla. 1st

DCA 1978) (noting that “[w]hile an administrative agency may

exercise quasi-judicial power when authorized by statute, it may

not exercise power which is basically and fundamentally

judicial”). 10

10 The U.S. Supreme Court recently amplified this important

constitutional point at the federal level, a point it has been making

since the 1800s. See Sec. & Exch. Comm’n v. Jarkesy, 144 S. Ct.

2117, 2134 (2024) (highlighting how, historically, Congress could

not “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,” because “Article III could neither serve its purpose in

the system of checks and balances nor preserve the integrity of

20

To grant an administrative agency judicial power would be, in

essence, to create a new court and run afoul of Article V, section 1

(quoted in pertinent part above), which “expressly prohibits the

creation of any courts not expressly listed therein.” Jones, 638 So.

2d at 51; see Art. V, § 1, Fla. Const. (“No other courts may be

established by the state, any political subdivision or any

municipality.”); see also La Rosa, 505 So. 2d at 424 (distinguishing

between “judicial and quasi-judicial power” and observing that to

allow the Legislature to vest “judicial” power in an administrative

agency would be to “vest the legislative branch with the authority

to create courts other than the four types that the constitution

authorizes,” which is prohibited).

B

So what is the “judicial power” exclusively vested in Florida’s

four types of courts? Put simply, it is the conclusive “[d]isposition

of private rights to life, liberty, and property.” Wellness Intern.

Network, Ltd. v. Sharif, 575 U.S. 665, 711 (2015) (Thomas, J.,

dissenting); see generally Jarkesy, 144 S. Ct. 2117 (describing how,

historically, the judicial power extends to determine traditional

legal claims regarding private rights, cognizable at common law,

power that cannot be “siphon[ed]” away or removed from the courts

by the legislative power); see also Caleb Nelson, Adjudication in

the Political Branches, 107 COLUM. L. REV. 559, 567 (2007)

(enumerating “three major groupings of core private rights,” as

“elaborated by William Blackstone” in his Commentaries as

“absolute” because men held them “merely as individuals” and not

incidental to membership in society: “personal security,” “personal

liberty,” and “private property”).

The “prototypical exercise of judicial power” is “the entry of a

final, binding judgment by a court with broad substantive

jurisdiction, on a common law cause of action, when the action

judicial decisionmaking if the other branches of the Federal

Government could confer the Government’s ‘judicial Power’ on

entities outside Article III.” (internal citations and quotations

omitted)).

21

neither derives from nor depends upon any agency regulatory

regime.” Stern v. Marshall, 564 U.S. 462, 494 (2011); see 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 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)); 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. v. Nordberg, 492 U.S. 33, 51–52 (1989)

(explaining that Congress “lacks the power to strip parties

contesting matters of private right of their constitutional right to

a trial by jury”).

It is important to note that a court’s final order or judgment

has the effect of law, an effect that naturally extends beyond the

boundaries of the judicial branch and runs throughout the State.

Comm’n on Ethics v. Sullivan, 489 So. 2d 10, 13 (Fla. 1986)

(highlighting distinguishing feature of “decisions rendered by the

courts”: “binding unless on review by a superior court reversible

error is shown to exist in the decision”); see also Ex parte Chesser,

112 So. 87, 90 (Fla. 1927) (describing a “case” or “cause” as “a

judicial proceeding for the determination of a controversy between

parties wherein rights are enforced or protected or wrongs are

prevented or redressed”); Hewitt v. Helms, 482 U.S. 755, 761 (1987)

(“The real value of the judicial pronouncement—what makes it a

proper judicial resolution of a ‘case or controversy’ rather than an

advisory opinion—is in the settling of some dispute which affects

the behavior of the defendant towards the plaintiff.”); Malone v.

Malone, 368 So. 3d 1057, 1060 (Fla. 1st DCA 2023) (Tanenbaum,

J., concurring) (“A judgment essentially is a court decree that

conclusively adjudicates a factual or legal dispute between parties

that touches on their respective rights and remedies vis-à-vis each

other. In doing so, the judgment materially alters the legal

relationship between the parties forever.” (citing cases)); cf.

Sirmans v. Owen, 100 So. 734, 735 (Fla. 1924) (“A judicial act

22

determines the law applicable and the rights and obligations of

parties in relation to past transactions.”); State Rd. Dep’t v. Crill,

128 So. 412, 415 (Fla. 1930) (“Coming now to the decisions of this

court, we find that a final judgment is one that adjudicates the

merits of the cause and disposes of the action; that puts an end to

the suit.” (internal citations omitted)); id. at 414 (explaining that

“a final judgment, order, or decree” of a court “is one that puts an

end to the action or cause . . . determines the merits of the

controversy or the rights of the parties and leaves nothing for

future determination”); Hillsboro Plantation v. Plunkett, 55 So. 2d

534, 536 (Fla. 1951) (“A judgment is ‘final’ for the purposes of an

appeal when it terminates a litigation between the parties on the

merits of the case and leaves nothing to be done but to enforce by

execution what has been determined.”); Gordon v. Gordon, 59 So.

