Battered Women’s Syndrome: How Can Courts Act in the Pursuit of Justice When a Robber is Also a Victim?


Marjory Dingwall confessed to three counts of robbery and three counts of brandishing a firearm during a crime of violence, but she claimed she committed them under duress, fearing the violence she had come to expect from her abusive boyfriend.  Dingwall filed a motion in limine, seeking a ruling on the evidence that she planned to offer to support her duress defense, including her own statement, emails, text messages, and an expert report from Dr. Darald Hanusa. 

Dr. Hanusa’s report diagnosed Dingwall with PTSD and Battered Woman Syndrome as a result of her “extraordinarily extreme case of relationship abuse,” and concluded that “[an abused woman’s] attempts to decrease, minimize and stop the violence can include…criminal or illegal behaviors.”   Battered Women’s Syndrome was coined in the late 1970’s by Dr. Lenore Walker to describe the psychological and behavioral traits common to women who are exposed to severe, repeated domestic abuse.  Dr. Hanusa wrote that a symptom of Battered Women’s Syndrome was a change in the victim’s reality such that “she will take whatever action that has the highest predictability stopping the violence against her.”  

The district judge concluded that Dingwall’s proffer was not sufficient under existing Circuit precedent because the duress requirements of imminence and no legal alternatives could not be satisfied in her case; however, the judge invited the court of appeals to change this precedent, stating “I hope that the Seventh Circuit joins the other circuits and says, ‘Look, this is a recognized psychological phenomenon that happens when…partners face severe abuse and it can have the effect of being so dominating in their mind that it really undermines their complete responsibility for what they do.’”


Is the immediate physical presence of the threat always essential to a duress defense, and should expert evidence of the effect of violence in an abusive relationship be permitted to support a duress defense before a jury?


The Sixth, Seventh, Ninth, and D.C. Circuits

The Seventh Circuit sided with the Sixth, Ninth, and D.C. Circuits in an existing split between the aforementioned and the Fifth and Tenth Circuits. In Dingwall, the court rejected a strict physical proximity test to establish a reasonable fear of imminent violence. Instead, the court held that a reasonable jury could find that Dingwall’s abuser’s threats could cause a reasonable person to fear imminent violence.  As such, the Seventh Circuit concluded that Dingwall should not have been denied the opportunity to offer expert evidence about the psychological impacts of battering on an objectively reasonable person, as it would have assisted the jury in determining how an ordinary person might act in the defendant’s position.  

The Sixth Circuit heard a similar case in Dando v. Yukins (2006). Here, the victim helped her boyfriend commit a series of armed robberies over the course of a day.  Although she was not always in his physical presence, her boyfriend was armed and had threatened to kill her. The court held that a history of violent abuse and imminent violent threats could lead a reasonable person to act as the petitioner had, and that evidence of Battered Woman’s Syndrome could strengthen the argument that the petitioner’s actions were reasonable. 

Ten years later, the D.C. Circuit addressed this question in United States v. Nwoye (2016)Here, the defendant was convicted of extortion after her counsel did not present expert testimony on Battered Women’s Syndrome, resulting in the court’s refusal to give the jury instructions on duress. The trial court determined that because Nwoye’s abuser was not physically present at the time of the crimes and because she did not prove that she had no reasonable alternative to participating in the extortion scheme, she could not successfully assert a duress defense. However, the D.C. Circuit joined the Sixth Circuit by reversing the trial court’s finding and holding that expert testimony on Battered Women’s Syndrome may be admissible as evidence to prove duress. They reasoned that the duress defense requires that a defendant acted reasonably under the circumstances, and expert testimony on Battered Women’s Syndrome can help a jury determine if the defendant’s actions were reasonable. 

Finally, in United States v. Lopez (2019), Lopez purchased a gun with a fake ID for her boyfriend after he threatened her and her family.  She was then charged with federal crimes for lying to buy a firearm.  Lopez offered expert testimony on intimate partner abuse to explain her behaviors, but the district court barred it, claiming it explained only a subjective standard, not the objective standard of reasonableness required to assert a duress defense. The Ninth Circuit reversed, finding that expert testimony on Battered Women’s Syndrome “serves an important role in helping dispel many of the misconceptions regarding women in abusive relationships.” Part of this important role is explaining how “a reasonable person can nonetheless be trapped and controlled by another at all times even if there is no overt threat of violence.” 

The Fifth and Tenth Circuits

Conversely, the Fifth and Tenth Circuits have upheld the exclusion of expert testimony on Battered Women’s Syndrome, stating that it is not relevant to the objective reasonableness of a defendant or her behavior. In United States v. Dixon (2018), the Tenth Circuit held that courts may only consider “external, concrete” factors when determining the reasonableness of a defendant’s behaviors.  They categorized Battered Women’s Syndrome as a “non-tangible psychological condition,” which courts may not consider.  The Fifth Circuit also previously held in United States v. Willis (1994) that evidence that a defendant is suffering from Battered Women’s Syndrome is not relevant to a duress defense because it is inherently subjective.  


The Seventh Circuit acknowledged that this decision does not guarantee the success of Dingwall’s duress defense, nor does it guarantee that the Battered Women’s Syndrome evidence will be admitted in trial.  They merely overturned the exclusion of Dingwall’s proffered evidence on the broad relevance reasons provided. This case will be remanded to the district court.

Why Is Zuckerberg Using My Image In Dating Apps?: Looking to Section 230 for Guidance


The Communications Decency Act (CDA) was passed into law in 1996 to address the proliferation of indecent material on the nascent internet industry. To promote growth, Congress also made sure to offer Internet companies protection from particular kinds of content liability. This protection came in Section 230 of the CDA, which broadly immunized content providers from lawsuits over content generated by third parties. For example, an Internet chat board could not be sued over the comments of its users. However, there are several exceptions from Section 230 immunity, such as for intellectual property claims and state law claims (47 U.S.C. 230(e)(2) and (3)).

Karen Hepp is a news anchor for Fox 29 in Philadelphia. In 2019, she filed a lawsuit in the Eastern District of Pennsylvania against Facebook after discovering that the company was advertising a dating website using her image. The claim pertinent here was a violation of Pennsylvania’s right of publicity law. Since Hepp was a public figure who depended on a carefully cultivated image for her success, she argued that her image on a dating website without her authorization jeopardized that image. The District Court dismissed her state law claims on the basis that Section 230 only exempted federal intellectual property claims from immunity.


 Are state law claims for violation of a right to publicity immunized from lawsuits by Section 230 of the CDA?


Hepp’s case was appealed to the Third Circuit, but there was an existing circuit split between the First and Ninth Circuits.

The First Circuit

The First Circuit addressed the intellectual property exception in 230(e)(2) in the case of Universal Communications Systems, Inc. v. Lycos (1st Cir. 2007). In that case, Universal Communications Systems (UCS) and its CEO brought defamation claims against Lycos, the operator of an Internet message board that contained anonymous posts critical of UCS. The allegedly defamatory posts disparaged the “financial condition, business prospects and management integrity” of UCS.

