Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Jan. 24–Jan. 30, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Jan. 24–Jan. 30, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Jan. 24–Jan. 30, 2022)
January 31, 2022
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 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
Associate Justice Stephen Breyer announced last week that he will retire from active service as a Justice
when the Court begins its summer recess, assuming that his successor has been confirmed by that time. A
CRS Legal Sidebar provides more information about Justice Breyer’s service on the Court. As with prior
Supreme Court vacancies, CRS will provide comprehensive support to Congress as it considers the
nomination to fill Justice Breyer’s seat.
Last week, the Supreme Court issued a decision on the merits in one case:
 Employee Benefits: In an 8-0 decision (Justice Barrett did not take part in the case), the
Supreme Court held that the plaintiffs could proceed with their claims that retirement
plan fiduciaries breached their duties under the Employee Retirement Income Security
Act by paying excessive recordkeeping and investment management fees. The lower
courts held that, despite the high fees paid to some funds, the plan fiduciaries had
fulfilled their duties by offering a broad array of investment options within the plans,
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including lower-fee funds. The Supreme Court vacated and remanded the case, holding
that a fiduciary does not fulfill its duty simply by offering a broad array of plan options; it
must also remove imprudent investments from a plan within a reasonable time. Because
the evaluation of that duty is context-dependent, the Court ordered the lower courts to
reconsider the plaintiffs’ claims (Hughes v. Northwestern University). A CRS Legal
Sidebar provides more detail about this decision.
The Court also issued an emergency order:
 Civil Rights: By a 5-4 vote, the Supreme Court allowed Alabama to proceed with the
scheduled execution of a death-row inmate. Earlier in the week, the Eleventh Circuit had
stayed the execution on the grounds that the state failed to provide a reasonable
accommodation for the inmate’s disability, as required under Americans with Disability
Act, when it did not allow him the option of choosing death by nitrogen hypoxia in lieu
of lethal injection (Hamm v. Reeves).
The Supreme Court granted certiorari in four cases, two of which have been consolidated for oral
argument:
 Civil Procedure: The Court agreed to review a case from the Ninth Circuit concerning
federal-court jurisdiction. The Court is asked to consider whether the Federal Trade
Commission (FTC) Act—which gives federal appellate courts “exclusive” jurisdiction to
“affirm, enforce, modify, or set aside” FTC cease-and-desist orders—impliedly strips
federal district courts of jurisdiction to consider constitutional challenges to the FTC’s
structure and procedures (Axon Enterprise, Inc. v. FTC).
 Education: The Court granted consolidated review of two cases challenging the race-
conscious admission policies of two institutions of higher education. In both, the Court is
asked to reconsider its 2003 decision in Grutter v. Bollinger, which recognized that the
educational benefits flowing from a diverse student body may justify some consideration
of race by a university in student admission decisions. The plaintiffs in one case argue
that the race-conscious admissions policy of the University of North Carolina violates the
Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of
1964 because the public university failed to consider adequately viable race-neutral
alternatives for achieving the school’s diversity goals (Students for Fair Admissions, Inc.
v. University of North Carolina). The plaintiffs in the other case likewise challenge
Harvard College’s race-conscious admissions policy, and additionally contend that
Harvard employs racial balancing that disfavors Asian American applicants. Because
Harvard is a private university, that case turns on the statutory requirements of Title VI,
which federal courts generally interpret coextensively with constitutional prohibitions
applicable to state actors (Students for Fair Admissions Inc. v. President & Fellows of
Harvard College).
 Environmental Law: The Court granted a petition to consider the appropriate standard
for identifying “waters of the United States” under the Clean Water Act. The Court most
recently addressed that question in its 2006 decision in Rapanos v. United States, but that
case did not result in a majority opinion. The petitioners are expected to argue that the
Court should now formally adopt Justice Scalia’s plurality opinion from Rapanos, which
would generally afford the Act a narrower scope than the courts of appeals have since
adopted (Sackett v. EPA).

