Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (July 31, 2023–August 6, 2023)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(July 31, 2023–August 6, 2023)
August 7, 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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Decisions of the Supreme Court
No Supreme Court opinions or grants of certiorari were issued last week. The Supreme Court’s next term
is to begin October 2, 2023.
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.
• Abortion: The Ninth Circuit vacated a preliminary injunction against Guam’s informed-
consent law requiring an in-person meeting with a physician before an abortion. Citing
Dobbs v. Jackson Women’s Health Organization to apply rational-basis review to assess
alleged violations of the Due Process Clause, the court held that the in-person
requirement furthers Guam’s legitimate government interests. The court rejected the
argument that the in-person requirement undermines informed consent because no
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physicians currently provide abortion services in Guam. Additionally, and again applying
rational-basis review, the court rejected the equal protection claim that the in-person
requirement treats physicians who provide abortions differently than telemedicine
providers. The court explained that abortion is meaningfully different from other medical
procedures (Raidoo v. Moylan).
• Bankruptcy: Taking a narrow view of a bankruptcy court’s civil contempt power, the
Second Circuit reversed the denial of the motion of Citigroup, Inc. and Citibank, N.A.
(the defendants) to dismiss a putative class action filed in bankruptcy court. The named
debtor, out of whose bankruptcy this appeal arose, filed the lawsuit on behalf of a
nationwide class of former debtors who contended that the defendants should be held in
contempt for violating the debtors’ discharge orders. The Second Circuit held that the
contempt power under the Bankruptcy Code does not authorize a bankruptcy court to
enforce other bankruptcy courts’ discharge orders. The court also held that a bankruptcy
court does not have the authority to hear and adjudicate a class-wide contempt
proceeding. The court did, however, authorize the named debtor’s individual action to
proceed (Citigroup, Inc. v. Bruce (In re Bruce)).
• Bankruptcy: Joining the Third and Fourth Circuits, the Sixth Circuit held that a shared
responsibility payment required by the Affordable Care Act (ACA) qualifies as a “tax . . .
measured by income” entitled to priority in a bankruptcy proceeding under 11 U.S.C.
§ 507(a)(8). The individual mandate of the ACA, no longer in effect, required an
individual who did not maintain health insurance to make the shared responsibility
payment to the Internal Revenue Service. In a dispute over whether the payment qualifies
as a tax or a penalty in the bankruptcy context, the court looked to the functional
operation of the ACA provision and concluded that it operates as a tax (In re Juntoff).
• *Civil Procedure: The Ninth Circuit reversed a district court’s stay issued pursuant to
the Supreme Court’s decision in Colorado River Water Conservation District v. United
States (Colorado River). Under Colorado River, federal courts can stay a federal case in
“exceptional circumstances” during pendency of state court litigation on related claims.
The court, acknowledging conflicting authority from at least one circuit, joined other
circuits in holding that a Colorado River stay cannot issue when there is substantial doubt
as to whether the state proceedings would resolve the federal action. In this case, federal
litigation would only be resolved if the parallel state court proceedings end in one of
several possible outcomes, which the court held was too uncertain to justify a stay
(Ernest Bock, LLC v. Steelman).
• *Civil Rights: The Seventh Circuit upheld preliminary injunctions allowing transgender
boys to use boys’ bathrooms and locker rooms in their schools. The court declined to
overrule a prior decision that equated discrimination based on gender identity to sex
discrimination. Recognizing a circuit split in cases with substantially similar facts, the
court held, among other things, that the plaintiffs were likely to succeed on their claims
alleging sex discrimination in violation of Title IX of the Education Amendments Act of
1972 and the Equal Protection Clause of the Fourteenth Amendment (B. E. v. Vigo Cty.
Sch. Corp.).
• *Criminal Law & Procedure: The Third Circuit held that a federal defendant who
obtains habeas relief under 28 U.S.C. § 2255 but wishes to appeal the district court’s
choice of remedy under that provision must obtain a certificate of appealability (COA) in
accordance with 28 U.S.C. § 2253(c). If a district court determines that a defendant’s
sentence is unlawful under § 2255, it then selects between discharging the defendant,
resentencing, granting a new trial, or correcting the sentence. In holding that a COA is
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required to appeal a district court’s choice among these options, the Third Circuit aligned
with the Eleventh Circuit but rejected the contrary position of the Fourth and Sixth
Circuits (Clark v. United States).
