USA v. Florida Birth-Related Neurological Injury Compensation Association

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13448

____________________

UNITED STATES OF AMERICA,

VERONICA N. ARVEN, ESTATE OF THEODORE ARVEN, III

Plaintiffs-Appellees,

versus

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION,

THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY

COMPENSATION PLAN,

Defendants-Appellants.

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2 Opinion of the Court 20-13448

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:19-cv-61053-WPD

____________________

Before WILSON, ROSENBAUM, Circuit Judges, and COVINGTON,*

District Judge.

PER CURIAM:

In 1988, the Florida legislature found that obstetricians were

“high-risk medical specialists for whom malpractice insurance pre-

miums are very costly.” Fla. Stat. § 766.301(1)(a). So it created the

Florida Birth-Related Neurological Injury Compensation Associa-

tion (“Association”), which administers the Florida Birth-Related

Neurological Injury Compensation Plan (“Plan”) (together,

“NICA”). With NICA, the legislature established a no-fault system

of compensation “for a limited class of catastrophic injuries that re-

sult in unusually high costs for custodial care and rehabilitation.”

Id. § 766.301(2).

* The Honorable Virginia Covington, United States District Judge for the Mid-

dle District of Florida, sitting by designation.

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20-13448 Opinion of the Court 3

The Relators, Roni and Ted Arven, 1 sued NICA under the

False Claims Act (“FCA”) alleging that NICA violated federal law

by considering itself, rather than Medicaid, the payor of last resort.

As a result of NICA’s treatment of itself as the payor of last resort,

the Arvens asserted, Medicaid wound up having to pay more for

claims than it otherwise would have. NICA moved to dismiss. It

argued that it was not a “person” under the FCA and that it was

entitled to Eleventh Amendment immunity because NICA is an

arm of the state of Florida. The district court denied the motion,

concluding that NICA is not an arm of the state. We agree and

now affirm.

BACKGROUND

A. The Plan

Here’s how NICA works: obstetricians in Florida may

choose to belong to the Plan, which shields them from medical-

malpractice liability in covered circumstances. See Fla. Stat. §

766.314(4)(c). If they do, they pay to the Plan an initial “assess-

ment” and then an annual assessment every year after that. Id. §

766.314(4)(c), (5)(a). In addition, most licensed physicians in Flor-

ida—whether obstetricians or not—must pay a base assessment

1 Ted Arven died shortly before the Arvens filed their original complaint, so

his estate is a plaintiff in the litigation.

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4 Opinion of the Court 20-13448

and then an annual assessment every year thereafter. 2 Id. §

766.314(4)(b), (5)(a). And finally, licensed hospitals must pay as-

sessments per infant delivered in the hospital. Id. § 766.314(4)(a).

These assessments (and income generated from investing them)

primarily fund the Plan.

If a baby that a participating obstetrician delivers sustains a

“birth-related neurological injury,” 3 then the baby’s parents may

file with NICA a claim for compensation. Id. §§ 766.302(3);

766.305(1). The claim is exclusive of all other tort remedies. 4 An

administrative law judge (“ALJ”) determines whether compensa-

tion from the Plan is warranted. Id. § 766.304. Because entitlement

to compensation is on a no-fault basis, the claimant must show only

that (1) the infant sustained a birth-related neurological injury, and

2 Certain retired, government, and instructional and training physicians are

exempt. See Fla. Stat. § 766.314(4)(b)4.

3 A “birth-related neurological injury” is an “injury to the brain or spinal cord

of a live infant weighing at least 2,500 grams for a single gestation or, in the

case of a multiple gestation, a live infant weighing at least 2,000 grams at birth

caused by oxygen deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery period in a hos-

pital, which renders the infant permanently and substantially mentally and

physically impaired. This definition shall apply to live births only and shall not

include disability or death caused by genetic or congenital abnormality.” Fla.

Stat. § 766.302(2).

4 The exception to this is “where there is clear and convincing evidence of bad

faith or malicious purpose or willful and wanton disregard of human rights,

safety, or property.” Fla. Stat. § 766.303(2). In that case, the parents may sue

as long as they do so before and instead of filing a claim with NICA. Id.

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(2) obstetrical services were delivered at birth by a physician partic-

ipating in the Plan. Id. § 766.309(1)(a)–(b). Compensation includes

“[a]ctual expenses for medically necessary and reasonable medical

and hospital, habilitative and training, family residential or custo-

dial care, professional residential, and custodial care and service, for

medically necessary drugs, special equipment, and facilities, and for

related travel.” Id. § 766.31(1)(a).

