Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Sept. 27–Oct. 3, 2021)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Sept. 27–Oct. 3, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Sept. 27–Oct. 3, 2021)
October 4, 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 contact the author
to subscribe to the CRS Legal Update newsletter and receive regular notifications of new products
published by CRS attorneys.
Decisions of the Supreme Court
This past week the Supreme Court added five cases to its term’s docket:
 Criminal Law & Procedure: Between 2010 and 2018, Congress passed legislation prospectively
reducing sentence disparities between certain crack and powder cocaine offenses and giving
courts discretion to reduce the sentences of defendants convicted under the prior standards. The
Supreme Court granted certiorari in a case to decide whether a court reviewing a sentence under
these provisions must or may consider intervening legal and factual developments arising after
the defendant’s conviction (Concepcion v. United States).
 Election Law/First Amendment: When a candidate for federal office loans money to his or her
campaign, federal law sets a $250,000 cap on the amount of post-election contributions that a
campaign may use to reimburse the candidate. The Supreme Court will exercise its mandatory
jurisdiction in a case where it is asked to review whether the appellees have standing to challenge
the cap and, if so, whether the cap violates the First Amendment’s Free Speech Clause (Federal
Election Commission v. Ted Cruz for Senate).
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 First Amendment (Religious Speech): The Supreme Court granted certiorari in a case involving
a challenge to the City of Boston’s denial of a religious organization’s permit to raise temporarily
a flag with a Latin Cross on a city flagpole, after the City previously approved hundreds of flag
raisings by other private, non-religious entities. The Court is asked to consider whether the
flagpole displays constitute government speech or private speech in a public forum, and whether
the City’s denial was impermissible religious viewpoint discrimination or content discrimination
under the First Amendment (Shurtleff v. City of Boston).
 Foreign Sovereign Immunities Act (FSIA): The FSIA provides that when a foreign nation is
not immune from jurisdiction in the federal or state courts, it may be held liable in the same
manner and to the same extent as similarly situated private individuals. The Supreme Court is
asked to decide whether a federal court hearing a state law claim under the FSIA must apply the
forum state’s choice-of-law rules to determine what substantive law governs the claims, or
whether the court instead may apply federal common law (Cassirer v. Thyssen-Bornemisza
Collection Foundation).
 Tax: The Internal Revenue Code (IRC) provides a 30-day time limit to file in the Tax Court a
petition for review of a Commissioner of the Internal Revenue Service’s notice of determination.
The Supreme Court is asked to consider whether the IRC’s three-day time limit is jurisdictional
or instead a claim processing rule subject to equitable tolling (Boechler, P.C. v. Commissioner of
Internal Revenue).
Decisions of the U.S. Courts of Appeals
 Banking: The Fifth Circuit deferred to the Office of the Comptroller General’s
interpretation of an ambiguous regulation implementing National Bank Act requirements.
The interpretive letter treats overdraft bank fees as charges for non-interest deposit
account services, rather than as interest subject to usury limitations under the Act
(Johnson v. BOKF National Association).
 Environmental Law: The Resource Conservation and Recovery Act (RCRA) creates a
private right of action against any entity contributing to the handling, storage, treatment,
transportation, or disposal of solid or hazardous waste which “may present an imminent
and substantial endangerment to health or the environment.” A divided Ninth Circuit
panel held that RCRA permitted suit against transporters of solid waste—including a
municipal government whose water-distribution system transported groundwater
contaminated by such waste—regardless of whether the transporter was involved in the
waste’s initial creation or disposal (California River Watch v. City of Vacaville).
 Fair Housing Act (FHA): Sitting en banc, the Ninth Circuit ruled that FHA allowed
those who were directly harmed by the issuance of a discriminatory loan to bring suit
against covered lenders, but not third parties who were indirectly affected by the harm
caused to the loan recipients, even if their injury may have been foreseeable (City of
Oakland v. Wells Fargo & Co.).
 Federal Courts: The federal in forma pauperis statute allows prisoners to bring a civil
action or appeal a judgment in federal court without prepaying filing fees, unless three or
more prior actions or appeals were dismissed on certain enumerated grounds. The Third
Circuit ruled that a “mixed motive dismissal,” where a portion of a prisoner’s action or
appeal was dismissed on enumerated grounds and a portion dismissed on other grounds,
does not count as a “strike” under the statute (Talley v. Wetzel).
 Federal Courts: 28 U.S.C. § 1446 sets forth requirements for a defendant in a civil suit
seeking removal to federal court, including that a notice of removal is filed within 30
days of the defendant’s receipt of the initial pleading or summons (whichever is shorter),

