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

> District Court of Appeal of Florida · December 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10759092

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** December 11, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10759092

## How later opinions describe it (automated extraction)

- explaining that Congress “lacks the power to strip parties contesting matters of private right of their constitutional right to a trial by jury”
- 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)
- 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”

## Opinion text

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D2020-3605
_____________________________

SHANDS JACKSONVILLE MEDICAL CORRECTED PAGE: pg 41
CENTER, INC., and UNIVERSITY CORRECTION IS
OF FLORIDA BOARD OF UNDERLINED IN RED
TRUSTEES, MAILED: December 12, 2024
BY: JEB
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 of Carlton Fields, Tallahassee; Christine R.
Davis of Davis Appeals, PLLC., Tallahassee; for Appellants.

Tana D. Storey of Rutledge Ecenia, P.A., Tallahassee; Christopher
V. Carlyle of The Carlyle Appellate Law Firm, Orlando; for
Appellees.

41

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10759092. Public record. Not legal advice.