Appellate Circuit

Eleventh Circuit 3-Panel is Waxing and Waning about Judicial Transparency Rules in Order to Hide the Truth from Citizens

Two Senators, acting alone, cannot create a federal agency, the Eleventh Circuit wrote, denying a FOIA request for a federal judge’s nomination documents.


This case has the youngest judge at the Eleventh Circuit, Judge Britt Grant, authoring an opinion with the Pryor twins sitting either side, clucking in the background. As a sidebar note, at the annual Federalist Society meeting last year in D.C., Grant was introduced as a panel mediator and during the introduction, the audience was jokingly told that Judge Grant “had a separation of powers violation issue” due to all the departments and agencies in government she had worked in prior to her meteoric rise to the federal court of appeals. (Grant didn’t look too enamored with that analogy).

Before we delve into this case, it is worthy to note that Grant was also the short-straw 3rd panelist in a very controversial IRS Tax case, Champions Retreat Golf Founders, LLC v. Comm’r , No. 18-14817 (11th Cir. May 13, 2020), wherein she would be noted as a ‘dissenter’ in part (“I will concur due to judicial bench politics and friendships, but actually I don’t actually agree” was her final written statement).

Both these cases and their opinions by the Eleventh Circuit panel can be mapped to the Burkes motion to disqualify Judge Jill A. Pryor, a panel member in this case challenging the production of a judge’s nomination documents. The Burkes obtained and audited Pryors’ financial record for the year 2017 (2018 was tardy and still outstanding). During their audit, they found various issues and this is well-documented on Pryor’s page and also in the recent article regarding the Golf Tax case found here.

JNC Does Not Have to Release Florida Judge’s Federal Application After 11th Circuit Tosses Lawsuit

“Two Senators, acting alone, cannot create a federal agency,” the U.S. Court of Appeals for the Eleventh Circuit wrote, denying a Freedom of Information request for a federal judge’s nomination documents.

Originally published; May 22, 2020

A lawsuit that sought to compel a Florida judicial nominating commission to supply a copy of a federal judge’s application documents has faltered before the U.S. Court of Appeals for the Eleventh Circuit, which found there was no need for the commission to comply with a Freedom of Information Act request.

Plaintiff Joshua Statton of nonprofit government watchdog group Florida for Transparency sued in February 2019 after the Florida Federal Judicial Nominating Commission refused to provide the application form and supporting documents that U.S. District Judge Thomas P. Barber in the Middle District of Florida submitted before his elevation.

Statton alleged Barber had made false representations and material omissions on the documents, according to the Eleventh Circuit ruling.

Barber declined to comment on the case and is bound by a code of ethics that can prohibit judges from defending themselves from such allegations.

The Florida federal JNC is a long-standing system that’s been in effect since 1974.

Florida Sens. Marco Rubio and Bill Nelson formed this particular commission in April 2017 to help identify, vet and select candidates eligible for open judicial seats, according to the appellate opinion. Volunteers collected applications, called for public comment, and held interviews before sending a list of finalists to Rubio and Nelson, who could then conduct interviews and forward a list of finalists to the president.

The commission expired in January 2019 when the 115th Congress ended and Nelson left the Senate.

Statton’s lawsuit accused the commission and its former statewide chair Carlos Lopez-Cantera of an improper lack of transparency. Lopez-Cantera is also former lieutenant governor to former Florida Gov. Rick Scott.

But the Eleventh Circuit found U.S. District Judge Virginia Hernandez Covington was right to grant the defendants’ motion to dismiss because neither Lopez-Cantera nor the commission were federal agencies and therefore not subject to the Freedom of Information Act. That means the plaintiff failed to state a claim, according to the ruling.

Statton had argued the commission exerted executive authority because Article II gives presidents sole power to nominate judges. But the appellate panel disagreed, finding that any private organization could act as the commission does because “it takes no special authority to send out questionnaires and conduct interviews.”

“Any federal supervision over the commission began and ended with Florida’s United States Senators,” the opinion said. ”Two Senators, acting alone, cannot create a federal agency.”

Lopez-Cantera’s attorney Leonard Collins of GrayRobinson in Tallahassee argued that even if the commission had been subject to the FOIA, it couldn’t have complied because it didn’t even exist when Statton filed his request.

Collins also stressed that the JNC process acts only as a recommendation, because the president can nominate anyone he thinks is qualified.

“We’re pleased with the outcome,” Collins said. “There aren’t that many opinions on federal judicial nominating commissions, but there are a number of states that have them. So, from the perspective of creating good case law, it’s a good thing and it was a good written opinion.”

Collins worked on the case with M. Steven Turner of Nelson Mullins Riley & Scarborough’s Tallahassee office.

Statton represented himself in the litigation. He deferred comment to Florida for Transparency’s president Christina Paylan, who said she wasn’t surprised at the result, but hoped the lawsuit would air the organization’s concerns about the lack of civilian oversight for lifetime judicial appointments.

