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

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2020-3605

_____________________________

SHANDS JACKSONVILLE MEDICAL

CENTER, INC., and UNIVERSITY

OF FLORIDA BOARD OF

TRUSTEES,

Appellants,

v.

JENNIFER CHAVEZ and MARLON

CHAVEZ as Parents and Natural

Guardians of G.C., a Minor

Child, and FLORIDA BIRTH-

RELATED NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION,

Appellees.

_____________________________

On appeal from the Division of Administrative Hearings.

Todd P. Resavage, Administrative Law Judge.

August 7, 2025

OPINION ON MOTIONS FOR REHEARING, REHEARING EN BANC,

CERTIFICATION OF CONFLICT, CERTIFICATION OF A QUESTION OF

GREAT PUBLIC IMPORTANCE, AND CLARIFICATION

PER CURIAM.

We deny the pending motions for rehearing, rehearing en

banc, certification of conflict, certification of a question of great

public importance, and clarification. On our own motion, we

withdraw our opinion issued December 11, 2024, and substitute

the following in its place. *

Upon reconsideration of Appellants’ notice of voluntary

dismissal filed on March 27, 2023, the Court dismisses this

proceeding. See Fla. R. App. P. 9.350(b); Fla. R. App. 9.330(e)

(noting that the rule authorizing the filing of rehearing and other

post-decision motions “is not meant to limit the court’s inherent

authority to reconsider nonfinal appellate orders and decisions”).

DISMISSED.

ROBERTS and NORDBY, JJ., concur; TANENBAUM, J., concurs in

result only with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

TANENBAUM, J., concurring in result only.

The new majority in this case has decided that it is better to

dismiss based on the appellants’ request (made, by their own

admission, in the face of what counsel gleaned from oral argument

to be an imminent loss), rather than on this court’s assessment of

whether its authority to review administrative action has been

properly invoked. Of course, it is a dismissal just the same—a

refusal to afford relief or to give judicial imprimatur to the

administrative order that was to be reviewed. Because the

disposition has not changed, I concur. But as explained in the

original majority opinion, this court’s appellate judicial power

cannot be invoked by an intervenor to review administrative action

unless that intervenor can demonstrate the action will cause it

cognizable harm. That is, unlike an appeal from a trial court’s final

* Judge Roberts was substituted for an original panel member

in this proceeding after the initial opinion issued.

2

order—which may be taken as a matter of constitutional right—

there necessarily is a standing requirement to obtain judicial

review of administrative action, whether that review is authorized

in the circuit court or the district court of appeal. Below I explain

why the appellants lack standing, warranting dismissal for lack of

jurisdiction.

I

The Florida Constitution is clear that the State’s sovereign

powers must be kept separate unless otherwise provided. See Art.

II, § 3, Fla. Const. (providing that, unless the constitution

otherwise specifies, “[n]o person belonging to one branch shall

exercise any powers appertaining to either of the other branches”).

It seems, though, that the line separating the executive power and

the judicial power sometimes becomes blurred when it comes to

adjudicating disputed facts on which the administration of a

government program depends. Case in point is the administrative

regime that has developed around the Florida legislative plan for

compensating birth-related neurological injuries, which the

appellants vigorously defend. That regime, in operation, threatens

to diminish both the constitutionally vested power of the judicial

branch and an individual’s constitutional right to access Florida’s

courts for the redress of injury. I hope to highlight this danger by

bringing into finer focus the important distinction between the

scope and reach of the judicial power (as exercised by the trial

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

within the executive branch). Before I do, let me set the stage.

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 legislative 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 an adjudication as part of that government

function, but make no mistake: the officer remains a functionary

3

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,

disputed facts as between an agency or officer of the State and its

citizens regarding the administration of public benefits that turn

on those facts.

The judicial power lies on the other side of the divide. This is

the only sovereign power that can conclusively decide disputes over

personal rights between private parties. That power extends to

adjudicating facts the law specifies as necessary to decide such

disputes, and then applying the law to those facts in order to

render a judgment either that permanently alters the parties’ legal

relationship or that 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 being felt

beyond the branch; indeed, being felt 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.

Before the court, 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

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

otherwise noted.

