Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Sept. 20–26, 2021)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Sept. 20–26, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Sept. 20–26, 2021)
September 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 precedential decisions of the Supreme Court and 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 email the author to
receive regular notifications of new products published by CRS attorneys.
Decisions of the Supreme Court
No Supreme Court opinions or grants of certiorari were issued this week.
Decisions of the U.S. Courts of Appeals
 Communications: Section 230 of the Communications Act generally shields online
service providers from civil liability for hosting others’ content, subject to exceptions
including suits under intellectual property laws. Splitting with another circuit, a divided
Third Circuit panel held that this carve-out applied to both federal and state intellectual
property claims, and further ruled that the exception covered plaintiff’s state law claim
against a defendant social media company alleging it violated her right of publicity (Hepp
v. Facebook).
 Criminal Law & Procedure: A divided Third Circuit panel joined other circuits in
recognizing a Hobbs Act robbery conviction does not qualify as a “crime of violence” for
purposes of the career offender provision of the U.S. Sentencing Guidelines because that
term covers a narrower swathe of conduct than does a Hobbs Act robbery offense (United
States v. Scott).
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 Environmental Law: The Ninth Circuit held that a citizen suit under the Clean Water
Act may be premised on a defendant’s ongoing or reasonably expected violations of
monitoring and reporting requirements, even if no proof is offered of an ongoing
discharge of pollutants into the waters of the United States (Inland Empire Waterkeeper v.
Corona Clay Co.).
 Fair Credit Report Act (FCRA): FCRA regulates consumer reporting agencies’ use of
consumer reports. Adding to a circuit split, a divided D.C. Circuit held that FCRA’s
authorization of damage suits against any “person” waived the federal government’s
sovereign immunity, because the court read the statute’s definition of “person” to cover
the federal government. However, the court ruled that defendant Federal Motor Carrier
Safety Administration did not act as a “consumer reporting agency” under FCRA when it
distributed safety records of commercial truck drivers to prospective employers, and the
court therefore dismissed the suit against it (Mowrer v. Department of Transportation).
 Firearms: Earlier this year, a divided Fourth Circuit panel ruled in favor of plaintiff’s
Second Amendment challenge to federal laws and regulations that barred her from
purchasing a handgun because she was under 21. When plaintiff turned 21 shortly
thereafter, the court remanded the case to be dismissed as moot and vacated the earlier
opinion, resulting in it losing precedential value under circuit caselaw (Hirschfield v.
Bureau of Alcohol, Firearms, Tobacco & Explosives).
 Freedom of Information Act (FOIA): The Open FOIA Act of 2009 provides that later
laws may only exempt agencies from FOIA disclosure requirements if they “specifically
cited” to FOIA. In an amended opinion, a divided Ninth Circuit panel held that post-2009
appropriations riders limiting the covered agency’s disclosure of firearms-related
information (“Tiahrt Riders”) did not relieve that agency of FOIA disclosure
requirements because the post-2009 riders did not specifically cite to FOIA. (The
majority believed the government waived arguments that the 2009 law impermissibly
constrained how a future Congress can create FOIA exemptions.) The post-2009 Tiahrt
Riders did, however, repeal by implication earlier riders that were not subject to the Open
FOIA Act’s citation requirement and may have otherwise barred disclosure (Center for
Investigative Reporting v. Department of Justice).
 Immigration: The Eighth Circuit held that an asylum seeker’s claim was properly denied
because, among other things, her claim was premised on being part of a family that was
unaffiliated with gangs and refused to provide support to gang activity, a class that lacked
sufficient particularity and social distinction to be considered a “particular social group”
under the asylum statute (Tino v. Garland).
 Labor & Employment: In a suit for unlawful retaliation under the Federal Railroad
Safety Act, the Second Circuit construed the statute’s protection of an employee’s
“reporting, in good faith, a hazardous safety or security condition” to require that an
employee subjectively believe the reported matter represents a hazardous safety or
security condition, and ruled that the reported condition need not be a physical condition
(Ziparo v. CSX Transportation, Inc.).
 Labor & Employment: The Seventh Circuit held that the Labor Management Relations
Act preempted a class action suit brought under state law by unionized employees
challenging their employer’s collection of biometric information from them, because the
federal law recognized certified unions as the exclusive representative of employees in
collective working condition disputes with management (Fernandez v. Kerry).
 Presidential Pardons: The Tenth Circuit held that a petitioner’s acceptance of a
presidential pardon of his military court-martial convictions did not constitute a legal

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 confession of guilt or a waiver of his habeas right to challenge the legality of the
convictions (Lorance v. Commandant).
 Securities: Section 11 of the Securities Act imposes civil liability for false or misleading
statements in registration documents and provides that persons who acquire “such
security” have standing to sue for violations. A divided Ninth Circuit panel held that
because the defendant had to file a registration statement to sell shares through a direct
listing that made registered and unregistered shares available to the public, the plaintiff
had standing to bring suit under Section 11 even though he could not identify whether the
shares purchased through the listing were registered (Pirani v. Slack Technologies, Inc.).

Author Information

Michael John Garcia

Section Research Manager

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