Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 30–June 5, 2022)
June 6, 2022
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 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 click here to subscribe to
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attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court took action on an emergency application:
 Speech: By a 5-4 vote, the Supreme Court allowed a district court’s preliminary
injunction to go into effect, blocking enforcement of a Texas law restricting some social
media platforms’ ability to moderate user content. The district court had enjoined
enforcement of the law after concluding that the platforms were likely to succeed on their
claim that the law violated their free speech rights under the First Amendment. The Court
vacated a Fifth Circuit order that stayed the injunction pending appeal. The circuit court
has not yet issued an opinion on the merits of the appeal; it could ultimately reverse the
trial court’s preliminary injunction if it concludes Texas’s law is constitutional
(NetChoice, LLC v. Paxton).
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Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases in which 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.
 Civil Liability: The Fourth Circuit affirmed a district court’s dismissal of a suit brought
under the Driver’s Privacy Protection Act (DPPA). Plaintiffs were recipients of
unsolicited advertisements from personal injury lawyers who obtained information about
the recipients from car accident reports. The circuit panel held that the plaintiffs had
standing to bring suit for damages under the DPPA, which provides a cause of action
against those who knowingly obtain, disclose, or use personal information “from a motor
vehicle record” for an impermissible purpose. The panel found, however, that for liability
to attach under the DPPA, the obtained information must have come directly “from a
motor vehicle record,” and not merely have derived from information that appeared in a
motor vehicle record. Here, the plaintiffs did not preserve on appeal an argument that the
car accident reports were “motor vehicle records,” instead arguing only that the reports
contained information from other sources (i.e., drivers’ licenses and DMV databases) that
plaintiffs contended were covered records. Because the defendants did not obtain the
information directly “from a motor vehicle record,” the appellate court affirmed the suit’s
dismissal (Garey v. Farrin, P.C.).
 Civil Rights: Sitting en banc, a divided D.C. Circuit held that an employer violates Title
VII of the Civil Rights Act when it either involuntarily transfers a worker to a different
position or denies that worker’s request for transfer on account of race, color, religion,
sex, or national origin. The majority overruled prior circuit precedent recognizing the
denial or forced acceptance of a job transfer was only actionable under Title VII if
objectively tangible harm occurred, after concluding that the circuit court’s earlier
interpretation conflicted with intervening Supreme Court decisions (Chambers v. District
of Columbia).
 *Civil Rights: Joining the majority of circuit courts that have considered the issue, the
Second Circuit held that an employee of a federally funded educational institution may
bring a private right of action against that institution under Title IX of the Education
Amendments of 1972 alleging discrimination because of the employee’s sex. The circuit
court remanded the case—involving a former university faculty member who alleged
gender-based bias motivated disciplinary action taken against him—to the district court to
consider the plaintiff’s Title IX claim (Vengalattore v. Cornell Univ.).
 Criminal Law & Procedure: The Fourth Circuit decided that for misapplication of
federal funds under 18 U.S.C. § 666(a)(1)(A), aggregate transactions occurring in the
same one-year period could meet the value threshold for criminal liability to attach. The
provision applies when the unlawful conversion involves property valued at $5,000 or
more. The panel vacated the defendant’s conviction for one charge under § 666(a)(1)(A)
that did not meet the one-year time limit, while affirming the defendant’s other
convictions (United States v. Spirito).
 Criminal Law & Procedure: The Eighth Circuit held that for a criminal defendant to be
liable under 18 U.S.C. § 1512(c)(1) for “corruptly” tampering with evidence “with the
intent to impair the object’s integrity or availability for use in an official proceeding,” the
defendant must know his actions are likely to have their intended effect. The court upheld
the defendant’s conviction under § 1512(c)(1) after concluding that this requirement was

