COPS: Cell Phone Edition

BACKGROUND

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). 

ISSUE

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

THE SPLIT

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.

LOOKING FORWARD

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?

BACKGROUND

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. 

ISSUE

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?

THE SPLIT

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.

LOOKING FORWARD

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?

BACKGROUND

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.

ISSUE

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

THE SPLIT

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?

BACKGROUND

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. 

ISSUE

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 SPLIT

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.

LOOKING FORWARD

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

BACKGROUND

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.

THE ISSUE

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)?

THE SPLIT

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.”

LOOKING FORWARD

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?

BACKGROUND

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.

ISSUE

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?

THE SPLIT

 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.”

LOOKING FORWARD

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: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9691&context=penn_law_review

DOES THE HEALTH AND HUMAN SERVICE’S RULE BANNING ABORTION REFERALS UNDER TITLE X VIOLATE THE ADMINISTRATIVE PROCEDURE ACT?

BACKGROUND

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.

THE ISSUE

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 SPLIT

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.”

LOOKING FORWARD

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.

 

 

Knock-knock, “Open up it’s the Poli… Housekeeping!”

BACKGROUND

The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There are some limited exceptions to the warrant requirement, like “exigent circumstances,” where a reasonable law enforcement officer would believe a warrantless search and seizure is necessary—for example to prevent physical harm, destruction of evidence, or a suspect’s escape. The Supreme Court, in Cady v. Dombrowski (1973), recognized a “community caretaking” exception to the Fourth Amendment warrant requirement, which acknowledges that police officers carry out “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” When established, the exception was designed only for warrantless searches of motor vehicles to aid those in distress, combat actual hazards, prevent potential hazards from materializing and provide services to preserve and protect public safety. United States v. Rodriguez-Morales (1st Cir. 1991). Since Cady, courts have expanded the “community caretaking” exception.

THE ISSUE

Does the “community caretaking” exception to the Fourth Amendment’s warrant requirement extend beyond the context of motor vehicles to the home?

THE SPLIT

The Third, Seventh, Ninth Circuits, and likely the Tenth Circuit have held that the “community caretaking” exception does not extend to the home. The First, Fifth, and Eighth Circuits have extended the “community caretaking” exception beyond the motor vehicle context, justifying, under certain circumstances, a warrantless entry into an individual’s home.

The Third, Seventh, and Ninth Circuits – Does Not Extend to the Home

The Ninth Circuit established its view on how far the exception established in Cady applies in United States v. Erickson(1993). In Erickson, a police officer investigating a suspected burglary, pulled back plastic from an open window in a basement, revealing numerous marijuana plants. The officer then proceeded to obtain a warrant and arrest the homeowner. The court held that even if the officer was performing a community caretaking function at the time, that alone cannot justify the warrantless search prior to obtaining the warrant. The court concluded “Cady clearly turned on the ‘constitutional difference’ between searching a house and searching an automobile.”

The Third Circuit in Ray v. Township of Warren (2010) similarly concluded that the “community caretaking” exception established in Cady “expressly distinguished automobile searches from searches of a home.” In Ray, police officers, fearing that a child in a home may be in danger, entered the home without a warrant. The court held that the “community caretaking” exception does not override the warrant requirement of the Fourth Amendment in the context of the home.

The Seventh Circuit, in Sutterfield v. City of Milwaukee (2014) also declined to extend the “community caretaking” exception to the home. Here, police officers forcibly entered the home of a potentially suicidal individual to effectuate an emergency detention for a mental health evaluation. Officers detained the homeowner, performed a protective sweep of the home, and seized a firearm that was inside a locked CD case. Guided by its earlier decision in United States v. Pichany (1982), the Seventh Circuit decided that the exception “extended only to automobiles temporarily in police custody.” The court, however, held that the entry and subsequent sweep were justified by the “exigent circumstances” exception. The search of the CD case was unlawful because the gun was not in plain view and the search was based on a hunch.

The Tenth Circuit is less clear, but appears to agree.  In  United States v. Bute (1994), which concerned a commercial building and garage, the Tenth Circuit concluded that the “community caretaking” exception to the Fourth Amendment warrant requirement is “applicable only in cases involving automobile searches.” Thus, the Tenth Circuit most likely would not have extended the exception to the home had one been the subject of the case.

