Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 16–May 22, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 16–May 22, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 16–May 22, 2022)
May 23, 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 cases identified in this Sidebar, or the legal questions they address, are examined in other CRS
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attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court issued decisions in two cases for which it heard oral arguments:
 Election Law: When a candidate for federal office loans money to his or her own
campaign, Section 304 of the Bipartisan Campaign Reform Act of 2002 sets a $250,000
cap on the amount of post-election contributions that a campaign may use to reimburse
the candidate. In a 6-3 opinion, the Court held that this restriction impermissibly burdens
the First Amendment rights of candidates and campaigns to engage in political speech
(Federal Election Commission v. Ted Cruz for Senate).
 Immigration: In a 5-4 decision, the Court held that federal courts lack jurisdiction to
review underlying facts in immigration proceedings related to the granting or denial of
discretionary forms of relief listed in 8 U.S.C § 1252(a)(2)(B)(i). Several types of relief
listed in that provision would permit an otherwise removable alien to remain in the
United States and adjust to legal permanent resident status (Patel v. Garland).
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The Supreme Court also granted certiorari to review two cases:
 Criminal Law and Procedure: The Supreme Court granted certiorari in a case from the
Eighth Circuit on the interplay between the federal habeas corpus statute, 28 U.S.C.
§§ 2241 and 2255, which governs collateral attacks by federal inmates to their criminal
sentences. A federal inmate may seek a federal writ of habeas corpus under § 2241 when
a motion under § 2255 “is inadequate or ineffective to test the legality of his detention.”
The Court is asked whether a federal inmate can proceed under § 2241 when a
subsequent Supreme Court decision indicates that the criminal statute of conviction may
not apply to him, but the inmate is procedurally barred from raising that issue under §
2255 (Jones v. Hendrix).
 Securities: The Supreme Court agreed to hear a case from the Fifth Circuit on whether a
federal district court has jurisdiction to review a suit by a party seeking to enjoin an
ongoing Securities and Exchange Commission (SEC) administrative proceeding because
of alleged constitutional defects in the statutory provisions governing the removal of the
administrative law judge conducting the proceeding (SEC v. Cochran).
Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases in which 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.
 Bankruptcy: The Second Circuit held that under the Bankruptcy Code, a bankruptcy
court’s power to impose contempt sanctions, which traditionally includes power to award
damages and attorneys’ fees, includes the ability to award appellate attorneys’ fees
incurred by the victim as a result of the contempt (In re DiBattista).
 Freedom of Information Act (FOIA): Reversing the district court, the D.C. Circuit held
that the Department of Justice properly withheld certain documents related to the drafting
of a letter to the Census Bureau requesting the addition of a citizenship question to the
2020 census. The panel held the bulk of the requested documents were exempted from
FOIA’s general disclosure requirements under the deliberative process privilege. The
circuit court remanded the case so the district court could assess whether five redacted
emails fell within the scope of the privilege (Campaign Legal Center v. Dep’t of Justice).
 Intellectual Property: The Ninth Circuit upheld a preliminary injunction in favor of an
e-cigarette and vaping manufacturer in a copyright and trademark infringement action,
rejecting the defendant’s argument that the manufacturer could not own a valid trademark
because its cannabis-related products were prohibited by federal law. The panel observed
that the Farm Act exempted “hemp” from the definition of marijuana in the Controlled
Substances Act, and ruled that based on the available record, the manufacturer’s product
met the statutory definition of “hemp” because it contained “not more than 0.3 percent”
of delta-9–tetrahydrocannabinol. The panel further observed that any congressional intent
to limit the Farm Act’s legalization of hemp to that used for industrial purposes, and not
to potentially psychoactive substances, was not reflected in the applicable federal
statutes’ text (AK Futures LLC v. Boyd Street Distro, LLC).
 Labor and Employment: The Third Circuit set aside a National Labor Relations Board
(NLRB) order that found a supervisor of an online political and social commentary
magazine, who had posted a message on Twitter that the magazine’s employees would be
sent “back to the salt mine” if they ever attempted to unionize, had engaged in an unfair
labor practice. The NLRB’s order was prompted by a complaint filed by a person who

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viewed the supervisor’s tweet but was not a magazine employee. The panel majority held
that the Board’s authority under the National Labor Relations Act to address unfair labor
practices permitted it to act on the complaint of a person not aggrieved by the alleged
practice. Even so, the panel held that the NLRB’s determination that a reasonable
employee would view the supervisor’s tweet as a threat was not supported by substantial
evidence given the surrounding context in which the tweet was posted, the message’s
farcical nature, evidence of the employees’ subjective understanding of the tweet as non-
threatening humor, and the delivery of the message to a general Twitter audience instead
of to the employees directly (FDRST Media, LLC v. NLRB).
 Public Health: The Sixth Circuit declined to grant plaintiffs’ motion for an injunction
pending their appeal in a case challenging a Coronavirus Disease 2019 (COVID-19)
vaccine mandate imposed by the Department of Health and Human Services for Head
Start program staff, contractors, and volunteers. The circuit court concluded that plaintiffs
were unlikely to succeed on the merits of their legal challenge (Livingston Educational
Service Agency v. Becerra).
 Public Health: The Ninth Circuit vacated a criminal defendant’s conviction and
remanded for a new trial in a case where the district court, during the height of the
COVID-19 pandemic, barred members of the public from attending the defendant’s trial
and a related hearing on a motion to suppress evidence. The panel ruled that this blanket
prohibition on public access violated the defendant’s Sixth Amendment right to a public
trial. While the panel acknowledged the trial court’s interest in limiting the spread of
COVID-19, the panel ruled that the complete prohibition of public attendance was not
narrowly tailored to achieve that interest. Among other things, the panel suggested the
trial court could have allowed a limited number of persons into the courtroom, or allowed
a livestream video of the proceedings that could be witnessed by members of the public
in a different room of the court (United States v. Allen).
 Securities: A divided Fifth Circuit panel held unconstitutional the use of in-house
administrative law judges (ALJs) by the SEC to adjudicate securities fraud cases. The
majority vacated an ALJ judgment against the petitioners after concluding (1) Congress
acted unconstitutionally by delegating the SEC unfettered discretion to choose whether to
bring enforcement actions administratively or through a suit in an Article III court,
without giving the agency an intelligible principle to guide its exercise of that delegated
power; and (2) the SEC’s in-house adjudication of the cases against the petitioners
violated their Seventh Amendment right to a jury trial. The majority also held that the
statutory removal protections given to SEC ALJs unconstitutionally infringed on the
President’s power to remove executive officers, but it declined to decide whether this
deficiency would be an independent basis for vacating the SEC’s judgment (Jarkesy v.
SEC).
 Territories: A divided First Circuit held that the Financial Oversight and Management
Board of Puerto Rico, which Congress established through the Puerto Rico Oversight,
Management, and Economic Stability Act (PROMESA) to oversee the restructuring of
the commonwealth’s debt, was not immune from all causes of actions raised under
territorial law. The court assumed without deciding that the Board was an arm of Puerto
Rico, and that Puerto Rico was shielded under the Eleventh Amendment from suit in
federal court without its consent. Still, the majority recognized that Congress, acting
pursuant to its plenary power to legislate on behalf of U.S. territories, had abrogated the
Board’s immunity through PROMESA. As a result, the court allowed the plaintiffs’ suit
to proceed against the Board requesting the disclosure of certain documents (Centro de
Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd. for Puerto Rico).

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Author Information

Michael John Garcia

Deputy Assistant Director/ALD

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