Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 1–Nov. 7, 2021)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 1–Nov. 7, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Nov. 1–Nov. 7, 2021)
November 8, 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 the 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 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 four cases (two that are consolidated) to the term’s docket:
 Criminal Law & Procedure: Federal drug laws make it a crime to distribute controlled
substances, but regulations exempt prescriptions for controlled substances when done
“for a legitimate medical purpose by an individual practitioner acting in the usual course
of his professional practice.” The Supreme Court granted certiorari in two cases from the
Tenth and Eleventh Circuits involving physicians convicted for issuing prescriptions for
opioids. A key issue is whether a defense exists for a physician who honestly, but
mistakenly, believed the issued prescriptions were done in the usual course of
professional medical practice and, if so, whether the defendants’ belief must be
objectively reasonable (Kahn v. United States; Ruan v. United States).
 Health: The Supreme Court agreed to review a case from the Sixth Circuit on whether a
health plan unlawfully discriminates against persons with end-stage renal disease, in
Congressional Research Service
https://crsreports.congress.gov
LSB10656
CRS Legal Sidebar

Prepared for Members and
Committees of Congress

Congressional Research Service
2
violation of assorted provisions of the Medicare Secondary Payer Act and the Employee
Retirement Income Security Act, by uniformly reimbursing kidney dialysis for plan
participants (a service used disproportionately, but not exclusively, by persons with end-
stage renal disease) at notably lower rates than many other medical treatments (Marietta
Memorial Hospital Employee Health Benefit Plan v. Davita Inc.).
 Torts: The Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics recognized an implied cause of action for persons seeking money damages
against a federal agent for a constitutional violation, even in the absence of an authorizing
statute. In the years following, courts have recognized viable Bivens claims in a very
narrow set of circumstances. Granting certiorari in a case from the Ninth Circuit, the
Court has been asked whether a Bivens claim may be raised for Fourth Amendment
violations by agents engaged in immigration enforcement functions, and whether Bivens
allows for First Amendment retaliation claims. The Court declined petitioner’s invitation
to reconsider Bivens itself (Egbert v. Boule).
Decisions of the U.S. Courts of Appeals
 Arbitration: The Federal Arbitration Act (FAA) permits parties to contractually agree to
submit future disputes to arbitration and, in so doing, forfeit their rights to bring suit over
matters covered by the arbitration agreement. Section 1 of the FAA, 9 U.S.C. § 1,
provides that the Act does not apply to contracts of seamen, railroad employees, and
transportation workers who are “engaged in foreign or interstate commerce.” The First
Circuit concluded that Massachusetts-based Lyft drivers did not fall under FAA § 1’s
exception, and were therefore subject to arbitration with the rideshare company on
account of an agreement signed with Lyft. The court reasoned that the exception for
transportation workers in § 1 should be construed to cover persons whose work is of a
similar nature as other enumerated categories (i.e., railroad workers and seamen); that is,
those whose work is primarily devoted to movement across state boundaries. The
plaintiffs’ occasional transport of passengers across state lines, or to or from an
international airport, was therefore insufficient to fall under § 1 (Cunningham v. Lyft,
Inc.).
 Bankruptcy: Under 11 U.S.C. § 363(m), a reviewing court may not undo a completed
sale of a bankruptcy estate’s property to a good-faith purchaser when that sale was
authorized by a bankruptcy court, unless the sale and authorization “were stayed pending
appeal.” In concluding that the debtors’ claims were rendered statutorily moot, an
Eleventh Circuit panel majority held that § 363(m) precluded appeals of any sales
authorized by the bankruptcy court, regardless of whether those sales were properly
authorized under the Bankruptcy Code. The full panel did, however, conclude that it
retained jurisdiction to assess whether a purchase was made in good faith. While the
Code does not define a “good faith” purchase under § 363(m), the panel described it as a
purchase free from fraud and misconduct, for value, and without knowledge of any
adverse claim (Reynolds v. ServisFirst Bank).
 Business: Section 13(b) of the Federal Trade Commission Act (FTCA), 15 U.S.C.
§ 53(b), authorizes the Federal Trade Commission (FTC) to seek a temporary restraining
order or preliminary injunction (as well as a permanent injunction in some circumstances)
against those who the agency believes are violating or about to violate any provision of
law that the FTC enforces. Earlier this year, the Supreme Court ruled in AMG Capital
Management, LLC v. FTC that § 53(b) does not permit the FTC to seek equitable
monetary relief. The Eleventh Circuit recognized that this decision overruled prior circuit

