Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Sept. 19–Sept. 25, 2022)
September 26, 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
the CRS Legal Update and receive regular notifications of new products and upcoming seminars by CRS
attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court acted in response to an emergency application:
 Criminal Law & Procedure: In an unsigned order, the Court decided by a 5-4 vote to
vacate a district court’s injunction that barred Alabama from carrying out an inmate’s
scheduled execution by any means other than through nitrogen hypoxia which the inmate
has requested. While the Alabama statute provides inmates with the choice to be executed
by nitrogen hypoxia instead of lethal injunction, the state asserted it had not received a
timely request for this alternative method, which the state had never employed before.
Despite the Court’s action, the inmate’s execution has been postponed because it could
not be completed before the death warrant expired (Hamm v. Miller).
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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.
 Abortion: The Fifth Circuit dismissed Louisiana’s emergency motion to vacate a
permanent injunction blocking the implementation of a state law restricting abortion
access, and rejected the state’s petition to compel the lower court to provide immediate
relief. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health
Organization, which held there is no constitutional right to abortion, Louisiana requested
a district court to vacate an injunction immediately. The injunction was issued years
earlier and barred the state from enforcing a law requiring physicians performing
abortions to have admitting privileges at a facility within 30 miles of where the abortions
are performed. Without reaching the merits, the lower court denied the state’s motion
pending full briefing on the issue. The Fifth Circuit held it lacked appellate jurisdiction,
characterizing the district court’s decision as a non-reviewable scheduling order. It also
ruled that the extraordinary remedy of mandamus was inappropriate, and directed the
lower court to address any merits claims raised expeditiously (June Med. Servs., L.L.C. v.
Phillips).
 Bankruptcy: The Ninth Circuit affirmed an order allowing a Chapter 11 debtor-in-
possession to assume an unexpired commercial lease under 11 U.S.C. § 365(b)(1), which
required the court to determine whether the circumstances triggered statutory
preconditions for assumption during reorganization. The court held that preconditions set
forth in § 365(b)(1) for the assumption of an unexpired lease, which hinge on the
existence of a “default,” apply even where the default was already cured by the debtor.
The court also interpreted the provision’s use of “default” to be in the ordinary sense—
that is, an omission or failure to perform a legal or contractual duty. The court concluded
that the bankruptcy court erred in interpreting “default” more narrowly to cover only
those defaults sufficiently material to warrant lease forfeiture under the applicable state
law (In re Hawkeye Entertainment, LLC).
 Environmental Law: A divided Ninth Circuit held that agencies operating the Twitchell
Dam in California had discretion to adapt original water management plans to
accommodate a subsequently enacted statute. The majority held that the Endangered
Species Act (ESA) could be read in harmony with the plain meaning of the 1954 federal
statute authorizing construction of the dam. Specifically, the authorized purposes of the
dam included water conservation, flood control, and “other purposes” which could
potentially include ESA compliance. Further, the statute required that the dam operate
“substantially in accordance,” rather than in strict compliance, with water flow rate
recommendations issued in 1953 by the Secretary of the Interior. The Ninth Circuit
remanded for further proceedings, including for the district court to consider in the first
instance whether the agencies might be required to exercise their discretionary authority
to come into compliance with the Endangered Species Act and thus release dam water to
protect the Southern California Steelhead (San Luis Obispo Coastkeeper v. Dep’t of the
Interior).
 Federal Courts: The Sixth Circuit denied a criminal defendant’s motion to compel a
forensic examination of a juror’s cellphone, computer, or other electronic device as part
of a Remmer hearing, in which a court investigates whether outside influence upon a
juror deprived the defendant of the Sixth Amendment right to a fair trial by an impartial
jury. The majority held that although a juror may be questioned in a Remmer hearing,

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neither a district court’s inherent nor statutory authority empowers it to order a search of
a juror’s belongings. The majority observed that if a court conducting a Remmer hearing
suspects criminal wrongdoing by a juror, that is a matter for a prosecutor, rather than a
judge, to investigate, including by seeking a warrant from a neutral and impartial
magistrate (In re Sittnefeld).
 National Security: In a non-precedential per curiam opinion, the Eleventh Circuit ruled
that the Department of Justice (DOJ) could begin reviewing documents marked classified
that were seized from former President Donald Trump’s Mar-a-Lago property, pending
appeal of a district court ruling that directed the DOJ to return the documents for further
review by a special master, and enjoined a subset of documents from being used in a
criminal investigation. The appellate court determined the district court abused its
discretion in issuing a partial stay. Circuit case law permits a district court to exercise
equitable jurisdiction over a pre-indictment motion to return seized property only when
certain factors are met, including the callous disregard of the plaintiff’s constitutional
rights, but the lower court concluded this factor was not met here. The appellate court
also determined (1) the former President lacked an individual interest in the seized
documents and would not suffer a substantial injury from government retention of the
documents; (2) the United States would suffer irreparable harm if its access to seized
classified documents was limited by the district court; and (3) public interest
considerations relating to the secure storage of classified documents supported staying
the lower court’s order (Trump v. United States).
 Speech: The Second Circuit directed a district court to dismiss a civil suit brought by the
National Rifle Association (NRA) against a New York state official who issued guidance
letters urging regulated banks and insurance companies to stop doing business with the
NRA in the wake of a school shooting. The district court allowed the NRA to proceed
with its suit alleging that the state official abridged the organization’s First Amendment
rights by attempting to chill its protected speech and retaliate against it for engaging in
such speech. The Second Circuit held that the statements the organization identified did
not cross the line between a lawful attempt to convince and an unlawful attempt to
coerce. Even assuming the NRA plausibly alleged a First Amendment violation, the court
concluded the official was entitled to qualified immunity because she acted reasonably
and in good faith in her role as a regulator and when she made her statements, it was not
clearly established that they violated the First Amendment (Nat’l Rifle Ass’n of Am. v.
Vullo).
 Torts: On remand from the Supreme Court, a divided Sixth Circuit held that the Federal
Tort Claims Act’s (FTCA’s) judgment bar, 28 U.S.C. § 1346(b), applies not just to future
lawsuits, but also to claims brought in the same action where judgment on an FTCA
claim was rendered. Section 1346(b) provides that a judgment rendered against the
United States on an FTCA claim “shall constitute a complete bar to any action by the
claimant, by reason of the same subject matter, against the employee of the government
whose act or omission gave rise to the claim.” Here, the plaintiff initially filed an FTCA
claim against the United States, along with Bivens claims against individual federal law
enforcement officers in their personal capacity, for excessive force used by those officers
after mistakenly identifying plaintiff as a fugitive. The district court held that it lacked
subject-matter jurisdiction over the FTCA claim, and the Supreme Court ultimately ruled
that this triggered the FTCA’s judgment bar, but left undecided whether the judgment bar
applied to the remaining Bivens claims. On remand, the Sixth Circuit majority held that it
did, reasoning that intervening Supreme Court precedent did not affect a prior Sixth

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Circuit ruling requiring related claims in the same lawsuit to be dismissed if there was
judgment on the FTCA claim (King v. United States).

Author Information

Michael John Garcia
Kristen Hite
Deputy Assistant Director/ALD
Legislative Attorney

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Disclaimer
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