 Many of UCS’s claims were dismissed because of Section 230 immunity, but the court took care to address one claim in particular, which was that Lycos violated Florida state trademark law. UCS’s claim was that, in permitting the defamatory speech against UCS, Lycos was diluting the UCS brand. The District Court of Massachusetts had dismissed the claim, stating that the trademark claim was in fact, a defamation claim in disguise.

The First Circuit held that, while the district court properly dismissed the claim “because of the serious First Amendment issues that would be raised by allowing” the claim, Section 230 immunity did not apply. In other words, a well-pleaded state law trademark injury could in theory survive Section 230.

The Ninth Circuit

 In the same year as the decision in Lycos, the Ninth Circuit had the opportunity to consider the applicability of intellectual property law to Section 230 in the case of Perfect 10, Inc. v. CCBill LLC (9th Cir. 2007). In that case, Perfect 10, an adult content Internet company, sued CCBill alleging that CCBill provided services to websites that posted images stolen from Perfect 10.

Among many federal intellectual property claims, Perfect 10 asserted a California state law claim against CCBill for violation of Perfect 10’s models’ right to publicity. The Ninth Circuit held that, because Congress gave no indication otherwise, Section 230 only exempted federal intellectual property claims from immunity, and that Perfect 10’s state law right to publicity claim was not viable.

 “The CDA does not contain an express definition of “intellectual property,” and there are many types of claims in both state and federal law which may—or may not—be characterized as ‘intellectual property claims. While the scope of federal intellectual property law is relatively well-established, state laws protecting ‘intellectual property,’ however defined, are by no means uniform….In the absence of a definition from Congress, we construe the term “intellectual property” to mean “federal intellectual property.”

The Third Circuit

The Third Circuit, in Hepp v. Facebook (3rd Cir. 2021), joined the First Circuit in holding that Section 230 does not immunize Internet companies from state law intellectual property claims.

The court acknowledged the Ninth Circuit’s assertion that there was a lack of a definition of “intellectual property” in the CDA, but stated that the evidence “cuts both ways,” and one could just as easily argue that references elsewhere in the statute “suggest that when Congress wanted to cabin the interpretation of state law, it knew how to do so.” In the absence of clear statutory evidence, the court held that the “natural meaning” of intellectual property, which includes state law, holds.

The court also stated policy reasons for ruling in favor of Hepp, including the Congressional policy of enacting Section 230, which was to promote free markets. “State property laws,” the court  says, “enable the…formation of effective markets.” Additionally, Hepp’s right to publicity should be considered a valuable property right and preventing a public figure who “has dedicated considerable time, effort and money into building her brand” from being able to challenge unauthorized uses of her image would disincentivize people from cultivating valuable public images.

Ultimately, the Third Circuit allowed Hepp to move forward with her claim on the basis that Section 230 does not preclude claims based on state intellectual property laws.


Facebook will likely pursue en banc review, which could go in either direction for the company given the split in the Third Circuit’s decision. Should the Third Circuit panel ruled again in favor of Hepp, Facebook may likely take the case further and seek review from the Supreme Court. Facebook, which displays massive sums of user-generated content, has much to lose if every individual state can assert intellectual property claims against the company.

That being said, Section 230 remains controversial, and this case may to the law’s contentiousness in the eyes of the public and policymakers. People critical of the power of tech companies will celebrate this ruling, but Congress, responding to an electorate critical of big tech, may choose to amend Section 230 of the Third Circuit en banc panel or the Supreme Court eventually rule for Facebook.

How to Get Away with Murder: Get Convicted in the D.C. Circuit


It goes without saying that killing an officer or employee of the United States is a punishable offense, but is that murder punishable if committed outside American territory? 18 USC § 1114 makes it illegal to kill or attempt to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties. Federal courts have long avoided reading statutes as applicable on foreign soil, except when Congress clearly indicates as such, by using the canon of statutory interpretation known as the presumption against extraterritoriality. Some courts, however, have used a 1922 Supreme Court decision, United States v. Bowman, to justify applying § 1114 outside American borders.


Can 18 USC § 1114 criminalize killing or attempting to kill an officer or employee of the United States outside the territory of the United States?


The Second and Eleventh Circuits have applied 18 USC § 1114 extraterritorially, concluding that Congress would have intended it to do so. The D.C. Circuit declined to apply the statute extraterritorially, holding firm to the presumption against extraterritoriality.

Second and Eleventh Circuits

The Eleventh Circuit, in United States v. Benitez (1984), held that § 1114 has extraterritorial application. In Benitez, the defendant was convicted of conspiracy to murder DEA agents engaged in the performance of their official duties in Colombia, among other crimes. The court held that “assault and attempted murder of DEA agents is exactly the type of crime that Congress must have intended to apply extraterritorially.” The Eleventh Circuit upheld the district court’s judgment of conspiracy to murder the agents.

The Second Circuit, in United States v. Al Kassar (2011), also held that § 1114 has extraterritorial application. In Al Kassar, three defendants were convicted of conspiring to kill U.S officers in Spain and Romania. The Second Circuit read Bowman to mean “the presumption that ordinary acts of Congress do not apply extraterritorially does not apply to criminal statutes.” § 1114 has no explicit provision for application on foreign soil, therefore, according to Bowman, congressional intent must “be inferred from the nature of the offense.” The court held “the nature of the offense – protecting U.S. personnel from harm when acting in their official capacity – implies an intent that it applies outside of the United States.” The Second Circuit explained that this is because a significant number of those employees perform their duties on foreign soil. The court in Al Kassar affirmed the convictions and sentences.

The Second Circuit affirmed the application of territoriality to § 1114 in United States v. Siddiqui (2012). In Siddiqui, the defendant was convicted of attempted murder of U.S. nationals, officers, and employees, among other crimes. The court held, “we see no basis for expecting Congress to have intended to limit these protections to U.S. personnel acting within the United States only.” The nature of the offense, the court concluded, implies a congressional intent outside U.S. territory. The court in Siddiqui affirmed the convictions and sentence.

D.C. Circuit

The D.C. Circuit, in United States v. Sota (2020), held that because § 1114 does not speak to extraterritorial application, one way or the other, the presumption against territoriality remains firm, and therefore does not apply beyond U.S. territory. In Sota, two defendants were convicted of killing an American law enforcement officer in Mexico, among other crimes. The court determined that the presumption against territoriality remained unrebutted because Congress had not “affirmatively and unmistakably instructed that the statute will” apply abroad. Congress passed § 1114 and nearby § 1116 in a single statute, the Antiterrorism and Effective Death Penalty Act of 1996. § 1116 criminalizes killing a U.S. officer or employee who is otherwise “entitled pursuant to international law to special protection against attack.” The court determined that §§ 1114 and 1116 must be read in pari materia, and therefore, “Congress’s explicit provision for extraterritorial jurisdiction in one provision (§ 1116) militates against inferring any such application for a closely related and nearby provision with no such signal (§ 1114).