When it created the Plan, the Florida legislature appropri-

ated $20 million from the Insurance Commissioner’s Regulatory

Trust Fund to fund the Plan. 1988 Fla. Sess. Law Serv. 88-1. Since

then, the Plan has been funded exclusively through the assessments

and investment income. The Plan is the actual pool of money that

pays claims. See Fla. Stat. § 766.302(8).

The Association, which administers the Plan, is “not a state

agency, board, or commission,” but may use the state seal. Id. §§

766.302(1), 766.315(1)(a). It consists of a board of seven directors.

Id. § 766.315. Florida’s Chief Financial Officer appoints the direc-

tors to staggered three-year terms. 5 Id. § 766.315(1)(b)–(c). The

Governor and the CFO both have the power to remove a director

“for misconduct, malfeasance, misfeasance, or neglect of duty in

office” only. Id. § 766.315(2)(c). Meetings of the Association are

subject to the Florida public-meetings laws, and the Office of

5 Florida’s Chief Financial Officer (CFO) is a constitutional officer elected in statewide

elections. Fla. Const. art IV, § 4.

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Insurance Regulation or the Joint Legislative Auditing Committee

may audit the Plan at any time. See id. § 766.315(5). 6

The Association may invest Plan funds, subject to certain

limitations. Id. § 766.315(5)(f). At the end of fiscal year 2019, the

Plan had about $1.346 billion in total assets, and its net position ac-

counting for liabilities was about $393 million. If the Plan funds

ever become “insufficient to maintain the plan on an actuarily

sound basis,” the Insurance Regulatory Trust Fund may transfer an

additional $20 million to the Association. Id. § 766.314(5)(b). All

“[f]unds held on behalf of the plan are funds of the State of Florida.”

Id. § 766.315(5)(f). A statutory provision waives sovereign immun-

ity for the Association “solely to the extent necessary to assure pay-

ment of compensation.” Id. § 766.303(3).

B. The Lawsuit

The Arvens are the parents of Cody Arven, a child who par-

ticipated in the Virginia Birth-Related Neurological Injury Com-

pensation Program, which was created shortly before Florida’s

NICA was created. The Arvens brought a qui tam against the Vir-

ginia program in 2015 after they discovered that that program

6 The CFO’s power to remove and the open-meetings-Act requirements were re-

cently added, through legislation signed into law June 21, 2021. The Arvens argue

that these changes should not be considered when determining whether NICA is an

arm of the state because they occurred after the actions at issue here. As we explain

below, even considering the changes, we conclude that NICA is not an arm of the

state, so we need not resolve the dispute over whether the changes should be consid-

ered.

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required its participants to submit healthcare claims to Medicaid

before submitting claims to the Virginia program. In 2018, Virginia

settled with the United States for about $20 million, of which the

Arvens received about $4 million.

Then, the Arvens brought the same suit against NICA in

April 2019. Their amended complaint alleges that NICA, like the

Virginia program, violated federal law by considering itself, rather

than Medicaid, the payor of last resort. The United States opted

not to intervene.

NICA moved to dismiss, arguing, among other things, that

NICA is an arm of the state, so it is not a “person” for FCA purposes

and is entitled to Eleventh Amendment immunity. Despite not in-

tervening, the government filed a “statement of interest” arguing

that NICA is not an arm of the state of Florida. After considering

full briefing on the motion and the government’s statement, the

district court denied the motion to dismiss. NICA appealed under

the collateral-order doctrine, which recognizes that the denial of a

claim of Eleventh Amendment immunity is immediately appeala-

ble. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 144–45 (1993). 7

7 The parties originally disputed on appeal whether the district court’s order

denied immunity to both the Plan and Association, or just the Association. In

their brief, the Arvens have now changed their position on jurisdiction and say

they “do not object to construing any record ambiguity in favor of the conclu-

sion that the district court denied immunity as to the Plan.” In any event, the

Court may consider the Plan’s immunity even if the Plan did not preserve it

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STANDARD OF REVIEW

Whether an entity constitutes an arm of the state under the

Eleventh Amendment immunity analysis is a question of law sub-

ject to de novo review. U.S. ex rel. Lesinski v. S. Fla. Water Mgmt.

Dist., 739 F.3d 598, 602 (11th Cir. 2014).

