Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Oct. 3–Oct. 9, 2022)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Oct. 3–Oct. 9, 2022)
October 11, 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
On October 3, 2022, the first day of its new term, the Supreme Court granted certiorari to review nine
cases:
Communications: The Court granted certiorari in two cases from the Ninth Circuit
involving social media companies’ possible civil liability under the Anti-Terrorism Act
for conduct that allegedly aided terrorist groups. One of these suits concerns the
immunities conferred by Section 230 of the Communications Act of 1934, as amended, to
providers and users of interactive computer services. The case concerns a civil suit
brought against Google, alleging that the company’s YouTube platform assisted the
Islamic State by promoting the organization’s recruitment videos. The plaintiffs contend
that Google made targeted recommendations to certain users to watch the videos through
computer algorithms, and that these activities are not covered by Section 230’s liability
shield against claims arising from third-party content (Gonzalez v. Google LLC). A
related case before the Court does not address Section 230 immunities, but centers on
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whether social media companies can be found liable for aiding and abetting terrorist
groups under the Anti-Terrorism Act by “knowingly” providing “substantial assistance”
to those groups through their use of the companies’ generally available services (Twitter,
Inc. v. Taamneh).
Criminal Law & Procedure: The Court agreed to review a Second Circuit case
addressing whether a U.S. district court may exercise criminal jurisdiction under 18
U.S.C. § 3231 over an instrumentality of a foreign sovereign (here, a bank owned by the
Turkish government) given the immunities provided by the Foreign Sovereign
Immunities Act (Turkiye Halk Bankasi A.S. v. United States).
Education: The Court agreed to review a case from the Sixth Circuit involving the
interplay between the Individuals with Disabilities in Education Act (IDEA) and the
Americans with Disabilities Act (ADA). An IDEA provision, 20 U.S.C. § 1415(l), states
that nothing in the Act restricts the availability of civil procedures and remedies under the
ADA and other federal laws protecting children with disabilities. It provides, however,
that before filing a civil action under such laws seeking relief available under IDEA, a
plaintiff must exhaust the administrative processes for resolving IDEA claims. The Court
is asked whether IDEA requires exhaustion of the administrative processes before filing
related ADA claims in federal court when doing so would be futile. (Here, the plaintiff
had resolved an IDEA claim through settlement.) The Court is also asked whether the
exhaustion requirement applies to ADA claims for money damages unavailable under
IDEA, a question the Court had once granted certiorari to address but ultimately declined
to resolve (Perez v. Sturgis Pub. Schools).
Federal Courts: In a case from the Ninth Circuit, the Court is asked to consider a
contempt order issued against a law firm that did not fully comply with a grand jury
subpoena for documents related to the firm’s preparation of a client’s tax return. The firm
contends that the documents are shielded from disclosure by attorney-client privilege, as
they allegedly had the dual purpose of communicating information related to preparation
of the clients’ tax returns and providing legal advice to the client (In re Grand Jury).
Immigration: The Court agreed to hear a Fifth Circuit case on whether a provision in a
federal immigration statute, 8 U.S.C. § 1252(d)(1), barred review of petitioner’s claim
that the Board of Immigration Appeals engaged in impermissible fact-finding. The circuit
court held that it lacked jurisdiction to consider the petitioner’s claim because
§ 1252(d)(1) allows appellate court review of a final order of removal when the petitioner
has exhausted all administrative remedies. Here, the petitioner had not raised the fact-
finding claim in a motion to reconsider with the BIA (Santos-Zacaria v. Garland).
Labor & Employment: The Court agreed to review a decision from the Sixth Circuit
holding that a state’s National Guard, in its capacity as an employer and supervisor of
dual-status technicians, is an executive agency under the Federal Service Labor-
Management Relations Statute subject to the Federal Labor Relations Authority’s
(FLRA’s) jurisdiction. The Supreme Court is asked whether the FLRA may regulate the
labor practices of state militias (Ohio Adjutant General’s Dep’t v. FLRA).
Labor & Employment: The Court agreed to review a decision by the Washington
Supreme Court, which concluded that the National Labor Relations Act preempted an
employer’s state law tort claims against a union for property damage allegedly caused by
striking workers (Glacier Northwest, Inc. v. Int’l Brotherhood of Teamsters).