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implicit in the instructions the convicting jury received about the scienter necessary for
liability to attach (United States v. White Horse).
 Environmental Law: The Ninth Circuit upheld and directed the broadening of a district
court injunction blocking the federal government from issuing permits that would enable
the use of unconventional oil drilling methods, including fracking, on offshore platforms
along the coast of California, pending certain regulatory actions. The panel agreed with
the lower court that the federal agencies violated the Endangered Species Act’s (ESA’s)
consultation requirements and failed to complete a Coastal Zone Management Act
(CZMA) consistency review to determine whether certain drilling techniques accorded
with California’s coastal management plan. Reversing the lower court, the circuit panel
held that the federal agencies’ programmatic approval of certain techniques also violated
National Environmental Policy Act (NEPA) requirements because the environmental
assessment concluding that certain drilling methods would have no significant impact
was flawed, and an environmental impact statement (EIS) was needed. The panel
therefore affirmed the lower court’s injunction on the issuance of permits for offshore
drilling using the challenged methods until the ESA and CZMA requirements were
satisfied, and further instructed the district court to expand the injunction to bar permit
issuance until an EIS was issued (Environmental Defense Center v. Bureau of Ocean
Management).
 Food & Drug: The D.C. Circuit held that it lacked jurisdiction to review a complete
response letter that a Food and Drug Administration (FDA) division issued to a drug
sponsor. A complete response letter identifies deficiencies in a sponsor’s new drug
application to explain why FDA cannot approve the application as submitted. The Federal
Food, Drug, and Cosmetic Act authorizes federal jurisdiction under 21 U.S.C. § 355(h) to
review only final rejections of new drug applications by FDA, and in general courts
cannot review interim decisions or nonbinding statements that remain subject to
modification. The circuit court concluded that a complete response letter is not the
culmination of the FDA’s consideration of a new drug application. It observed that FDA
regulations give applicants an opportunity to take further action before FDA makes its
final decision, such as providing additional information, requesting a hearing on whether
there are grounds for denying approval, or asking the issuing division to reconsider the
application (Nostrum Pharmaceuticals, LLC v. FDA).
 Food & Drug: The Second Circuit affirmed a district court’s default judgment under the
Perishable Agricultural Commodities Act (PACA) against defendants who were found to
have failed to pay for produce bought on credit. The circuit court ruled that certain
statutory requirements applicable to PACA claims—that the defendant was a “dealer” and
the transaction concerned was made in “interstate or foreign commerce”—were not
jurisdictional, but instead were elements of the defendant’s liability. Because the
defendants conceded all well-pled allegations concerning liability by virtue of their
default, the circuit court assumed the facts alleged in the plaintiff’s complaint relating to
these requirements were true, which the circuit court said it would not have done if the
requirements were jurisdictional (A&B Alternative Mktg. Inc. v. Int’l Quality Fruit Inc.).

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
 Food & Drug: A divided Fourth Circuit upheld a lower court’s summary judgment for
North Carolina in a suit challenging the state’s ban on out-of-state wine retailers shipping
wine directly to North Carolina consumers. The majority held that although a state’s
differential treatment of in-state and out-of-state retailers could violate the “dormant”
Commerce Clause, the restriction here was permitted by Section 2 of the Twenty-First
Amendment, which recognizes states’ authority to restrict the “transportation or
importation . . . for delivery or use therein of intoxicating liquors.” The majority observed
that the Supreme Court recognized that discriminatory importation restrictions were
consistent with the Twenty-First Amendment if they could be justified as a public health
or safety measure, or on another legitimate nonprotectionist ground. The majority
concluded that requirement was satisfied here, as the importation restriction was an
essential component of North Carolina’s system of regulating alcohol consumption in the
state, which out-of-state retailers could bypass if allowed to ship alcohol directly to
consumers (B-21 Wines, Inc. v. Bauer).
 Labor & Employment: The Seventh Circuit held that an employer can violate the
Family and Medical Leave Act even if it does not deny an employee’s covered leave
request, if the employer discourages the employee from making the FMLA request in the
first place (Ziccarelli v. Dart).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD




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