Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (July 25–July 31, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (July 25–July 31, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(July 25–July 31, 2022)
August 1, 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
No Supreme Court opinions or grants of certiorari were issued this week. The Supreme Court’s next term
is to begin October 3, 2022.
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.
 Civil Rights: Joining the only other circuit to examine the matter directly, a divided Sixth
Circuit panel held that disability-related employment discrimination claims brought under
§ 501 and § 504 of the Rehabilitation Act require different causation standards. The
majority opinion recognized that federal employees, whose claims fall under § 501, must
show the employer would not have taken adverse action without, or “but-for,” disability-
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related discrimination, even though other factors may have played a part. Workers at
federally funded employers, covered under § 504, must show that the discrimination
alone motivated the adverse action (Bledsoe v. Tenn. Valley Auth. Bd. of Dirs.).
 Criminal Law & Procedure: A divided Fourth Circuit panel held that a felony
conviction under 18 U.S.C. § 1361 for willfully injuring or committing depredation
against government property, with damage exceeding $1,000, does not qualify as a
predicate crime of violence under 18 U.S.C. § 924(c), which punishes possession of a
firearm in furtherance of such crime. Applying the categorical approach the Supreme
Court provided in United States v. Davis, the Fourth Circuit rejected the district court’s
conclusion that the § 1361 offense is divisible into separate offenses of willful injury and
depredation. With a unified understanding of the statute, the majority determined that a
§ 1361 offense was not a “crime of violence” because a defendant need not use, attempt
to use, or threaten physical force to be convicted (United States v. Melaku).
 Criminal Law & Procedure: The D.C. Circuit rejected a defendant’s challenges to his
convictions for involvement in the 2012 terrorist attack on the United States’ diplomatic
outpost in Benghazi, Libya. The court agreed with the government that the sentence
imposed was unreasonably low and remanded for resentencing. The court held that a
felony conviction under 18 U.S.C. § 1363 for destroying or injuring buildings or property
within the United States’ special maritime and territorial jurisdiction qualified as a
predicate crime of violence under 18 U.S.C. § 924(c). Applying the modified categorical
approach the Supreme Court explained in Mathis v. United States, the court determined
that § 1363 is divisible into separate offenses for conspiracy to injure property and
directly injuring property, and the latter offense is a “crime of violence” for which the
defendant was convicted (United States v. Abu Khatallah).
 *False Claims Act: In a case involving the interaction of a 2010 amendment to the False
Claims Act and the Anti-Kickback Statute, the Eighth Circuit held that the amendment
requires but-for causation between the anti-kickback violation and the allegedly false
claim. To establish that the claim “includes items or services resulting from” an anti-
kickback violation, the government must prove that defendants would not have included
particular items or services in a claim absent illegal kickbacks. Disagreeing with the
Third Circuit, the court determined that it was insufficient for the government to show
that illegal kickbacks merely tainted the claim (United States ex rel. Cairns v. D.S. Med.
LLC).
 Food & Drug: The D.C. Circuit denied flavored e-cigarette liquid manufacturers’
petitions for review of the Food and Drug Administration’s (FDA’s) marketing denial
orders. The court held that 21 U.S.C. § 387j authorizes FDA to compare claimed
cessation benefits between flavored and nonflavored tobacco products. The court
concluded that FDA did not act arbitrarily and capriciously and rejected the petitioners’
arguments that FDA departed from an earlier guidance document (Prohibition Juice Co.
v. FDA).
 Health: The Second Circuit upheld a Department of Health and Human Services Office
of Inspector General (HHS OIG) advisory opinion stating that Pfizer would violate the
Anti-Kickback Statute if it covered Medicare Part D beneficiaries’ copays for an
expensive drug. Under Medicare’s cost-sharing structure, these beneficiaries are
responsible for a $13,000 co-pay toward the $225,000 annual cost of the drug. Pfizer
sought to cover these copays for eligible beneficiaries directly, but HHS OIG ruled that
this would violate the Anti-Kickback Statute’s prohibition on offering remuneration to
induce an individual to purchase a federally reimbursable health care product (42 U.S.C.

