City of Orlando v. The Associated Press et al

Filing 31

ORDER granting 6 The Associated Press's Motion to Remand. Signed by Judge Paul G. Byron on 8/25/2016. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CITY OF ORLANDO,
Plaintiff,
v.

Case No: 6:16-cv-1169-Orl-40DAB

THE ASSOCIATED PRESS and THE
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendants.
ORDER
This cause comes before the Court on The Associated Press’s Motion to Remand
with Supporting Memorandum of Law (Doc. 6), filed June 29, 2016. The City of Orlando
and the United States Department of Justice responded in opposition on July 13, 2016,
(Docs. 16, 17), and The Associated Press replied on July 15, 2016, (Doc. 20). On
August 18, 2016, the Court held a hearing, and the parties presented supplemental
argument. Having considered the record and the argument of counsel, The News Media’s
Motion to Remand will be granted.
I.

BACKGROUND
This case arises from the tragic mass shooting that took place at Pulse nightclub

in Orlando, Florida on June 12, 2016. On June 23, 2016, in the aftermath of these horrific
events, a coalition of state and national news media filed an action in the Circuit Court of
the Ninth Judicial Circuit in and for Orange County, Florida seeking access to recordings
of certain telephone calls placed to emergency personnel, including telephone calls
allegedly made to law enforcement personnel by the perpetrator. (Doc. 5-1, Ex. A). On

1

the same day, the City of Orlando (the “City”) filed an action seeking a declaratory
judgment against The Associated Press. 1 (Id. at Ex. C). On June 24, 2016, the state court
determined that the two lawsuits involved the same facts and issues, consolidated the
cases for joint resolution, and named the City’s lawsuit as the lead case because it had
been assigned the lower case number by the clerk of court. 2 (Doc. 1-2, pp. 15–18). The
City thereafter amended its complaint on June 27, 2016 to add the United States
Department of Justice (“DOJ”) as a defendant. (Doc. 2). In its lawsuit, the City seeks
clarification of its obligations under Florida’s public records laws. The City contends that
it finds itself in the difficult position of desiring to comply with Florida’s public records laws
while maintaining the integrity of the ongoing criminal investigation into the Pulse
nightclub shooting and that it owes a duty not to disclose photographs, video, or audio
recordings which depict or record the killing of a person. See Fla. Stat.
§§ 119.071(2)(c)(1), 406.136(2). Further, the City represents that the DOJ has requested
that it not produce any photo, video, or audio recordings in its possession until it has
completed its investigation. Having been named as a defendant, the DOJ removed the
case to this Court on June 28, 2016 pursuant to 28 U.S.C. § 1442(a)(1).
After removal, the DOJ answered the City’s amended complaint and filed a
counterclaim against the City. (Doc. 22). The DOJ avers that the Orlando Police
Department is a participating agency in the Federal Bureau of Investigations’ Joint

1
2

The City did not name any other individual or entity in its original state court complaint.
The Associated Press disputes the propriety of the state court assigning the City’s
case the lower case number because it contends that it filed its lawsuit first. For this
reason, the Associated Press has also filed a motion to dismiss the City’s complaint.
(Doc. 5). This Court need not reach the issue, however, in order to resolve the instant
motion to remand.

2

Terrorism Task Force (“JTTF”), such that JTTF’s investigative records include the 911
and other emergency recordings relating to the Pulse shooting. (Id. ¶¶ 1–6). The DOJ
argues that Florida’s public records laws—namely, section 119.07(1)(a), Florida
Statutes—do not apply to the federal government or to federal records, thus precluding
the City from producing those records. (Id. ¶ 7). The Associated Press now moves to
remand this case to state court.
II.

ISSUES PRESENTED
The Associated Press makes a number of arguments in support of remand, only

two of which the Court need address in this Order: (1) whether the DOJ is permitted to
remove this case under § 1442(a)(1), and (2) whether this Court has subject matter
jurisdiction. The Court will also discuss a third question on its own initiative: (3) whether
the Court may exercise ancillary jurisdiction over the DOJ’s counterclaim.
III.

DISCUSSION
A.

