FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4239

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STATE OF FLORIDA, AGENCY FOR 

HEALTH CARE ADMINISTRATION,

Appellant,

v.

MICHAEL LEE SMATHERS, II,

Appellee.

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On appeal from the Division of Administrative Hearings.

John G. Van Laningham, Judge.

January 22, 2019

PER CURIAM.

 After Michael Lee Smathers obtained a settlement in a 

personal injury lawsuit, the Agency for Health Care 

Administration (AHCA) asserted a lien against the settlement 

proceeds for reimbursement of medical assistance provided to 

Smathers under the Medicaid program. Smathers filed a petition

with the Division of Administrative Hearings (DOAH) to contest 

the amount of the lien. The administrative law judge (ALJ)

concluded that DOAH lacked jurisdiction and entered a final order 

dismissing the petition.

AHCA appealed, arguing that the ALJ erred in concluding 

that he was required to dismiss the petition for lack of jurisdiction. 
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Because it appeared that AHCA did not have standing to appeal, 

and because Smathers did not cross-appeal, we ordered the parties 

to show cause why the appeal should not be dismissed.

Both parties conceded that the final order did not adversely 

affect AHCA. Because the final order was wholly favorable to 

AHCA, the agency lacked standing and we must dismiss the 

appeal. See § 120.68(1)(a), Fla. Stat. (2018); Fla. Dep’t of Envtl. 

Prot. v. Fla. Reemployment Assistance Appeals Comm’n, 123 So. 3d 

1154, 1154-55 (Fla. 1st DCA 2012) (dismissing an appeal where 

the order on appeal was wholly favorable to the state agency 

seeking review of the order); Dep’t of Health v. Fresenius Med. Care 

Holdings, Inc., 935 So. 2d 636, 637 (Fla. 1st DCA 2006) (“An appeal 

of a wholly favorable judgment must be dismissed.”); Fla. Comm’n 

on Hurricane Loss Projection Methodology v. Dep’t of Ins., 716 So. 

2d 345, 346 (Fla. 1st DCA 1998) (“We decline to examine an 

administrative law judge’s rationale for a ruling at the behest of 

the party in whose favor the administrative law judge ruled.”).

DISMISSED.

ROWE and WINOKUR, JJ., concur; WETHERELL, J., concurs with 

opinion.

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Not final until disposition of any timely and 

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

9.331.

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WETHERELL, J., concurring.

 I fully concur in the dismissal of this appeal. I write 

separately to make three points.

 First, although AHCA was not adversely affected by the final 

order because the effect of the order was to allow AHCA to recover 

the full amount of its lien, Smathers was adversely affected by the 

order and could have appealed it. But, inexplicably, he failed to do 

so. By not appealing the final order (or filing a notice of joinder or 
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cross-appeal after AHCA filed its appeal), Smathers waived his 

opportunity to obtain a reversal of the order and, ultimately, a

reduction in the lien upon remand. Smathers’ suggestion1 that he 

can now obtain relief from the lien in the circuit court is meritless 

because a party who does not exhaust all available avenues to 

remedy an erroneous administrative decision cannot thereafter 

obtain relief in a judicial forum. See Robinson v. Dep't of Health, 

89 So. 3d 1079, 1081 (Fla. 1st DCA 2012) (“As a general rule, 

exhaustion of administrative remedies includes pursuing an 

appeal from an administrative ruling where a method of appeal is 

available.”).

Second, although there is no question that ALJs have the 

authority (if not the duty) to independently consider whether they 

have jurisdiction over a dispute, that authority does not permit the 

ALJ to ignore a statute that explicitly grants DOAH jurisdiction 

over a dispute—like section 409.910(17)(b), Florida Statutes, 

does—simply because, in the ALJ’s view, the statute is 

“inoperative,” ineffectual, or otherwise invalid. See

Communications Workers of America, Local 3170 v. City of 

Gainesville, 697 So. 2d 167, 170 (Fla. 1st DCA 1997) (“The 

Administrative Procedure Act does not purport to confer authority 

 1 In his reply to AHCA’s response to our order to show cause 

why AHCA had standing to appeal the final order, Smathers did 

not argue that AHCA had standing. Rather, he suggested that 

AHCA “may come to a different conclusion regarding whether it is 

aggrieved by the ALJ’s dismissal in this case” because the 

dismissal “eliminates the rationale relied upon by the circuit court 

for the Eleventh Circuit in Miami-Dade County to decline 

Smathers[’] request to adjudicate AHCA’s lien.” Smathers 

continued:

Thus, the circuit court's order declining to exercise its 

jurisdiction can be vacated, potentially pursuant to 

Florida Rule of Civil Procedure 1.540(b)(5) if necessary, 

so that the circuit court can exercise its traditional role 

to adjust AHCA’s lien. As a court of general jurisdiction, 

in the absence of any alternative mandatory forum, the 

circuit court can and should decide the issues regarding 

adjudication of AHCA’s lien on Smathers’ proceeds.
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on administrative law judges or other executive branch officers to 

invalidate statutes on constitutional or any other grounds.”). 

Indeed, so long as the dispute falls within the scope of the statute 

and all jurisdictional prerequisites have been met (e.g., timely-filed 

by a person with standing), the ALJ is duty-bound to adjudicate 

the merits of the dispute.

Third, our dismissal of this appeal should not be viewed as an 

approval of the ALJ’s novel conclusion that DOAH lacked 

jurisdiction to adjudicate the merits of Smathers’ petition. This 

conclusion was based on the ALJ’s view that the federal district 

court’s decision in Gallardo v. Dudek2 “substantially undermines 

the superficially available administrative remedy” in section 

409.910(17) to the point that it leaves DOAH with no remedy to 

offer to petitioners such as Smathers, but that conclusion finds no 

support in the court’s decision. Indeed, on rehearing, the court 

expressly recognized that DOAH would continue to have a role in 

determining the proper amount of AHCA’s lien. See 2017 WL 

3081816, at **8-9. Moreover, even if the ALJ’s view about the 

unavailability of a remedy was correct, that still would not have 

justified dismissal of the petition for lack of jurisdiction; at most, 

it would have justified denial of the petition on the merits.

With these additional observations, I join the majority 

opinion.

 2 263 F. Supp. 3d 1247 (N.D. Fla. 2017) (Walker, J.) (holding

that section 409.910, Florida Statutes, is preempted by the federal 

Medicaid Act insofar as the statute (1) allows AHCA to seek 

reimbursement of its past Medicaid payments from the portion of 

the Medicaid recipient’s tort recovery that represents future 

medical expenses, and (2) requires proof by clear and convincing 

evidence when the recipient challenges the amount of AHCA’s 

statutorily-calculated lien), clarified on rehearing sub nom, 

Gallardo v. Senior, 2017 WL 3081816 (N.D. Fla. July 18, 2017), 

appeal filed, No. 17-13693 (11th Cir. Aug. 17, 2017). Accord 

Giraldo v. Agency for Health Care Admin., 248 So. 3d 53, 56 (Fla. 

2018) (holding that “federal law allows AHCA to lien only the past 

medical expenses portion of a Medicaid beneficiary's third-party 

tort recovery to satisfy its Medicaid lien”).
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Ashley Brooke Moody, Attorney General, and Elizabeth Teegen, 

Assistant Attorney General, Tallahassee, for Appellant.

John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, for 

Appellee.