Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 1 of 12 PageID 70 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

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1 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 1 of 12 PageID 70 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CITY OF ORLANDO, Plaintiff, CASE NO. 6:16-cv-1169-ORL-40 DAB v. THE ASSOCIATED PRESS; and THE UNITED STATES DEPARTMENT OF JUSTICE, Defendants. / THE NEWS MEDIA S EMERGENCY MOTION TO REMAND WITH SUPPORTING MEMORANDUM OF LAW Pursuant to 28 U.S.C. 1447(c) and Local Rule 3.01(e), the News Media, 1 hereby move to remand this case back to state court for further proceedings. The United States Department of Justice ( DOJ ) has removed this Florida Public Records Act matter to federal court. However, neither this Court nor the state court from which it was removed have subject matter jurisdiction over DOJ in this case. As a result, and as explained in greater detail in the accompanying Memorandum of Law, this case should be remanded back to state court. This 1 The News Media comprise the coalition of national and local news media organizations who filed suit against the City of Orlando ( City ) to enforce their rights under Florida s Public Records Act. They include: ABC, Inc.; The Associated Press; CBS Corp.; Chicago Tribune Company, LLC; Cable News Network, Inc. ( CNN ); Dow Jones & Company; the First Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; GateHouse Media, LLC; Graham Media Group, Florida, Inc.; Graham Media Group, Orlando, Inc.; Knight News, Inc.; Los Angeles Times Communications LLC; The McClatchy Company; NBCUniversal Media, LLC; The New York Times Company; Orlando Sentinel Communications Company, LLC; The Palm Beach Post; Politico, LLC; The Reporters Committee for Freedom of the Press; Scripps Media, Inc.; Sun-Sentinel Company, LLC; WFTV, Inc.; WOFL FOX 35; WP Company LLC d/b/a The Washington Post; and WTVT FOX 13.

2 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 2 of 12 PageID 71 matter is of an emergency nature because the Florida Public Records Act guarantees litigants the right to an immediate hearing to enforce their state constitutional and statutory rights to access state and local public records. As discussed below, expedited hearings were set in this matter but were abruptly cancelled upon DOJ s removal of this case to this Court. In order to prevent further delay, the News Media respectfully request that this Court resolve this Motion in an expedited manner. Additionally, pursuant to 28 U.S.C. 1447(c), the News Media seek an award of their attorneys fees, costs, and expenses related to DOJ s improper removal of this matter, and this resultant Emergency Motion. MEMORANDUM OF LAW Background This case is a dispute solely between the News Media and the City (who is the custodian of the local public records at issue). DOJ has been sued by the City but it is simply one of perhaps many parties standing on the sidelines who, while they may have an opinion on whether the documents should be released, are not proper parties to this dispute and do not inform the legal issues to be resolved under Florida s Public Records Act. The peculiar procedural history in this case is presented in detail as it bears upon the propriety of the City s action and why this case should be remanded to state court. On June 23, 2016, at 12:13 p.m., the News Media filed an action ( Complaint ) in Orange County Circuit Court to enforce the Florida Public Records Act against the City. The News Media seek access to and copies of certain 911 and other telephone call recordings, related to the June 12, 2016, mass shooting at Pulse nightclub ( Pulse ). A true and correct copy of the first page of the Complaint, noting its time of filing is attached as Exhibit A. 2

3 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 3 of 12 PageID 72 At 12:31 p.m., shortly after filing the Complaint, counsel for the News Media ed a courtesy copy of the filed Complaint to counsel for the City of Orlando, Mayanne Downs. A true and correct copy of that correspondence (without attachments) is attached as Exhibit B. Despite actual knowledge that the News Media s Complaint had already been filed, the City then filed a separate Complaint for Declaratory Relief ( Declaratory Action ) against The Associated Press only, who is part of the coalition that filed the News Media s Complaint. The City filed its Declaratory Action at 12:55, nearly 40 minutes after the News Media had filed their Complaint. A true and correct copy of the Declaratory Action, noting its time of filing is attached as Exhibit C. The City s declaratory lawsuit was and remains wholly duplicative of the News Media s Complaint in that it asks for a declaration that Sections (2)(c)(1) and/or (2), Florida Statutes, exempt the recordings related to the June 12, 2016 Pulse shooting ( Pulse Shooting ) from Chapter 119, Florida Statutes (Florida s Public Records Act). In requesting such relief, it also claims that the Federal Bureau of Investigation ( FBI ), a component of DOJ, has requested that the City not release the local agency public records at issue. Despite the fact that the News Media s Complaint was filed before the City s Complaint for Declaratory Relief, on June 23 the City apparently requested that the Orange County Circuit Court Clerk s Office immediately assign a case number and issue a summons in its case. The City s case was then processed before the News Media s first-filed Complaint and assigned a lower case number. The City s summons was also issued on June 23, while the News Media s summons was issued the next day. On June 24, pursuant to standing administrative orders, the News Media s first-filed lawsuit was sua sponte reassigned to the judge assigned the City s lower-numbered case (Judge Schreiber). Later that day, Judge Schreiber sua sponte consolidated the two cases under the 3