Congressional Research Service
3
precedent, and vacated portions of a district court preliminary injunction inconsistent
with that decision. Separately, the circuit court concluded that the appellants could be
found responsible under the FTCA for each other’s actions under the common enterprise
doctrine, and identified several factors for use in determining whether a common
enterprise exists, such as whether the entities operated under common control, shared
office space and personnel, commingled funds, and coordinated advertising (FTC v. On
Point Capital Partners LLC).
 Criminal Law & Procedure: A “federal crime of terrorism” is defined by 18 U.S.C.
§ 2332b(g)(5) to include several enumerated offenses, when “calculated to influence or
affect the conduct of government by intimidation or coercion, or to retaliate against
government conduct.” A conviction that meets this definition is subject to enhanced
penalties. In reviewing a defendant’s sentencing enhancement, the Eleventh Circuit,
among other things, joined other circuits in construing the term “calculated” in the
“federal crime of terrorism” definition to impose an intent requirement on the
commission of offenses listed in the definition. The court distinguished this requirement
from a showing of motive, holding that the government was required to show the
defendant’s offense was planned to influence, affect, or retaliate against government
conduct, regardless of what the personal motives behind the defendant’s plans might have
been (United States v. Arcila Ramirez).
 Government Processes: U.S. Customs and Border Protection may issue an
administrative summons in investigations under 19 U.S.C. § 1509 for the production of
records or the giving of testimony related to those records. The Ninth Circuit held that §
1509’s command that the government give “reasonable notice” when issuing a summons
for testimony means that the summoned person be given adequate time to arrange to
attend the interview. It does not require that the recipient be given reasonable particularity
about the questions the agency intends to ask (United States v. Tan).
 Immigration: Aliens convicted of crimes involving moral turpitude (CIMT) may face
various immigration consequences, including removal from the United States. There is no
statutory definition of CIMT. CIMT has been interpreted in administrative and judicial
caselaw to cover crimes that involve reprehensible conduct and a culpable mental state.
Denying a petition from an alien found removable on account of CIMT convictions, the
Fourth Circuit held that the CIMT definition was not unconstitutionally vague. The court
cited binding Supreme Court precedent that recognized that the ordinary understanding of
CIMT provided persons with sufficient notice of covered conduct, and the circuit court
rejected petitioner’s argument that intervening Supreme Court decisions cast doubt on
that decision. The circuit court also concluded that provisions of immigration law
addressing CIMT did not run afoul of the nondelegation doctrine, as the meaning of
“moral turpitude” was at least as clear as other delegations of authority permissibly made
by Congress to the Executive and provided a sufficiently clear intelligible principle to
circumscribe executive discretion (Granados v. Garland).
 Immigration: A person sponsored by U.S. family members to immigrate to the United
States is treated as presumptively likely to become a “public charge.” Sponsors can
overcome this ground of inadmissibility by executing an affidavit of support, pledging to
support the immigrant at an annual income of not less than 125% of the federal poverty
line. The Eleventh Circuit joined at least two other circuits in recognizing that the
governing statute, regulations, and affidavit set forth the exclusive grounds for which a
sponsor may terminate support. Here, the court held that the sponsors could not rely on
equitable defenses to excuse their obligation to support a family member criminally

Congressional Research Service
4
charged with domestic abuse and other crimes; such support was required until the alien
was convicted and thereafter removed from the United States (Belevich v. Thomas).
 Immigration: Nonpermanent resident aliens subject to removal from the United States
may be eligible for cancellation of removal if they have been continuously present in the
country for at least 10 years. In 2018, the Supreme Court held in Pereira v. Sessions that a
defective notice to appear at removal proceedings does not trigger the “stop-time” rule of
8 U.S.C. § 1229b(b)(1)(A), which provides that the accrual of a period of continuous
presence ends once an alien is served a notice to appear or commits specified crimes. The
Ninth Circuit held that although petitioner received a final order of removal, the stop-time
rule was not triggered because his notice to appear was defective, meaning that he
remained eligible for cancellation of removal (Cantor v. Garland).
 Immigration: The Immigration and Nationality Act (INA) authorizes the issuance of “L-
1 visas” that enable multinational companies to transfer noncitizens employed abroad in a
“managerial capacity” or “executive capacity” to the company’s U.S. office.
Implementing regulations establish requirements for L-1 visa petitions for new U.S.
offices. The Eleventh Circuit upheld the denial of a new-office L-1 visa petition by U.S.
Citizen and Immigration Services (USCIS). The court held that USCIS correctly
interpreted the INA to require that an employee working in an “executive capacity”
exercise control over a subordinate level of managerial staff, and the agency did not act
arbitrarily and capriciously when it determined that the employee’s duties did not satisfy
this criterion (VHV Jewelers, LLC v. Wolf).
 Indian Law: A divided Ninth Circuit panel held that tribal sovereign immunity did not
apply in a federal lawsuit brought by a company against tribal officials (including a tribal
judge who initially presided over a tribal court case between the company and a tribe),
because the company sought money damages from the defendants in their personal,
rather than official, capacities on account of their allegedly tortious conduct. Because the
defendants were being sued in their personal capacities, the panel majority concluded it
made no difference for tribal sovereign immunity purposes that some of the alleged
tortious conduct occurred in a tribal court proceeding. Still, the court observed that the
defendants might avail themselves of personal immunity defenses, and the tribal judge
enjoyed absolute judicial immunity (Acres Bonusing, Inc. v. Martson).
 Labor & Employment: A Federal Railroad Safety Act provision, 49 U.S.C.
§ 20109(b)(1)(A), bars railroads from taking retaliatory action against employees for
“reporting, in good faith, a hazardous safety or security condition.” The Third Circuit
held that a report covered by this provision need not be objectively reasonable, but only
be made honestly without an intent to defraud (Monohon v. BNSF Railway Co.).
 Labor & Employment: On November 5, 2021, the Occupational Safety and Health
Administration (OSHA) published an emergency temporary standard (ETS) that directs
employers with 100 or more workers to adopt a Coronavirus Disease 2019 (COVID-19)
vaccination policy. The policy generally requires employees to either be vaccinated or, in
the alternative, undergo regular weekly COVID-19 testing and wear masks at work.
Immediately following the rule’s publication, suits were filed in multiple circuit courts of
appeals by several states, covered employers, and other entities challenging the ETS.
(Under 29 U.S.C. § 655, pre-enforcement challenges to an ETS are filed with the circuit’s
court of appeals, rather than in district court.) A Fifth Circuit panel granted petitioners’
emergency motion to stay enforcement of the ETS pending consideration of petitioners’
motion for a permanent injunction. The United States is instructed to respond to the
permanent injunction motion by 5:00 p.m. on Monday, November 8 (BST Holdings, LLC

