Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (June 5–June 11, 2023)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(June 5–June 11, 2023)
June 13, 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
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Decisions of the Supreme Court
Last week, the Supreme Court issued decisions in five cases (two of which were consolidated) for which
it heard oral arguments:
• Criminal Law & Procedure: The Court vacated the Fifth Circuit’s affirmance of a
criminal defendant’s sentence under the federal aggravated identity theft statute,
18 U.S.C. § 1028A(a)(1), where the sentence was based on the defendant overbilling
Medicaid by falsifying the scope of services provided to a patient. Section 1028A(a)(1)
punishes “misuse” of another’s name or identifying information when done “in relation
to” a predicate offense. Eight Justices joined an opinion holding that for § 1028A(a)(1) to
apply, the misuse must be at the crux of what makes the underlying conduct criminal.
Here, the Court believed the defendant’s misuse of another’s name was merely an
ancillary feature of his method to overbill Medicaid (Dubin v. United States).
• Elections: By a 5-4 vote, the Court upheld a three-judge district court panel’s ruling that
Alabama’s congressional redistricting plan, creating one majority-Black congressional
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district out of seven districts total, impermissibly diluted the votes of Black Alabamans in
violation of the Voting Rights Act (VRA), along with a related ruling by a district court
in a separate case. In so doing, the majority declined to revisit the three-pronged test
established in Thornburg v. Gingles for proving vote dilution under Section 2 of the
VRA. It concluded that, based on the evidentiary record, the test was properly applied
here (Allen v. Milligan; Allen v. Caster).
• Health: In a 7-2 decision, the Court held that the Federal Nursing Home Reform Act
(FNHRA)—which sets minimum standards of care for nursing homes receiving federal
funding in the Medicaid program—unambiguously confers federal rights that are
actionable under 42 U.S.C. § 1983. In so doing, the Court rejected arguments that
legislation enacted pursuant to Congress’s Spending Clause power cannot give rise to
rights privately enforceable under § 1983 (Health & Hospital Corp. of Marion County v.
Talevski).
• Intellectual Property: A unanimous Court reversed and vacated a lower court ruling that
the humorous use of another entity’s trademark, even if used as a source identifier for
goods, receives heightened protection in a trademark infringement suit brought under
the Lanham Act. The case involves a company that manufactures dog toys labeled “Bad
Spaniels” that resemble bottles of Jack Daniel’s whiskey. The Court held that the ordinary
standard for trademark infringement, and not a heightened standard for “expressive
works,” applied to the case, because the challenged use of Jack Daniel’s trademark was
itself a mark (i.e., it was used to identify the source of the dog toys). As to a separate
claim for trademark dilution, the Court held that a statutory exclusion for
“noncommercial” uses of another’s mark did not provide a blanket shield for all parody
or humorous commentary (Jack Daniel’s Properties, Inc. v. VIP Products, LLC).
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.
• Bankruptcy: The Fifth Circuit held in consolidated appeals that a bankruptcy court
lacked jurisdiction under the Bankruptcy Code to settle class actions that were not
provided for in a confirmed Chapter 11 Plan (the Plan). The court acknowledged that
adjudications of pre-bankruptcy petition claims against a debtor’s estate fall within a
bankruptcy court’s “core jurisdiction.” The court held that such jurisdiction did not apply
here because nearly all of the class members did not file proofs of claim by the court-
imposed deadline (the Bar Date), the Plan stated that any proof of claim filed after the
Bar Date would be deemed disallowed and expunged (with narrow exceptions that did
not apply), and the Bankruptcy Code itself requires the filing of a proof of claim to
participate in the Plan voting process. (RDNJ Trowbridge v. Chesapeake Energy Corp.).
• *Civil Procedure: The Tenth Circuit joined nearly every other circuit court as to the
procedural standard for certifying an “issue class”—that is, for treating part of a case as a
class action when class certification is not warranted for the case as a whole. The court
held that issue certification under Federal Rule of Civil Procedure 23(c)(4) is appropriate
if the issue class itself satisfies Rule 23(a), which imposes requirements of numerosity,
commonality, typicality, and adequacy, and Rule 23(b)(3), which requires a showing that
common issues predominate over individual issues. This standard deviates from the Third
Circuit, which takes additional steps to certify an issue class, and the Fifth Circuit, which
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in one decision required that the entire cause of action, and not just the contemplated
issue class, meet the predominance requirement (Black v. Occidental Petrol. Corp.).
• Criminal Law & Procedure: The First Circuit, interpreting the “turnover” statute of the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3664(n), held that a district
court applied the statute lawfully to, among other things, COVID-19 stimulus checks, and
that the district court’s decision to require immediate payment toward restitution was
reasonable. Section 3664(n) requires prison inmates to put substantial resources, such as
an inheritance or settlement, that are acquired while incarcerated toward unpaid
restitution obligations (United States v. Saemisch).
