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                                                             [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 16-15848
                     ________________________

              D.C. Docket No. 8:14-cv-01606-SDM-TGW



AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.,

                                              Plaintiff - Appellant,

MICHAEL BARFIELD,

                                              Plaintiff,

versus

CITY OF SARASOTA,
MICHAEL JACKSON,

                                              Defendants - Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                            (June 20, 2017)
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Before JORDAN and JULIE CARNES, Circuit Judges, and SCHLESINGER, *
District Judge.

JORDAN, Circuit Judge:

       Federal subject-matter jurisdiction over this removed case depends on

whether Michael Jackson, a state law enforcement officer, created, submitted,

and/or maintained certain records sought by the American Civil Liberties Union of

Florida in his capacity as a deputized federal officer. The ACLU twice asked for

jurisdictional discovery on Mr. Jackson’s status, but both requests were denied.

The district court instead issued its own interrogatories to Mr. Jackson.

       Because the jurisdictional facts in this case are genuinely in dispute and

there was no undue delay by the ACLU, the district court erred in denying the

motions for discovery. We therefore reverse.

                                              I

       The ACLU sued Mr. Jackson and the City of Sarasota in Florida state court

to compel the production of 34 applications by Mr. Jackson for state-court orders

authorizing the use of cell phone tracking devices, which the ACLU asserted were

public records created and maintained by a Florida municipal officer and subject to

production under Florida Statute § 119.07. The state court dismissed the ACLU’s

state-law mandamus petition without prejudice after lawyers for the United States


       *
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.


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asserted, at a non-evidentiary status conference, that Mr. Jackson had created,

submitted, and/or maintained the requested documents in his capacity as a Special

Deputy U.S. Marshal. See D.E. 1-2 at 67. As one of the grounds for dismissal, the

state court accepted the government’s representation that the 34 applications (and

the corresponding orders) had been created, submitted, and/or maintained by a

federal officer.1

       Before the ACLU appealed, the United States, on behalf of “Special Deputy

[U.S.] Marshal” Jackson, removed the case to federal district court under 28 U.S.C.

§ 1442(a)(1) (providing for federal officer removal). See D.E. 1 at 1–2. The

ACLU moved to remand a few days later, disputing the government’s assertion

that Mr. Jackson had been acting as a federal officer when he submitted the

applications. It also asked the district court for jurisdictional discovery to ascertain

the capacity in which Mr. Jackson had created, submitted, and/or maintained the

documents sought.

       The magistrate judge denied the request for discovery, and the district court

propounded its own interrogatories to Mr. Jackson, asking him to identify the

capacity in which he had applied for two of the orders. Mr. Jackson responded that

1
  Another ground upon which the state court denied the ACLU’s petition was that Chapter 119 of
the Florida Statutes does not apply to the requested documents because they are judicial records.
See generally Times Pub. Co. v. Ake, 660 So. 2d 255, 257 (Fla. 1995). We cannot address the
merits of this ruling because, as we explain, the district court erred by completely denying the
ACLU a role in its inquiry into subject-matter jurisdiction. And because “[w]ithout jurisdiction
the court cannot proceed at all in any cause,” Ex parte McCardle, 74 U.S. 506, 514 (1868), we
remand this case to the district court for a proper determination of jurisdiction.


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all of the applications he submitted for cell tracking devices were at the direction

of the U.S. Marshals Service. See D.E. 43 at 1–2. He provided specifics on only

two of the requested applications, and admitted signing one as “Detective Michael

P. Jackson, Sarasota Police Department,” and referring to himself in that

application as a detective with the City. See id. at 2.

      Relying mostly on these answers, the district concluded that it had subject-

matter jurisdiction because the government had established that Mr. Jackson had

acted as a federal officer. See D.E. 44 at 5. Following this ruling, the district court

denied another request by the ACLU for jurisdictional discovery and entered final

judgment, concluding that the ACLU’s state-law petition could not compel the

production of documents held by a federal officer. See D.E. 61. This appeal

followed.

                                          II

      Federal subject-matter jurisdiction over this case depends on whether

Mr. Jackson created, submitted, and/or maintained the 34 applications and orders

in his capacity as a detective for the City of Sarasota Police Department or as a

cross-sworn Special Deputy U.S. Marshal. Given the parties’ factual dispute, the

issue is whether the district court erred by twice denying the ACLU’s request for

jurisdictional discovery.




