BCLR Electronic Supplement

On May 3, 2021, in Simons v. Washington, the United States Court of Appeals for the Sixth Circuit held that a court’s non-binding “strike” recommendation under the Prison Litigation Reform Act (PLRA) did not violate the PLRA or Article III of the United States Constitution. Courts agree that binding strikes are impermissible, but disagree on the underlying reasoning. The Sixth Circuit reasoned that the PLRA, which revokes in forma pauperis filing from indigent prisoner-litigants after three qualifying dismissals, renders binding strikes impermissible before a prisoner accrues three strikes. By resolving the issue using the PLRA, the Sixth Circuit found the constitutional inquiry unnecessary. This Comment argues that the Sixth Circuit’s approach is correct because it aligns with the well-established canon of constitutional avoidance. The Sixth Circuit’s approach also narrows the legal issues in a PLRA ruling, thereby communicating familiar legal principles to under-resourced prisoner-litigants.

Boston College Law Review

Calling Strikes: The Sixth Circuit’s Interpretation of the Prison Litigation Reform Act

On May 6, 2021, in Shipley v. Helping Hands Therapy, the U.S. Court of Appeals for the Eleventh Circuit held that non-jurisdictional remands must be based on timely motions to remand that assert procedural defects. This holding revisited a split between the U.S. Court of Appeals for the Ninth and Fifth Circuits regarding the proper interpretation of 28 U.S.C. § 1447(c)’s non-jurisdictional remand provision. The Ninth Circuit—much like the Eleventh Circuit but with different reasoning—found that both the raising of the procedural defect and the motion to remand must be timely, whereas the Fifth Circuit held that only the motion to remand must be timely. This Comment argues that the Eleventh Circuit’s approach is preferable because it better employs canons of statutory interpretation and arrives at a conclusion that is supported by legislative intent.

Motion Denied: Procedural Pitfalls Prevail in Motions to Remand

On May 7, 2021, in United States v. Bryant, the United States Court of Appeals for the Eleventh Circuit held that the U.S. Sentencing Commission’s policy statement in Section 1B1.13 of the U.S. Sentencing Guidelines binds defendant-filed motions for compassionate release. In its Application Notes, the policy statement provides four “extraordinary and compelling circumstances” that warrant a sentence reduction. Application Note 1(D) is the “catch-all provision” because it states that judges may grant compassionate release for “other reasons” not specifically listed in the preceding Application Notes. Application Note 1(D) states that the Director of the Bureau of Prisons (BOP) defines all “other reasons” under the catch-all provision that qualify an inmate for compassionate release. Before 2018, only the Director of the BOP could file compassionate release motions under 18 U.S.C. § 3582(c)(1)(A). The First Step Act of 2018 amended the statute to allow defendants to file motions too. Because the policy statement still begins with the phrase “upon motion of the Director of the BOP,” courts have since questioned whether it also applies to defendant-filed motions. In a departure from the holdings of the United States Court of Appeals for the Third, Fourth, Fifth, Sixth, Seventh, Ninth and D.C. Circuits, the Eleventh Circuit decided that the policy statement and its corresponding Application Notes apply to defendant-filed motions for compassionate release. Under this interpretation, only the BOP defines the “other reasons” that warrant compassionate release pursuant to Application Note 1(D). This Comment argues that the Eleventh Circuit was incorrect in its interpretation because it disregarded the plain text of the policy statement and erroneously considered the legislative intent of a different statute.

Procedural Pitfalls: The Eleventh Circuit Holds That the Sentencing Commission’s Policy Statement on Sentence Reduction is Binding on Defendant-Filed Motions

On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, the United States Court of Appeals for the Eleventh Circuit held that the mere existence of a data breach is insufficient to grant plaintiffs standing to sue the company that exposed their personal information. By doing so, the Eleventh Circuit aligned itself with the Second, Third, Fourth, and Eighth Circuits. In contrast, the Sixth, Seventh, Ninth, and D.C. Circuits have granted standing in such cases. This Comment argues that the Eleventh Circuit properly applied Supreme Court jurisprudence at the time it decided Tsao and, in light of more recent Supreme Court decisions, came to the correct conclusion.