The D.C. Circuit also concluded that the Second and Eleventh Circuits are misinterpreting Bowman because Bowman should be not be read so broad such that all criminal statutes can be applied extraterritorially. Instead, the D.C. Circuit asserted that Bowman stands for the notion that the presumption against extraterritoriality is rebutted if the criminal statutes in question would be greatly curtailed by scope and usefulness if limited to a strict territorial jurisdiction. The court in Sota vacated the defendants’ convictions under § 1114.


As of now, it does appear that an individual, especially a foreign national, may be able to avoid punishment for murdering an officer or employee of the United States on foreign soil, if convicted under the jurisdiction of the District of Columbia Circuit. This issue may only get resolved if, unfortunately, someone attempts to murder or does murder an officer or employee of the United States outside of American territory and the Supreme Court takes up the case.

Should the Supreme Court decide on this matter, we may find an interesting and surprising split between Justices. One would typically expect Republican-appointed Justices to side in favor of law and order and interpret § 1114 to apply extraterritorially. However, an intentionalist interpretation, more favored by Democratic-appointed Justices, would lean in favor of expanding the scope of the law beyond American borders, and a strict textualist interpretation would refrain from reading intent and instead focus on the words of the statute which have no reference to international jurisdiction. Nonetheless, this issue is unlikely to reach the Supreme Court any time soon and will probably continue to yield a growing split among the circuits.  

COPS: Cell Phone Edition


On May 25, 2020, police officer Derek Chauvin was caught on a cell phone camera kneeling on the neck of an unarmed black man, George Floyd. The police officers at the scene tried to dodge the cameras under the guise of qualified immunity, but cell phones on every street corner nowadays make this difficult. At Chauvin’s murder trial, the prosecution played the entire nine and a half minutes of the cell phone footage as the focal point of their case against the former police officer.

The civilian recording of the murder of George Floyd came nearly two decades after a Los Angeles citizen recorded police officers beating an unarmed Rodney King. At the time of the Rodney King beating, footage of police interactions was rare, but now, interactions between police and civilians are being caught on camera more than ever before. In the last decade, First Amendment doctrine has been clarified to include the right to record public police actions under the right of the public to has access to information. 

When it comes to civilians recording police actions, the First Amendment and doctrine of qualified immunity often come into conflict with each other. On one hand, judicial interpretation of the First Amendment has trended toward the conclusion that the freedom of the press applies to freelance civilians as well. On the other hand, “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” City of Escondido v. Emmons (2019). 


Is there a First Amendment right to record the police in public, and does this right outweigh the doctrine of qualified immunity?


Due to the increased frequency of civilians recording their interactions with police, this issue has come up many times in the federal circuits, and a split in judgment has emerged as to whether the First Amendment clearly establishes the right to record police activity. The Tenth Circuit recently joined the Third Circuit, saying such a right isn’t clearly established. Meanwhile, the First, Seventh, Ninth, and Eleventh Circuits have said the right is clearly established.

The Tenth and Third Circuits

When police in Denver, Colorado began using force while arresting an uncooperative suspect in public, Levi Frasier began video-recording the interaction. After the arrest, an officer followed Mr. Frasier to his car and wanted him to hand over the video. Mr. Frasier did show the officers the video on his tablet-computer, but suddenly Officer Evans and other Denver Police Department members surrounded Mr. Frasier and pressured him to turn over the video, eventually snatching the tablet-computer out of his hands without his consent. Mr. Frasier contended that he had the right to record the video under the First Amendment while the police officers contended that their actions were justified under the doctrine of qualified immunity. Frasier v. Evan (10th Cir. 2021).

The Tenth Circuit held that since the “right to record [the officers] in the performance of their official duties in public spaces was not clearly established at the time of their alleged conduct in August 2014,” the officers were entitled to qualified immunity and did not violate the First Amendment. Further, the Tenth Circuit dismissed the argument that the Denver Police Department was liable for failure to properly train officers on the First Amendment rights of the civilians that they interact with. The court reasoned that since the First Amendment right to record was not clearly established by judicial precedent at the time of this incident, qualified immunity trumped Mr. Frasier’s First Amendment right to record the police.

The Third Circuit encountered a similar issue when Richard Fields and Amanda Geraci attempted to record Philadelphia Police while they were “carrying out official duties in public.” Fields v. City of Philadelphia (3d Cir. 2017). The court was clear that “recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.” However, there were reasonable “time, place, and manner restrictions” to the right to record. The court clarified that in this case, however, the recording in a public place was protected. Despite the clear First Amendment right to record, the Third Circuit held that the police officers were not liable for retaliation against those who recorded the video, due to qualified immunity. The court reasoned that since these incidents occurred in 2012-2013, a reasonable officer might not have known about the First Amendment rights of Mr. Fields and Ms. Geraci since the doctrine was not sufficiently clarified at this time.

The First, Seventh, Ninth, and Eleventh Circuits

Simon Glik was arrested for violating Massachusetts’ wiretap statute and other state-law offenses after he recorded several police officers arresting a young man on the Boston Common with his cell phone’s camera. Glik v. Cunniffe (1st Cir. 2011). The First Circuit reasoned that “the First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public?” The court strongly answered this question affirmatively. The court held that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” The court concluded that filming government officials engaged in their public duties is a prime example of information that is protected by the First Amendment, and this right to record is not overcome by qualified immunity.

 On August 5, 1990, Jerry Fordyce attempted to record a public protest march, but City of Seattle police officers interfere. Fordyce v. City of Seattle (9th Cir. 1995). Mr. Fordyce considered himself a part of the protest and wanted to film it so that it could later be broadcast on the news. There were police officers in Fordyce’s video, who became the target of rude and profane insults as the protest progressed. Some officers ignored Fordyce and the other protesters, but others tried to interfere and “physically…dissuade Fordyce from his mission. Later in the day, Fordyce was arrested for recording other bystanders against their wishes and violating a Washington privacy law. The charges were later dropped, and Fordyce sued the police department for violating his First Amendment right to record a newsworthy event. The Ninth Circuit held that “a genuine issue of material fact does exist regarding whether Fordyce was assaulted and battered by a Seattle police officer in an attempt to prevent or dissuade him from exercising his First Amendment right to film matters of public interest… [including when Fordyce’s] camera was deliberately and violently smashed into his face by Officer Elster while Fordyce was publicly gathering information with it during the demonstration.” The court reasoned that since the protest was obviously a newsworthy event, there was a First Amendment protection to recording it, even when there were individual police officers who did not want to be recorded.

James and Barbara Smith sued police in Cumming, Georgia after they allegedly harassed the couple. Mr. Smith was prevented from recording the police in violation of his First Amendment rights. Smith v. City of Cumming (11th Cir. 2000). The Eleventh Circuit held that there was a clear “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” However, the court also held since the Smiths sued under 42 U.S.C. § 1983, they were required to “prove that the conduct complained of deprived them of “a right, privilege or immunity secured by the constitution or laws of the United States.” This ruling is particularly notable since almost all plaintiffs seeking relief for a constitutional rights violation will utilize § 1983.


