Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 15–Nov. 21, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Nov. 15–Nov. 21, 2021)

November 22, 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
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 authors
to subscribe to the CRS Legal Update newsletter and receive regular notifications of new products
published by CRS attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court added one case to its docket:
Arbitration: The Supreme Court granted certiorari in a case from the Eighth Circuit, in
which the Court may consider differences in the courts of appeals’ approach to the
question of when a party waives the right to compel arbitration. The Court may consider
whether the standard for determining if a litigating party has waived its arbitration rights
is the same as used to assess waivers of other contractual rights, or whether a court may
also consider whether the party opposing arbitration will be prejudiced if forced to
arbitrate (Morgan v. Sundance, Inc.).
Decisions of the U.S. Courts of Appeals
Bankruptcy: The Bankruptcy Code’s “automatic stay” provision, 11 U.S.C. § 362(a),
prevents an entity from commencing or continuing judicial or other proceedings that
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could have been filed prior to the debtor’s bankruptcy petition, except in specified cases
or unless the bankruptcy court lifts the stay. The Eleventh Circuit held that this provision
may preclude a party from intervening in a wrongful death civil suit maintained against
the debtor unless the stay is lifted by the bankruptcy court (State Farm Florida Insurance
Co. v. Carapella

Civil Procedure: The McCarran-Ferguson Act generally provides that federal laws
should not “be construed to invalidate, impair, or supersede” state laws regulating the
insurance industry. In an insurance dispute arising under state law, the Sixth Circuit
joined several other circuits in holding that the Act does not “reverse preempt” the federal
diversity jurisdiction statute, which confers jurisdiction on federal courts over state law
disputes where the amount in controversy exceeds $75,000 and no plaintiff shares the
same state of citizenship as a defendant. The court also held that the Act does not
preclude federal appellate courts’ ability to hear interlocutory appeals in insurance-related
lawsuits (William Powell Co. v. National Indemnity Co.).
Civil Rights: The Age Discrimination in Employment Act (ADEA) bars age-based
discrimination against workers more than 40 years of age, with slightly different rules for
federal and nonfederal workers. Affirming the lower court’s dismissal of the plaintiff’s
ADEA challenge to her federal employer’s physical fitness requirements, a divided
Fourth Circuit broke with at least two other circuits and held that the ADEA’s federal-
sector provision, 29 U.S.C. § 633a(a), requires a worker to establish a discriminatory
intent behind a challenged employment practice, regardless of any disparate impact the
practice may have on workers older than 40. The panel majority distinguished the text,
structure, and context of § 633a(a) from the ADEA’s provision for nonfederal workers,
which sometimes allows disparate impact claims. The circuit remanded the case to the
lower court to consider plaintiff’s other, non-ADEA claims (DiCocco v. Garland).
Civil Rights: The Ninth Circuit affirmed a district court’s judgment dismissing various
claims brought by the plaintiff against the Secretary of the Army, including a claim for
payment of a sanctions award imposed by the Equal Employment Opportunity
Commission (EEOC) because of the Army’s violation of discovery obligations during
administrative proceedings. The circuit court held, among other things, that the only
statute plaintiff relied upon to enforce the monetary litigation sanctions award, Section 15
of the ADEA, 29 U.S.C. § 633a, did not provide a necessarily clear waiver of the
government’s sovereign immunity against monetary litigation sanctions (Plaskett v.

Education: A divided Ninth Circuit, sitting en banc, upheld the district court’s dismissal
of plaintiff’s action under the Americans with Disabilities Act. The action was premised
on plaintiff’s school’s failure to provide him with certain services and resources under the
Individuals with Disabilities Education Act (IDEA). The circuit court held that dismissal
was proper because the plaintiff failed to exhaust his administrative remedies under
IDEA. In so doing, the en banc majority reaffirmed its earlier decision that a plaintiff is
not freed from IDEA’s exhaustion requirements simply because the plaintiff’s complaint
seeks money damages not available under IDEA (D.D. v. Los Angeles Unified School

Election Law: The Fourth Circuit affirmed a district court’s rejection of constitutional
challenges to a Maryland statute, which authorized a list of Maryland registered voters to
be provided to an applicant upon attestation that the list would only be used for purposes
“related to the electoral process.” The circuit court held that the attestation requirement
withstood plaintiff’s as-applied and facial challenge under the First Amendment’s Free

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Speech Clause. Employing a balancing test, the court decided that the modest, viewpoint-
neutral burden imposed on those required to attest they would use the list only for
electoral purposes was outweighed by Maryland’s interest in safeguarding the list,
protecting the election system, and shielding registered voters from harassment. The court
also concluded the list’s use limitations were not unconstitutionally vague (Fusaro v.