4 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 4 of 12 PageID 73 lower case number because both cases involve essentially the same parties and generally involve the same issues concerning requests for public records. Expedited hearings before Judge Schreiber 2 pursuant to Section (1), Florida Statutes, were noticed in this matter for June 28 (30-minute hearing at 3:00 p.m.) and June 30 (2-hour hearing at 1:30 p.m.). Because Florida law is clear that a later-filed declaratory action cannot lie when a lawsuit has already been filed that will address the issues raised in the declaratory action, The Associated Press filed a Motion to Dismiss the City s Declaratory Action on June 27, Later that same day, rather than taking the legally proper route and dismissing its later-filed action, the City elected to file an Amended Declaratory Action. A true and correct copy of the City s Amended Declaratory Action is attached as Exhibit E. Substantively, the Amended Declaratory Action is unchanged and seeks the same relief as the original filing. However, in the amended filing the City added DOJ as a defendant, an entity whose own preferences regarding disclosure of the state records at issue apparently fully align with the secrecy relief the City seeks. The Amended Declaratory Action contains no allegations against DOJ and seeks no relief against it. In short, the (improperly-filed) Amended Declaratory Action remains a matter where the City seeks a court declaration that the records at issue are exempt from disclosure under the Florida Public Records Act. 2 Those dates and times were originally set by the judge who was initially assigned the News Media s complaint when chambers contacted counsel for the News Media on June 24 to set expedited hearings as the Florida Public Records Act requires. Once the case was transferred to Judge Schreiber, she honored those pre-set dates. 3 That same day the News Media filed an Amended Complaint. The Amended Complaint is substantively unchanged from the original but adds additional media parties. A true and correct copy of the operative Amended Complaint is attached as Exhibit D. 4

5 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 5 of 12 PageID 74 On the morning of June 28, The Associated Press moved to dismiss the Amended Declaratory Action on the same legal grounds as its previously-filed motion to dismiss. A true and correct copy of the Associated Press motion to dismiss the Amended Declaratory Action is attached as Exhibit F. Approximately 4 hours before the June minute hearing before Judge Schreiber was to occur, DOJ removed the declaratory action to federal court, purportedly pursuant to 28 U.S.C. 1442(a)(1). A true and correct copy of the DOJ Notice of Removal is attached as Exhibit G. The News Media s first-filed action that was sua sponte consolidated with the City s improper declaratory action was then swept up in that removal. Consequently, no expedited hearing occurred on the News Media s first-filed action and the News Media now find themselves before this Court on their complaint to enforce the Florida Constitution and Public Records Act. This procedural morass has (1) severely frustrated the News Media s state constitutional rights of access to public records, (2) denied the News Media its statutory right to an expedited hearing under the Florida Public Records Act, and (3) resulted in continued delay in the production of public records unlawfully withheld (itself a violation of the law). Moreover, it has taken a matter that is purely an issue of state law and thrust it upon this Court because the City opted to continue to pursue a declaratory action that was a legal nullity upon its filing and then name DOJ as a defendant in that action when there was simply no basis to do so. Notwithstanding the substantive impact the procedural maneuvering has thus far had, for the reasons set forth below, DOJ s removal was improper and this Court must remand this case back to state court where it belongs. The Orlando community deserves to have the state constitutional and statutory issues related to the records surrounding this enormous tragedy resolved expeditiously in state court. 5

6 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 6 of 12 PageID 75 Argument I. The State Court Lacked Jurisdiction Over DOJ In This Matter And Therefore Removal Under 28 U.S.C. 1442(a)(1) Was Improper. DOJ s removal to federal court was improper because the Orange County state court never had jurisdiction over DOJ in this Florida constitutional and statutory construction matter. Hence, because jurisdiction never existed in the first instance, DOJ was without power to then remove the case to federal court. This is so because as an agency of the United States government, DOJ enjoys sovereign immunity from any cause of action for which the federal government has not specifically consented to being sued. Sovereign immunity is jurisdictional in nature. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Therefore, the terms of [a sovereign s] consent to be sued in any court define that court s jurisdiction to entertain that suit. U.S. v. Sherwood, 312 U.S. 584, 586 (1941). This immunity not only acts as a bar to any liability but also determines in which cases a claim against the United States can be filed. See id. The City s Amended Declaratory Action deals solely with the interpretation of certain state law exemptions to Florida s Public Records Act. DOJ has not waived sovereign immunity and consented to being sued under either the Florida Public Records Act or the Florida Declaratory Judgment Act. Thus, the City could never have sued DOJ in state court and this Court cannot acquire jurisdiction via 28 U.S.C. 1442(a)(1). See Bullock v. Napolitano, 666 F.3d 281, 286 (4th Cir. 2012) ( Because the North Carolina State Court did not have subjectmatter jurisdiction over this case, the district court did not acquire jurisdiction by reason of the case s removal under 28 U.S.C. 1442(a) from the state to federal court. The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks 6

