Locke v. Warren

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-61056-CIV-ALTMAN

WENDELL LOCKE,

Plaintiff,

v.

ELIZABETH WARREN,

as Clerk of Courts.

Defendant.

______________________________/

ORDER

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 court then “unilaterally” reassigned the case 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, 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, in its efforts to make sense of why a practicing

attorney would request the private correspondence of three federal judges, 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.

For reasons unrelated to the request for judicial records, the Plaintiff was sanctioned for

his conduct in the Bussey case. See generally Bussey-Morice v. Kennedy, No.

611CV970ORL41GJK, 2018 WL 4101004, at *18 (M.D. Fla. Jan. 12, 2018), reconsideration

denied, No. 611CV970ORL41GJK, 2018 WL 4091899 (M.D. Fla. Aug. 27, 2018), aff’d sub nom.

Bussey-Morrice v. Kennedy, 775 F. App’x 1003 (11th Cir. 2019).1 J. Pearl Bussey-Morice, the

Plaintiff in that case, appealed the sanctions ruling to the Eleventh Circuit Court of Appeals, where

he argued that, because the reassignment had been improper, Judge Mendoza (the judge to whom

the Bussey case had been reassigned) lacked jurisdiction to impose the sanctions. See Bussey-

Morrice v. Kennedy, 775 F. App'x 1003, 1004 (11th Cir. 2019). The Eleventh Circuit rejected that

argument. See id.

The Plaintiff (the sanctioned attorney in the Bussey 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

1 “A district court may take judicial notice of certain facts without converting a motion to dismiss

into a motion for summary judgment.” Universal Express, Inc. v. SEC, 177 F. App’x 52, 53 (11th

Cir. 2006) (citation omitted). And public court records “are among the permissible facts that a

district court may consider.” Id. (citations omitted). This Court thus takes judicial notice of the

public judicial records—e.g. the briefs and court opinions—that were filed in the Bussey case.

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 is only granted when the movant demonstrates ‘beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”

Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (citing Conley

v. Gibson, 355 U.S. 41, 45–46 (1957)). “On a motion to dismiss, the facts stated in appellant’s

complaint and all reasonable inferences therefrom are taken as true.” Stephens v. Dep’t of Health

and Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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 (quoting Twombly, 550 U.S. at 555).

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 (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 (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 (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 (1985). And,

2 See S. Spanish Trail, LLC v. Globenet Cabos Submarinos Am., Inc., No. 19-80240-CIV-

ALTMAN, 2019 WL 3285533, at *3 (S.D. Fla. July 22, 2019) (citing Zelaya v. United States, 781

F.3d 1315, 1322 (11th Cir. 2015)).

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 (1949); Dugan v. Rank, 372 U.S. 609, 621–622 (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 title to real

property. See Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983).

Block thus suggests that, at least with respect to claims under the Quiet Title Act, Larson-Dugan

is no longer viable. Of course, the Supreme Court has not yet reached the salient question here:

whether the APA similarly supplants the Larson-Dugan exception in suits seeking to enforce the

federal common law right of access to public records.

Fortunately, this Court need not reach this thorny question here. Because the Plaintiff has

not sought to quiet title, Block plainly does not apply. And the APA is equally inapplicable because

its waiver of sovereign immunity governs only “agencies,” see 5 U.S.C. § 702—and, by its terms,

the APA expressly excludes “the courts of the United States” from its definition of “agencies,” see

5 U.S.C. § 701(b)(1)(B). Larson-Dugan is thus the only doctrine that might except the Defendant’s

sovereign immunity here.

In her Motion, the Defendant argues that Larson-Dugan does not apply to this case because

there “is no allegation of action taken in violation of statutory limits or of an unconstitutional act.”

Mot. at 6. Relying on Larson, she notes that the Supreme Court limited the exception to cases in

which the federal official exceeded her statutory authority or otherwise acted in an unconstitutional

way. See, e.g., Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1226 (5th Cir. 1976)

(outlining the contours of the Larson-Dugan exception).3 In fact, the Defendant adds, in Larson

itself the Supreme Court rejected the plaintiff’s invitation to expand the exception to a “third

category of cases”—those in which an official’s actions are “illegal as a matter of general law,

whether or not it be within his delegated powers.” Larson, 337 U.S. at 692. Against all this, the

Plaintiff failed to identify even a single statute that would have directed Ms. Warren to release the

3 Decisions of the former Fifth Circuit issued prior to October 1, 1981, are binding precedent in

this Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

records he requested—a failure that, the Defendant says, is fatal to his claim that the Larson-Dugan

exception has been satisfied.4

But, unfortunately for the Defendant, the statute dealing with the “Powers and duties of

clerks and deputies,” 28 U.S.C. § 956, provides that the “clerk of each court and his deputies and

assistants shall exercise the powers and perform the duties assigned to them by the court.” 28

U.S.C. § 956.5 Put another way, if the Local Rules of the Middle District of Florida govern the

circumstances under which the Clerk of Court is permitted to release court files, then the Clerk’s

decision not to release those files could, at least theoretically, violate the statute. And they do.

