Opposition to Judge Pratter’s Nomination to the Third Circuit Court of Appeals

Recipient: Senate Judiciary Committee

The Honorable Patrick Leahy
Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Arlen Specter
Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Chairman Leahy and Ranking Member Specter:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the nomination of Judge Gene E. K. Pratter to the United States Court of Appeals for the Third Circuit. In her short tenure as a district court judge on the Eastern District of Pennsylvania, Judge Pratter has exhibited a willingness to prematurely dismiss the claims of civil rights plaintiffs and to inhibit advocacy by their counsel, thus denying these plaintiffs access to a full and fair legal process.

In order for our justice system to function fairly and effectively in civil rights cases and all other matters, a party must be given the opportunity to develop its claims and present them to a jury, except under certain narrow circumstances where it is clear the claims lack merit or are legally barred, or where a party’s lawyer has used improper tactics. Judge Pratter, however, has proven eager to dismiss the claims of civil rights plaintiffs and to stifle advocacy by these plaintiffs’ attorneys. Moreover, she has grounded these decisions in questionable – or, as the Third Circuit has held in at least three cases, wrong – interpretations of law and fact.

  • In Phillips v. Sheraton Society Hill, Judge Pratter sua sponte dismissed an unrepresented plaintiff’s complaint based on his failure to make certain legally necessary allegations, without first offering him a chance to supplement his complaint. The Third Circuit reversed, stating it was “troubled” by Judge Pratter’s decision, which was contravened by circuit precedent.
  • In Taliaferro v. Darby Twp. Zoning Board, Judge Pratter denied plaintiffs standing in a Section 1983 civil rights suit alleging that a local zoning board had sought to keep the local African-American population low. She reasoned that the plaintiffs had not shown they suffered damage from the board’s conduct. The Third Circuit reversed, noting that the plaintiffs clearly possessed standing to sue because they had alleged that were harmed by the board’s conduct.
  • In Brisker v. Potter, Judge Pratter granted summary judgment to a defendant in an employment discrimination case, dismissing it without letting a jury review the facts, despite evidence that the plaintiff’s supervisor made a racist remark around the time she was discharged.
  • In Disabled in Action v. SEPTA, Judge Pratter narrowly construed a statute of limitations to block a challenge to an Americans with Disabilities Act challenge to a subway station’s lack of access for people with disabilities. In the pending appeal of this decision, the current Department of Justice has filed a brief sharply disputing her cramped interpretation of the statute of limitations.
  • In EEOC v. HORA, Inc., Judge Pratter disqualified an employee’s lawyer in a hostile environment case for alleged improper communication with an administrative assistant at the defendant company. The Third Circuit again reversed, holding that the facts on which Judge Pratter relied had no basis in the record and that there was no evidence to suggest that the lawyer’s communication was improper or warranted disqualification.
  • In Fassl v. Our Lady of Perpetual Help R.C. Church, Judge Pratter invited the defendant in a Family and Medical Leave Act case to file a motion for attorneys’ fees on the ground that the plaintiff’s claim was frivolous, even though there was no controlling precedent that would have foreclosed plaintiff’s claim.

The court of appeals is the court of last resort in the vast majority of cases. If elevated, Judge Pratter’s decisions on the Third Circuit are likely to stand, even if she continues to intrude on the fact-finding process. It is especially important that a judge appointed to a circuit court show restraint in determining whether to take the extraordinary step of dismissing a party’s claim or of preventing a lawyer from adopting a particular strategy to develop his or her client’s claims.

Based on Judge Pratter’s striking record in the mere two-and-a-half years she has spent on the district court, LCCR opposes her nomination to the Third Circuit. Enforcement of our civil rights laws requires that plaintiffs be given a full and fair opportunity to present their claims. Judge Pratter’s record raises serious doubts as to whether she will protect these plaintiffs’ access to a fair process.

Thank you for your consideration. If you have any questions, please contact Nancy Zirkin at 202-263-2880, or Paul Edenfield, Counsel and Policy Analyst, at 202-263-2852.


Wade Henderson
President & CEO

Nancy Zirkin
Executive Vice President