“Judges control every aspect of our lives. If you want to get a divorce, you have to go to court before a judge. If somebody’s harassing you, you have to go before a judge. If you have a business contract, you have to go before a judge,” Paylan said. “They even control afterlife, they control your inheritance. … How is it that we have zero regulation?”

Both Statton and Paylan have appeared in cases before Barber, according to online case files, which show Statton sought to remove the judge from a lawsuit against the Hillsborough County Sheriff’s Office and that he denied Paylan’s motion for bond in a criminal case.

On the issue of transparency, the Eleventh Circuit remarked that “the public’s rights under FOIA do not wax or wane depending on whether an organization publicly commits itself to transparency.”

“FOIA is not an available remedy merely because an interested citizen believes that some organization has violated its charter,” the opinion said. “It does not apply here.”

Circuit Judge Britt Grant wrote the ruling, backed by Judges William Pryor Jr. and Jill Pryor.



No. 19-11927

Non-Argument Calendar

D.C. Docket No. 8:19-cv-00485-VMC-CPT







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

(May 21, 2020)




Before WILLIAM PRYOR, JILL PRYOR, and GRANT, Circuit Judges. GRANT, Circuit Judge:

This appeal arises from a Freedom of Information Act suit filed against the Florida Federal Judicial Nominating Commission and its former statewide chair, Carlos Lopez-Cantera. The district court dismissed the suit for want of subject matter jurisdiction because neither the Commission nor Lopez-Cantera is an “agency” within the meaning of FOIA. The would-be plaintiff appeals pro se. We agree with the most important part of the district court’s order: the Commission is not an agency. But because this fact creates a defect in the merits of the complaint rather than in the district court’s jurisdiction, we hold that the complaint failed to state a claim upon which relief can be granted. On that basis, we affirm judgment in favor of the defendants.


In 2017, Florida’s United States Senators at the time, Marco Rubio and Bill Nelson, created the Florida Federal Judicial Nominating Commission, the latest in a long line of such commissions in Florida. Florida’s Senators provide the President recommendations for filling federal judicial vacancies within the state, and the Commission, according to its governing rules, “facilitate[d] the identification of excellent, highly-qualified, and eligible candidates” for those vacancies.

The Commission’s members were volunteers selected by the Senators from both the Florida Bar and the general public. Upon receiving a request from the Senators, the Commission began its selection process, which consisted of a call for applications, public comment, and interviews. After deliberations, the Commission sent a list of finalists to the Senators. The Senators had the option of interviewing the finalists and, if neither Senator objected, forwarding the list of finalists to the President. But “forwarding a name for consideration by the White House [did] not explicitly or implicitly indicate that a Senator [would] support that individual’s ultimate confirmation.” The Commission’s process and all of its rules were subject to amendment at the Senators’ sole discretion.

The Commission lapsed in January 2019 at the conclusion of the 115th Congress. A month later, Joshua Statton sent a Freedom of Information Act request to Lopez-Cantera in his capacity as the Commission’s former statewide chair. Statton, an officer at a government watchdog group called Florida for Transparency, believed that a particular judge had made false representations and material omissions on the application form he gave the Commission. Statton’s FOIA request sought a copy of the judge’s application, along with all supporting documentation that he provided. Lopez-Cantera did not comply, and Statton sued.

Lopez-Cantera moved to dismiss under Rule 12(b)(6), arguing that the Commission was not an “agency” for purposes of FOIA. Statton opposed the motion, claiming that the Commission was subject to FOIA because it was “an establishment formed at the behest of the President.” The district court ruled that neither Lopez-Cantera nor the Commission was an agency and dismissed Statton’s suit for lack of subject matter jurisdiction under Rule 12(b)(1). After the court denied Statton’s motion for reconsideration, this appeal followed.


When a district court dismisses a complaint for want of subject matter jurisdiction, we review the court’s legal conclusions de novo. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). We review de novo the district court’s ruling on a motion to dismiss for failure to state a claim, “accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).


We agree with the district court that “regardless of whether this action was dismissed under Rule 12(b)(1) or 12(b)(6), the issue was whether Lopez-Cantera or the [Commission] met the definition of an agency under FOIA.”  On appeal, Statton concedes that Lopez-Cantera, a private individual, cannot be sued under FOIA.1   That brings us to the first real issue: whether the Commission was a federal agency subject to FOIA.


Apart from exemptions not relevant here, FOIA requires federal agencies to make their records available to the public upon request. See generally 5 U.S.C. 552; see also Sikes v. U.S. Dep’t of Navy, 896 F.3d 1227, 1233 (11th Cir. 2018). FOIA defines an “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”

5 U.S.C. § 551(1). This 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. § 552(f)(1). Congress, however, is specifically excluded. Id. § 551(1)(A).