Sixth Circuit holdings are mixed. The Sixth Circuit in United States v. Rohrig (1996) recognized that warrantless entry into the home may be permissible when police officers are acting as community caretakers to stop a significant noise nuisance. The question remained as to whether this is permissible under the “exigent circumstances” or “community caretaking” exception. However, in United States v. Williams (2003), the Sixth Circuit concluded that Rohrig did not extend the “community caretaking” exception into the home, stating “we doubt that community caretaking will generally justify warrantless entries into private homes.”

The First, Fifth, and Eighth CircuitsExtends to the Home

The Eighth Circuit in United States v. Quezada (2006) did not exactly conclude that the “community caretaking” exception extends to the home, but that “a police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention.” This standard is more like a modified exigent circumstances test, which lowers the threshold for exigency when the officer is acting as a community caretaker.

The Sixth Circuit appears to agree with the Eighth. In United States v. Rohrig (1996), the Sixth Circuit recognized that warrantless entry into the home may be permissible when police officers are acting as community caretakers to stop a significant noise nuisance. The question remained as to whether this is permissible under the “exigent circumstances” or “community caretaking” exception. However, in United States v. Williams (2003), the Sixth Circuit concluded that Rohrigdid not extend the “community caretaking” exception into the home, stating “we doubt that community caretaking will generally justify warrantless entries into private homes.”

The Fifth Circuit in United States v. York (1990) extended the “community caretaking” exception to the home. Here, the guests of a home feared for their safety, requesting the assistance of deputies so they could collect their belongings and vacate. The deputies entered without a warrant, and later contacted the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) about firearms seen in plain view. The court applied a reasonable foreseeability standard in determining whether a search/seizure is lawful. The court concluded that the community caretaking function of the police here was reasonably foreseeable.

The First Circuit in Caniglia v. Strom (2020) similarly extended the “community caretaking” exception to the home, but instead applied a three-part test. Here, after a domestic dispute, police believed it was reasonable to seize the appellant homeowner’s firearms, fearing that he could be in danger should the guns remain in the home. The court held that the core purpose of the “community caretaking” exception should not be limited to the motor vehicle context, and under the right circumstances may be extended to the home. The court determined that for the “community caretaking” exception to be lawful the court must consider (1) if there is an objectively reasonable basis for believing the individual is suicidal or otherwise poses an imminent risk of harm to himself or others; (2) if there is an objectively reasonable basis for thinking that the individual may use firearms seized in the immediate future for harming himself or others; and (3) if the entry into the home is appropriate when “tailored to the seizure of firearms in furtherance of police officers’ community caretaking responsibilities.”

These approaches are to some degree inconsistent, applying different tests and examining different conditions to determine if warrantless entry into the home is justified under the “community caretaking” doctrine. What they do show, however, is that under the right circumstances, such entry may be justified.

LOOKING FORWARD

The U.S. Supreme Court granted certiorari in Caniglia v. Strom on November 20, 2020. Not only will this case provide clarity to state and federal law enforcement on the extent to which police may intrude into the home, but this case may also shine a light on how the new Court will decide individual liberty issues going forward. An evolution of the “community caretaking” exception may be viewed by some as a blank check to police to evade the warrant requirement in order to serve the community’s interest. Others may argue that the “community caretaking” exception is faithful to the Fourth Amendment because it gives “police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention, [which] should not be limited to the motor vehicle context.” While some cases find that the “community caretaking” exception is limited solely to the motor vehicle context, others have allowed warrantless entry in contexts that are neither homes nor cars. For further reading, see Stop Hammering Fourth Amendment Rights: Reshaping the Community Caretaking Exception with the Physical Intrusion Standard, 97 Marq. L. Rev. 123 (2013).

Private Foreign Arbitration: Can U.S. Federal Courts Compel Discovery?

BACKGROUND

Section 1782 of Title 28 defines the “scope of discovery that foreign litigants may seek in the United States for use in foreign proceedings.” Specifically, Section 1782(a) authorizes the district court to compel discovery “for use in a proceeding in a foreign or international tribunal.” 

