Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Feb. 28–Mar. 6, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Feb. 28–Mar. 6, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Feb. 28–Mar. 6, 2022)
March 7, 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
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Decisions of the Supreme Court
Last week, the Supreme Court issued decisions in four cases for which it heard oral arguments:
 Abortion: In an 8-1 ruling, the Court held that the Sixth Circuit erred in not permitting
the Kentucky attorney general to intervene in a legal challenge to a Kentucky law
restricting abortion access, after other state officials (including the attorney general’s
predecessor) declined to defend the law following adverse rulings (Cameron v. EMW
Women’s Surgical Center, P.S.C.).
 Criminal Law & Procedure: In a 6-3 decision, the Court reinstated the death penalty for
Dzhokhar Tsarnaev, concluding that the First Circuit improperly vacated his capital
sentences for numerous crimes arising from his participation in the 2013 Boston
Marathon bombing (United States v. Tsarnaev).
 National Security: A fractured majority of Justices concluded the United States could
invoke the state secrets privilege—a government privilege that may prevent the
compelled disclosure of state and military secrets—to prevent a Guantanamo detainee
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from obtaining certain information regarding his detention and treatment at a secret
Central Intelligence Agency site in the aftermath of the September 11, 2001, terrorist
attacks (United States v. Zubaydah).
 National Security: In a 9-0 decision, the Court held that a Foreign Intelligence
Surveillance Act provision setting forth a process for review of electronic surveillance
conducted under the Act did not displace the state secrets privilege. The Court did not
reach the question of whether the privilege applied to evidence the government sought to
shield from disclosure in the case before it, and the Court remanded the case for further
proceedings (FBI v. Fazaga).
The Court also granted certiorari in four cases that have been consolidated for oral argument:
 Indian Law: The Court agreed to review cases from the Fifth Circuit involving various
constitutional challenges to the Indian and Child Welfare Act (ICWA). ICWA establishes
minimum federal standards for removal of Indian children from their families, and sets
forth general preferences governing those children’s placement in foster care or adoptive
homes. The Court is asked to consider, among other things, whether ICWA impermissibly
commandeers states to carry out a federal program, and whether the statute’s child
placement preferences impermissibly disfavor non-Indian families (Haaland v. Brackeen;
Cherokee Nation v. Brackeen; Texas v. Haaland; Brackeen v. Haaland).
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,
contributing to a non-uniform application of the law among the circuits.
 Civil Rights: The Sixth Circuit held that a district court improperly dismissed a Title IX
suit against a university, wherein the plaintiff alleged the school was deliberately
indifferent to an instructor’s sexual harassment of her while she was a student. The circuit
court held the lower court erred in applying the stringent standard used to consider
deliberate-indifference claims involving student-to-student harassment. Instead, the
circuit court endorsed a deliberate indifference standard for teacher-to-student harassment
that requires the plaintiff to show (1) the school did not respond reasonably to the
harassment allegation, and (2) the plaintiff thereafter experienced further harassment or
had to take reasonable steps to avoid harassment that deprived the plaintiff of educational
opportunities available to other students (Warner v. University of Toledo).
 *Class Actions: Adding to a circuit split, the Fourth Circuit joined the majority of
appellate courts in holding that the Class Action Fairness Act of 2005 does not require
that attorney fees be based on the value of “coupons” that had been awarded to class
members in lieu of monetary awards. Instead, a court may employ the lodestar method,
calculating the amount of time the attorney could reasonably have been expected to work
and multiplying that amount by a reasonable hourly rate (Cantu-Guerrero v. Lumber
Liquidators, Inc.).
 *Criminal Law & Procedure: A divided Fifth Circuit, sitting en banc, affirmed a
criminal defendant’s sentence under the federal aggravated identity theft statute, 18
U.S.C. § 1028A, based on the defendant overbilling Medicaid by falsifying the scope of
services provided to a patient. The en banc court agreed with an earlier three-judge circuit
panel’s ruling that the defendant’s activities fell under the statute’s prohibition on the
“use[], without lawful authority” of another person’s means of identification to commit
certain enumerated offenses, including offenses related to Medicaid fraud. Furthering a