DISCUSSION

As relevant here, the FCA subjects to liability “[a]ny person”

who, among other things, “knowingly presents, or causes to be

presented, to an officer or employee of the United States Govern-

ment . . . a false or fraudulent claim for payment or approval.” 31

U.S.C. § 3729(a). So the Association and the Plan can be liable un-

der the FCA only if they qualify as “persons.”

The Supreme Court has held that states and agencies acting

as arms of the state are not “persons” for purposes of FCA qui tam

liability. See Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529

U.S. 765, 788 (2000). We have further clarified that, because the

scope of each inquiry is the same, “courts should employ the Elev-

enth Amendment arm of the state analysis to determine whether a

in the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1332 (11th Cir. 2004) (principle that Court will not entertain new arguments

on appeal is not jurisdictional). In addition, the doctrine of pendant appellate

jurisdiction allows us to consider otherwise-unreviewable questions that are

inextricably intertwined with an issue that is reviewable. See Summit Med.

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1335 (11th Cir. 1999). For these reasons,

we review the Eleventh Amendment immunity and “person” status under the

FCA for both the Association and the Plan.

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state entity is a ‘person’ subject to FCA liability.” Lesinski, 739 F.3d

at 602.

In the Eleventh Circuit, to determine whether an entity is an

arm of the state, we use the Manders factors. See Manders v. Lee,

338 F.3d 1304 (11th Cir. 2003). Those factors include the following:

(1) how state law defines the entity; (2) what degree of control the

State maintains over the entity; (3) where the entity derives its

funds; and (4) who is responsible for judgments against the entity.

Lesinski, 739 F.3d at 602. We apply each factor in turn.

I. How Florida Law Defines NICA

Whether an entity is an arm of the state ultimately presents

a question of federal law. But we determine that answer “by care-

fully reviewing how the agency is defined by state law.” Versiglio

v. Bd. of Dental Exam’rs of Ala., 686 F.3d 1290, 1291 (11th Cir.

2012). “The state law provides assistance in ascertaining whether

the state intended to create an entity comparable to a county or

municipality or one designed to take advantage of the state’s Elev-

enth Amendment immunity.” Tuveson v. Fla. Governor’s Council

on Indian Affs., Inc., 734 F.2d 730, 732 (11th Cir. 1984).

In ascertaining how the state treats the Association and the

Plan, we look to both state-court precedent and legislative clues.

We begin with state-court precedent.

In Coy v. Florida Birth-Related Neurological Injury Com-

pensation Plan, 595 So. 2d 943 (Fla. 1992), a group of non-obstetri-

cian physicians challenged the annual assessment they must pay to

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NICA. The Florida Supreme Court characterized NICA as “a gov-

ernmental enterprise, i.e., a state-created system for compensating

certain individuals for certain types of birth-related injuries.” Coy,

595 So. 2d at 945. It then held that the assessments qualified as

“taxes” under Florida law, but that the taxes were valid. Id.; id. at

948. And in Samples v. Florida Birth-Related Neurological Injury

Compensation Association, 114 So. 3d 912, 917 (Fla. 2013), the Flor-

ida Supreme Court, in passing, called NICA a “state program”

while upholding an award maximum. These cases tend to support

the notion that Florida courts treat NICA as an arm of the state.

Next, we consider any insight the Florida legislature may

have provided. The Florida legislature enacted a provision stating

that “[s]overeign immunity is hereby waived on behalf of the [As-

sociation] solely to the extent necessary to assure payment of com-

pensation [by the Plan].” Fla. Stat. § 766.303(3).

NICA argues that this shows that the Florida legislature be-

lieved it was creating a state entity that had sovereign immunity,

or else there would have been nothing to waive. In response, the

Arvens assert that NICA conflates sovereign immunity from suit in

state court with Eleventh Amendment immunity from suit in fed-

eral court. The Arvens, of course, are right that “the Eleventh

Amendment deals only with federal jurisdiction to hear suits

against the state, not with the state’s immunity from suit in any

forum.” Hufford v. Rodgers, 912 F.2d 1338, 1340–41 (11th Cir.

1990) (alteration omitted). But that does not mean the state statute

has no significance.

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Here, though, the Florida legislature sent some mixed sig-

nals. On the one hand, the statute suggests the Florida legislature

may have intended to create an arm of the state when it devised

NICA. This logic especially makes sense when we remember that

we’re using the Manders factors to determine whether NICA is a

“person” under the FCA, not necessarily whether NICA is entitled

to Eleventh Amendment immunity.

