author: ANDERSON, Circuit Judge:

text:
    MSP RECOVERY, LLC, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee. MSP Recovery, LLC, Plaintiff-Appellant, v. Progressive Select Insurance Company, Defendant-Appellee. MSP Recovery, LLC, Plaintiff-Appellant, v. Progressive Select Insurance Company, Defendant-Appellee. MSP Recovery, LLC, Plaintiff-Appellant, v. Progressive Select Insurance Company, Defendant-Appellee. MSPA Claims 1, LLC, Plaintiff-Appellant, v. IDS Property Casualty Insurance Company, Defendant-Appellee. MSPA Claims 1, LLC, Plaintiff-Appellant, v. Infinity Auto Insurance Company, Defendant-Appellee. MSP Recovery, LLC, Plaintiff-Appellant, v. Allstate Insurance Company, Defendant-Appellee.
    No. 15-14353, No. 15-12398, No. 15-12402, No. 15-12403, No. 15-14355, No. 15-14356, No. 15-14790
    United States Court of Appeals, Eleventh Circuit.
    (August 30, 2016)

      Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, Frank Carlos Quesada, MSP Law Firm, John H. Ruiz, Law Offices of La Ley con John H. Ruiz, Miami, FL, for Plaintiff-Appellant (Case No. 15-14358).
    Suzanne Labrit, Tampa, FL, Rachel M. LaMontagne, Miami, FL, Shutts & Bowen, LLP, for Defendant-Appellee (Case No. 15-14353).
    Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, Brian Cournoyer, MSP Law Firm, Gustavo Javier Losa, John H. Ruiz, Law Offices of La Ley con John H. Ruiz, Miami, FL, for Plaintiff-Appellant (Case No. 15-12398).
    Betsy Ellwanger Gallagher, Michael C. Clarke, Kubicki Draper, Tampa, FL, Erick Dwayne Martin, Grumer & Macaluso, PA, Fort Lauderdale, FL, Neil Vijay Singh, Law Offices of Neil V. Singh, Lauderdale Lakes, FL, for Defendant-Appellee (Case Nos. 15-12398 and 15-12402).
    Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, Brian Cournoyer, Frank Carlos Quesada, MSP Law Firm, Gustavo Javier Losa, Rebecca Rubin-del Rio, John H. Ruiz, Law Offices of La Ley con John H. Ruiz, Miami, FL, for Plaintiff-Appellant (Case No. 15-12402).
    Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, Brian Cournoyer, MSP Law Firm, Gustavo Javier Losa, Christine M. Lugo, Gino Moreno, Rebecca Rubin-del Rio, John H. Ruiz, Law Offices of La Ley con John H. Ruiz, Miami, FL, for Plaintiff-Appellant (Case No. 15-12403).
    Betsy Ellwanger Gallagher, Michael C. Clarke, Kubicki Draper, Tampa, FL, Erick Dwayne Martin, Grumer & Macaluso, PA, Fort Lauderdale, FL, for Defendant-Ap-pellee (Case No. 15-12403).
    Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, for Plaintiff-Appellant (Case No. 15-14355).
    Nicole Tucker Melvani, Niels P. Murphy, Christen Elizabeth Luikart, Murphy & Anderson, PA, Jacksonville, FL, for Defendant-Appellee (Case No. 15-14355). ' Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, Gustavo Javier Losa, John H. Ruiz, PA, John H. Ruiz, Law Offices of La Ley con John H. Ruiz, Miami, FL, for Plaintiff-Appellant (Case No. 15-14356).
    Joshua D. Lerner, Jessica G. Lagos, Nicole Sieb Smith, Rumberger Kirk & Caldwell, PA, Miami, FL, for Defendant-Appel-lee (Case No. 15-14356).
    Beverly A. Pohl, Broad & Cassel, Fort Lauderdale, FL, Frank Carlos Quesada, MSP Law Firm, Miami, FL, for Plaintiff-Appellant (Cáse No. 15-14790).
    Suzanne Labrit, Shutts & Bowen, LLP, Tampa, FL, Rachel M. LaMontagne, Shutts & Bowen, LLP, Miami, FL, for Defendant-Appellee (Case No. 15-14790).
    Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and TITUS, District Judge.

       Honorable Roger W. Titus, United States District Judge for the District of Maryland, sitting by designation.

   ANDERSON, Circuit Judge:

These seven consolidated cases present the question of whether a contractual obligation, without more (specifically, without a judgment or settlement agreement from a separate proceeding), can satisfy the “demonstrated responsibility” requirement of the private cause of action provided for by the Medicare Secondary Payer Act (the “MSP Act”). 42 U.S.C. §§ 1395y(b)(2)(B)(ii), (b)(3)(A). We hold that it can.

I. BACKGROUND

In 1980, Congress passed the MSP Act to reduce the costs of Medicare. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1306 (11th Cir. 2006). Prior to the Act’s passage, Medicare often acted as a primary insurer; that is, Medicare paid for enrollees’ medical expenses, even when an enrollee carried other insurance that covered the same costs, or when a third party had an obligation to pay for them. The MSP Act, as its name suggests, changed that relationship so that Medicare acts as a secondary payer. “This means that if payment for covered services has been or is reasonably expected to be made by someone else, Medicare does not have to pay.” Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775, 777 (11th Cir. 2002). The MSP Act prohibits Medicare from paying for items or services if “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.” 42 U.S.C. § 1395y(b)(2)(A)(ii). If, however, a primary payer — in the parlance of the statute, a “primary plan” — “has not made or cannot reasonably be expected to make payment with respect to the item or service promptly,” Medicare may make a payment on the enrollee’s behalf, conditioned on reimbursement from the primary plan. Id. § 1395y(b)(2)(B)(i); see also Cochran, 291 F.3d at 777 (“In order to accommodate its beneficiaries, however, Medicare does make conditional payments for covered services, even when another source may be obligated to pay, if that other source is not expected to pay promptly.”).

We pause here to note that, though the MSP Act uses the term “primary plan” to describe entities with a primary responsibility to pay, that term covers more than just health insurance plans. The law defines a “primary plan” as “a group health plan or large group health plan, ... a workmen’s compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance.... ” 42 U.S.C. § 1395y(b)(2)(A). Thus, it is clear that the defendants in this case — which are all personal injury protection no-fault carriers— are primary plans within the meaning of the MSP Act.

The mechanics of the reimbursement process are set out in the statute as follows. The law requires a primary plan to reimburse Medicare “if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.” 42 U.S.C. § 1395y(b)(2)(B)(ii). The statute proceeds to explain how that responsibility may be demonstrated:

responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items of services included in a claim against the primary plan or the primary plan’s insured, or by other means.

Id. This is the demonstrated responsibility requirement; in other words, Medicare may obtain reimbursement from a primary plan if it demonstrates that the primary plan “has or had a responsibility” to pay for the item or service. To facilitate recovery of these payments, the law provides for a right of action by the United States, for double damages, against “any or all entities that are or were required or responsible” to make payment under a primary plan. Id. § 1395y(b)(2)(B)(iii).

In addition to the right of action by the United States, Congress created a private cause of action against a primary plan that fails to provide for primary payment. Id. § 1395y(b)(3)(A). Like the cause of action provided to the United States, the private cause of action also permits the plaintiff to recover double damages. Id.

A.. Factual and Procedural History

The seven consolidated cases in this appeal all involve attempts by assignees of a health maintenance organization (“HMO”) to recover conditional payments via the MSP Act’s private cause of action. The facts relevant to the issues raised on appeal are similar in each case. Plaintiffs MSP Recovery LLC (“MSP Recovery”) and MSPA Claims 1, LLC (“MSPA Claims 1”) are firms that obtain claims for reimbursement under the MSP Act from HMOs that offer Medicare Advantage Plans. Defendants are all insurance companies that provide personal injury protection (“PIP”) no-fault insurance to automobile owners and operators in Florida. In each case, a person covered by a defendant’s PIP no-fault insurance policy was injured in an automobile accident. Each such insured was also enrolled in a Medicare Advantage Plan provided by Florida Healthcare Plus (“FHCP”), an HMO. FHCP made conditional payments on behalf of the injured persons to cover medical expenses in each accident. FHCP assigned its claims under the MSP Act, and Plaintiffs are the current assignees. Plaintiffs allege that, under the MSP Act, FHCP was a secondary payer, and Defendants were primary plans with obligations to pay some of their insureds’ medical costs. Defendants’ responsibility to pay, Plaintiffs assert in their complaints, is demonstrated by the insurance contracts the injured persons entered into with Defendants. Plaintiffs filed suit in the Southern District of Florida seeking double damages under 42 U.S.C. § 1395y(b)(3)(A).

