Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Oct. 24–Oct. 30, 2022)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Oct. 24–Oct. 30, 2022)
October 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
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Decisions of the Supreme Court
Last week, the Supreme Court did not issue any opinions or agree to hear any new cases, but individual
Justices in their capacity as Circuit Justices issued administrative stays pending further Court action in
two cases involving congressional authority:
On October 24, 2022, Justice Clarence Thomas granted an administrative stay in a case
challenging a subpoena directing a U.S. Senator to testify as part of a Georgia grand jury
investigation into activities surrounding the state’s certification of the 2020 presidential election.
As discussed in last week’s Congressional Court Watcher, the Eleventh Circuit affirmed a federal
district court order that had upheld the subpoena for the Senator’s testimony on certain matters,
while quashing the subpoena to the extent that it covered topics the court deemed privileged
under the Speech or Debate Clause, such as a Senator’s investigative fact finding (Graham v.
Fulton Cnty, Special Purpose Grand Jury).
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On October 26, 2022, Justice Elena Kagan temporarily stayed enforcement of a subpoena issued
by the House Select Committee to Investigate the January 6th Attack on the United States
Capitol. The subpoena was issued to T-Mobile seeking call records from the phone of the Arizona
Republican Party Chair from November 2020 through January 2021. Last week, a divided Ninth
Circuit panel, in a non-precedential opinion, had declined to enjoin enforcement of the subpoena
pending the party chair’s First Amendment challenge to the subpoena, with the majority holding
that the compelled disclosure would not deter protected associational activity and was narrowly
tailored to obtain information relevant to the Committee’s investigation into the events of January
6, 2021 (Ward v. Thompson).
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.
Communications: The Ninth Circuit dismissed a civil suit brought under the Trafficking
Victims Protection Reauthorization Act (TVPRA) against the social media platform
Reddit for allegedly benefiting from sex trafficking conducted on the site. The court held
the platform was shielded from liability for user-generated content by Section 230 of the
Communications Act of 1934. Although the Allow States and Victims to Fight Online Sex
Trafficking Act amended Section 230 to provide that immunity does not apply when “the
conduct underlying the claim” violates the TVPRA, the panel’s majority held that this
exception applies only when the defendant website itself engaged in prohibited conduct
under the TVPRA’s criminal provision, a finding absent in this case. This ruling
highlights an open question related to the scope of the TVPRA exception: whether a
plaintiff must prove a violation of the TVPRA’s criminal provisions, which entail a
heightened mental state requirement as compared to the correlative civil suit provision
(Does v. Reddit, Inc.).
Criminal Law & Procedure: The Fourth Circuit held that certain “violent crimes in aid
of racketeering activity” (VICAR) offenses under 18 U.S.C. § 1959—specifically VICAR
assault and murder—require a mens rea culpable enough to constitute a “crime of
violence,” as necessary for conviction under 18 U.S.C. § 924(c). While noting that the
Supreme Court recently held that a crime with a mens rea of “recklessness” cannot
qualify as a “violent felony” under § 924(e), the Fourth Circuit held that the elements of
both VICAR assault and VICAR murder in this case satisfied the mens rea element of a
“crime of violence” for purposes of § 924(c) (United States v. Manley).
Criminal Law & Procedure: The Eighth Circuit affirmed a district court’s civil
commitment of a criminal defendant found to be mentally incompetent to stand trial, and
concluded that the defendant had waived his ability to challenge the lawfulness of his
pre-commitment custody by the Attorney General. 18 U.S.C. § 4246 sets forth the
process for civilly committing a defendant who, after being transferred to the custody of
the Attorney General under 18 U.S.C. § 4241(d) for further medical evaluation, is found
unlikely to attain the mental capacity to stand trial in the foreseeable future. The
defendant’s pre-commitment custody exceeded four months—the duration generally
allowed by § 4241(d). However, after examining the text and relationship of the two
statutes, the Eight Circuit held that § 4241(d)’s time restriction is not a jurisdictional
element of § 4246. Thus, because the defendant had not brought a timely challenge under
§ 4241(d) in the district court that ordered his pre-commitment custody he could not
challenge its lawfulness in the later § 4246 proceedings (United States v. Ryan).