But on the other hand, the Florida legislature characterized

NICA as “not a state agency, board, or commission.” Fla. Stat. §

766.315(1)(a). This language tends to support the idea that Florida

doesn’t consider NICA an arm of the state.

Nevertheless, there’s no bright-line rule that an entity must

be characterized as an agency, board, or commission to be an arm

of the state. See, e.g., Lesinski, 739 F.3d at 606 (holding that the

South Florida Water Management District was an arm of the state).

In Florida’s False Claims Act, for example, “State” is defined as “the

government of the state or any department, division, bureau, com-

mission, regional planning agency, board, district, authority,

agency, or other instrumentality of the state.” Fla. Stat. §

68.082(1)(f).

On balance, we conclude this factor supports finding that

NICA is an arm of the state.

II. The Degree of Control Florida Maintains Over NICA

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Next, we review the degree of control Florida maintains

over NICA. That is, we consider whether the legislature retained

authority over NICA or whether it is instead more autonomous.

NICA argues that Florida exercises substantial control over

NICA for two primary reasons: (1) Florida’s CFO appoints the

members of the Association, and (2) Florida statutes carefully pre-

scribe all NICA’s operational aspects. We disagree.

In Lesinski, we found that state control of the Water District

was “pervasive and substantial” where several conditions existed:

the District was governed by a board whose members and Execu-

tive Director were appointed by the Governor and approved by the

Florida Senate; the Governor was empowered to remove any of-

ficer of the District; the District’s budget had to be submitted to the

Governor, Senate President, Speaker of the House, the Secretary

of the Department of Environmental Protection, and various legis-

lative committees; the District’s budget was subject to approval by

the Governor; and the Florida Land and Water Adjudicatory Com-

mission had the exclusive authority to review the District’s rules.

Lesinski, 739 F.3d at 603.

NICA has some of these qualities, but it lacks others. Its

board is appointed by Florida’s CFO, who is a constitutional officer

elected state-wide, like the Governor. But Florida’s Senate does

not have the power to approve (or disapprove) NICA’s board

members. And the Governor and CFO can remove board directors

only “for misconduct, malfeasance, misfeasance, or neglect of duty

in office,” Fla. Stat. § 766.315(2)(c)—in other words, only “for

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cause.” That is a significant limitation on the Governor’s and

CFO’s removal power. Cf. Seila Law LLC v. Consumer Fin. Prot.

Bureau, 140 S. Ct. 2183, 2198 (2020) (discussing importance of Pres-

ident’s unfettered removal powers).

As for the review of NICA’s rules, NICA doesn’t make any

rules for anyone to review, but it is required to annually submit

audited financials to the Florida Joint Legislative Auditing Commit-

tee and the Office of Insurance Regulation, both of which may au-

dit NICA whenever they wish. Fla. Stat. § 766.315(5)(e). And since

November 2021, NICA has been required to annually submit a re-

port with information about claimants and compensation to the

Governor, President of the Senate, Speaker of the House, and CFO.

Id. § 766.315(8). But unlike with the Water District in Lesinski,

NICA doesn’t have to get its budget approved by anyone.

And NICA is greatly autonomous when it comes to its day-

to-day operations of administering claims. The board of directors

of NICA has the following enumerated powers:

(a) Administer the plan.

(b) Administer the funds collected on behalf of the

plan.

(c) Administer the payment of claims on behalf of the

plan.

(d) Direct the investment and reinvestment of any

surplus funds over losses and expenses, if any

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investment income generated thereby remains cred-

ited to the plan.

(e) Reinsure the risks of the plan in whole or in part.

(f) Sue and be sued, and appear and defend, in all ac-

tions and proceedings in its name to the same extent

as a natural person.

(g) Have and exercise all powers necessary or conven-

ient to effect any or all of the purposes for which the

plan is created.

(h) Enter into such contracts as are necessary or

proper to administer the plan.

(i) Employ or retain such persons as are necessary to

perform the administrative and financial transactions

and responsibilities of the plan and to perform other

necessary and proper functions not prohibited by law.

(j) Take such legal action as may be necessary to avoid

payment of improper claims.

(k) Indemnify any employee, agent, member of the

board of directors or alternate thereof, or person act-

ing on behalf of the plan in an official capacity . . . .

Id. § 766.315(4)(a)–(k). It also chooses how to invest the Plan’s

funds, subject to statutory limitations. Id. § 766.315(5)(f).