• Criminal Law & Procedure: In a case challenging the seizure and forfeiture of cash by
the Drug Enforcement Administration based on suspicions that the money was from
illegal drug activity, the Seventh Circuit held that the Civil Asset Forfeiture Reform Act
of 2000 (CAFRA) provides the exclusive remedy to set aside an agency’s declaration of
civil forfeiture and only permits challenges to the adequacy of an agency’s notice of the
forfeiture. The court denied equitable relief to the plaintiff for failing to follow the
process under CAFRA to challenge the forfeiture (Wilson v. United States).
• Criminal Law & Procedure: A divided Seventh Circuit held, among other things, that to
state a civil claim under the Trafficking Victims Protection Reauthorization Act of 2003,
a plaintiff need only plausibly allege that the defendant had constructive knowledge that a
business partner generally violated the statute. 18 U.S.C. § 1595 creates a civil cause of
action for victims of sex trafficking against persons who knowingly benefit from sex
trafficking. The court allowed a claim of participant liability to go forward against a
defendant that allegedly knew or should have known that a business partner generally
violated § 1591—which criminalizes sex trafficking of children by force, fraud, or
coercion—even where there was no allegation the defendant had constructive knowledge
that the business partner violated § 1591 with respect to the specific victim who brought
the civil action (Rose v. Salesforce.com, Inc.).
• Criminal Law & Procedure: A divided Ninth Circuit held that Congress did not exceed
its authority under the enforcement clause of the Thirteenth Amendment by enacting a
federal hate crimes statute, 18 U.S.C. § 249(a)(1). The court explained that Section Two
of the Thirteenth Amendment gives Congress the power to pass laws necessary and
proper to eliminate the “badges” and “incidents” of slavery. The court added that an
exercise of this enforcement authority is subject to rational basis review, not heightened
scrutiny. Joining five other circuits, the Ninth Circuit held that Congress rationally
concluded that racially motivated violence is a badge or incident of slavery (United States
v. Hougen).
• *Criminal Law & Procedure: The Ninth Circuit reaffirmed its position that, pursuant to
the Supreme Court’s ruling in Kisor v. Wilkie, courts may defer to the U.S. Sentencing
Commission’s official commentary interpreting the U.S. Sentencing Guidelines only if
the court determines that the relevant Guideline is genuinely ambiguous and the court has
exhausted all traditional tools of construction. The court acknowledged that the Sixth
Circuit shares its view and that the Fourth Circuit has taken the opposite approach,
specifically that, under the Supreme Court’s ruling in Stinson v. United States, the
Commission’s official commentary is binding, unless it is plainly erroneous, inconsistent
with the Guideline provision itself, or violates the Constitution. The Ninth Circuit
reasoned that Kisor effectively modified the cases on which Stinson was based, limiting
the scope of the deference announced in Stinson (United States v. Scheu).
• Criminal Law & Procedure: The Eleventh Circuit held that a state crime of possessing
a listed chemical subject to the Controlled Substances Act, with reasonable cause to
believe the chemical would be used to manufacture a controlled substance, is not a
predicate “serious drug offense” under the Armed Career Criminal Act (ACCA). The
ACCA defines a serious drug offense as including “manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance.” The Eleventh
Circuit held that the state offense of possessing a listed chemical with “reasonable cause
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to believe” that some person would use it for manufacturing a controlled substance was
too far removed from the actual conduct of manufacturing to fall under the ACCA’s
definition of “serious drug offense” (United States v. Miles).
• Education: The Second Circuit held that the fee shifting provision of the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3)(B)(i)(I), permits a court
to award attorneys’ fees and related costs to an individual bringing an action on his own
behalf seeking required educational services from a state agency. IDEA permits a court to
award fees to a parent of a child with a disability, and defines “parent” broadly to include
an “individual who is legally responsible for the child’s welfare.” In a case where a
disabled individual without a parent or guardian prevailed in an administrative
proceeding, the Second Circuit held that the individual was acting as his own parent
under the statute (J.S. v. New York Dep’t of Corr. and Cmty. Supervision).
