Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Oct. 11–Oct. 17, 2021)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Oct. 11–Oct. 17, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Oct. 11–Oct. 17, 2021)
October 18, 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
On October 12, the Supreme Court issued its second Orders List of the October 2021 term. The Court
granted certiorari in several cases to vacate circuit court decisions and remand them for reconsideration in
light of intervening Supreme Court decisions. The Court also granted certiorari and vacated a D.C. Circuit
decision that held the House of Representatives had standing to challenge the Trump Administration’s
invocation of statutory authorities to transfer or reprioritize appropriated funds for barrier construction
along the U.S.-Mexico border, a practice the Biden Administration halted. The Supreme Court remanded
the case with instructions for the circuit court to dismiss the case as moot (Yellen v. House of
Representatives).
Decisions of the U.S. Courts of Appeals
 Abortion: A divided Fifth Circuit panel granted emergency motions to stay a district
court’s preliminary injunction against the State of Texas in a suit brought by the United
States, seeking to bar enforcement of a state law that generally bans physicians from
performing an abortion once a fetal heartbeat is detected. (As noted in last week’s
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Congressional Court Watcher Sidebar, the Fifth Circuit already issued a temporary
administrative stay of the injunction while it considered these motions.) The challenged
law remains in effect during the appeal. The one-page order explains that the stay was
granted “for reasons stated in Whole Women’s Health v. Jackson,” a separate pre-
enforcement challenge in which the Fifth Circuit held that state officials and judges were
not subject to suit in federal court to prevent enforcement of the law, which is enforced
exclusively through private civil actions against abortion providers (United States v.
Texas).
 Bankruptcy: Section 523(a)(1)(B) of the Bankruptcy Code provides that a relevant tax
debt cannot be discharged from bankruptcy proceedings if the taxpayer failed to file a
required “return, or equivalent report or notice.” The Ninth Circuit concluded that, where
a state law requires a taxpayer to notify the state tax board when Internal Revenue
Service changes the taxpayer’s federal income tax liability, that state notification is an
“equivalent report” under Section 523(a)(1)(B) that must be filed for the tax debt to be
discharged in bankruptcy proceedings (In re Berkovich).
 Civil Forfeiture: The Eleventh Circuit recognized that foreign nationals lack a
constitutional right to enter the United States for purposes of attending a civil forfeiture
trial involving their property. The case involved the forfeiture of funds accrued as part of
an immigration visa scam by five Chinese nationals who were unable to enter the United
States but had counsel representing them throughout the proceedings (United States v.
Approximately $299,873.70 Seized from a Bank of America Account).
 Civil Rights: The D.C. Circuit upheld the U.S. Capitol Police’s disciplinary actions
against an employee for, among other things, leaking to the press a picture of an
unattended Capitol Police firearm in the restroom of a restricted area of the Capitol
Visitor Center. In addition to rejecting plaintiff’s sex discrimination and retaliation
claims, the circuit court also affirmed the lower court’s judgment against plaintiff’s First
Amendment retaliation claim. The panel concluded that plaintiff’s interest as a public
employee in commenting on matters of public concern was outweighed by the Capitol
Police’s interest in disciplining plaintiff for violating the department’s media policy,
interfering with its regular operations, damaging trust among department employees, and
impairing plaintiff’s ability to serve effectively as a supervisor (Breiterman v. U.S.
Capitol Police).
 Criminal Law & Procedure: The Seventh Circuit held that the standard used to review a
district court’s initial decision on whether to detain or release a pretrial criminal
defendant under 18 U.S.C. § 3142 also applies to appellate review of a district court’s
decision to revoke a defendant’s pretrial release under 18 U.S.C. § 3148 (United States v.
Wilks).
 Housing: Federal statute and regulation provide the Department of Housing and Urban
Development (HUD) with a range of enforcement options if a “Section 8” landlord fails
to take remedial action after being notified by the agency of deficiencies in the housing
conditions of low-income tenants for whom HUD provides rental assistance. A divided
Fifth Circuit panel construed a long-standing agency regulation, 24 C.F.R. § 886.323(e),
as providing, in the event these enforcement options are available, HUD is also
unconditionally required to provide rehousing assistance to a Section 8 beneficiary who
requests such assistance (Hawkins v. HUD).
 Immigration: An alien convicted of an offense defined as an “aggravated felony” under
the Immigration and Nationality Act (INA) is subject to adverse immigration
consequences. The INA’s definition lists specific offenses as well as several broad

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categories of crimes, and includes some misdemeanors as well as actual felonies (i.e.,
crimes punishable by at least a year and a day of imprisonment). In an appendix to an
opinion in which it concluded that petitioners’ criminal offenses fell under the
“aggravated felony” definition, a Second Circuit panel expressed concern with the
“ambiguity” of the “aggravated felony” definition, which frequently requires courts to
closely examine the elements of a federal, state, or foreign offense to determine whether
it meets the definition. The panel recommended that Congress consider replacing the
current definition with a bright-line definition that includes any offense for which the
sentence imposed exceeds a specified length, with the appropriate sentence length to be
determined by Congress (Chery v. Garland).
 Intellectual Property: In a civil action under 35 U.S.C. § 145 seeking a patent award
after an adverse determination by the Patent & Trademark Office (PTO), “[a]ll the
expenses of the proceeding shall be paid by the applicant.” In a modified opinion, the
Federal Circuit held that § 145 does not require an applicant to pay the PTO’s expert
witness fees because the statute lacks the specificity to overcome the judicial presumption
against interpreting a statute to allow fee-shifting (Hyatt v. Hirschfeld).
 Labor & Employment: The Fair Labor Standards Act generally requires that employers
pay non-exempt employees for overtime hours at one-and-a-half times the regular rate.
However, Department of Labor regulations set forth a “fluctuating workweek method”
for calculating overtime pay for an employee who is provided a fixed salary yet works
irregular hours, so that the employer needs only to pay the employee’s overtime hours at
one half of the employee’s regular rate of pay. The Eleventh Circuit joined another circuit
in concluding that a company’s bonus payment to an employee on top of his or her fixed
salary does not preclude the employer from using the “fluctuating workweek method” to
calculate overtime pay (Hernandez v. Plastipak Packaging, Inc.).
 Religion: The Freedom of Access to Clinic Entrances Act (FCEA) bars persons from
intentionally injuring, intimidating, or interfering with another’s religious exercise at a
“place of religious worship.” The Second Circuit construed “place of religious worship”
to cover places that religious adherents collectively recognize, or religious leadership
designate as, locations primarily used to gather for or hold religious worship activities—
regardless of whether those locations are fixed or movable, enduring or temporary,
structured or unenclosed. Because the court concluded that FCEA did not cover a street
table used by plaintiffs, as the table was not primarily used for religious worship, a panel
majority declined to consider whether FCEA was a constitutional exercise of Congress’s
Commerce Clause power (a concurring panelist believed the court should have reached
the issue and ruled the FCEA unconstitutional) (Zhang Jingrong v. Chinese Anti-Cult
World Alliance, Inc.).

Author Information

Michael John Garcia

Section Research Manager

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