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Food & Drug: The Third Circuit denied a flavored e-cigarette liquid manufacturer’s
petition for review of a marketing denial order issued by the Food and Drug
Administration (FDA). The panel held that the petitioner failed to show that FDA acted
arbitrarily and capriciously in considering submitted evidence. Joining other circuits that
heard similar claims, the panel also ruled that when assessing whether the manufacturer’s
product posed less risk than other tobacco products, FDA could consider comparative
cessation evidence between the manufacturer’s flavored e-cigarettes and non-flavored e-
cigarettes, as outlined in the agency’s 2019 guidance (Liquid Labs LLC v. FDA).
Health: Joining the Third and Eleventh Circuits, the Second Circuit held that the
Medicare Secondary Payer Act, which establishes a private cause of action for monetary
damages against responsible “primary payers” who fail to cover medical expenses, grants
a private cause of action to Medicare Advantage Organizations (MAOs). Under Medicare
Part C, Medicare-eligible persons can opt to receive their medical benefits from MAOs,
which contract with the Department of Health and Human Services to provide Medicare
benefits. After an MAO beneficiary was injured at a supermarket, her MAO sought
reimbursement from the store for certain medical expenses the MAO had covered. After
the store refused to pay, the district court allowed the MAO to sue for recovery under the
Medicare Secondary Payer Act. The Second Circuit affirmed based on the Act’s text,
which the court found contained no limitation as to which private entities may sue a
primary payer that fails to reimburse the secondary payer (Aetna Life Ins. Co. v. Big Y
Foods, Inc.).
Immigration: A divided Ninth Circuit held that it lacked jurisdiction to consider a
petitioner’s challenge to his expedited removal order where immigration authorities had
determined that he was ineligible for asylum, a determination based on an interim
regulation that the Ninth Circuit later ruled invalid. The petitioner had been ordered
removed under a streamlined expedited removal process and was determined by
immigration authorities to be ineligible for asylum under the “Transit Bar,” which
rendered certain aliens ineligible for asylum relief if they failed to seek relief from
another country through which they traveled en route to the United States. Although the
Ninth Circuit in a later case held this regulation contravened governing statute, the
majority of the panel here concluded that it could not review the petitioner’s removal
order because Congress unambiguously barred courts from reviewing the merits of
individual expedited removal orders under 8 U.S.C. § 1252(a)(2)(A), (D) (Mendoza-
Linares v. Garland).
Immigration: The Tenth Circuit concluded that, once a removed alien illegally reenters
the United States, 8 U.S.C. § 1231(a)(5) eliminates the Board of Immigration Appeals’
(BIA’s) authority to review a prior order of removal or to grant relief under federal
immigration laws. Looking to the statute’s plain language, the court held that
§ 1231(a)(5) prohibits three things upon an alien’s illegal reentry: (1) the reopening of a
prior order of removal, (2) the review of a prior order of removal, and (3) an alien’s
eligibility to apply for any relief. In this case, because the last two prohibitions applied,
the court denied an alien’s petition for review challenging the BIA’s denial of his motion
to reconsider a reinstated 1999 removal order (Zapata-Chacon v. Garland).
Labor & Employment: The Ninth Circuit held that call center representatives’ pre-shift
activities of booting up their computers and launching software were potentially
compensable under the Fair Labor Standards Act (FLSA), because those tasks were
integral and indispensable to the workers’ principal duties of answering customer phone
calls. The circuit court remanded to the district court to consider, in the first instance,
whether the time spent performing these tasks made them noncompensable under the de
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minimis doctrine, and whether the defendant employer knew of the alleged overtime such
that it could be liable under the FLSA (Cadena v. Customer Connexx LLC).
Speech: The First Circuit affirmed the dismissal of a defamation suit challenging an
online newspaper’s coverage of a media personality who was present during the events of
January 6, 2021. The court relied on two First Amendment principles. First, when
reporting that involves matters of public concern is challenged, there is no liability unless
the reporting contains false statements. Second, individual statements of opinion related
to issues of public concern receive full constitutional protection unless they contain a
provably false connotation. Because the plaintiffs failed to allege defamation under either
principle, the district court dismissed the suit, and the First Circuit affirmed. (Cheng v.
Neumann).
Author Information
Michael John Garcia
Caitlain Devereaux Lewis
Deputy Assistant Director/ALD
Section Research Manager
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