Whether Removal Was Proper

“[I]t is axiomatic that removal statutes, which confer jurisdiction on the federal
district courts, must be strictly construed.” Chevy Chase Bank, F.S.B. v. Carrington, No.
6:09-cv-2132-Orl-31GJK, 2010 WL 1854123, at *2 (M.D. Fla. May 10, 2010). It is the
removing party’s burden to prove that removal is proper, and any doubts concerning the
propriety of removal must be resolved in favor of remand to state court. Tran v. Waste
Mgmt., Inc., 290 F. Supp. 2d 1286, 1291–92 (M.D. Fla. 2003).
The DOJ premises removal of this case on 28 U.S.C. § 1442, which provides, in
pertinent part, as follows:
(a) A civil action or criminal prosecution that is commenced in
a State court and that is against or directed to any of the

3

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.
As explained by the Sixth Circuit Court of Appeals in City of Cookeville v. Upper
Cumberland Electric Membership Corp., 484 F.3d 380, 389–90 (6th Cir. 2007), a federal
agency sued in state court has an absolute right to remove to federal court. In other words,
a federal agency has the right to remove simply by virtue of being named as a defendant
in a state court lawsuit.
The Associated Press contends that the DOJ improperly removed the City’s
declaratory judgment action because the DOJ has not waived its sovereign immunity and,
as a result, could never be sued by the City in state court. The Associated Press therefore
concludes that, since the state court never had subject matter jurisdiction over the City’s
claim against the DOJ, the DOJ could never exercise the ability to remove. This argument
skips a step however. It may be true, as discussed later in this Order, that the DOJ is
immune from suit and that the state court never had subject matter jurisdiction over the
City’s claim against it. Notwithstanding, the fact that the City sued the DOJ does not
deprive the DOJ of its right to remove the lawsuit to federal court where it can then assert
its sovereign immunity and any other defense it may have. See City of Jacksonville v.
Dep’t of the Navy, 348 F.3d 1307, 1310–11 (11th Cir. 2003) (“Congress’ purpose [in
enacting § 1442] was clearly to provide a federal forum for the sovereign immunity

4

issue . . . .”). The DOJ’s removal is consequently not improper simply because it is
immune from suit.
The Associated Press also argues that the DOJ improperly removed the case
because the City fails to state a claim against or seek relief from the DOJ. The Associated
Press contends that having been named a party defendant—perhaps incorrectly so—the
DOJ is incapable of exercising its right to have the issue of sovereign immunity decided
by the federal court. Again, The Associate Press skips a step. It is irrelevant when
analyzing removal from state court whether the claim which forms the basis of removal is
a valid claim. The fact that the DOJ has been named as a defendant in a lawsuit grants it
the right to remove under § 1442(a)(1). See City of Cookeville, 484 F.3d at 389–90. As
discussed above, Congress clearly intended to provide a federal forum for a federal
agency like the DOJ to assert defenses, including sovereign immunity. In a similar vein,
the mere fact that the DOJ could have moved to dismiss the City’s declaratory judgment
claim in the state court does not foreclose its right to have a federal court evaluate that
defense upon removal. The Court therefore finds that the DOJ properly removed the
City’s lawsuit to federal court through § 1442(a)(1).
B.

Whether This Court Has Subject Matter Jurisdiction

Having determined that removal was proper, the Court must now analyze whether
it has subject matter jurisdiction over the City’s declaratory judgment claim against the
DOJ. District courts “have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 410 (11th Cir. 1999). There is no dispute that the DOJ, as a federal governmental

5

agency, enjoys sovereign immunity from suit and that, unless it waives sovereign
immunity, this Court lacks subject matter jurisdiction over any claim against it. See
Wallace v. Holder, 846 F. Supp. 2d 1245, 1249–50 (N.D. Ala. 2012). A waiver of sovereign
immunity cannot be implied, but must be “unequivocally expressed” by an Act of
Congress. United States v. Testan, 424 U.S. 392, 399 (1976). Accordingly, “in the
absence of clear congressional intent, the courts routinely find no jurisdiction to entertain
suits against the United States and dismiss any such actions.” Wallace, 846 F. Supp. 2d
at 1250 (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).
The DOJ suggested neither in its briefing nor at oral argument that the it has
waived sovereign immunity from the action brought by the City. Indeed, the DOJ premises
its removal of this case in part because it enjoys sovereign immunity. Accordingly, the
Court lacks subject matter jurisdiction over the City’s declaratory judgment claim against
the DOJ, and that claim must be dismissed.
C.