2d 40, 43 (Fla. 1952) (“We have held as a general proposition that

when a final decree or judgment of a court of competent

jurisdiction becomes absolute it puts at rest and entombs in

eternal quiescence every justiciable, as well as every actually

adjudicated, issue.”).

Contrast this with quasi-judicial power, a power exercised and

having effect only within the executive branch. That is, quasi-

judicial power has no self-executing authority—no legal effect—

beyond the confines of the agency within which the power is

exercised. It cannot, for instance, have final, preclusive effect on

the rights between private parties, without subsequent court

action, lest it become the exercise of judicial power by the executive

branch itself. Cf. Wellness Intern., 575 U.S. at 713 (Thomas, J.,

dissenting) (explaining that the “exercise of judicial power,” rather

than quasi-judicial power, “is required ‘when the government

want[s] to act authoritatively upon core private rights that had

vested in a particular individual’” (quoting Nelson, Adjudication

in the Political Branches, 107 COLUM. L. REV. at 569)).

The product of this administrative power, moreover, must be

tied to some statutorily authorized government action. As we

highlighted above, Article V, section 1 limits this power to “matters

connected with the functions of” the administrative officer’s or

agency’s office.” Unlike “constitutional courts” (i.e., those vested by

the constitution with sovereign judicial power), tribunals created

to receive this quasi-judicial power by the legislative power “in the

23

exertion of other powers are called legislative courts,” and “[t]heir

functions always are directed to the execution of one or more of

such powers.” Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). It

may be exercised by those in the executive branch “who are

required to investigate facts, or ascertain the existence of facts,

hold hearings, and draw conclusions from them, as a basis for their

official action, and to exercise discretion of a judicial nature.”

Sullivan, 489 So. 2d at 13; see also S. Atl. S.S. Co. of Delaware v.

Tutson, 190 So. 675, 680 (Fla. 1939) (distinguishing “quasi-

judicial” power as that “involving official judgment . . . exercised

by administrative officers with appropriate statutory authority

and limitations in order to effectuate duly authorized

[governmental] administrative functions” (all but first emphasis

supplied)); La Rosa, 505 So. 2d at 423–24 (“An administrative

agency conducts a quasi-judicial proceeding in order to investigate

and ascertain the existence of facts, hold hearings, and draw

conclusions from those hearings as a basis for their official

actions.”).

The exercise of quasi-judicial power by administrative

tribunals, at the election of the Legislature, may be used in

conjunction with the determination of public rights. Jarkesy, 144

S. Ct. at 2127, 2131–34 (describing the “public rights” exception to

“Article III jurisdiction,” which allows Congress to “assign certain

matters to agencies for adjudication” when they concern

“distinctive areas involving governmental prerogatives,” like the

“granting of public benefits such as payments to veterans”). Public

rights are “rights of the public—that is, rights pertaining to claims

brought by or against” the government. Granfinanciera, S.A., 492

U.S. at 68 (Scalia, J., concurring); see also 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”). “[W]hat makes a right

‘public’ rather than private is that the right is integrally related to

particular [government] action.” Stern, 564 U.S. at 490–91; see also

id. at 492 (explaining that “[i]f a statutory right is not closely

intertwined with a federal regulatory program Congress has power

to enact, and if that right neither belongs to nor exists against the

24

Federal Government, then it must be adjudicated by an Article III

court” (internal quotation and citation omitted)).

“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.” Bakelite Corp., 279 U.S. at 452; see

Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV.

at 582 (explaining that “while Congress could waive the

government’s sovereign immunity and provide for judicial

resolution of such claims, it could also handle the claims entirely

by itself or through executive agencies acting pursuant to

congressional delegation. But this arrangement was possible only

because, according to the traditional view, claims against the

public treasury ‘do not require judicial determination’”). These

public claims “all admit of legislative or executive determination,

[and] yet from their nature are susceptible of determination by

courts; but no court can have cognizance of them except as [the

legislative power] makes specific provision therefor.” Bakelite

Corp., 279 U.S. at 452.

Because the government is immune to suit, it “cannot be sued,

except with its own consent. It 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. McElrath v. United

States, 102 U.S. 426, 440 (1880); see also id. (“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.”). That is, 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.”