All of the consolidated cases were dismissed. In each case, the district court relied on our opinion in Glover v. Liggett Group, Inc. In a case in which the defendant was an alleged tortfeasor, Glover held that a primary plan’s responsibility to pay must be demonstrated before the plaintiff files a claim under the MSP Act. 459 F.3d at 1309. When the primary plan’s responsibility to pay arises from tort liability, we held in Glover, liability might be demonstrated by a judgment or settlement, but the tortfeasor’s liability cannot be “demonstrated” through the MSP Act claim itself. Id. In other words, a federal lawsuit under the MSP Act cannot serve as a substitute for determining liability via a standard tort claim; the tortfeasor’s responsibility to pay must be independently established. The courts below held that the requirement we established in Glover — that a primary plan’s responsibility to pay be demonstrated through a judgment or agreement separate from the MSP claim — applies even when the primary plan’s alleged responsibility to pay is contractual, as it is in these cases, rather than the result of tort liability. The primary plan’s alleged responsibility to pay in these cases is contractual because responsibility to pay is determined by construction of the PIP no-fault insurance policies issued by Defendants to each insured, whose medical expenses were conditionally paid by Plaintiffs’ Medicare Advantage Organization predecessors. Accordingly, because Plaintiffs did not obtain a judgment on the insurance contracts pri- or to bringing their MSP Act claims, the district courts dismissed Plaintiffs’ suits for failure to state a claim. Plaintiffs urge us to hold that Glover applies only when the responsibility to pay arises from tort, and that alleging the existence of a contractual obligation to pay suffices to demonstrate a primary payer’s responsibility under the MSP Act private cause of action.

II. STANDARD OF REVIEW

We review a district court’s decision granting a motion to dismiss de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). “To survive a motion to dismiss, a complaint must state a claim to relief that is plausible on its face, meaning it must contain factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016) (internal quotation marks omitted).

III. DISCUSSION

A. Standing

Before proceeding to the merits of this appeal, we address whether Plaintiffs have standing to bring this suit. The Constitution confines federal courts’ jurisdiction to “cases” and “controversies.” U.S. Const. Art. Ill, § 2. “[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Federal courts have an independent obligation to ensure that subject-matter jurisdiction exists to hear a case, and dismissal is warranted if a court determines that it lacks jurisdiction. In re Trusted Net Media Holdings, LLC, 550 F.3d 1035, 1042 (11th Cir. 2008). “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136. A plaintiff who invokes the jurisdiction of a federal court bears the burden to show “(1) an injury in fact, meaning an' injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the causal conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.” Granite State Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003). The standing issue in the instant case concerns the first element: injury in fact.

Defendant IDS Property Casualty Insurance Company (“IDS”) argues that Plaintiff MSPA Claims 1 lacks standing to bring suit because it has suffered no legally cognizable injury. IDS points out that any cause of action in the seven consolidated cases originally belonged to FHCP. MSPA Claims 1 is the assignee of FHCP’s claims against IDS. IDS argues that the assignments were invalid and that MSPA Claims 1 therefore suffered no legally cognizable injury. Though IDS was the only defendant to raise the issue, its argument applies equally in all of these cases, because similar purported assignments occurred in each case. If IDS is correct that the assignments of the claims to Plaintiffs were invalid, then we must dismiss each of these cases for lack of jurisdiction.

MSPA Claims l’s complaint alleges that the causes of action it asserts initially belonged to FHCP, and that MSPA Claims 1 obtained the claims through a series of assignments. IDS’s argument that these assignments were invalid relies on the fact that Medicare Advantage Organizations like FHCP must enter into a contract with the federal government to offer Medicare Advantage Plans. IDS points out that federal law generally prohibits assignment of contracts between the federal government and third parties. Therefore, IDS argues, assignment of the claim was barred by a federal statute. The anti-assignment statute reads:

The party to whom the Federal Government gives a contract or order may not transfer the contract or order, or any interest in the contract or order, to another party. A purported transfer in violation of this subsection annuls the contract or order so far as the Federal Government is concerned, except that all rights of action for breach of contract are reserved to the Federal Government.

41 U.S.C. § 6305(a).

The assumption underlying IDS’s argument appears to be that a Medicare Advantage Organization’s standing to bring a claim under the MSP Act is derivative of its contractual relationship with Medicare. It is unclear why IDS believes that to be the case. Plaintiffs’ MSP Act claims are not claims on FHCP’s contract with the government, and there is no allegation that anyone has breached such a contract. The MSP Act’s private cause of action does not require any sort of relationship (contractual or otherwise) with the government (or anyone else) as a prerequisite to suit. FHCP’s contract with Medicare simply permits it to provide insurance plans that offer Medicare benefits. The contract does not provide for any special right of recovery under the private cause of action of the MSP Act. There is no allegation that FHCP transferred that contract, or any interest in the contract, to MSPA Claims 1. MSPA Claims 1 did not undertake to do anything that FHCP is obligated to do under its contract with the government, nor did MSPA Claims 1 obtain any rights against the federal government. Rather, FHCP assigned to Plaintiffs here a claim created by statute, one that is entirely separate from its contract with Medicare. Because FHCP did not assign its contract with the government, or any interest therein, the assignment is not prohibited by § 6305, and IDS’s standing argument must fail.

B. Demonstrated Responsibility

The primary issue in these consolidated cases is the operation of the demonstrated responsibility provision of the MSP Act. The text of the MSP Act, however, is remarkably abstruse. Therefore, we begin our discussion of the merits with a comprehensive review of the structure of the private cause of action before analyzing the application of that particular provision.

1, Structure of the MSP Act Private Cause of Action

The text of the private cause of action provided for by the MSP Act is challenging to parse. It reads:

There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the ease of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).

42 U.S.C. § 1395y(b)(3)(A). One difficulty in understanding the text stems from the fact that a primary plan is only liable when it fails to pay “in accordance with” paragraphs (1) and (2)(A). The ambiguity arises because the demonstrated responsibility requirement at the heart of this case is contained in neither of the paragraphs referenced in the private cause of action provision. That is, the demonstrated responsibility requirement is not contained in either paragraph (1) or in paragraph (2)(A). Rather, the demonstrated responsibility requirement is contained in paragraph (2)(B). However, this lack of clarity in the statute need not detain us in this case. Our Glover decision has already held that the demonstrated responsibility requirement is incorporated as a prerequisite to.pursuit of the private cause of action. See Glover, 459 F.3d at 1308-09 (holding that a plaintiff pursuing the private cause of action must satisfy the demonstrated responsibility requirement). The Glover court explained that the demonstrated responsibility requirement was incorporated as a prerequisite because the private cause of action language references paragraph (2)(A), which in turn references paragraph (2)(B). See also Humana, 832 F.3d 1229, 2016 WL 4169120, at *6 (“Although paragraph (2)(A) does not expressly obligate primary plans to make payments, the defined term ‘primary plan’ presupposes an existing obligation (whether by statute or contract) to pay for covered items or services. Therefore, a primary plan ‘fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraph! ] (2)(A),’ when it fails to honor the underlying statutory or contractual obligation.”) (internal citation omitted).

We turn, then, to answer the question: Have Plaintiffs adequately demonstrated Defendants’ responsibility for payment by alleging an obligation pursuant to the insurance contracts, or must Plaintiffs first obtain a judgment against Defendants by suing for enforcement of those contracts prior to bringing suit under the MSP Act?