As police officers come under greater public scrutiny and calls for police reform grow louder across the country, there are likely going to be future incidents between civilians with cell phones and officers. None of the above-mentioned cases have progressed to the Supreme Court. However, it is likely that the issue of the First Amendment in the digital age is not going anywhere. Considering that the law has not fully caught up with the technological revolution of the twenty-first century, judicial interpretation will continue to be called upon to fill in the gaps.


For further reading on recent Supreme Court decisions on the scope of the First Amendment and cell phones, see: Mahanoy Area School District v. B.L. (2021).  For further reading on a Seventh Circuit decision invalidating an Illinois eavesdropping law that prevented all recording without consent, see: Am. C.L. Union of Illinois v. Alvarez (7th Cir. 2012).

Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment?


The Eighth Amendment to the United States Constitution protects against “cruel and unusual punishment.” What constitutes “cruel and unusual” has been left to the courts to sort out, and this standard has become even more complicated when courts assess the medical needs of patients in prison.

 The Eighth Amendment has been interpreted in a variety of situations, which includes protecting the medical needs of prisoners. In the case of Estelle v. Gamble (1976), the United States Supreme Court set the standard violation of  prisoner’s Eighth Amendment medical rights as “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” In recent years, courts have used this standard to discern if those with gender dysphoria are entitled to sex-reassignment surgery while in prison, and if withholding the surgery constitutes a violation of their Eighth Amendment rights. 


Is it a violation of the Eight Amendment for a physician to elect not to perform sex-reassignment surgery on a person in prison who experiences gender dysphoria?


Ninth Circuit

Recently, the Ninth Circuit created a split amongst the circuit courts over sex-reassignment surgery in prison under the Eighth Amendment. The court chose to focus on a standard created by the World Professional Association for Transgender Health (WPATH), which is a medical standard of care that was created to decide the necessity of a patient’s sex-reassignment surgery. This court looked at if the prisoner fell under this standard, and if it was a violation of the Eighth Amendment to not grant surgery if a patient does fall under the standard.

In Edmo v. Corizon, Inc. (2020), the plaintiff alleged that her Eighth Amendment rights had been violated because she was denied sex-reassignment surgery by her doctor who elected to keep her on a hormone regiment. The plaintiff had been diagnosed with depressive disorder, anxiety, alcohol and drug addiction, and gender dysphoria. The plaintiff had tried to castrate herself and attempted suicide multiple times. The State argued that WPATH was not the only medical standard, and, even if it was used, the plaintiff failed to meet some of the criteria, including that the plaintiff’s medical health concerns were not well controlled and the plaintiff had not lived twelve continuous months in her gender role because she was in prison. The court ultimately decided to use WPATH to determine the medical standard of care, concluding that the plaintiff was treated with deliberate indifference because the doctor knew the plaintiff had attempted to castrate herself in the past and still did not perform the surgery. The court held that sex-reassignment surgery is a medical necessity and that the doctor violated the plaintiff’s Eighth Amendment rights which protect against “cruel and unusual punishment.” The court therefore mandated that the “state pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment.”

First, Fifth, Seventh and Tenth Circuits

The First, Fifth, Seventh and Tenth Circuits all take a different position from the Ninth Circuit on the Eighth Amendment’s protections. Each of these courts has held that a doctor withholding sex-reassignment surgery is not “cruel and unusual punishment” for a prisoner under the Eighth Amendment. However, each court comes to their conclusion for slightly different reasons.

First Circuit

In Kosilek v. Spencer (2014), the First Circuit reversed the district court’s decision to grant injunctive relief to a plaintiff who did not receive sex-reassignment surgery. While the First Circuit recognized the existence of WPATH, it did not heavily rely on it for the court’s decision. The court decided that the current treatment for the plaintiff (hormone, hair removal, and access to “feminine attire”) was enough, and the doctor’s decision not to provide sex-reassignment surgery did not violate the plaintiff’s Eighth Amendment rights. The court also found compelling evidence that security would be a difficult problem to solve post-surgery, and that the current medical regimen did not create the same housing problem as sex-reassignment surgery.

Fifth Circuit

The Fifth Circuit held in Gibbson v. Collier (2019) that declining to perform sex-reassignment surgery on a prisoner did not violate the prisoner’s Eighth Amendment rights. The court held that because of medical disagreement over the necessity of sex-reassignment surgery, including disputes in the medical community over WPATH, the surgery could not be definitively called a necessity. The court also stated that it was not “cruel and unusual punishment” to withhold a medical treatment that no other prison had previously given to inmates. The court went so far as to say it would be unusual if the prison did grant treatment.

Seventh Circuit

The Seventh Circuit looked at if the state had qualified immunity in the case of a prisoner being refused sex-reassignment surgery. In Campbell v. Kallas (2019), the plaintiff was on a hormone regimen and her doctors refused to provide her with sex-reassignment surgery. The Seventh Circuit, similar to the First Circuit, acknowledged challenges that providing housing for inmates with sex-reassignment surgery could create. The court also acknowledged WPATH, arguing that the 12 month real-life criteria standard was important and could not be fully experienced in prison. The court ultimately decided to reverse the district court’s decision to deny qualified immunity.

Tenth Circuit

In Lamb v. Norwood (2018), the Tenth Circuit decided to uphold the summary judgment decision of the district court and found that the prison officials did not violate the plaintiff’s rights. The court decided that prison officials were not acting with indifference when they were following the treatment of hormone therapy and psychological counseling recommended by a medical doctor.


Currently, 1.4 million adults in the United States identify as transgender. As medicine continues to understand gender dysphoria, courts must continue to review Eighth Amendment rights violations accordingly. With the recent split, the Supreme Court may very well take matters into its’ own hands and make a decision about the necessity of sex-reassignment surgery.

It is also just as likely that Congress will address the issue. Recently, Congress has made some moves in regards to transgender healthcare right’s through Section 1557 of the Affordable Care Act, where gender identity was acknowledged as protected from denial of healthcare. Currently, Congress is also reviewing the Equality Act, which highlights the Fourteenth Amendment’s Equal Protection Clause, and prohibits discrimination based on gender identity in a multitude of establishments, including health care. While this bill has only passed the House of Representatives and is not narrowly focused on the rights of those in prison, it shows a step in the direction of Congress resolving the current split.

Protecting Consumers From Autodials: Can One Text Be a Nuisance?


To bring a suit in federal court a plaintiff must have suffered a “concrete and particularized,” as opposed to a speculative, injury. While Congress can enact laws that create statutory injuries that permit citizens to sue, federal courts may still decide that an aggrieved citizen, bringing such a suit, does not have standing as required by Article III of the Constitution.

However, how severe does an injury need to be for it to be “concrete and particular” enough to justify standing? What about a single text message? The Telephone Consumer Protection Act (TCPA) was passed in 1991 to regulate the emerging practice of telemarketing, in which an automatic dialing system or prerecorded voice makes automatic calls to consumers to market products or services. The TCPA also regulates other forms of electronic communication, such as through text messaging and faxing.


