Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (August 8–August 14, 2022)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(August 8–August 14, 2022)
August 15, 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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Decisions of the Supreme Court
The Supreme Court did not issue any opinions or grants of certiorari this week. The Supreme Court’s next
term begins 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: The Second Circuit held that a plaintiff who alleges that a prospective
employer failed to accommodate his or her disability during a pre-employment
examination cannot successfully bring suit under Section 504 of the Rehabilitation Act if
the individual was facially unqualified for the position sought at the time of the
examination (Williams v. MTA Bus Co.).
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Civil Rights: In a lawsuit challenging a university’s disciplinary proceeding against a
student, the Fifth Circuit ruled on the proper pleading standard for Title IX of the
Education Amendments of 1972 and the constitutional due process rights afforded to
students accused of sexual assault. As to Title IX, the court applied a standard consistent
with those announced in the Second Circuit and the Seventh Circuit: do the alleged facts,
if true, raise a plausible inference that a university or its administrators discriminated
against the student on the basis of sex? The Court also held that requiring counsel to
submit cross-examination questions of the student’s accusers to a disciplinary panel, in
lieu of counsel’s personally cross-examining those accusers, did not violate due process
(Overdam v. Texas A&M Univ.).
Civil Rights: The Sixth Circuit held that the scope of a catchall provision of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12203(b)—which makes it
“unlawful to coerce, intimidate, threaten, or interfere with” a person’s “exercise or
enjoyment” of an ADA-protected right—must be construed in light of other ADA
provisions and the overall statutory structure. The court held that § 12203 does not enable
a plaintiff alleging an employment-related ADA claim to bring a claim against a non-
employer. The court also held that a provision in the Civil Rights Act of 1871, 42 U.S.C.
§ 1985(3), does not allow claims to be brought against third parties alleging they
conspired with an employer to deprive an employee of an ADA-protected right (Post v.
Trinity Health Michigan).
Communications: In consolidated cases, the D.C. Circuit upheld a 2020 Federal
Communications Commission (FCC) rule reallocating a portion of the radio spectrum for
use by intelligent transportation systems in vehicles for purposes of communicating with
other vehicles on the road. The D.C. Circuit concluded that the FCC complied with the
requirements of the Transportation Equity Act when issuing the rule, adequately
explained the basis for its decision, and had not unlawfully revoked or modified existing
licenses by reducing the spectrum available to plaintiff licensees (Intelligent
Transportation Society of America v. FCC).
Consumer Protection: The Third Circuit affirmed the dismissals of multiple lawsuits
brought under the Fair Credit Reporting Act (FCRA). The court addressed the duty of
consumer agencies to “assure maximum possible accuracy” in credit reports under 15
U.S.C. § 1681e(b). Interpreting the FCRA to grant credit report access to an array of
users of varying levels of sophistication, the court joined the Sixth Circuit in adopting a
“reasonable reader” standard by which a court assesses how a reasonable reader would
have understood a credit report. Under this standard, a court must assess the accuracy of
credit report entries, not by reviewing the entries in isolation, “but rather by reading the
report in its entirety” (Bibbs v. Trans Union LLC).
*Consumer Protection: The Tenth Circuit ruled on the standard for determining false or
misleading representations under the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692e. The court concluded that only material statements violate Section 1692e. As to
measuring materiality, the court agreed with other courts that have applied the
“reasonable consumer” standard as opposed to the “least sophisticated consumer”
standard or the similar “unsophisticated consumer” standard. The court reasoned that the
reasonable consumer standard is consistent with other consumer protection laws
(Tavernaro v. Pioneer Credit Recovery, Inc.).
*Criminal Law & Procedure: The Fourth Circuit addressed the scope of a court’s
analysis when a prisoner moves for in forma pauperis (IFP) status under a provision of
the Prison Litigation Reform Act (PLRA) that allows a prisoner to proceed without
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prepayment of fees if he is in “imminent danger of serious physical injury,” 28 U.S.C.
§ 1915(g). The court held that, while IFP movants must show a nexus between their
claims on the merits and the alleged imminent danger, neither the text nor purpose of the
PLRA requires movants to show that a court can redress the alleged danger. In so ruling,
the court declined to adopt a standard from the Second Circuit that incorporated
redressability into deciding an IFP motion (Hall v. United States).
Criminal Law & Procedure: The Sixth Circuit, in a divided opinion, vacated a 25-year
mandatory minimum sentence enhancement imposed under 21 U.S.C.