2. Application of the Demonstrated Responsibility Provision

The MSP Act permits demonstration of a primary plan’s responsibility to pay “by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means.” 42 U.S.C. § 1395y(b)(2)(B)(ii). The question before us is whether the phrase “by other means” permits demonstration of responsibility by a contractual obligation. Defendants argue that it does not; they urge us to hold that Glover’s demand for a “separate adjudication or agreement” applies when the defendant’s responsibility derives from contract as well as from tort. Plaintiffs argue that a contractual obligation is among the “other means” by which the statute permits demonstration of responsibility, and that no separate adjudication or agreement (in addition to the contract) is necessary.

This issue has been addressed in regulations issued by the Centers for Medicare and Medicaid Services (“CMS”) interpreting the MSP Act. The implementing regulations specify that a primary payer must reimburse Medicare “for any payment if it is demonstrated that the primary payer has or had a responsibility to make payment.” 42 C.F.R. § 411.22(a). The regulations explicitly list the means by which responsibility for payment may be demonstrated, including a judgment or “other means, including but not limited to a settlement, award, or contractual obligation.” Id. § 411.22(b). The regulations thus specifically permit demonstration of responsibility by means of a contractual obligation.

“Generally, considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.... ” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). If a statute is silent or ambiguous with respect to a certain issue, we proceed to ask whether the executive’s construction of the statute is permissible. Gulfcoast Med. Supply, Inc. v. Sec’y, Dep’t of Health & Human Servs., 468 F.3d 1347, 1351 (11th Cir. 2006) (citing Chevron, 467 U.S. at 842-44, 104 S.Ct. at 2781-82). Here, the statutory phrase “other means” is ambiguous: it is not apparent from the text of the statute alone which “other means” Congress intended to allow. And a contractual obligation seems to us to be an eminently reasonable method of demonstrating responsibility.

Defendants do not claim that the interpretation of the statute provided in the regulations is unreasonable. Instead, they fall back on their primary argument: that the existence of a contract does not necessarily demonstrate responsibility. They point out that PIP insurance contracts do not promise payment or reimbursement for all medical expenses, and they argue that it is possible that Plaintiffs seek to recover for injuries not covered under their policies. In other words, Defendants argue that a contract can demonstrate responsibility, but only once it is reduced to a judgment or settlement.

We disagree, and our disagreement underscores an important difference between tort liability and contractual obligations. It is a fundamental principle of contract law that a contract imposes enforceable rights and obligations: “The heart of ‘contract’ is thus found both in its promissory nature and in its enforceability.... [Ojnce a contract is entered, the parties’ rights and obligations are binding under the law-” 1 Williston on Contracts § 1:1 (4th ed.). A contract imposes obligations on the parties immediately, without any involvement of the courts. While a lawsuit may be necessary to enforce a contract in the event of a breach, the obligations created by the contract exist as soon as it is executed. By contrast, an alleged tortfeasor has no obligations until he is adjudged liable. In a similar vein, demonstrating responsibility by means of a “judgment” necessarily presupposes a separate proceeding in which that judgment was obtained. On the other hand, the term “contractual obligation” in the CMS regulations presupposes only the existence of a contract.

Moreover, adopting Defendants’ interpretation would render meaningless the statutory phrase “by other means,” as well as the specific reference to contractual obligations in the regulation. Defendants’ reading of the law “is thus at odds with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 1566, 173 L.Ed.2d 443 (2009) (internal quotation marks and brackets omitted). If Defendants are correct that a judgment or settlement agreement is always a prerequisite to suit under the MSP Act, then there are no “other means” that may demonstrate responsibility, and that part of the statute is superfluous. Additionally, Defendants’ preferred interpretation renders the reference in the regulations to contractual obligations entirely inoperative. If Defendants are correct that a contract must always be reduced to a judgment, then a “contractual obligation” can never demonstrate responsibility; only a judgment can. The regulations envision demonstrating responsibility with a judgment or settlement from a separate proceeding. If a contractual obligation, absent such a judgment or settlement, cannot demonstrate responsibility to pay, then the reference to judgments and settlements would be sufficient. There is no purpose at all for listing a contractual obligation as a means of demonstrating responsibility. Requiring that such a contractual obligation be reduced to a judgment renders superfluous the phrase “by other means.”

This line of reasoning is entirely consistent with Glover. In Glover, we concluded that responsibility must be demonstrated by “a separate adjudication or agreement.” 459 F.3d at 1309. An insurance contract is, of course, a separate agreement, and permitting demonstration of responsibility via a contractual obligation is therefore consistent with our holding in Glover. Glover was decided in the tort context, and the “agreement” the Glover panel likely had in mind was a settlement agreement. But a settlement agreement is just a type of contract. So if Defendants are correct that a contractual obligation alone cannot demonstrate responsibility, then, presumably, even the beneficiary of a settlement agreement has not demonstrated responsibility until he has sued for breach of the settlement agreement, prevailed, and obtained a judgment. Given the explicit references in the text of the law to settlements and waivers as means of demonstrating responsibility, Congress clearly did not intend the result Defendants request. The plain language of the MSP Act indicates that at least some contractual obligations' — -namely, settlement agreements— are sufficient to demonstrate responsibility. We see no reason that other types of agreements — such as insurance contracts — should be treated differently.

We hold that a contractual obligation may serve as sufficient demonstration of responsibility for payment to satisfy the condition precedent to suit under the MSP Act. This does not relieve Plaintiffs of their burden to allege in their complaints, and then subsequently prove with evidence, that Defendants’ valid insurance contracts actually render Defendants responsible for primary payment of the expenses Plaintiffs seek to recover. And Defendants may still assert any valid contract defense in arguing against their liability. We hold only that a contractual obligation may satisfy the demonstrated responsibility requirement, not that the existence of a contractual obligation conclusively demonstrates liability under the MSP Act’s private cause of action.

3. Policy Máximums

Defendants IDS and Infinity Auto Insurance Company (“Infinity”) argue in the alternative that, even if Plaintiffs’ insurance contracts are sufficient to demonstrate Defendants’ responsibility to pay, Plaintiffs’ claims still fail because their complaints show that Defendants no longer have a responsibility to pay. Defendants’ argument is grounded in the fact that Plaintiffs’ insurance policies provided for a maximum of $10,000 in benefits. Defendants claim that any responsibility they had to pay was exhausted once the policy máximums were reached, which may have occurred in some of these cases. Plaintiffs respond that the statute requires repayment whenever a primary plan “has or had a responsibility to make payment,” 42 U.S.C. § 1395y(b)(2)(B)(ii) (emphasis added), and that Defendants are therefore liable if they ever had a responsibility to make a payment, even if they subsequently paid out the maximum benefits available under the policies.

The district courts to which these arguments were presented did not reach them, instead dismissing the cases solely on the grounds that Glover barred liability. On remand, we leave it to the district courts to decide this issue in the first instance.

C. Remand of State Law Claims

In one of the consolidated cases, MSP Recovery, LLC v. Allstate Insurance Company, No. 15-14790, the district court remanded Plaintiff MSP Recovery’s supplemental state law claims after dismissing the MSP Act claim, which was the only federal claim in the case. MSP Recovery asks that, if we vacate the dismissal of its MSP Act claim, we reinstate its state law claims. Defendant Allstate Insurance Company agrees that that is the proper course of action.

An order remanding a case for lack of subject-matter jurisdiction is not reviewable on appeal. 28 U.S.C. § 1447(d). However, when a district court remands state law claims after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 641, 129 S.Ct. 1862, 1867, 173 L.Ed.2d 843 (2009). Thus, the remand order in this case is appeal-able. Additionally, where there is a basis for federal jurisdiction, the district court must exercise its supplemental jurisdiction over related state law claims unless a statutory exception applies. See Palmer v. Hosp. Auth. of Randolph Cty., 22 F.3d 1559, 1569 (11th Cir. 1994). Accordingly, once Plaintiffs MSP Act claim is reinstated, the district court is required to exercise its supplemental jurisdiction over the related state law claims. Because the dismissal of the MSP Act claim — a claim over which the district court had federal question jurisdiction — was in error, remand of the supplemental state law claims was also in error. We therefore vacate the district court’s remand order as well as the order of dismissal.

