Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Dec. 27, 2022–Jan. 2, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Dec. 27, 2022–Jan. 2, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Dec. 27, 2022–Jan. 2, 2023)
January 4, 2023
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
Last week, the Supreme Court did not issue any opinions or agree to hear any new cases. It did take action
in a case concerning the executive branch’s “Title 42” policy, which allows immigration authorities to
summarily expel certain aliens arriving from Canada or Mexico (regardless of their country of origin) to
prevent the transmission of the Coronavirus Disease 2019 (COVID-19).
In November 2022, a D.C. federal district court ruled the Title 42 policy was unlawful and directed the
Biden Administration to end the policy. When the D.C. Circuit rejected several states’ request to intervene
in the case to defend the policy’s lawfulness, those states asked the Supreme Court to stay the district
court order and review the case. On December 19, 2022, Chief Justice Roberts issued an administrative
stay to give the Court time to consider the emergency application.
On December 27, 2022, by a 5-4 vote, the Court granted certiorari to consider whether the states may
intervene, and the Court stayed implementation of the district court order pending the Supreme Court’s
judgment. The Court indicated that it is not reviewing the merits of the district court’s underlying decision
on the Title 42 policy’s lawfulness, but only the states’ ability to intervene.
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The Court scheduled oral arguments for February 2023. The Court has issued no further orders in the case
since December 27 (Arizona v. Mayorkas).
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.
 Civil Rights: The Fourth Circuit reversed a district court’s dismissal of an action under
Section 504 of the Rehabilitation Act of 1973 alleging that a medical center failed to
provide a deaf man with effective interpretive services or auxiliary aids to communicate
during his wife’s childbirth. The hospital provided two video link devices that each
malfunctioned and failed to resolve the problem over the couples’ three-day stay. The
court joined other circuits to hold that a plaintiff can claim intentional discrimination
under the Rehabilitation Act by alleging defendant’s deliberate indifference. As to that
showing, the court held that a plaintiff need not allege systematic failures to
accommodate, but need only claim that a defendant knew of plaintiff’s need for
communication aids and ultimately failed to provide them (Basta v. Novant Health
Incorporated).
 Civil Rights: Sitting en banc, a divided Eleventh Circuit held that a school district did
not violate either the Equal Protection Clause of the Fourteenth Amendment or Title IX of
the Education Amendments Act of 1972 by separating school bathrooms by “biological
sex” and requiring a transgender boy to use either the communal female restroom or
single-stall, sex-neutral bathrooms. On the constitutional claim, the court determined that
the school district’s bathroom policy advanced the important governmental objective of
protecting students’ privacy in school bathrooms. The court also held that a policy may
lawfully classify on the basis of biological sex without unlawfully discriminating on the
basis of transgender status. On the Title IX claim, the court held that the school district’s
policy is permitted by statutory and regulatory exceptions permitting separate housing
and bathroom facilities on the basis of sex, which the court read within the meaning of
Title IX as biological sex (Adams v. Sch. Bd. of St. Johns Cnty.).
 Communications: The Ninth Circuit reversed a district court’s dismissal of a class action
brought on behalf of children alleging that Google tracked online behavior and collected
data on YouTube without consent, in violation of several states’ laws. The district court
concluded that the claims were expressly preempted by 15 U.S.C. § 6502(d) of the
Children’s Online Privacy Protection Act (COPPA), under which Federal Trade
Commission regulations bar the collection of certain personal information of individuals
under the age of 13 without parental consent. Section 6502(d) preempts any state and
local laws that are “inconsistent with the treatment of those activities or actions under
th[e] section.” The Ninth Circuit rejected the district court’s reading that COPPA creates
an exclusive remedial scheme and held that COPPA does not preempt state laws that
supplement or prohibit the same conduct as COPPA (Jones v. Google).
 Criminal Law & Procedure: A divided Eighth Circuit affirmed a criminal defendant’s
conviction under 18 U.S.C. § 2423(a), which criminalizes knowingly transporting a
person under the age of 18 in interstate or foreign commerce with the intent that the
person engage in prostitution or other unlawful sexual activities. The court joined other
appellate courts interpreting the statute in holding it does not require knowledge of the
victim’s underage status. The court rejected the defendant’s reliance on the “all-
subsequent-elements presumption” of statutory interpretation as support for the argument

