Penn State Law students submit amicus brief to Supreme Court

March 21, 2017

UNIVERSITY PARK, Pa. — Earlier this month, the Penn State Law Civil Rights Appellate Clinic filed an amicus brief with the United States Supreme Court, urging the nation’s highest court to resolve a complex procedural issue surrounding the workplace rights of federal government workers.

The clinic filed its brief on behalf of the Metropolitan Washington Employment Lawyers Association (MWELWA) in Perry v. Merit Systems Protection Board, which concerns a federal employee’s right to review of his discrimination claim after it was dismissed by the Merit Systems Protection Board (MSPB) on jurisdictional grounds.

“We are delighted with the excellent work the Civil Rights Appellate Clinic at Penn State Law did with this amicus brief,” said Alan Kabat, a member of the MWLEA amicus review committee. “The Supreme Court will have to resolve some tricky procedural issues that affect the ability of federal employees to enforce their workplace rights — issues that have caused serious problems in the past.”

The issue at the center of Perry v. Merit Systems Protection Board stems from a 2012 Supreme Court decision, in which the Court held that federal employees whose discrimination claims are dismissed on procedural grounds by the MSPB are entitled to have their cases heard on the merits in federal district court. The Civil Rights Appellate Clinic, along with plaintiff Anthony Perry, argued that a federal employee’s discrimination claim dismissed on jurisdictional grounds, as opposed to procedural grounds, is entitled to the same type of review.

The Civil Rights Appellate Clinic’s brief focused on, among other issues, the fact that a federal employee could potentially have no trial on the merits of his discrimination claim under current interpretations of the law. In the case at hand, Mr. Perry’s discrimination case was dismissed by the MSPB for lack of jurisdiction before the board considered the merits of his claim. Although he appealed this decision, the Court of Appeals for the Federal Circuit would only review the MSPB’s decision to dismiss Mr. Perry’s discrimination claim, not the actual merits of the claim itself.

“Mr. Perry suffered from a classic case of bureaucracy missing the forest for the trees,” said second-year Penn State Law Andy Low, one of the clinic students who worked on the brief. “By forcing Mr. Perry to appeal the MSPB's ruling on a mixed case to the Federal Circuit, despite never ruling on the merits of the discrimination claim, Mr. Perry was at best forced into splitting his and the judiciary's time and resources in a grossly inefficient manner between district and circuit court, and at worst was denied his day in court altogether.”

In addition to potentially helping resolve this important issue, the Clinic’s amicus brief provided clinic students with invaluable practical experience.

“Whether it was through helping with research, writing the brief, or editing in response to client comments, working on an amicus brief in support of Mr. Perry's case was very illuminating,” said Patrick Stickney, a second-year law student. “Hopefully, this brief will help the Supreme Court write a decision that simplifies the process for federal government employees challenging an adverse employment action in a situation where they are also alleging a claim under federal anti-discrimination laws.”

Fellow Penn State Law students Theresa Dorsainvil, Misti Howey and Rachel Naquin also worked with the Penn State Law Civil Rights Appellate Clinic on the Perry brief. The Civil Rights Appellate Clinic, one of nine legal clinics available at Penn State Law, provides law students with the unique experience of working on cases before the Supreme Court of the United States.

“Working in the Civil Rights Appellate Clinic has been the most rewarding part of my law school career. I had the opportunity to work on three cases before the U.S. Supreme Court with a great team, and experienced what working in a law firm's appellate practice would feel like,” Dorsainvil said. “This clinic has helped me grow by strengthening my writing, time management, and discipline. With this clinical experience, I am better equipped to succeed in my legal career.”

Last Updated March 21, 2017