Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Dec. 12-Dec. 18, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Dec. 12-Dec. 18, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Dec. 12-Dec. 18, 2022)
December 20, 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 13 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 four cases:
 Criminal Law & Procedure: The Confrontation Clause of the Sixth Amendment gives
criminal defendants the right to cross-examine witnesses against them. To that end, the
Supreme Court has long held that the government may not introduce a codefendant’s
confession implicating another defendant in a joint trial because the confessing defendant
has the right to refuse to testify and therefore cannot be cross-examined. The Supreme
Court has also held that there are circumstances when a co-defendant’s confession may
be admitted as evidence if the non-confessing co-defendant’s name is redacted from the
confession. There is a circuit split, however, regarding how a trial court should determine
whether such redactions are sufficient to avoid violating the Sixth Amendment rights of
the non-confessing co-defendant. In some circuits, courts consider the confession in the
context of other evidence at trial to determine whether, viewed in conjunction with that
other evidence, the confession inculpates the non-confessing defendant and should be
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excluded. In others, courts consider the confession in isolation. The Supreme Court
granted certiorari to resolve the split (Samia v. United States).
 Criminal Law & Procedure: The Supreme Court granted certiorari to determine the
appropriate remedy when the government fails to meet its constitutional burden of
proving that the venue of a criminal trial is proper: must the defendant be acquitted, as
the Fifth and Eighth Circuits have held, or may the government retry the defendant in an
appropriate venue, as the Sixth, Ninth, Tenth, and Eleventh Circuits have held? (Smith v.
United States)
 Education: Following its December 1 decision to review the Eighth Circuit’s entry of a
nationwide injunction pausing the implementation of the Biden Administration’s student
loan cancellation policy, the Supreme Court granted certiorari before judgment to review
a Texas district court judgment vacating the policy. While the plaintiffs in the Eighth
Circuit case are six states, the plaintiffs in the Texas case are two individuals, one
ineligible for any student loan relief and one eligible for only partial relief. The Court will
review whether the plaintiffs have standing, whether the program exceeds the Department
of Education’s statutory authority, and whether the agency adopted the program in a
procedurally lawful manner. The Court intends to hear oral argument in February 2023.
The district court’s judgment vacating the policy remains in place pending the Court’s
resolution of the case (Department of Education v. Brown).
 Securities: The Supreme Court granted certiorari in a case addressing how certain anti-
fraud provisions in the Securities Act apply to direct listings—transactions in which a
company can become publicly traded without issuing new shares. Unlike traditional
initial public offerings, direct listings involve the simultaneous flotation of both
registered and unregistered shares. The Court granted certiorari to determine whether
purchasers alleging that a company made material misrepresentations in a registration
statement, in violation of Section 11 or Section 12(a)(2) of the Securities Act, must prove
that they purchased registered shares, which can be difficult in the context of direct
listings. The Ninth Circuit held that, in cases involving direct listings, such plaintiffs need
not trace their shares to an allegedly misleading registration statement. Other circuits,
however, have held that, in cases involving multiple registration statements, Section 11
plaintiffs must trace their shares to an allegedly misleading registration statement (Slack
Technologies LLC v. Pirani).
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 nonuniform application of the law among the circuits.
 Bankruptcy: The Second Circuit affirmed the Chapter 11 reorganization plan of LATAM
Airlines Group S.A. and rejected a challenge by claimants holding claims against an affiliate of
LATAM. The claimants argued they were impaired under Section 1124 of the Bankruptcy Code
because, under the plan, they could not recover post-petition interest on their claims. The
claimants also argued they are entitled to interest under the solvent debtor exception, an equitable
doctrine that predates the 1978 Bankruptcy Code. The court held that the claimants were not
impaired under Section 1124 because the Bankruptcy Code itself, rather than the terms of the
debtor’s plan, precluded post-petition interest. The court declined to join the Fifth and Ninth
Circuits in holding that the solvent debtor exception survived the enactment of the Bankruptcy

