Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 23–May 29, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 23–May 29, 2022)
May 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 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 click here to subscribe to
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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:
 Arbitration: The Supreme Court unanimously held that the Federal Arbitration Act
(FAA) does not permit courts to create arbitration-specific procedural rules. The Court
held that the standard for determining if a litigating party has waived its arbitration rights
is the same as used to assess waivers of other contractual rights (Morgan v. Sundance).
 Criminal Law & Procedure: In a 6-3 decision, the Court held that a federal court may
not hold an evidentiary hearing, or otherwise consider evidence outside the state-court
record, in a habeas case brought by a state inmate under 28 U.S.C. § 2254(e) alleging
ineffective assistance of state court-appointed, post-conviction counsel (Shinn v. Martinez
Ramirez).
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LSB10749
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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.
 *Arbitration: An Eleventh Circuit panel ruled that circuit precedent compelled
affirmance of a district court’s decision not to vacate a “non-domestic” arbitral award
enforceable under the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention). The district court held that an FAA
provision allowing courts to vacate awards that exceed an arbitration panel’s powers
applies only to domestic arbitration cases, but not non-domestic arbitration awards
covered by the New York Convention. The panel agreed that this conclusion followed
Eleventh Circuit precedent, but argued it conflicted with a preferable interpretation
endorsed by other circuits and the Supreme Court in subsequent cases. Under that view,
the FAA’s provisions authorizing the vacating of domestic arbitration awards may apply
to non-domestic arbitration covered by the New York Convention when the United States
is either the location of the arbitration or when U.S. law was used to conduct the
arbitration. The panel urged the Eleventh Circuit to take up the issue en banc and overrule
prior precedent (Corporacion, AIC, SA v. Hidroelectrica Santa Rita, SA).
 *Civil Rights: Furthering a circuit split, the Third Circuit held that under Title VII of the
Civil Rights Act, an employer’s “reasonable accommodation” of a worker’s sincerely
held religious beliefs must eliminate, and not merely mitigate, the conflict between the
employee’s beliefs and work requirements. The court held that the U.S. Postal Service’s
offer to allow a postal worker to swap shifts with colleagues so that she would not have
to work on Sunday in contravention of her religious beliefs was not a reasonable
accommodation. Still, the divided panel held that the Postal Service was not required to
grant the employee’s request for an exemption from Sunday work altogether. Granting
the request would cause an undue hardship to the employer’s operations, the majority
concluded, and Title VII does not require an accommodation in that event (Groff v.
DeJoy).
 Consumer Protection: A divided Eleventh Circuit held that monthly mortgage
statements required under the Truth in Lending Act (TILA) and its implementing
regulations may, in some circumstances, constitute communications in connection with
the collection of a debt under the Fair Debt Collections Practices Act (FDCPA). The
majority held that where, as here, a mortgage statement contains debt-collection language
not required by the TILA, and the context suggests that the company is attempting to
collect on a debt, the FDCPA potentially applies. The court remanded the case to the
lower court for further proceedings (Daniels v. Select Portfolio Servicing, Inc.).
 Election Law: The Third Circuit directed a federal district court to enter an order
requiring mail-in ballots in a local Pennsylvania election to be counted, even though the
return envelopes for those ballots had not been hand-dated as required under state law.
The panel held that private plaintiffs could bring suit against state authorities for violating
the Materiality Provision of the Civil Rights Act, which bars persons acting under the
color of law from limiting “the right of any individual to vote in any election because of
an error or omission . . . if such error or omission is not material in determining whether
such voter is qualified . . . to vote in such election.” The panel held that the Materiality
Provision applied because the state requirement that prospective voters date the return
envelope of mail-in ballots was immaterial to voter qualifications and eligibility (Migliori
v. Lehigh County Bd. of Elections).

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 Election Law: The Fourth Circuit reversed and vacated a district court order that
enjoined state election officials from considering a re-election disqualification based on a
candidate’s alleged encouragement of disruption of Congress’s counting of electoral
votes on January 6, 2021. Section Three of the Fourteenth Amendment disqualifies from
future federal or state office certain persons who have “engaged in insurrection or
rebellion against” the United States unless Congress by a two-thirds vote in each house
removes such disability. The district court held that the constitutional disqualification was
lifted by the 1872 Amnesty Act, passed in the post-Civil War period to remove the
disqualification “from all persons whomsoever” except for certain high-ranking federal
officials who had joined the Confederacy. A majority of the appellate panel disagreed,
holding that the Act applied only to conduct that occurred before the statute’s enactment.
(A concurring panelist would have ruled that the lower court lacked jurisdiction to hear
the case because doing so usurped Congress’s constitutional authority to determine the
qualifications of its Members.) The panel reached no other merits-based issues, including
whether the Fourteenth Amendment applied to the Member’s alleged conduct (Cawthorn
v. Amalfi).
 Environmental Law: On remand from the Supreme Court, the First Circuit held that a
climate-change suit brought by Rhode Island under state law against multinational oil and
gas companies should be heard in Rhode Island state court. The appeals court held that
there was no basis under applicable statutes for the removal of the suit to federal court.
The First Circuit’s decision comes shortly after similar decisions were reached by the
Ninth and Fourth Circuits in climate-liability suits brought under state law, discussed in
prior issues of the Congressional Court Watcher (Rhode Island v. Shell Oil Products Co.,
LLC).
 Environmental Law: The Fifth Circuit held that the Seventh Amendment guarantees a
defendant a right to a jury trial when the federal government seeks reimbursement under
the Oil Pollution Act of 1990 for cleanup costs associated with an oil spill (United States
v. ERR, LLC).
 Firearms: The Eleventh Circuit held that the federal prohibition against unlawfully
present aliens possessing a firearm does not violate the Second Amendment. The panel
assumed without deciding that some unlawfully present aliens may be among “the
people” referenced by the Second Amendment. Still, the panel described the Amendment
as codifying a preexisting right to keep and bear arms that had been subject to certain
well-recognized exceptions. One such exception, the court held, enabled Congress to
restrict the privilege to keep and bear arms for unlawfully present aliens and others who
do not owe or swear allegiance to the United States (United States v. Jiminez-Shilon).
 Intellectual Property: The Federal Circuit rejected challenges to the Commissioner of
Patents’ ability to decide whether to grant rehearing of a patent claim adjudicated by the
Patent Trial and Appeal Board (PTAB)—a function of the Patent & Trademark Office’s
(PTO’s) Director that was exercised by the Commissioner during a period when the
Director’s office was vacant. Last year in United States v. Arthrex, Inc., the Supreme
Court held that the PTAB could not make final decisions on patentability because they
were “inferior,” non-presidentially appointed officers. The Supreme Court remanded the
case so that the PTO Director—a presidentially appointed “principal” officer—could
determine whether rehearing was appropriate. At the time of remand, however, the office
of the Director was vacant, and the power to grant or deny rehearing requests was
delegated during the vacancy to the Commissioner for Patents, an inferior officer. The
Federal Circuit rejected the petitioner’s constitutional arguments against the
Commissioner’s exercise of the Director’s authority, ruling that such arguments were