Does a defendant have Article III standing under the Telephone Consumer Protection Act even if the alleged injury is a single text message?


Circuit courts generally agree that telemarketing text messages are enough to allow a person to sue under the TCPA, but there has emerged a split in judgment on whether a single text message is enough to give rise to a right of action.

The Fifth Circuit

Lucas Cranor made a purchase at an Austin, Texas location of 5 Star Nutrition, and provided his cell phone number to the store while there. Unfortunately, 5 Star used his phone number to send him a string of unsolicited text messages. Cranor filed a lawsuit against 5 Star which was settled out of court. Nonetheless, after the settlement Cranor received a text message from 5 Star promoting a sale. Cranor took his case to court this time and filed a suit against the company in the Western District of Texas, alleging that 5 Star violated the TCPA by sending him a text message using an automatic dialing system without his consent.

The District Court dismissed Cranor’s claim for lack of standing. While the court conceded that text messages can give rise to a claim under the TCPA, it determined that “the single text message here does not constitute [an] injury in fact [because] … a single unwelcome text message will not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line does.” Cranor appealed to the Fifth Circuit.

 The Fifth Circuit found that Cranor does indeed have standing, and that Congress is “well positioned” to identify harms that meet standing requirements under Article III. The TCPA was passed after consumers, outraged over new barrages of unwanted calls, called on Congress to address the problem. The Circuit Court recognized that unwanted solicitations by phone can be a nuisance, which is a viable claim under the common law, and an invasion of privacy. Cranor indeed brought this action only for one unsolicited text message, but that text was the very harm that Congress was seeking to redress. The Circuit Court then remanded the case back to the district court for proceedings.

The Second, Third, Seventh, and Ninth Circuits

Other circuit courts have heard similar claims. The Ninth, Seventh, and Second Circuits have all heard cases where text messages were alleged to be in violation of the TCPA, and all agreed that spam texts are the very harm the statute tries to prevent. The Third Circuit decided that a single phone call was enough to create standing under the TCPA.

The Eleventh Circuit

 The Eleventh Circuit does not agree that a single text is enough to create standing. The court looked to the congressional record to determine Congress’s legislative intent in creating a right of action under the TCPA, conceding that the TCPA does indeed appear to create a private right of action for certain kinds of text messages. However, Congress has been silent on the issue of text messages as applied to the TCPA. Furthermore, the congressional record shows that one of the major concerns in passing the law was invasion of privacy “within the home.”

The Eleventh Circuit reasoned that in the absence of clear language from Congress indicating that text messages fall under the ambit of the TCPA, and because cell phones are typically used outside of the home, Congress’ objective of protecting the privacy of the home is not necessarily violated through text messages. The court does not go so far as to rule on whether text messages are categorically excluded from causing a right of action under the TCPA but chooses to be cautious in light of the lack of evidence of Congressional intent against such an exclusion.

Moreover, a single text message does not rise to the level of harm typically required of nuisance. “The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waved in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”

Looking Forward

The outcome of this circuit split is uncertain. The case in Cranor was remanded to the state court, so it might be a while before any decision on the merits reaches back up to the appellate courts. On the other hand, 5 Star may attempt an interlocutory appeal on the issue of standing, since, if the Supreme Court were to find that Cranor didn’t have Article III standing, the need for a district court hearing would be obviated. Furthermore, there have been no proceedings under Salcedo since the decision by the Eleventh Circuit, so that decision does not appear to be heading toward appeal.

Nonetheless, the issue of text message telemarketing has already wound its way up to several of the circuit courts. The problem is common and is likely to arise again. Whether the Supreme Court will ever grant certiorari should a circuit court decision be appealed is unclear, as the issue is not high profile and does not have a defined ideological stake. In the meantime, the circuit split will endure, leaving uncertainty on the scope of this issue in consumer protection.

For further reading on recent Supreme Court consumer protection decisions, see: TransUnion LLC v. Ramirez, 594 U.S. __ (2021).

The State of Mississippi vs. 50 Years of Abortion Precedent: What June Medical Standard Should Courts Apply to Abortion Restrictions?


The constitutionality of abortion restrictions has long been debated by American courts. The Supreme Court first found a constitutional right to abortion in the 1973 case of Roe v. Wade (1973), holding that the Fourteenth Amendment’s right to privacy also applied to a pregnant person’s decision to access abortion services. According to the Court, this right to privacy in matters concerning abortion could not be overridden by the State. However, this right is not absolute, and the Court has repeatedly upheld various restrictions on abortion access in the nearly fifty years following the Roe decision.

These restrictions are typically justified by a State’s “legitimate interest” in protecting the health of pregnant people, as well as the potential life of the unborn fetus. The most prominent example of the Court upholding abortion restrictions came approximately twenty years after the Roe decision, in the 1992 case of Planned Parenthood v. Casey (1992). In Casey, the Court reaffirmed the constitutional right to abortion, while clarifying the extent to which states could regulate the procedure. According to the Casey Court, reasonable regulations restricting abortion access are generally constitutional, so long as the regulations can pass muster under the undue burden standard. For a regulation to be upheld under this standard, it must not place a substantial obstacle in the path of a person seeking an abortion before the fetus reaches the point of viability. In the Casey decision, this undue burden standard was used to strike down a regulation that required a woman to notify her husband before receiving an abortion, but was simultaneously used to uphold various other regulations, including a mandatory 24-hour waiting period and a requirement that a minor seeking an abortion receive parental consent (or receive court approval through a judicial bypass process). This undue burden standard has subsequently been used by courts at all levels of the judicial system to evaluate the constitutionality of abortion restrictions. 


The most recent ruling on abortion restrictions came in June 2020, when the Supreme Court issued its’ opinion in the case of June Medical Services, LLC v. Russo (2020). In June Medical, the Court overturned the Fifth Circuit’s ruling that a Texas law that required abortion providers to have hospital admitting privileges did not place an undue burden on people seeking abortions, holding instead that the law was a violation of prior Supreme Court precedent. However, the divided Court failed to agree on a single standard for lower courts to apply to future abortion restrictions. The plurality argued that a balancing test, similar to the one advanced in the Court’s 2016 holding in Whole Woman’s Health v. Hellerstedt (2016), should be applied to these restrictions, with the benefits of the laws being weighed against the potential burdens. Contrastingly, the Chief Justice, in his concurring opinion, advanced a standard that provided greater discretion to state legislatures. These contradicting standards have ultimately led to a single question: what June Medical standard should courts apply to state-level abortion restrictions?


The Circuit Courts of Appeal have split over what standard discussed in the June Medical decision controls. In particular, the Eighth and Fifth Circuits have reached opposite conclusions, with the Eighth Circuit siding with the Chief Justice’s standard and the Fifth Circuit siding with the plurality’s standard.