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Code, reasoning that neither those circuits nor the claimholders here articulated a legal standard
for determining solvency (TLA Claimholders Group v. LATAM Airlines Group S.A.).
 *Civil Procedure: The First Circuit added to a circuit split over whether named class
representatives in class action lawsuits under Federal Rule of Civil Procedure 23(a) may recover
incentive awards, or payments above and beyond the recovery they would receive by virtue of
being a class member. At issue was the applicability of two Supreme Court cases that predate the
civil rules, Trustees v. Greenough (1881) and Central Railroad & Banking Company v. Pettus
(1885). These cases barred creditors suing on behalf of themselves and others from recovering for
personal services and private expenses out of a common fund. The Eleventh Circuit recently
applied these cases to Rule 23(a) class actions to bar incentive awards. The First Circuit
disagreed, joining the Second Circuit and the Seventh Circuit in refusing to categorically prohibit
incentive awards (Murray v. McDonald).
 Civil Rights: The Second Circuit affirmed a decision in favor of the Connecticut Interscholastic
Athletic Conference (CIAC) and its member high schools under Title IX of the Education
Amendments of 1972 over a policy allowing transgender students to participate in sports
consistent with their gender identity. Applying the Supreme Court’s 2020 decision in Bostock v.
Clayton County, Georgia, the court reasoned that CIAC’s policy did not fall within the scope of
Title IX’s proscriptions. Accordingly, the court ruled, CIAC and its member schools lacked clear
notice that the policy violated Title IX (Soule v. Connecticut Association of Schools).
 Consumer Protection: The Ninth Circuit affirmed a district court’s judgment for the Consumer
Financial Protection Bureau in a civil enforcement action alleging that the defendant mailed
deceptive solicitations offering services to assist students in applying for college scholarships.
The court considered who is a provider of “financial advisory services” under the Consumer
Financial Protection Act (CFPA) and the standard under which a court should determine whether
such providers engaged in illegal deceptive conduct. The court rejected the defendant’s argument
that his services fell outside of the CFPA because he advised only on “gift-based scholarships as
opposed to investments or debt instruments.” Looking to the ordinary meaning of “financial
advisory services,” the court held that the term is “broad and encompasses both cash financing
and debt financing.” The court also adopted the “net impression test” when determining whether
a solicitation is deceptive under the CFPA, holding that courts should look to the net impression
created by the solicitation regardless of whether it “also contains truthful disclosures” (Consumer
Financial Protection Bureau v. Aria).
 *Criminal Law & Procedure: The Eleventh Circuit held that when sentencing a criminal
defendant under the Armed Career Criminal Act (ACCA), a court must consult the Controlled
Substances Act (CSA) schedules in place at the time the of the defendant’s conviction for a prior
state offense. The ACCA increases the mandatory minimum for defendants who possess a firearm
and have certain prior convictions, including state drug convictions defined with reference to the
CSA. The circuits are split as to whether sentencing courts must look to the CSA controlled
substances list in effect at the time of the defendant’s prior state conviction or the list in effect at
the time of the conviction for the federal firearm offense. The Eleventh Circuit reached its
decision after vacating an earlier panel decision in this case holding that courts should look to the
CSA schedules in place when the defendant committed the federal firearm offense (United States
v. Jackson).
 Criminal Law & Procedure: A district court sentenced a defendant to five concurrent terms of
life imprisonment on the basis of five separate convictions. That court subsequently granted the