1 In any event, Lopez-Cantera, in his capacity as the statewide chair of the Commission, could be subject to FOIA only to the extent of the Commission itself. If the Commission has no obligations under FOIA, then neither do its individual members.

The Commission was not a federal agency.

In Statton’s reply to the motion to dismiss, he argued that because Article II gives the President the sole power to nominate judges, the Commission exercised executive power. Even construing his appellate brief to make the most of this argument, we find it wholly insufficient.

As the district court noted, the Commission’s role—suggesting judicial candidates to two Senators—was “separate and distinct from the President’s duties under the Appointments Clause.”

Any federal supervision over the Commission began and ended with Florida’s United States Senators.

The Commission was created by the Senators, not by a federal statute.

It did not begin its selection process until the Senators made a request. And its composition was completely under the control of the two Senators, who also retained the liberty to amend its Rules of Procedure at any time.

Two Senators, acting alone, cannot create a federal agency. 

Statton contends that we should apply Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993). There, the D.C. Circuit analyzed three factors to determine whether the President’s Task Force on Regulatory Relief was an agency: “[1] how close operationally the group is to the President, [2] what the nature of its delegation from the President is, and [3] whether it has a self-contained structure.”  Id. at 1293. Accord Soucie v. David, 448 F.2d 1067, 1073–75 (D.C. Cir. 1971).

But Meyer is a test for “determining whether those who both advise the President and supervise others in the Executive Branch exercise ‘substantial independent authority’ and hence should be deemed an agency subject to the FOIA.” Armstrong v. Exec. Office of the President, 90 F.3d 553, 558 (D.C. Cir. 1996).

The Commission does not exist in the Executive Branch, so Meyer is irrelevant.

We “read briefs filed by pro se litigants liberally.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

Even so, we see no hint that the Commission exercises any Executive Branch authority.

Statton says that the Commission has the “authority to hold hearings, review applications from judicial candidates, receive and request materials in furtherance of its decision on a final judicial nominee, all without input or advice” from the President.

No matter—any private organization could do the same thing.

It takes no special authority to send out questionnaires and conduct interviews; the Commission’s influence derived not from any special legal authority, but from the sponsorship of two U.S. Senators.

Statton also raises arguments based on the Commission’s own rules. By his lights, since the rules provide for public participation in the selection process, members of the public “must have a process through which they can grieve and obtain these publicly available documents.”

But the public’s rights under FOIA do not wax or wane depending on whether an organization publicly commits itself to transparency.

And FOIA is not an available remedy merely because an interested citizen believes that some organization has violated its charter. It does not apply here.


Where we part ways with the district court is on its jurisdictional conclusion.

The district court said that because the Commission was not an agency—and Statton thus did not request agency records—the complaint must be dismissed for want of subject matter jurisdiction.

True, FOIA says that the district court “has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).

But jurisdiction “is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (citation omitted).

As the Supreme Court has explained, “it is commonplace for the term to be used” to mean “the remedial powers of the court.” Id. (emphasis in original) (collecting statutes).

And that is exactly what the word jurisdiction means in 552(a)(4)(B): the ability to devise remedies rather than the ability to hear cases. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“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.”).

We recently made this same distinction clear in Sikes. There, the district court dismissed a FOIA suit, finding no jurisdiction because the plaintiff did not establish that the requested documents had been improperly withheld. See 896 F.3d at 1232–33 n.2.

We said that “despite the district court’s characterization of its order, it should properly be viewed as one for failure to state a claim upon which relief may be granted.” See id. at 1233 n.2 (citing Main St. Legal Servs., Inc. v. Nat’l Sec. Council, 811 F.3d 542, 566–67 (2d Cir. 2016)).2

Here, too, the district court should have exercised jurisdiction over the case.


The parties presented their case on the merits to the district court, and it is on those grounds that we decide the case today. That means we need not address Statton’s argument that the district court denied him due process by raising sua sponte the court’s subject matter jurisdiction without giving Statton an opportunity to respond.


We may affirm the judgment below on any ground supported by the record, regardless of whether it was relied on by the district court. See Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012). Because the Commission is not an agency subject to FOIA, Statton has not stated a claim on which relief can be granted. We affirm judgment in favor of the defendants.


2 The district court implied that this position is at odds with Alley v. U.S. Dep’t of Health & Human Servs., 590 F.3d 1195 (11th Cir. 2009). But Alley said that the requirements in 552(a)(4)(B) are prerequisites “[b]efore an injunction may issue”—not that they were required for the court to have jurisdiction to hear the case. Id. at 1202; see also U.S. Dep’t of Justice v.  Tax Analysts, 492 U.S. 136, 142 (1989) (unless the requirements of § 552(a)(4)(B) are met, “a district court lacks jurisdiction to devise remedies” (emphasis added)).
Eleventh Circuit 3-Panel is Waxing and Waning about Judicial Transparency Rules in Order to Hide the Truth from Citizens
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