Appellate Litigation Clinic
The Appellate Litigation Clinic enables students to develop litigation skills by working on federal appeals.
The clinic’s supervising attorney accepts appointments from federal appellate courts in appropriate appeals where parties lack representation. In such cases, students work in teams; they review the record, conduct legal research, draft and edit opening and reply briefs, prepare the excerpts of record for the court of appeals, and help prepare for oral argument. Students have typically argued these appeals when oral arguments were calendared in the same school year in which students worked on the briefs (local rules permit a student argument upon satisfaction of certain conditions).
Arguing before the Third Circuit was truly the culmination of my legal education. Both that challenge, as well as the Appellate Litigation Clinic more generally, required me and my classmates to bring the skills we have learned at Duke Law School to bear on a real-world problem. I cannot think of a better bridge between education and practice.
Recent clinic victories
- Howell v. Superintendent Albion SCI, 978 F.3d 54 (3d Cir. 2020). See description below (clinic appeals that resulted in published opinions) describing Third Circuit victory of clinic client Gerald Howell.
- United States v. Harper, No. 18-7147 (4th Cir. Jan. 10, 2020). Derick Harper filed a pro se challenge to his federal sentence, contending it was improperly enhanced under the Armed Career Criminal Act (ACCA), and claiming his counsel rendered ineffective assistance, in violation of the Sixth Amendment, with respect to the enhancement. The government opposed his motion, and the district court dismissed it. On appeal to the Fourth Circuit, the clinic argued that Harper’s prior state law convictions did not properly qualify to trigger the ACCA and that his counsel (at sentencing and on direct appeal) rendered ineffective assistance for conceding otherwise. After receiving the clinic’s opening brief, the government agreed he was illegally sentenced under the ACCA, and the Fourth Circuit vacated his sentence and remanded for resentencing. He was resentenced without the ACCA enhancement.
- United States v. Sepling, 944 F.3d 138 (3d Cir. 2019). See description below (clinic appeals that resulted in published opinions) describing Third Circuit victory of clinic client Peter Sepling. As a result of that Third Circuit decision, Mr. Sepling was favorably resentenced.
- Price v. Warren, 726 F. App’x 877 (3d Cir. 2018). Lonnie Price, a state inmate in NJ, was serving a life sentence after a jury convicted him for crimes that occurred in the year 2000. Maintaining his innocence, he filed a pro se federal habeas petition, but it was dismissed. On appeal to the Third Circuit, the clinic argued that his trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, regarding the state’s DNA evidence. In the spring of 2018, after oral argument, the Third Circuit agreed: The court granted a writ of habeas corpus and directed the state to retry Price within six months or release him. He was released that fall after nearly 20 years in prison.
Examples of clinic appeals that resulted in published opinions
- Howell v. Superintendent Albion SCI, 978 F.3d 54 (3d Cir. 2020). The clinic represented client Gerald Howell, a state prisoner in a habeas corpus matter, in his appeal pursuing a claim of actual innocence. Mr. Howell was arrested in 1983 at age 18, convicted by a jury, and sentenced to life without parole for a homicide in Philadelphia that he maintains he didn’t commit. The state had no forensic evidence linking him to the crime; rather, the state secured the conviction with testimony from a group of teenagers. Based on later discovered evidence, Mr. Howell pursued a claim of actual innocence, which the district court denied. The Appellate Litigation Clinic handled the appeal, and Mr. Howell prevailed. The Third Circuit vacated the underlying order and remanded for an evidentiary hearing on actual innocence—a hearing he had sought for many years.
- United States v. Sepling, 944 F.3d 138 (3d Cir. 2019). Peter Sepling filed a pro se challenge to his federal sentence, claiming ineffective assistance of sentencing counsel. His sentence was driven by a drug not listed in the sentencing guidelines: methylone. The sentencing judge chose ecstasy as the most closely related listed substance and applied the guidelines’ 500:1 ecstasy-to-marijuana equivalency ratio. On appeal to the Third Circuit, the clinic argued that his sentencing counsel was deficient for neglecting scientific evidence that methylone is substantially less potent than ecstasy, and that counsel should have attacked the Sentencing Commission’s harsh treatment of ecstasy as deeply flawed based on empirical and scientific evidence. After oral argument, the Third Circuit ruled that counsel rendered ineffective assistance, which prejudiced Sepling. The Court vacated his sentence and remanded for resentencing. He received a reduced sentence.
- Mack v. Yost, 839 F.3d 286 (3d Cir. 2016). Charles Mack, a federal inmate, brought a Bivens suit alleging that correctional officers engaged in anti-Muslim harassment in violation of the Religious Freedom Restoration Act (RFRA) and retaliated against him in violation of the First Amendment’s Petition Clause. The district court dismissed his claims under Rule 12(b)(6). Appeal issues included whether the Petition Clause protects grievances conveyed orally and informally, the scope of Bivens, whether Mr. Mack alleged a substantial burden on his religious exercise, RFRA’s remedial scope, and whether various defenses required dismissal. Mr. Mack prevailed on appeal. The Third Circuit reinstated his First Amendment and RFRA claims, holding (among other things) that First Amendment protection isn’t limited to written or formal grievances and that RFRA allows individual-capacity damages. The latter ruling on RFRA’s remedial scope was the first appellate ruling in the nation on that issue. The Supreme Court later addressed that issue in a separate case and agreed with the Third Circuit’s holding. See Tanzin v. Tanvir, 141 S. Ct. 486 (2020).