Environmental Law: The National Marine Fisheries Service issued a rule, pursuant to
the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA),
imposing a seasonal bar on the use of certain lobstering techniques off the Maine coast to
reduce the risk posed to the endangered North Atlantic right whale. The First Circuit
stayed a district court’s preliminary injunction of the rule, allowing it to go into effect
while the circuit court considered the merits of plaintiff’s challenge. The circuit court
concluded that the Service would likely succeed in its argument that the whale
distribution model used in the formulation of the rule was not arbitrary and capricious.
The court also held that leaving the injunction in effect during the litigation would cause
irreparable harm by preventing the Service from undertaking its congressionally
prescribed task of assuring that endangered marine mammals are protected (District 4
Lodge of the Int'l Ass’n v. Raimondo

Environmental Law: The First Circuit upheld a district court’s summary judgment in
favor of the United States in a suit under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA). The United States had sought to recoup
cleanup costs associated with hazardous substances found in groundwater from the
defendant’s facility. The circuit court reaffirmed that, as the owner of the facility, the
defendant was strictly liable for the release of hazardous substances from that facility
under CERCLA § 107(a). The court also held that a covered release of hazardous
substances may include the passive migration of contaminated groundwater into the
surrounding environment. Finally, the Court upheld the remedial action that the United
States chose for the site (United States v. Puerto Rico Indus. Dev. Co.).
Environmental Law: The Forest Service issued the “Roadless Rule” in 2001 generally
prohibiting road construction and timber harvesting in inventoried roadless areas of the
national forest system. After protracted litigation, the Forest Service issued a final rule
exempting the Tongass National Forest, which covers vast portions of Alaska, from the
Roadless Rule in 2020. The D.C. Circuit concluded that Alaska’s challenge to the
Roadless Rule, which focused entirely on the Rule’s application to the Tongass National
Forest, was rendered moot by the 2020 exemption, notwithstanding Alaska’s arguments
that a live dispute remained (Alaska v. U.S. Dep't of Agriculture).
Health: On remand from the Supreme Court, the Eighth Circuit considered a challenge to
provisions in North Dakota law regulating pharmacy benefits managers (PBMs) who
manage prescription-drug benefits on behalf of health insurance plans. The circuit court
largely affirmed the district court’s judgment that several of the challenged provisions
were not preempted by either the Employee Retirement Income Security Act (ERISA) or
Medicare Part D. While much of the court’s analysis turned on the specific provisions at
issue, the court also made broader pronouncements on the preemptive effect of these
federal laws. Among other things, the circuit court decided (1) recent Supreme Court
jurisprudence counseled not invoking a presumption against preemption when
interpreting the express preemption provisions of ERISA and Medicare Part D; and
(2) state laws are preempted as applied to Medicare Part D plans only if they either
(a) are expressly preempted by the federal Medicare Part D statute or regulation on
account of regulating the same subject matter or (b) despite not regulating the same

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subject matter, are impliedly preempted because they frustrate the purpose of a federal
Medicare Part D standard (Pharmaceutical Care Management Ass’n v. Wehbi).
Labor and Employment: A collective bargaining agreement (CBA) between an
employer and union to arbitrate disputes over the terms and conditions of employment is
enforceable in federal court under the Labor Management Relations Act (LMRA). The
Third Circuit held that the LMRA permits a district court to compel joint arbitration
between an employer and two separate labor unions that have their own CBA with the
employer. Siding with the majority of courts in a circuit split, a divided panel further held
that joint arbitration is generally available either before or after a bipartite arbitration
award at issue becomes final. Still, the panel concluded that in the present case, the
district court did not abuse its discretion by denying a motion to compel joint arbitration
made by two, nominally separate companies, because they had not demonstrated a
sufficient nexus between each company’s CBA with the respective union (P&A
Construction Inc. v. Int'l Union of Operating Engineers

Maritime Law: In a suit arising from the extended detention of plaintiff’s shipping
vessel at a U.S. port, the Third Circuit reversed the district court’s ruling that it lacked
subject-matter jurisdiction over the case. The circuit court joined another circuit in
concluding that Congress explicitly waived the government’s sovereign immunity for
monetary damage suits arising under the Act to Prevent Pollution from Ships (APPS),
providing the lower court with jurisdiction over the plaintiff’s APPS-based claims.
Jurisdiction also existed over the plaintiff’s breach of contract claim against the
government, because the surety agreement the government allegedly breached in
detaining the vessel was a maritime contract over which the federal courts could exercise
admiralty jurisdiction (Nederland Shipping Corp. v. United States).
Procurement: The Federal Acquisition Regulation (FAR) generally applies to
acquisitions by executive branch agencies. Part 52.212-4, allows for a termination for
convenience clause in certain government contracts. The Federal Circuit held, among
other things, that FAR 52.212-4 governs the termination of commercial item contracts for
the government’s convenience, but not service contracts like the one at issue in the case
before the court (JKB Solutions & Services, LLC, v. United States).

Author Information

Michael John Garcia
Juria L. Jones
Section Research Manager
Section Research Manager

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