Thomas P. Barber testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. District Judge for the Middle District of Florida, on Wednesday, Oct. 17, 2018. Photo: Photo: Diego M. Radzinschi/ALM.

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.

Read the ruling:

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