Locke v. Warren

611 F.Supp.3d 1375

Wendell LOCKE, Plaintiff,

v.Elizabeth WARREN, as Clerk of Courts, Defendant.

CASE NO. 19-61056-CIV-ALTMAN

United States District Court, S.D. Florida.

Signed February 10, 2020

Wendell Terry Locke, Locke Law, P.A., Plantation, FL, for Plaintiff.

Anthony Erickson-Pogorzelski, US Attorney's Office, Miami, FL, for Defendant.

AMENDED ORDER GRANTING MOTION TO DISMISS ¹

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss (the "Motion") [ECF No. 17], filed on August 28, 2019. The Plaintiff filed a Response in Opposition (the "Response") [ECF No. 20] on September 11, 2019. And the matter ripened on September 12, 2019, when the Defendant filed her Reply (the "Reply") [ECF No. 21].

THE FACTS

This case implicates the common law right of access to judicial records. See Complaint [ECF No. 1] ¶ 1. The Plaintiff, Wendell Locke, was the attorney of record in J. Pearl Bussey-Morice v. Patrick Kennedy (the "Bussey case"), a civil rights case in the Middle District of Florida. See id. ¶ 4. On January 8, 2015, the Court entered final judgment against the plaintiff in the Bussey case. See id. ¶ 5. The case was then "unilaterally" reassigned from Judge Charlene E. Honeywell to Judge Carlos E. Mendoza. See id.

In response to that reassignment, the Plaintiff called the Clerk's office to ask how (and why) the case had been reassigned. See id. ¶ 6. A member of the Clerk's office informed him that an operations manager had made the transfer. See id. Within "minutes" of that call, one of Judge Mendoza's law clerks called the Plaintiff and asked him if he had any questions about the reassignment. See id. ¶ 7. The clerk explained that there was a "Standing Order" regarding the reassignment—but, when pressed for a copy of that order, the clerk retracted that explanation. See id. Now changing his story, the clerk said that the case was reassigned because of an email that had been sent by a third federal judge, the Honorable Anne Conway. See id. ¶ 8. But, when the Plaintiff asked for a copy of that email, the clerk refused to produce it. See id.

On April 4, 2018, the Plaintiff sent the Clerk of Court for the United States District Court for the Middle District of Florida a written request for the following litany of what he calls "judicial records," see id. ¶ 9:

• Any and all emails, correspondence, and records from the Clerk regarding any policy changes of then Judge Anne C. Conway in 2014;

• Any and all emails, correspondence, and records from the Clerk regarding any policy changes of then Judge Anne C. Conway in 2015;

• Any and all emails, correspondence, and records from the Clerk regarding any policy changes by then Chief Judge Anne C. Conway in 2014 concerning assignment and/or reassignment of cases to or from Judge Charlene Edwards Honeywell;

• Any and all emails, correspondence, and records from the Clerk regarding any policy changes by then Chief Judge Anne C. Conway in 2015 concerning assignment and/or reassignment of cases to or from Judge Charlene Edwards Honeywell;

• Any and all emails, correspondence, and records from the Clerk regarding any policy changes by then Chief Judge Anne C. Conway in 2014 concerning assignment and/or reassignment of cases to or from Judge Carlos E. Mendoza;

• Any and all emails, correspondence, and records from the Clerk regarding any policy changes by then Chief Judge Anne C. Conway in 2015 concerning assignment and/or reassignment of cases to or from Judge Carlos E. Mendoza;

• Any and all emails, correspondence, and records concerning the case reassignment of case number 6:11-cv-970-Orl-41GJK to Judge Carlos E. Mendoza; and

• Any and all emails, correspondence, assignments, and records from Judge Charlene Edwards Honeywell to Carlos E. Mendoza concerning case number 6:11-cv-970-Orl-41GJK

Id. at 4–5. The Clerk's office did not respond to his request. See id. ¶ 10.

On April 18, 2019, the Clerk's office docketed the request in the Bussey case as a Motion to Disqualify. See id. ¶ 11–12. According to the Plaintiff, this "mischaracterization" of his request was "tantamount to the commission of wire fraud." See id. ¶ 13. Judge Mendoza likewise interpreted the request as a motion to disqualify—and promptly denied it. See id. ¶ 14–15.