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Decisions of the U.S. Courts of Appeals
 Civil Procedure: The D.C. Circuit rejected a “de-platforming” claim by a health care
interest group against a Member of Congress. The group alleged that the Member had
written a letter to online platforms such as Google requesting information about their
efforts to stop vaccine-related misinformation, and that those platforms subsequently
deprioritized the group’s information. The D.C. Circuit held that the group lacked
standing to sue the Member, because it had not adequately alleged the necessary
connections between the Member’s letter, the platforms’ actions, and legal injury to the
group. The Court did not reach the separate question of whether the Member’s actions
might be protected under the Speech or Debate Clause of the Constitution (Association of
American Physicians & Surgeons v. Schiff).
 Civil Rights: A divided Ninth Circuit panel affirmed a decision in favor of the University
of Arizona in a suit under Title IX of the Education Amendments of 1972 involving an
alleged assault by a student-athlete against another student off-campus. The majority held
that the university lacked substantial control over the context in which the assault
allegedly occurred, notwithstanding its approval of the student-athlete’s off-campus
housing and payment of such housing through scholarship funds (Brown v. Arizona).
 Commerce: The Third Circuit held that Pennsylvania did not violate the “dormant”
Commerce Clause of the Constitution by executing a subpoena to enforce its usury laws
against an out-of-state title lender. The “dormant” Commerce Clause doctrine recognizes
that states are implicitly limited from regulating interstate commerce that occurs entirely
outside its borders. The court reasoned that, unlike a simple out-of-state sale of goods, an
out-of-state title loan creates a continuing creditor-debtor relationship that may involve
activities within Pennsylvania. It held that Pennsylvania’s strong interest in prohibiting
usury in such relationships outweighed any incidental burden on interstate commerce
(TitleMax of Delaware, Inc. v. Weissman).
 Communications: The Ninth Circuit declined to block enforcement of California’s “net
neutrality law” after concluding that the plaintiffs were unlikely to succeed in their
arguments that federal law preempts the California statute. “Net neutrality” generally
refers to the idea that broadband service providers should neither control how consumers
use their networks nor discriminate among content providers using those networks. In
2018, the Federal Communications Commission (FCC) rescinded its “net neutrality”
rules after reclassifying broadband as an information service under Title I of the
Communications Act, over which the FCC has limited regulatory authority. Agreeing
with the D.C. Circuit, the Ninth Circuit held that, as a result of this decision, the FCC
lacked regulatory authority to adopt “net neutrality” rules or prevent states from adopting
them. It further held that the Communications Act left room for states to regulate
intrastate communications, and that the California law did not intrude in the field of
interstate communications (where the FCC has exclusive authority) or otherwise conflict
with the Communications Act. The Ninth Circuit therefore allowed the California law to
remain in place while the plaintiffs continued their legal challenge to it (ACA Connects v.
Bonata).
 Criminal Law & Procedure: The First Circuit allowed a federal prosecution to proceed
against a large-scale marijuana growing operation in Maine. The defendants argued that
the prosecution was illegal under an appropriations rider—enacted by Congress each year
since 2015—that prohibits the Department of Justice from using federal funds to interfere
with the implementation of state medical marijuana laws. The panel agreed with the