The Supreme Court encountered a Section 1782(a) dispute in the case of Intel Corp. v. Advanced Micro Devices, Inc. (2004). The Court held that Section 1782(a) “authorizes, but does not require discovery assistance,” and the Court decided to “leave it to the courts below to ensure an airing adequate to determine what, if any, assistance is appropriate.” The Court in Intel, however, only considered whether Section 1782(a) discovery would apply to public foreign tribunals; where it concluded that it would. The Court remained silent on whether Section 1782(a) discovery would also apply to private foreign arbitration, leading to the current division among the Circuit Courts. 

THE ISSUE

Is the definition of “foreign or international tribunal” under 28 U.S.C. 1782(a) limited only to state-sponsored public tribunals; or does the definition include discovery for private foreign tribunals as well? In other words, can district court judges compel discovery for private foreign arbitration?

THE SPLIT

The Seventh Circuit recently joined the Second and Fifth Circuits by adopting a narrow interpretation of “foreign or international tribunal” to only include public tribunals and exclude private ones. These circuits conclude that compelling discovery in private foreign disputes would undermine the speedy and cost-effective nature of the arbitration process. In recent years, however, the Fourth and Sixth Circuits have disagreed, opting for a broad interpretation of Section 1782(a). These circuits posit that the purpose of the Section 1782(a) is to foster international cooperation through discovery processes and conclude that district courts should have the discretion to apply Section 1782(a) to all foreign tribunals, both public and private. 

The Second, Fifth, and Seventh Circuits

In September 2020, the Seventh Circuit joined the Second and Fifth Circuits in affirming a narrow interpretation of Section 1782(a). In Servotronics, Inc. v. Rolls-Royce PLC (2020), (“Servotronics II”), the court held that Section 1782(a) “did not authorize the district court to compel discovery for use in a private foreign arbitration.” There was a separate case arising from the same arbitration that came before the Fourth Circuit in March 2020 and is discussed below. In Servotronics II, Rolls-Royce had manufactured an engine for a Boeing aircraft and incorporated a Servotronics valve in the design. The airplane was then destroyed in a fire during testing, and Rolls-Royce settled with Boeing for the loss of the plane. Subsequently, Rolls-Royce, a UK-based corporation, sought indemnification from Servotronics, which was based in the United States. The two companies had a long-term agreement that mandated binding arbitration in a London-based private tribunal called the Chartered Institute of Arbiters (“CIArb”). Servotronics then applied for a Section 1782(a) discovery request that would compel Boeing to produce documents that would be used in the London arbitration. The district court judge ultimately denied this discovery request, finding for Rolls-Royce and Boeing.

In interpreting Section 1782(a), the Seventh Circuit affirmed the district court ruling, stating that “foreign or international tribunal” should be defined as “a governmental, administrative, or quasi-governmental tribunal operating pursuant to the foreign country’s practice and procedure.” This definition would consequently exclude any private foreign arbitrations. The Seventh Circuit rejected the Fourth and Sixth Circuit’s broad definition of “foreign and international tribunals,” which included private arbitration. The Seventh Circuit noted that if the ambiguity of the word “tribunal” was interpreted broadly, this could expand the ability of federal courts to compel discovery in foreign arbitration past what is normally allowed in domestic arbitration. 

In January 1999, the Second Circuit was one of the first to confront an issue concerning Section 1782(a) in NBC v. Bear Stearns & Co. (1999). In NBC, the plaintiff, US-based news corporation NBC was involved in a Mexican arbitration with Mexican television broadcasting company Azteca, of which Bear Sterns was an investor. In interpreting Section 1782(a), the Second Circuit noted that “although the phrase ‘foreign or international tribunal’ does not unambiguously exclude private arbitral panels, neither does it unambiguously include them.” The court then concluded that the phrase, considered in the context of statutory and legislative history, is limited to public foreign arbitration and not private tribunals. Two months after the Second Circuit’s decision in NBC, the Fifth Circuit adopted this narrow interpretation of Section 1782(a) in Republic of Kazakhstan v. Biedermann Int’l (1999). The Fifth Circuit held that the statute was “not intended to authorize resort to United States federal courts to assist discovery in private international arbitrations.” The court highlighted the concern that allowing for discovery in private arbitrations would “complicate and undermine” the entire international arbitration process. 