For the same reasons, we vacate the implicit discretionary dismissals of the state law claims in three of the other consolidated cases: MSP Recovery v. Allstate Insurance Company, No. 15-14353; MSPA Claims 1, LLC v. IDS Property Casualty Insurance, No. 15-14355; and MSPA Claims 1, LLC v. Infinity Auto Insurance Company, No. 15-14356. See Snow ex rel. Snow v. City of Citronelle, 420 F.3d 1262, 1271 (11th Cir. 2005) (“Because we reinstate Snow’s federal claims, we must vacate the discretionary dismissal of the state-law claims, but we express no opinion on the merits of those claims.”).

IV. CONCLUSION

For the reasons discussed above, we hold that a plaintiff suing a primary plan under the private cause of action in the MSP Act may satisfy the demonstrated responsibility prerequisite by alleging the existence of a contractual obligation to pay. A judgment or settlement from a separate proceeding is not necessary. The judgments of the district courts in these cases are vacated, and the cases are remanded for further proceedings not inconsistent with this opinion. VACATED and REMANDED.

      . The following appeals were previously consolidated and set for oral argument before this panel on June 9, 2016: Nos. 15-14353, 15-14355, 15-14356 and 15-14790. Similarly, the following appeals were previously consolidated and set for oral argument in a different slot also before this panel on June 9, 2016: Nos. 15-12398, 15-12402 and 15-12403. We sua sponte consolidate all of the appeals, and we dispose of all of them in this single opinion. Oral argument in all of these appeals was continued in two orders of this Court dated June 2, 2016. We unanimously determine that these appeals will be decided on the briefs without oral argument. See 11th Cir. R. 34-3(f).

      . In 2003, Congress expanded the definition of the term “primary plan” further, to specify that "[a]n entity that engages in a business, trade, or profession shall be deemed to have a self-insured plan if it carries its own risk.” 42 U.S.C. § 1395y(b)(2)(A).

      . However, it is important to note that the private right of action created by subsection (b)(3)(A) does not provide for a qui tam action, whereby a private person might bring a lawsuit on behalf of the government. Rather, the MSP Act’s private cause of action "merely enables a private party to bring an action to recover from a private insurer only where that private party has itself suffered an injury because a primary plan has failed to make a required payment to or on behalf of it.” Woods v. Empire Health Choice, Inc., 574 F.3d 92, 101 (2d Cir. 2009).

      . Defendants also argue that the private cause of action provided by the MSP Act does not extend to Medicare Advantage Organizations such as FHCP. Defendants’ argument is foreclosed by our recent decision in Humana Medical Plan, Inc, v. Western Heritage Insurance Co., 832 F.3d 1229, 1236-37, No. 15-11436, 2016 WL 4169120, at *6 (11th Cir. Aug. 8, 2016).

      . That subsection of the regulations reads, in its entirety:

        (b) A primary payer’s responsibility for payment may be demonstrated by—
      (1) A judgment;
      (2) A payment conditioned upon the beneficiary's compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary payer or the primary payer’s insured; or
      (3)By other means, including but not limited to a settlement, award, or contractual obligation.
      42 C.F.R. § 411.22(b).

      . In their brief, Plaintiffs do concede that they cannot recover more than twice the policy limits.

      . IDS has also moved for sanctions on the grounds that some of these appeals are frivolous because IDS has paid out the policy máximums. IDS’s motion is denied.


source: Caselaw Access Project

author: JULIE CARNES, Circuit Judge:

license: Public Domain

text:
    Christopher L. PARKER, Marwa Moussa, individually and on behalf of others similarly situated, Eduardo Zeitune, Angel Luis Lazo-Perez, Erik Bartenhagen, et al., Plaintiffs-Appellees, v. AMERICAN TRAFFIC SOLUTIONS, INC., et al., Defendants, City of Apopka, City of Aventura, Village of Bal Harbour, City of Boca Raton, City of Boynton Beach, City of Brooksville, Town of Campbellton, City of Clermont, City of Clewiston, City of Cocoa Beach, City of Coral Gables, City of Coral Springs, Town of Cutler Bay, Town of Davie, City of Daytona Beach, City of Doral, Village of El Portal, City of Florida City, City of Fort Lauderdale, City of Green Cove Springs, City of Groveland, City of Gulfport, City of Haines City, City of Hallandale Beach, City of Hialeah, City of Hialeah Gardens, Hillsborough County, City of Hollywood, City of Holly Hill, City of Homestead, Town of Juno Beach, City of Kenneth City, Town of Key Biscane, City of Lakeland, City of Lauderdale Lakes, City of Maitland, Manatee County, City of Margate, Town of Medley, City of Miami, City Ofmiami Beach, City of Miami Gardens, City of Miami Springs, City of Milton, City of New Port Richey, City of North Bay Village, City of North Miami, City of North Miami Beach, City of Ocoee, City of Oldsmar, City of Opa-Locka, Orange County, Town of Orange Park, City of Orlando, Osceola County, City of Palatka, Palm Beach County, City of Palm Coast, City of Pembroke Pines, Village of Palm Springs, City of Port Richey, City of Sarasota, City of South Pasadena, City of St. Petersburg, City of Sunrise, Town of Surfside, City of Sweetwater, City of Tamarac, City of Temple Terrace, City of West Miami, City of West Palm Beach, City of West Park, Defendants-Appellants.
    No. 15-13721
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 08/31/2016

      Stephen F. Rosenthal, Ramon A. Rasco, Podhurst Orseck, PA, Andrew T. Trailor, Andrew T. Trailor, PA, Miami, FL, Andrew N. Friedman, Sally Handmaker, Cohen Milstein Sellers & Toll, PLLC, Washington, DC, Leslie Kroeger, Theodore Jon Leopold, Diana L. Martin, Cohen Milstein Sellers & Toll, PLLC, Palm Bch Gdns, FL, Rafael Enrique Millares, Estrella Ticket Defense Law Firm, PA, Coral Gables, FL, for Plaintiffs-Appellees.
    Edward George Guedes, Matthew H. Mandel, Adam A. Schwartzbaum, Samuel I. Zeskind, Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, FL, Samuel I. Zeskind, Matthew H. Mandel, Arnstein & Lehr, LLP, Edmund Bruce Johnson, Christopher J. Stearns, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, Shana H. Bridgeman, Michael David Cirul-lo, Jr., Tracey A. DeCarlo, Goren Cherof Doody & Ezrol, PA, Samuel S. Goren, Josias & Goren, PA, Fort Lauderdale, FL, Andrew I. Dayes, Donovan Adam Roper, Roper & Roper, PA, Apopka, FL, Joseph A. Poblick, Zephyrhills, FL, Robert L. Switkes, Robert L. Switkes & Associates, PA, Aleksandr Boksner, Robert F. Rosen-wald, City Attorney’s Office of Miami Beach, Miami Beach, FL, Patricia Leigh McMillan Minoux, Wallace Wood Properties, LLC / Vanguard Productions, LLC, Mesquite, TX, Helene Catherine Hvizd, Amy Taylor Petrick, Palm Beach County Attorney’s Office, Dana Collier Herst, Dana Collier-Herst, Christopher Van Hall, Office of the City Attorney, West Palm Beach, FL, Joseph Paul Patner, Office of the City Attorney, Saint Petersburg, FL, Elaine Dawn Walter, Mark Rocco Antonel-li, Devang Desai, Joseph M. Winsby, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, Michael P. Spellman, Lisa Barclay Fountain, Sniffen & Spellman, PA, Tallahassee, FL, for Defendants-Appellants.
    Ervin A. Gonzalez, Patrick S. Montoya, Colson Hicks Eidson, Coral Gables, FL, Theodore Jon Leopold, Cohen Milstein Sellers & Toll, PLLC, Palm Bch Gdns, FL, Ramon A. Rasco, Stephen F. Rosenthal, Podhurst Orseck, PA, Miami, FL, Marc A. Wites, Wites & Kapetan, PA, Lighthouse Pt, FL, for Annie Migdal.
    David Matthew Allen, Jonathan Zachary DeSantis, Kevin P. McCoy, Carlton Fields Jorden Burt, PA, Tampa, FL, Edward Robert McCarthy, Edward Soto, Weil Gotshal & Manges, LLP, Thomas John Meeks, Carlton Fields Jorden Burt, PA, Miami, FL, for American Traffic Solutions, Inc.
    Chris Bator, Baker & Hostetler, LLP, Cleveland, OH, Jerry Dean Hamilton, Hamilton Miller & Birthisel, LLP, Miami, FL, Krista Anne Sivick, Baker & Hostet-ler, LLP, Orlando, FL, for Xerox State & Local Solutions, Inc., f.k.a. ACS State & Local Solutions.
    Christina Bredahl, Cole Scott & Kis-sane, PA, Orlando, FL, for Gatso USA, Inc.
    John Bajger, Attorney General’s Office, West Palm Beach, FL, for Marshall Stran-burg, Individually and as Executive Director of the Florida Department of Revenue.
    Jeffrey Dale Jensen, Thomas Robert Unice, Jr., Unice Salzman Radel, PA, Palm Harbor, FL, for City of Bradenton.
    Andrew P. Lannon, Patricia Denise Smith, Office of the City Attorney, Palm Bay, FL, for City of Palm Bay.
    Jerry M. Gewirtz, Robin Horton Silver-man, Office of the Tampa City Attorney, Tampa, FL, for City of Tampa, FL.
    Usher L. Brown, Garganese Weiss & D’Agresta, PA, Orlando, FL, Thomas Robert Unice, Jr., Unice Salzman Radel, PA, Palm Harbor, FL, for City of Winter Park, FL.
    Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, District Judge.