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      We generally review a district court’s adjudication of a motion for

jurisdictional discovery for abuse of discretion. See, e.g., Butler v. Sukhoi Co., 579

F.3d 1307, 1314 (11th Cir. 2009). But we have also cautioned that “jurisdictional

discovery is not entirely discretionary.” Eaton v. Dorchester Dev., Inc., 692 F.2d

727, 729 (11th Cir. 1982). When it comes to discovery of jurisdictional facts

genuinely in dispute, the broad discretion district courts ordinarily enjoy over

discovery runs up against two countervailing forces.

      The first is that, because of the “fundamental constitutional precept of

limited federal power,” a district court “should inquire into whether it has

[subject-matter] jurisdiction at the earliest possible stage in the proceedings.”

Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 409–10 (11th Cir. 1999)

(citation omitted). In an action like this one, removed from state court, we have

said that a district court’s “first” task is to “determine whether it has original

jurisdiction over the plaintiff’s claims.” Id. This means that a district court

confronted with a factual challenge to its jurisdiction cannot ignore a genuine

factual dispute simply because it arises at the pleading stage. Rather, it has an

“obligation at any time to inquire into jurisdiction,” Fitzgerald v. Seaboard Sys.

R.R., 760 F.2d 1249, 1251 (11th Cir. 1985), including probing into and resolving

any factual disputes which go to its power to adjudicate the matter. See id.




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(remanding to the district court to resolve factual dispute necessary to determine

jurisdiction).

      The second is that, because ours is an adversarial system, litigants cannot be

completely excluded from this inquiry.         Indeed, the Federal Rules of Civil

Procedure expressly contemplate involvement by the parties in the discovery of

relevant nonprivileged matter, see Fed. R. Civ. P. 26(b)(1) (“[p]arties may obtain

discovery”) (emphasis added), which jurisdictional discovery undoubtedly is. See

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (approving of

discovery by the parties “to ascertain the facts bearing on [jurisdictional] issues”).

This is particularly true when jurisdictional facts are intertwined with the facts

central to the merits of the complaint. See, e.g., Bell v. Hood, 327 U.S. 678, 682–

83 (1946). In such cases, “a plaintiff must have ample opportunity to present

evidence bearing on the existence of jurisdiction.”        Colonial Pipeline Co. v.

Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). Cf. Lowery v. Alabama Power Co.,

483 F.3d 1184, 1215–18 & 1216 n.71 (11th Cir. 2007) (recognizing that

jurisdictional discovery is available for federal question cases).

       The upshot of these hydraulic pressures is that, when facts that go to the

merits and the court’s jurisdiction are intertwined and genuinely in dispute, parties

have a “qualified right to jurisdictional discovery,” Eaton, 692 F.2d at 729 n.7

(citation and internal quotation marks omitted), meaning that a district court abuses



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its discretion if it completely denies a party jurisdictional discovery, see id. at 731,

unless that party unduly delayed in propounding discovery or seeking leave to

initiate discovery. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.7 (11th

Cir. 1999) (rejecting argument that plaintiffs were erroneously denied

jurisdictional discovery where they made “no discovery efforts . . . in the eight

months between the time [they] filed the complaint and the time it was

dismissed”). The district court here erred when it completely denied the ACLU

any opportunity to inquire into the capacity in which Mr. Jackson created,

submitted, and/or maintained the requested documents, a fact which implicates

both the merits of the ACLU’s claim and the court’s jurisdiction under

§ 1442(a)(1).      See generally Mesa v. California, 489 U.S. 121, 129 (1989)

(“[F]ederal officer removal must be predicated on the allegation of a colorable

federal defense.”). 2

       The interrogatories propounded by the district court do not render this error

harmless. For one, they could not have completely resolved the jurisdictional

dispute because the court only asked for details with respect to two of the 34

applications. And one of the two applications for which Mr. Jackson did give

specifics contradicted, at least at first glance, his general assertion that all


2
  No one contends that the ACLU unduly delayed seeking discovery. And because the ACLU
filed its first motion for jurisdictional discovery roughly two weeks after this case was removed
to federal court, no one seriously could.


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applications were at the behest of and on behalf of the U.S. Marshals Service. See

D.E. 43 at 2. Given the limited record, this was a factual inconsistency the district

court should not have resolved solely on the papers.

      For these reasons, we reverse the judgment entered against the ACLU and

remand this case to the district court to allow the ACLU jurisdictional discovery.

See, e.g., Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 463 F. Supp. 2d

583, 585–86 (E.D. La. 2006) (permitting limited jurisdictional discovery in case

removed under § 1442(a)(1)), aff’d, 485 F.3d 804 (5th Cir. 2007). The district

court, of course, retains discretion “with respect to the form that the discovery will

take.” Eaton, 692 F.2d at 729 n.7 (citation omitted).

      REVERSED AND REMANDED.




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