Territories: In an appeal from the First Circuit, the Court agreed to consider whether
sovereign immunity shields the Financial Oversight and Management Board of Puerto
Rico (Board) from suit. The circuit court had held that the Board, which Congress
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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 claims brought against it in federal court. Assuming without deciding that the
Board was an arm of Puerto Rico, and that Puerto Rico was otherwise shielded under the
Eleventh Amendment from suit in federal court, the court determined that Congress,
acting under its plenary power to legislate on behalf of U.S. territories, had abrogated any
immunity the Board might have (Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Centro
de Periodismo Investigativo, Inc.).
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: The Second Circuit held that a party seeking to confirm a foreign arbitral
award under the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York Convention) is not required to serve a summons on the adverse party.
The court observed that although the New York Convention and Chapter 2 of the Federal
Arbitration Act, which codifies domestic enforcement of foreign arbitral awards under the
New York Convention, require notice of an application to confirm the arbitral award be
served on the adverse party, neither requires that this notice be accompanied by a
summons (Commodities & Mins. Enter. Ltd v. CVG Ferrominera Orinoco, C.A.).
*Civil Rights: Adding to a circuit split, the First Circuit held that a plaintiff satisfied
constitutional standing requirements to bring suit against a hotel for omitting
accessibility-related information from its website as required by ADA regulations.
Although the plaintiff said she had no intention to visit the hotel, the court concluded that
she alleged a sufficiently concrete and particularized injury because she was denied
information to which she was legally entitled. At least five circuit courts have issued
precedential decisions in similar cases over the last two years, with the First Circuit and
Eleventh Circuit concluding that constitutional standing requirements were satisfied and
the Second, Fifth, and Tenth Circuits holding that they were not (Laufer v. Acheson
Hotels, LLC).
Election Law: The Eleventh Circuit vacated a district court’s preliminary injunction that
would have required Georgia to delay, until after early voting, distribution of hard-copies
of voter registration lists to local election officials for checking in voters. The circuit
court concluded that the existing practice was reasonable and nondiscriminatory, and that
the plaintiffs failed to show it burdened the right to vote. The court found it unnecessary
to consider a preliminary injunction that the district court discussed but failed to issue
regarding the recalibration of ballot scanner settings to detect lighter markings (Curling v.
Raffensperger).
Health: The Eight Circuit affirmed the dismissal of a plaintiff’s claim that she was
inappropriately transferred to a hospital that could not adequately treat her emergency
medical condition in violation of the Emergency Medical Treatment and Active Labor
Act (EMTALA). EMTALA provides that a hospital may transfer a person with an
emergency medical condition to another hospital only when the receiving hospital agrees
to the transfer and has the capacity to treat the individual adequately. The Eight Circuit
decided that holding transferring hospitals strictly liable for transferring a patient to an
inadequate facility would not be consistent with the aim of EMTALA to deter bad-faith
actions by hospitals. The court held that liability did not attach where, as here, the
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transferring hospital acted under the reasonable belief that the transfer was appropriate,
based on information that had been conveyed to it by the recipient hospital before the
patient’s transfer (Ruloph v. LAMMICO).
Immigration: The Fifth Circuit affirmed a federal district court’s ruling that the
Department of Homeland Security’s (DHS) 2012 memorandum establishing the Deferred
Action for Childhood Arrivals (DACA) program is unlawful. Under DACA, aliens
without legal status who came to the United States as children and meet other
requirements may remain and work in the United States for renewable two-year periods.
The Fifth Circuit ruled that DACA conflicts with the Immigration and Nationality Act’s
regulatory scheme specifying classes of aliens who may obtain lawful presence and
associated benefits. The court also held that DHS violated procedural requirements under
the Administrative Procedure Act when implementing that policy. The court temporarily
stayed its decision for current DACA recipients, and remanded the case to the district
court to review a final rule DHS issued during the pendency of the litigation that codifies
the DACA policy in federal regulations (Texas v. United States).
Immigration: A divided D.C. Circuit rejected a legal challenge to a DHS rule that
permits foreign visitors with nonimmigrant student (F-1) visas to remain and work in the
United States for a period (up to three years in some cases) of Optional Practical Training
after completion of their formal course of study. The court held that the rule was a valid
exercise of DHS’s statutory authority to set the duration and conditions of a
nonimmigrant visitor’s presence in the United States and that the rule reasonably related
to the legislative purpose for which student visas were authorized. The court also
recognized that DHS’s authority to set the conditions of nonimmigrant admission
includes the power to authorize employment in the United States, including for
nonimmigrant students (Washington All. of Tech. Workers v. DHS).