       Honorable William T. Moore, United States District Judge for the Southern District of Georgia, sitting by designation.

   JULIE CARNES, Circuit Judge:

Plaintiffs sued various local government defendants (“Defendants”), claiming unjust enrichment and seeking disgorgement of traffic fines Plaintiffs allege were imposed in violation of Florida law. Defendants moved to dismiss the claim, asserting sovereign immunity. The district court denied Defendants’ motion to dismiss, and Defendants now appeal. After a careful review of the record and controlling Circuit precedent, and with the benefit of oral argument, we dismiss this interlocutory appeal for lack of jurisdiction.

BACKGROUND

Plaintiffs filed'this class action against red-light camera vendor American Traffic Solutions, Inc. (“ATS”), a company that contracts with Florida local governments to install and operate unmanned cameras designed to capture video images of traffic violations. Plaintiffs alleged in the complaint that they were filmed committing a traffic violation on one of these cameras, and that they subsequently received a traffic citation and paid a fine. According to Plaintiffs, the citations were void, and the fines were thus unlawful, because the red-light camera programs violated Florida law in several respects.

Other plaintiffs subsequently filed similar actions in various state and federal courts in Florida, and all of the actions were consolidated with this case under the first-filed rule. Plaintiffs prepared an amended master complaint in the consolidated action, asserting claims against Defendants, the Florida Department of Revenue, and three red-light camera vendors, including ATS. The master complaint alleges that Defendants unlawfully issued citations and collected fines for traffic violations recorded by red-light cameras. Among other claims, it includes an unjust enrichment claim in which Plaintiffs seek disgorgement of, the fines they paid to Defendants.

The fines that are the subject of the unjust enrichment claim were imposed pursuant to the Mark Wandall Traffic Safety Program (the “Wandall Act”), Florida Statutes § 316.0083. The Wandall Act authorizes the use of red-light cameras, and it creates a detailed procedure that must be followed by a local government when issuing citations and imposing fines under this program. Id. Pursuant to the Wandall Act, a Florida appellate court recently invalidated the red-light camera program operated by the City of Hollywood. See City of Hollywood v. Arem, 154 So.3d 359, 361 (Fla. Dist. Ct. App. 2014). The court in Arem held that Hollywood’s program violated the Wandall Act because it unlawfully delegated police power to a red-light camera vendor by allowing the vendor to (1) pre-screen and determine which camera shots to send to Hollywood’s traffic enforcement officer and (2) issue traffic citations with the mere acquiescence of the enforcement officer. Id. The court concluded that citations issued pursuant to Hollywood’s red-light camera program were void and should be dismissed. Id. at 361, 365.

In support of their unjust enrichment claim, Plaintiffs allege that Defendants operated similarly unlawful red-light camera programs. Specifically, Plaintiffs contend that Defendants violated the Wandall Act by improperly delegating pre-screening authority to ATS and other red-light camera vendors. See id. at 365 (stating that, under Florida law, a local government “lacks the lawful authority to outsource to a third-party vendor the ability to make the initial review of the computer images of purported violations”). In addition, Plaintiffs assert that the citations they received were unlawfully issued by red-light camera vendors rather than by a Florida law or traffic enforcement officer. See id.

Defendants moved to dismiss the unjust enrichment claim on the ground of sovereign immunity. In support of their motion, Defendants argued that the unjust enrichment claim was a “quasi-contract” claim barred by sovereign immunity under Florida law. The district court denied the motion. It construed the unjust enrichment claim as a claim to recover an “unlawful monetary extraction” rather than as a quasi-contract claim. According to the district court, Florida sovereign immunity does not apply to an unlawful extraction claim.

Defendants filed an interlocutory appeal of the district court’s denial of sovereign immunity. Plaintiffs moved to dismiss the appeal for lack of jurisdiction and for a frivolity determination and sanctions pursuant to Federal Rule of Appellate Procedure 38. The motion was carried with the case, and this Court heard oral argument on both the jurisdictional issue and the merits of the sovereign immunity claim. For the reasons that follow, we now grant Plaintiffs’ motion to dismiss the appeal for lack of jurisdiction, but deny their request for sanctions under Rule 38.

DISCUSSION

I. Jurisdiction

. Our jurisdiction is limited to appeals from “final decisions” of the district court. 28 U.S.C. § 1291. An order denying a motion to dismiss does not result in a final decision. Thus, we lack jurisdiction to review such an order unless it is “otherwise made appealable by statute or jurisprudential exception.” The Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014) (internal quotation marks omitted). The only exception potentially applicable here arises under the collateral order doctrine. See id. (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). That doctrine permits the immediate appeal of an interlocutory order if it (1) conclusively determines an important issue that is both (2) completely separate from the merits of the case and (3) effectively unreviewable on appeal from a final judgment. Id.

It is by now well-established that an order denying federal qualified immunity satisfies the above requirements. See Schmelz v. Monroe Cty., 954 F.2d 1540, 1543 (11th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)). Such an order conclusively determines whether a government official is entitled to immunity from suit in his individual capacity, an important issue that is separate from the merits of the case. Mitchell, 472 U.S. at 527-528, 105 S.Ct. at 2816. And as qualified immunity protects public officials from the burden of litigation, rather than just liability, its protection is irretrievably lost — in a ruling that is “effectively unre-viewable on appeal from a final judgment” — when a claim to qualified immunity is denied in an interlocutory order. Id. at 525-27, 105 S.Ct. at 2814-16.

Similarly,- an order denying state official or sovereign immunity is immediately appealable if state law defines the immunity at issue to provide immunity from suit rather than just a defense to liability. See Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996) (“Alabama intended for its state officers to be immune from suit. As such, the denial of summary judgment based on sovereign immunity is properly before us on interlocutory appeal.”); Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992) (“Because sovereign immunity under Georgia law is an immunity from suit, ... we have jurisdiction over the district court’s order denying summary judgment based on sovereign immunity under Georgia law.”). As with federal qualified immunity, the denial of state official or sovereign immunity conclusively resolves an important issue that is separate from the merits of the case. See Chiesel, 963 F.2d at 340. If the state immunity is intended to shield a governmental entity or official from suit rather than just liability, its denial in an interlocutory order is also “effectively unreviewable after trial.” Id.