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”). There, then, is no

right to pursue an adjudication of a claim against the government

except under the conditions the legislative power may attach to its

consent, as it deems proper—conditions that may include a

requirement “that the suit[] be brought in a legislative court

25

specially created to consider them.” Bakelite Corp., 279 U.S. at 452;

cf. Nelson, Adjudication in the Political Branches, 107 COLUM. L.

REV. at 627 n.89 (describing nineteenth-century federal claims

process by which a legislative court known as the Court of Claims

could “enter ‘final judgments’” that operated directly against the

treasury); Bakelite Corp., 279 U.S. at 451 (noting how these

legislative courts may operate as “special tribunals to examine and

determine various matters, arising between the government and

others, which from their nature do not require judicial

determination and yet are susceptible of it”).

We see, then, that administrative fact-finding that is binding

on the parties is permissible “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.” Atlas Roofing Co., Inc. v. Occupational

Safety & Health Review Comm’n, 430 U.S. 442, 458 (1977); 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--

determinations that had legal consequences and that both state

and federal courts would have to accept in later litigation”). The

fact-finding by an administrative hearing officer can have

preclusive effect—and thus retain its character as a completed

exercise of quasi-judicial power—only within the executive branch

as part of its performance of a government function assigned to it

by the Legislature.

VI

Let us turn to an application of these principles behind the

separation of quasi-judicial power and judicial power to the Plan

and this case.

A

The Plan establishes a public right and a process by which to

adjudicate claims for enforcement of that right. The Legislature

established a fund with treasury dollars and created a public right

26

to compensation from that fund for those infants suffering “a

limited class of” statutorily defined, “catastrophic” BRNIs.

§§ 766.301(2), 766.302(2), (3), 766.303(1), 766.305, Fla. Stat. This

right is in favor of “the injured infant” to “promote[] and protect[]

the health and best interests of children with birth-related

neurological injuries.” §§ 766.302(3), 766.303(4), Fla. Stat. The

right is enforceable against NICA, which is responsible for

administering the Plan and paying awards out of the treasury

funds available for that purpose. §§ 766.303(1), 766.315(4), (5)(a),

Fla. Stat.; cf. § 766.307(2), Fla. Stat. (“The parties to the hearing

shall include the claimant and the association.”); § 766.311(2), Fla.

Stat. (providing that NICA is not “required to make payment of the

award” while it is on appeal). There are no other public rights

provided under the Plan. Indeed, the Legislature has waived

sovereign immunity “solely to the extent necessary to assure

payment of compensation” under the Plan. § 766.303(3), Fla.

Stat. 11

The Legislature conditioned this waiver on funneling “[a]ll

claims for compensation under the plan” to DOAH giving ALJs

(rather than judicial officers) the exclusive authority to determine

whether a claimant asserting a public right to compensation in fact

meets the statutory criteria for enforcement of that right. §§

766.304, 766.305(1), Fla. Stat.; 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 for the following

items relative to such injury. . . .”). 12 In the event of controverted

11 Notably absent is any mention of immunity or some other

competing public right in favor of healthcare providers. The only

public right under the Plan runs in favor of the injured infant.

12 Our analysis here is unaffected by the fact that Shands and

UF enjoy sovereign immunity as a “state agencies or subdivisions,”

because the Legislature separately has waived that immunity for

law actions to recover money damages in tort for personal injury

or death as a result of negligence. See § 768.28(1), (2), Fla. Stat.;

§ 1004.41(5)(d), Fla. Stat.; but cf. § 768.28(5)(a), Fla. Stat. (limiting

the immunity waiver to liability for payment on any claim or

27

facts associated with the claim, the ALJ has the authority to

conduct a formal evidentiary hearing and make findings of fact and

conclusions of law bearing on that claim. See § 766.304, Fla. Stat.

(providing the ALJ “the full power and authority granted” by

chapter 120); § 766.309(1), Fla. Stat. (requiring the ALJ to make

“determinations based upon all available evidence”); but cf. §

766.305(7), Fla. Stat. (“Any claim which the association

determines to be compensable may be accepted for compensation,

provided that the acceptance is approved by the administrative

law judge to whom the claim for compensation is assigned.”). 13

There is no doubt that under this process, while determining

a claim affirmatively seeking compensation from the Plan, the ALJ

is conducting “a quasi-judicial proceeding in order to investigate

and ascertain the existence of facts, hold hearings, and draw

conclusions from those hearings as a basis for” taking official

action regarding compensation under the Plan. La Rosa, 505 So.

2d at 423; cf. De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957)

(distinguishing a “judicial or quasi-judicial” determination from a

“purely executive” one based on a requirement of “notice and a

hearing” and an administrative judgment’s being “contingent on a

showing made at the hearing”); id. (characterizing a proceeding as

“quasi-judicial” because the administrative board “arrived at its

decision after a full hearing pursuant to notice based on evidence

submitted in accordance with the statute here involved”).