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that the term “knowingly” established the requisite mental state for both transporting an
individual and the individual’s age because Congress codified Section 2423(a) in the
context of a long-standing tradition of strict liability as to a child’s age in sex crimes.
Additionally, the court held that ignorance of this statute was not a defense because
transportation of an underage person with intent that the victim engage in sexual activity
is per-se blameworthy activity (United States v. Moreira-Bravo).
 *Criminal Law & Procedure: The Tenth Circuit, in reversing a district court’s grant of
habeas relief, held that a habeas petitioner seeking to cross-appeal from the portion of a
district court’s order partially denying his habeas petition is required to obtain a
certificate of appealability (COA) from the district court. The statute establishing the
prerequisites for an appeal in a habeas proceeding, 28 U.S.C. § 2253(c), states that
“[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals.” Recognizing that all but one circuit court to address this
question has applied the COA requirement to claims arising from a prisoner’s cross-
appeal, the Tenth Circuit denied the COA and dismissed the cross-appeal for lack of
jurisdiction (Sumpter v. Kansas).
 *Environmental Law: The Ninth Circuit affirmed a district court’s dismissal of an
Indian tribe’s lawsuit regarding the City of Seattle’s operation of the Gorge Dam. The
tribe brought suit in Washington State court alleging that Seattle’s operation of the dam
without fish passage facilities violates certain federal and state laws. Seattle removed the
case to federal district court. The Ninth Circuit held that the tribe in effect challenged a
Federal Energy Regulatory Commission (FERC) order concerning the dam and that the
Federal Power Act vests exclusive jurisdiction in the federal courts of appeals over all
objections to FERC orders by a party to a FERC proceeding, such as the tribe, even
objections based on state law. The Ninth Circuit affirmed the district court’s dismissal for
lack of subject matter jurisdiction and held that the district court did not need to remand
the state claims to state court, despite language in 28 U.S.C. § 1447(c), because of circuit
precedent recognizing a futility exception to that provision. All three members of the
Ninth Circuit panel endorsed a separate concurring opinion urging the full Ninth Circuit
to reconsider and abandon that futility exception, which other circuits have rejected, in an
appropriate case (Sauk-Suiattle Indian Tribe v. City of Seattle).
 Labor: The Fourth Circuit held that a North Carolina law’s provisions prohibiting
entering into certain contractual agreements regarding labor union dues and settlements
did not violate the First or Fourteenth Amendments of the U.S. Constitution or 42 U.S.C.
§ 1981. Rejecting a broader reading by the district court that the settlement provision
effectively bars any settlement agreement between an agricultural producer and labor
union, the Fourth Circuit concluded that the provision only prohibits the parties from
conditioning a settlement agreement on an agricultural producer’s union affiliation. The
court reversed the district court’s holding that the settlement provision violated the First
and Fourteenth Amendments and vacated the accompanying injunction, affirmed the
district court’s holding that the dues provision was constitutional, and determined that
neither provision violated Section 1981 (Farm Labor Organizing Committee v. Stein).
 Securities: Following a vacatur and remand for further consideration by the Supreme
Court, the Second Circuit issued a divided opinion that granted the government’s request
to dismiss criminal convictions for conversion of government property, wire fraud, and
securities fraud, all flowing from misappropriation of information from the Centers for
Medicare & Medicaid Services (CMS). Guided by the Supreme Court’s decision in Kelly
v. United States, the parties and the court agreed that the convictions could not stand
because the CMS information did not constitute property or a thing of value. In a

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 separate, noncontrolling opinion, the judges in the majority also commented on the
discrepancy between the standards for liability for criminal and civil insider trading in the
Second Circuit. The court observed that, as a result of the Second Circuit’s decision at an
earlier stage of the litigation, criminal liability for insider trading does not require proof
that a tipper received a “personal benefit.” This created an anomaly, the concurrence
suggested, because Supreme Court precedent establishes that civil insider trading liability
requires such proof. The judges argued that this asymmetry merited the attention of the
courts of appeals, the Supreme Court, and Congress (United States v. Blaszczak).
 Transportation: The D.C. Circuit reversed a district court’s judgment in favor of Amtrak
and held that the Southeastern Pennsylvania Transportation Authority (SEPTA) possesses
an easement granting access to certain Philadelphia-area Amtrak rail facilities. SEPTA
argued that it exercised an option to acquire the easement from Conrail in 1982, pursuant
to federal rail statutes. Amtrak maintained that it had instead exercised a contractual right
of first refusal and purchased the easement from Conrail, with the dispute sitting dormant
until the recent expiration of a lease agreement between Amtrak and SEPTA. The D.C.
Circuit held that Amtrak’s private right of first refusal could not impede SEPTA’s public,
statutorily derived right to acquire the easement (Nat'l R.R. Passenger Corp. v. Se. Pa.
Transp. Auth.).

Author Information

Jimmy Balser
Alexander H. Pepper
Legislative Attorney
Legislative Attorney

Michael D. Contino

Legislative Attorney

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