4

specifically have disclaimed any such entitlement. The appellants

in this case—Shands Jacksonville Medical Center, Inc. (“Shands”),

and the University of Florida Board of Trustees (“UF”)—instead

were the intervenors before the ALJ, but also the healthcare

providers the Chavezes presumably would want to sue in a Florida

circuit court.

Shands and UF, though permitted to intervene without

objection, did not have an independent statutory right to invoke

the ALJ’s quasi-judicial authority. There was no government

function to be performed under the Plan for their benefit—no

“claim” to a government benefit established in their favor. 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 and presented

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

Chavezes were entitled to compensation, despite the Chavezes’

disclaimer to the contrary. Shands and UF essentially sought

administrative adjudication of what they otherwise would assert

as an exclusive-remedy affirmative defense in a future medical

malpractice suit brought by the Chavezes—presumably in an

effort to foreclose that suit before it happens using an executive

branch order.

This is problematic—quite troubling, in fact, from a

separation of powers perspective. 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, the court would lack authority to

proceed on such a suit—making such a factual determination one

of jurisdictional import, one that only the circuit court could

determine conclusively for itself. Because Shands and UF do not

have their own claim to a government benefit—one against which

the ALJ’s order might have some binding effect—the only way they

could claim that the ALJ’s order impinges on their rights is by

arguing that the administrative order could have some preclusive

effect on a trial court’s exercise of its vested judicial power.

5

This is what the Florida Constitution plainly forbids. Despite

their being allowed to move the administrative proceeding forward

independently (absent a compensation claim by the Chavezes),

Shands and UF cannot show they have suffered any cognizable

harm from the ALJ’s final order on the matter. If they did not have

a claim to a government benefit to begin with, the ALJ’s order puts

them in no worse position than they were before the Chavezes

initiated the proceeding. This is not an appeal from a trial court’s

final order, so Shands and UF must show they have standing to

seek review of the ALJ’s order. This they cannot do.

II

In recognition of the high costs associated with BRNI 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(1)(d), (2),

766.303(1), (2), Fla. Stat. (2019). Since 2021, a board of directors,

appointed by the State’s Chief Financial Officer and operating as

an association (loosely called “NICA”), is expressly directed to

administer 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

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. (2021).

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(2)(a)4., Fla. Stat. The

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

6

from the Plan and for expenses incurred to administer it. Id. (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)(c), (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 out of or relate to

medical negligence, except in some limited circumstances.

§ 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 Hearings

(“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(4), (5), 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 just noted, this regime is in place for parents and others acting

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

the Florida Statutes. The limited executive authority is the same

regardless, and these titles are used herein interchangeably.

7

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 put this executive-

branch regime into motion, “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

“[d]ocumentation of expenses and services incurred to date which

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

to NICA, and NICA (not the healthcare provider) must respond to

the claim. Id. (2), (4). If NICA determines the claim to be

compensable, it may accept it for compensation, provided the ALJ

assigned to the petition approves that acceptance. Id. (7). 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”—the formal, statutory dispute at all times being between

NICA and the claimant. § 766.304, Fla. Stat.

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.

8

(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. . . .”).

Judicial review of an order of the ALJ determining compensability

of the filed claim 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. 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

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,

396 So. 3d 891, 903 (Fla. 1st DCA 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).

9

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 employed

the nursing and support staff involved in G.C.’s delivery, sought to

intervene. 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 went so far as to essentially disavow any claim

to the Plan’s funds at all. They 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 the ALJ to determine G.C.’s injuries to be “non-

compensable” under the Plan. 4

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

4 NICA later changed its position, agreeing with Shands and

UF that G.C.’s injury was a BRNI that could support

compensability under the Plan.

10

challenge that determination; but intervenors Shands and UF do,

now seeking judicial review in this court.

B

After briefing closed, a previously constituted panel

questioned this court’s jurisdiction to engage in the direct review

requested by Shands and UF. 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)). The

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, Florida Statutes,] 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)).

The parties responded to the court’s invitation to submit

supplemental briefing on the jurisdictional question. 5 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.

5 The question was further addressed on rehearing.

11

§ 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 Shands and UF,

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 the 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: “The administrative

law judge has exclusive jurisdiction to 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 the question whether the supreme court

has given its approval to this outsourcing of judicial power to the

executive branch. I take a moment, then, to address the effect of

the 1998 amendments and the supreme court’s decision in Bennett.

