In the News
Barbara Lagoa
CONFIRMED
United States Court of Appeals for the Eleventh Circuit
In 2019, President Trump announced his intent to nominate Barbara Lagoa to the United States Court of Appeals for the Eleventh Circuit. Several of Lagoa’s decisions prior to her confirmation raised concerns that she would side with the wealthy and powerful at the expense of everyday Americans as a federal judge. For example, one of Lagoa’s first decisions on the state Supreme Court sided with businesses challenging Miami Beach’s decision to raise the minimum wage (notably, her colleague, Robert Luck, ruled differently). In another decision, she made it harder for homeowners to defend themselves against banks that were improperly trying to foreclose upon their homes. Since her confirmation to the Eleventh Circuit, Lagoa has continued to issue harmful opinions.
In Jones v. Florida, Barbara Lagoa joined the Eleventh Circuit majority to hold that despite the passage of a state referendum restoring the right to vote to disenfranchised former felons, the state legislature could prevent otherwise eligible Floridians from voting if they did not pay all courts fines and fees (even if the state is unable to even tell the Floridian how much they owe) – a “pay to vote” system. As Judge Adalberto Jordan explained in dissent, this decision denies the right to vote to individuals who have “paid their debt to society to the extent of their capacity” and disregards the will of the super-majority of Florida’s voters who elected to automatically restore the franchise to formerly incarcerated individuals. As a result of the decision, tens of thousands of Floridians will not be able to exercise their right to vote. Lagoa’s involvement in this ruling is especially egregious because she participated in a hearing on an advisory opinion on the matter, requested by Governor Ron DeSantis, while she was a judge on the Florida Supreme Court. Lagoa refused to recuse herself from the appeal to the Eleventh Circuit, despite “committing under oath during [her] Senate confirmation” to withdraw from cases in which she previously participated.
In Patel v. United States Attorney General, Lagoa held that the court of appeals had no jurisdiction to review a BIA decision to deny an immigrant’s petition for labor certification because he mistakenly checked the U.S. citizenship box on his driver’s license application form. As the dissent noted, this sweeping reinterpretation of the “longstanding presumption in favor of judicial review of administrative actions” grants immigration officials an extraordinary degree of unchecked authority.
The Alliance for Justice strongly opposes the consideration of Barbara Lagoa for a seat on the U.S. Supreme Court.
Introduction
On August 12, 2019, President Trump announced
his intent to nominate Barbara Lagoa to the United States Court of Appeals for
the 11th Circuit. The Senate Judiciary Committee must carefully review Lagoa’s
record before confirming her to a lifetime seat on the U.S. Court of Appeals
for the Eleventh Circuit.
Biography
Lagoa is a graduate of Florida
International University and Columbia Law School. Following law school, she clerked for the
Honorable Robert P. Patterson Jr. of the United States District Court for the
Southern District of New York. After clerking, Lagoa practiced law in
Miami. Among other cases, she
represented the Miami relatives of Elian Gonzalez, pro bono. She then served as an Assistant United States
Attorney for the Southern District of Florida.
In 2006, then-Governor Jeb Bush
appointed Lagoa to the Third District Court of Appeals. In January 2019, newly elected Governor Ron
DeSantis appointed her, along with Robert Luck and Carlos Muniz, to the Supreme
Court of Florida.
Lagoa is a member of the Federalist
Society, and her appointment to the Florida Supreme Court was “screened”
by the group’s executive vice president
Leonard Leo who “flew down to Orlando” and interviewed
Lagoa for the state Supreme Court position.
Fewer than three weeks after Lagoa became a state Supreme Court justice,
she was feted at the Florida chapter of the Federalist Society’s annual
exclusive event at Disney World’s Yacht and Beach Club Resort.
Her appointment to the Florida Supreme
Court was endorsed
by William W. Large, the President of the Florida Justice Reform Institute who
is an advocate for conservative legal reforms and led
Gov. Jeb Bush’s fight to limit the ability of victims of medical malpractice to
be fully compensated. The president of
the Florida Family Policy Council, an anti-choice, anti-LGBTQ group praised
her appointment.
Judicial Record
Several of Lagoa’s decisions raise
concerns that she will side with the wealthy and powerful at the expense of
everyday Americans as a federal judge. For example, one of Lagoa’s first
decisions on the state Supreme Court sided with businesses challenging Miami
Beach’s decision
to raise the minimum wage (notably, her colleague, Robert Luck, ruled
differently). In another decision,
she made it harder for homeowners to defend themselves against banks that were
improperly trying to foreclose upon their homes.
