Civil Rights Appellate Clinic files Supreme Court petition for Air Force General

UNIVERSITY PARK, Pa. –  The Penn State Law in University Park Civil Rights Appellate Clinic, alongside Washington, D.C.-based firm, The Employment Law Group, PC, filed a petition for a writ of certiorari with the Supreme Court of the United States, along with a Motion to Proceed as a Veteran,  in a case that concerns reemployment rights for uniformed service members who make the brave decision to take leave from their civilian careers to serve our nation. The Court granted the Motion to Proceed as a Veteran on November 14, 2022. American Airlines' response to the petition is due by December 14, 2022.

The petition asks the Supreme Court to clarify whether the Uniformed Services Employment and Reemployment Rights Act (USERRA) entitles a service member, upon meeting certain conditions, to swift reemployment in the position he or she would have attained if they had not left to serve. Where employers face hardship in reemploying the service member to his or her proper position, the petition additionally asks the Court to determine whether USERRA requires specificity in a new reemployment job offer.

Clinic students involved in the drafting process included Meg Dougherty, Nina Franco, Max Giuliano, Jedediah Riesenberg, and Bridgette Woodford.

“Going over complex legal issues in class is one thing,” said Giuliano. “But the opportunity to tackle them head-on in a petition to the Supreme Court is something few practitioners—let alone law students—have a chance to do.”

The petition materialized out of the complex circumstances surrounding Air Force Major General Thomas P. Harwood, III’s efforts to be reemployed in his proper position as a pilot with American Airlines (AA) after taking a period of leave for a tour of military duty. During his leave, Harwood, a decorated member of the Air Force Reserves, was diagnosed with atrial fibrillation. Before the end of his tour, Harwood notified AA of his intent to return to his position as a pilot, and they confirmed his reemployment as a Boeing 737 Captain. However, in late August 2015, AA informed Harwood that he would not be reemployed until he received a First-Class Medical Certificate from the FAA. Harwood informed AA that they were in violation of USERRA, as the Act did not require a valid Medical Certificate as a stipulation to reemployment and again asked that AA reemploy him as a pilot and allow him to use his sick leave balance until he could obtain the certificate. AA declined this request. Only after Harwood obtained counsel and requested reemployment in an equivalent position did AA finally offer to reemploy him, but in a different position, with no job description, in the Flight Technical Operations Group, a position that the District Court for the Eastern District of Virginia upheld. Months after Harwood’s initial reemployment request, the FAA finally issued Harwood a Medical Certificate, and AA informed Harwood he could return to work.

After years of litigation, the Fourth Circuit Court of Appeals affirmed that the new position offered to Harwood was equivalent as required under USERRA. Harwood requested a panel rehearing of this decision, but his request was ultimately denied.

Given this denial, the Clinic stepped forward to aid the Employment Law Group in appealing the matter to the Supreme Court. Clinic members tirelessly reviewed intricate case records, discussed multiple strategic approaches to the petition, and meticulously drafted it.

“Yes, it was difficult, but as law students, we spend a lot of time reading about the law, writing about the law, and dissecting the law, but there are few moments, prior to our work in the actual field, where we get the opportunity to make an impact on the lives of others. This was one of those rare moments,” said Franco.

With the semester at its halfway mark, the Clinic’s members expressed pride in their final product and the lessons acquired along the way.

“It was a unique and rewarding experience. I enjoyed collaborating with both my clinical team and the law firm working on the case,” said Dougherty. “I think we came away with a strong final product, and hopefully, this petition will raise awareness about an important issue impacting service members’ employment rights.”

Woodford agreed, “Although the drafting of this petition was incredibly challenging, the issue, in this case, is of national importance, and I’m so grateful to have been a part of the advocacy for change. It’s a pretty special experience.”

While the Clinic eagerly awaits word from our nation’s highest court, the team plans to continue pushing forward on other complex and transformative legal matters.

“We learn a lot of Supreme Court jurisprudence in our doctrinal classes, but in the Appellate Clinic, we get to learn a great deal about how to be the lawyer bringing those cases,” said Riesenberg.

Michael Foreman, Clinic director and clinical professor of law, explained that while the Court only grants review in about three percent of cases, “I am totally impressed with how the students, working with the Employment Law Group, dove into the complicated research and legal analysis required to give General Harwood his best shot at having the Court review his case.”