Whether the Court Has Ancillary Jurisdiction Over the
DOJ’s Counterclaim

Finally, it is well-established that a district court may exercise ancillary jurisdiction
over a compulsory counterclaim made under Federal Rule of Civil Procedure 13(a), since
the counterclaim necessarily arises out of the same transaction or occurrence as the
original claim. Revere Copper & Brass, Inc. v. The Aetna Cas. & Sur. Co., 426 F.2d 709,
712 (5th Cir. 1970). 3 Here, after removal, the DOJ asserted a counterclaim against the
City seeking a declaration of its rights relative to Florida’s public records laws regarding

3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth
Circuit that were handed down prior to October 1, 1981.

6

the 911 calls and records which remain the subject of the DOJ’s criminal investigation.
Since the DOJ’s counterclaim arises out of the same occurrences as the City’s claims, it
is a compulsory counterclaim over which this Court may conceivably exercise ancillary
jurisdiction. However, such ancillary jurisdiction is only permissible where the district court
validly acquired subject matter jurisdiction over the removed action. Id. Because the DOJ,
by way of its sovereign immunity, was improperly named as a defendant in the state court
action, this Court had no basis to exercise subject matter jurisdiction over this case at the
time of its removal. See Burns v. Windsor Ins., 31 F.3d 1092, 1097 n.13 (11th Cir. 1994)
(observing that federal courts must have subject matter jurisdiction at the time of
removal). Accordingly, the Court will not exercise ancillary jurisdiction over the DOJ’s
compulsory counterclaim.
IV.

CONCLUSION
The removal of the state court action by the DOJ was proper under 28 U.S.C.

§ 1442(a)(1). Nevertheless, the DOJ cannot be sued absent a waiver of sovereign
immunity, regardless of the apparent commonality of interest held by the City and the
DOJ in protecting certain records and recordings from disclosure. As a result, this Court
lacks subject matter jurisdiction over the City’s declaratory judgment claim against the
DOJ. Since ancillary jurisdiction over the DOJ’s compulsory counterclaim is dependent
upon the Court having jurisdiction over the main action, and because that is not the case
here, the Court lacks ancillary jurisdiction over the counterclaim as well. There being no
other basis for the Court to exercise subject matter jurisdiction over the remaining claims,

7

this case must be remanded to the state court. The Court will not award attorney’s fees
and costs to The Associated Press. 4
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The City of Orlando’s declaratory judgment claim against the United States
Department of Justice is DISMISSED for lack of subject matter jurisdiction.
2. The Associated Press’s Motion to Remand (Doc. 6) is GRANTED.
3. This case is REMANDED to the Circuit Court of the Ninth Judicial Circuit in
and for Orange County, Florida.
4. The Associated Press’s request for attorney’s fees and costs is DENIED.
5. The Clerk of Court is DIRECTED to send a certified copy of this Order to
the Clerk of Court for the Circuit Court of the Ninth Judicial Circuit in and for
Orange County, Florida.
6. The Clerk of Court is further DIRECTED to terminate all pending motions
and to close the file.
DONE AND ORDERED in Orlando, Florida on August 25, 2016.

Copies furnished to:
Counsel of Record
4

Title 28 U.S.C. § 1447(c) permits a district court to award attorney’s fees and costs
incurred due to removal. However, such fees and costs should only be awarded
“where the removing party lacked an objectively reasonable basis for seeking
removal.” Bauknight v. Monroe Cty., 446 F.3d 1327, 1329 (11th Cir. 2006). Because
the Court finds that the DOJ properly removed this action pursuant to 28 U.S.C.
§ 1442(a)(1), The Associated Press is precluded from an award of attorney’s fees and
costs.

8