Statton v. Fla. Fed. Judicial Nominating Comm'n

JOSHUA STATTON, Plaintiff, v. FLORIDA FEDERAL JUDICIAL NOMINATING COMMISSION andCARLOS LOPEZ-CANTERA, Defendants.

Case No. 8:19-cv-485-T-33CPT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

April 22, 2019

ORDER

Before this Court is Defendant Carlos Lopez-Cantera's Motion to Dismiss (Doc. # 7), filed on March 29, 2019. Plaintiff Joshua Statton responded in opposition on March 31, 2019 (Doc. # 8), and Lopez-Cantera replied on April 5, 2019. (Doc. # 10). For the reasons that follow, the motion is granted and the case is dismissed for lack of subject matter jurisdiction.

I. Background

Statton brings this Freedom of Information Act (FOIA) action against Defendant Florida Federal Judicial Nominating Commission (FFJNC) and Lopez-Cantera, the chair of the FFJNC. (Doc. # 1). According to Statton, Lopez-Cantera and the FFJNC — formed by Senator Marco Rubio and then-Senator Bill Nelson to select federal judicial candidates for recommendation to the President — are withholding records on a judicial nominee that Statton requested under FOIA. (Id. at ¶¶ 4, 6, 20). Lopez-Cantera has now moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing Statton has failed to state a claim because the FFJNC is not an "agency" as defined by FOIA. (Doc. # 7).

In support of his motion, Lopez-Cantera attaches the FFJNC's rules of procedure. (Doc. # 7-1). According to the rules, "[u]pon the request of the President of the United States, Florida's United States Senators provide to the President the names of persons to be considered for nomination to be U.S. District Judge for the [federal districts within Florida]." (Id. at 2). Thus, Florida's U.S. Senators jointly established the FFJNC "to conduct a selection process that identifies the most qualified finalists to serve" as U.S. district court judges in Florida. (Id.). "At the request of the Senators, the [FFJNC must] commence the selection process by inviting applications for specified positions." (Id.). After the FFJNC selects the finalists, the Senators will interview those finalists. (Id. at 2-3). If neither Senator objects to the finalists, the Senators will "transmit to the White House a list of finalists." (Id. at 3, 6-7).

The rules further provide that in addition to the two founding Senators, membership consists of individuals selected by the Senators who "may be members of the Florida Bar or the general public." (Id. at 3). Because membership is voluntary, members "are responsible for all expenses associated with their service on the [FFJNC]." (Id. at 4). The terms of all members "end on the second anniversary of appointment or the last day of the Congress during which the member serves, whichever comes first." (Id.). The rules imply they are applicable for the "2017-2019 Term," and Lopez-Cantera notes the FFJNC lapsed at the conclusion of the 115th Congress on January 3, 2019. (Id. at 2; Doc. # 7 at ¶ 6). Thus, the FFJNC appears to be a temporary commission.

Statton responded to Lopez-Cantera's motion to dismiss arguing the FFJNC is an agency as defined by FOIA because it is an establishment in the executive branch. (Doc. # 8 at 4-5). At the Court's direction, Lopez-Cantera filed a reply addressing Statton's contention that the FFJNC is an executive - rather than a legislative - agency subject to FOIA. (Doc. ## 9-10).

II. Legal Standard

Lopez-Cantera moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6). (Doc. # 7 at 1).However, "FOIA grants district courts jurisdiction" only where the plaintiff "show[s] that the agency has 1) improperly 2) withheld 3) agency records from [him]. Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation." Alley v. U.S. Dep't of Health & Human Servs., 590 F.3d 1195, 1202-03 (11th Cir. 2009) (citations and quotation marks omitted); see also U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) ("Unless each of these criteria is met, a district court lacks jurisdiction."). Thus, the determination of whether an entity meets the definition of an agency under FOIA is a jurisdictional question. Alley, 590 F.3d at 1202-03; see also Pavlenko v. Dep't of Treasury Internal Revenue Serv., 356 F. App'x 293, 295 (11th Cir. 2009) (affirming dismissal of FOIA action for lack of subject matter jurisdiction).