This Court, however, has interpreted Florida sovereign immunity law to provide only,a defense to liability, rather than immunity from suit. CSX Transp., Inc. v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th Cir. 1998) (per curiam). Based on that interpretation, we held in CSX that an order denying Florida sovereign immunity is not immediately appeal-able under the collateral order doctrine. Id. CSX decided the jurisdictional issue presented by this case, and it is controlling as to that issue unless it has been “undermined to the point of abrogation” by an intervening change in Florida sovereign immunity law. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008); see also United States v. Clarke, 822 F.3d 1213, 1215 (11th Cir. 2016) (noting that a prior panel decision interpreting state law is binding on the Court unless it has been abrogated by an intervening decision of the relevant state court). Contrary to Defendants’ argument, there is no clear authority to suggest such a change has occurred in Florida law.

This Court’s decision in CSX was based on the Florida Supreme Court’s discussion of the scope of Florida sovereign immunity in Department of Education v. Roe, 679 So.2d 756 (Fla. 1996). The question presented in Roe was whether the Florida Department of Education was entitled to interlocutory review of an order denying its claim to sovereign immunity in a negligence action. Id. at 757. The Florida Supreme Court held that it was not, id. at 759, but its holding was less important than its more general discussion of the nature of Florida sovereign immunity for purposes of the collateral order doctrine. See CSX, 153 F.3d at 1286 (“[J]ust because a state court, under its own jurisdictional laws and rules, does not have jurisdiction over a kind of interlocutory appeal, does not dictate a lack of jurisdiction in this court.”).

In the course of its discussion, Roe distinguished between sovereign immunity asserted by a governmental entity like the Department of Education (and the local governments in this case) and federal qualified immunity asserted by a public official sued individually. Roe, 679 So.2d at 759. Specifically, Roe noted that (1) “qualified immunity is rooted in the need to protect public officials from undue interference, whereas sovereign immunity is not” and (2) defending a suit is not likely to have the same “chilling effect” on a governmental entity as it would on a public official sued individually. Id. Based on those differences, Roe indicated that Florida sovereign immunity, unlike federal qualified immunity, provides only a defense to liability rather than immunity from suit. Id. On that point, Roe stated: “although the state will have to bear the expense of continuing the litigation, the benefit of immunity from liability, should the state ultimately prevail on the sovereign immunity issue, will not be lost simply because review must wait until after final judgment.” Id. That statement was central to this Court’s decision in CSX. CSX, 153 F.3d at 1286.

The Florida Supreme Court has not overruled Roe or expressly altered its definition of the scope of Florida sovereign immunity. In fact, Roe has been cited favorably in several recent decisions that suggest its continuing validity. See Fla. Fish and Wildlife Conservation Comm’n v. Jeffrey, 178 So.3d 460, 465 (Fla. Dist. Ct. App. 2015) (citing Roe for the proposition that Florida sovereign immunity does not immunize a governmental entity from suit); Keck v. Eminisor, 104 So.3d 359, 365-66 (Fla. 2012) (per curiam) (distinguishing Roe in a case involving individual immunity under Fla. Stat. § 768.28). Keck is instructive. Keck held that individual immunity granted to government employees under Florida Statutes § 768.28(9)(a) provides immunity from suit, and that an order denying it is thus subject to interlocutory review. Keck, 104 So.3d at 366. In so holding, Keck relied on the plain language of § 768.28(9)(a), which states that a government employee cannot be “named as a defendant” in an action arising out of his employment unless he acted maliciously or in bad faith. Id. Thus, Keck did not overrule Roe, but rather distinguished it, emphasizing that Roe involved sovereign immunity asserted by a governmental entity, and thus it did not raise the qualified immunity-like considerations that underlie individual immunity and that warrant an immediate appeal in the event of denial of that immunity. Id. at 365-66.

Defendants argue that Roe should be interpreted narrowly, so that its definition of Florida sovereign immunity is only applicable to immunity from tort claims, which the state has partially waived by virtue of § 768.28, and not to immunity from other types of claims, such as the unjust enrichment claim at issue in this case. That argument is foreclosed by CSX, which interpreted Roe to stand for the broad proposition that “Florida’s state sovereign immunity is only immunity from liability.” CSX, 153 F.3d at 1286. Indeed, the governmental entity in CSX sought immunity from a contractual indemnification claim rather than a tort claim, yet this Court readily applied Roe to conclude that the denial of immunity was not immediately appealable under the collateral order doctrine. Id. at 1284, 1286. Accepting Defendants’ proffered interpretation of Roe would thus require us to hold that CSX was wrongly decided, rather than that it has been abrogated. We are not authorized to make that holding. See United States v. Steele, 147 F.3d 1316, 1317-1318 (11th Cir. 1998) (“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”).

Defendants also contend that Roe was abrogated by the Florida Supreme Court’s decision in Wallace v. Dean, 3 So.3d 1035 (Fla. 2009). Their argument is undermined by the fact that Wallace predated Keck and Jeffrey, both of which reaffirmed Roe’s validity, and further weakened by the fact that Wallace did not discuss or even cite Roe. It is not surprising that Wallace failed to mention Roe. Wallace raised two issues: (1) whether a sheriff owed a duty of care to the plaintiff pursuant to the undertaker’s doctrine and (2) assuming there was a duty, whether the sheriff was sover-eignly immune from tort liability under a discretionary function analysis. Id. at 1043-44. Neither of those issues required a determination as to whether Florida sovereign immunity provides immunity from suit or only a defense to liability, or otherwise implicated Tüoe’s definition of the scope of sovereign immunity.

Because the lower court’s decision conflated the duty and immunity issues, Wallace discussed at some length the distinction between a lack of duty — and thus a lack of liability — under tort law and the presence of sovereign immunity. Id. at 1040, 1044-45. During the course of its discussion, Wallace off-handedly referred to sovereign immunity as “immunity from suit” and as “bar[ring] an action.” Id. at 1044-45. But we do not believe that reference was intended to signal disapproval of Roe. Indeed, and consistent with Roe, Wallace also referred to sovereign immunity, in the same discussion, as a “shield[ ] ... from tort liability.” Id. at 1045. Thus, to the extent any conflict between Wallace and Roe can be implied, it is tenuous at best and clearly insufficient to undermine CSX “to the point of abrogation.” Archer, 531 F.3d at 1352; see also United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“In addition to being squarely on point, the doctrine of adherence to prior precedent also mandates that the intervening ... case actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.”).

Finally, Defendants suggest that CSX is no longer controlling as a result of a recent amendment to the Florida Rules of Appellate Procedure. See In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.3d 1217 (Fla. 2014) (mem.). The amendment was made in response to Keck, discussed above, in which the Florida Supreme Court directed the Florida Bar Appellate Court Rules Committee to propose an amendment authorizing review of non-final orders denying individual immunity under § 768.28(9)(a). Keck, 104 So.3d at 366, 369. The Rules Committee went beyond the directive of Keck and proposed an amendment authorizing the review of non-final orders denying any type of immunity. See In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.3d at 1217. As modified'by the Florida Supreme Court, the amendment that ultimately was adopted authorizes review of non-final orders denying individual or sovereign immunity under § 768.28(9), as well as orders denying sovereign immunity generally. See Fla. R. App. P. 9.130(a)(3)(C)(x)-(xi).

There could be any number of reasons why the Rules Committee amended Rule 9.130 to allow an immediate appeal, in a Florida appellate court, of an order denying Florida sovereign immunity. There is no basis for assuming the amendment reflects a change in Florida law as to the scope of sovereign' immunity, and no authority to suggest that the amendment abrogated either Roe or CSX. Moreover, Florida’s procedural rules do not govern whether an interlocutory order is immediately appealable in this Court. See Griesel, 963 F.2d at 340 (recognizing that “federal law determines the appealability” of an order denying state immunity). As we made clear in CSX, our jurisdiction to review an order denying state immunity does not depend on whether the order is appeal-able in the state courts; our jurisdiction depends instead on whether, based on the state’s definition of the immunity, its denial satisfies the requirements of the collateral order doctrine. CSX, 153 F.3d at 1286. CSX held that an order denying Florida sovereign immunity does not meet those requirements. Id. Because CSX is still controlling on that- point of law, we lack jurisdiction over this appeal.