• Environmental Law: The Seventh Circuit held that the term “report” as used in 33
U.S.C. § 2283(d)(1) refers only to reports submitted to Congress by the Army Corps of
Engineers (Corps) to propose water resources projects. Only such reports are required by
the Water Resources Development Act of 2007 to include a specific mitigation plan. The
court also held that the National Environmental Policy Act only requires the Corps to
consider reasonable alternatives and that courts owe deference to the agency’s
determination of which alternatives are reasonable (Nat’l Wildlife Fed’n v. United States
Army Corps of Eng’rs).
• False Claims Act: The Ninth Circuit held that the public disclosure bar for a qui tam
action brought under the False Claims Act did not apply to inter partes review (IPR), an
administrative proceeding to cancel a patent before the Patent Trial and Appeal Board, an
adjudicatory branch of the U.S. Patent and Trademark Office. The public disclosure bar
in 31 U.S.C. § 3730(e)(4)(A) requires a federal court to dismiss qui tam actions if
substantially the same allegations or transactions as alleged in the action or claim were
publicly disclosed in one of three specified channels, including certain government
hearings or investigations. The panel, reversing a district court decision, held that the IPR
was not a specified channel and that the disclosures in the IPR were not substantially the
same allegations as those brought in the qui tam action (U.S. ex rel. Silbersher v. Valeant
Pharm. Int’l, Inc.).
• *Federal Courts: The Third Circuit created a circuit split as to the scope of a magistrate
judge’s jurisdiction under the Federal Magistrates Act, 28 U.S.C. § 636. Disagreeing with
the Fourth, Sixth, and Tenth Circuits, the court held that magistrate judges maintain
jurisdiction to deny motions to proceed in forma pauperis (IFP) because such denials are
non-dispositive pre-trial matters. The court reasoned that IFP motions do not appear on
the § 636(b) list of matters that the statute carves out of magistrate judge jurisdiction.
Acknowledging that § 636(b) is an illustrative list, not an exhaustive one, the court also
looked to § 636(b)(1)(A) and (B), which allow magistrate judges to hear prisoner
petitions challenging the conditions of their confinement and to rule on IFP motions that
accompany those petitions. The court also found support in Federal Rule of Civil
Procedure 72(b), which carves out “dispositive” matters from a magistrate judge’s
jurisdiction (Prater v. Dep’t of Corr.).
• Firearms: A divided Fifth Circuit reversed the denial of an injunction against a final rule
issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The final rule
established criteria for determining when modifications to pistols (such as by attaching
stabilizing braces) transformed the pistols into “rifles,” subjecting them to heightened
manufacturing, selling, and transferring requirements under the National Firearms Act of
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1934 and the Gun Control Act of 1968. The court held, among other things, that ATF
likely violated the Administrative Procedure Act’s notice and comment requirement
because the final rule was not a “logical outgrowth” of the proposed rule (Mock v.
Garland).
• First Amendment (Speech): A divided Seventh Circuit held that a nonprofit advocacy
organization’s payment of cash bail is not expression protected by the First Amendment
right to free speech. The plaintiff organization challenged an Indiana law requiring
charitable bail organizations to register with the state and prohibiting them from
providing assistance to certain criminal defendants. The court held that paying bail is not
inherently expressive because a reasonable observer would not understand the payments
to express any message about the bail system. The court also held that law does not
violate the Fourteenth Amendment’s Equal Protection Clause because it is rationally
related to the State’s legitimate interest in regulating criminal defendants (The Bail
Project, Inc. v. Comm’r, Indiana Dep’t of Insurance).