B

In this case, though, there was no claim of a right to public

funds, no live controversy over a claimed entitlement to official

action authorized by statute. Once the Chavezes filed their

judgment not to exceed $200,000 for any one person, unless there

is “further act of the Legislature”).

13 As we mentioned earlier, if the ALJ determines the claim to

be compensable, he or she also has legislative authorization to

determine any dispute over whether statutorily compliant notice

was given, such proper notice being a prerequisite for the public

benefit awarded by the ALJ under the Plan to be the exclusive

remedy. Cf. § 766.309(1)(d), Fla. Stat.

28

amended petition disclaiming any entitlement to compensation,

they in essence withdrew their assertion of a public right, and the

ALJ lost authority to proceed further. Cf. Smith v. Piezo Tech. &

Prof’l Adm’rs, 427 So. 2d 182, 184 (Fla. 1983) (noting that the

administrative hearing officer was “vested only with certain

limited quasi-judicial powers relating to the adjudication of claims

for compensation and benefits,” and “[w]hile he may have full

power and authority to hear and determine questions pertaining

to compensation and benefits, such authority must be exercised

only in respect to such claims” (emphasis supplied) (internal

citations and quotations omitted)); Humana of Fla., Inc. v. Dep’t of

Health & Rehab. Servs., 500 So. 2d 186, 187 (Fla. 1st DCA 1986)

(observing that withdrawal of a petition seeking relief “divested

the agency of jurisdiction to proceed”). The parties—the Chavezes

and NICA—agreed that the infant had not suffered a BRNI and

had no basis for entitlement to compensation under the Plan.

There was no claim under the Plan—indeed, no dispute between

the parties regarding Plan compensation—to be determined.

Missing, then, was a government function under the Plan on which

a fact determination by the ALJ depended.

The intervention by Shands and UF could not have effected a

reanimation of the moribund controversy before the ALJ. Their

“rights” as intervenors were “conditional in that they exist[ed] only

so long as the litigation continue[d] between the parties”—the

Chavezes and NICA. Envtl. Confederation of Sw. Fla., Inc. v. IMC

Phosphates, Inc., 857 So. 2d 207, 211 (Fla. 1st DCA 2003). When

the dispute between the Chavezes and NICA ended, and the

parties agreed there was no public right to compensation, the claim

was terminated, and Shands and UF were foreclosed from trying

to further address it. See id. (holding that a party’s dismissal of his

or her claim “will generally foreclose the rights of an intervenor

who wished to address that claim”); see also Humana, 500 So. 2d

at 187–88 (rejecting intervenor’s argument “that, having properly

intervened in the administrative proceeding, it could not be

divested of its rights as a party by the initial petitioner’s voluntary

dismissal of the hearing,” and instead explaining that an

intervenor “joined the proceeding subject to the action of the

original petitioner” so that a dismissal by the original petition left

“no valid proceeding [] in which [the intevenor] could participate”);

Envtl. Confederation of Sw. Fla., Inc., 857 So. 2d at 210 (explaining

29

that “the rights of an intervenor are subordinate to the rights of

the parties,” even in an administrative proceeding, and “that an

intervenor may not inject a new issue into the case”).

Section 766.304 (providing that the ALJ “has exclusive

jurisdiction to determine” the compensability of a claim under

NICA) and section 766.309 (giving the ALJ “exclusive jurisdiction”

to make certain “factual determinations”), then, did not change the

claim’s status as terminated (it having been withdrawn), nor the

intervenors’ status as divested of any entitlement to proceed (there

no longer being a claim for them to dispute). Recall that DOAH is

part of the executive branch, and an ALJ is not a judicial officer.

The Legislature can give only quasi-judicial power to DOAH, an

ALJ, or another executive hearing officer, which Article V, section

1 of the Florida Constitution confines to determinations of fact

integral to some government function or action the Legislature

assigns. See La Rosa, 505 So. 2d at 423; cf. Stern, 564 U.S. at 490–

91 (noting that “what makes a right ‘public’ rather than private is

that the right is integrally related to particular [government]

action”).

An ALJ’s quasi-judicial power under the Plan here, then, is

derivative of, and requires—as a condition precedent for its

exercise—a government function associated with it. Without a

“claim” affirmatively seeking compensation under the Plan,

though, there was no such government function requiring the

ALJ’s exercise of that power. The “exclusive jurisdiction”

provisions in sections 766.304 and 766.309 simply cannot operate

to give the ALJ authority independently—outside the context of a

claim under the Plan—to decide conclusively the nature of G.C.’s

injury in the way advanced by Shands and UF. And, as we already

discussed, the plain text added in 1998 does not suggest otherwise.