The legislature always has to delegate some authority and

power to agencies for them to work. But when the legislature does

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so to such a significant degree as it has here, that militates in favor

of the conclusion that the entity is autonomous. So this factor

weighs against finding that NICA is an arm of the state.

III. Where NICA derives its funds

Next, the Court must determine “the source of [NICA’s]

funding.” Manders, 338 F.3d at 1344. When it was created, NICA

received an initial $20 million appropriation and has since been

funded exclusively by assessments and investment income. The

legislature set aside an additional $20 million reserve in the state

Insurance Regulatory Trust Fund to be used if NICA ever becomes

not actuarily sound. Fla. Stat. § 766.314(5)(b). And as we have

noted, Florida statutes provide that “[f]unds held on behalf of the

plan are funds of the State of Florida.” Id. § 766.315(5)(f).

NICA argues that it is funded “exclusively by the State.” It

cites to Williams v. District Board of Trustees of Edison Commu-

nity College, Florida, 421 F.3d 1190, 1194 (11th Cir. 2005), to show

that state funding points to a finding that an entity is an arm of the

state. [Id.]. While that proposition is no doubt true, the Williams

Court focused more on the fact that the state had to approve the

budget of the community college there in determining that this fac-

tor weighed in favor of finding that it was an arm of the state. 421

F.3d at 1194. It acknowledged, “Although [the community college]

is not exclusively funded by the state, state approval of institutional

budgets evidences state control.” Id. But as we have noted, NICA’s

budget is not subject to state approval.

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Next, we consider the role the assessments play in funding

NICA—both the mandatory ones that all physicians must pay and

the voluntary ones that obstetricians pay to participate in the Plan.

In Coy, the Florida Supreme Court considered whether the man-

datory assessments were valid and decided they were valid “taxes”

under state law. See Coy, 595 So. 2d at 945. The court did not

specifically consider the nature of the voluntary assessments. But

we note that all the assessments are paid directly to NICA, never

passing though the State treasury. Fla. Stat. § 766.314(3).

NICA argues that the rationale of Coy applies to both the

mandatory and voluntary assessments; they are all “taxes,” so

NICA is state-funded. We disagree. In holding that the mandatory

assessments were taxes, the Coy court explained,

Initially, we find that the [mandatory] $250 assess-

ment in this case constitutes a “tax” within the mean-

ing of Florida law. In the past, we have defined a tax

as an enforced pecuniary burden laid on individuals

or property to support government. . . . Here, the

$250 assessment is levied upon physicians to support

a governmental enterprise, i.e., a state-created system

for compensating certain individuals for certain types

of birth-related injuries. The assessment is collected

under authority of state law, and the Plan can sue to

enforce the assessment. . . . It thus is a tax and is sub-

ject to the requirements of law applicable to taxes.

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595 So. 2d at 945 (emphases added). Both assessments are of course

“collected under authority of state law,” but the voluntary assess-

ments are not “enforced” or “levied.” They are voluntary for ob-

stetricians who would prefer the no-fault liability system to regular

tort liability. If an obstetrician doesn’t want to pay the assessment

and participate in NICA, she isn’t obligated to do so. So the Coy

court’s reasoning for characterizing the mandatory payments as

“taxes” does not apply to the obstetricians’ payments. Nor is it

even consistent with the common sense understanding of “taxes”

as mandatory. Rather, as the district court found, the voluntary

assessments are more like insurance premiums that the obstetri-

cians would otherwise pay to a malpractice insurer than they are

like taxes. Providing insurance is traditionally a private enterprise,

so the government’s decision to wade into that field suggests that

NICA does not act as an arm of the state.

In any event, NICA is funded far more by its investment in-

come than by assessments. In 2019, NICA earned more than $103

million from its investments, which was almost 4 times its revenue

from assessments. The Arvens argue that this makes this factor

weigh against finding that NICA is an arm of the state. NICA re-

sponds that the initial appropriation and the assessments are state

funds, and they generated the investment income, so the invest-

ment income shouldn’t weigh against an arm-of-the-state finding.

We are not persuaded. In Hess v. Port Authority Trans-

Hudson Corp., 513 U.S. 30 (1994), the Supreme Court considered

whether the Port Authority Trans-Hudson Corporation was an

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arm of the state and enjoyed Eleventh Amendment immunity. It

concluded it did not. In reaching this decision, the Court noted

that the Port Authority had once received appropriations from the

states but hadn’t for a long time because it was so well-funded by

its investment income, tolls, and fees. Indeed, the Court observed

that the Port Authority was “[c]onceived as a fiscally independent

entity financed predominantly by private funds, . . . [so] the Au-

thority generate[d] its own revenues, and for decades ha[d] re-

ceived no money from the States.” Hess, 513 U.S. at 45. We also

emphasized this point in Manders, when we distinguished Hess.