Local Rule 1.08 provides that “Court files or other papers or records in the possession of the Clerk

may be removed from the Clerk’s Office only upon written permission or order of the Court which

shall specify the time within which the same shall be returned.” M.D. Fla. L.R. 1.08.

Thus, while it is true that, as the Defendant points out, the right to inspect judicial records

is a right rooted in the common law, see Mot. at 7, the Clerk’s decision to release (or, as the case

may be, not to release) those records is, at least in the Middle District of Florida, guided by a

federal statute. In this way, the merits of the Plaintiff’s claim—whether the Clerk violated her

statutory duty—is inextricably entwined with the all-important question of jurisdiction. See

Washington Legal Found., 89 F.3d at 901–02 (whether “the Larson-Dugan exception applies to

this case depends upon whether the Government has a duty to the plaintiff, viz. to allow it access

to certain government records . . . .” In such cases, “the question of jurisdiction merges with the

question on the merits, to which we now turn.”).

4 There is no plausible claim that the Clerk’s refusal to turn over the records violated the Plaintiff’s

constitutional rights—the only other avenue left open by Larson. See, e.g., Naylor, 530 F.2d at

1226.

5 Because the Court must satisfy itself of the extent of its own jurisdiction, see Ruhrgas, 526 U.S.

at 575, the Plaintiff’s failure to cite this statute is of no moment here.

II. The Common Law Right of Access

“It is clear that the courts of this country recognize a general right to inspect and copy

public records and documents, including judicial records and documents.” Nixon v. Warner

Commc'ns, Inc., 435 U.S. 589, 597 (1978). This right extends to both the media and the general

public. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir.

2001). Notably, the party seeking access to the records need not establish any proprietary interest

in them. See Nixon, 435 U.S. at 589.

The right to inspect and copy judicial records is founded on the presumption that “criminal

and civil actions should be conducted publicly,” and that public access is “an essential component

of our system of justice” because it is “instrumental in securing the integrity of the process.” FTC

v. AbbVie Prod. LLC, 713 F.3d 54, 62 (11th Cir. 2013) (citations omitted) (cleaned up). In this

important way, public access “protects the citizen’s desire to keep a watchful eye on the workings

of public agencies” and marshals “a newspaper publisher’s intention to publish information

concerning the operation of government.” Comm’r, Alabama Dep’t of Corr. v. Advance Local

Media, LLC, 918 F.3d 1161, 1166 (11th Cir. 2019) (citing Nixon, 435 U.S. at 597–98).

Whether a document is a judicial record subject to the common law right of access is a

question of law for the Court. See Advance Local Media, 918 F.3d at 1165. The Eleventh Circuit

has held that the common law right of access applies only to judicial documents that are “integral

to judicial resolution of the merits.” See id. at 1167–68 (collecting cases). A document need not be

filed on the docket to be protected. See Newman v. Graddick, 696 F.2d 796, 799 (11th Cir. 1983)

(a list of prisoners is subject to the right). Generally, however, the “common-law right of access

does not extend to information collected through discovery which is not a matter of public record.”

In re Alexander Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987). But, where a document is

filed on the public docket, the type of filing to which it is attached is a factor for the Court to

consider in deciding whether the document constitutes a judicial record. See Advance Local Media,

918 F.3d at 1166–68.

Even if a document is a judicial record, however, the “common law right of access may be

overcome by a showing of good cause, which requires balanc[ing] the asserted right of access

against the other party’s interest in keeping the information confidential.” Romero v. Drummond

Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007) (cleaned up). Thus, if a court concludes that a

particular document is a judicial record, it must then “balance [the] competing interests of the

parties . . . in light of the relevant facts and circumstances of the particular case.” Advance Local

Media, 918 F.3d at 1166–68 (citations omitted). In determining whether a defendant has

established “good cause” to overcome the common law right, courts look to the nature and

character of the information requested and evaluate such factors as “whether the records are sought

for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage,

whether access is likely to promote public understanding of historically significant events and

whether the press has already been permitted substantial access to the contents of the records.”

Newman, 696 F.2d at 803; see also Romero, 480 F.3d at 1246.