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defendant’s motion to vacate two of those convictions based on intervening Supreme Court
precedent but denied the defendant’s motion to be resentenced. The Second Circuit affirmed,
holding that the plain text of 28 U.S.C. § 2255 grants district courts discretion to decide whether
or not to resentence a defendant who successfully collaterally attacks part of his conviction. The
Second Circuit held that the district court did not abuse its discretion because any resentencing in
this case would have been “strictly ministerial,” as the remaining convictions also carried
mandatory life sentences (United States v. Peña).
 *Criminal Law & Procedure: The Sixth Circuit affirmed a conviction on multiple child-
pornography charges. On appeal, the court addressed a circuit split as to whether one-on-one
communications constitute “notice” for seeking or offering child pornography or child
exploitation under 18 U.S.C. § 2251(d), or whether that term requires some form of public
dissemination. Agreeing with most other circuit courts that have considered the issue, the Sixth
Circuit held that Congress intended notice to include one-on-one communications. The court
disagreed with the Eleventh Circuit’s position that notice is ambiguous under the statute (United
States v. Sammons).
 *Employee Benefits: The Fourth Circuit added to a circuit split over the proper standard to be
used by district courts to resolve denial-of-benefits actions under the Employee Retirement
Income Security Act of 1974 (ERISA). The court disagreed with the circuits that have endorsed a
“quasi-summary-judgment” procedure based on the administrative record. The court reasoned
that ERISA disability cases often present contested facts, and in such cases, a court should not
resolve factual disputes on summary judgment. Instead, the court held that the appropriate
mechanism is a bench trial under Federal Rule of Civil Procedure 52 because a bench trial allows
a court to resolve material issues of fact (Tekmen v. Reliance Standard Life Insurance).
 Immigration: The Fifth Circuit denied a petition for review of a Board of Immigration Appeals
(BIA) order removing an alien in absentia. The court reasoned that the BIA could hold a removal
hearing without the alien present because she did not provide the government with her address, as
required by federal law. Additionally, the court rejected the alien’s claim that the notice she
received directing her to provide an address was insufficient because it was written in English.
The court reasoned that nothing in the statute governing removal proceedings requires notice in
any other language (Plato-Rosales v. Garland).
 Immigration: Amending a previous opinion, the Ninth Circuit affirmed the district court’s
denial of the petitioner’s request to halt the execution of his removal order pending resolution of
his motion to reopen his removal proceedings. The court held that 8 U.S.C. § 1252, which strips
courts of jurisdiction over claims brought by “any alien arising from the decision or action by the
Attorney General to ... execute removal orders against any alien,” precluded review of the claim.
The court also held that, under § 1252, its jurisdiction was limited to review of final removal
orders and that the petitioner would be able to challenge his removal upon review of the final
decision of the BIA on his motion to reopen. The court rejected the petitioner’s arguments that
§ 1252 violates the Suspension Clause (which limits the suspension of the writ of habeas corpus)
and the Due Process Clause. The court determined that claims for relief from removal were
“outside of the scope of habeas relief,” which applies only to claims for relief from detention, and
that the petitioner did not need to be in the country to appeal a final order of the BIA, which was
all the process constitutionally required (Rauda v. Jennings).
 Food & Drug: The Fourth Circuit upheld a Food and Drug Administration (FDA) order denying
an e-cigarette seller’s application to market flavored e-cigarettes. The Family Smoking
Prevention and Tobacco Control Act requires manufacturers to receive approval from FDA

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before marketing new tobacco products by showing that the product would be appropriate for
protecting the public health. Among other arguments, the court rejected the seller’s challenge that
FDA exceeded its statutory authority by requiring applicants seeking to market fruit- and dessert-
flavored e-cigarettes to submit evidence showing that such products are better at promoting
smoking cessation by adult smokers than tobacco-flavored e-cigarettes. The court held that the
plain language of the statute contemplated such risk-benefit comparisons, given the substantial
risk of youth tobacco product initiation posed by flavored e-cigarettes (Avail Vapor, LLC v. U.S.
Food and Drug Administration).
 Speech: The Ninth Circuit amended a March 2022 opinion affirming the dismissal of Twitter’s
First Amendment retaliation suit against the Texas attorney general. The attorney general had
demanded that Twitter produce documents about its content moderation decisions. Twitter argued
this demand was impermissible retaliation for the platform’s protected speech, including its
decision to ban former President Donald Trump from its platform. In March 2022, the court held
that the case was not prudentially ripe for consideration because the attorney general had not yet
enforced the demand or brought any other claims against Twitter. In this amended opinion, the
court ruled that Twitter’s claims were not constitutionally ripe because Twitter’s challenge was
not a pre-enforcement challenge, but challenged the attorney general’s act of demanding
documents; in other words, it alleged the attorney general had already acted against Twitter.
Applying the injury-in-fact standard for determining constitutional ripeness, the court ruled that
Twitter failed to allege any chilling effect on its speech or any other legally cognizable injury
(Twitter, Inc. v. Paxton).
 Veterans: The Federal Circuit, sitting en banc, ruled that a veteran who elects to receive benefits
under the Post-9/11 GI Bill after participating in an older educational assistance program, such as
the Montgomery GI Bill, is limited to the number of months of entitlement remaining under the
older program unless the veteran first exhausts any remaining benefits under the older program.
The court interpreted a time limit on benefits in the Post-9/11 GI Bill statute and held that this
limit applied to veterans with single or multiple qualifying terms of service, reversing an earlier
Federal Circuit decision. The court reasoned that the statute’s plain text, as well as its legislative
history, did not suggest that the provision would apply only to veterans with a single term of
service and that, in light of this unambiguous statute, the court could not employ the pro-veteran
canon of statutory interpretation (Rudisill v. McDonough).

Author Information

Michael D. Contino
Abigail A. Graber
Legislative Attorney
Legislative Attorney

Disclaimer

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