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§ 1320a-7b(b)(2)(B)). The Second Circuit agreed and rejected Pfizer’s argument that
corrupt intent is required for Anti-Kickback Statute liability (Pfizer, Inc. v. U.S. Dep’t of
Health & Human Servs.).
 Immigration: Joining other circuits, the Third Circuit held that an alien from a country
that was not part of the Visa Waiver Program (VWP), but attempted to enter the United
States by using the passport of a person from a VWP-participant country, was subject to
restrictions found in 8 U.S.C. § 1187 preventing VWP applicants from challenging their
removability except through an application for asylum (Shkembi v. Att’y Gen.).
 Immigration: In consolidated appeals, a divided Ninth Circuit panel largely affirmed
lower court decisions holding that the Attorney General lacked statutory authority to
condition state or local jurisdictions’ receipt of Byrne JAG Program funds in fiscal years
2017 and 2018 upon those jurisdictions’ assistance with federal immigration enforcement
activities. (The United States did not appeal the lower court rulings enjoining the
withholding of these funds to the extent these rulings were based on statutory grounds.)
The circuit court also remanded with instructions to dismiss facial Tenth Amendment
challenges brought by plaintiffs against 8 U.S.C. §§ 1373 and 1644, which constrain
jurisdictions from limiting the sharing of immigration-status information with the federal
government. The court held these challenges were not justiciable in their current posture.
The federal government had disbursed the grant funds to the plaintiffs and announced it
would no longer enforce the challenged grant conditions, and an intervening Ninth
Circuit decision made clear that the plaintiff jurisdictions’ policies complied with
§§ 1373 and 1644 (City & Cnty. of San Francisco v. Garland).
 Indian Law: A divided Ninth Circuit held that the Indian Gaming Regulatory Act
(IGRA) sets forth an exhaustive list of permissible negotiation topics between states and
Indian tribes seeking to conclude a compact allowing those tribes to conduct high-stakes
gambling operations. Here, the Ninth Circuit majority decided that California’s insistence
that a negotiated compact include provisions addressing matters unrelated to casino
gaming operations—including provisions on family law, environmental law, and torts—
showed that the state was not negotiating in good faith, enabling the plaintiff tribes to
seek judicial remedies to compel the state to return to the bargaining table (Chicken
Ranch Rancheria of Me-Wuk Indians v. California).
 *Labor & Employment: The Third Circuit added to a circuit split over personal
jurisdiction and opt-in plaintiffs in Fair Labor Standards Act (FLSA) collective actions.
Joining the majority view, the Third Circuit held that where the district court lacks
general personal jurisdiction over the defendant, all opt-in plaintiffs must establish
specific personal jurisdiction over the defendant with respect to their individual claims.
The court rejected the plaintiffs’ efforts to analogize FLSA collective actions to class
actions (Fischer v. Federal Express Corp.).
 Labor & Employment: The Third Circuit reversed a lower court’s interpretation of the
Civil Service Reform Act (CSRA). While the lower court held that all of the plaintiff’s
statutory claims were precluded under the CSRA because they arose in the context of the
plaintiff’s federal employment, the Third Circuit determined that the CSRA barred only
claims challenging employment actions within the jurisdiction of the Merit Systems
Protection Board. The Third Circuit concluded that some of the plaintiff’s claims were
not precluded under this narrower inquiry (Manivannan v. U.S. Dep’t of Energy).
 Securities: The D.C. Circuit upheld the Securities and Exchange Commission’s (SEC’s)
approval of an attempt by a securities exchange to combat latency arbitrage, a trading
strategy in which high-frequency traders submit orders taking advantage of split-second

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differences in information around a price change. The exchange used a combination of
physical infrastructure and an algorithm to attempt to limit such orders. The SEC
approved a rule change permitting expanded use of this system. The court rejected a high-
frequency trader’s claims that the SEC’s actions were discriminatory and procedurally
defective, holding that the SEC cited substantial evidence and reasonably explained its
conclusion that the rule change would benefit the overall market by combating latency
arbitrage (Citadel Secs. LLC v. SEC).
 Speech: The Ninth Circuit held that defendant school board members, who created
publicly accessible social media pages first to promote their campaigns and then, post-
election, to communicate with constituents about the carrying out of their duties, violated
the First Amendment when they blocked certain critical commenters from these pages.
The court held that the board members were acting under color of state law in operating
the pages because they were performing official duties. The court also concluded that the
interactive portions of those social media pages were designated public fora because they
were open for unrestricted public comment. The defendants’ decision to block the
commenters, the panel concluded, was not sufficiently tailored to a significant
governmental interest to withstand constitutional scrutiny (Garnier v. O’Connor-Ratcliff).
 Transportation: The D.C. Circuit upheld Federal Motor Carrier Safety Administration
rule changes that eased certain regulatory requirements for commercial motor vehicle
operators. The rule changes expand an exemption to record-keeping requirements for
short-haul drivers (49 C.F.R. § 395.1(e)(1)) and modify a break requirement for long-haul
drivers (49 C.F.R. § 395.3(a)(3)(ii)). The court ruled that the Administration’s actions
were not arbitrary and capricious, because the Administration sufficiently explained and
justified its conclusions that the changes would not adversely affect safety, driver health,
or regulatory compliance (Advocs. for Highway & Auto Safety v. Federal Motor Carrier
Safety Admin.).
 Transportation: The D.C. Circuit rejected Fourth Amendment and procedural challenges
to the Federal Aviation Administration’s Remote Identification rule requiring drones to
emit identifying information by radio signal. The court determined that drone pilots
generally lack any reasonable expectation of privacy in the location of their drones during
flight. The court also held that the plaintiff’s speculative concerns of continuous data
collection and tracking did not support vacating the rule and could be addressed, if
realized, in future as-applied challenges (Brennan v. Dickson).
 Transportation: The Ninth Circuit held that the Railroad Unemployment Insurance Act
(RUIA) preempts California’s Healthy Workplaces, Healthy Families Act as applied to
railroad employees. RUIA provides unemployment and sickness benefits to railway
workers and prohibits them from having any right to “sickness benefits under a sickness
law of any State” (45 U.S.C. § 363(b)). The court found that the California statute’s
provision of paid sick leave fell within RUIA’s preemption provision (Nat’l Ry.
Passenger Corp. v. Su).

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Author Information

Michael John Garcia
Alexander H. Pepper
Deputy Assistant Director/ALD
Legislative Attorney

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