We explained that the Port Authority “was financially independ-

ent, with funds from private investors, tolls, fees, and investment

income.” Manders, 338 F.3d at 1325 (citing Hess, 513 U.S. at 36,

49–50).

To be sure, NICA differs from the Port Authority in that, at

one point, the Port Authority (unlike NICA) had also been funded

by private investors. But that’s not what the Supreme Court found

significant. Rather, when the Supreme Court concluded that the

Port Authority was not an arm of the state, the Court emphasized

that the Port Authority “generate[d] its own revenues” and “for

decades ha[d] received no money from the States,” Hess, 513 U.S.

at 45. As we have explained, NICA shares these qualities.

So on balance, this factor weighs against a finding that NICA

is an arm of the state. NICA’s budget is not subject to approval by

the state (like the budget in Williams, 421 F.3d at 1194), the volun-

tary assessments NICA collects are more like malpractice insurance

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premiums (which are traditionally collected by private insurance

companies) than like taxes, and NICA’s primary source of funding

comes from investment income rather than state funds (like for the

Port Authority in Hess, 513 U.S. at 45).

IV. Who Is Responsible for Judgments Against NICA?

Last, and “most important,” Freyre v. Chronister, 910 F.3d

1371, 1384 (11th Cir. 2018), we must determine whether Florida’s

state treasury would have to pay a judgment against NICA. See

Manders, 338 F.3d at 1324–27.

NICA argues that, because its funds are “funds of the State

of Florida,” Fla. Stat. § 766.315(5)(f), any judgment against NICA is

necessarily against the state. It also argues that if “judgments

against NICA become large enough, the State would be able to pre-

serve the Plan’s actuarial soundness only by raising the taxes which

fund the Plan or appropriating general treasury funds.” In support,

NICA relies on Lesinski. There, we held that a judgment against

the South Florida Water Management District implicated the

state’s treasury because “[s]hould judgment creditors deplete the

District’s funds to the point that it can no longer effectively func-

tion, the State would ultimately have to choose between increasing

its appropriation to make up the shortfall or shirking its constitu-

tionally mandated duty to ‘conserve and protect [the State’s] natu-

ral resources and scenic beauty.’” 739 F.3d at 605.

We do not agree with NICA’s conclusion. For starters, the

mere fact that the legislature called NICA’s funds the state’s funds

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in a statute can’t circumvent the Manders-factors analysis if a func-

tional analysis of the reality shows that the state is not responsible

for judgments against NICA. So the language from the Florida stat-

ute isn’t dispositive.

And here, NICA’s argument that the state treasury would

have to step in if the judgment is large enough is too speculative.

That contention ignores NICA’s very solvent position. Indeed, it’s

unlikely that the judgments would ever be high enough to drain all

NICA’s funds. But perhaps even more significantly, we don’t even

know whether the state would pay the judgments if NICA didn’t

have enough money. Based on the information submitted by the

parties, it’s just as likely that the legislature would let NICA go in-

solvent and abandon the whole program. Unlike in Lesinski, the

state’s under no constitutional duty to operate NICA.

Other circuits have also rejected reasoning much like

NICA’s. See Fresenius Med. Care Cardiovascular Res., Inc. v. P.R.

& Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 75 (1st Cir.

2003) (“In the end, [the entity’s] argument is simply that a judg-

ment would deplete its operating funds, that the Commonwealth

might choose to rescue it, and that this would indirectly deplete the

state treasury. We rejected this very argument [previously], and

do so here.”); Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807, 819 (3d

Cir. 1991) (“discretionary subsidies [by the state] committed in re-

action to a judgment, however, would not necessarily transform

the recipients into alter egos of the state”).

USCA11 Case: 20-13448 Date Filed: 04/21/2022 Page: 21 of 21

20-13448 Opinion of the Court 21

In short, this factor weighs against finding that NICA is an

arm of the state.

CONCLUSION

In sum, one Manders factor points towards finding that

NICA is an arm of the state and three factors—including the most

important one—weigh against that conclusion. We therefore hold

that NICA has failed to show that it is an arm of the state entitled

to Eleventh Amendment immunity and not a “person” under the

FCA, and we affirm the decision of the district court.

AFFIRMED.