Bottom line: When the Chavezes effectively withdrew their claim

under the Plan, Shands and UF had no statutory basis for

proceeding as intervenors before the ALJ in a quasi-judicial

capacity.

30

C

1

The continued pursuit by Shands and UF of a determination

regarding the nature of the injury suffered by the Chavezes’

child—as intervenors, in the absence of a disputed “claim”—must

then have been to invoke some power of the ALJ other than quasi-

judicial. We cannot say for sure what that power was. We do know

that the Legislature cannot vest sovereign judicial power (i.e., the

power to make an adjudication of the respective rights of private

parties having the force of law) in an ALJ or any other entity

within the executive branch. Yet, the intervenors’ request that the

ALJ address whether the injury qualified as a BRNI, even without

a claim under the Plan, essentially is the invocation of this very

same judicial power that, as we already explained, the ALJ clearly

cannot possess.

We say this because once the Chavezes disclaimed any

entitlement to compensation under the Plan, there was no

government function requiring an executive-branch fact

adjudication, and whether G.C.’s injury fit the definition of a BRNI

could have been relevant only to the circuit court’s jurisdiction over

their anticipated medical malpractice suit in the face of an

exclusivity affirmative defense. See McKaughan, 668 So. 2d at 976,

979 (characterizing affirmative defense of NICA exclusivity as a

jurisdictional bar to medical malpractice action and applicability

of Mandico to analysis); cf. Mandico, 605 So. 2d at 854 (“The

assertion that the plaintiff's exclusive remedy is under the

workers’ compensation law is an affirmative defense, and its

validity can only be determined in the course of litigation.”). And

as we are about to explain, only judicial power could operate

conclusively on the determination of that jurisdictional fact,

meaning the ALJ’s order must be treated as advisory, non-final,

and non-binding, lest it be an impermissible administrative

exercise of the judicial power.

2

The Chavezes and their child each have a constitutional right

to access the courts to seek remedies against Shands and UF based

on their respective private rights of action for medical malpractice.

31

Art. I, § 21, Fla. Const. (“The courts shall be open to every person

for redress of any injury . . . .”); see Psychiatric Assocs. v. Siegel,

610 So. 2d 419, 424 (Fla. 1992) (recognizing that “[t]he right to go

to court to resolve our disputes is one of our fundamental rights”

and remarking that the right is to be construed “liberally in order

to guarantee broad accessibility to the courts for resolving

disputes” and to ensure “the litigant a forum in which to be

heard”). That right itself is personal to them; it is not a public right.

See Spafford v. Brevard County, 110 So. 451, 454 (Fla. 1926)

(observing that the access-to-courts guarantee in the Declaration

of Rights, among other rights enumerated therein, secures an

“individual right[] against unconstitutional invasion by the state,

as well as from violation by other governmental agencies and

individuals”). 14 The Chavezes’ claim for damages on behalf of their

infant fits within the constitutional right of access as a private,

“state common law” one that “does not depend upon the will of” the

Legislature. Stern, 564 U.S. at 493; see Maggio v. Fla. Dep’t of Lab.

& Emp. Sec., 899 So. 2d 1074, 1081 n.5 (Fla. 2005) (noting that

“medical malpractice actions existed as common law torts and thus

were covered under the general waiver of sovereign immunity in

section 768.28[]”). 15

14 The Plan here is a carve-out from the broader right to court

access. See Bennett, 71 So. 3d at 833 (describing Plan as

“eliminat[ing] and replac[ing]” the “parents’ common law rights to

sue on behalf of their children for medical malpractice” with “an

administrative remedy”); id. at 838 (pointing out “important

principle” that “the NICA Plan limits the remedies as a statutory

substitute for common law rights and liabilities”).

15 As we noted earlier, if, however, the Chavezes thought their

child suffered a BRNI—which they originally did—and otherwise

qualified under the Plan for public compensation, they had a right

to pursue that compensation, but they had to do it through DOAH.

Any award they accepted out of the NICA fund would have been

their exclusive remedy on behalf of their child. The Plan’s

exclusivity of remedy for “birth-related neurological injury claims”

of course is a derogation of that personal right to sue. See

McKaughan, 668 So. 2d at 979 n.3 (acknowledging implication of

citizens’ constitutional entitlement to “access to the courts”); cf.

32

As we observed earlier, there is a difference between a

determination of a BRNI claim for compensation and a

determination of the nature of a birth-related injury on which a

medical malpractice suit is premised. The former is an

adjudication necessary to enforce a public right and constitutes the

exercise of quasi-judicial power. The latter is an adjudication of a

fact on which the circuit court’s authority to render judgment on a

private right of action turns. Absent a claim for compensation from

the Chavezes, this latter factual adjudication becomes one of

constitutional import: If an infant’s injury does satisfy the

definition, then the constitutionally guaranteed access to courts for

a tort remedy is barred; if not, then the right to sue in court for

malpractice remains.