• *Criminal Law & Procedure: The First Circuit declined to apply the Ninth Circuit’s
standard for prosecutorial misconduct based on the denial of use immunity for defense
witnesses. Use immunity protects witnesses from having their testimony used as evidence
against them in court. The First Circuit held that the “effective defense theory,” under
which a strong need for exculpatory testimony can override the government’s objection to
use immunity, is not good law in that circuit. Instead, the court applied First Circuit
precedent, whereby the government may defeat a challenge to the denial of use immunity
by offering a plausible reason for denying such immunity. The court found plausible the
government’s position that it wanted to avoid potential obstacles to prosecuting the
defense witness in question on pending federal charges (United States v. Munera-Gomez).
• Criminal Law & Procedure: The Fourth Circuit affirmed the conviction of a defendant
charged with producing child pornography in violation of 18 U.S.C. § 2251(a). The
defendant contended that his conviction involved an impermissible extraterritorial
application of § 2251(a) because he was in New Zealand at the time of recording the
unlawful images and videos. The court applied the presumption against extraterritoriality
and held that § 2251(a) does not provide a clear indication of an extraterritorial
application. The court nonetheless held that the case involved a domestic application of
§ 2251(a) because the “focus” of the statute is the production of a visual depiction of a
minor engaged in sexually explicit conduct or the transmission of a live visual depiction
of such conduct, and here, the defendant produced and transmitted such a visual depiction
with a minor who lived in Virginia (United States v. Skinner).
• *Criminal Law & Procedure: The Sixth Circuit reversed a district court’s order
granting compassionate release to a prisoner under the First Step Act. The district court
determined that the prisoner’s sentence was unconstitutional under the Supreme Court’s
decision in Apprendi v. New Jersey and granted the prisoner’s motion for release. The
Sixth Circuit held that a sentencing error is not an “extraordinary and compelling” reason
for compassionate release under the First Step Act and instead can only be corrected by
way of a federal habeas petition. In so holding, the Sixth Circuit joined four other
circuits, while the First Circuit has stated that a sentencing error might provide a reason
for compassionate release (United States v. West).
• Criminal Law & Procedure: The Ninth Circuit held that, for a parolee to be detained or
searched without a warrant under the Fourth Amendment, a law enforcement officer must
have at least probable cause—not absolute certainty—to believe that (1) the individual to
be detained or searched is on active parole, and (2) the applicable parole condition
authorizes the search or seizure (United States v. Estrella).
• *Criminal Law & Procedure: The Ninth Circuit affirmed the dismissal of two habeas
corpus petitions challenging the petitioners’ conditions of confinement. The court held
that prisoners may not bring such claims under the federal habeas corpus statute,
28 U.S.C. § 2241. The court reasoned that, under Ninth Circuit precedent, challenges to
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the conditions of a sentence’s execution, but not the conditions of the inmate’s
confinement, may be brought under § 2241. The court also conducted a review of the
history and purpose of habeas corpus and concluded that conditions-of-confinement
claims are not at the “core of habeas corpus.” The Ninth Circuit disagreed with multiple
other circuits that appear to have held that seeking release from confinement is the
necessary attribute of a claim’s sounding in habeas. Instead, the Ninth Circuit held, the
key inquiry is the petitioner’s argument why release from confinement is legally required
to remedy a constitutional violation (Pinson v. Carvajal).
• Fair Credit Reporting Act (FCRA): The Eleventh Circuit declined to impose a “new-
material information” requirement on an FCRA cause of action. Under FCRA, a
consumer may dispute the accuracy of their credit reports with their bank, also known as
a “furnisher.” Upon receiving the dispute, the furnisher must conduct a reasonable
investigation into the report’s accuracy, and a consumer may sue a furnisher for
conducting an unreasonable investigation. Here, the court held that the statute of
limitations for such a claim restarts every time a furnisher commences an unreasonable
investigation, regardless of whether the dispute causing a later investigation contains new
information. The court was not persuaded by the defendant’s argument that consumers
could abuse the FCRA and restart their limitations clock by resubmitting an old dispute.
The court added that, had Congress intended for FCRA to have a new-material
information rule, it would have included such a rule in the statute. Although the circuit
court agreed that the plaintiff’s claim was timely, it affirmed the lower court’s holding
that the defendant conducted a reasonable investigation (Milgram v. Chase Bank USA,
N.A.).