Indian Law: A divided Eighth Circuit held that neither the Indian Gaming Regulatory
Act nor the Indian Trader Statutes preempted state taxation of nonmember contractors for
renovation of the Tribe’s casino on its reservation, whether expressly or under the
balancing-of-interests test suggested by the Supreme Court in White Mountain Apache
Tribe v. Bracker (Flandreau Santee Sioux Tribe v. Houdyshell).
Intellectual Property: The Second Circuit reviewed a district court judgment in a
lawsuit brought by music publishers against a company that acquired a large private
collection of concert recordings by numerous famous musicians, and made audio and
audiovisual recordings of those concerts available through streaming services and digital
download for a fee. While much of the appeal focused on evidentiary matters and the
appropriateness of the remedies and awards issued by the trial court, the circuit court also
considered how Section 115 of the Copyright Act applied to the audiovisual recordings of
live concerts made available by the defendant. The circuit court agreed with the lower
court that Section 115 of the Copyright Act, which permits compulsory licensing for the
making and distribution of “phonorecords” of a published musical work, excludes from
its scope all audiovisual recordings, including of live concerts such as those the defendant
had distributed (ABKCO Music, Inc. v. Sagan).
Public Health: A divided Eleventh Circuit lifted a preliminary injunction that limited
Florida’s enforcement of a state law barring businesses in the state from requiring
customers to show proof of vaccination against COVID-19. A district court had halted
Florida from applying the law to the plaintiff cruise line company after concluding the
company was likely to succeed in its claims that the law impermissibly violated its First
Amendment rights and unduly burdened interstate commerce. The circuit court majority
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concluded otherwise on both counts. First, it held that the law regulated non-expressive
economic conduct and only incidentally burdened speech, like other statutes barring
businesses from discriminating against certain groups, and that it bore a rational
relationship to Florida’s legitimate interest in protecting its citizens from discrimination
and privacy intrusions. Second, the majority ruled that the plaintiff was unlikely to
succeed in its claim that the state law infringed on congressional authority over interstate
and foreign commerce. The majority held that Florida had a substantial interest in
preventing discrimination against its residents or intrusions on their privacy, and these
interests outweighed any burdens imposed on interstate commerce and met constitutional
requirements (Norwegian Cruise Line Holdings Ltd. v. Florida Surgeon Gen.).
Securities: The Ninth Circuit upheld the Securities and Exchange Commission’s (SEC’s)
enforcement action against appellants, who had engaged in a long-running scheme in
which they posed as retail investors, rather than registering as brokers, to obtain high-
priority municipal bond allocations. The panel rejected the appellants’ arguments that
they were not brokers because their client exerted control over their transactions, and
concluded that they fell under the Security and Exchange Act’s statutory definition of a
“broker” because they traded securities “for the account of others.” In looking to the
Act’s plain text to determine whether the appellants acted as brokers, the court declined
to employ the widely used Hansen test that looks at the totality of the circumstances to
assess whether a brokerage relationship exists (SEC v. Murphy).
Separation of Powers: In a case following the Supreme Court’s decision in Collins v.
Yellen, which held that the Federal Housing Finance Agency’s (FHFA’s) enabling statute
contained an unconstitutional removal restriction on the FHFA Director, a divided Sixth
Circuit partially rejected Freddie Mac and Fannie Mae shareholders’ challenge to a
financing arrangement reached by the agency. The court held that (1) the political
question doctrine did not preclude resolution of the case; (2) the Deputy Director, who
signed the agreement as acting Director, was not serving in violation of the Constitution’s
Appointments Clause when he did so; and (3) on remand, the lower court should consider
whether, by virtue of the taint associated the unconstitutional removal restrictions on a
permanent Director identified in Collins, the shareholders had suffered compensable
harm and were entitled to retrospective relief (Rop v. FHFA).
Author Information
Michael John Garcia
Charles Doyle
Deputy Assistant Director/ALD
Senior Specialist in American Public Law
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