II. Frivolity

In their motion to dismiss, Plaintiffs request a frivolity determination under Federal Rule of Appellate Procedure 38. Rule 38 provides that: “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R. App. P. 38. Rule 38 sanctions are appropriately imposed against appellants who raise “clearly frivolous claims in the face of established law and clear facts.” Farese v. Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003) (internal quotation marks omitted). For purposes of Rule 38, a claim is clearly frivolous if it is “utterly devoid'of merit.” Bonfiglio v. Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993).

Although we have concluded that we lack jurisdiction over this appeal, the jurisdictional argument raised by Defendants is not entirely meritless. The recent Florida procedural amendments authorizing immediate review of an order denying sovereign immunity in Florida courts, and some of the language in Wallace, raise at least a colorable argument that CSX no longer precludes us from exercising jurisdiction over the appeal. Even though we were not ultimately persuaded by that argument, we do not find it to be frivolous. Accordingly, we deny Plaintiffs’ request for sanctions under Rule 38.

CONCLUSION

For the reasons discussed above, we grant Plaintiffs’ motion to dismiss this appeal for lack of jurisdiction and deny their motion for a frivolity determination and sanctions under Rule 38.

      . A prior panel decision also can be overruled or abrogated by a decision of the United States Supreme Court or this Court sitting en banc, see Archer, 531 F.3d at 1352, but Defendants acknowledge that there is no Supreme Court or circuit authority to suggest that CSX is no longer controlling.

      . For that reason, Beach Community Bank v. City of Freeport, 150 So.3d 1111 (Fla. 2014), cited by Defendants, does not alter our analysis. In Beach Community Bank, the Florida Supreme Court assumed jurisdiction to review the trial court’s non-final order denying the City’s claim to sovereign immunity and the First District Court of Appeal's decision reversing the trial court. The Florida Court's decision' to accept jurisdiction, however, was expressly based on the amendment to Rule 9.130 permitting immediate review of an order denying sovereign immunity. See id. at 1113 ("Because this case falls squarely within the new rule amendment, we determine that the City should be entitled to the benefit of the new rule.”). But because Beach Community Bank merely applies the above newly-amended rule, and does not purport to re-define the nature or scope of Florida sovereign immunity, it adds little to the analysis required of us under the collateral order doctrine.


author: WILSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jay Fredrick NAGEL, Defendant-Appellant.
    No. 15-14087
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/01/2016

      Nicole D. Mariani, Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney’s Office, Miami, FL, Diana Margarita Acosta, Ryan Butler, U.S. Attorney’s Office, Fort Pierce, FL, for Plaintiff-Appellee.
    Panayotta Augustin-Birch, Federal Public Defender’s Office, Fort Pierce, FL, Michael Caruso, Federal Public Defender, Bonnie Phillips-Williams, Federal Public Defender’s Office, Miami, FL, for Defendant-Appellant.
    Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.
   WILSON, Circuit Judge:

Jay Frederick Nagel appeals his 292-month sentence, ijnposed after he pleaded guilty to three counts of enticement of a minor to engage in sexual activity under 18 U.S.C. § 2422(b). On appeal, Nagel challenges the procedural and substantive reasonableness of his sentence. However, after review of the record and consideration of the parties’ briefs, we determine that Nagel’s sentence is both procedurally and substantively sound. First, the district court’s decision not to group Count One and Count Two of Nagel’s convictions was in accordance with § 3D1.2 of the United States Sentencing Guidelines (the Guidelines) because the conduct underlying each ' count caused a separate and distinct harm to the victim. Next, the court gave an adequate explanation for the within-guideline sentence it imposed. Finally, the court acted within its discretion by selecting a substantively reasonable sentence; it did not, as Nagel argues, impose a sentence greater than necessary to comply with the statutory goals of sentencing. Accordingly, we affirm the district court.

I. BACKGROUND

A federal grand jury charged Nagel with three counts of using the internet to persuade, induce, entice or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). He was charged on Count One for his interactions with C.R., a minor female, between December 1, 2013 and April 23, 2014. This conduct included using an alias to talk to C.R. for several weeks via Facebook, engaging in sexually explicit conversations and exchanging explicit photographs, as well as convincing C.R. to meet him to engage in oral and vaginal sex at the store where he was employed on at least one occasion. He was charged on Count Two for his interactions with C.R. between April 27, 2014 and July 29, 2014, which culminated in oral and vaginal sex with C.R. at- his residence. He was charged on Count Three for his interactions with A.L., a different minor female, between April 15, 2014 and August 15, 2014, during which time he, using an alias, convinced A.L. to exchange sexually explicit pictures and engage in oral sex. Nagel entered into a written plea agreement, in which he agreed to plead guilty to all counts of the indictment.

The probation office prepared a presen-tence investigative report (PSI), which treated each of the three counts as its own separate and distinct group. For Group One, which consisted of his conviction on Count One, Nagel received an offense level of 34. Nagel was also assigned an offense level of 34 for both Group Two, which consisted of the conviction on Count Two, and Group Three, which consisted of the conviction on Count Three. Ultimately, based on these different offenses and related adjustments, Nagel received a total offense level of 39. Based on this offense level and Nagel’s criminal history category of II, the guideline imprisonment range was 292 to 365 months. For each of the three counts, there was a 10-year statutory minimum sentence and a statutory maximum life sentence.

Nagel objected to the PSI, arguing that Counts One and Two should be grouped together because they involved the same victim. He asserted that, if they were grouped together, the total offense level would be 38 and the guideline imprisonment range would be 262 to 327 months. He renewed this objection at sentencing and raised several arguments in favor of a lower sentence, including that the court should consider the need to avoid unwarranted sentencing disparities among defendants with similar conduct. The court received evidence such as Nagel’s psychological evaluation and heard testimony from Nagel’s friend, mother, father, and Nagel himself regarding Nagel’s character. It also considered testimony presented by the government from Detective Jeremy Sheppard, who worked on Nagel’s case. After hearing argument from both sides, the court overruled Nagel’s objections and accepted the sentencing calculations in the PSI. It imposed a sentence of 292 months’ imprisonment as to each count, to be served concurrently. This appeal ensued.

II. DISCUSSION

Nagel challenges the sentence imposed by the district court, alleging the district court erred by (1) refusing to group Counts One and Two of Nagel’s convictions; (2) failing to sufficiently explain the sentence it selected; and (3) exceeding the statutory goals of sentencing by imposing a sentence greater than necessary to comply with those goals. We address each argument in turn.

A.

We turn, first to-Nagel’s argument that the sentence imposed was procedurally unreasonable because the court did not group Count One and Count Two, which involved the same victim. Nagel acknowledges that, according to commentary in the Guidelines, convictions for raping the same person on different days are not to be grouped together. However, he contends that this non-grouping provision does not apply to cases in which the defendant merely enticed a minor individual to have consensual sex on more than one occasion. He argues that his conduct is distinguishable from the rape governed by the commentary because he did not force anyone to have sexual relations, pointing out that the Eleventh Circuit has not yet addressed whether this provision applies to non-forcible sexual misconduct.

We review the district court’s decisions regarding grouping de novo, but review its findings of fact only for clear error. United States v. McClendon, 195 F.3d 598, 600 (11th Cir. 1999) (per curiam). We have not yet addressed in a published opinion whether separate counts arising from distinct instances of non-forcible sexual conduct with the same minor victim must be grouped for sentencing purposes. However, we find it was proper for the district court to treat Nagel’s two counts of enticement of a minor — which involved sexual misconduct that occurred on different days — as not subject to grouping.

District courts are instructed “to group closely related convictions according to the rules in § 3D1.2.” United States, v. Marseille, 377 F.3d 1249, 1254 (11th Cir. 2004). Section 3D1.2 provides that, in general, “counts involving substantially the same harm shall be grouped together into a single [g]roup.” U.S.S.G. § 3D1.2. Counts involve substantially the same harm when, among other things: (1) they “involve the same victim and the same act or transaction,” or (2) they “involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” § 3D1.2(a), (b). This plain language .in addition to the guidance provided in the accompanying commentary makes clear that counts based on harm to the same victim will not be grouped if the offenses occurred on different occasions and involved “multiple, separate instances of fear and risk of harm.” See §' 3D1.2(b) cmt. n.4. In addition, according to example 5 of Application Note 4 in the commentary, counts are not grouped together if a “defendant is convicted of ... raping the same person on different days.” § 3D1.2 cmt. n.4, ex. 5. These various provisions are dispositive.