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and any properly served and joined co-defendants also agree to the removal. The Second
Circuit held that a defendant cannot cure a failure to obtain unanimous, timely consent to
removal by obtaining consent after the 30-day period lapses (Taylor v. Mediatronic, Inc.).
 Federal Courts: Under 28 U.S.C. § 1446(b), when it is unclear from an initial pleading
that a civil suit filed in state court is removable to federal court, the defendant’s 30-day
clock to file a notice of removal begins upon receiving “a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case” is
removable. A Ninth Circuit panel diverged from another circuit in holding that oral
deposition testimony does not trigger the 30-day timeline until the defendant receives the
deposition transcript, and joined two other circuits in ruling that the removal clock does
not begin until receiving a “paper” that makes the removal ground “unequivocally clear
and certain” (Dietrich v. The Boeing Company).
 Firearms: Under 18 U.S.C. § 922(g), it is a crime for specified categories of persons to
possess a firearm. A Sixth Circuit panel held that the Sixth Amendment’s Double
Jeopardy Clause bars a defendant from being convicted of two counts under the provision
(here, unlawfully possessing a firearm as a convicted felon and as a domestic violence
misdemeanant) based on the same incident of firearm possession (United States v. Grant).
 Firearms: A rule that went into effect in 2019 specified that “bump stock” devices,
which enable a shooter of a semiautomatic firearm to start a continuous firing cycle with
a single pull of the trigger, fall under a federal statute’s prohibition on machineguns, and
the rule requires bump stock device owners to divest them. A Federal Circuit panel
rejected plaintiffs’ claim seeking compensation for divestment of their bump stock
devices (plaintiffs did not challenge the validity of the rule itself); a panel majority held
that plaintiffs lacked an established property right in the devices given there was a valid
agency implementation of a statutory bar that predated their acquisition of the devices
(McCutchen v. United States).
 Food & Drug: The Orphan Drug Act incentivizes the development of drugs to treat rare
diseases by providing that, once the drug is approved by the Food and Drug
Administration (FDA), the FDA cannot approve another application or issue a license for
“the same drug for the same disease or condition” for a seven-year period. The Eleventh
Circuit held that the FDA contravened the Act by approving an application to treat
pediatric patients with a drug for which another manufacturer received orphan drug
exclusivity to treat the same illness in adult patients (Catalyst Pharmaceuticals, Inc. v.
Becerra).
 Hawaiian Admission Act: A Ninth Circuit panel held that the state of Hawaii had
concurrent jurisdiction over a military base under the Hawaii Admission Act. While the
Act reserved to the United States the power to declare exclusive jurisdiction over areas it
designated as critical, it had not done so here (Lake v. Ohana Military Communities).
 Indian Affairs: The Freedom of Information Act exempts from its disclosure
requirements those records specifically exempted from disclosure by another statute,
including “medical quality assurance records” of the Indian Health Service (IHS) under
the Indian Health Care Improvement Act. A Second Circuit panel held that an IHS report
evaluating the agency’s management and administration did not fall under this exemption
(New York Times v. Department of Health and Human Services).
 Intellectual Property: The Federal Circuit held that a screenwriter was an independent
contractor rather than an employee for Copyright Act purposes, enabling him to reclaim
his copyright ownership in the screenplay from a film production company under the
terms of the Act. In so doing, the court held that the definition of “employee” in copyright

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law is distinct from its usage in labor law, and is grounded in the common law of agency
as interpreted in copyright-context case law (Horror Inc. v. Miller).
 Intellectual Property: The Federal Circuit held that the Patent & Trademark Office
cannot institute an ex parte reexamination proceeding when “nearly identical” inter partes
review petitions were previously denied for raising repetitious “abusive” arguments.
Although the statute permits the denial of a reexamination petition when the question of
patentability is “the same or substantially the same” as a prior petition, this provision
does not apply when the earlier petition was dismissed without reaching the claim’s
merits (In Re: Vivint, Inc.).
 Labor & Employment: Overruling prior precedent, the Second Circuit held that the
United States could not collect back wages owed to an employee under federal laws
governing the H1-B visa program through the Federal Debt Collection Procedures Act,
because those wages were not an amount “owing to the United States” under the statute
(United States v. Bedi).
 Labor & Employment: In a case applying Fair Labor Standards Act regulations to a
dispute over the deduction of meal breaks from an employee’s overtime pay, the Eleventh
Circuit held that once an employee shows that logged work hours are generally
compensable, the employer bears the burden of showing that a carved-out meal period is
bona fide, with the employee completely relieved of duties in that period (Gelber v. Akal
Security, Inc.).
 Medicaid: In reviewing a state agency’s cancellation of plaintiff’s long-term Medicaid
benefits because plaintiff’s resources exceeded the program’s eligibility cap, a Tenth
Circuit panel concluded that the interpretation of an ambiguous regulation defining
“resources” set forth in a Social Security Administration program manual was entitled to
judicial deference (Baker v. Brown).
 Medicaid and Medicare: A 2019 revised rule of the Center of Medicare and Medicaid
Services (CMS) regulates the use of arbitration agreements by long-term care facilities
that participate in the Medicare and Medicaid programs. An Eighth Circuit panel held that
the rule did not contravene Federal Arbitration Act requirements; was premised on a
reasonable interpretation of the Medicare and Medicaid statutes; and was not arbitrary
and capricious. While the rule’s accompanying certification under the Regulatory
Flexibility Act did not comport with that Act’s procedural requirements, the court deemed
this to be harmless error (Northpoint Health Services of Arkansas, LLC v. U.S.
Department of Health & Human Services).
 Terrorism: The Eleventh Circuit dismissed a civil suit filed under the Anti-Terrorism Act
arising from the 2016 Pulse night club shooting. The court ruled the shooting did not
constitute “international terrorism” under the Act, as the domestic shooting was not
accomplished by the traversing of national boundaries and, while a designated foreign
terrorist organization claimed after-the-fact credit, the plaintiffs did not allege the group
actually planned or carried out the attack (Colon v. Twitter).

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Author Information

Michael John Garcia

Section Research Manager

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