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district court that the prosecution was valid because the operation was a facade for selling
marijuana to unauthorized users (United States v. Bilodeau).
 Criminal Law & Procedure: The First Circuit allowed a district court to enforce a Drug
Enforcement Agency (DEA) subpoena requiring a New Hampshire state employee to turn
over prescription drug records maintained in a state database. The Controlled Substances
Act authorizes the DEA to issue subpoenas to witnesses with information relevant to the
agency’s investigations and authorizes judicial enforcement of such subpoenas against
“any person.” The First Circuit construed the provision to authorize subpoena
enforcement against state officers to obtain state records. The court also held that the
Fourth Amendment does not bar enforcement of the challenged subpoena because
individuals lack a reasonable expectation of privacy in the prescription drug records
stored in the state database (Dep’t of Justice v. Ricco Jonas).
 Criminal Law & Procedure: The Second Circuit upheld the conviction of Joaquin
Archivaldo Guzman Loera, also known as “El Chapo,” for conducting a criminal
enterprise comprising large-scale narcotics violations and a murder conspiracy. The court
of appeals rejected an array of error claims, including constitutional claims under the
Fourth Amendment and Sixth Amendment. Among other points, it held that Mexico had
validly agreed to the prosecution pursuant to its extradition treaty with the United States,
and that the district court had properly handled the possibility of juror misconduct
(United States v. Guzman Loera).
 Criminal Law & Procedure: In affirming a criminal defendant’s conviction under 18
U.S.C. § 2252(a)(2) for knowingly distributing child pornography “using any means or
facility of interstate or foreign commerce,” the Sixth Circuit held that the government
satisfied its burden by showing that the defendant distributed child pornography using the
internet. The court had previously recognized the internet as a “means” of interstate or
foreign commerce, and the panel observed that the government did not need to prove the
actual transfer of child pornography across state lines to sustain a conviction (United
States v. Clark).
 Criminal Law & Procedure: The Ninth Circuit held that, for a criminal defendant to be
culpable under 18 U.S.C. § 1029(a)(3) and (a)(4) for possessing counterfeit or
unauthorized “access devices” (i.e., credit cards) or device-making equipment with the
“intent to defraud,” the government must show the defendant acted with the intent to
deprive a victim of money or property by deception (United States v. Saini).
 Environmental Law: The Fourth Circuit once again vacated federal approvals related to
the construction of the Mountain Valley Pipeline, an interstate natural gas pipeline, in
Virginia and West Virginia. The court held that the U.S. Forest Service and the Bureau of
Land Management violated the National Environmental Policy Act and other statutes by
relying on modeling about sediment and erosion but not real-world data, by approving the
use of a new construction method without fully considering its impacts, and by failing to
apply relevant Forest Service regulations (Wild Virginia v. U.S. Forest Service).
 False Claims Act: The Fourth Circuit affirmed the dismissal of an action brought by a
private party on the government’s behalf under the False Claims Act (FCA) against a
drug manufacturer that allegedly engaged in fraudulent price reporting under the
Medicare Drug Rebate Statute. Like other courts, the Fourth Circuit held that a defendant
does not “knowingly” violate the FCA when its interpretation of the underlying statute is
reasonable and the government has not issued contrary, authoritative guidance (United
States ex rel. Sheldon v. Allergan Sales, LLC).

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 First Amendment (Speech): When it enacted the Paycheck Protection Program in
response to the Coronavirus Disease 2019 pandemic, Congress excluded certain
categories of businesses from the program—including businesses that offer live adult
entertainment. The Seventh Circuit held that this exclusion did not violate the First
Amendment rights of these businesses because it did not suppress their expressive
activities; it only declined to subsidize them (Camelot Banquet Rooms v. U.S. Small
Business Administration).
 Health: The Second Circuit upheld a district court order requiring the Department of
Health and Human Services to create an administrative review process allowing a patient
to appeal a Medicare decision reclassifying him or her from an “inpatient” to an
outpatient receiving “observation services,” a change affecting share of costs to the
patient. The circuit court held that the district court had properly certified a class action
on behalf of affected patients, that those patients have a protected property interest in
Medicare coverage that depends on their classification as inpatients, and that
constitutional due process requires some recourse to challenge a reclassification (Barrows
v. Becerra).
 Labor & Employment: The D.C. Circuit decided in favor of federal employees’ unions
in their dispute with the Federal Labor Relations Authority (FLRA) over “zipper
clauses.” A “zipper clause” may be included in a collective bargaining agreement to
prevent further bargaining for the duration of the agreement. The unions challenged the
FLRA’s announcement that whether to include a zipper clause in a collective bargaining
agreement is a “mandatory” bargaining subject under federal labor law and that the
Federal Services Impasse Panel could therefore impose such a clause if the unions
declined to bargain over it. The D.C. Circuit held that the FLRA’s decision that zipper
clauses are a mandatory subject of collective bargaining was arbitrary and capricious,
concluding that there were several flaws in the agency’s consideration of ambiguous
statutory language (American Federation of Government Employees v. FLRA).
 Public Health: A divided Eighth Circuit panel partially upheld an injunction that blocked
an Iowa state law prohibiting mask requirements in schools. The district court had
completely enjoined the law, ruling that it violated the Americans with Disabilities Act.
On appeal, the panel majority held that mask requirements are reasonable
accommodations required by federal disability law to protect covered persons’ access to
public education. However, it narrowed the district court’s injunction to apply only to
those schools and districts that “encounter” such individuals, holding that Iowa may
enforce its prohibition against mask requirements in other schools (Arc of Iowa v.
Reynolds).

Author Information

Michael John Garcia
David Gunter
Section Research Manager
Section Research Manager

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