A boundary-line fact like this—one determinative of a

constitutional right or a court’s jurisdiction—can be adjudicated

conclusively only by an Article V trial court through the exercise

of its vested judicial power. 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, 348 So. 2d at 298 (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, 285 U.S. at 64 (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 authority of the deputy commissioner

as an administrative agency, the court is under no obligation to

Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973) (holding that “where a

right of access to the courts for redress for a particular injury . . .

has become a part of the common law of the State . . . the

Legislature is without power to abolish such a right without

providing a reasonable alternative to protect the rights of the

people of the State to redress for injuries”).

33

give weight to his proceedings pending the determination of that

question” and may instead make its own determination of the facts

bearing thereon).

The quasi-judicial power of the executive branch cannot reach

the adjudication of that fact in the same, conclusive (or preclusive)

way. 16 See Crowell, 285 U.S. 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)); see also 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”); 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). This leads us inexorably to the conclusion that the

ALJ’s order here could have no preclusive or final effect, regarding

whether G.C.’s injury was a BRNI outside (or even inside) the

executive branch, certainly not where the order is unmoored from

the performance of any legislatively assigned governmental

function.

3

The argument from Shands and UF in favor of our jurisdiction

seems to be premised on reading the Plan (especially the 1998

amendments) as codifying the procedure mentioned in

McKaughan and Bennett, whereby the circuit court abated the

malpractice suit and transferred to DOAH the exclusivity-BRNI-

affirmative defense for adjudication. In other words, they seem to

16 By “conclusive” or “preclusive,” we mean final and

determinative, requiring no further proof.

34

presume the Plan now requires a circuit court to outsource to an

ALJ the determination of the nature of an infant’s injury on which

the court’s jurisdiction might turn. The Legislature, however,

cannot do that; it simply cannot “substitute for constitutional

courts,” in which the State’s judicial power is vested, “an

administrative agency . . . for the final determination of the

existence of the facts upon which the enforcement of the

constitutional rights of the citizen depend.” Crowell, 285 U.S. at

56. To “completely oust the courts of all determinations of fact by

vesting the authority to make them with finality in [legislative]

instrumentalities or in the executive department . . . would be to

sap the judicial power as it exists under” our constitution and

“establish a government of a bureaucratic character alien to our

system, wherever fundamental rights depend . . . upon the facts,

and finality as to facts becomes in effect finality in law.” Id. at 57;

cf. State ex rel. B. F. Goodrich Co., 192 So. at 177 (noting that

generous powers with which circuit courts are vested under the

constitution, “which are beyond the competency of the legislature to

curtail” (emphasis supplied)).

At all events, the idea of having an ALJ make determinations

of jurisdictional fact regarding a NICA exclusivity defense smacks

of the doctrine of “primary jurisdiction.” Even as an accepted

approach, the ALJ’s fact determinations at best would have to be

advisory, from an expertise perspective. Despite its name,

“primary jurisdiction” is not jurisdictional, from the court’s

perspective. See Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1041 (Fla.

2001) (explaining that the doctrine “operates “to postpone judicial

consideration of a case to administrative determination of

important questions involved by an agency with special

competence in the area” (internal quotation and citation omitted)).

The doctrine “does not defeat the court’s jurisdiction over the case,

but coordinates the work of the court and the agency by permitting

the agency to rule first and giving the court the benefit of the

agency’s views.” Id. (emphasis supplied) (citation omitted). Still,

the ALJ has no particular expertise in distinguishing among birth-

related injuries, so the “experts” available for resolving that

question, absent a claim under the Plan, are Florida’s courts, “and

35

it is with those courts that [their claim and any defenses] must

stay.” Stern, 564 U.S. at 462. 17

This leaves the ALJ’s order determining that G.C.’s injury is

not a BRNI under the Plan as an advisory one. Even if it had come

out the other way (which Shands and UF argue for), in the absence

of a claim for compensation under the Plan, it could not have had

preclusive effect inside or outside DOAH. 18 The determination

simply was not integral to any government action because the

claim already was dead.

VII

The order we have on review, then, was not a completed

exercise of quasi-judicial power under the Plan—there being no

17 Indeed, the Second District made this same point, from a

“primary jurisdiction” perspective, in an opinion approved by the

supreme court in McKaughan. See Humana of Fla., Inc. v.