• Firearms: A divided Third Circuit, sitting en banc, held that the federal felon-in-
possession law, 18 U.S.C. § 922(g)(1), as applied to a felon convicted of violating
Pennsylvania’s law prohibiting false statements to obtain food stamps, violated the
Second Amendment. The majority, which described its decision as narrow, reasoned that
the Government failed to show that the United States has a long-standing history and
tradition of depriving similarly situated people of firearms—the Second Amendment
standard articulated by the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v.
Bruen (Range v. Att’y Gen.).
• Food & Drug: The First Circuit held that the plaintiffs’ state law claims regarding the
advertising labels of dietary supplements were preempted by the Food, Drug, and
Cosmetic Act (FD&C Act). The plaintiffs argued that the labels for glutamine
supplements made deceptive claims by conflating the benefits of natural and
supplemental glutamine. The court determined that the label claims concerned the general
effect of glutamine rather than the specific effect of the supplements and met the
requirements for such claims under the FD&C Act. As the FD&C Act expressly preempts
any state law labeling requirement concerning that type of label claim that is not identical
to the FD&C Act’s requirements, the court held that the plaintiff’s state law claims were
preempted. (Ferrari v. Vitamin Shop Indus.).
• Freedom of Information Act (FOIA): The D.C. Circuit affirmed a district court’s order
granting summary judgment to several intelligence agencies. The plaintiff filed suit after
the agencies rejected his FOIA request seeking records about the alleged “unmasking” of
members of former President Trump’s Administration and transition team under the
Foreign Intelligence Surveillance Act of 1978, referring to a process by which agencies
may learn the identity of U.S. persons associated with material incidentally captured in
electronic surveillance. The agencies rejected the request with so-called Glomar
responses, taking the position that divulging even the existence or non-existence of the
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records at issue was exempt from FOIA. The D.C. Circuit held that the agencies properly
issued such responses under multiple FOIA exemptions and did not need to search first
for any potentially responsive records (Schaerr v. U.S. Dep’t of Just.).
• Labor & Employment: The Fifth Circuit held that audiologists are “physicians” under
Section 7(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C. § 907(b). Section 907(b) of the LHWCA provides covered employees with the
right to choose an attending physician to provide medical care. The Court, reasoning that
the plain meaning of “physician” includes audiologists, held that the interpretation of the
Director of the Office of Workers’ Compensation Programs including audiologists in the
regulatory definition of “physician” was entitled to administrative deference (Huntington
Ingalls, Inc. v. Dir., Off. of Workers’ Comp. Programs.).
• Labor & Employment: The Eighth Circuit held that a provision of the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(d), is not
jurisdictional. Section 1132(d), a central enforcement mechanism under ERISA, provides
that any money judgment against an employee benefit plan shall be enforceable against
the plan only, and not against another person absent a showing of liability of the person in
their individual capacity. The court had previously found that the inability to enforce a
money judgment under § 1132(d) amounted to a lack of standing to sue. The court
reconsidered that position in light of the Supreme Court’s holdings that claims processing
rules and elements of a cause of action are distinct from limitations on subject matter
jurisdiction. The court held that the text of the statute did not implicate jurisdiction, and
accordingly, it did not deprive the plaintiff of standing (Shafer v. Zimmerman Transfer,
Inc.).
• Speech or Debate Clause: A divided Eighth Circuit granted in part a petition for a writ
of mandamus to quash an order compelling documents and testimony from several
current and former members of the North Dakota Legislative Assembly and a legislative
aide. The district court directed the lawmakers to comply with subpoenas for documents
or testimony in a civil case brought against the State alleging violations of Section 2 of
the VRA. The Eighth Circuit, stating that legislators enjoy a privilege under the federal
common law that largely approximates the protections afforded to federal legislators
under the Speech or Debate Clause of the U.S. Constitution, rejected the district court’s
view that legislative privilege did not apply because the subpoena sought
communications between legislators and third parties (In Re: North Dakota Legis.
Assembly).
• Territories: The Ninth Circuit held that Congress intended for a statute that bestows
noncitizen national status on those born in American Samoa to apply retroactively. At
issue were the 1986 amendments to the Immigration and Nationality Act of 1952,
codified at 8 U.S.C. § 1408. The court considered the effect of the amendments on
individuals born in American Samoa prior to 1986. The court concluded that the text of
§ 1408 indicated legislative intent to apply the statute retroactively. The court found
particularly relevant an uncodified section of the 1986 amendments providing that § 1408
shall apply to persons born before, on, or after the date of enactment (Koonwaiyou v.
Blinken).
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Author Information
Jimmy Balser
Michael John Garcia
Legislative Attorney
Deputy Assistant Director/ALD
Michael D. Contino
Alexander H. Pepper
Legislative Attorney
Legislative Attorney
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