The Fourth and Sixth Circuits

The Fourth and Sixth Circuits have both held that a broad definition of Section 1782(a) is more appropriate. In March 2020, the Fourth Circuit analyzed the scope of 1782(a) in the Servotronics, Inc. v. Boeing Co. (2020), (“Servotronics I”), a case arising from the same arbitration dispute that would later come before the Seventh Circuit. The Fourth Circuit came to a very different result than the Seventh Circuit, reasoning that the “district court functions effectively as a surrogate for a foreign tribunal by taking testimony and statements for use in the foreign proceeding” under Section 1782(a). The Fourth Circuit concluded that the application of Section 1782(a) should be determined by district courts and not parties, so the district courts should possess the ability to compel discovery for private foreign arbitrations. 

The Fourth Circuit’s decision in Servotronics I aligns with the Sixth Circuit’s September 2019 decision in Abdul Latif Jameel Transportation Co. v. FedEx Corp. (2019). In Abdul, the Sixth Circuit held that the word “tribunal” should be interpreted broadly and the “district court’s authority to compel discovery for use in foreign litigation extends to private foreign arbitrations.” The court stressed that the Supreme Court decision in Intel made the application of Section 1782(a) discretionary, and the broad interpretation would be best for giving this discretion to the district courts. 

LOOKING FORWARD

At this point, Rolls-Royce stated that it intended to file a petition for writ of certiorari to the Supreme Court. Whether or not the Servotronics case moves forward, the Court should review the interpretation of Section 1782(a) at some point, resolving the confusion left by Intel. If the Supreme Court opted for a broad interpretation of Section 1782(a), as given by the Fourth and Sixth Circuits, there would likely be a substantial increase in discovery for foreign private arbitrations, increasing costly litigation and further burdening the courts. 

Additionally, there is a pending case, HRC-Hainan Holding Co., LLC v. Yihan Hu (2020), before the Ninth Circuit that concerns a Section 1782(a) dispute involving discovery into a Chinese in vitro fertilization project that is before a Chinese arbitration commission. So, it will also be interesting to see what the Ninth Circuit decides and whether a decision, in this case, comes before a Supreme Court ruling on this issue.

 

When Unsubscribe Doesn’t Work: How Should We Define Autodialers in the Age of Cell Phones?

BACKGROUND

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) in an effort to curb unsolicited robocalls. Section 227(a)(1) of the TCPA defines an automatic telephone dialing system (ATDS) as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Section 227(b)(1)(B) prohibits the use of ATDS devices to contact any residential telephone “without the prior express consent of the called party.” 47 U.S.C. § 227.

THE ISSUE

Under the TCPA, is the definition of an ATDS  limited to only those devices that both produce phone numbers using a random or sequential number generator and automatically dial those numbers; or does the definition encompass a broader scope of devices that can still store and automatically dial phone numbers, but do not use random number generators?

THE SPLIT

The Sixth, Second, and Ninth Circuits have adopted a broad interpretation of the language of the TCPA. These three circuits believe that the broad definition will ensure companies that use autodialers to harass individuals will be held accountable for their actions. The Third, Seventh, Eleventh, and D.C. Circuits have disagreed and instead interpret the TCPA narrowly. One of the main justifications posited by these circuits is that a broad definition would cover too many modern electronic devices never intended by Congress when it enacted the TCPA.

Broad Interpretation

In July 2020, the Sixth Circuit joined the Second and Ninth Circuits in affirming a broad interpretation of the TCPA definition of autodialers. In Allan v. Pa. Higher Educ. Assistance Agency (2020), the court ruled that the TCPA definition includes devices that do not use random or sequential number generators. In Allan, the plaintiff took out a student loan from the Pennsylvania Higher Education Assistance Agency (PHEAA) and in doing so, consented to future calls regarding her loan. The plaintiff later requested that she not be called. After requesting to be taken off the phone list, the plaintiff and her cosigner were called a combined 353 times with automated messages. The PHEAA used a system called Avaya, which stored phone numbers and could automatically dial them to send automated messages. Avaya did not use a random or sequential number generator to create the phone numbers to call. The plaintiff sued the PHEAA alleging that the automated phone calls she did not consent to were in violation of the TCPA.