The Eighth Circuit

Shortly following the June Medical decision, the Eighth Circuit applied the standard discussed in Chief Justice Robert’s concurrence to vacate a lower court injunction against multiple state level abortion restrictions. In the case of Hopkins v. Jegley (2020), the Eighth Circuit held that the Chief Justice’s opinion, being necessary for the Court to have reached its 5-4 decision that the Texas admitting privileges law was unconstitutional, was controlling and therefore carried precedential weight. According to the Eighth Circuit, the Chief Justice’s standard – that like cases should be treated alike, and that discretion should be granted to state legislatures in areas involving “medical uncertainty” – controlled in the Hopkinscase. Under this standard, the Eighth Circuit held that the preliminary injunction against the Arkansas abortion laws should be vacated, and thus remanded the case to the lower court for reconsideration under the Chief Justice’s proposed standard of review.

The Fifth Circuit

Recently, the Fifth Circuit reached the opposite conclusion when it chose to not apply the Chief Justice’s standard and subsequently overturned a Texas law that required individuals seeking an abortion in the second trimester to undergo an additional medical procedure prior to the abortion procedure itself. In the case of Whole Woman’s Health v. Paxton (2020), the Fifth Circuit held that it was the standard discussed in the plurality’s opinion – that the benefits of a law restricting abortion should be weighed against the potential burdens that the law may place on the access to abortion – that controlled; not the Chief Justice’s standard.According to the Fifth Circuit, this standard was first adopted by the Supreme Court in the Hellerstedt decision, and the standard was not overturned by the recent June Medical decision. As such, the Fifth Circuit ruled in favor of the abortion clinic and overturned the Texas law.


The future of this issue remains uncertain. On May 17, 2021, the Supreme Court granted certiorari in the case of Dobbs v. Jackson Women’s Health Organization for the upcoming October term. The Dobbs case is poised to present the Court with the exact question discussed in this split; what standard from the June Medical decision should be applied to state-level abortion restrictions? Given the recent high-profile additions of Justices Brett Kavanaugh and Amy Coney Barrett to the Court, as well as the subsequent shift in ideology toward a conservative-leaning majority, the potential outcome of the Dobbs case is currently unclear. An oral argument date has yet to be set.

For further reading, see: Undue Burdens in Texas by Jennifer S. Hendricks and In Abortion Litigation, It’s the Facts that Matter by Caitlin E. Borgmann.

The Prison Mailbox Rule: How to Send Mail in Jail


Federal Rule of Appellate Procedure 4 outlines the time restrictions for filing a notice of appeal. However, the original rule was not very clear on how prisoners would file if they were already behind bars. Prisoners face unique challenges due to their confinement, as they cannot travel to the courthouse themselves to file paperwork. Further, they do not have access to the United States Postal Service to mail and track progress, so they must rely on the prison mail system instead. Specifically, pro se prisoners (representing themselves) are at a disadvantage when exercising their right to file a notice of appeal.

The Supreme Court grappled with this question in Houston v. Lack (1988), and answered by formulating the prison mailbox rule, stating that filings by pro se prisoners are complete when the prisoner delivers the notice to prison authorities for mailing. After the Houston case, Rule 4 was amended in 1993 to better incorporate the prison mailbox rule. Since then, different circuits have interpreted the prison mailbox rule and come to some starkly different conclusions.


In formulating the prison mailbox rule, the Houston Court specified the struggles of “pro se prisoner[s]” in filing paperwork. So, does this rule, where a prisoner’s notice of appeal is filed when he hands it to prison officials to be mailed, apply to all prisoners, including those represented by counsel (broad interpretation), or only to pro se prisoners (narrow interpretation)?


In February 2021, Cretacci v. Call came before the U.S. Court of Appeals for the Sixth Circuit, challenging the scope of the prison mailbox rule. This case called for an interpretation of the rule posited by Houston. The Sixth Circuit joined the majority of its sister circuits (the Fifth, Eighth, Tenth, and Eleventh Circuits) by interpreting the prison mailbox rule narrowly and holding that it doesn’t apply to inmates already represented by counsel but instead only applies to pro se prisoners. In contrast, the Fourth and Seventh Circuits have applied the rule broadly to include inmates that are represented by counsel.

The Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits: Narrow Interpretation

In Cretacci v. Call (2021), Blake Cretacci was held as a pretrial detainee in the Coffee County, Tennessee prison system in 2016. Cretacci alleged that during his time in the system, he was the victim of numerous constitutional violations. Cretacci secured an attorney to file a complaint, but the attorney did not realize that they could not practice until the night before the statute of limitations lapsed. Therefore, the attorney could not represent Cretacci in the applicable jurisdiction, so Cretacci gave the prison authorities the paperwork that same evening pro se, following the prison mailbox rule, so that it could meet the statute of limitations. The court later received the filing, and the attorney was able to get admitted pro hac vice so that he could represent Cretacci during the proceeding. 

The court held that Cretacci’s claims of excessive force and failure to distribute supplies were time-barred since the statute of limitations had lapsed. Further, Cretacci could not use the prison mailbox rule since he did have representation at the time. The court went on to say that the pro se requirement of the prison mailbox rule applied in all civil cases. The Sixth Circuit reasoned that Houston should only apply to pro se prisoners due to their unique challenges in filing legal documents. The court explained that “if a prisoner does not need to use the prison mail system, and instead relies on counsel to file a pleading on his or her behalf, the prison is no longer responsible for any delays and the rationale of the prison mailbox rule does not apply.” The court ended its analysis by distinguishing the case at bar from the opposing circuits by stating that Appellate Rule 4(c) did not govern.  

The Eighth Circuit was one of the first circuits to address the prison mailbox rule in Burgs v. Johnson County (1996). In Burgs, an inmate filed a notice of appeal pro se while simultaneously requesting an appointment of counsel. First, the court appointed the same counsel that the inmate had during the lower court proceedings. Next, the court held that since the inmate had counsel at an earlier point in the case, the prison mailbox rule did not apply since the inmate could have reasonably relied on the attorney to file a timely notice of appeal. Specifically, the court said that the prison mailbox rule is limited to pro se prisoners only, since “the moment at which pro se prisoners necessarily lose control over and contact with their notices of appeal is at delivery to prison authorities, not receipt by the clerk.”

In 2002, the Fifth Circuit engaged with the prisoner mailbox rule in Cousin v. Lensing (2002). Cousin was a prisoner who attempted to file a notice of appeal after the time required, but the court refused to apply the prison mailbox rule to these filings since the prisoner did have an attorney when they filed the notice. The court reasoned that the mailbox rule only allows leniency in time for pro se prisoners since they face unique difficulties in filing pleadings. The court continued, saying that this rationale does not extend to represented prisoners since they do not need this leniency and do not face the same challenges.

The same year, the Tenth Circuit also encountered the prison mailbox rule in United States v. Rodriguez-Aguirre (2002). In this case, a prison argued that his counsel was ineffective and that this might impact the timing of his filing of appeals under the prison mailbox rule. However, the Tenth Circuit held that there was not enough proof that any ineffective assistance of counsel caused the failure to timely file. Therefore, the prison mailbox rule does not apply to represented prisoners. The court reasoned that the Houston rule served a narrow purpose: to acknowledge the delays caused by the prison mail system.