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circuit split, the Fifth Circuit held that § 1028A applied to the misuse of another’s identity
even if it did not involve an attempt to impersonate the person whose means of
identification was misused or an attempt to act on that person’s behalf (United States v.
Dubin).
 Environmental Law: The Ninth Circuit upheld a U.S. Fish and Wildlife Service
program designed to remove invasive barrel owls lethally from certain habitats they share
with northern spotted owls, a threatened species under the Endangered Species Act
(ESA). The panel concluded that even if the proposed removal of barrel owls might
incidentally harm northern spotted owls and their habitat, the Service had shown that the
proposed action would still produce a “net conservation benefit,” consistent with ESA
implementing regulations, by providing the agency with information to improve
protection of the northern spotted owl (Friends of Animals v. U.S. Fish & Wildlife
Service).
 *Federal Courts: Splitting with the Second Circuit, the First Circuit held that federal
courts lack inherent authority to order the release of sealed grand jury records based on
historical interest in those records, absent a need to ensure the fair administration of
justice in a legal proceeding. The First Circuit therefore reversed a district court order that
instructed the disclosure to a historian of 1971 grand jury materials related to the
“Pentagon Papers” concerning the Vietnam conflict (In re: Petition for Order Directing
Release of Records).
 Immigration: A divided First Circuit upheld the Board of Immigration Appeals’
determination that the petitioner’s state conviction was for “an offense relating to
obstruction of justice” rendering him removable under the Immigration and Nationality
Act (INA). The majority held that the INA did not unambiguously require that an
individual’s crime be related to a pending or ongoing investigation or judicial
proceeding. The majority deferred to the BIA’s interpretation of “an offense relating to
obstruction of justice” to cover additional crimes where the offender seeks to interfere
with a reasonably foreseeable investigation or proceeding (Silva v. Garland).
 Immigration: The D.C. Circuit held that immigration authorities could rely on a Centers
for Disease Control and Prevention order to expel rapidly certain aliens arriving at the
U.S.-Mexico border, but the government could not transfer those persons to countries
where they would likely face torture or persecution. The court remanded the case for
further proceedings (Huisha-Huisha v. Mayorkas).
 Religion: The Fifth Circuit declined the government’s request for a partial stay pending
appeal of a district court’s preliminary injunction blocking the U.S. Navy from enforcing
COVID-19 vaccination requirements against several special warfare personnel. The Navy
denied the plaintiffs’ requests for religious-based exemptions to these requirements, and
plaintiffs alleged the Navy’s COVID-19 vaccine policy on its face and as applied
specifically to the plaintiffs violated the First Amendment’s Free Exercise Clause and the
Religious Freedom and Restoration Act. In a per curiam opinion, the circuit court agreed
that plaintiffs raised justiciable claims, the Navy had not shown a compelling interest in
denying religious accommodations to each plaintiff, and the Navy failed to show the
injunction caused irreparable harm. The court described the preliminary injunction as
allowing the Navy to make deployment and other decisions based on neutral factors
while preventing it from taking adverse action against the plaintiffs due to COVID-19
vaccination noncompliance (U.S. Navy SEALS 1-26 v. Biden).
 Speech: The Ninth Circuit affirmed a district court’s dismissal of Twitter’s First
Amendment retaliation suit against the Texas attorney general. Twitter alleged that the

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 attorney general’s demand that Twitter produce documents relating to its content
moderation discussions was done in response to the company banning former President
Donald Trump from its platform. The panel agreed with the district court that the case
was not prudentially ripe for consideration because the attorney general had not yet made
an allegation of wrongdoing against Twitter; the facts of the case were not yet developed;
Twitter was not legally compelled to comply with the information demand; and the
company could challenge the information demand in Texas state court if it was enforced
(Twitter, Inc. v. Paxton).
 Tax: The Sixth Circuit set aside an Internal Revenue Service (IRS) rule requiring the
reporting of transactions involving cash-value life insurance policies on the grounds that
the agency issued the rule without following the Administrative Procedure Act’s notice-
and-comment requirements (Mann Construction, Inc. v. United States).
 Tax: A divided Ninth Circuit concluded that a bankrupt couple was entitled to seek a
mortgage interest deduction from the IRS following their mortgage lender’s short sale of
their home to extinguish their nonrecourse debt (Nguyen v. United States).
 Torts: A divided Ninth Circuit panel held that a district court improperly dismissed a
federal prisoner’s monetary suit against a correctional officer for violating the prisoner’s
Eighth Amendment rights. The suit is premised on the Supreme Court’s recognition in
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics of 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. While the Supreme Court has
limited the availability of a Bivens remedy to a narrow set of circumstances, the Ninth
Circuit panel majority believed this case—involving a suit against a correctional officer
for allegedly placing a bounty for other prisoners to assault the plaintiff—represented
only a modest expansion from previously recognized Bivens claims, and no special
factors counseled against recognition in this circumstance (Hoffman v. Preston).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD

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