Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 29–Dec. 5, 2021)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 29–Dec. 5, 2021)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Nov. 29–Dec. 5, 2021)
December 6, 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 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
No Supreme Court opinions were issued last week, and no new cases were added to the Court’s docket.
Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases where the appellate court’s controlling opinion
recognizes a split among the federal appellate courts on a key legal issue resolved in the opinion.
 Arbitration: Section 3 of the Federal Arbitration Act (FAA) provides that a federal court
“shall” stay a legal action upon request when the court determines the claims at issue may
be arbitrated. The Sixth Circuit reversed a district court’s dismissal of plaintiff’s claims,
instead granting a stay where the record indicated that Section 3 applied. Observing
divergent views by appellate courts on whether district courts retain discretion to dismiss
a case covered by Section 3, the Sixth Circuit held the Section’s use of “shall” generally
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conveyed a mandatory obligation to issue a stay upon request. Still, the court declined to
announce an absolute rule, leaving it to a future case to decide whether a court retains
discretion to dismiss a case covered by Section 3 (Arabian Motors Group W.L.L. v. Ford
Motor Co.).
 *Civil Rights: Title VII of the Civil Rights Act of 1964 protects from retaliation
employees who oppose the discriminatory employment practices it outlaws. Caselaw
recognizes that an employee must base a retaliation claim on an objectively reasonable
belief that the worker is opposing unlawful conduct. However, the circuits differ in how
they assess whether a belief is objectively reasonable. The Tenth Circuit held that this
inquiry must consider what a reasonable employee would believe, and not what a
reasonable expert in employment law would believe (Reznik v. inContact, Inc.).
 Communications: The Hobbs Act (also called the Administrative Orders Review Act)
channels certain legal actions, including pre-enforcement facial challenges to certain
Federal Communications Commission (FCC) orders, to a single circuit court. In a Hobbs
Act proceeding in 2017, the D.C. Circuit invalidated an FCC rule on solicited fax
advertisements, and the FCC thereafter repealed the rule on the belief that the D.C.
Circuit’s ruling had binding, nationwide effect. A divided Second Circuit panel dismissed
a suit urging the court to direct the FCC to reinstate the rule, holding that under the
Hobbs Act’s channeling mechanism, the D.C. Circuit’s ruling had binding effect on any
circuit where the FCC rule’s validity was challenged (Gorss Motels, Inc. v. FCC).
 *Financial Regulation: A decision by the Fifth Circuit identified a circuit split in the
interpretation of the Bank Secrecy Act (BSA), which requires reporting of certain
financial interests in foreign bank accounts and establishes penalties for each violation.
The Ninth Circuit previously held that the failure to file the requisite form was a single
violation, regardless of how many accounts might have been reported on that form. The
Fifth Circuit disagreed, holding that the defendant committed a separate violation of the
BSA for each undisclosed account (United States v. Bittner).
 Firearms: In 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
published a rule providing that bump-stock type devices—which enable a shooter of a
semiautomatic firearm to start a continuous firing cycle with a single pull of the trigger—
fall under the federal statutory prohibition on machineguns. In 2019, a district court in the
Sixth Circuit declined to issue a preliminary injunction halting implementation of the
bump-stock ban while it considered a legal challenge to the rule, concluding the rule was
based on a reasonable interpretation of the governing statute. A three-judge Sixth Circuit
panel disagreed, but the panel’s decision was vacated when the circuit decided to rehear
the case en banc earlier this year. The en banc court evenly divided on whether to affirm
or reverse the lower court, with the tie resulting in the district court’s judgment being
affirmed (Gun Owners of America, Inc. v. Garland).
 Firearms: A divided Ninth Circuit, sitting en banc, rejected a Second Amendment
challenge to California’s criminal prohibition on the possession of large-capacity
magazines. Applying a two-step framework that has been widely adopted by the courts of
appeals in Second Amendment cases, the majority held that the statute was a reasonable
fit for the important government interest of reducing gun violence, as it targets large-
capacity magazines that are used in mass shootings, while interfering only minimally
with the core right of self-defense (Duncan v. Bonta).
 Freedom of Information Act (FOIA): Documents related to the formulation of
government policy are exempt from FOIA’s general disclosure requirements under the
“deliberative process privilege.” A divided Second Circuit panel held that the deliberative

