Civil Rights Appellate Clinic Files Petition in U.S. Supreme Court in Whistleblower Case and Continues to Pursue Remedy in Third Circuit ADA Action

UPDATE: The Court of Appeals for the Third Circuit has listed Doe v. Law School Admission Council for argument on September 12, 2019, and has granted the motion to have a student argue it. Penn State Law in University Park student Jenny Bruce will argue the case.

UNIVERSITY PARK, PA–Students in the Penn State Law Civil Rights Appellate Clinic got real insight into law practice facing two short briefing deadlines at the start of the spring semester.

On February 1, the clinic filed a petition for certiorari in the Supreme Court of the United States in Cody v. Mantech. The underlying case involved a whistleblower action where Cody alleged she was demoted and subsequently fired in retaliation for voicing concerns about a potentially fraudulent government contract executed by ManTech.

In the petition, the clinic argues the en banc Fourth Circuit panel erred by ignoring Supreme Court precedent when it reversed the jury finding in favor of Cody and improperly made its own credibility determinations thus rejecting the reasonable inferences that were drawn by the jury at trial, and inherently assuming the role of a second jury.

The clinic also highlighted the importance of whistleblower protection and how the Fourth Circuit’s reversal strips the statute of its clear purpose—to protect and encourage employees to report fraud without fear of retaliation.

This Supreme Court filing came on the heels of a brief that the clinic filed four days earlier in the U.S. Court of Appeals for the Third Circuit in Doe v. Law School Admission Council.

In August 2018, the Third Circuit Court appointed the clinic as counsel for Jane Doe, a pro se plaintiff representing herself. In the case, Doe was seeking accommodations on the Law School Admission Test (LSAT). The brief argues that a motion to dismiss filed by the Law School Admission Council (LSAC) should not be granted because the claim filed by Doe properly asserts the LSAC violated the Americans with Disabilities Act of 1990 (ADA) by failing to provide reasonable accommodations on the standardized test.

The clinic further advocates that Doe’s claims deserve to proceed to a trial on the merits because they fit squarely within a well-known exception to the mootness doctrine—capable of repetition yet evading review.

The brief was written by clinic associates Jorge Rivera, Laura Lipschutz, Arman Marukyan, Yerisbel Jimenez, Heidi Tripp, and Jennifer Bruce, with the help and supervision of Associate Dean of Clinics and Experiential Learning Michael L. Foreman, director of the clinic.

“I’m proud to be working for a clinic that fights on behalf of individuals with disabilities,” Rivera said. “It’s great to know that the work we’re doing is making a positive impact in the lives of the people we represent.”

The Third Circuit has permitted oral argument for this case, and it is expected that a student from the Civil Rights Appellate Clinic will argue the case under Foreman’s leadership later this semester.

“I came to Penn State Law because I wanted to help people, and that's exactly what we have done in this short, one-month period,” Marukyan noted.

“With such tight deadlines, we began working and preparing before the semester even started,” Lipschutz said. “We pulled it off and I couldn’t be more proud to be a member of the CRA team. The work is incredibly fulfilling, I've already learned so much, and I can't wait to see what else is in store for the clinic this semester.”

The Civil Rights Appellate Clinic, one of nine legal clinics available to Penn State Law students, provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before state appellate courts, federal courts of appeal, and the U.S. Supreme Court. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy.

“Being able to work on the Doe case for a second semester has been such a significant learning opportunity,” Jimenez said. “I’ve had the chance to be a part of every step in this process so far, and I can’t wait to see where the case takes us next.”