Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 7– Nov. 13, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Nov. 7– Nov. 13, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Nov. 7– Nov. 13, 2022)
November 14, 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
the CRS Legal Update and receive regular notifications of new products and upcoming seminars by CRS
attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court granted certiorari in one case:
 Criminal Law & Procedure: The Supreme Court agreed to hear a case where a divided Fifth
Circuit, sitting en banc, affirmed a criminal defendant’s sentence under the federal aggravated
identity theft statute, 18 U.S.C. § 1028A(a)(1), based on the defendant overbilling Medicaid by
falsifying the scope of services provided to a patient. The Court is asked to resolve a circuit split
over whether § 1028A(a)(1) applies to the misuse of another’s identity even if it does not involve
an attempt to impersonate the person whose means of identification was misused or an attempt to
act on that person’s behalf (Dubin v. United States).
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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.
 Civil Procedure: Joining several circuits, the Tenth Circuit held that an entity bears the
burden to prove it is an arm of the state and thus entitled to immunity from suit under the
Eleventh Amendment. While the Eleventh Amendment extends sovereign immunity to
instrumentalities of the state, it does not do so for political subdivisions like counties,
municipalities, or other local government entities. In determining whether the University
of Kansas Hospital Authority (UKHA) is an instrumentality of the state entitled to
sovereign immunity, the Tenth Circuit held that UKHA had not met its burden of proof,
but remanded the case to the district court to in order to reevaluate UKHA’s status as an
instrumentality of the state (Hennessey v. University of Kansas Hospital Authority).
 Civil Rights: The Eleventh Circuit held that to succeed on a failure-to-accommodate
claim under the Rehabilitation Act, an employee must notify an employer of a disability
and demonstrate that the requested accommodation is reasonable. The employee sued
under 29 U.S.C. § 794(a), which bars disability discrimination, including refusing a
requested accommodation. The district court dismissed the employee’s claim, finding her
generalized request inadequate to trigger a duty to accommodate. Joining other circuits,
the Eleventh Circuit agreed with the lower court that in order to trigger a duty under the
Act, the employee must show the request is reasonable by providing an employer enough
information to assess how the proposed accommodation would address a specific
disability (Owens v. Georgia Governor's Off. of Student Achievement).
 Criminal Law & Procedure: The Fourth Circuit held that a conviction for arson under a
prior version of 18 U.S.C. § 844(f) does not qualify as a predicate crime of violence
under 18 U.S.C. § 924(c). The defendant was convicted under a version of § 844(f) that
included arson of property “used by” federal entities. Applying the categorical approach
the Supreme Court provided in United States v. Davis, the Fourth Circuit explained that a
crime of violence under § 924(c) means an offense that has as an element “physical force
against the property or person of another,” but the prior version of § 844(f) could
encompass force against a defendant’s own property (United States v. Davis).
 Immigration: In a case centered on the immigration consequences of being convicted of
a “crime of moral turpitude,” the Seventh Circuit granted a lawful permanent resident’s
petition for review and remanded to the Board of Immigration Appeals (BIA). The
petitioner pleaded guilty to criminal neglect of a dependent in state court and was
sentenced to a year in jail suspended to time served plus 30 days. After she was placed in
removal proceedings, she successfully petitioned the state court to modify her sentence to
less than six months to qualify for the so-called “petty offense” exception to the crime of
moral turpitude ground of inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The BIA did
not apply that exception, relying on an intervening decision of the Attorney General
declaring that state-court sentence modification orders are effective for immigration
purposes only if based on a procedural or substantive defect in the underlying criminal
proceeding. The Seventh Circuit held that the state criminal neglect offense is
categorically a crime of moral turpitude and that the Attorney General’s decision was
entitled to Chevron deference, but that applying that decision to the petitioner was an
impermissibly retroactive application of a new rule (Zaragoza v. Garland).

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 Religion: In a case involving a religious group’s opposition to the construction and
operation of a gas pipeline on its property, the Third Circuit affirmed a district court’s
dismissal of the group’s claim for money damages under the Religious Freedom
Restoration Act (RFRA) (42 U.S.C. § 2000bb-1(c)). The Third Circuit had previously
rejected the religious group’s petition for an injunction blocking construction. Echoing
that ruling, the circuit court held that the group’s damages claim was also barred as an
impermissible collateral attack on the Federal Energy Regulatory Commission’s
(FERC’s) authorization of the pipeline under the exclusive-review framework of the
Natural Gas Act (15 U.S.C. §§ 717r(a), 717r(b)). The Third Circuit held that the religious
group could and should have raised any RFRA objection before FERC during its
administrative review of the pipeline, particularly given that the group had direct notice
and opportunity to be heard (Adorers of the Blood of Christ v. Transcontinental Gas Pipe
Line Co.).
 Separation of Powers: The Federal Circuit held that the Merit Systems Protection
Board’s (MSPB’s) administrative judges are not principal officers requiring appointment
by the President and confirmation by the Senate under the Appointments Clause. After a
Department of Defense employee unsuccessfully challenged her removal before an
MSPB administrative judge, she claimed on appeal to the Federal Circuit that MSPB
administrative judges are improperly appointed principal officers. The court held that,
given MSPB’s structure and its authority to review administrative judges’ decisions
under 5 U.S.C. § 7701(e)(1)(B) on its own motion, administrative judges qualify as
inferior officers subject to the direction and supervision of the Board, despite their
protections from removal under 5 U.S.C. § 7513(a) (McIntosh v. Department of Defense).
 Speech: The Sixth Circuit held that the First and Fourteenth Amendments do not give
police officers accused of police misconduct and their union representatives the right to
record or videotape interviews conducted in the course of a city’s investigation of a
complaint. The court concluded that the First Amendment’s text, history, tradition, and
precedent do not support any right to record internal government proceedings during an
ongoing investigation (Hils v. Davis).
 Transportation: The Tenth Circuit affirmed a district court’s judgment for the plaintiff
on retaliation claims under the employee protection provisions of the Federal Railroad
Safety Act. Among other issues, the circuit court held that a plaintiff may bring a claim
under 42 U.S.C. § 20109(a)(2) (protecting employees who refuse to assist in the violation
of federal railroad law), even if their conduct might also fall within 42 U.S.C. §
20109(b)(1)(C) (protecting employees who refuse to authorize use of equipment because
of an objectively reasonable, good-faith belief in a hazardous safety or security
condition). The Third Circuit rejected the defendant’s argument that § 20109(b)(1)(C)
placed more stringent requirements on a plaintiff and overrode the application of
§ 20109(a)(2) (Fresquez v. BNSF Railway Co.).

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Author Information

Jimmy Balser
Michael D. Contino
Legislative Attorney
Legislative Attorney

Alexander H. Pepper

Legislative Attorney

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