“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In April 2020, Trump Eleventh Circuit judges Kevin Newsom and Elizabeth Branch voted against en banc rehearing in City of Miami Gardens v. Wells Fargo in which the court affirmed the dismissal of a Florida city’s case against Wells Fargo for racially discriminatory mortgage loan practices.

The City of Miami Gardens claimed that between June 13, 2012 and June 12, 2014, Wells Fargo issued mortgage loans to the city’s Black and Latino borrowers that were more expensive or riskier than loans issued to white borrowers with similar characteristics. The City tried to show the disparity by using data on 153 first-lien mortgages originated by Wells Fargo between those dates.

The City sued Wells Fargo in district court for violation of the Fair Housing Act. The district court did not allow the City to show the history of Wells Fargo’s bad practices and limited the City’s discovery of evidence to the two-year statute of limitations period. Wells Fargo moved for a summary judgment and won.

The City appealed to the Eleventh Circuit. The three-judge panel concluded that the City had not established standing and remanded the case with instructions to dismiss the suit for lack of subject matter jurisdiction.

The City petitioned the Eleventh Circuit for a full court en banc panel rehearing. The court majority, including Newsom and Branch, voted against a rehearing, and the petition was denied.

Judges Wilson and Martin strongly dissented to the rehearing denial, stating that Wells Fargo controlled the evidence the City needed to prove its standing, most of which was outside the two-year statute of limitations period. In their dissent, they wrote, “To prove that Wells Fargo caused reduced property tax revenues, the City needed to identify more FHA-violative loans by Wells Fargo dating years before the statute of limitations period. For that, the City needed information from Wells Fargo’s database.” They concluded that the district court denied the City that opportunity by limiting the City’s discovery. They continued, “The City could not have snapped its fingers and produced evidence to prove standing. An ‘opportunity’ to show evidence of standing is worthless if the plaintiff never had the opportunity to discover such evidence. The panel treated the City like the teacher who takes away a student’s pencils before a test, refuses to give them back, and then gives the student a failing grade when she turns in a blank page. That is simply not fair.”