Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Dec. 20–Dec. 26, 2021)
December 27, 2021
The federal courts issue hundreds of decisions every week in cases involving diverse legal disputes. This
Sidebar series selects decisions from the past week that may be of particular interest to federal lawmakers,
focusing on orders and decisions of the Supreme Court and precedential decisions of the courts of appeals
for the thirteen federal circuits. Selected cases typically involve the interpretation or validity of federal
statutes and regulations, or constitutional issues relevant to Congress’s lawmaking and oversight
functions.
Some of the cases identified in this Sidebar, or the legal questions they address, are examined in other
CRS general distribution products. Members of Congress and congressional staff may contact the authors
to subscribe to the CRS Legal Update newsletter and receive regular notifications of new products
published by CRS attorneys.
Decisions of the Supreme Court
The Supreme Court scheduled oral arguments for January 7, 2022, to consider challenges to two federal
Coronavirus Disease 2019 (COVID-19) vaccination policies.
One set of arguments concerns an Occupational Safety and Health Administration (OSHA) emergency
temporary standard (ETS) issued in November 2021 that directs employers with 100 or more workers to
adopt a COVID-19 vaccine-or-testing policy. A divided Sixth Circuit panel lifted a stay that had prevented
the ETS from going into effect after concluding that plaintiffs were unlikely to prevail in their legal
challenges to the mandate. The petitioners have asked that the stay on the ETS be reinstituted while
litigation proceeds (Nat’l Fed. of Independent Business v. Dep’t of Labor; Ohio v. Dep’t of Labor).
The other set of arguments focus on an interim rule by the Centers for Medicare & Medicaid Services
(CMS) in November 2021, which generally requires certain types of health care entities participating in
the Medicare and Medicaid programs to ensure staff are vaccinated against COVID-19 unless an
individual is exempted for religious, medical, or other prescribed reasons. Three district courts have
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issued preliminary injunctions of varying scope against the rule that, collectively, have halted its
implementation in 25 states. The Biden Administration has asked the Supreme Court to stay two of these
preliminary injunctions while litigation concerning the validity of the interim rule continues (Biden v.
Missouri; Becerra v. Louisiana).
Lower court proceedings regarding both mandates are discussed in an earlier edition of the Congressional
Court Watcher.
Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases where the appellate court’s controlling opinion
recognizes a split among the federal appellate courts on a key legal issue resolved in the opinion,
contributing to a non-uniform application of the law among the circuits.
Arbitration: The Federal Arbitration Act (FAA) permits parties to contract for arbitration of
disputes and, in so doing, forfeit their rights to sue in court over matters covered by the
arbitration agreement. The FAA does not apply to employment agreements with certain
workers, including transportation workers “engaged in foreign or interstate commerce.”
The Ninth Circuit held that the FAA’s exemption applies to delivery drivers of local
franchises of a national pizza chain. The panel characterized the national pizza chain as
involved in the procurement and delivery of goods in interstate commerce, and the
delivery drivers’ transportation of those goods to their final destination as the final leg of
the interstate transport of those goods (Carmona v. Domino’s Pizza, LLC).
 Civil Liability: The Trafficking Victims Protection Reauthorization Act (TVPRA)
permits a human trafficking victim to seek civil remedies against both the trafficker and
those who knowingly benefited from the trafficking venture. In the course of affirming a
lower court’s dismissal of plaintiff’s TVPRA claim against hotel chains that allegedly
profited from human trafficking at their locations, the Eleventh Circuit held that, for civil
liability to attach, plaintiffs must show that defendants (1) knowingly benefited (2) from
taking part in a common undertaking or enterprise involving risk and potential profit, (3)
that this undertaking violated the TVPRA as to plaintiffs, and (4) the defendants had
constructive or actual knowledge that the undertaking or enterprise violated the TVPRA.
The court based these four elements on the plain meaning of the TVPRA’s text. The court
joined at least one other circuit in declining to interpret the scope of the TVPRA’s civil
liability provision as narrowly as a criminal provision in the TVPRA that also addresses
participation in trafficking ventures (Doe #1 v. Red Roof Inns, Inc.).
 *Civil Rights: A divided Sixth Circuit panel affirmed a lower court’s dismissal of a
plaintiff’s suit against the City of Detroit under Title II of the Americans with Disabilities
Act (ADA) and § 505 of the Rehabilitation Act. The plaintiff claimed that the city should
be found vicariously liable for conduct of city police officers. The panel majority
observed that the remedies available under Title II of the ADA are, by cross-reference, the
same as those in § 505 of the Rehabilitation Act, which are in turn defined in cross-
reference to Title VI of the Civil Rights Act. The majority held that none of these three
statutes permits claims premised on vicarious liability. While the majority observed that
its interpretation generally paralleled rulings from other appellate courts, it noted a split
with one circuit court that had recognized a vicarious liability claim under Title II of the
ADA (Jones v. Detroit).
 Immigration: Under 8 U.S.C. § 1101(g), an alien is considered to have been “deported
or removed” once he or she has been (1) “ordered deported or removed” and (2) “left the
United States.” Applying the rule of lenity and affording the government’s interpretation

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Chevron deference, the Eleventh Circuit held that an alien is only considered to have
been removed under § 1101(g) if the alien departs the United States after the issuance of
a removal order, and not if the alien departs beforehand (Romero v. Secretary, U.S. Dep’t
of Homeland Security).
 Immigration: The Violence Against Women Act (VAWA) allows qualifying victims of
domestic violence who have been ordered removed from the United States to have their
cases reopened upon filing a motion within one year of the removal order’s issuance. In
certain circumstances, this one-year filing deadline may be waived by the Attorney
General as a matter of discretion. The Third Circuit held that the Immigration and
Nationality Act’s jurisdiction-stripping provisions, which generally bar judicial review of
decisions statutorily committed to the Attorney General’s discretion, prevented the court
from reviewing petitioner’s claim that he should have been granted a waiver from
VAWA’s one-year filing deadline (Yasin v. Attorney General).
 Labor & Employment: The Sixth Circuit joined other circuits in holding that a state’s
National Guard, in its capacity as an employer and supervisor of dual-service technicians,
is an executive agency under the Federal Service Labor-Management Relations Statute.
The panel confirmed the Federal Labor Relations Authority’s (FLRA) jurisdiction over
the Guard and the technicians after looking to legislative history to confirm Congress’s
efforts to ensure that dual-status technicians, in their civilian capacity, have collective
bargaining rights that members of the uniformed services do not have. (Ohio Adjutant
General’s Department v. FLRA).
 National Security: The DC Circuit affirmed in part and reversed in part a lower court’s
determination that an appellant family of U.S. citizens lacked Article III standing to
pursue its claim of violations of the Fourth and Fifth Amendments and of the
Administrative Procedure Act resulting from domestic and international airport security
screenings that plaintiffs allege were connected to a terrorist watchlist. The panel found
that the family established the requisite imminent threat of future injury to pursue its
prospective claims for relief, except against the individual agents carrying out the
government procedures. (Jibril v. Mayorkas).

Author Information

Michael John Garcia
Sanchitha Jayaram
Section Research Manager
Assistant Director/ALD





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