Florida NELA

Amicus Program

As part of Florida NELA's mission to promote the interest of individual employees and assisting the lawyers who represent them, Florida NELA files amicus curiae briefs in cases before Florida's District Courts of Appeal and the Florida Supreme Court, which involve matters of significance relating to employment and civil rights. Specifically, Florida NELA is interested and seeks to support the issues listed herein. Please contact Florida NELA's amicus coordinator, Richard E. Johnson, if you are facing one of these important legal issues. Additions to this list are welcome, as are questions about what is presented here.

  • Overturn Gallagher. All five Florida District Courts of Appeal have now followed Gallagher. We must get one to reconsider or try to "parachute" into the Florida Supreme Court from the 11th Circuit. Chances are we win if we get to the Florida Supreme Court. Otherwise we're stuck with this decision.
  • Reverse Scelta to re-establish negligent supervision and retention as viable claims with discrimination statutes as the underlying tort.
  • Establish that the Florida Private whistleblower Act requires only an employee's good-faith belief in the illegality of the practice or policy she opposes, not an actual violation of law.
  • Establish that a law, rule, or regulation need not be specifically applicable to an employer's particular industry to qualify for use under the Florida Private Whistleblower Act.
  • Establish that the written-notice provision of the Florida minimum wage statute is unconstitutional.
  • Establish promissory estoppel as a viable tort for employees.
  • Resist efforts to import federal summary judgment standards or Twombly/Iqbal pleading standards into Florida law.
  • Create conflict with Winn-Dixie v. Reddig to restore fee multipliers under FCRA.
  • Argue for application of Christiansburg standards to 448.08 claims and private whistleblower claims.
  • Expand scope of law, rule, or regulation under Private Whistleblower Act to include, at a minimum, obvious examples like Bar rules (reversing Snow v. Ruden, McCloskey, Smith, Shuster, & Russell, P.A.) and other examples like injunctions, executive orders, enforceable agency policies.
  • Work to eliminate the judge-created cap on emotional distress damages under FCRA (City of Hollywood v. Hogan, Ernie Haire Ford, Inc. v. Atkinson).
  • Protect Byrd v. Richardson-Greenshields from incursions such as Footstar that seek to reintroduce workers-comp bar on torts redressing sexual harassment.
  • Prevent spread of routine sanctions motions from federal to state practice.

The Role of Amicus

By Richard E. Johnson, Amicus Coordinator for Florida NELA

This is the formula for getting an amicus accepted in the 11th Circuit and for making one effective in any other appellate court:

  • Be careful not to duplicate or even much overlap the supported party's brief. If the amicus looks like a condensed version of the principal brief, they don't want to read it. They say you're a friend of the appellant, not a friend of the court. They are concerned you are, in effect, exceeding the supported party's page limits.
  • Cast your argument at a higher level of abstraction with no more dependency on the particulars than is necessary to show how this case fairly presents the points you wish to make. Never argue the facts.
  • Explain how your contribution assists the court rather than supported party. This needs to be the centerpiece. Even if the judges don't think it helps them much, it creates a kindly disposition.
  • Address the consequences of the bad decision below becoming circuit law (or the consequences of the good decision below being reversed). Bad law will hurt the courts and the rest of the system in some way. Find that and focus there. Look for big picture effects - injuries to constitutional separation of powers, circumvention of Congressional or legislative mandates, effects on judicial legitimacy, etc., or at least medium picture concerns - affirmance will encourage bad employer behavior and more suits, stimulate frivolous defense motions, make more work for judges, etc.
  • Keep it short. The federal rules allow half the length of a principal brief, so you get 7,000 words, which translates to a bit over 30 pages. The Florida rule allows 20 pages. But one should struggle to stay well under 20 pages (in the Arabic numeral sections) in both state and federal appeals courts. The ideal is probably to get the page count down to about 12, but that is not always possible. This is a bitter pill for some authors to swallow. It forces a reconceptualization of what many think the role of an amicus brief to be.

Topics of Interest

Florida NELA is committed to assisting its members through an active amicus program. Florida NELA submits amicus curie briefs to Florida's Appellate Courts and the Florida Supreme Court. Specifically, Florida NELA is interested and seeks to support the issues listed herein. Please contact Florida NELA's amicus coordinator, Richard E. Johnson, if you are facing one of these important legal issues. Additions to this list are welcome, as are questions about what is presented here.

  • Overturn Gallagher. All five Florida District Courts of Appeal have now followed Gallagher. We must get one to reconsider or try to "parachute" into the Florida Supreme Court from the 11th Circuit. Chances are we win if we get to the Florida Supreme Court. Otherwise we're stuck with this decision.
  • Reverse Scelta to re-establish negligent supervision and retention as viable claims with discrimination statutes as the underlying tort.
  • Establish that the Florida Private whistleblower Act requires only an employee's good-faith belief in the illegality of the practice or policy she opposes, not an actual violation of law.
  • Establish that a law, rule, or regulation need not be specifically applicable to an employer's particular industry to qualify for use under the Florida Private Whistleblower Act.
  • Establish that the written-notice provision of the Florida minimum wage statute is unconstitutional.
  • Establish promissory estoppel as a viable tort for employees.
  • Resist efforts to import federal summary judgment standards or Twombly/Iqbal pleading standards into Florida law.
  • Create conflict with Winn-Dixie v. Reddig to restore fee multipliers under FCRA.
  • Argue for application of Christiansburg standards to 448.08 claims and private whistleblower claims.
  • Expand scope of law, rule, or regulation under Private Whistleblower Act to include, at a minimum, obvious examples like Bar rules (reversing Snow v. Ruden, McCloskey, Smith, Shuster, & Russell, P.A.) and other examples like injunctions, executive orders, enforceable agency policies.
  • Work to eliminate the judge-created cap on emotional distress damages under FCRA (City of Hollywood v. Hogan, Ernie Haire Ford, Inc. v. Atkinson).
  • Protect Byrd v. Richardson-Greenshields from incursions such as Footstar that seek to reintroduce workers-comp bar on torts redressing sexual harassment.
  • Prevent spread of routine sanctions motions from federal to state practice.