The eight document requests the Plaintiff propounded on the Clerk’s office can be roughly

grouped into the following four categories: (i) the “policy changes” of two federal judges; (ii) the

specific “policy changes” of Judge Conway; (iii) records relating to the reassignment of cases

generally, and the reassignment of the Bussey case specifically; and (iv) the private correspondence

between Judge Honeywell and Judge Mendoza about the Bussey case. See Compl. at 4–5.

These are not judicial records. None of these documents were filed with the Court. None

were attached to any motion—substantive or otherwise. None were analyzed by the parties in

relation to the underlying dispute. And none were relied upon by Judge Mendoza either in

dismissing the Bussey case or in sanctioning the Plaintiff. In short, none of these records were in

any way “integral” (or, for that matter, related) to the Court’s resolution of Bussey’s merits. C.f.

Advance Local Media, 918 F.3d at 1167–68.

Some recent decisions from the Eleventh Circuit lend further support to this conclusion. In

Chicago Tribune, for instance, the court drew a distinction between records obtained through

discovery and records attached to a substantive filing, holding that “material filed with discovery

motions is not subject to the common-law right of access, whereas discovery material filed in

connection with pretrial motions that require judicial resolution of the merits is subject to the

common-law right.” Chicago Tribune Co, 263 F.3d at 1312. Similarly, in Advance Local Media,

the Eleventh Circuit, broadening the standard it announced in Chicago Tribune, ruled that a lethal

injection protocol constituted a judicial record, even though it was never filed with the court,

“because it was submitted to the district court to resolve disputed substantive motions in the

litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and

was unambiguously integral to the court’s resolution of the substantive motions.” Advance Local

Media, LLC, 918 F.3d at 1168.

None of the relevant factors outlined in either Chicago Tribune or Advance Local Media

are present here. The Plaintiff seeks records that were never submitted to the Court, were not

discussed by the parties, and were in no way necessary to the resolution of the Bussey case. The

Plaintiff’s claim thus fails both the rule enunciated in Chicago Tribune—because it was not

attached to a substantive motion—and the more permissive standard set out in Advance Local

Media (because it was unnecessary to the court’s resolution of Bussey’s merits).

Relying on In re Brown, 346 F.2d 903 (5th Cir. 1965), the Plaintiff suggests that an

improper case reassignment may be relevant to the transferee court’s jurisdiction. But the issue in

In re Brown—as the Plaintiff himself identifies, see Resp. at 8 n.19—was whether counsel in a

specific case could be sanctioned by a judge to whom the case had not been assigned. See In re

Brown, 346 F.2d at 910. That question is plainly irrelevant here, where Judge Mendoza—to whom

the Bussey case was indisputably assigned—sanctioned the Plaintiff for his actions in that case. In

any event, the Eleventh Circuit has already rejected the Plaintiff’s argument that, because of the

allegedly improper reassignment, Judge Mendoza was without jurisdiction to sanction him. See

Bussey-Morrice, 775 Fed. Appx. at 1004. Thus, even if the Plaintiff could argue that the documents

he seeks are integral to some dispute over Judge Mendoza’s jurisdiction to hear the Bussey case,

see Resp. ¶ 8—an argument he would likely lose in any case6—his contention would be foreclosed

by the Eleventh Circuit’s decision in Bussey. See Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489, 1498 (11th Cir. 1996).

In short, neither the Judges’ various “policy changes,” their documents relating to the

reassignment of the Bussey case, nor their private correspondence about the Bussey decision were

“integral to judicial resolution of the merits” of a case. Advance Local Media, 918 F.3d at 1167–

68. Those documents are thus plainly not judicial records—and, as such, the Court need not reach

the secondary question of whether the balance of relative interests favors the Plaintiff here.

Because, in short, the Defendant did not violate the Middle District of Florida’s Local Rules in

refusing to release the records, her actions likewise did not constitute violations of 28 U.S.C. §

956. By definition, then, her decision did not, as the Plaintiff avers, work a waiver of her sovereign

6 See Advance Local Media, 918 F.3d at 1167-68 (holding that the common law right of access

applies only to judicial documents that are “integral to judicial resolution of the merits” of a case).

immunity under Larson-Dugan. See Naylor, 530 F.2d at 1226. The Court thus lacks subject-matter

jurisdiction over this case. See S. Spanish Trail, LLC, 2019 WL 3285533, at *3 (citation omitted).

Accordingly, the Court hereby

ORDERS and ADJUDGES that the Defendant’s Motion to Dismiss [ECF No. 17] is

GRANTED. This case is DISMISSED with prejudice. The Clerk of Court is directed to CLOSE

this case. Any pending motions are DENIED as moot.

DONE AND ORDERED in Fort Lauderdale, Florida this 30th day of September 2019.

“a

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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