USCA11 Case: 17-13693     Date Filed: 10/20/2020    Page: 1 of 7



                                                                      [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT


                                 No. 17-13693


                   D.C. Docket No. 4:16-cv-00116-MW-CAS

GIANINNA GALLARDO,
an incapacitated person,
by and through her parents and co-guardians
Pilar Vassallo and Walter Gallardo,
                                                              Plaintiff - Appellee,

                                     versus

ELIZABETH DUDEK,
in her official capacity as Secretary of the
Florida Agency for Health Care Administration,
                                                                        Defendant,

MARY MAYHEW,
in her official capacity as Secretary of the
Florida Agency for Health Care Administration,
                                                            Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Northern District of Florida


Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

BRANCH, Circuit Judge:
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         No judge in regular active service on the Court having requested that the

Court be polled on rehearing en banc, the Petition for Rehearing En Banc is

DENIED. The Petition for Rehearing En Banc is also treated as a Petition for

Rehearing before the panel and is DENIED.1

         Although it is unfortunate that our interpretation of federal law conflicts with

the Florida Supreme Court’s interpretation of federal law and presents a forum

shopping possibility, we cannot for that reason endorse an incorrect interpretation

of federal law. Our system of federalism allows for parallel state and federal

interpretations of federal law. See Casale v. Tillman, 

, 1260 (11th

Cir. 2009) (per curiam). Moreover, we are not bound by a state court’s

interpretation of federal law. See Venn v. St. Paul Fire & Marine Ins. Co., 

, 1064 (11th Cir. 1996); See also, e.g., RAR, Inc. v. Turner Diesel, Ltd., 

, 1276 (7th Cir. 1997) (“Although state court precedent is binding upon

us regarding issues of state law, it is only persuasive authority on matters of federal

law.”). Accordingly, we deny Gallardo’s petition for panel rehearing.




1
    Judge Wilson would grant the petition for panel rehearing.
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WILSON, Circuit Judge, dissenting from denial of rehearing by the panel:

      Medicaid recipients in Florida have a forum-shopping problem. In 2018, a

unanimous Florida Supreme Court held that the Medicaid Act partially preempts

Florida Statutes § 409.910(17)(b). See Giraldo v. Agency for Health Care Admin.,

(Fla. 2018). That statute lets Florida siphon money from the part of

a recipient’s tort recovery that represents payment for the recipient’s past and

future medical care. But six justices of the Florida Supreme Court held that the

plain text of the Medicaid Act limits Florida to just the part of the recovery that

represents payment for past medical care.

One justice held that the

Supreme Court of the United States specifically decided this issue in Arkansas

Department of Health & Human Services v. Ahlborn, 

(2006).

(Polston, J., concurring specially in part and dissenting in part).

      Two years later, this court held just the opposite. See Gallardo by &

through Vassallo v. Dudek, 

, 1171 (11th Cir. 2020). A fractured

panel dismissed the Florida Supreme Court’s construction of the Medicaid Act as a

“mistake in logic.”

It ruled that the Medicaid Act lets Florida recover

from the part of the recipient’s recovery that represents payment for both past and

future medical care.

dissented for three reasons. For one, the plain text of the Medicaid Act

limits Florida to just the part of the recovery representing payment for the care that


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Florida fronted first—the recipient’s past medical care.

(Wilson, J.,

concurring in part and dissenting in part). For another, the Supreme Court decided

this issue in Ahlborn, holding that the state there could recover from only the part

of the recovery representing payment for past medical care.

And

for a third, almost every court to consider this issue has rejected the majority’s

view, adopting instead the Florida Supreme Court’s position that the state can

recover from only the past-medical-care part of the recipient’s tort recovery.

(citing E.M.A. ex rel. Plyler v. Cansler, 

, 307, 312 (4th Cir.

2012), aff’d sub nom. on other grounds Wos v. E.M.A. ex rel. Johnson, 

(2013); McKinney ex rel. Gage v. Phila. Hous. Auth., 

, at *9

(E.D. Pa. Aug. 24, 2010); Price v. Wolford, 

, at *2 (W.D. Okla.

Oct. 23, 2008); Sw. Fiduciary, Inc. v. Ariz. Health Care Cost Containment Sys.

