Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (April 25–May 1, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (April 25–May 1, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(April 25–May 1, 2022)
May 2, 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 two cases for which it heard oral arguments:
 Civil Rights: In a 6-3 decision, the Court held that emotional distress damages are not
recoverable in private suits alleging discrimination under the Rehabilitation Act of 1973
or the Affordable Care Act (Cummings v. Premier Rehab Keller, PLLC).
 Transportation: An evenly divided 4-4 Court (with Justice Amy Coney Barret recused)
affirmed the Seventh Circuit’s judgment that a locomotive is in “use” on a railroad line
for purposes of the Locomotive Inspection Act and its implementing safety regulations
when the train is stationary and in need of service (LeDure v. Union Pacific Railroad
Co.).
The Supreme Court also granted certiorari to review two cases:
 Civil Rights: The Court agreed to hear a case from the Fifth Circuit in which it is asked
whether the statute of limitations to bring a claim under 42 U.S.C. § 1983 seeking
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deoxyribonucleic acid (DNA) testing of crime-scene evidence starts once the state trial
court denies the DNA testing, or only after all state-court actions, including appeals, are
completed (Reed v. Goertz).
 Civil Procedure: The Court agreed to review a case from the Pennsylvania Supreme
Court in which it is asked to consider whether the Fourteenth Amendment’s Due Process
Clause bars a state from requiring an out-of-state corporation to consent to personal
jurisdiction in the state’s courts to do business in the state (Mallory v. Norfolk Southern
Railway Co.).
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.
 Abortion: In a brief per curiam opinion, a divided Fifth Circuit panel ordered dismissal
of legal challenges to the private enforcement provisions of the Texas Heartbeat Act (also
known as S.B. 8), after the Texas Supreme Court answered a certified question from the
panel in which it concluded that the Texas medical board and other state actors could take
disciplinary action against those who violate S.B. 8. S.B. 8 generally bans abortion once a
fetal heartbeat is detected and is enforced exclusively through private civil actions against
those who perform, aid, or abet prohibited abortions. The circuit court instructed the
district court to consider whether plaintiffs had standing to challenge another provision of
S.B. 8, which would make them jointly and severally liable for legal costs incurred by the
state in defending the bill (Whole Women’s Health v. Jackson). (Earlier appellate and
Supreme Court decisions in lawsuits challenging S.B. 8 in federal court are discussed in
prior editions of the Congressional Court Watcher.)
 Civil Procedure: The Third Circuit ruled that a district court misapplied the federal
removal statute, 28 U.S.C. § 1446, which may permit a defendant to remove a case from
state to federal court if certain requirements are met. Under § 1446(b), a defendant
generally has 30 days to seek removal after receiving a copy of a pleading that reveals the
existence of federal jurisdiction or, if that pleading does not show that federal jurisdiction
exists, the defendant may seek removal within 30 days of receipt of an amended pleading,
motion, order, or other paper that does so. Joining other circuits, the Third Circuit held
that these 30-day clocks are triggered by information within the four corners of the
pleading or other documents that the defendant receives, and not by what the defendant
subjectively knew already, including from documents already in its possession. Having
concluded that the defendant timely removed two class action complaints to federal court,
the circuit court remanded the case to the district court to determine whether an exception
found in the Class Action Fairness Act nonetheless required the district court to decline to
decide the cases (McLaren v. UPS Store Inc.).
 Criminal Law & Procedure: The Ninth Circuit held that neither the Stored
Communications Act nor the Protect Our Children Act transformed Yahoo’s and
Facebook’s searches of the criminal defendants’ user accounts and reporting of illegal
activity to federal law enforcement into government searches subject to the Fourth
Amendment. More generally, the panel majority concluded there was insufficient law
enforcement involvement in the searches to trigger Fourth Amendment protections
(United States v. Rosenow).