McKaughan on Behalf of McKaughan, 652 So. 2d 852, 860 (Fla. 2d

DCA 1995), approved, 668 So. 2d 974 (Fla. 1996) (rejecting

argument that “primary jurisdiction” required a hearing officer or

ALJ, rather than a circuit court, to determine whether an infant’s

injury fell within the statutory definition of a BRNI for the purpose

of deciding the “exclusive administrative remedy” affirmative

defense, because “[u]nquestionably, circuit courts have vast

experience and competence in adjudicating medical negligence

claims and have traditionally and routinely decided complicated

medical issues in such cases without the assistance of

administrative expertise,” and because the “issue to be decided by

the circuit court was relatively straightforward”).

18 In fact, if the ALJ’s order finding no BRNI had been entered

in connection with the Chavezes’ original petition (affirmatively

seeking compensation), it would have had no preclusive effect in

the Chavezes’ subsequent civil suit, if they chose to pursue one. See

§ 766.304, Fla. Stat. As it stands here, in the absence of any such

claim, the order has no legal effect regarding the enforcement of

any public right even between the parties before the ALJ—the

Chavezes, their child, and NICA. Certainly, it could not have any

legal effect as between the Chavezes and the intervenors.

36

claim for the ALJ to adjudicate, no official function to be facilitated

by the power. This leaves the order as purely an advisory one, with

no effect on the rights or privileges of any party within the

executive branch. It is not administrative action adversely

affecting the legal interests of Shands and UF. Cf. Sullivan, 489

So. 2d at 13 (holding that the commission did “not exercise even

quasi-judicial powers” because it issued only advisory opinions and

did not issue orders as part of administering a government

program or enforcing a law).

We in turn lack jurisdiction to review it. The judicial power

vested in this court is only of the appellate kind. See Art. V, § 4(b)

(providing district courts “jurisdiction to hear appeals,”

authorizing them to “review interlocutory orders” of trial courts as

provided by supreme court rule, and giving them “the power of

direct review of administrative action, as prescribed by general

law”). “It is the essential criterion of [this] appellate jurisdiction,

that it revises and corrects the proceedings in a cause already

instituted and does not create that cause.” Marbury v. Madison, 5

U.S. 137, 175–76 (1803). “An appellate jurisdiction necessarily

implies some judicial determination, some judgment, decree, or

order of an inferior tribunal, from which an appeal has been

taken.” The Alicia, 74 U.S. 571, 573 (1868); cf. Martin v. Hunter’s

Lessee, 14 U.S. 304, 338–39 (1816) (explaining that the federal

appellate judicial power was not limited “to any particular courts”

but “shall extend to all cases,” such that “[i]t is the case, then, and

not the court, that gives the jurisdiction”). A “judicial” decision that

is not final and conclusive save for correction by a superior tribunal

is not judicial action upon which appellate jurisdiction could act.

See In re Sanborn, 148 U.S. 222, 225 (1893) (“It was decided that

the judge’s decision was not the judgment of the court, but a mere

award, with a power to review it conferred upon the secretary of

the treasury, and that from such an award no appeal could lie to

this court.”); see also Ortiz v. United States, 585 U.S. 427, 455

(2018) (Thomas, J., concurring) (“Thus, this Court cannot exercise

appellate jurisdiction unless it is reviewing an already completed

exercise of ‘judicial power.’”); id. at 456 (explaining how “[t]he

objects of appeal, not the tribunals from which it is to be made, are

alone contemplated” in federal appellate jurisdiction, such that the

Supreme Court’s “appellate jurisdiction requires the exercise of a

judicial power,” rather than necessarily the vested sovereign

37

judicial power of the United States (quoting THE FEDERALIST No.

82 at 493–94 (C. Rossiter ed. 1961))).

Following on these principles, we note our jurisdiction to

review an administrative order “depends on whether the function

of the agency involved is judicial or quasi-judicial.” De Groot, 95

So. 2d at 914. If it is not, and it is simply executive instead, the

decision is not reviewable by the appellate courts. Id.

[T]he test of a quasi-judicial function turns on whether or

not the statutory tribunal had exercised a statutory

power given it to make a decision having a judicial

character or attribute, and consequent upon some notice

or hearing to be had before it as a condition for the

rendition of the particular decision made.

Bloomfield v. Mayo, 119 So. 2d 417, 421 (Fla. 1st DCA 1960).

“Where an order of an administrative board or commission is

purely administrative or quasi-legislative or quasi-executive in

character and quality, such an order” cannot be subject to

appellate jurisdiction. Id. 19; see also Sirmans, 100 So. at 735

(noting that appellate review authority extends only to functions

that are “clearly judicial or quasi judicial” in nature, and not to

purely “administrative acts”); id. (“A judicial act determines the

law applicable and the rights and obligations of parties in relation

to past transactions.”). The administrative order produced in this

case resolved no controversy on which statutorily authorized

governmental action turned. Cf. State ex rel. Williams v. Whitman,

156 So. 705, 707 (Fla. 1934). There was no disputed claim for

enforcement of a public right. Shands and UF, as intervenors,

could not inject a controversy to be resolved, and they had no

separate claim that the ALJ had the authority to conclusively

resolve. There is no completed quasi-judicial action that could

support our jurisdiction to consider their appeal.