- Covey v. Assessor of Ohio County, 777 F.3d 186 (4th Cir. 2015). The Coveys (husband and wife) asserted civil-rights claims under Bivens and 42 U.S.C. § 1983 against federal and local officials arising from two invasions of the curtilage of their rural West Virginia home—one by a tax assessor, the other by a DEA agent and local law-enforcement officer. The district court dismissed the action under Rule 12(b)(6). Appeal issues included whether the Coveys stated claims for unlawful searches under the Fourth Amendment, whether qualified immunity required dismissal, and whether the action was barred by the doctrine in Heck v. Humphrey, 512 U.S. 477 (1994). The Coveys prevailed on appeal. The Fourth Circuit reinstated their Fourth Amendment claim.
- Branch v. Sweeney, 758 F.3d 226 (3d Cir. 2014). Horace Branch, a New Jersey state prisoner, filed a petition for a writ of habeas corpus to challenge his 20-year-old conviction for a shooting death. The Third Circuit granted a certificate of appealability on his Sixth Amendment claim that his trial counsel rendered ineffective assistance by failing to call two additional witnesses at trial. Mr. Branch prevailed in this appeal. The Third Circuit remanded for an evidentiary hearing, which he had sought for 15 years.
- Lesesne v. Doe, 712 F.3d 584 (D.C. Cir. 2013). John Lesesne brought a Bivens action alleging that, when he was a pretrial detainee in D.C., officials were deliberately indifferent to his safety and medical needs, in violation of the Fifth Amendment. On appeal, a central issue involved statutory interpretation: whether the district court properly interpreted the Prison Litigation Reform Act’s exhaustion bar. That issue in turn implicated the doctrine of forfeiture because Mr. Lesesne had failed to raise the statutory-interpretation argument before we were appointed by the D.C. Circuit. Mr. Lesesne prevailed on appeal. The D.C. Circuit agreed with our argument against forfeiture and with our interpretation of the statute and thus reinstated his action.
- Boniface v. U.S. Dep’t of Homeland Security, 613 F.3d 282 (D.C. Cir. 2010). Lewis Boniface, a commercial truck driver, challenged federal agency action that deprived him of an occupational license he had held in California—a hazardous materials endorsement. Specifically, the Transportation Security Administration (TSA) had applied its Patriot Act regulations to deem Mr. Boniface a terror threat based on a decades-old criminal conviction. We argued that the TSA acted arbitrarily and capriciously, and the D.C. Circuit agreed, remanding the matter for further agency proceedings. We then represented Mr. Boniface pro bono on remand in the agency proceeding, and he prevailed, obtaining an order from the TSA’s Office of Threat Assessment and Credentialing granting a waiver from the agency’s eligibility regulations.
- Robinson v. Clipse, 602 F.3d 605 (4th Cir. 2010). Tyrone Robinson brought a civil-rights action under 42 U.S.C. § 1983 alleging he was the victim of excessive force, in violation of the Fourth Amendment, when a state trooper shot at him eight times following a high-speed chase, striking Mr. Robinson once. The district court dismissed the action on procedural grounds, and we represented Mr. Robinson on appeal. He prevailed, as the Fourth Circuit reinstated his action.
- Rendelman v. Rouse, 569 F.3d 182 (4th Cir. 2009). Scott Rendelman, an orthodox Jew and Maryland inmate, sued officials under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after he was denied modest kosher dietary accommodations. The district court granted summary judgment to the defendants, holding that the denial of accommodations passed strict scrutiny. We challenged that ruling on appeal. But because Mr. Rendleman was transferred to a federal prison while the action was pending, his claim for injunctive relief (an accommodation) became moot. The issue thus arose whether individual-capacity damages are available under RLUIPA; the Fourth Circuit answered no because Congress enacted RLUIPA under the Spending Clause. Mr. Rendleman’s pursuit was not in vain: Just days before oral argument, the state announced (see the court’s opinion) that it would change its policy to allow kosher accommodations.
- Atherton v. D.C. Office of Mayor, 567 F.3d 672 (D.C. Cir. 2009). Mr. Atherton, a nuclear engineer, brought a Bivens action against a D.C. jury officer and federal prosecutor. He alleged he was improperly removed him from a grand jury on which he was serving, in violation of the Due Process Clause, because he would not rubber-stamp the prosecution’s case. The district court dismissed his action under Rule 12(b)(6) by invoking quasi-judicial and prosecutorial immunity. Issues on appeal included whether Mr. Atherton had a protected liberty interest in grand jury service to state a due process claim and whether absolute immunity (prosecutorial or quasi-judicial) barred his action. He prevailed in the appeal. The D.C. Circuit reinstated his due process claim.