• Health: A divided Sixth Circuit panel declined to lift a district court’s stay of a
preliminary injunction that would have blocked enforcement of a Kentucky law
restricting gender-affirming surgeries, hormone therapy, and puberty blockers for
transgender minors. Although the district court initially blocked the state law’s
enforcement, it stayed the injunction’s effect in light of the circuit panel’s recent
emergency stay of an injunction issued in a case involving a similar Tennessee law. (A
prior edition of the Congressional Court Watcher recaps that case.) In a per curiam
decision, the circuit panel majority acknowledged some differences between the
Kentucky and Tennessee laws, but concluded that the factors that supported staying the
preliminary injunction in the Tennessee case likewise supporting staying the injunction
here (Doe 1 v. Thornbury).
• *Immigration: The First Circuit held that judicial venue for appellate review of a final
order of removal is determined by the location of the administrative venue in which
removal proceedings are commenced, absent any formal change in administrative venue.
Under 8 U.S.C. § 1252(b)(2), a petition for review of a final order of removal must be
filed with the court of appeals for the circuit within which “the immigration judge
completed the proceedings.” Removal proceedings commence with a filing with an
administrative control immigration court, but may include a separate designated hearing
location and remote hearings with participants in various locations. The First Circuit held
that appellate review of the order of removal was appropriately filed with the First
Circuit, as opposed to the Fifth Circuit, because the proceedings were initiated in the
Boston immigration court, even though the Immigration Judge was physically present in
Fort Worth, TX. Acknowledging that other circuits have reached a variety of conflicting
results, the First Circuit held that an immigration judge completes the removal
proceedings at the administrative venue of the proceedings (Bazile v. Garland).
• Immigration: The Immigration and Nationality Act allows a noncitizen to appeal to a
U.S. circuit court for review of a “final” order of removal within 30 days of the order.
The Tenth Circuit held, among other things, that the Department of Homeland Security’s
reinstatement of a noncitizen’s prior removal order was not a final order starting the 30
days when there was a pending proceeding to determine whether the noncitizen was
eligible for certain protections from removal. According to the court, the reinstated
removal order becomes final upon the conclusion of those proceedings before an
immigration judge and any administrative appeal to the Board of Immigration Appeals
(Arostegui-Maldonado v. Garland).
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• *Labor & Employment: The Ninth Circuit held in part that Section 406(a)(1)(C) of the
Employee Retirement Income Security Act (ERISA) establishes a per se rule that
classifies even arm’s-length service transactions between a plan and a party in interest as
“prohibited transactions” which may be permissible under certain statutory exemptions.
The Ninth Circuit declined to follow the reasoning of the Third Circuit, which has held
that a plaintiff must plead factual allegations that support an element of intent to benefit a
party in interest in order to state a prohibited-transaction claim. The Ninth Circuit also
rejected a similarly limited reading of the scope of Section 406(a)(1)(C) adopted by the
Seventh Circuit (Bugielski v. AT&T Servs., Inc.).
• Labor & Employment: A divided D.C. Circuit held, among other things, that the
jurisdictional grant to the Department of Labor’s Mine Safety and Health Administration
(MSHA) under the Federal Mine Safety and Health Amendments Act (Mine Act) was
ambiguous and remanded the case for the Secretary of Labor to interpret the ambiguous
language. The Mine Act gives MSHA jurisdiction over “coal or other mine[s].” The court
held that part of the statutory definition of “mines” is ambiguous as to whether MSHA
has authority over an independent trucking company that provides hauling services to
mining companies when its trucks are off a client’s extraction site (Sec’y of Labor v. KC
Transp.).
• Telecommunications: The Fifth Circuit affirmed a district court’s entry of a permanent
injunction against enforcement of municipal design regulations limiting the construction
of new utility poles to support 5G wireless services. The circuit panel held that the city’s
restrictions were preempted by the Federal Telecommunications Act. The panel further
held that a plaintiff may seek declaratory and injunctive relief under the Act,
distinguishing circuit precedent providing that the relevant provision of the Act does not
establish a private right of action enforceable for damages under 42 U.S.C. § 1983
(Crown Castle Fiber, L.L.C. v. City of Pasadena).
Author Information
Michael John Garcia
Michael D. Contino
Deputy Assistant Director/ALD
Legislative Attorney
Jimmy Balser
Alexander H. Pepper
Legislative Attorney
Legislative Attorney
Justin C. Chung
Legislative Attorney
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