12

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.” McKaughan, 668 So. 2d at 975

(emphasis supplied).

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“[c]ommon

13

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. (emphases 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. Id. 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 766.305(1) is filed alleging that the infant has suffered a

NICA injury.” Id. (first emphasis supplied).

Pulling this all together, the reader can see that 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

14

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. Be careful not to look

past the supreme 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’s 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,

605 So. 2d at 854 (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.

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

15

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. English, 348 So. 2d at

298. 6 This 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

6 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.” (emphases

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 (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)).

16

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.

Id. (emphasis supplied) (internal citations and quotations

omitted).

B

Following this well-established principle, it must be

emphasized that the Legislature 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, so the 1998

amendments should not be read as attempting to do so. 7 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. For instance, the addition to

section 766.301(1)(d) refers to a BRNI claim and the issue of

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. (emphases supplied).

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

but none of them alters 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

7 To be sure, I am not suggesting that any of these 1998

amendments are unconstitutional. I simply favor a close textual

treatment of those amendments within the context of what

otherwise would be constitutionally permissible.

17

infant’s injury,” not whether the ALJ had exclusive jurisdiction to

consider a claim under the Plan. McKaughan, 668 So. 2d at 978

(emphasis supplied). 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 my 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. 8

8 Impelling 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, 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.”).

18

C

As just mentioned in the margin, NICA v. DOAH cannot be

read as recognizing an abrogation of McKaughan by the 1998

amendments. Similarly, Bennett cannot be read as overruling that

decision. 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

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.” McKaughan, 668 So. 2d at

978.

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 Bennett should not be considered as

19

determinative on the jurisdictional issue examined here. See

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”). At a minimum, following McKaughan’s

interpretation of the Plan provisions to delimit the boundaries of

an ALJ’s authority, the reader could 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—by recharacterizing the

proceeding as one to determine whether the Chavezes had a “right

to sue in a court of law.” This likely is how providers generally view

the role of the ALJ in these proceedings—to produce an

administrative order that will have a preclusive effect on the

judicial branch’s exercise of its sovereign authority. To take the

point further, then, even if the ALJ could determine whether

G.C.’s injury was a BRNI—absent a claim for compensation—there

remains the critical question about what effect an ALJ’s order on

a “right to sue” could have outside the executive branch. If there

could be no real effect outside the executive branch, and no effect

on a benefit in favor of Shands and UF within the branch, then

how would this court have the authority to consider the appeal by

intervenors Shands and UF, given the inability to demonstrate

their rights have been adversely affected by the order?

To answer this question—essentially, whether the court has

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

assertion that the injury does not qualify for compensation under

the Plan—one 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,

20

they could block any malpractice suit the Chavezes might bring in

circuit court as a matter of law, without the need for any further

adjudication by the court. 9 Why else would they be appealing? But

this means they in essence are treating the Plan as requiring—or

at least authorizing—the judicial branch to delegate to the

executive branch its exclusive authority to determine

jurisdictional facts related to the providers’ exclusivity defense. I

noted earlier how Shands and UF characterized the interpretation

on which they were relying as “odd.” Odd, indeed. The Plan cannot

be read this way without violating the Florida Constitution’s

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

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 cognizable harm suffered by Shands or UF—again mere

intervenors in the administrative proceeding—and no standing to

support invoking this court’s authority to directly review the ALJ’s

order.

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 beyond the

judicial branch.

A

On the one hand, administrative hearing officers—such as

ALJs and judges of compensation claims 10—are members of the

9 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.

10 See §§ 440.33, 440.45, Fla. Stat.

21

executive branch, not the judicial branch, a distinction 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 administrative officer or body “is not a 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

County 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”). 11

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

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

22

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, 603 U.S. at 109 (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

since the 1800s. See Sec. & Exch. Comm’n v. Jarkesy, 603 U.S. 109,

132 (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

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)).

23

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

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 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.”); 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”);

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

24

(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 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)).

25

The product of this administrative power, moreover, must be

tied to some statutorily authorized government action. As

highlighted above, Article V, section 1 of the Florida Constitution

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 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 (“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, 603

U.S. at 109, 120, 127−30 (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

26

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

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

27

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

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”).

