Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 22–Nov. 28, 2021)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 22–Nov. 28, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Nov. 22–Nov. 28, 2021)
November 29, 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
Last week, the Supreme Court issued its first decision in a case argued this term:
 Environmental Law: In a 9-0 decision, the Supreme Court dismissed Mississippi’s
complaint against Tennessee in a dispute over an interstate underground aquifer that
supplies water to the Memphis metropolitan area. Sustaining the decision of a special
master, the Court held that the groundwater from the aquifer was subject to equitable
apportionment between the states. In doing so, the Court extended to interstate aquifers
the rule traditionally applied to interstate surface waters (Mississippi v. Tennessee).
The Court also added a new case to its docket:
 Civil Procedure: The Supreme Court granted certiorari in a case from the Fourth Circuit
involving North Carolina state legislators’ attempt to intervene in a lawsuit to defend the
state’s voter-identification law, which was already being defended by the state’s attorney
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general. (North Carolina law recognizes the legislators as state agents for purposes of
defending challenged state statutes.) The Court is asked to review the standards and
presumptions used by federal courts to consider a motion of intervention as of right by a
state agent when a state official is already a defendant in the case (Berger v. North
Carolina State Conference of the NAACP).
Decisions of the U.S. Courts of Appeals
 Civil Rights: To sustain an employment discrimination claim under the Americans with
Disabilities Act or Age Discrimination in Employment Act, a worker generally must
show, among other things, that his or her employer imposed an adverse employment
action. The Third Circuit joined other circuits in holding that a termination notice
constitutes an adverse action, even if the employer gives the worker time to find another
position in the company, and regardless of whether that worker obtains another position
(Fowler v. AT&T, Inc.).
 Immigration: Nonpermanent resident aliens subject to removal from the United States
may be eligible for cancellation of removal if, among other things, they have been
physically present in the country continuously for at least 10 years. The “stop-time” rule
in 8 U.S.C. § 1229b(b)(1)(A) provides that the accrual of a period of continuous physical
presence ends once an alien is served a Notice to Appear (NTA) initiating removal
proceedings, but the Supreme Court has held that this rule is not triggered if an NTA does
not specify the time and place of the initial proceeding. Joining the Seventh Circuit in
issuing a precedential decision on the matter, the Second Circuit held that the stop-time
rule exception for deficient NTAs does not retroactively apply to Orders to Show Cause,
the pre-1997 charging documents that were the precursor to NTAs (Jiang v. Garland).
 Criminal Law & Procedure: 18 U.S.C. § 1001 generally outlaws materially false
statements in matters within the jurisdiction of any branch of the federal government. In a
case prompted by the defendant’s attempt to influence a lawsuit against entertainer Bill
Cosby, the Third Circuit reversed a criminal defendant’s convictions under § 1001 and
related statutes, and remanded to the district court with instructions to acquit. The
defendant, who became fixated with the Cosby case, impersonated the plaintiff’s attorney
to file an exhibit intended to discredit the plaintiff, but his fraudulent filing was soon
discovered and struck from the docket. (Because the defendant was not an actual party to
the proceeding, 18 U.S.C. § 1001(b)’s exception from liability for false statements made
by parties to judicial proceedings was not at issue.) The circuit court held that the
government failed to show that defendant’s fraudulent filing satisfied the materiality
element necessary to sustain a conviction under § 1001, because no evidence was
presented that the filing could have influenced a pertinent decision by the judge (United
States v. Johnson).

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 Religion: Under the Religious Freedom Restoration Act (RFRA), when government
action substantially burdens a person’s religious exercise, the action is valid only if the
government shows the burden is (1) in furtherance of a compelling governmental interest
and (2) the least restrictive means of furthering that interest. The Eleventh Circuit
affirmed the convictions and sentences of three criminal defendants who unlawfully
entered a Navy submarine base and defaced property as part of their religiously
motivated opposition to nuclear weapons. The defendants claimed their prosecutions
violated RFRA. The circuit court held, among other things, that the defendants did not
offer a less restrictive alternative that would have accommodated their religious exercise
while still protecting the government’s compelling national security interest in uniformly
barring persons from unlawfully entering a military base and damaging base assets
(United States v. Grady).

Author Information

Michael John Garcia

Section Research Manager

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