Nagel was convicted of sexual misconduct with C.R. on different occasions. He used Facebook to entice C.R. to have sexual relations with him during two distinct periods of time, each of which resulted in a separate instance of oral sex and sexual intercourse, several weeks apart. Specifically, Count One charged Nagel with enticing minor victim C.R. to engage in sexual activity between December 2013 and April 2014, which culminated with Nagel having oral and vaginal intercourse with C.R. on April 22, 2014, at the store where Nagel worked. Count Two charged Nagel with enticing C.R. to engage in sexual activity between April 27, 2014 and July 29, 2014, which ended with Nagel having oral and vaginal intercourse with C.R. sometime in July 2014 at his residence.

Each one of these sexual encounters with C.R. — who was unable to consent due to her age — caused a separate harm, even though they occurred with the same victim. See United States v. Bonner, 85 F.3d 522, 524-25 (11th Cir. 1996) (“Multiple, separate instances of fear and risk of harm, not one composite harm, occur when the defendant robs or rapes the same victim on different occasions.”); see also United States v. Bivens, 811 F.3d 840, 843 (6th Cir. 2016) (noting that, in the context of “sex crimes committed by the same defendant against the same victim over an extended period of time,” “each act usually amounts to a fresh harm the victim must face anew”). Thus, they are not subject to grouping under § 3D1.2(a). And the counts were not part of a single course of conduct with a single criminal objective, see § 3D1.2(b); instead, Nagel had two separate objectives, to have sexual relations with C.R. two separate times.

Moreover, Nagel’s emphasis on the consensual nature of the relationship is unpersuasive. Nothing precludes the non-grouping language in § 3D 1.2 and its accompanying commentary from applying to non-violent sexual offenses. As the Second Circuit has held, “use of force is not a requirement for placing the same crimes against the same person in separate groups. Crimes do not necessarily ‘involve substantially the same harm,’ which is the test for grouping under [§ ] 3D1.2, just because force is not used.” See United States v. Vasquez, 389 F.3d 65, 77 (2d Cir. 2004); see also United States v. Wise, 447 F.3d 440, 445-47 (5th Cir. 2006) (per curiam) (refusing to group counts for sexually explicit photographs of a minor taken on different days); United States v. Kiel, 454 F.3d 819, 822 (8th Cir. 2006); United States v. Big Medicine, 73 F.3d 994, 997 (10th Cir.1995). Further, example 5 of Application Note 4 broadly refers to “rap[e],” a comprehensive term which can encompass non-violent sexual offenses. Given the cross-references in the provisions to different forms of rape, it is likely that “the Sentencing Commission’s use of more inclusive terminology in Example 5 was intentional,” selected in order “to cover various forms of the crime.” See United States v. Von Loh, 417 F.3d 710, 712-14 (7th Cir. 2005) (finding that the exclusion under § 3D1.2 is"not limited in coverage to forcible rape, but applies to statutory rape as well).

Accordingly, in line with the plain language of the Guidelines and accompanying commentary, we find it was not erroneous for the district court to decline to group Nagel’s two counts of enticement of a minor under § 3D1.2. Even though the counts involved the same minor victim and no force, the sexual misconduct occurred on different days and involved separate instances of harm to the victim.

B.

Nagel also argues that his sentence is procedurally unreasonable because the court did not give sufficient reasons to justify the 292-month sentence. He alleges that the court failed to state its reasons for imposing his sentence as required by 18 U.S.C. § 3553(c). He further asserts that the court’s explanation was particularly inadequate when considering the factors in favor of a downward variance, which include his age, his criminal history, and the fact that the guideline sentence was heavily enhanced because of the nature of his crime. He also contends that several circuits have held that a summary statement like the one given by the court is not sufficient for appellate review.

A sentence can be procedurally unreasonable if the district court errs by, inter alia, “failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Considering the requirements for procedural reasonableness, the Supreme Court has instructed:

The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority. Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.

Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007) (citation omitted).

Here, the district court met these requirements. Before imposing the sentence, the court stated that it took into account the PSI, Nagel’s psychological evaluation, Nagel’s objection to the PSI, Nagel’s request for a downward variance, the letters filed on Nagel’s behalf, the testimony presented at sentencing, the statements of the parties, and the statutory factors set out in § 3553, indicating that it gave adequate consideration to the parties’ arguments. See id. at 356, 127 S.Ct. at 2468; United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (“In general, the district court is not required to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” (internal quotation marks omitted)).

And, after stating that it “had no doubt” that it could consider all of the § 3553(a) factors, the district court emphasized the severity of Nagle’s crimes, referring to them as “one of the most serious ones you can possibly have.” Even though the court did not repeat Nagel’s arguments, it is clear from the record that the court had a reasoned basis for imposing the sentence, as it found that other countervailing factors, specifically the need to “provide sufficient punishment and deterrence,” outweighed Nagel’s concerns. While Nagel relies on opinions from other circuits to argue that more of an explanation was required, the district court’s explanation sufficiently complies with precedents from the Supreme Court and this circuit. See Rita, 551 U.S. at 356, 127 S.Ct. at 2468; Sanchez, 586 F.3d at 936. That is to say, the record supports that the district court “consider[ed] the defendant’s arguments at sentencing and state[d] that it [took] the § 3553(a) factors into account.” See Sanchez, 586 F.3d at 936. Therefore, we find that the district court’s explanation of the sentence it imposed was sufficient.

C.

Nagel finally argues that his 292-month sentence is substantively unreasonable because it is beyond what was necessary to fulfill the statutory goals of sentencing. Nagel also contends that'his sentence violates the congressional policy of proportionality behind the Guidelines because it is more severe than the sentences received by many defendants who committed far more egregious acts.

We review the reasonableness of a sentence under a deferential abuse-of-discretion standard of review. United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in § 3553(a)(2), such as the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct and protect the public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). We will only vacate a sentence if we are convinced the sentence is outside the reasonable range of sentences for a given case. See Irey, 612 F.3d at 1189-90; United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).

In light of the record and the § 3553 factors, Nagel’s sentence is substantively reasonable. At the sentencing hearing, the district court noted that the nature of Nagel’s crimes was extremely severe and specifically stated that it selected a sentence it believed would “provide sufficient punishment and deterrence.” The seriousness of the offense, the provision of just punishment, and the need for deterrence are all § 3553(a) factors that support a sentence within the guideline range. Nagel’s argument — that his sentence was unreasonable because other defendants who have committed crimes more heinous than his own have received lighter sentences — lacks merit because, even if we would have determined a different sentence to be more appropriate, the district court’s imposed sentence was within the reasonable range of sentences warranted by the facts. See Irey, 612 F.3d at 1190. The district court was entitled to give more weight to the harmful nature of Na-gel’s offense and the need to deter such behavior than to the factors Nagel presented, such as his age, immaturity, and the fact that different defendants had received lower sentences. See United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (the weight given to any § 3553(a) factor is “committed to the sound discretion of the district court” (internal quotation mark omitted)).

Additionally, the reasonableness of the sentence is supported by its position at the lowest end of the applicable guideline range. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (commenting that the imposition of a sentence within the advisory guidelines range is ordinarily expected to be reasonable). The sentence is also significantly less than the applicable statutory maximum of life in prison, which points strongly to reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (noting that the reasonableness of a sentence may be indicated where the sentence imposed is well below the statutory maximum sentence). Given these factors and the deference afforded district court decisions under abuse of discretion review, we find no error as to the substantive reasonableness of Nagel’s sentence.

III. CONCLUSION

Having considered the record on appeal and the parties’ arguments contained in the briefs, we find no reversible error. Therefore, the district court is hereby

AFFIRMED.

      . The commentary to the Guidelines is authoritative. See U.S.S.G. § 1B1.7; see also Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993).