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 *Environmental Law: Overruling earlier circuit precedent to the contrary, the First
Circuit, sitting en banc, held that a provision of the Clean Water Act, 33 U.S.C.
§ 1319(g)(6)(A), which precludes citizen enforcement suits that seek to apply a civil
penalty to a defendant for an ongoing violation, does not limit citizen suits seeking
declaratory or injunctive relief to address an ongoing violation of the Act. In so holding,
the court switched sides in a multicircuit split on the proper interpretation of the
limitation, breaking from the view it once shared with the Eighth Circuit, and instead
adopting the interpretation endorsed by the Tenth Circuit (Blackstone Headwaters Coal.
v. Gallo Builders, Inc.).
 Environmental Law: The Sixth Circuit held that a declaratory judgment of liability
under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) is sufficient to trigger CERCLA’s statute of limitations for contribution
claims, under which a party held liable for costs associated with cleaning up hazardous
waste sites may seek contribution from others who are also potentially liable for cleanup
costs (Georgia Pacific Consumer Products LP v. NCR Corp.).
 Immigration: The en banc Ninth Circuit vacated an earlier three-judge panel decision
ruling that a California law phasing out private detention centers in the state was likely
unlawful. The case is now ordered to be reheard by the full en banc court. As discussed in
an earlier edition of the Congressional Court Watcher, a divided three-judge Ninth
Circuit panel had ruled that the plaintiffs would likely succeed in their claims that the
state law impermissibly interfered with the Secretary of Homeland Security’s statutory
authority to contract with private facilities to detain aliens targeted by the federal
government for removal. The panel majority also ruled that the state law violated the
intergovernmental immunity doctrine, which bars states from directly regulating or
discriminating against the federal government, by providing certain exemptions for state
agencies that were unavailable to federal authorities (GEO Group, Inc. v. Newsom).
 Indian Law: A divided Sixth Circuit held that the district court erred in construing an
Indian Health Service regulation, 42 C.F.R. § 136.30, requiring that a covered tribe may
receive Medicare-like rate (MLR) discounts on services provided to tribe members at
Medicare-participating hospitals only when the tribe pays for such care using funds
earmarked for its Contract Health Services (CHS) program. The majority concluded that
MLR discounts are available for CHS-authorized care even when a tribe pays for the
services using non-CHS sources. The court remanded the case to the lower court for
further proceedings, including to assess whether the tribe’s CHS program authorized the
particular services at issue in the case (Saginaw Chippewa Indian Tribe of Michigan v.
Blue Cross Blue Shield of Michigan).
 International Law: The First Circuit construed the meaning of Article 17(1) of the
Montreal Convention (formally known as the Convention for the Unification of Certain
Rules for International Carriage by Air), which makes carriers liable to passengers
injured in an “accident” taking place onboard an aircraft or when embarking or
disembarking a plane. Looking to domestic and foreign jurisprudence interpreting the
Convention and a predecessor treaty, the First Circuit held that an “accident” is an event
that a reasonable passenger in commercial air travel, standing in the plaintiff’s shoes,
would not expect to happen (Moore v. British Airways PLC).
 Separation of Powers: The Ninth Circuit held that 42 U.S.C. § 902(a)(3), which limits
the President’s ability to remove the Commissioner of Social Security except for “neglect
of duty or malfeasance in office,” violates separation-of-powers principles by
unconstitutionally infringing on the President’s authority to remove the head of an

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 executive agency. (The Commissioner conceded the provision was unconstitutional.) The
panel concluded that the removal protection must be severed from the statute, leaving the
President free to remove the Commissioner at will. Turning to the question of the
appropriate remedy where the petitioner challenged the denial of her request for Social
Security benefits because the Commissioner served under an unconstitutional removal
provision, the panel concluded the claimant had not established that the provision caused
her actual harm. The claimant did not dispute that the Social Security officers involved in
denying her claim served under valid appointments, and the panel found nothing in the
record to suggest a link between the removal provision and her case. The panel also
observed that accepting the claimant’s argument would effectively undo all disability
decisions made by the Social Security Administration while the removal provision was
operative, an outcome which the panel flatly rejected (Kaufmann v. Kijakazi).
 Territories: The First Circuit held that the Puerto Rico Oversight, Management, and
Economic Stability Act (commonly known as PROMESA), which authorized the
restructuring of the commonwealth’s debt, preempted Puerto Rico’s existing laws that
govern public schoolteacher pensions. The court held modifications to the pension plan
approved in the debt restructuring process were valid, even though Puerto Rico did not
enact legislation permitting the plan to modify the commonwealth’s existing obligations
(In re Financial Oversight & Mgmt. Bd. for Puerto Rico).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD

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