Case: 19-11927    Date Filed: 05/21/2020   Page: 1 of 8



                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 19-11927
                           Non-Argument Calendar
                         ________________________

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



JOSHUA STATTON,

                                                             Plaintiff-Appellant,

                                   versus

FLORIDA FEDERAL JUDICIAL NOMINATING
COMMISSION,
CARLOS LOPEZ-CANTERA,

                                                          Defendants-Appellees.

                         ________________________

                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:
               Case: 19-11927     Date Filed: 05/21/2020     Page: 2 of 8



      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.
                                           I.
      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


                                           2
               Case: 19-11927     Date Filed: 05/21/2020    Page: 3 of 8



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.
                                          II.
      When a district court dismisses a complaint for want of subject matter
jurisdiction, we review the court’s legal conclusions de novo. Carmichael v.


                                           3
                Case: 19-11927       Date Filed: 05/21/2020       Page: 4 of 8



Kellogg, Brown & Root Servs., Inc., 

, 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, 

, 1335 (11th
Cir. 2003).
                                              III.
       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.
                                              A.
       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, 

, 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

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.


                                               4
               Case: 19-11927     Date Filed: 05/21/2020    Page: 5 of 8



Office of the President), or any independent regulatory agency.”

Congress, however, is specifically excluded.

      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, 

(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.”

Accord Soucie v. David, 

, 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


                                           5
                Case: 19-11927     Date Filed: 05/21/2020   Page: 6 of 8



authority’ and hence should be deemed an agency subject to the FOIA.”
Armstrong v. Exec. Office of the President, 

, 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, 

, 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.
                                           B.
        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


                                           6
               Case: 19-11927     Date Filed: 05/21/2020   Page: 7 of 8



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, 

, 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.”

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, 

, 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. 

–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

n.2 (citing Main St. Legal Servs.,




                                           7
                 Case: 19-11927        Date Filed: 05/21/2020       Page: 8 of 8



Inc. v. Nat’l Sec. Council, 

, 566–67 (2d Cir. 2016)). 2 Here, too, the
district court should have exercised jurisdiction over the case.

                                                C.
       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.

                                                IV.
       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, 

, 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.
       AFFIRMED.




2
  The district court implied that this position is at odds with Alley v. U.S. Dep’t of Health &
Human Servs., 

(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.

see also U.S. Dep’t of Justice v.
Tax Analysts, 

, 142 (1989) (unless the requirements of § 552(a)(4)(B) are met, “a
district court lacks jurisdiction to devise remedies” (emphasis added)).


                                                 8