The Plaintiff here (the attorney in the aforementioned case) filed this case on April 25, 2019. See generally Compl. In his Complaint, the Plaintiff levies two counts. First , he asserts the federal common law right of access to judicial records and seeks copies of the above-described correspondence. See id. at 6–8. Second , he asks this Court to declare that he is entitled to that correspondence. See id. at 9–11. On August 28, 2019, the Defendant, Elizabeth Warren, moved to dismiss, arguing both that the Court lacks subject matter jurisdiction to hear this case, see Mot. at 2–7, and that the Plaintiff fails to state a claim, see id. at 7–9.

THE LAW

Under Federal Rule of Civil Procedure 12(b), a defendant may move for dismissal of a claim on the basis of on one or more of seven specific defenses: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. See FED. R. CIV. P. 12(b).

A motion to dismiss under Rule 12(b)(1) may attack subject matter jurisdiction either facially or factually. Lawrence v. Dunbar , 919 F.2d 1525, 1528–29 (11th Cir. 1990). On a facial challenge, the Court must, as with other Rule 12(b) motions, limit its review to the factual allegations in the complaint—accepting well-pled allegations as true. Id. A factual attack, however, challenges "the existence of subject matter jurisdiction in fact" and requires that the Court examine materials outside of the pleadings, such as testimony, declarations, and affidavits, to ensure the proper exercise of its jurisdiction. Id.

"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

ANALYSIS

Article III of the United States constitution requires "a federal court to satisfy itself of its subject-matter jurisdiction before it considers the merits of a case." Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 575, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Because a suit against a federal officer is construed as a suit against the United States, see Hawaii v. Gordon , 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) —and given that the United States is generally immune from suit unless it has explicitly waived that immunity² —the Court must, before it may adjudicate the merits of the Plaintiff's claim, determine whether an explicit waiver of sovereign immunity has been established in this case.

I. Subject Matter Jurisdiction

The Plaintiff brings suit against Elizabeth Warren in her official capacity as Clerk of the United States District Court for the Middle District of Florida. See generally Compl. Suits against federal officials in their official capacities "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. N.Y.C. Dep't of Social Servs. , 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, where a federal official is sued in her official capacity, the doctrine of sovereign immunity applies. Kentucky v. Graham , 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). And, under that doctrine, the United States is generally immune from suit unless it has explicitly waived that immunity by statute. See S. Spanish Trail, LLC , 2019 WL 3285533, at *3 (citation omitted).

To be sure, this general rule is subject to a number of specific exceptions—among them, the " Larson - Dugan exception." See Larson v. Domestic & Foreign Commerce Corp. , 337 U.S. 682, 689, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) ; Dugan v. Rank , 372 U.S. 609, 621–622, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Under that exception, when a plaintiff seeks specific relief in the form of an order forcing a "public official to perform a duty imposed upon him in his official capacity ... no separate [statutory] waiver of sovereign immunity is needed." Washington Legal Found. v. United States Sentencing Comm'n , 89 F.3d 897, 901 (D.C. Cir. 1996) (describing the Larson - Dugan exception).

But the enactment of the Administrative Procedure Act (the "APA") in 1976 has cast grave doubts on the continued vitality of the Larson - Dugan exception. Specifically, because both the APA and the Larson - Dugan exception delineate the circumstances under which a federal official's sovereign immunity may be set aside, federal courts have openly questioned whether the APA has, by implication, abrogated the exception. See, e.g. , E.V. v. Robinson , 906 F.3d 1082, 1097 (9th Cir. 2018) (holding that the APA did not abrogate the Larson - Dugan exception in suits where the APA waiver of sovereign immunity does not apply), appeal docketed , No. 18-81400 (U.S. May 6, 2019); Danos v. Jones , 652 F.3d 577, 582 (5th Cir. 2011). This inquiry is not purely academic. In Block v. N. Dakota , the Supreme Court elected not to reach the question of Larson - Dugan ’s applicability to the issues presented in that case because the Quiet Title Act—a different federal statute that, no less than the APA, worked an explicit waiver of sovereign immunity—represented the only mechanism by which litigants could challenge the federal government's...