The reader, then, can see that administrative fact-finding that

will be 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.

28

VI

Next is 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

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. 12

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

12 Notably absent is any mention of immunity or some other

competing public right in favor of healthcare providers. This

absence of any public right in the hands of Shands or UF is key to

the conclusion that neither can demonstrate cognizable harm that

would give them standing to take an appeal.

29

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. . . .”). 13 In the event of controverted

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.”). 14

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)

13 The analysis here is unaffected by the fact that Shands and

UF enjoy sovereign immunity as “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

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

is “further act of the Legislature”).

14 As 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 deemed the

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

30

(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

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 Chavezes asserted 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—so no dispute regarding

Plan compensation—to be determined. Missing, then, was a

government function under the Plan on which a fact determination

by the ALJ depended. In fact, the ALJ expressly acknowledged in

his order that the Chavezes were “not seeking compensation under

the Plan.” The ALJ saw the purpose of the proceeding as

determining something beside the public benefit specified under

the Plan. According to his order, the proceeding was “to establish

the [Chavezes’] right to sue in a court of law,” and now NICA,

Shands, and UF bore the burden of proving that the Chavezes did

not have such a right to sue.

31

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). Under

the Plan, any real controversy is going to be between the claimant

and the Plan. The providers do not have a formal, statutory status

in the quasi-judicial proceedings. Meaning, the ALJ cannot utilize

DOAH procedural rules to create a substantive party status

through allowing intervention.

When the dispute between the Chavezes and NICA ended

with the Chavezes’ disclaimer of entitlement to a 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 intervenor] could

participate”); Envtl. Confederation of Sw. Fla., Inc., 857 So. 2d at

210 (explaining 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”).

In this context, an ALJ’s determination whether someone has a

“right to sue”—absent a claim for a public benefit—could have no

effect outside the executive branch.

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.

32

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 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. As intervenors, they merely sought an answer to an idle

question, an answer that would have no effect on their rights one

way or the other.

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”—turned

the proceeding into one, as the ALJ put it, about whether the

Chavezes could sue. Regardless of whether the ALJ had the

authority to move forward with such a determination, 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

33

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

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

cannot possess.

Again, whether G.C.’s injury fit the definition of a BRNI could

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

Chavezes’ 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 explained below, 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.

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

34

individuals”). 15 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[]”). 16

I observed earlier that 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

15 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”).

16 As 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.

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”).

35

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

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. 17 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

17 By “conclusive” or “preclusive,” I mean final and

determinative, requiring no further proof.

36

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 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 this court’s

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

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

37

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 the

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 Plan-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

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

stay.” Stern, 564 U.S. at 462. 18

18 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

38

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

not a BRNI under the Plan as an advisory one. But regardless of

how the order came out (Shands and UF of course arguing it should

have come out the other way), in the absence of a claim for

compensation under the Plan, the order would not be competent to

have any preclusive effect. 19 That is the key point here.

VII

Note that this court’s authority to review administrative

action stems from the Florida Constitution. See 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.”).

Contrast this authority with the district court’s authority to review

final orders of trial courts. See id. § 4(b)(1). Unlike with the latter

authority, there is no constitutional right to a district court’s

review under the former authority. The Legislature generally

confers that right to “adversely affected” parties in a proceeding

under the Administrative Procedure Act (“APA”). See

§ 120.68(1)(a), Fla. Stat. Even though the Plan does not contain a

similar statutory standing provision, I doubt one is necessary.

When the Legislature authorizes a district court’s direct review of

administrative action, that authorization still cannot extend

beyond the judicial power vested in the court by the constitution.

And that power extends no further than to remedy cognizable

harm flowing from an order produced by some judicial or quasi-

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”).

19 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.

39

judicial proceeding. Cf. Gazoombi v. State, 406 So. 3d 371, 378 (Fla.

1st DCA 2025).

Because there is no constitutional right to this type of appeal,

whether the appellant can demonstrate cognizable harm relates to

the appellant’s standing to bring the appeal in the first instance.

This standing requirement is inherent in the grant of authority

under section 4(b)(2) and reflects the difference between a trial

court’s judgment and an administrative order. As explained

earlier, a judgment binds the parties that it names and has

preclusive effect throughout the State without any further action

needing to be taken. By its nature, the judgment permanently

alters the legal rights or relationship between the named parties,

so an adverse effect to support standing to invoke an appellate

court’s judicial power is inherent in the judgment. The

constitutional right to appeal that judgment is an implicit

recognition of this.