7 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 7 of 12 PageID 76 jurisdiction of the subject-matter or of the parties, the federal court acquires none. ) (citations omitted); Palmer v. City Nat l Bank, of W. Va., 498 F.3d 236 (4th Cir. 2007) (holding same). Crediting DOJ s removal in this instance would essentially mean that DOJ is bound by and can be sued under Florida s Public Records Act. Clearly that is a position DOJ would never take. Rather than seeking to remove, DOJ could have moved to dismiss the City s action against it for want of jurisdiction. This Court should not allow a party over whom jurisdiction can never be established to dictate the course of the News Media s first-filed action. It must remand this case, whereafter DOJ will have a full opportunity to contest jurisdiction. 4 II. DOJ Cannot Invoke 28 U.S.C. 1442(a) Because The City Is Not Seeking Any Relief Against It Nor Can It Raise Any Federal Defenses. Aside from the fact that the state court could not exercise any jurisdiction over DOJ, thus rendering derivative federal jurisdiction via removal impossible, the City has sued DOJ but has not asserted any claims against it, nor does the City seek any form of relief from DOJ. 5 Consequently, DOJ cannot raise any federal defense to those non-existent claims. To be sure, this is an action in which the City seeks a declaration as to its rights and responsibilities under state law to provide public records to The Associated Press (and other news media). The City 4 The News Media emphasize that the Associated Press independent basis to dismiss the City s later-filed declaratory action is sufficient grounds to dispose of the City s lawsuit U.S.C. 1442(a) reads: A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. (emphasis added). 7

8 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 8 of 12 PageID 77 cannot recast this case as one where the federal government dictates whether it can release local public records. That decision is the legal duty of the City. See (1)(c), Fla. Stat. (2015) ( A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith.); Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984) ( The only challenge permitted by the [Public Records] Act at the time a request for records is made is the assertion of a statutory exemption pursuant to section The only person with the power to raise such a challenge is the custodian. ). Moreover, the fact that a federal investigation into the Pulse shooting may be ongoing is of no consequence to the City s duty to provide local public records, despite the FBI s apparent preference that such records not be disclosed. See Woolling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000) ( [t]here is no statutory exemption from disclosure of an ongoing federal prosecution. ); Chandler v. City of Sanford, 121 So. 3d 657, 660 (Fla. 5th DCA 2013) (rejecting a proverbial rock and a hard place argument that City of Sanford could not release public record because it was ordered to withhold them by the State Attorney); The Associated Press v. Fla. State Univ., No. 09-CA-2298, 2009 WL (Fla. Cir. Ct. Aug. 28, 2009), aff d sub nom., Nat l Collegiate Athletic Assoc. v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009) review denied, 37 So. 3d 848 (Fla. 2010) (FSU cannot evade its public records law disclosure mandates by designating GrayRobinson law firm as exclusive custodian of public records; NCAA-imposed restriction on disclosure of public records of no effect) To reiterate, the City s Amended Declaratory Action is bereft of any claims against DOJ, nor does it seek any relief from DOJ. Indeed, DOJ and the City desire the same exact relief in this matter. Thus, there is nothing for DOJ to defend against in this matter, nor could it ever incur liability. For this reason, Section 1442(a) removal is inappropriate. See Sheda v. U.S. 8

9 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 9 of 12 PageID 78 Dep t of the Treasury Bureau of Pub. Debt, 196 F. Supp. 2d 743, (N.D. Ill. 2002) (rejecting Section 1442(a)(1) removal where there was no allegation of any wrongdoing alleged against government in will contest and therefore no claim or federal defense arises); Home Savings and Loan Assoc. of Joliet v. Samuel T. Isaac & Assocs., Inc., 496 F. Supp. 831, (N.D. Ill. 1980) ( From the face of their complaint, it thus appears that the banks have not stated any claim against HUD which could properly be considered removable under 28 U.S.C. s 1442(a)(1) To the contrary, from the pleadings it does not appear that any substantial controversy exists between the plaintiffs and this defendant. ); Mayberry v. Peninsula Psychiatric Hosps., Inc., 470 F. Supp. 1268, 1269 (E.D. Tenn. 1979) ( In view of the fact that no remedy of any kind is sought against the [HUD] Secretary, this is not an action against an officer for purposes of Section ). As a natural consequence of the fact that no claims are asserted against it, DOJ cannot, as required 28 U.S.C. 1442(a), assert any federal defenses in this matter. Because of this, case law interpreting 28 U.S.C. 1442(a) holds that removal cannot be sustained. As the United States Supreme Court has held: Section 1442(a), in our view, is a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant. Section 1442(a), therefore, cannot independently support Art. III arising under jurisdiction. Rather, it is the raising of a federal question in the officer s removal petition that constitutes the federal law under which the action against the federal officer arises for Art. III purposes. The removal statute itself merely serves to overcome the well-pleaded complaint rule which would otherwise preclude removal even if a federal defense were alleged. Mesa v. Calif., 489 U.S. 121, 136 (1989) (rejecting notion that federal government does not need to assert federal defense under 28 U.S.C. 1442(a) to invoke Article II jurisdiction and holding, 9