The Eleventh Circuit, through its per curiam decision in United States v. Camilo (2017), agreed with its sister circuits that the prison mailbox rule should be construed narrowly. In Camilo, a prisoner argued that the sentencing documents he had filed pro se should be subject to the prison mailbox rule even though he had representation at other stages of litigation.  The court stressed that the prison mailbox rule was designed to help prisoners who were strictly limited to communicating through the prison staff and postal service. Thus, represented prisoners have other means of communication.

The Fourth and Seventh Circuits: Broad Interpretation

The Fourth Circuit first encountered the prison mailbox rule in United States v. Moore (1994). In this case, a prisoner was represented by the federal public defender’s office and filed a notice of appeal. The inmate gave the paperwork to prison operators, but it arrived at the district court two days late, so the court dismissed the claim. The Fourth Circuit applied the prison mailbox rule to this situation. The court stated that the prison mailbox rule could not discriminate based on the representation status of prisoners.

The court noted that the prison mailbox rule was designed to correct disadvantages that prisoners have in filing documents due to restrictions on their freedom and did not offend any notion of fairness. The court went on to say that Houston should not be interpreted so narrowly as to exclude represented prisoners since there was “no good reason” to do so. The court noted that even though represented prisoners can rely on their counsel to file documents and act on their behalf, the court did recognize that prisoners might still face restrictions and limitations on how frequently they can see their attorneys.

The Seventh Circuit most recently answered the prison mailbox rule in 2004, in United States v. Craig (2004). Here, a prisoner stated that he had changed his mind while in jail and decided last minute to file an appeal. He then filed the notice pro se under the prison mailbox rule, as he did not think that he had counsel to represent him. The government challenged the prison’s change of heart as time-barred and further argued that the prison mailbox rule did not apply to represented prisoners anyway.

Although the court dismissed this specific case, they also explicitly disagreed with the government’s argument about the prison mailbox rule. The court reasoned that although Houston initially defined the rule, it had been codified through amendments to Federal Rule of Appellate Procedure 4. The court turned to Rule 4(c)(1), observing that it “requires a prisoner to use a legal-mail system if the prison has one.” So, this rule governs, and the court couldn’t “pencil ‘unrepresented’ or any extra word into the text of Rule 4(c), which as written is neither incoherent nor absurd.”


While Cretacci represents the most recent encounter with the prison mailbox rule, the issue is relatively common and reveals a lack of clarity in the law. This rule affects many defendants and the ease with which these defendants can file appeals, so it is important from both fairness and procedural standpoint that the rules are clear and equally applied. Therefore, it seems likely that the prison mailbox rule will continue to be challenged in the courts. It is unclear at this point whether Cretacci will appeal the Sixth Circuit’s decision, but the Supreme Court may eventually have to clarify the law, whether it be through case law or another amendment of the Federal Rules of Appellate Procedure to resolve this circuit split.

Fed Up with Autodials: Litigation or Arbitration?


Congress passed the Telephone Consumer Protection Act (TCPA) in 1991 to restrict the emerging practice of telemarketing. Telemarketing is the often-unsolicited practice of autodialing individuals to market various products or services in the form of a pre-recorded, automated voice message, and is the subject of frequent consumer complaints. The TCPA imposes limits on telemarketing, including restrictions on times call may be made and maintaining an active do-not-call list; these limits may only be avoided by written consent from the consumer.


Under a wireless services contract that binds consumers to arbitrate any disputes with the providing company and its affiliates, may a satellite television company that became an affiliate of a wireless services provider several years after the signing of such contract compel arbitration when a consumer brings a suit under the Telephone Consumer Protection Act?


 In 2020, the Seventh and Fourth Circuit Courts of Appeals both heard cases on the arbitrability of “infinite arbitration clauses” of contracts, a term created by legal scholar David Horton to describe arbitration agreements that use “infinite” language to bind parties to arbitration. Such language attempts to widen the scope of arbitrable disputes as much as possible to those arising anytime and anywhere, regardless of whether such disputes arose from any relationship between the contracting parties. As a result, judges have had to decide how literally to interpret such provisions.

The Ninth Circuit

In 2018, Jeremy Revitch filed a lawsuit against DirecTV for alleged violations of the TCPA after the company repeatedly called him with automated messages advertising cable services. Revitch had never been in contact with DirecTV, had never given consent for such phone calls, and after enduring considerable frustration with the autodialing, attempted to bring a class-action lawsuit against the company on behalf of all similarly-situated consumers.

DirecTV filed a motion to compel arbitration. The company had discovered that in his 2011 contract with wireless services provider AT&T, Revitch had agreed to mandatory arbitration for any disputes arising out of his relationship with AT&T, and with any of AT&T’s “affiliates”. DirecTV had been acquired by AT&T, Inc. in 2015, becoming, along with AT&T Mobility, a subsidiary of that company, making DirecTV and AT&T Mobility, in DirecTV’s affiliates.

Revitch initiated his class-action claim against DirecTV in the United States District Court for the Northern District of California; the district court denied DirecTV’s motion to compel arbitration, holding that the contract between Revitch and AT&T “did not reflect an intent to arbitrate the claim that Revitch asserts against DIRECTV”. DirecTV appealed the ruling to the Ninth Circuit.

Under the Federal Arbitration Act, federal courts do not have the discretion to determine the arbitrability of claims. Federal judges are “limited to determining (1) whether a valid agreement to arbitrate exists, and if it does, (2) whether the agreement encompasses the dispute at issue”, writes Circuit Judge Diarmuid O’Scannlain in Revitch v. DIRECTV, LLC (2020), quoting an earlier case. A judge may only hold that an arbitration clause is not enforceable if the answer to either of these questions is no.

To answer the first question, Judge O’Scannlain turned to California state contract law, relying on a presumption against absurd results to answer in the negative. The California Civil Code stipulates, in §§1636 and 1638 respectively, that contracts are to be interpreted “so as to give effect to the mutual intentions of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful”, and that “the language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity”. The court said that Revitch could not reasonably have expected that, when he was signing a cell phone services contract with AT&T, that he was entering into an agreement to arbitrate any disputes he may have with any company that affiliates with AT&T years into the future, and as a result, DirecTV is not a party to the contract between Revitch and AT&T.

The Court expressly acknowledged that their decision in Revitch creates a circuit split with the Fourth Circuit:

“[W]e are aware that with our decision today, we are opening a circuit split on this difficult issue: Can anything less than the most explicit “infinite language” in a consumer services agreement bind the consumer to arbitrate any and all disputes with (yet-unknown) corporate entities that might later become affiliated with the service provider—even when neither the entity nor the dispute bear any material relation to the services provided under the initial agreement?”

The dissent in Revitch argued that the canon against absurd results is not appropriate here, and that the plain language of the agreement between Revitch and AT&T dictates that Revitch must arbitrate his claim against DirecTV:

“Nothing in the arbitration clause or in the dictionary definition of the word ‘affiliate’ confers any type of temporal scope to the term so that ‘affiliates’ should be read to refer only to present affiliates. DirecTV is therefore an affiliate within the explicit language of the arbitration clause.”