In February 2019, Lagoa, joined by a
new majority of the court, reversed course and dismissed the appeal regarding a
minimum wage ordinance that was $5.00 higher than the state’s minimum wage. The
Miami Beach City Commission voted to phase in a citywide minimum wage of $13.31
an hour by 2021. The increase was
supported by a voter approved 2004 statewide referendum which provided cities
could enact higher minimum wages than the state minimum wage.
The Florida Restaurant and Lodging
Association sued, arguing the city did not have the authority to go beyond
state law. An amicus brief filed by the National Employment Law Project noted
“the provision of the 2004 Constitutional Amendment concerning local authority
to raise the minimum wage was to affirmatively ensure that the state
legislature, cities, and other public bodies retained the power to raise the
minimum wage higher than the state-wide rate.” NELP’s report,
Fighting Wage Preemption, found that because of the court decision,
24,210 Miami workers are losing a total of $117,300,000 in wages annually.
Both the trial court and court of
appeals ruled
for the restaurant association. Miami Beach appealed to the Florida Supreme
Court, which agreed to hear the case. Lagoa reversed course and dismissed
the appeal – thus siding with businesses and denying workers in Miami Beach an
opportunity to have their case heard by the Court.
A similar occurrence happened in a case involving banks. On January 4, 2019, the Florida Supreme Court held, in Glass v. Nationstar Mortgage, LLC, that homeowners are entitled to attorney’s fees under a mortgage contract if a bank improperly files a foreclosure action against them, before Luck and Lagoa joined the court. Florida was hit hard by the financial and housing crisis. In 2008, more than 40,000 foreclosures were filed in Lee County Florida alone. Between 2012 and 2017, 16,654 reverse mortgage holders went into foreclosure in Florida, at nearly double the rate of California, the second-hardest hit state. Many foreclosure filings are improper as the Glass case demonstrates. This decision was significant because it made it possible for indigent people facing foreclosure to obtain an attorney to defend them in court.
The
ruling, however, “sent tremors through the
mortgage industry” as it meant
homeowners could now mount proper defenses and be able to recover legal fees
from banks that improperly sued them.
Mortgage giant Nationstar requested a rehearing days after Luck, Lagoa,
and one other Desantis-appointed judge were sworn in; and in April, the Florida
Supreme Court, joined by Luck and Lagoa, withdrew their Glass decision,
giving the mortgage industry a huge win.
As
one attorney wrote, in an amicus brief, if Nationwide did indeed prevail:
[B]anks
will have free reign. They can file suit no matter who they are, whether or not
they have possession of the original note, because there are no consequences.
There will be no recourse or liability if their ability to enforce the note and
mortgage is disproven. Borrowers will have to pay for representation against lawsuits
that should not have been brought in the first place, with no ability to be
made whole for having to defend such wrongful litigation. Banks’ unfettered
ability to sue without any consequence will propel countless new, unfounded
filings and further congest the court system.
Other decisions also raise questions
regarding Lagoa’s commitment to equal justice for consumers and workers:
- In McGillis v. Department of
Economic Opportunity, Lagoa ruled
that Uber Drivers are not entitled to unemployment benefits because they are
independent contractors and not employees of the company. - reversed a jury award of $571,883 after Rudolf
Amaya suffered an on the job injury and was retaliated against after filing for
workers’ compensation. She found that he did not suffer economic damages due to
retaliation because he was unable to work while he was injured. - In Jackson v. Kleen 1, LLC, she reversed
a damage award for an employee who was fired – after just one week of work –
after reporting racist comments to his supervisor. - In Deutsche Bank v. Beauvais,
she sided
with a bank and reversed a decision that had found a foreclosure claim was
barred by the statute of limitations; overturning what the dissent noted was
“almost eighty years of well-established Florida jurisprudence.” - In Murga v. United Property,
Lagoa affirmed
the dismissal of class certification in a class action against an insurance
company. The dissent noted that the
dismissal at the trial court level was, “completely defective, and as such,
cannot be affirmed” because the lower court dismissed class certification
without a hearing, any findings of fact or law, or “even cit[ing] to the rule
under which dismissal” was granted. - In United Auto. Ins. v. Salgado, Lagoa,
reversed a trial court decision and sided
with an insurance company that retroactively rescinded insurance coverage to
Oscar Salgado after he was in an accident and submitted his medical bills for
payment. The insurance company said he failed to list his brother as a member
of the “his household” on his insurance application and refused to payout.
CONCLUSION
The Senate Judiciary Committee should
carefully consider Lagoa’s record before putting her in a lifetime seat on the
U.S. Court of Appeals for the Eleventh Circuit.