On a related point, in the absence of a statutorily authorized

claim, the ALJ’s order could not have any conclusive impact on the

19 This is so, unless, of course, the action itself comes about as

“an incident to” a statutorily mandated quasi-judicial process as a

“condition precedent” to the action. Id.

38

intervenors, who did not have an independent interest in the NICA

proceeding. That leaves for this putative appeal a dispute between

Shands and UF, on the one hand; and the Chavezes and NICA, on

the other; over a non-binding, statutorily unauthorized factual

determination regarding the nature of the infant’s injury. There is

no injury-in-fact to be remedied by appellate disposition, no order

of any impact within DOAH that adversely affects either of the

appellants. § 120.68(1)(a), (2)(a), Fla. Stat. (entitling a “party who

is adversely affected by final agency action” to judicial review in a

district court of appeal).

Our appellate judicial power, in turn, cannot run to the ALJ’s

order. See Burnett v. Greene, 122 So. 570, 575 (Fla. 1929) (“The

judicial power of the state extends to all controversies justiciable

in their nature and to the parties to which or the property involved

in which may be reached by judicial process.”); First Nat. Bank v.

Bebinger, 128 So. 862, 863 (Fla. 1930) (explaining that judicial

power is reserved for a claim upon 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”

and that judicial power does not include the rendition of “advisory

opinions”); 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). We must dismiss.

* * *

“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.” W. 132 Feet, etc., 86 So. at 198–

99; see also State ex rel. B. F. Goodrich Co., 192 So. at 177

(observing that “[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 that such a court “having jurisdiction

to decide as to its own jurisdiction in any particular case, it follows

39

that its decision will have the same effect and conclusiveness as

would its decision on any other matter within its jurisdiction”

(internal quotations and citation omitted)). We have done so here,

and after giving the parties to brief the question of jurisdiction and

conducting our own in-depth analysis, we indeed find our

jurisdiction wanting.

But, as the Supreme Court asked in Stern v. Marshall, in a

slightly different context, “why the fuss?” 564 U.S. at 502. “Is there

really a threat to the separation of powers” in how parties, courts,

and intervenors have treated ALJ orders under the narrow

administrative process set out by the Plan? We close with an

extended quotation from Stern as our response, as follows:

The short but emphatic answer is yes. A statute may no

more lawfully chip away at the authority of the Judicial

Branch than it may eliminate it entirely. Slight

encroachments create new boundaries from which legions

of power can seek new territory to capture. Although it

may be that it is the obnoxious thing in its mildest and

least repulsive form, we cannot overlook the intrusion:

illegitimate and unconstitutional practices get their first

footing in that way, namely, by silent approaches and

slight deviations from legal modes of procedure. We

cannot compromise the integrity of the system of

separated powers and the role of the Judiciary in that

system, even with respect to challenges that may seem

innocuous at first blush.

564 U.S. at 502–03 (internal quotations, citations, and brackets

omitted). 20

DISMISSED.

20 This sentiment—against the siphoning away of judicial

power and giving it to the administrative state—is echoed

throughout the Supreme Court’s recent decision in Securities and

Exchange Commission v. Jarkesy, a decision we have cited and

quoted at several points above.

40

B.L. THOMAS, J., concurs; NORDBY, J., concurs in result only with

an opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

NORDBY, J., concurring in result only.

I concur in the dismissal of this case, but not for the reasons

set out in the majority opinion. Two business days after oral

argument in this case, Appellants filed a notice of voluntary

dismissal under Florida Rule of Appellate Procedure 9.350(b). I

voted to grant that dismissal, as the parties that had invoked our

jurisdiction no longer wished to pursue an appeal of the underlying

order. See Order Denying Voluntary Dismissal, Shands

Jacksonville Medical Center, Inc. v. Chavez, Case No. 1D20-3605,

(1st DCA Sept. 7, 2023) (Nordby, J., dissenting without opinion).

Because I still hold that view, I concur only in the dismissal of this

case.

_____________________________

James Parker-Flynn and Christine R. Davis of Carlton Fields,

Tallahassee, for Appellants.

Tana D. Storey of Rutledge Ecenia, P.A., Tallahassee and

Christopher V. Carlyle of The Carlyle Appellate Law Firm,

Orlando, for Appellees.

41