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process privilege extends to internal “messaging records” created by the Environmental
Protection Agency when deciding how to communicate a final agency policy to outside
entities, to the extent those records involved the exercise of a policy-oriented judgment.
The panel also ruled that an agency may invoke the privilege by connecting a record
either to a discrete agency decision or, more broadly, to a specific decisionmaking
process (Natural Resources Defense Council v. EPA).
 FOIA: The D.C. Circuit ordered the Department of Justice (DOJ) to disclose certain
passages of the report prepared by Special Counsel Robert S. Mueller III on Russian
interference in the 2016 presidential election, partially reversing a district court’s decision
protecting those passages. DOJ released a redacted version of the report, claiming some
information in the report was exempt from disclosure under FOIA because it implicated
“personal privacy.” The D.C. Circuit agreed with some of those redactions but ordered
DOJ to disclose certain passages that showed how the Special Counsel interpreted
relevant law and applied it to facts that were already public (Electronic Privacy
Information Center v. U.S. Department of Justice).
 Immigration: An alien convicted of an offense defined as an “aggravated felony” under
the Immigration and Nationality Act (INA), including an offense “relating to the
obstruction of justice” for which the term of imprisonment is at least one year, is subject
to adverse immigration consequences. A divided Fourth Circuit affirmed the Board of
Immigration Appeals’ finding that the petitioner’s accessory-after-the-fact conviction
under Virginia law was an obstruction of justice offense that rendered him removable.
The majority based this decision, in part, upon its conclusion that the phrase “relating to
obstruction of justice” was ambiguous, and that the Board’s interpretation of the phrase
was entitled to deference under the framework set forth in Chevron U.S.A., Inc. v. Natural
Resources Defense Council (Pugin v. Garland).
 Immigration: The en banc Fifth Circuit vacated an earlier three-judge panel decision that
largely allowed Department of Homeland Security (DHS) January 2021 interim
immigration enforcement guidance to go into effect. Texas and Louisiana claimed the
interim policy impermissibly exempts a vast portion of the removable population from
immigration enforcement efforts. The district court preliminarily enjoined the
enforcement guidance, but a three-judge Fifth Circuit panel issued a partial stay of that
injunction. The full court, however, vacated that opinion, allowing the district court’s
injunction to remain in place while the court of appeals considers the case. The injunction
does not address the superseding enforcement guidance issued by DHS that went into
effect in November 2021, but Texas and Louisiana recently amended their complaint to
challenge the lawfulness of the superseding guidance as well (Texas v. United States).
 Immigration: In limited cases, an alien charged under 8 U.S.C. § 1326 with illegally
reentering the United States after having been removed from the country may challenge
the underlying removal order. The Ninth Circuit held that a criminal defendant charged
with illegal reentry could not raise such a challenge, premised on the denial of his asylum
claim during expedited removal proceedings, when he failed to appeal the denial of his
asylum claim administratively (United States v. De La Mora-Cobian).
 *Immigration: Under 8 U.S.C. § 1231(a)(5), if an alien is ordered removed from the
United States and subsequently reenters the country unlawfully, the removal order is
reinstated and “is not subject to being reopened or reviewed.” The Tenth Circuit held that
the Board of Immigration Appeals properly relied on § 1231(a)(5) to dismiss an alien’s
challenge to his reinstated removal order. Adding to a circuit split, the court held that
there is no implicit exception to § 1231(a)(5) that allows for collateral attacks to the

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removal order when it is alleged to have resulted from a gross miscarriage of justice
(Tarango-Delgado v. Garland).
 Labor & Employment: In a Fourth Circuit case, employees of a construction
subcontractor alleged that both the subcontractor and contractor failed to give notice of a
plant closure under the Worker Readjustment and Retraining Notification Act (WARN)
before laying them off. Applying the framework used by the Department of Labor to
determine when an independent contractor should be considered part of the contracting
company for WARN Act purposes, the Fourth Circuit affirmed a judgment in favor of the
defendants, holding that the contractor was not the relevant “employer” under the Act,
and that the subcontractor could not reasonably have known about the closure
(Pennington v. Fluor Corp.).
 Maritime Law: The Limitation of Liability Act of 1851 provides certain vessel owners
with a means of limiting their vessel’s tort liability if they bring a civil action for liability
limitation within six months of receiving notice of the tort claim. The Fifth Circuit
overruled prior circuit precedent in light of intervening Supreme Court decisions, and
held that the six-month window for seeking a limitation on liability under the Act was
nonjurisdictional in nature, meaning it is subject to equitable tolling (Bonvillian Marine
Service, Inc. v. Pellegrin).
 Public Health: The Fifth Circuit allowed a Texas ban on mask mandates to go back into
effect. The governor of Texas prohibited any state or local agency in Texas, including
school districts, from requiring any person to wear a mask or face covering. A district
court enjoined that ban in a suit brought by parents of disabled children in Texas public
schools. The Fifth Circuit stayed the injunction on several grounds, holding that the
plaintiffs may not have standing to sue in federal court; that the Americans with
Disabilities Act and other federal statutes would likely not provide a remedy or preempt
Texas’s prohibition on local mask mandates; and that Texas would be irreparably harmed
if it could not enforce its general ban on mask mandates. A full appeal of the district
court’s injunction will proceed, but as a result of this ruling, the ban will remain in place
while the Fifth Circuit considers that appeal (E.T. v. Paxton).
 Public Health: A divided Ninth Circuit panel declined to enjoin a school’s Coronavirus
Disease 2019 (COVID-19) vaccine mandate while the panel considers a constitutional
challenge to it. The mandate requires COVID-19 vaccination as a condition for in-person
attendance and participation in extracurricular activities. It includes a medical exemption
and a 30-day exemption for certain new enrollees to the school, but does not contain a
religious exemption. (The mandate also initially included a “per se” exemption for
pregnant students, but after the Ninth Circuit issued an injunction pending appeal on the
basis of that exemption, the exemption was removed and the injunction terminated.) A
panel majority held that plaintiffs (a student and her parents opposed to the vaccine on
religious grounds) were unlikely to succeed in their claim that the vaccine mandate
violates the First Amendment’s Free Exercise Clause, both facially and as applied to the
student, because the requirement is facially neutral, generally applicable, and necessary to
advance a compelling state interest. The majority also ruled that the plaintiffs failed to
carry their burden of showing irreparable harm if an injunction was not issued, or that the
public interest weighed in favor of enjoining the mandate (Doe v. San Diego Unified
School District).

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Author Information

Michael John Garcia
David Gunter
Section Research Manager
Section Research Manager

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