10 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 10 of 12 PageID 79 we do not recognize any federal interests that are not protected by limiting removal to situations in which a federal defense is alleged. ). 6 In this case, DOJ has not, and cannot in good faith, plead any federal defense to the City s lawsuit. In fact, its only basis for removal is that it has asserted a nebulous strong federal interest in protecting Florida public records from disclosure. See Exhibit G. Such a basis is a far cry from the federal law defense required under Mesa to invoke Section 1442(a) removal and confer Article III jurisdiction. 7 The potential impact on removals, and the constitutional implications thereof, is huge if removal confers lawful federal jurisdiction any time a federal employee signs a declaration asserting a general federal interest of some sort. Conclusion At bottom, this is a case arising under state law involving local agencies records in a community tragedy the public is desperate to understand. The News Media filed their action first and the City has forged ahead with an improper, later-filed declaratory action that names DOJ as a defendant for no logical reason. The procedural machinations delaying resolution of critical state constitutional and statutory issues must end here. The News Media respectfully request this Court immediately return this case to state court, freeing the News Media to expeditiously proceed with its complaint as provided under Florida s Public Records Act U.S.C. 1442(a) has been amended since the time of this opinion to also permit removal of suits against United States agencies. 7 It is also clear that the City s case does not invoke Article III jurisdiction because it does not arise under the Constitution, laws, or treaties of the United States. 28 U.S.C Additionally, there is no Article III jurisdiction in this case in those limited situations where a state law claim is deemed to arise under federal law. See Gunn v. Minton, 133 S.Ct. 1059, 1065 (2013) (outlining 4-part test, inapplicable here, which states that a state law claim will arise under federal law if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. ). 10

11 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 11 of 12 PageID 80 WHEREFORE, the News Media respectfully request that this Court grant this Emergency Motion, remand this case back to state court, and award them all costs, fees, and expenses permitted under 28 U.S.C. 1447(c). CERTIFICATE OF GOOD FAITH Pursuant to Local Rule 3.01(g), counsel for the News Media has conferred in good faith with all parties in this case. DOJ opposes the relief herein requested. The City maintains that DOJ is a necessary party to this case but takes no position as to whether it should proceed in federal or state court. Respectfully submitted, THOMAS & LOCICERO PL /s/ Carol Jean LoCicero Carol Jean LoCicero Florida Bar No Rachel E. Fugate Florida Bar No Mark R. Caramanica Florida Bar No S. Boulevard Tampa, FL Telephone: (813) Facsimile: (813) clocicero@tlolawfirm.com rfugate@tlolawfirm.com mcaramaica@tlolawfirm.com Attorneys for the News Media 11

12 Case 6:16-cv PGB-DAB Document 6 Filed 06/29/16 Page 12 of 12 PageID 81 CERTIFICATE OF SERVICE I hereby certify that, on this 29th day of June, 2016, a true and correct copy of the foregoing will be furnished via electronic service from the Middle District s CM/ECF system to: GrayRobinson, P.A. Charles T. Wells, Esq. charles.wells@gray-robinson.com melanie.mccallum@gray-robinson.com Richard E. Mitchell, Esq. rick.mitchell@gray-robinson.com debi.robbins@gray-robinson.com Jason A. Zimmerman, Esq. jason.zimmerman@gray-robinson.com kathy.savage@gray-robinson.com 301 East Pine Street, Suite 1400 Orlando, FL (407) Telephone (407) Facsimile Dean, Mead, Egerton, Bloodworth, Capouno & Bozarth, P.A. Darryl M. Bloodworth, Esq. dbloodworth@deanmead.com Tim W. Sobczak, Esq. tsobczak@deanmead.com Secondary s: mgodek@deanmead.com kgovin@deanmead.com 800 N. Magnolia Avenue, Suite 1500 Orlando, FL (407) Telephone (407) Facsimile United States Attorney s Office Sean P. Flynn, AUSA Sean.flynn2@usdoj.gov 400 North Tampa Street, Ste Tampa, FL /s/ Carol Jean LoCicero Attorney 12

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