§ 841(b)(1)(A)(viii) because one of the predicate state convictions was not a “serious
drug felony” as required for application of the enhancement. The court applied the
definition of “serious drug offense” from the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(A)(ii), i.e., a state-law crime “involving manufacturing, distributing,
or possessing with intent to manufacture or distribute,” a controlled substance. The court
followed other circuits in interpreting the Supreme Court’s decision in Shular v. United
States as requiring a predicate offense to “necessarily entail” conduct described in the
ACCA. The court further reasoned that the state statute at issue, meant to apply when
someone possesses a prohibited chemical with intent to manufacture methamphetamine
but where manufacture is not yet possible, does not “necessarily entail” manufacturing a
controlled substance (United States v. Fields).
Criminal Law & Procedure: In a divided opinion, the Eighth Circuit affirmed the
conviction of a criminal defendant on multiple sex-trafficking counts. The court
disagreed as to sex trafficking by force, fraud, or coercion under 18 U.S.C. § 1591(a).
The majority held that inducing a victim to work in a massage parlor with knowledge or
reckless disregard that working there would cause the victim to engage in a commercial
sex act was sufficient for a conviction and the commission of a sex act itself need not be
the immediate object of the fraudulent inducement (United States v. Taylor).
Criminal Law & Procedure: A divided Eleventh Circuit panel affirmed a conviction
under 18 U.S.C. § 1521, which prohibits the filing of a false lien or encumbrance against
the property of any officer or employee of the United States. In so ruling, the court
interpreted the statute as applying to both current and former federal officers and
employees. The court reasoned that the statute contained no temporal restriction that
limited coverage to current federal officers or employees (United States v. Pate).
Environmental Law: A divided D.C. Circuit panel upheld a National Marine Fisheries
Service rule establishing industry-funded monitoring programs for New England
fisheries. The court first determined that the rule did not implicate the “major questions”
doctrine, which counsels against interpreting general delegations of agency authority as
empowering agencies to pursue policies of economic and political significance that are
inconsistent with the agencies’ historical assertions of authority. Applying the Chevron
framework, the majority held that, although the governing Magnuson-Stevens Fishery
Conservation and Management Act did not unambiguously authorize the Service to
require industry-funded monitoring, the Service’s interpretation of the Act as allowing
such monitoring was reasonable and entitled to deference. The majority also rejected
arguments that the rule was arbitrary and capricious or issued in a procedurally improper
manner (Loper Bright Enterprises, Inc. v. Raimondo).
Firearms: The D.C. Circuit rejected a challenge to a rule by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) that interpreted two federal firearms statutes.
ATF had interpreted “machine gun,” as defined in the National Firearms Act, 26 U.S.C.
§ 5845(b), and the Gun Control Act, 18 U.S.C. § 921, as encompassing bump stocks,
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which enable a shooter of a semiautomatic firearm to start a continuous firing cycle with
a single pull of the trigger. The court reasoned that ATF’s interpretation comported with
the statutes’ texts, purposes, and legislative histories (Guedes v. ATF).
Freedom of Information Act (FOIA): The D.C. Circuit held that the U.S. Department
of Agriculture (USDA) properly withheld certain information from a FOIA requestor on
numbers the agency assigned to farmland and farm owners enrolled in the agency’s farm
subsidy programs. The court held that because the requested numbers assigned to
farmlands would enable identification of specific locations, they were covered by 7
U.S.C. § 8791(b)(2)(B), which requires the USDA to withhold “geospatial information.”
The information is therefore covered by FOIA Exemption 3, which applies to records
specifically exempted from disclosure by statute. The court also ruled that the USDA
properly withheld numbers assigned to farm owners under FOIA Exemption 6, which
covers records “similar” to personnel or medical files when disclosure “would constitute
a clearly unwarranted invasion of personal privacy” (Telematch, Inc. v. USDA).
*Health: The Eleventh Circuit applied the four-year catchall limitations period under 28
U.S.C. § 1658(a) to a private cause of action under the Medicare Secondary Payer Act
(MPSA), 42 U.S.C. § 1395y(b)(3)(A), which does not specify a limitations period for
such claims. The court held that a claim “accrues” under Section 1658(a) when the
violation of a party’s legal right occurred, and not when a party discovered or should
have discovered the violation. As a result, the plaintiff’s suit, filed six years after the
occurrence of the alleged violation, was time-barred. The court disagreed with an Eighth
Circuit decision that suggested Congress intended Section 1658’s accrual to vary based
on the cause of action (MPSA Claims 1, LLC v. Tower Hill Prime Ins. Co.).