A Hacker “May” Have Accessed Your Data: Can Victims of Data Breaches Sue Before Alleging Misuse?

On July 27, 2020, in Allen v. Wells Fargo & Co., the U.S. Court of Appeals for the Eighth Circuit held that plaintiffs who bring an imprudence claim under the Employment Retirement Income Security Act against a fiduciary of an employee stock ownership plan (ESOP) alleging that the fiduciary failed to act on negative inside information do not meet their pleading burden. In doing so, the Eighth Circuit agreed with three other federal circuit courts that an imprudence claim predicated on an ESOP fiduciary’s failure to disclose negative information is insufficient to survive a motion to dismiss. Only the Second Circuit has held that plaintiffs can survive a motion to dismiss when offering early disclosure as a possible alternative action the fiduciary could have taken. This Comment argues that the Eighth Circuit’s holding is correct because it best protects ESOP plan managers and takes account of ESOP’s unique structure.

Stuck Between a Fiduciary Rock and a Prudential Hard Place: The Eighth Circuit’s Approach to Erisa’s Duty of Prudence

On May 13, 2021, in United States v. Dominguez, the U.S. Court of Appeals for the Eleventh Circuit joined a pre-existing circuit split regarding the meaning of “sexual activity” under 18 U.S.C. § 2422 and whether that term requires physical contact between the defendant and the victim. The statute prohibits individuals from coercing or enticing others to participate in illegal sexual activity, including when the victim is a minor. The U.S. Court of Appeals for the Fourth and Seventh Circuits previously reached opposite interpretations of the phrase’s meaning. The court in Dominguez agreed with the Fourth Circuit and held that the phrase did not require the defendant to engage or attempt to engage in physical contact with another individual. This Comment argues that the Fourth and Eleventh Circuits reached the correct interpretation of “sexual activity” as not requiring physical contact.

"Sexual Activity": What Qualifies Under 18 U.S.C. § 2422?

On April 7, 2021, in Gil v. Winn-Dixie Stores, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that websites are not places of public accommodation pursuant to Title III of the Americans with Disabilities Act. Before the Eleventh Circuit vacated its decision in December 2021, it joined the majority of circuit courts in a split regarding whether Congress intended Title III to apply to websites and other non-physical places. The First, Second, and Seventh Circuits considered Title III’s language broad or ambiguous enough to include web-sites. Conversely, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits held that Title III unambiguously excludes websites and other non-physical places. Although it vacated Gil, the Eleventh Circuit’s reasoning provides valuable insight as to how this court will decide when it hears another Title III appeal in the future. This comment argues that the Eleventh Circuit, with its extremely narrow interpretation of Title III, erred by disregarding the ambiguity of the Act’s language and should have construed the statute in light of Congress’s purpose.

There's No Place Like Dot-Com: Are Websites Places of Public Accommodation Under Title III of the ADA?

The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U.S. Constitution. The Eleventh Circuit agreed with the Seventh Circuit and declined to permit a constitutional claims exclusion. In contrast, the First, Eighth, Ninth, and D.C. Circuits have each held that the discretionary function exception does not shield the United States from liability where the conduct at issue allegedly violates the Constitution. This Comment argues that the minority approach is correct because sovereign immunity doctrine indicates that courts should read any exception narrowly in favor of the federal government.

Sovereign Immunity or: How the Federal Government Learned to Stop Worrying and Love the Discretionary Function Exception

A shocking number of fertility doctors surreptitiously use their own sperm during insemination procedures. Courts and commentators have explained how medical malpractice and common-law tort claims can provide the mother with remedies. The children of fertility fraud have received less attention. This Essay is the first to systematically analyze the potential claims of these children, whose identities may be shattered by discovering the truth about their biological father. It concludes that creative use of existing common-law torts can provide remedies for children of fertility fraud.

Fertility Fraud: The Child's Claims

This essay was delivered as the 2021 Holocaust and Human Rights Project Owen Kupferschmid Memorial Lecture. The Owen M. Kupferschmid Holocaust/Human Rights Project is named after its founder, a 1986 Boston College Law School graduate. Launched in 1984, the project’s goal was to ensure that the precedential value of Holocaust-related law is fully realized and applied to state-sponsored human rights violations today.