Supreme Court Takes 3 Clinic Cases

Update: The Supreme Court scheduled oral argument for Cunningham v. Cornell University for Jan. 22, Perttu v. Richards for Feb. 25 and Ames v. Ohio Department of Social Services for Feb. 26.

The U.S. Supreme Court on Friday agreed to hear three cases with clients represented by clinics at the University of Virginia School of Law.

Two are with the Supreme Court Litigation Clinic: Ames v. Ohio Department of Social Services addresses a state employee’s sexual orientation discrimination claim, and Cunningham v. Cornell University concerns retirement plan fiduciary claims. The third is with the Appellate Litigation Clinic: Perttu v. Richards asks if prisoners have a right to a jury trial concerning the exhaustion of their administrative remedies.

In Ames, Marlean Ames alleged that the Ohio Department of Youth Services discriminated against her on the basis of sexual orientation and sex under Title VII of the Civil Rights Act of 1964. Ames, a heterosexual woman who was supervised by a gay woman, was denied a promotion and later demoted from her position. The promotion was filled by a gay woman, and a gay man replaced Ames in Ames’ former role. Both the District Court and U.S. Court of Appeals for the Sixth Circuit dismissed her claim before trial.

The case may resolve a circuit split on how to handle employee discrimination claims when the plaintiff is not a member of a minority group.

Attorney Edward Gilbert represented Ames before the trial court and before the Sixth Circuit, and is co-counsel as the case moves to the Supreme Court. Professor Xiao Wang, who directs the Supreme Court Litigation Clinic, reached out to Gilbert to offer the clinic’s assistance following the Sixth Circuit decision.

Wang said the case opens the door for the justices to embrace a uniform standard for Title VII lawsuits.

“We think that whatever the test is for discrimination, it should apply equally across groups and across individuals,” he said.

In Cunningham, current and former workers sued Cornell University and its appointed fiduciaries, alleging violations of the Employee Retirement Income Security Act. Under ERISA, fiduciaries are barred from engaging in certain “prohibited transactions,” including transactions that constitute a direct or indirect furnishing of goods, services, or facilities between the retirement plan and a party in interest. Although the workers pointed to such transactions in their complaint, the U.S. Court of Appeals for the Second Circuit rejected their class action, ruling that their allegations were insufficient to survive dismissal. The Eighth and Ninth Circuits have held differently in other cases, presenting another circuit split.

Wang, who is representing the employees, said that although ERISA might at first glance be a more obscure statute to law students, he believes a case like Cunningham appeals to clinic students because of their focus on reading and figuring out “how the many pieces of the law all fit together.”

The employees’ co-counsel at the law firm Schlicter Bogard said the Cunningham case is an important matter for retirement plans nationwide, and represents one of many cases that the firm has brought on behalf of workers. They said the firm’s work in the ERISA area has had a significant impact in reducing the fees paid by employees and retirees.

In Perttu, prisoner Kyle Brandon Richards appealed a District Court’s decision to dismiss his civil rights suit for supposedly failing to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or PLRA. Professor Scott Ballenger ’96, who directs the Appellate Litigation Clinic, explained that “there are incredibly short filing deadlines for filing a grievance in prison and then multiple levels of appeal, also with very short filing deadlines,” and that “if you don’t do everything absolutely right, you lose your prison grievance claim, but you also lose your claim in court.”

Richards maintains that prison staff retaliated against him because of his claims of abuse by tearing up his prison grievance forms. But the District Court held a hearing — without a jury — and found the officers more credible.

The Sixth Circuit asked the Appellate Litigation Clinic to represent Richards, and the case was argued by two third-year students last year. The Sixth Circuit ultimately broke with prior decisions of the Seventh and Ninth Circuit to side with Richards, holding that the Seventh Amendment requires a jury trial when disputed facts relevant to the exhaustion of prison remedies under the PLRA overlap with the merits of the plaintiff’s substantive case. The Michigan Solicitor General’s Office asked the Supreme Court to take the case to resolve the circuit split.

The Appellate Litigation Clinic faculty have handled many cases at the Supreme Court in private practice, but this will be the first time the clinic itself has had a case at the court.

The court also granted cert to Smith & Wesson Brands v. Estados Unidos Mexicanos, in which Cate Stetson ’94, co-instructor of the Appellate Litigation Clinic, is representing the respondents in her capacity as co-director of Hogan Lovells’ appellate practice group.

The yearlong Supreme Court Litigation Clinic introduces third-year students to all aspects of current U.S. Supreme Court practice through live cases. Ames and Cunningham are the clinic’s 19th and 20th cases before the court since the course’s inception in 2006.

The Appellate Litigation Clinic allows 12 students to engage in the hands-on practice of appellate litigation through actual cases before various federal circuit courts of appeals.

Both clinics and the professors involved are part of the Law School’s Supreme Court and Appellate Litigation Program.