Immigration: The Seventh Circuit upheld an Illinois law that prohibits state agencies
and political subdivisions from contracting with the federal government to house
immigration detainees. The court refused to invalidate the law under the Supremacy
Clause based on the theories of field preemption and conflict preemption. The court held
that existing federal law on the detaining and housing of non-U.S. citizens, 8 U.S.C.
§§ 1103 and 1231, do not evidence a congressional intent to remove a state’s authority
over its subdivisions. The court further held that these federal statutes, which express a
hope or expectation that states would cooperate with federal requests to house detainees
in their facilities, do not bind states to act (McHenry County v. Raoul).
Intellectual Property: The Third Circuit set forth a three-step process for district courts
to apply in deciding whether to provide injunctive relief under the Trademark
Modernization Act of 2020 (TMA). The TMA creates a rebuttable presumption of
irreparable harm favoring a plaintiff who has shown a likelihood of success on the merits
of an infringement claim. The court held that a district court considering a trademark
injunction must first assess the plaintiff’s evidence as it relates to likely success on the
merits (but not any irreparable harm suffered as a result of the infringement). If the court
finds no likelihood of success, the inquiry ends and no injunction may issue. Second, if
the court concludes that the plaintiff’s evidence establishes likely trademark
infringement, the burden shifts to the defendant to provide evidence that any resulting
consumer confusion is unlikely to cause irreparable harm. Third, if the defendant
successfully rebuts the presumption, which the court described as requiring only a slight
evidentiary showing, then the TMA’s presumption has no further effect and the burden
returns to the plaintiff to show it will face irreparable harm if the injunction is not issued
(Nichino America, Inc. v. Valent U.S.A. LLC).
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Intellectual Property: Joining other circuits, the Eleventh Circuit held that a plaintiff
who brings a copyright infringement claim under 17 U.S.C. § 1202(b)(1) or (3)—
involving the unlawful removal or alternation of copyright management information—
must show that the defendant knew, or had reasonable grounds to know, that its actions
would induce, enable, facilitate, or conceal an infringement. The court concluded that it is
not enough to allege that the defendant’s removal of copyright management information
might make it more likely that copyright infringement would occur. Instead, the
defendant must be aware of or have reasonable grounds to be aware of the probable
impact of its conduct (Victor Elias Photography, LLC v. Ice Portal Inc.).
Labor & Employment: The Ninth Circuit ruled that the Occupational Safety and Health
Act (OSH Act), 29 U.S.C. § 654(a), does not preempt certain mandates issued by the
governor of Washington to address the spread of COVID-19 in the agricultural labor
sector. The court observed that earlier this year, in National Federation of Business v.
Occupational Safety & Health Administration (OHSA), the Supreme Court stayed
enforcement of an OSHA rule that mandated a COVID-19 vaccine-or-testing requirement
on large private employers after concluding that the OSH Act did not authorize OSHA to
issue broad public health measures. Relying on the reasoning from that decision, the
Ninth Circuit ruled that none of OSHA’s existing regulatory standards can preempt a
state’s public health and safety measures that respond to COVID-19 (Flower World, Inc.
v. Sacks).
Tax: The D.C. Circuit held that the House Ways and Means Committee may review
former President Donald Trump’s tax returns for the years 2015 to 2020, using four-fold
reasoning. First, the request for tax returns did not exceed Congress’s investigative
powers because it identified a legitimate legislative purpose. Second, it did not violate
separation of powers principles. Third, 26 U.S.C. § 6103(f)(1), which requires the
Secretary of the Treasury to release tax returns and return information to the Committee,
is not facially unconstitutional because the Trump parties failed to establish there was no
set of circumstances under which the statute could be constitutionally applied, or that the
law lacked a plainly legislative sweep. Fourth, the Treasury Department’s intent to
comply with the request did not amount to retaliation because § 6103(f)(1) mandates the
turnover of information to the Committee when it seeks information under its
investigative powers; thus, any motive, retaliatory or otherwise, is irrelevant (Committee
on Ways & Means v. U. S. Dep’t of the Treasury).
Torts: The Ninth Circuit considered whether a Washington State statute of repose that
extinguishes medical malpractice claims after eight years barred a claim under a
provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b), against a U.S.
Navy Hospital. The Ninth Circuit joined two other circuits in ruling that, while the FTCA
supersedes state statutes of limitation, it does not supplant state statutes of repose
(Bennett v. United States).
Author Information
Michael John Garcia
Michael D. Contino
Deputy Assistant Director/ALD
Legislative Attorney
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