Appellate Litigation Clinic
The Appellate Litigation Clinic enables students to develop litigation skills by preparing and presenting appeals in federal appellate court in cases filed by parties not represented by counsel.
The courts appoint the supervising professors as counsel of record in appropriate cases filed by parties who lack representation. Students review the trial court record, conduct legal research, draft and file appellate and reply briefs, prepare the excerpts of record for the court of appeals, prepare for oral argument, and argue the case, with permission of the court and consent of the client. The clinic provides Duke Law students an extraordinary opportunity to develop their appellate practice skills at the same time that they provide critical legal services to people who would otherwise be unrepresented.
The clinic's appeals have included civil rights cases, administrative law cases, and habeas cases challenging criminal convictions or sentences in several federal circuits. In each appeal that the clinic has handled, the appellant or petitioner was self-represented (appeared pro se) in the lower court, and the clinic first became involved on appeal, upon court appointment. In nearly all of the clinic's appeals that were orally argued, a clinic student delivered the argument. Some cases settled after briefing and before argument. Many have resulted in published (precedential) opinions.
Between the strong camaraderie and the intellectual rigor, no single experience has made me so excited to begin my career as a lawyer.
Recent clinic victories
- 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.
- 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
- 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.
- 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, and the Supreme Court later granted certiorari in Nov. 2019 to address that issue in a case subsequently decided by the Second Circuit: Tanzin v. Tanvir (U.S. 19-71).
- 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.