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Disability Rights Groups Oppose Nomination of Gene Pratter

The National Council on Independent Living, ADA Watch/National Coalition for Disability Rights, and the Bazelon Center for Mental Health Law oppose the nomination of Gene E.K. Pratter to the Third Circuit Court of Appeals. We are deeply troubled by certain rulings by Judge Pratter that demonstrate a dismissive attitude toward the rights of people with disabilities. In light of Judge Pratter’s controversial record, her nomination should not be acted upon in an election year.

Judge Pratter, a member of the Federalist Society, has been a federal judge in the Eastern District of Pennsylvania since she was confirmed in 2004, after being nominated by President George W. Bush. During her several years on the bench, Judge Pratter has authored decisions that are of grave concern to disability rights advocates.

In Disabled in Action v. Southeastern Pennsylvania Transportation Authority,1 Judge Pratter dismissed a disability rights group’s claims seeking to require the Philadelphia area transit authority to comply with the ADA by making two major subway stations accessible to people with disabilities. These stations were required to be accessible because they had undergone substantial renovations. Judge Pratter held that the plaintiff’s ADA claims were barred because they were filed too late. She held that the statute of limitations began running from the time that the plaintiff and its lawyer knew that the transit authority did not plan to make the stations accessible, rather than from the time that the renovations were completed without making the stations accessible. Judge Pratter’s ruling ignores the plain language of the ADA, which provides that discrimination occurs when a public transportation facility is not made accessible “upon completion” of renovations. As a result of this ruling, individuals who use wheelchairs and other individuals with mobility impairments were left without recourse for their inability to use these stations, which are major connection points in the local transportation system. The U.S. Justice Department has filed an amicus brief supporting the plaintiff on its appeal to the Third Circuit, explaining that Judge Pratter’s ruling is wrong and conflicts with the clear language of the ADA.

In Phillips v. Sheraton Society Hill,2 Judge Pratter dismissed an ADA employment discrimination case brought by a man with a back injury. Judge Pratter failed to apply the federal courts’ customary solicitude for the rights of litigants who are not represented by counsel, and dismissed the case on her own motion because the man’s complaint did not indicate whether he had exhausted his administrative remedies (that is, whether he had first given the Equal Employment Opportunity Commission a chance to investigate his claim). Judge Pratter dismissed the case without permitting Phillips, who was unrepresented, to amend his complaint to demonstrate that he had filed a complaint with the EEOC and received a “right to sue” letter.

The Third Circuit Court of Appeals reversed, holding that dismissal was inappropriate: “We are troubled by the fact that Phillips was given no opportunity to amend the Complaint before the District Court sua sponte dismissed it. Phillips’ failure as a pro se litigant to allege exhaustion does not warrant dismissal of this action with prejudice….We cannot assume from [his] pro se complaint that no right-to-sue letter exists or that he failed to exhaust his administrative remedies merely because he failed to attach a right-to-sue letter.” The appeals court also noted that Phillips had filed a form complaint that did not require him to affirmatively state that he had exhausted administrative remedies. Judge Pratter’s harsh ruling suggests an indifference to the financial realities faced by many people with disabilities, who may not be able to afford representation in order to challenge disability discrimination, but who may not be familiar with the procedural requirements of federal court litigation.

We are extremely concerned about the prospect of elevating a federal judge who seems to have a disparaging attitude toward important rights of individuals with disabilities. Both of these rulings demonstrate a willingness to dismiss claims to enforce critical rights of individuals with disabilities based on procedural concerns that are simply not warranted.

Moreover, we believe that none of the pending controversial judicial nominations, including Judge Pratter’s, should be acted upon at this stage. The Senate should follow its longstanding policy that nominations are not processed in a presidential election year unless they are uncontroversial. Federal courts have inappropriately rolled back many important rights of people with disabilities, and the nomination of controversial nominees who are hostile to civil rights must come to an end. Accordingly, the nominations of Judge Pratter and all other controversial nominees should not be acted upon.

1. No. 03-CV-1577, 2006 WL 3392733 (E.D. Pa. Nov. 17, 2006) (appeal pending).

2. No. Civ.A. 04-5659, 2005 WL 2562724 (E.D. Pa. Oct. 11, 2005), rev’d, 163 Fed. Appx. 93 (3d Cir. 2005).