The Court acknowledges that the Eleventh Circuit recently cited Main Street Legal Services, Inc. v. National Security Council, 811 F.3d 542, 566-67 (2d Cir. 2016), in which the Second Circuit held whether an agency is subject to FOIA should be determined on the merits and not on a motion to dismiss for lack of subject matter jurisdiction. See Sikesv. U.S. Dep't of the Navy, 896 F.3d 1227, 1232 n.2 (11th Cir. 2018). Nevertheless, this Court is bound by the Eleventh Circuit's prior decisions "unless and until [they are] overruled by th[e] court en banc or by the Supreme Court." United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). And regardless, the Eleventh Circuit has yet to expressly follow the Second Circuit's holding in Main Street Legal Services.

Therefore, the Court will consider Lopez-Cantera's motion a motion for lack of subject matter jurisdiction under Rule 12(b)(1). Furthermore, because jurisdiction is at issue, the Court will also determine whether the FFJNC is subject to FOIA, even though it has not yet made an appearance in this action. See (Doc. # 10 at 1 n.1); Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) ("A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises.").

Motions to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). When the jurisdictional attack is factual, the Courtmay look outside the four corners of the complaint to determine if jurisdiction exists. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982). In a factual attack, the presumption of truthfulness afforded to a plaintiff under Rule 12(b)(6) does not attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Because the very power of the Court to hear the case is at issue in a Rule 12(b)(1) motion, the Court is free to weigh evidence outside the complaint. Eaton, 692 F.2d at 732.

III. Analysis

"FOIA generally requires agencies to make their records available to the public upon request, subject to certain exemptions." Sikes, 896 F.3d at 1233. FOIA incorporates the Administrative Procedure Act (APA)'s definition of "agency." 5 U.S.C. § 552(f)(1). Under FOIA, "agency" is defined as "each authority of the Government of the United States," which "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." Id. §§ 551(1); 552(f)(1). The definition of an agency also has numerous exclusions. Forexample, the definition does not include Congress, legislative agencies, and entities established within the legislative branch. Id. § 551(1); Colonial Press Int'l, Inc. v. United States, 788 F.3d 1350, 1357 (Fed. Cir. 2015) ("'Congress' in § 551(1) refers to legislative agencies and departments generally."); Wash. Legal Found. v. U.S. Sentencing Comm'n, 17 F.3d 1446, 1449 (D.C. Cir. 1994) ("[W]e have interpreted the . . . exemption for 'the Congress' to mean the entire legislative branch [including legislative agencies].").

In this case, Lopez-Cantera is a private individual, not an agency. See Del Fuoco v. O'Neill, No. 8:09-cv-1262-T-27MAP, 2011 WL 601645, at *10 (M.D. Fla. Feb. 11, 2011) (noting the FFJNC's former chairman was not an agency as defined by 5 U.S.C. § 552(f)). Indeed, private individuals are not proper defendants in FOIA actions. See Dorn v. Comm'r, No. 2:03-cv-539-FtM-29SPC, 2004 U.S. Dist. LEXIS 18962, at *4-5 (M.D. Fla. Aug. 25, 2004) ("FOIA does not create a cause of action against individual employees of an agency."); Friedman v. F.B.I., 605 F. Supp. 306, 317 (N.D. Ga. 1981) ("[T]he language of the act clearly states that only an agency may be sued and the court has no jurisdiction over individual department heads."). Consequently, because Lopez-Cantera isnot an agency, he is not subject to FOIA. See Martinez v. U.S. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (affirming dismissal of individual defendants in FOIA action); Petrus v. Bowen, 833 F.2d 581, 582-83 (5th Cir. 1987) (same).

The FFJNC does not fit within FOIA's definition of an agency either. Regardless of the statutory exclusions to the definition, the FFJNC must be an authority of the federal government to be an agency under FOIA. See New York v. Atl. States Marine Fisheries Comm'n, 609 F.3d 524, 532 (2d Cir. 2010) ("[T]he statutory exclusions from the coverage of the APA appl[y] only to bodies that would otherwise be 'authorit[ies] of the [g]overnment of the United States.'"); see also Int'l Brominated Solvents Ass'n v. Am. Conference of Governmental Indus. Hygienists, Inc., 393 F. Supp. 2d 1362, 1388 (M.D. Ga. 2005) (explaining an organization must first be considered a governmental entity to be an agency). This requires a "threshold showing of substantial federal supervision." Forsham v. Harris, 445 U.S. 169, 180 n.11 (1980); see also Robbins v. N.Y. Corn & Soybean Growers Ass'n, Inc., 244 F. Supp. 3d 300, 306 (N.D.N.Y. 2017) ("Courts have applied this same threshold showing to congressionally created commissions.").

The FFJNC was created by two Senators to assist them...