Congressional Research Service
5
v. OSHA). Under 28 U.S.C. § 2112, the challenges brought in the Fifth Circuit and other
circuit courts will be consolidated before a single court of appeals, chosen through a
random selection process by the U.S. Judicial Panel on Multidistrict Litigation among
those circuits from which a petition for review has been filed. The selected court would,
in turn, have the power to modify, revoke, or extend any stay issued by the Fifth Circuit
or other circuit court that had considered a challenge to the ETS.
 Privacy: Federal law, 42 U.S.C. § 290dd-2, provides for the confidentiality of records of
persons receiving substance abuse treatment, subject to limited exceptions, and those
records may not be used to investigate or prosecute a patient except as authorized by
court order. Joining at least two other circuits, the Second Circuit held that § 290dd-2
does not confer patients with a personal right to confidentiality that is enforceable under
42 U.S.C. § 1983, which generally allows suits against state officials for deprivations of
rights secured by the Constitution or federal statute (Schlosser v. Kwak).
 Public Benefits: Social Security Administration (SSA) regulations set forth a
multifaceted process for considering a claim for Social Security benefits on the basis of
disability. To determine a claimant’s eligibility, SSA regulations provide for the use of
grids to help assess a claimant’s ability to find work, comparing the claimant to persons
who share similar characteristics relevant to employability. The regulations instruct that
the age-based grid not be applied mechanically in a “borderline” situation where a
claimant is a few weeks or months away from the older-age tier. The Eleventh Circuit
recognized that the regulation bars SSA from relying solely on the age-based grids in
making a disability determination in a borderline situation (Pupo v. Commissioner, SSA).
 Public Health: The First Circuit considered two challenges to New York’s emergency
rule that certain health care workers be vaccinated against Coronavirus Disease 2019
(COVID-19), a requirement subject to limited exemptions for medical but not religious
reasons. The circuit panel issued a per curiam opinion holding that, based on the present
record, plaintiffs were unlikely to succeed on their claim that the vaccination requirement
violates the First Amendment’s Free Exercise Clause because the requirement is facially
neutral, generally applicable, and necessary to advance a compelling state interest. The
court also held that plaintiffs were unlikely to succeed in their claim that the emergency
rule was preempted by Title VII of the Civil Rights Act, or in their arguments that the rule
infringed on privacy, medical freedom, and bodily autonomy rights under the Fourteenth
Amendment. The circuit court affirmed one district court’s denial of a preliminary
injunction to the rule and vacated another lower court’s preliminary injunction in the
related challenge (We The Patriots USA, Inc. v. Hochul; Dr. A v. Hochul).

Congressional Research Service
6
 Religion: The Religious Land Use and Institutionalized Persons Act (RLUIPA), among
other things, bars state and local governments from imposing or implementing a land use
regulation (defined as a “zoning or landmarking law” or application of such law that
limits the use or development of land) in a way that substantially burdens religious
exercise, unless the government can demonstrate that the regulation furthers a compelling
government interest and is the least restrictive means of furthering that interest. The
Fourth Circuit upheld a district court’s judgment in favor of a religious congregation’s
RLUIPA claim against a Maryland county that denied the congregation’s application for a
legislative amendment to the county’s water and sewer plan. The denial prevented the
congregation from building a church at a desired location. The court concluded that
federal, not state law controlled the assessment of whether the application denial was a
land use regulation under RLUIPA. Considering various factors, including RLUIPA’s
direction that its provisions be construed in broad favor of religious exercise, the court
held that the application denial was covered by RLUIPA. The court further held that
based on the evidentiary record, the lower court did not abuse its discretion in concluding
that the county’s application denial violated RLUIPA (Redeemed Christian Church v.
Prince George’s County, Maryland).

Author Information

Michael John Garcia

Section Research Manager

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10656 · VERSION 1 · NEW