The Fourth Circuit

The facts in the Fourth Circuit decision of Mey v. DIRECTV, LLC are similar to those in Revitch and, indeed, both cases share the same defendant. In Mey, Diana Mey sued DirecTV for violation of the TCPA when the company solicited Mey by repeatedly calling her cell phone, even though her phone number was listed on the National Do Not Call Registry. DirecTV moved to arbitrate the case because of an arbitration provision Mey signed when entering into a cellular services contract with AT&T.

The Fourth Circuit held that, since DirecTV is unambiguously an affiliate of AT&T, and that the arbitration clause gave no indication that the term “affiliate” had temporal limitations, Mey had signed a contract to arbitrate her disputes with DirecTV. The court pointed to the language of the contract to argue that there were no temporal limitations. For example, the contract used terms such as “successors” and “assigns” in addition to “affiliate”, and the arbitration clause provided for the arbitrability of “claims that may arise after the termination of this [cellular services] Agreement.” The arbitration clause also provided  that “all disputes and claims between us” were to be arbitrated, implying that the contract was intended to cast as wide a net as possible.

In so holding, the Fourth Circuit, similarly to the dissent in Revitch, rejected the idea that the arbitration with DirecTV was an “absurd result” of the contract interpretation. Circuit Judge Rushing, author of the opinion, stated:

“In light of the expansive text of the arbitration agreement, the categories of claims it specifically includes, and the parties’ instruction to interpret its provisions broadly, we must conclude that it is “‘susceptible of an interpretation'” that covers Mey’s TCPA claims… The text of the agreement arguably contemplates arbitration of Mey’s claims, and any ambiguity about whether those claims are included “must be resolved in favor of arbitration.” Indeed, “the presumption in favor of arbitrability is particularly applicable when the arbitration clause is broadly worded,” as it is here.”


Revitch voluntarily dismissed his complaints against DirecTV without prejudice. In the case of Mey v. DIRECTV, LLC, the Fourth Circuit remanded the case to the District Court for the Northern District of West Virginia. Because Mey’s attorneys had not argued that the pertinent arbitration clause was “unconscionably overbroad” before her case was appealed to the Fourth Circuit, that issue was left to be litigated again when the case was remanded. The District Court once again denied DirecTV’s arbitration claim. As it currently stands, Mey is able to challenge DirecTV in court rather than through arbitration.

Nonetheless, the issue of infinite arbitration clauses and their interpretability is likely to persist. The dissent in Revitch and the internal disagreements in the Fourth Circuit illustrate that there is not judicial consensus on whether entities like DirecTV may enforce arbitration provisions in which their connection to the underlying agreement is tenuous. Further, corporations are likely to continue the use of infinite arbitration clauses because they perceive that arbitration decisions are less likely to be friendly to consumer suits. As long as contracts continue to contain infinite arbitration clauses, there is likely to be litigation over the enforceability of those clauses.

For further reading, see:



In 1970, Congress enacted Title X of the Public Health Service Act “to promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government[.]” Under the act, the Secretary of the Department of Health and Human Services (HHS) is “authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).” The Act specifically states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”

Over the past 50 years, HHS has interpreted this specific provision in different ways. In 1972, HHS interpreted this section as “not only as prohibiting the provision of abortion but also prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning.” 53 Fed. Reg. 2922-01, 2923. In 1981, HHS went a step further and included “nondirective” counseling upon request for information on abortions, foster care, and other options. 53 Fed. Reg. at 2923. The interpretation of this subsection has changed several times through different administrations. Under the Trump administration, in 2018, HHS promulgated a rule that “a title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.” The rule further states that a pregnant woman must be referred to a health care provider for prenatal care and a physician may not refer the patient for an abortion, even if that is the patient’s desire.


Under Title X of the Public Health Service Act, did the Department of Health and Human Services have authority to promulgate a Final Rule banning service providers who receive federal money from referring patients for abortions?


The Fourth and Ninth Circuits have interpreted the subsection regarding the provision prohibiting abortion as a means of family planning. The Fourth Circuit claims that HHS was arbitrary and capricious in its rulemaking thus violating the Administrative Procedure Act (APA), while the Ninth Circuit upheld the Final Rule.

The Fourth Circuit

The Mayor and City Council of Baltimore filed suit against Alex Azar II, Secretary of HHS, alleging that the Final Rule violated the APA. In Chevron v. Natural Resources Defense Council (1984), the Supreme Court established a two-step test to determine if an agency should be given deference in a rulemaking. The first step is to determine whether the statute under which the rule was promulgated is ambiguous. The second step is to determine if the agency acted in an arbitrary and capricious manner in promulgating the rule and if the agency interpreted the statute in a reasonable manner. The Fourth Circuit, en banc, in Mayor & City Council of Baltimore v. Azar (2020), held that the Final Rule was arbitrary and capricious because HHS “inadequately explained its decision ‘to disagree with comments by every major medical organization regarding the Final Rule’s contravention of medical ethics’ . . . and inadequately considered the ‘likely costs and benefits of the physical separation requirement.’” The court asserted that HHS failed to consider all of the nation’s major medical organizations concerns when promulgating the rule. Further, the court found that the agency was “arbitrary and capricious because ‘the administrative record reflects comments estimating the likely cost of the requirement far exceeds HHS’s estimate of $30,000.’” Moreover, the court determined that the rule is unlawful as it violates the “nondirective” counseling requirement in Title X programs because mandating prenatal care is a form of “directive” counseling. Lastly, the court held that the rule interfered with physician-patient communications.

The Ninth Circuit

Contrary to the Fourth Circuit’s holding, the Ninth Circuit upheld the Final Rule promulgated by HHS. In State of California v. Azar (2020), the court distinguished between counseling and referrals. The court held that providers “‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion’” thus, the “nondirective” counseling provision was not violated. Furthermore, the court asserted that the agency was reasonable in its interpretation of Title X and was not arbitrary and capricious in promulgating the rule. Under Chevron step two, the court deferred to the “agency’s expertise in identifying the appropriate course of action.”


The Final Rule promulgated by HHS under the Trump administration is an attempt by the administration to limit a woman’s right to abortion. Title X mainly serves low-income families and people of color. According to Planned Parenthood, 21% of Title X recipients identify as African American or Black and nearly 32% identify as Latino. The Final Rule will most adversely impact these populations. In cases where there is a circuit split, the Supreme Court often becomes the deciding factor. The Supreme Court will be the final word in whether HHS’s rule was promulgated in a valid manner if they decide to hear the case. The Trump administration filed a petition for writ of certiorari to the Supreme Court in Azar v. Mayor & City Council of Baltimore, but the case has not yet been listed for conference. Only time will tell if the Supreme Court will hear this case. Additionally, with the new administration taking office, the case may be become mute if the rule is rescinded or is amended to allow abortion referrals.