Administrative proceedings are different, as are the orders

those proceedings produce. One example: under the APA, who is a

“party” to such a proceeding is much broader than who can be a

party in a judicial proceeding. See, e.g., § 120.52(13)(c), Fla. Stat.

(defining a “party” to include “[a]ny other person, including an

agency staff member, allowed by the agency to intervene or

participate in the proceeding as a party”). There simply are not the

same rigorous requirements governing the invoking of quasi-

judicial power as there are for invoking the true judicial power of

the State—as this case clearly demonstrates. An administrative

order does not have preclusive effect outside the executive branch;

its effects within the branch are governed by statute.

Participation in an administrative proceeding as a party,

then, does not necessarily equate with a final agency order having

some adverse effect on the participant’s substantive right. Surely,

no one would contend the Legislature could authorize a district

court to exercise its judicial power to correct an administrative

order that is purely advisory within the executive branch. One

cannot presume cognizable harm caused a party to an

administrative proceeding, stemming from an administrative

order, the same way the constitution does for trial court final

orders. In the context of administrative appeals to the district

40

courts, standing remains a threshold jurisdictional question that

must be addressed before reaching the merits of any argument. See

Gazoombi, 406 So. 3d at 377–78 (addressing the interplay of a

criminal defendant’s constitutional right to appeal, this court’s

jurisdiction to consider the appeal, and the court’s duty to dispose

of arguments on the merits when no cognizable harm has been

shown); cf. Leonard v. State, 760 So. 2d 114, 119 (Fla. 2000)

(addressing summary affirmances versus dismissals for frivolous

criminal appeals).

The Plan’s sole public benefit is in the hands of the injured

child and the child’s parents. There is no mention of immunity for

providers like the appellants anywhere in the Plan. The Plan gives

providers like Shands and UF no express entitlement to anything.

The only “claim” belongs to the child and the parents—to

compensation under the Plan. Exclusivity of remedy—which the

providers like to call “immunity”—is simply a statutorily driven

legal consequence, in the trial court, of an award of compensation

out of the executive branch (assuming proper notice previously had

been given). In other words, the determination of compensability—

or no compensability—impacts only the child’s and parents’

entitlement to an established public benefit. Only they, and the

Plan, stand to suffer the type of cognizable harm that would

support invoking this court’s judicial power to review the ALJ’s

order.

That leaves for this putative appeal a dispute between Shands

and UF, on the one hand; and the Chavezes, 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. This court’s appellate

judicial power, in turn, cannot run to the ALJ’s order, because

neither Shands nor UF can demonstrate the order is causing them

a cognizable harm that this court could effectively remedy by

setting the order aside. 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

41

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).

* * *

As I mentioned at the opening, the disposition following

rehearing is the same as before—dismissal. So, 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? I respond with a prescient statement from Stern,

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.

42

Id. at 502–03 (internal quotations, citations, and brackets

omitted). 20

Nothing effectively has changed on rehearing—because one

panel of this court cannot alone stop what I have described here:

the slow but steady erosion of the judicial branch’s power in favor

of the perceived convenience of executive adjudications within an

ever-growing administrative state. It will be up to future Plan

claimants to recognize and challenge this diminution. The

claimant, after all, is the one who ultimately stands to lose if it

continues—for when the constitutionally vested judicial power is

diminished and not jealously guarded, a citizen’s rights tend not to

be far behind.

_____________________________

Christine R. Davis of Davis Appeals, PLLC, Tallahassee; for

Appellants.

Stephen Alexander Ecenia and Tana D. Storey of Rutledge Ecenia,

P.A., Tallahassee for Appellee Florida Birth-Related Neurological

Injury Compensation Association; Kara Rockenbach Link; Link &

Rockenbach, P.A., West Palm Beach, for Appellees Jennifer

Chavez and Marlon Chavez.

20 This sentiment—against siphoning away of judicial power

and giving it to the administrative state—is echoed throughout the

Supreme Court’s recent decision in Jarkesy, a decision cited and

quoted at several points above.

43