Admin., 

, 1108–10 (Ariz. Ct. App. 2011); In re Estate of Martin, 

, 696 (Ark. App. 2019), reh’g denied (Ark. App. Apr. 24, 2019);

Bolanos v. Superior Court, 

, 179–81 (Cal. App. 4th 2008);

Lugo ex rel. Lugo v. Beth Israel Med. Ctr., 

, 895–96 (N.Y. Sup.

Ct. 2006); In re E.B., 

, 453 (W. Va. 2012); Latham v. Office of

Recovery Servs., 

, ¶ 20 (Utah 2019), cert. denied, Office of Recovery

Servs. v. Latham, 

(2020)). These points underscore “that the

majority view, not the majority’s view, is the right one.”

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      I also previewed what would flow from the majority’s mistake: forum

shopping in its purest form. See

“Florida Medicaid recipients will

now head to state administrative court to benefit from the Florida Supreme Court’s

holding in Giraldo.”

seek declaratory relief in

federal court to bypass Giraldo and benefit from our holding in Gallardo.”

“That holding will bind our district courts to declare that the Medicaid Act

does not preempt Florida’s attempt to recover from the part of the recipient’s

recovery that represents payment for future medical care.”

will take the federal-court judgment to state court and argue that it has a preclusive

effect on the recipient.”

was clear that this consequence was “far from hypothetical”:

Florida has admitted that it will use “the preclusive effect of our judgment in state

administrative court.”

sets the stage for a bizarre outcome. In

the weeks since the majority’s ruling, at least two Florida courts have held that

Giraldo controls in Florida’s state courts, while Gallardo controls in the Eleventh

Circuit’s federal courts. See Jones v. Agency for Health Care Admin., 

, at *8 (Fla. DOAH July 17, 2020); Bonnett v. Agency for Health Care

Admin., 

, at *4 n.3 (Fla. DOAH July 22, 2020). But when

Florida wins a federal judgment first and brings the judgment back to state court,

res judicata principles will “perversely” compel “the state administrative court [to]


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apply the Eleventh Circuit’s decision in Gallardo, rather than the Florida Supreme

Court’s decision in Giraldo.” 

(Wilson, J., concurring

in part and dissenting in part).

      That’s a problem. The risk that “the same event may be judged by two

different laws, depending upon whether a state court or a federal forum within that

state is available” is precisely the “type of evil” that the Supreme Court sought to

curb in Erie Railroad Co. v. Tompkins, 

(1938). See Wells v. Simonds

Abrasive Co., 

, 521 (1953) (Jackson, J., dissenting). Within these

cracks in the law’s forum-shopping armor, randomness and inequity abound. Pick-

your-law scenarios “can empower strong, well-off, and sophisticated parties”—like

a state—to the detriment of “paradigmatically worse-off part[ies]”—like a

Medicaid recipient. See Ori Aronson, Forum by Coin Flip: A Random Allocation

Model for Jurisdictional Overlap, 45 SETON HALL L. REV. 63, 75–76 (2015). They

sanction “inequitable administration of the laws” in a system that strives for equal

justice. See Hanna v. Plumer, 

, 468 (1965). And they “encourage

gamesmanship”—like a state wielding a federal-court judgment to bypass its own

state supreme court’s ruling. See Atl. Marine Const. Co. v. U.S. Dist. Court for W.

Dist. of Tex., 

, 65 (2013).

      Unfortunately, there is nothing left to do in the Eleventh Circuit or the

Florida Supreme Court. The dust in those courts have settled, leaving each on


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different sides of the chasm. Until their differences are reconciled, though, Florida

Medicaid recipients must straddle two worlds: one where they win, and one where

they lose. It is an arrangement as arbitrary as it is wrong; a system that awards first

place not to the winner of the case, but to the winner of the race to the courthouse.

At some point, someone must decide whether Giraldo or Gallardo got it right.

      I remain steadfast in my view that Gallardo got it wrong. As most courts

have long held, the Medicaid Act prevents Florida from robbing its recipients of

tort payments paid for their future medical burdens. I dissent from the denial of

rehearing by the panel.




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