In interpreting the TCPA, the Sixth Circuit in Allan ultimately held in favor of the plaintiff, stating that “the autodialer ban applies to stored-number systems.” Even though the Avaya system did not use a random number generator, it still fell within the type of device making the type of phone calls from which the TCPA was designed to protect. The court rejected the Seventh and Eleventh Circuit’s narrow definition of an autodialing system that requires the use of random or sequential number generators, noting that such a narrow definition would unreasonably defang the TCPA by allowing companies to use one device to randomly generate the phone numbers and a second device to call the numbers. According to the Sixth Circuit, a narrow definition would thus create a loophole for companies to escape prosecution under the TCPA.

In April 2020, the Second Circuit held similarly in Duran v. La Boom Disco, Inc. (2020). In Duran, the plaintiff sued the defendant for sending over 100 text messages through a computer program. In interpreting the meaning of the TCPA, the court contemplated both a broad and narrow definition of an autodialer, but ultimately reasoned that “in order for a program to qualify as an ATDS, the phone numbers it calls must be either stored in any way or produced using a random-or sequential-number-generator.” In other words, to be an ATDS, a program does not have to meet both criteria. Finally, the Ninth Circuit adopted a broad interpretation of an autodialer in 2018 in Marks v. Crunch San Diego, LLC when it reasoned that the definition of an ATDS includes devices with the capacity to dial stored phone numbers automatically, regardless of the existence of random number generators.

Narrow Interpretation

The Third, Seventh, Eleventh, and D.C. Circuits have all held that a narrow definition of an autodialer is more appropriate. In February 2020, the Seventh Circuit held for the defendant in Gadelhak v. AT&T Services(2020). The court reasoned that the capacity to generate random or sequential numbers is essential to the TCPA definition, and because an AT&T text messaging program did not use a random number generator, the TCPA did not apply. The Third Circuit held similarly in Dominguez v. Yahoo, Inc (2018), where the court ruled in the defendant’s favor because the plaintiff was unable to prove that an automated email and SMS program had the “capacity to function as an autodialer by generating random or sequential” numbers.

The D.C. and Eleventh Circuits both adopted the same narrow definition of an autodialer, but also brought up an interesting policy argument in support of their interpretation. In ACA Int’l v. FCC (2018), the D.C. Circuit posited that a broad definition that allows for any device that can store and automatically call a phone number would be unreasonable because it would include just about every modern cellphone. The Court worried that a broad interpretation would mean that “every smartphone user violates federal law whenever she makes a call or sends a text message without advance consent.” The Eleventh Circuit shared a similar worry in Glasser v. Hilton Grand Vacations Co., LLC (2020) when it said that “it’s hard to think of a phone that does not have the capacity to automatically dial telephone numbers stored in a list[.]”

Interestingly, the Sixth Circuit in Allan offered a counter to the D.C. and Eleventh Circuits’ cell-phone argument. The Sixth Circuit determined that just because a device has the capacity to store and dial phone numbers automatically, it is not automatically an autodialer under the TCPA. The court claimed that to be prosecuted under the TCPA, the device must not only possess the requisite qualities, it must be physically utilized as an autodialer as well. Using the Sixth Circuit explanation, a cell phone would not count as an autodialer unless someone purposefully programmed it to be used as one.

LOOKING FORWARD

The Supreme Court is scheduled to hear oral arguments in Facebook, Inc. v. Duguid in December 2020. In its petition for a writ of certiorari, Facebook is asking the Court to clarify which definition of the TCPA ought to apply. If the Supreme Court adopts the broader definition of the Second, Sixth, and Ninth Circuits, there could be interesting implications for essentially all modern cell phones. If all cell phones are found to qualify under the TCPA, we could see new legislation in Congress further limiting the scope of the TCPA.