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foreclosed by Supreme Court precedent recognizing that inferior officers may
temporarily perform functions of a principal officer on an acting basis. The court also
held that the exercise of this authority was not barred by the Federal Vacancies Reform
Act (FVRA), because that statute only constrains when an inferior officer may perform
non-delegable duties, and not to the Director’s delegable duty to decide whether to grant
a rehearing request. The court also rejected arguments that, because the President cannot
remove the Commissioner at-will, it would violate the separation of powers for the
Commissioner to perform the Director’s functions, finding this argument unpersuasive
because under the FVRA, the President could end the Commissioner’s exercise of the
Director’s powers at any time by naming an acting Director (Arthrex, Inc. v. Smith &
Nephew, Inc.).
 National Security: The Ninth Circuit affirmed a district court order directing recipients
of three national security letters (NSLs)—administrative subpoenas issued to wire or
electronic service providers requiring the production of certain subscriber information
relevant to a national security investigation—to comply with statutory nondisclosure
requirements until informed otherwise by the government. Emphasizing that a federal
statute enables an NSL recipient to request judicial review of a nondisclosure order at any
time and however many times it wishes, the panel held that neither the governing statute
nor First Amendment considerations compel a district court to schedule periodic judicial
review of a nondisclosure order sua sponte. The court left open whether there might be a
set of circumstances when a court would abuse its discretion by not scheduling periodic
review (In re Three National Security Letters).
 Securities: The D.C. Circuit upheld the Securities and Exchange Commission’s (SEC’s)
revision of a regulation concerning securities market data, concluding that the agency did
not act arbitrarily and capriciously in promulgating the new Market Data Infrastructure
Rule. The 2021 rule more broadly defines “core data” that investors may obtain from
centralized securities-information processors, and adopts a competitive model for data
feeds by allowing entities other than securities exchanges to develop and sell data
products based on data obtained from the exchanges (NASDAQ Stock Market LLC v.
SEC).
 Securities: The D.C. Circuit upheld the SEC’s denial of petitioner’s application for a
whistleblower award for providing information leading to a successful enforcement
action. The panel held that the governing statute plainly and unambiguously requires an
applicant to have provided “original information” after July 21, 2010, and that such
information resulted in a successful enforcement action. Because the petitioner submitted
the relevant information before that date, he was statutorily ineligible (Ross v. SEC).

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
 Speech: The Eleventh Circuit largely upheld a preliminary injunction barring
enforcement of a Florida law that prohibits certain social media companies from (1)
“deplatforming” political candidates; (2) prioritizing or deprioritizing posts by or about a
candidate; (3) removing any post by a “journalistic enterprise” on account of its content;
and (4) taking certain moderation actions against users without providing a “thorough
rationale” to the affected user. The court viewed the plaintiff social media companies as
indisputably private actors protected by the First Amendment. The panel held that the
companies were substantially likely to succeed in their claims that their content-
moderation decisions were protected exercises of editorial judgment that the
aforementioned provisions of state law unconstitutionally burdened. However, the court
held that certain other disclosure-related provisions of the challenged law were likely to
withstand constitutional scrutiny. Although the Fifth Circuit recently issued a stay
pending appeal of a preliminary injunction issued by a district court against a similar
social media law enacted by Texas, the Eleventh Circuit did not address this ongoing
legal challenge (NetChoice, LLC v. Attorney Gen. of Florida).
 Transportation: In reversing a district court’s dismissal of plaintiff’s challenge to his
alleged inclusion in the Terrorist Screening Database and placement on the No Fly List,
the Ninth Circuit concluded that 49 U.S.C. § 46110 did not divest the district court of
jurisdiction over the plaintiff’s claims. That statute vests the courts of appeals with
exclusive jurisdiction over challenges made to orders by the Transportation Security
Administrator, whose powers include the ability to remove or maintain a person on the
No Fly List following the completion of an administrative redress process. The panel held
that § 46110 did not govern here, where the plaintiff was challenging his initial placement
on the No Fly List by the Terrorist Screening Center, rather than any subsequent actions
of the Transportation Security Administrator, and remanded for further proceedings
(Fikre v. Fed. Bureau of Investigation).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD




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